RE -v- Bezirkshauptmannschaft Lilienfeld (C-155/22)
A degree of latitude is given to Member States when determining the exact conditions for the loss of repute of transport undertakings or transport managers under Article 6 of Regulation 1071/2009. Specifically in relation to the repute of undertakings, regard must be had to the conduct of its transport manager and ‘any other person’. The ‘any other person’ category can be, if they so wish, specified and identified by Member States.
In Austria, a law governing the revocation of operator licences stated that “authorisation to engage in any occupation may be withdrawn from a legal person exercising an industrial occupation only if the grounds for withdrawal relate to a natural person who has a significant influence on the conduct of the business….”
Another Austrian law stated that persons authorised to represent a company in relation to third parties may designate agents to be responsible for compliance.
The upshot of both these rules is that if an undertaking hires an ‘other person’, let’s say a transport planner, and authorises that planner to manage drivers’ hours compliance, and that planner permits a breach of hours, then those convictions cannot be considered when deciding to revoke an Austrian operator’s licence, on this particular interpretation.
The CJEU, deciding a reference from the Austrian Supreme Court, held that such a domestic provision is not compatible with Regulation 1071/2009 on the basis that Article 6 states that the conduct of the operator, transport manager and other relevant persons will be considered when assessing repute.
In short, an operator cannot contract out its compliance obligations. Nor can it hide behind that contract to release itself from responsibility for compliance failings.
Transport Law NI 