S.I. No. 88/2006 - European Communities (Road Transport) Regulations 2006

STATUTORY INSTRUMENT

S.I. No 88 of 2006

European Communities (Road Transport) Regulations 2006

EUROPEAN COMMUNITIES (ROAD TRANSPORT) REGULATIONS 2006

I, Martin Cullen, Minister for Transport, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving full effect to Council Regulation No. 3820/85/EEC of 20 December 1985¹ (after consultation with the Commission of the European Communities as required by the said Council Regulation) hereby make the following regulations:

1.         These Regulations may be cited as the European Communities (Road Transport) Regulations 2006.

2.         (1) In these Regulations—

“authorised officer” means—

(a)      a transport officer appointed by the Minister pursuant to section 15 of the Road Transport Act 1986 (No. 16 of 1986),

(b)      any officer of Customs and Excise, or

(c)      any member of the Garda Síochána;

“Council Regulation” means Council Regulation No. 3820/85/EEC¹ ;

“document or other information medium” has the meaning given in Regulation 7(1);

“Minister” means the Minister for Transport;

“officer of Customs and Excise” has the same meaning as in the Customs Act 1956 (No. 7 of 1956);

“recording equipment” means recording equipment that may indicate the periods of time referred to in the Council Regulation.

(2)      A word or expression that is used in these Regulations and is also used in the Council Regulation has, unless the contrary intention appears, the meaning in these Regulations that it has in the Council Regulation.

3.         (1) The European Agreement concerning the work of crews of vehicles engaged in International Road Transport (AETR)² done at Geneva on the 1 July 1970 (as amended) applies instead of the rules set out in the Council Regulation to the international road transport operations referred to in Article 2.2. of the Council Regulation and shall be complied with by every person concerned.

(2)  (a)     A person to whom paragraph (1) relates commits an offence where the person—

(i)      contravenes that paragraph, or

(ii)      causes or permits any person employed by him or her, or subject to his or her orders, to contravene that paragraph.

(b)     For the purposes of subparagraph (a)(ii), it shall be presumed until the contrary is proved that a person caused or permitted any person employed by him or her or subject to his or her orders to contravene paragraph (1).

(3) Prima facie evidence of the European Agreement concerning the work of crews of vehicles engaged in International Road Transport (AETR) may be given in all courts and in all legal proceedings by the production of a copy of the Official Journal of the European Communities purporting to contain a copy of the said Agreement.

4.         (1) A vehicle registered in the State (including a trailer or semi-trailer) and having for the purposes of the Road Traffic Acts 1961 to 2003, an unladen weight not exceeding 1,524 kilogrammes is, for the purposes of these Regulations and the Council Regulation, deemed to have a permissible maximum weight of 3.5 tonnes.

(2) A vehicle registered in the State (including a trailer or semi-trailer) and having for the purposes of the Road Traffic Acts, 1961 to 2003, an unladen weight not exceeding 3,048 kilogrammes is, for the purposes of these Regulations and the Council Regulation, deemed to have a permissible maximum weight of 7.5 tonnes.

5.        The following categories of vehicles are exempted from the provisions of the Council Regulation in respect of carriage by road effected solely within the State:

( a )      vehicles used for carrying passengers, which by virtue of their construction and equipment are suitable for carrying not more than 17 persons, including the driver, and are intended for that purpose;

(b)      vehicles used by public authorities on or after 1 January 1990 to provide public services which are not in competition with professional road hauliers;

( c )      vehicles used by agricultural, horticultural, forestry or fishery undertakings for carrying goods within a 50 kilometre radius of the place where the vehicle is normally based, including local administrative areas the centres of which are situated within that radius;

( d )      vehicles used for carrying animal waste or carcasses which are not intended for human consumption;

( e )      vehicles used for carrying live animals from farms to the local markets and vice versa or from markets to the local slaughter houses;

( f )      vehicles used:

(i)      as shops at local markets,

(ii)      for door to door selling,

(iii)      for mobile banking, exchange or saving transactions,

(iv)      for worship,

(v)      for the lending of books, records or cassettes,

(vi)      for cultural events or exhibitions,

and which are specially fitted for such uses;

( g )      vehicles for the carriage of goods (which have an unladen weight not exceeding 3,048 kilogrammes) used for carrying material or equipment for the use of the driver in the course of his or her work, within a 50 kilometre radius of the place where the vehicle is normally based: but only if driving the vehicle does not constitute the main activity of the driver;

( h )      vehicles operating exclusively on islands not exceeding 2,300 square kilometres in area, which are not linked to the rest of the national territory by a bridge, ford or tunnel open for use by motor vehicles;

( i )      vehicles used for the carriage of goods (which have an unladen weight not exceeding 1,524 kilogrammes) and are propelled by means of gas produced on the vehicles or by means of electricity;

( j )      vehicles used for driving instruction with a view to obtaining a driving licence: provided a vehicle so used or any trailer or semi-trailer drawn is not carrying out a journey in connection with the carriage of goods or passengers;

( k )      tractors used on or after the 1 January 1990 exclusively for agricultural and forestry work.

6.         Pursuant to the fifth indent of Article 6.1 of the Council Regulation, the fourth indent of that Article is extended to national passenger services other than regular services.

7.         (1)    In this Regulation “document or other information medium” means any document, record, book, printout, digital data, driver card (including driver activity data stored on a driver card), or other device or medium used for recording or storing data.

(2) For the purposes of these Regulations and the Council Regulation, where an authorised officer has reasonable grounds for believing that a premises or other place is used or has been used for a purpose connected with or related to carriage by road or that a vehicle that is used for such purpose is at the premises or other place, then the authorised officer may, at any time —

( a )      enter the premises or other place or the vehicle, and

( b )      inspect—

(i)      either or both the vehicle (including goods, if any) and that premises or other place, as the case may be,

(ii)      any document or other information medium that is kept or used in or on that vehicle or at that premises or other place, as the case may be

(3) Where an authorised officer has reasonable grounds for believing that a vehicle is used or has been used for a purpose connected with or related to carriage by road, then the authorised officer may, at any time—

(a)      inspect the vehicle that is stationary, or

(b)      if the authorised officer is a member of the Garda Síochána in uniform or an officer of Customs and Excise in uniform, halt the vehicle that is being driven and inspect it,

and the inspection may include inspecting any goods on the vehicle and any document or other information medium that is being carried in or on the vehicle or kept by the crew or used for the purposes of carriage by road or which relates to carriage by road.

(4) For the purpose of exercising his or her powers under paragraph (2) or (3) —

(a)      an authorised officer, whether or not a member of the Garda Síochána in uniform or an officer of Customs and Excise in uniform, may require that a vehicle that is stationary be moved to a specified location within its immediate vicinity,

(b)      an authorised officer may detain a vehicle during such time as is required for the exercise of those powers.

(5)  For the purposes of paragraph (2) or (3), an authorised officer may, in respect of any document or other information medium, kept or used for the purposes of carriage by road, or which relates to carriage by road —

(a)      require any person at the premises or other place concerned or at the vehicle concerned, as the case may be, to produce that document or other information medium to the authorised officer, where that person has custody of it, access to it or control over it, or

(b)      inspect it, examine it, and take copies of or extracts from it or take it away, if necessary, for the purposes of inspection, examination or copying,

(c)      where it is kept or used in a non-legible form and any person who keeps or uses it, or who would in the ordinary course keep or use it, could produce it in a legible form, require that person to facilitate its production in a legible form,

(d)      require the person who has or produces it to certify a copy of it as an accurate copy of the information contained in it,

(e)      take possession or retain possession of it where it may be of relevance in respect of any proceedings.

(6) A person commits an offence if the person—

(a)      obstructs or interferes with an authorised officer when exercising a power conferred by these Regulations, or

(b)      fails to halt a vehicle when requested or required by an officer of Customs and Excise in uniform or a member of the Garda Síochána in uniform to do so or who fails to comply with a request or requirement of an authorised officer under these Regulations.

8.          (1) An authorised officer may require, by notice in writing served by giving it to a person or sending it to a person by pre-paid registered post, the production by or on behalf of the person of—

(a)      any document or other information medium, whether by reference to that document or medium or by reference to the type of information required or by reference to both, or

(b)      any other information which may be specified in the notice,

at a place specified in the notice within such time (not being less than 10 days) from the service of the notice as may be specified in the notice.

(2) An authorised officer may, by notice in writing served—

(a)      by giving it to a person, or

(b)      sending it to a person by pre-paid registered post,

require the person to designate a place within a time specified in the notice (not being less than 10 days), at which—

(i)      any document or other information medium, whether by reference to that document or medium or by reference to the type of information required or by reference to both, or

(ii)      any other information which may be specified in the notice,

shall be made available for inspection and any information relevant to the notice shall not be used or dealt with in such a way as would result in the permanent loss of that information.

(3) A person commits an offence if the person fails or refuses to comply with a request of an authorised officer, made under to this Regulation.

9.      (1)  A person commits an offence if—

(a)      the person contravenes, or

(b)      the person causes or permits any person employed by him or her or subject to his or her orders to contravene,

any provision of the Council Regulation set out in the following Table:

TABLE

(2)      Where a person is charged with an offence to which paragraph (1)(b) relates, then proof to the satisfaction of the court that another person (being a person who at the relevant time was employed or subject to the orders of the person so charged) contravened the provision concerned shall, without more, be evidence until the contrary is proved that the person so charged caused or permitted the other person to contravene the provision concerned.

10.       A person convicted of an offence under these Regulations is liable on summary conviction to a fine not exceeding €5,000 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or to both.

11.    Where an offence under these Regulations is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to be attributable to any neglect on the part of any director, manager, secretary or other officer of the body corporate or any other person who was purporting to act in any such capacity, that officer or person as well as the body corporate is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

12.       An offence under these Regulations may be prosecuted by the Minister or by a member of the Garda Síochána.

13.       (1) In a prosecution for an offence under these Regulations in which the weight of a vehicle is at issue, it shall be presumed until the contrary is proved that the weight of the vehicle at the time of the alleged offence exceeded the maximum weight permitted by the Council Regulation.

(2) In any prosecution for an offence under these Regulations in which the age of the driver of a vehicle or of the driver's mate or the conductor of a vehicle is at issue, it shall be presumed until the contrary is proved that the driver, driver's mate or conductor, as the case may be, is of an age less than the minimum age required by the Council Regulation.

(3) In any prosecution for an offence under these Regulations in which the qualifications of a driver of a vehicle are at issue it shall be presumed until the contrary is proved that the driver does not possess the relevant qualifications prescribed by the Council Regulation.

(4) In a prosecution for an offence under these Regulations it shall be presumed until the contrary is proved that—

( a )      none of the exceptions to the application of the Council Regulation contained in Article 4 of the Council Regulation are applicable to the case, and

( b )      none of the exceptions contained in Article 13 of the Council Regulations or Regulation 5 of these Regulations are applicable to the case.

14.       (1) In any prosecution for an offence under these Regulations where direct oral evidence of a fact would be admissible, any statement contained in a document or other information medium obtained by an authorised officer in exercise of the powers conferred on him or her by these Regulations and tending to establish that fact shall, on production of the document or other information medium by the authorised officer, be admissible as evidence of that fact.

(2)   Every document or other information medium purporting to be—

(a)      a copy of, or an extract from, a document or other information medium, and

(b)      certified by an authorised officer as a true copy of, or extract from, the document or other information medium concerned,

shall, without proof of the signature of the person purporting so to certify or that he or she is an authorised officer, be received in evidence in any legal proceedings and shall, unless the contrary is shown, be deemed to be a true copy of, or an extract from, the document or other information medium concerned.

(3) In any prosecution for an offence under these Regulations any recordings made by recording equipment installed and used in accordance with Council Regulation No. 3821/85 EEC of 20 December 1985 on recording equipment in road transport³ , as amended by Council Regulation (EC) No. 2135 of 24 September 1998⁴ and Commission Regulation (EC) No. 1360/2002 of 13 June 2002⁵ , is admissible as evidence of the facts the recording equipment purports to record.

(4) In any prosecution for an offence under these Regulations a fact disclosed by any document or other information medium is admissible as evidence of any other fact disclosed by such document or other information medium.

(5) Every document or other information medium purporting to be—

(a)      a copy of, or an extract from, a document or other information medium, and

(b)      certified, by a person who is duly authorised to keep or have control over it, as a true copy of or extract from such document or other information medium,

shall, without proof of the signature of the person purporting so to certify or that he or she is duly authorised to so keep or have control over it, be received in evidence in any legal proceedings and shall, unless the contrary is shown, be deemed to be a true copy of, or an extract from, the document or other information medium concerned.

15.          Article 5.2 of the Council Regulation does not apply in relation to a person who is aged not less than 21 years and has carried on the occupation referred to in paragraph 4 of the said Article for at least one year prior to 26 January 1979.

16.          Article 15 of the Road Traffic (Public Service Vehicles) Regulations 1963 ( S.I. No. 191 of 1963 ) does not apply to carriage by road to which the Council Regulation applies.

17.           Section 114 of the Road Traffic Act 1961 (No. 24 of 1961) does not apply to carriage by road to which the Council Regulation applies.

18.              The European Communities (Road Transport) Regulations 1986 ( S.I. No. 392 of 1986 ) are revoked.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

I.    The purpose of these Regulations is to provide for the implementation and enforcement of Council Regulation No. 3820/85/EEC on the harmonisation of certain social legislation relating to road transport and in particular to

(a)  provide for the powers of authorised officers for the enforcement of the Council Regulation;

(b)  prescribe penalties for infringements of the Regulations, and

(c)  specify those operations which shall be exempt from the Council Regulation when engaged in national transport operations.

II.    The Council Regulation:

applies to the carriage of goods and passengers by road within the European Union;

applies the provisions of the “European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR)” to certain international road transport operations (Article 2);

prescribes the maximum periods of daily and fortnightly driving, minimum breaks and daily and weekly rest periods for drivers (Articles 6-9);

lays down minimum ages for drivers, drivers'mates and conductors (Article 5);

prohibits certain types of payments to wage earning drivers (Article 10);

prescribes the use of duty rosters and service time-tables on certain regular passenger services (Article 14);

obliges transport undertakings to ensure compliance with the requirements of the Regulation and of Council Regulation (EEC) No. 3821/85 (Recording Equipment) (Article 15).

III.  The Council Regulation does not apply to vehicles when engaged in certain specified operations (Article 4). The Regulation also provides that Member States may exempt vehicles when engaged in certain national operations (Article 13 of Council Regulation and Regulation 5 of these Regulations refer).

¹ OJ No. L 370 of 31 December 1985, page 1.

¹ OJ No. L 370 of 31 December 1985, page 1.

² OJ No. L. 95 of 8 April 1978, page 1.

³ OJ No. L 370 of 31 December 1985, page 8.

⁴ OJ No. L 274 of 9 October 1998, page 1.

⁵ OJ No. L 207 of 5 August 2002, page. 1.