TCs get new guidelines on repute and cabotage
Revised guidelines have been issued for traffic commissioners (TCs) examining cases of transport managers’ repute and authorisation, and cabotage by international hauliers visiting the United Kingdom, in the light of decisions being appealed to the Upper Tribunal last year.
A distinction is drawn between finding that a transport manager’s repute has been harmed because he or she has not lived up to the standards expected, and finding that his or her professional competence has been lost.
The guidelines say: “It is not open to a TC to find loss of professional competence unless there is a finding that the transport manager has never been professionally competent or that there has been a previous declaration that the transport manager was unfit by reason of a loss of good repute and has already had their certificate of professional competence suspended.”
However, TCs can make findings regarding professional competence in certain limited cases. The new advice gives examples, including cases when a transport manager does not in fact hold a valid Certificate of Professional Competence.
The guidelines warn operators to ensure that details of their current transport manager have been updated fully and correctly: a ‘self-service’ notification of a change of transport manager must, for example, be followed by a formal application.
“If there has been a false declaration this will need to be referred to the TC to consider whether or not to take regulatory action in respect of the named CPC holder and/or the operator,” the guidelines state.
When an operator has no transport manager in place, the TC can grant a ‘period of grace’ which allows the operator to continue without one in post under Regulation (EC) 1071/2009 (Annex 2).
The maximum period that a TC can allow is normally six months, but this can be extended by a further three months if the existing transport manager has died or cannot remain in post due to a physical incapacity.
But where there are grounds to suspect there is no transport manager in place then the operator should be notified and given a limited time, for instance 14 days, to make written representations before the TC decides whether to allow time for rectification and for what period.
The Upper Tribunal has indicated that there should be tangible evidence that a period of grace will be worthwhile, in other words there are reasonable prospects that a new transport manager will be in post before expiry of the specified period. The TC can then be invited to decide how long to allow within the maximum six and three-month periods permitted by the legislation.
Under Council Regulations (EEC) No. 881/92 and (EC) No. 1072/2009, hauliers from EU member states can enter other member states carrying international freight. Such operators can, in given circumstances, conduct up to three collections and deliveries within the UK under the cabotage provisions before leaving the UK within seven days of the date of entry.
The new guidance clarifies that those operations will only conform to the 2009 regulation if the haulier can produce clear evidence of the incoming international carriage and each of the consecutive cabotage operations. That evidence must be kept in the vehicle and made available for inspection at any roadside check.
If such evidence is not forthcoming, offending vehicles can be at risk of impounding.
A foreign operator appealing for the return of an impounded vehicle must show that, if they knew at the time the vehicle was detained that it was being, or had been, used in contravention of the legislation, they had taken steps with a view to preventing that use and any further such use.
The document goes on to provide detailed guidance on the kinds of documentary evidence that would ordinarily be expected to prove this.
All the TCs’ statutory guidance can be accessed here.
