New Operator's Licence Regulation: in force 4 December 2011
EC Regulation 1071/2009 came into force on the 4th December 2011 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 now have to fit within one of two categories:
(i) An 'internal' Transport Manager, or
(ii) An 'external' Transport Manager.
Under the new Regulation, the 'internal' Transport Manager must meet three requirements:
(i) Effectively and continuously manage the transport activities of the Operator.
(ii) Have a genuine link to the Operator (such as being an employee, director, owner or shareholder).
(iii) Be resident in a European Union country.
Under the new Regulation, it is 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:
(i) Be of good repute and be resident in a European Union country.
(ii) Have a contract with the operator that specifies the tasks they perform as Transport Manager.
(iii) 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 for Transport will permit Traffic Commissioners to set lower limits in individual cases.)
(iv) 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 needs to sign a formal declaration of core responsibilities.
Disciplinary action against Transport Managers
Previously Traffic Commissioners did 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'. Such 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.
The main rules concerning financial standing remain the same. However, changes have been introduced regarding how to prove this 'financial standing' requirement.
The financial standing for Restricted Licence holders is not covered by the Regulations and remain a matter for the Traffic Commissioners.
Under the new Regulation, financial standing for new standard licence applicants have to be satisfied by either:
(i) A set of certified annual accounts or
(ii) A certified opening bank balance or
(iii) A financial guarantee (e.g. an overdraft facility or an invoice finance agreement).
Existing operators continue to have five yearly checks, as before, but any checks after the 4th December 2011 will adopt the new rules.
The Acting Senior Traffic Commissioner has issued Guidance and Directions declaring, with effect from the 1st January 2012, operators of Standard Licences will need to meet slightly lower financial requirements of £7,700 for the first vehicle and £4,200 for each subsequent vehicle. Revaluation of these amounts will take place annually. The amounts required for Restricted Licences remain unchanged at £3,100 and £1,700 respectively.
Certificates of Professional Competence
From the 4th December 2011, the national CPC was abolished. The new Regulation requires all new CPC examinations to test knowledge inboth national and international operations.
Current National CPC holders wishing to carry out International work in the future are able to convert to the International CPC qualification by an additional qualification. They are not required to re-sit subjects they have already qualified in.
Under the new Regulation, holders of Standard National operator's licences have to have a Transport Manager with either:
(i) An International CPC, or
(ii) A National CPC obtained before 4 December 2011, or
(iii) An exemption through the continuous management of a transport undertaking for the period of ten years before 4 December 2009, or
(iv) 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 remain valid and Standard National licences will continue to be issued.
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.