European Commission has revised its guidelines on the obligatory return of the vehicle
Obligatory return of the vehicle each eight weeks to one of the operational centres in the Member State of establishment has entered into force on 21 February 2022. In order to secure harmonised understanding and enforcement of this obligation, the European Commission published a Q&A document. On that occasion Move Expert has prepared a detailed analysis of the rules published in the article “Organize return of the vehicle”.
The European Commission has argued that the obligatory return applies to “motor vehicles or combinations of vehicles used for the international carriage of goods for hire or reward that leave the Member State of establishment. As regards trailers or semi-trailers, this rule applies to them to the extent that they are at the disposal of the road haulage operators (…) and as such are registered or put into circulation and authorized to be used in conformity with the legislation of the Member State where the undertaking is established (…)”.
However, this interpretation has been heavily criticised by road transport operators and experts. It was argued that it goes against legal context and practice. One has to distinguish between motor vehicles, that need to be at the disposal of transport operators and trailers, that very often belong to clients or are rented from third parties. Operators have argued that a flexible use of trailers and semi-trailers is indispensable for smooth running of transport operations.
Return of the truck- revised rules
The European Commission has taken these arguments into account and made another round of internal legal consultations. As a result, revised guidelines have been published on 13 September on the European Commission website.
According to the most recent interpretation the trailers and semitrailers are no longer interpreted as being within the scope of the legal obligation to return to the operational base in the Member State of establishment.
In its reply to Question 1, the European Commission clearly specified, that in case of goods transport the obligation applies only to:
- “motor vehicles or combinations of vehicles used for the international carriage of goods for hire or reward that leave the Member State of establishment, and that are at the disposal of the road haulage operators (…) and as such are registered or put into circulation and authorised to be used in conformity with the legislation of the Member State where the undertaking is established”.
The reference to trailers and semi-trailers has been deleted by the European Commission, as compared to the previous version of the document.
In addition, the obligatory return of the vehicle does not apply in the case of road haulage operators, motor vehicles or combinations of vehicles, the permissible laden mass of which does not exceed 2,5 tonnes- unless otherwise provided in national law.
How the obligatory return can be controlled
There is still an ongoing dispute on who can check the obligatory return of truck and issue fines in case of non-compliance. While revising the Q&A document, the European Commission tried to bring more clarity on that issue as well.
In its reply to Question 7, the European Commission made clear, that “the competent authorities of the Member States where the transport undertaking is established are required to carry out the requisite checks to verify and monitor compliance with the requirement (…)”.
Host Members States, where transport operations are carried out, should also check compliance with obligatory return. However, in case of a roadside check, the undertaking should always have the possibility to demonstrate compliance with the obligation at a later stage through documents and evidences available at the premises of the undertaking. The complete assessment of the factual situation and of the evidence should be made by the controlling authorities of the Member State where the undertaking is established, under the control of the relevant judicial authorities. Both, Member State of establishment and host Member States, are obliged to cooperate via the IMI system.
“In practice, the undertakings can present, at the request of the authorities, any document showing the location of the vehicle at the place of establishment within the last 8 weeks and/or every 8 weeks. These documents may be for example tachograph records or duty rosters of the drivers, or consignment notes.”
In its recently revised version of Q&A on the return of the vehicle the European Commission made clear, that this obligation applies only to motor vehicles and/ or combinations of vehicles and not to trailers and semi-trailers.
The Commission has also clarified, that even if all Member States shall carry out checks to enforce compliance with the obligatory return of truck, only the Member State of establishment is in the position to make complete assessment of the factual situation and of the evidence. However, it still remains uncertain, authorities of which Member State may issue fines….