Customs Control Policy and Applied Sanctions in Road Freight Transport   Dr Judit SOMLÓ, lawyer, Legal Advisor of MKFE, Hungary Good afternoon Ladies and Gentlemen, My second subject today is: Customs Control Policy and Applied Sanctions in Road Freight Transport. Click   7th Symposium of Lawyers, Members of the IRU Legal Assistance Network St. Petersburg, 30 April 2008

Customs Functions and Structure significant control power beyond classical customs control emphasis moved to road side checks penalty imposed in almost 13’000 cases in 2007 three layers, the functions and competences of which are determined by law In Hungary, the Customs and Finance Guard carries out classical customs control as well as other important functions.   With Hungary’s accession to the EU, the emphasis has moved from traditional customs control to road side checks of road transport activities and from borders to controls by mobile units along the roads within the country. The Law on road transport has mandated Customs to control road goods and passenger transport and it carries out these activities very forcefully indeed. In 2007, an administrative penalty was imposed in almost 13’000 cases on passenger and goods transport operators. In the same period, Customs controlled more than 42.000 drivers in respect of the proper implementation of the AETR provisions. The structure of Customs consists of three layers, the functions and competences of which are determined by law. Click

Main Types of Customs Controls regarding Road Transport Control Aspects: licensed transport own-account transport Regulation 561/2006/EC and AETR Regulation 3821/85/EC dangerous goods perishable foodstuff and live animals rented vehicles technical state of vehicles combined transport International and Domestic Traffic Customs have the right to control compliance with rules on:   Transport operations subject to licensing, advance notifications and special documents Own-account transport subject to the availability of certain documents Regulation 561/2006/EC and those of AETR regarding driving and rest time Regulation 3821/85/EC on the tachograph dangerous goods transport transport of perishable foodstuff and live animals transport in rented vehicles technical state of vehicles international combined transport Click 1 ... Click 2 These conditions are checked by Customs mainly in international traffic but the observance of rules in respect of driving and rest time, the use of tachographs and the transport of dangerous cargo is also checked for domestic traffic. Click 3

Main Types of Customs Controls regarding Road Transport Documents controlled 1: operator licence Community licence road transport permit Vehicle registration certificate Vehicle technical certificate on periodical control TIR vehicle Certificate and TIR Carnet CMR consignment note Tachograph verifying label and documents Control conducted by Hungarian Customs covers the following documents:   operator licence in case of hire and reward activities Certified copy of the Community licence road transport permit based on bilateral road transport agreements or an ECMT licence Vehicle registration certificate Vehicle technical certificate Certificate of approval of the vehicle and a valid TIR Carnet in case of TIR transport CMR consignment note in case of an international transport, consignment note in case of a domestic transport, certificate and waybill in case of an own-account transport Tachograph verifying label and related documents Click

Real Control List is even longer Main Types of Customs Controls regarding Road Transport Documents controlled 2: ECMT vehicle certificates Authorisation of exceeding weight limits/ dimensions veterinary and phyto-sanitary certificates Driver documents Customs documents, commercial invoice, loading list Driver certificate, vehicle rental document ADR vehicle approval certificate, other ADR documents (61 items!) Real Control List is even longer And this list is to be completed with the following documents subject to controls: ECMT vehcile certificate Authorisation to exceed weight or dimensions limits Documentation of live animal transport, veterinary and phyto-sanitary certificates Driver documents such as: driving licence, qualification certificate, attestation if an EU-registered vehicle is driven by a non-EU citizen, certificate as per Regulation 2205/1/EC to transport live animals; tachograph discs or a digital driver card, activity certificate if during a given period the driver has not worked or for any other reason, ID card, passport and visa, health and accident insurance police, etc. Customs documents, commercial invoice, loading list Driver employment certificate and vehicle rental document ADR documentation in case of dangerous goods transport (according to a checklist of 61 items)  Click 1 ... Click 2 This list does not cover all possible cases and types of road goods transport but it reflects the manifold tasks and obligations of transport operators and drivers as well as control authorities. Click 3

The Fines HUF 50’000-800’000 (Euro 200–3’100) according to a list of penalties no possibility for the control officer to consider attenuating circumstances retain the vehicle until the payment of the fine opposition against decisions In case of irregularities, Customs may impose a fine between Euro 200–3’100.   The Regulation defines precise amounts of fines for each offence and there is no possibility for the control officer to consider any attenuating circumstances. There is only one preference given to the operators: in case of the lack of a document, 50% of the fine may be cancelled if a document valid on the control day is presented within 8 days following the control date. Customs and other control authorities have the right to retain the vehicle until the payment of the fine and in certain cases they may impose the eradication of the irregularity with immediate effect. There is a possibility of filing an opposition against decisions within 15 days from the date of the decisions’ delivery. It will be decided upon by a superior Customs organisation. The opposition should be filed with the organisation of the first instance paying in parallel an appeal fee of minimum Euro 20 and maximum Euro 2’000. One can turn against a decision of the second customs instance via a court procedure within 30 days of the date of delivery of this decision. Click

Need for Improvements no provision on who should be fined no unique legal practice no provision about sharing the fine need to differentiate penalty levels authority cannot define a “lump-sum” fine need to fix a maximum total limit date of decision hand-over need of considering circumstances Practical experience shows that the relevant Hungarian Regulation about administrative fines should be refined in several points:   There is no provision on who should be fined: holder of the vehicle, the driver, the consignor There is no unique legal practice; a number of Customs entities target the operator, other ones the driver, because the rules do not say which actor perpetrating the offence should face the penalty There is no provision about sharing the fine and therefore responsibility sharing is also out of question There would be a need to differentiate penalty levels in function of whether the driver or the company is subject to the fine Due to the lack of pertinent provisions, the authority cannot define a “lump sum-type” fine in case of several accumulated offences It would be necessary to fix also a maximum total limit of accumulated fines due since today even harmless administrative irregularities may lead to the bankruptcy of a transport operator It is not clear if handing over a decision to the driver is to be considered as a delivery to the transport company while it may be decisive regarding appeal deadlines The control authority should have the right to consider whether the operator is a one-off or a regular offender Click

Outlook government should consider modifications discrimination is intolerable exchange on best control practices and international harmonisation of offence and fine categorisation needed In view of the fact that this Regulation about administrative fines is relatively recent, we hope that the government will consider, on the basis of practical experiences, the possibility of introducing the necessary modifications soon.   According to Customs statistics however there is a high frequency of rule violation by operators of countries having just recently acceded to the EU. There is no discrimination against operators of any country. Problems are caused by the difficulties of an adaptation process to a new legal environment. An international exchange of experience by control authorities on best control practices as well as a certain degree of international harmonisation of offence and fine categorisation would certainly contribute to a positive development in Hungary and other countries. Click

Thank you for your attention. Dr Judit SOMLÓ