Since the beginning of 2022, it seems that less and less Polish carriers’ trucks and buses have been seen on the roads in France. Companies are getting fed up with irregular and illegal inspections in France.
Have you been controlled in France for taking rest in the cab? Have you received a default judgment? Have you paid the so-called “consignation”? Wondering if you have been fined accordingly with the French and European rules?
Move Expert, as a representative of foreign companies, including Polish carriers, notices frequent cases of inspections of drivers’ rest period that are carried out incorrectly. Many of them are illegal, where French control authority force and compels the driver to sign a control protocol or pay a fine, without explaining the situation in his language of origin and the legal basis of the accused infringement. This is the routine of controllers, as they themselves often point out during roadside inspections.
Mr. François Nicolas François Wojcikiewicz from the Quaerens law firm, has made a revolution in overturning decisions of control procedures for taking drivers’ rest in the cab in France for Polish carriers. He created his own jurisprudence, a legal precedent that the courts resisted for a very long time, even if the court of cassation, the criminal chamber still says something contradictory. Finally, after several years, the courts began to annul the control checks.
The bases for nullification, can be related to procedures that are incorrect already at the level of the audit process, as well as the procedure itself at the level of the prosecution, as well as substantive issues. In the case of illegal inspections, the most common problem is the lack of translation during the inspection at all. The Attorney explains:
“I have managed to cancel dozens of decisions in the first instance and on appeal regarding inspections, these respective instances are sovereign in the application of procedure; if the inspections are irregular and illegal at the level of the conduct of inspections, as well as the procedure itself at the level of the prosecution, it is up to these two instances to annul these decisions. I’m happy to say that in this area I have annulled many procedures, thus opening the way for others to assert their rights.”
Please find below the fragment of the interview with Mr. François Nicolas François Wojcikiewicz:
What if, during a roadside inspection, the driver did not understand the basis of the inspection, and the transport company disagrees with the justification and refuses to sign the protocol?
The control authority in France do not have the right to detain a driver, otherwise it would be necessary to take him into custody. This procedure is already illegal at the outset, as the inspection services detain the driver without placing them under arrest and without any legal explanation for the situation. They even exert pressure during the inspection to make the penalty payment as soon as possible.
The control protocol - does the driver have to sign it during a roadside inspection?
First of all, the driver should not sign a document that he does not understand. The inspected driver should note in his language in the protocol “I do not understand the content of the protocol, they force me to sign” when the inspection forces this action on the driver. Moreover, in such a case, there is no choice but to terminate the inspection and pay the deposit. Foreign companies often look only at the economic aspect, but after all, there is also the aspect of responsibility in the French criminal record in France and in Poland. During the next inspection, the inspection has access to all the data from previous inspections. A misdemeanor turns into a crime. More precisely, into a crime in terms of improper organization of drivers’ working time.
Under the provisions of the French Transport Code, this is punishable by 1 year in prison and a 30,000-euro fine, as a natural person or up to 150,000 as a legal entity, and, above all, a criminal record, which may have further legal consequences in the Polish Criminal Register.
What other consequences could there be for road transporters?
Implementing Regulation (EU) 2022/694 of May 2, 2022 amending Regulation (EU) 2016/403 with regard to new serious infringements of EU regulations indicates the grounds that may lead to the loss of good reputation of a transport carrier, and consequently to the loss of the Community license. An additional complication and burden for companies, may be the procedure for banning cabotage in France for a period of 1 year.
What is the main purpose of introducing the 3 K system (control + consignment+ penalty)?
There are 3 stages used by control authorities in France. They first block drivers on the road, control them, and then do not allow them to leave until the carrier pays a deposit. They force the drivers to pay the deposit, and in parallel to sign any document. All this to complete and prepare the case to the Court. A few months after, when the carrier receives a criminal judgment “ordonnance pénale“, the default conviction and the entry in the criminal record in France is confirmed, and then subsequently in Poland as well.
Appeal procedures - what elements are considered in cancelling such decisions?
A criminal judgment, the so-called “ordonnance pénale,” can be appealed within 30 days of the notification of the judgment when it concerns offenses, and within 45 days of the notification of the judgment in the case of a crime. In order to analyze the documentation of a case, transport companies can send their criminal judgments to verify what the actual status of the case is. I believe that it is possible to analyze and cancel control procedures even up to several years after the decision. Appeal and cancellation of control proceedings are an only way for those transport carriers who have been fined several times in France and for those who are not aware whether they have been fined in France/Poland. There are some carriers who did not know that they had been fined in France as a transport manager, they found out during a visit to pick up a criminal record statement.
What the company should check first?
Firstly, to check criminal judgments even up to several years after the decision. The base of the documents to review the case are the penal judgement and the proof of payment of fine as consignation. If the carrier has been through a large number of roadside inspections, then a company should legally protect themself in this situation, clear their presence in the French and Polish criminal records.
Who can be fined and for what?
– Driver: for regular weekly rest taken in a truck
– Company (as a legal entity) or single person company:
- for taking a daily/weekly rest in a vehicle under undignified conditions,
- for failing to provide its driver with proof of having taken the last rests outside the cabin of the vehicle,
- For organizing the working time of drivers and their rests in violation of EU social regulations
– Transport manager (personally): for organizing drivers’ working time and their rests in a way that violates EU social regulations.
Are you considering going to the CJEU in Luxembourg?
I am waiting for the decision of the Court of Cassation, then I will consider further steps. If necessary, I will consider initiating a procedure against France for violation of EU regulations.