For entrepreneurs in road transport, a lawyer is an added value. This is mainly due to the extensive regulations for transporters. An abundance of (international) regulations imposes many obligations. The risk of violations and liability has therefore increased. The lawyer for road transport is therefore a fixed value for the transport entrepreneur.
Licensing procedure NIWO
The licensing authority for road transport is Niwo. On the basis of the Road Transport Act, Niwo grants the Euro licenses to transport companies that transport goods by road. The NIWO tests every 5 years whether a transport company meets the legal requirements: creditworthiness, professional competence, reliability and real establishment. If a road haulage company no longer meets the requirements, a licence may be withdrawn. Niwo also issues driver attestations for non-EU drivers, CEMT licences, journey authorisations and issues the NIWO TIR carnets. An objection may be lodged within 6 weeks against each decision by Niwo with which the transport company disagrees, such as a refusal of a permit, suspension, declaration of unsuitability or withdrawal. After that, an appeal may also be lodged with the court. The highest court that rules on decisions of Niwo is the Board of Appeal for the Business Community. You can read more about the procedures regarding Niwo decisions here.
Requirements regarding reliability and Bibob assessment
If the haulier or the transport manager has exceeded the limit value of the number of penalty points allocated, an investigation into their reliability will follow. A NIWO decision on the loss of good repute of a road transport company may not be disproportionate. Loss of good repute of the transport manager is a disproportionately harsh sanction if the transport manager can demonstrate that:
- on the authority of the haulier or a third party, pressure was exerted to give instructions or to refrain from giving instructions, which led to the commission of the offences; or
- as a result of the previously irrevocable breaches structural measures were taken to promote compliance with the regulations; or
- a carrier can be held solely responsible for committing or having committed one or more violations as a result of his or her own individual actions, which are contrary to standing company policy.
NIWO must check the ILT recommendation and determine whether the ILT investigation has been carried out carefully. In principle, NIWO will take a decision in accordance with the conclusion of the ILT advisory report, unless there are special circumstances to deviate from this or if, for example, there are new facts and circumstances that should lead to a different opinion. The NIWO licence for road transport is also subject to a Bibob assessment, both at the time of the application and after the licence has been granted. A licence for road transport that has already been granted may be withdrawn following a new Bibob assessment. You can read examples of this here.
Road transport violations and the Erru register
As of 1 April 2021, every infringement committed by a haulier in Europe will be recorded in the Erru register with penalty points. If the limit value of the number of penalty points in the Erru register has been reached, Niwo may determine that the transport company has lost its reliability and withdraw its licence for road transport. There are 3 categories of offences that, depending on the seriousness of the offence, lead to 1 to 9 penalty points. The limit for the number of penalty points for a transport company depends on the scope of the transport company’s activities. A transport operator must check whether the limit value for his company has been set correctly. If the limit value in the Erru register is breached, the ILT inspectorate will advise Niwo, the licensing authority, on a penalty. Violation of the limit value may lead to the loss of reliability of the transport company or the transport manager. In the event of a loss of reliability, the NIWO may suspend or revoke the Community licence (Art. 11 paragraph 1 Policy Rule). NIWO can suspend the Community Road Transport Licence for a maximum of six months. An objection can be made against the decision to withdraw the licence and a preliminary injunction can also be requested from the administrative court. You can read more about the European Erru register here.
Enforcement by ILT
The ILT is the supervisory body for compliance with regulations on road transport, among other things. The ILT’s Administrative Penalties Bureau can impose a fine if a violation occurs in the road transport sector. The ILT Inspectorate will first investigate whether regulations are being complied with. The ILT Inspectorate will collect information if there is a suspicion of a violation. Information can also be requested in writing. An inspection can also take place in the transport company and vehicles can be checked en route. After ILT has collected the necessary information, a fine report will usually be drawn up. This fine report must be sent to the violator, who can also ask for it. The fine report must always be critically examined for errors and incorrect assumptions. The administrative fine is not imposed immediately; first, an intention to impose a fine will be sent and the person involved can submit a view on this. It is advisable to always do so, and a lawyer can draft the opinion. If, despite the view, the fine is imposed, a lawyer can assist in the objection and appeal procedure. A notice of objection against the decision of ILT to impose a fine does not have a suspensive effect unless this is apparent from the decision to impose the fine. If ILT refuses to suspend the penalty decision during the proceedings, a request for a preliminary injunction can be submitted to the preliminary injunction court. If an objection is rejected by ILT and the transport company disagrees, an appeal can be lodged with the court. An appeal against the court’s decision on the fine can be lodged with the Council of State. Read more about enforcement by ILT here.
Transport agreement and liability
Transport companies are bound by all kinds of obligations in the context of the transport agreement. Road transport involves many risks. That is why it is important to take as many precautions as possible. The transport conditions or general terms and conditions of the transport company should always be declared applicable. The general conditions and/or transport conditions should include a limitation of liability (exoneration). In addition, the transport company must be insured for damages. In principle, therefore, damage cases are settled between insurers. If that fails, a lawyer is the one who can assist the transporter if he is held liable. Also in case of problems with the insurer. Especially if a contracting party tries to profit from a claim, it is sensible to ask for advice from a lawyer in time. A lawyer can assist in keeping your transport contracts up to date, with general conditions, a liability claim, chain liability, insurance issues, etc. We like to think along with entrepreneurs. After all, prevention is better than cure.
Blenheim advises transport companies in their daily work. The administrative law and road transport team is on standby for you.
Mark van Weeren