LEGAL: New O-Licence Regulations in force 4 Dec 2011

EC Regulation 1071/2009 comes into force on the 4th December 2011 thereby changing the rules on operator licensing for goods vehicles. The main areas of change are as follows:-

Nominated Transport Manager

The need for the holder of a Standard Licence to have a Transport Manager is unchanged. All Transport Managers must still be of good repute and be professionally competent; however, they will now have to fit within one of two categories:-

  • An 'internal' Transport Manager, or
  • An 'external' Transport Manager.

Under the new Regulation, the ‘internal’ Transport Manager must meet three requirements:-

  1. Effectively and continuously manage the transport activities of the Operator.
  2. Have a genuine link to the Operator (such as being an employee, director, owner or shareholder).
  3. Be resident in a European Union country.

Under the new Regulation, it will be possible for the same person to act as an ‘internal’ Transport Manager for more than one Operator, and therefore be named on more than one Operator’s Licence; however, in each case, the Traffic Commissioner would need to be satisfied that the person had a genuine link to the Operator and satisfied the requirement of effective and continuous management.

Under the new Regulation, the ‘external’ Transport Manager must have effective and continuous management responsibility for the transport activities of the operator and:-

  • Be of good repute and be resident in a European Union country.
  • Have a contract with the operator that specifies the tasks they perform as Transport Manager.
  • Only work for a maximum of 4 operators with a combined maximum total fleet of 50 vehicles. (This means that across all four operators, they cannot have responsibility for more than 50 vehicles. The Department of Transport states that it may allow Traffic Commissioners to set lower limits in individual cases.)
  • Each Transport Manager must be responsible only to the Operator and not anyone else.
  • For ‘external’ Transport Managers, the new Regulation requires a copy of the Transport Manager’s contract to be provided with the licence application. Also, the Transport Manager will need to sign a formal declaration of core responsibilities

Traffic Commissioners will need to write to all ‘hire or reward’ operators to confirm the name(s) and details of their transport managers and whether they are employed on an ‘internal’ or ‘external’ basis.

Disciplinary action against Transport Managers

At present, Traffic Commissioners do not have the power to disqualify a Transport manager as such; however, the new Regulation allows Traffic Commissioners to take direct regulatory action against a Transport Manager, by declaring them ‘unfit’ at, for example, a Public Inquiry. That declaration could remain in place until the Traffic Commissioner deemed the professional competence or good repute requirements had been restored.

If declared ‘unfit’, a Transport Manager would also be disqualified from holding that role for an operator in any other Member State. A Transport Manager would, in effect, be subject to an EU-wide ban until their repute is restored.

Financial Standing

The main rules concerning financial standing will remain the same. However, changes will be introduced concerning how to prove this ‘financial standing’ requirement.

The financial standing for Restricted Licence holders is not covered by the Regulations and will remain a matter for the Traffic Commissioners.
Under the new Regulation, financial standing for new standard licence applicants will have to be satisfied by either:-

  • A certified annual accounts or
  • A certified opening bank balance or
  • A financial guarantee (e.g. an overdraft facility or an invoice finance agreement).

Existing operators will continue to have five yearly checks, as before, but any checks after the 4th December 2011 will adopt the new rules.

Certificates of Professional Competence

From the 4th December 2011, the national CPC will be abolished.  The new Regulation will require all new CPC examinations to test knowledge in both national and international operations.

Current National CPC holders wishing to carry out International work in the future will be able to convert to the International CPC qualification by an additional qualification. They will not be required to re-sit subjects they have already qualified in.

Under the new Regulation, holders of Standard National operator's licences will have to have a Transport Manager with either:-

  • An International CPC, or
  • A National CPC obtained before 4 December 2011, or
  • An exemption through the continuous management of a transport undertaking for the period of ten years before 4 December 2009, or
  • An existing recognised third party qualification

The Department of Transport proposes not to allow any new claims of grandfather rights after 4 December 2013 as, after this date; the DoT considers the required knowledge will not be up to date. So, in practice, after that date a Transport Manager would not be able to enter the industry and claim the ’10 year exemption’: they would need to pass a CPC exam.

Existing Operator's Licences will remain valid and Standard National licences will continue to be issued.

Conclusion

The above provides a summary of the main affects of the new Regulation but is not exhaustive. It is always worth taking formal legal advice on issues you have.

If you wish to have further information, please contact Jared Dunbar at Dyne Solicitors Limited.