Explanatory Memorandum to COM(2018)895 - Common rules ensuring basic road freight connectivity with regard to the withdrawal of the United Kingdom from the Union - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)895 - Common rules ensuring basic road freight connectivity with regard to the withdrawal of the United Kingdom from the Union. |
|---|---|
| source | COM(2018)895  |
| date | 19-12-2018 |
1. CONTEXTOFTHE PROPOSAL
• Reasons for and objectives of the proposal
The United Kingdom submitted on 29 March 2017 the notification of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on European Union. This means that, if the Withdrawal Agreement1 is not ratified, the Unions’ primary and secondary law will cease to apply to the United Kingdom from 30 March 2019 (‘the withdrawal date’). The United Kingdom will then become a third country.
Within the Union, the freedom for the Member States' road haulage operators (Union road haulage operators) to provide international carriage of goods by road is regulated primarily on the basis of Regulation (EC) No 1072/20092, which lay down the common rules for the access to the occupation of road transport operator and for access to the international road haulage market, respectively.
In the absence of a withdrawal agreement, road freight transport services between the United Kingdom and the Member States would cease to be governed by the said Regulations upon withdrawal. This would result in the loss of validity of Community licences issued by the United Kingdom to road haulage operators until the withdrawal date, and thereby loss of access to the Union’s road haulage market for holders of such licences. Similarly, European Union road haulage operators, on the basis of the existing Community licences, would equally lose automatic access to the United Kingdom’s road freight transport market.
It follows that, in the absence of a withdrawal agreement, as from 30 March 2019 there would be no basis in Union law for the provision of road freight transport services between the United Kingdom and the Member States by road haulage operators. The multilateral quota system of the European Conference of Ministers of Transport (ECMT) would become the only legal framework on which the continuation of such services could be based, subject to the possession of an ECMT permit. A vehicle equipped with an ECMT permit may carry goods between any of the 43 countries participating in the system, among which are 26 of the EU-27 Member States (all but Cyprus), the United Kingdom, and 16 other countries. Following an international haulage operation from the country of registration of the vehicle to another ECMT country, up to three operations where the country of registration is not involved are possible before the vehicle has to return to the country where it is registered.
The number of ECMT permits is limited for each Member State and they are distributed at national level by the competent authorities of each Member State. Permits for 2019 have already been distributed and their number cannot be increased at short notice. ECMT quotas are set annually and any changes to the number of permits allocated to an ECMT country have to be agreed unanimously by all ECMT countries.
By example, in 2019 there will be annual permits for 23,252 vehicles registered in the EU-27. In addition, there will be 984 annual permits for the United Kingdom and 23,472 annual permits for vehicles from other countries participating in the system. Considering the volumes of road freight transport services and the goods carried by road between the United Kingdom and the Member States (around 50 million tonnes in 2017; some 30 million tonnes from the
1 https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf.
2 Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009
common rules for access to the international road haulage market,
OJ L 300, 14.11.2009, p.72.
on
EU-27 to the United Kingdom and some 20 million tonnes from the United Kingdom to the EU-27), it is evident that reliance solely on the ECMT quota system does not currently constitute an adequate solution to ensure basic road freight transport connectivity immediately after the withdrawal date in the absence of a withdrawal agreement. The Union and the Member States should work to ensure that an adequate number of permits be available within the ECMT system, so as to ensure basic connectivity.
The carriage of goods by road between the United Kingdom and the Member States is almost entirely in the hands of United Kingdom and Union road haulage operators. The loss by those operators of their right to provide road freight transport between the United Kingdom and the Member States would therefore result in serious disruptions including in respect of public order.
It is therefore appropriate for the Union to adopt temporary and time limited contingency measures to mitigate such potentially disruptive effects for connectivity.
In its Communication ‘Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: a Contingency Action Plan’ of 13 November 20183 the Commission announced its intention to propose a number of contingency measures to address the possibility that the United Kingdom might withdraw from the Union without a withdrawal agreement. As regards road transport in this communication the Commission pointed out that ECMT permits could allow only for considerably less traffic between the Union and the United Kingdom compared to existing levels.
The European Council (Article 50) reiterated its call, on 13 December 2018, for work on preparedness at all levels for the consequences of the United Kingdom's withdrawal to be intensified, taking into account all possible outcomes. This act is part of a package of measures which the Commission is adopting in response to this call.
The present proposal thus has the objective to lay down temporary measures to govern the carriage of goods by road between the Union and the United Kingdom following the latter's withdrawal from the Union (Article 1). These measures are intended to maintain basic connectivity for a strictly time-limited period (Article 9).
In the first place (Article 3), the proposed Regulation provides for the unilateral granting of rights for bilateral carriage to United Kingdom road haulage operators so that these can continue to carry goods between the respective territories.
The rights granted to United Kingdom road haulage operators are subject to conformity with the relevant Union law applicable to road freight transport (Article 4) and equivalent rights being granted by the United Kingdom to Union road haulage operators. The proposed Regulation lays down a mechanism (Article 5) to ensure that the rights enjoyed by Union road haulage operators in the United Kingdom are equivalent to those granted to UK road haulage operators under the proposed Regulation. If that is not the case, the Commission is empowered to adopt the necessary measures to correct the situation by means of delegated acts, including the limitation to the allowable capacity available to UK road haulage operators or to the number of journeys or to both. The assessment of the level of equivalence and the adoption of corrective measures by the Commission are not solely linked to strict, formal correspondence between the two legal orders; this is because of the marked differences
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between the respective markets and in order to avoid a blind mirroring approach - which might in the end prove counter to the Union interest.
The proposed Regulation, even though it aims to temporarily ensure basic connectivity for road freight transport, lays down a flexible mechanism to ensure that Union road haulage operators enjoy fair and equal opportunities to compete with United Kingdom road haulage operators once the United Kingdom will no longer be bound by Union law. A level playing field requires that, even after the withdrawal, the United Kingdom continues to apply sufficiently high and comparable standards in the area of road freight transport as regards: fair competition including the regulation of cartels, abuse of dominant position and mergers; the prohibition of unjustified government subsidies; the protection of workers and a high level of road safety; the protection of the environment; safety and security, or relating to the granting of licences to road haulage operators or to the qualification, training and medical controls for professional drivers. Moreover, it must be ensured that Union carriers are not discriminated against in the United Kingdom, be it de iure or de facto. The proposed regulation thus charges the Commission (Article 6) with the task to monitor the conditions of competition between Union and United Kingdom road haulage operators and empowers it to adopt the necessary measures, by means of delegated acts, to ensure that those conditions remain level at all times.
The necessary procedures are established so as to enable the Member States and the Commission to verify that road haulage operators carrying goods into the Union under this Regulation are licensed or certified by the United Kingdom in accordance with relevant standards, that all relevant national and Union legislation is complied with and that the allowed rights are not exceeded.
Explicit provision is made to recall that Member States must not negotiate nor enter into any bilateral road freight transport agreements with the United Kingdom on matters falling under the scope of this Regulation and that they must not otherwise grant UK road haulage operators, in connection with road freight transport, any rights other than those granted in this Regulation (Article 3). Nevertheless, the respective competent authorities will be able to cooperate as necessary for the good implementation of the Regulation (Article 7), so that the least possible disturbance is brought to the management of the road freight transport services that will continue to be provided under its aegis after the United Kingdom's withdrawal.
• Consistency with existing policy provisions in the policy area
This proposed Regulation is intended as a lex specialis that would address some of the consequences ensuing from the fact that Union rules regulating road freight transport, in particular Regulation (EC) No 1072/2009, will no longer apply to the carriage of goods by road between the United Kingdom and the remaining Member States as from the withdrawal of the United Kingdom and in the absence of a withdrawal agreement. The proposed terms are limited to what is necessary in this respect, so as to avoid disproportionate disruptions, including in respect of public order. They are intended to apply only for a limited period of time. This proposal is therefore fully consistent with the existing legislation and notably with Regulation (EC) No 1072/2009.
• Consistency with other Union policies
This proposal complements Union rules regulating the carriage of goods by road, in particular Regulation (EC) No 1072/2009. The specific purpose and context of this Regulation, as well as its unilateral nature, necessarily require a restrictive approach in the grant of rights, as well as specific provisions intended to preserve equality of rights and a level playing field.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
• Legal basis
The legal basis is Article 91(1) of the Treaty on the Functioning of the European Union (TFEU). This Article provides the basis for the adoption of EU legislation laying down notably: (i) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States (Article 91(1)(a) TFEU); and (ii) the conditions under which non-resident carriers may operate transport services within a Member State (Article 91(1)(b) TFEU).
• Subsidiarity
Art. 1(2) of Regulation (EC) No 1072/2009 reserves competence to the Union for relevant agreements with third countries. In the absence of such an agreement this proposed act would establish basic connectivity subject to equivalent rights being granted by the United Kingdom. Such connectivity would be ensured in an equal manner for traffic to and from all points in the Union, which avoids distortions in the internal market. Action is therefore indispensable at Union level and the result could not be achieved through action at Member State level.
• Proportionality
The proposed Regulation is considered proportionate as it is capable of avoiding disproportionate disruptions in a manner that also ensures equal conditions of competition for Union road haulage operators It does not go beyond what it necessary to achieve this objective. This is the case, in particular, for the conditions under which the relevant rights are conferred, which inter alia pertain to the need that equivalent rights be conferred by the United Kingdom and to fair competition, and for the limitation of the regime in time.
Choice
of the instrument
Since the act governs matters closely related to Regulation (EC) No 1072/2009 and is intended, like these Regulations, to ensure fully harmonised conditions of competition, it should take the form of a Regulation. This form also best responds to the urgency of the situation/context, since the time available before the withdrawal (without a withdrawal agreement being concluded) is too short to allow for a transposition of provisions contained in a Directive.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
ANDIMPACTASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
This is not applicable due to the exceptional, temporary and one-off nature of the event necessitating this proposal which does not relate to the objectives of existing legislation.
• Stakeholder consultations
The challenges arising from the United Kingdom's withdrawal from the EU and possible solutions have been raised by various stakeholders and Member States representatives.
A common theme in the presented views was the need for a regulatory intervention in order to maintain a certain degree of connectivity as regards the carriage of goods by road. When it comes to access to the Union road haulage market, stakeholders are not able to take their own
contingency measures in order to mitigate the harmful impact of the possible absence of a withdrawal agreement.
On 29 November 2018, the Commission organised an EU-27 workshop on preparedness in the Council’s Article 50 Working Party, during which Member States' representatives have in particular stressed the need to adopt EU level contingency measures in order to ensure basic connectivity between the EU-27 and the UK in case of an absence of a withdrawal agreement. In particular it was highlighted that the ECMT multilateral quota system does not represent a sufficient and adequate fall-back option considering its quantitative and qualitative limitations.
comments have been given due consideration on the preparation of the proposal.
• Collection and use of expertise
Several forms of assessment of the consequences of the United Kingdom's withdrawal for the road haulage sector were shared with the Commission by relevant stakeholders. These assessments conclude that the only fall-back available in the road haulage sector, namely the multilateral quota system of the European Conference of Ministers of Transport (ECMT), would be inadequate to cover the needs of the sector. The shortage of permits available for 2019 (see above) would likely cause significant disruptions and the bilateral flow of goods by road (around 50 million tonnes annually) may no longer be fully covered. More than 80% of road haulage operations between the UK and the EU-27 are currently being carried out by hauliers established in the EU-27. It is in the interest of the EU-27 to provide for a framework that does not unduly restrict bilateral road haulage operations.
• Impact assessment
An impact assessment is not needed, due to the exceptional nature of the situation and limited needs of the period during which the change of status of the United Kingdom is implemented. No materially and legally different policy options are available other than the one proposed.
• Fundamental rights
This proposal has no consequence for the protection of fundamental rights.
4. BUDGETARYIMPLICATIONS
Not applicable.
5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Not applicable.