1. 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.
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7th Symposium of Lawyers, Members of the IRU Legal Assistance Network St. Petersburg, 30 April 2008

2. 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 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.
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3. 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
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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.
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4. 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
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5. 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)
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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.
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6. The Fines
HUF 50’ ’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.
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7. 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
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8. 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.
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9. Thank you for your attention.
Dr Judit SOMLÓ