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ERRU AND GOOD REPUTE CHALLENGES TOWARDS COMMUNITY WIDE HARMONISATION OF GOOD REPUTE REQUIREMENTS

ECR supported by:. ERRU AND GOOD REPUTE CHALLENGES TOWARDS COMMUNITY WIDE HARMONISATION OF GOOD REPUTE REQUIREMENTS. Brussels 17 November 2010. Marcel Waasdorp, LL.M M.Sc legal counsel and Gérard Schipper ECR General Delegate. ECR supported by:. 1. ERRU and good repute

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ERRU AND GOOD REPUTE CHALLENGES TOWARDS COMMUNITY WIDE HARMONISATION OF GOOD REPUTE REQUIREMENTS

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  1. ECR supported by: ERRU AND GOOD REPUTE CHALLENGES TOWARDS COMMUNITY WIDE HARMONISATION OF GOOD REPUTE REQUIREMENTS Brussels 17 November 2010 Marcel Waasdorp, LL.M M.Sc legal counsel and Gérard Schipper ECR General Delegate

  2. ECR supported by: 1. ERRU and good repute Harmonisation and implementation of the good repute requirement

  3. 2. Summary • Introduction • Harmonisation of the good repute requirement: challenges • Positions and questions • Discussion

  4. ECR supported by: 3. Requirement of good repute Good repute road transport undertaking and transport manager - National conditions: No compelling grounds for doubting the good repute - Community conditions: No conviction of or penalty for a serious infringement

  5. ECR supported by: 4. Consequences loss of good repute? May result in:  - Suspension or withdrawal authorisation undertaking - Declaration of unfitness of the transport manager (TM)

  6. ECR supported by: • 5. What is good repute? • Community conditions: 7 serious infringements • Exceeding permitted driving time; • No tachograph or speed limiter, omission driver card data; • 3. No roadworthiness; • 4. Carriage of dangerous goods; • 5. No valid? driving licence or valid? authorisation; • 6. Falsified or falsely obtained driving licence; • 7. Exceeding maximum weight. ANNEX IV.doc

  7. ECR supported by: • 6. Decision process / assessment good repute • - Penalty for or conviction of a serious infringement by TM or undertaking • - Proportionality check loss of good repute • If deemed proportionate; • A) declaration of unfitness TM • B) 6 months term to decide on withdrawal of the authorisation undertaking • - Or, suspension or withdrawal of the authorisation undertaking due to its conduct

  8. ECR supported by: 7. Challenges towards harmonisation and legal certainty 1. Interpretation of serious infringement in practice 2. Detection, forwarding and registrations of these infringements 3. Attribution of the serious infringements to the undertaking, TM or both? 4. Interpretation and application of the proportionality check related to the loss of good repute 5. What is rehabilitation? What contributes to a uniform application of the requisite of good repute?

  9. ECR supported by: 8. Positions and questions Sub 1: Interpretation of serious infringements in practice Example: Driving licence expired two days? What if the most serious infringement is addressed to the driver only? Undertaking?

  10. ECR supported by: 9. Positions and questions Sub 2: Detection, forwarding and proper registration of the MSI’s within the ERRU database Example: Are all control officers capable and aware of the fact that they detected a MSI and how they should act in line with ERRU?

  11. ECR supported by: 10. Positions and questions Sub 3: The attribution of serious infringements to the undertaking, TM or both? Example:a To which actor or party is a specific MSI’s directed to according to national law? If the MSI is directed solely to the undertaking is it then legally possible to declare the TM?

  12. ECR supported by: 11. Positions and questions Sub 4: Interpretation and application of the proportionality check related to the loss of good repute Example How many sanctions or convictions of serious infringements are needed in order to decide the loss of good repute of an undertaking or TM? What are the other relevant criteria and considerations when deciding upon the final loss of good repute? For example; involvement of management, intent, (gross) negligence, recidivism and additional circumstances. size company, other relevant criteria?

  13. ECR supported by: • 12. Positions and questions • 5. What does rehabilitation entail? • Example: • The TM has passed an integrity exam with good results • Rehabilitation resulting from a civil court case, ruling that the initial unfitness was unlawful • The reconstitution of the transport undertaking's management

  14. ECR supported by: 12. Discussion 12. Discussion ssion 12. Discussion 12. Discussion 12. Discussion 12. Discussion 12. Discussion 12. Discussion Will a common approach and strategy towards enforcement and implementation of legislation that regulates the requirements of good repute (the 7 MSI’s) lead to the following benefits: Fair competition? Public and road safety? Transparent government? Legal certainty? 13. Discussion

  15. ECR supported by: Thanks for your attention! Questions ?

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