An Austrian court has reached out to the European Court of Justice to decide whether a designated person within an Austrian road transport company can be held criminally responsible for violations of EU regulations on driving times and rest periods, while their conduct is not taken into account when assessing the company’s good reputation, thus raising concerns of compatibility with EU law.
The story behind the decision evolved as follows: in accordance with Austrian national law, an Austrian road transport company appointed a “responsible agent” who was responsible for ensuring compliance with driving times and rest periods within the company. It’s important to note that this person was neither a transport manager nor authorized to represent the company to third parties, nor did they have any substantial influence over the company’s management.
The designated agent contested multiple fines imposed by the administration in Austria for violations related to daily driving times and the use of tachographs.
According to that court, designation as the responsible agent entails the transfer to that person of criminal responsibility for the infringements at issue, explains a press release by the ECJ adding that under Austrian law, the conduct of the designated person cannot be taken into account in order to assess whether the undertaking in question meets the requirement of good repute laid down in EU law.
The Austrian court had doubts as to whether, in those circumstances, such a designation is compatible with EU law.
As an answer to this question, the ECJ stated that a designated person such as the one in issue in the main proceedings, must be regarded as a ‘relevant person’ as determined by the Member State, with the result that that person’s conduct must be taken into account for the purpose of assessing the good repute of the undertaking in question.
Also, the ECJ finds that a national law such as that at issue prevents – in breach of EU law – the calling into question of the good repute of road transport undertakings and the imposition of penalties against them, whilst the persons who must be regarded, in relation to those undertakings, as being “relevant person[s]”, have committed serious infringements of the rules of EU law.
“The result is that the convictions for serious criminal offences against those persons and the penalties imposed will never give rise to a procedure for reviewing the good repute of the undertaking concerned and will not be taken into consideration during the checks that the competent authorities are required to carry out in order to ascertain whether the undertakings authorised to engage in the occupation of road transport operator continue to meet the requirements imposed by EU law,” the court explains.
Thus, the commission of infringements, irrespective of their number and their seriousness, can never lead to the loss of that good repute nor, consequently, the withdrawal or suspension of the authorisation to engage in the occupation of the road transport operator.
The Court has determined that assigning a person within a company to be responsible for ensuring compliance with EU regulations on driving times and rest periods of drivers and transferring criminal responsibility for any violations to that person, goes against EU law. This is especially the case when the national law does not consider the violations attributed to that designated person when assessing whether the company maintains a good reputation.