The Act of July 29, 2005, amending the Road Transport Act and certain other acts, fundamentally changed the distribution of liability for certain violations of applicable regulations between the entrepreneur for whom the transport is performed and the vehicle driver.
Article 92a of the Road Transport Act, introduced by the amendment, establishes the principle that in the event of a violation of the legal acts enumerated therein, the driver of a motor vehicle performing road transport is subject to a fine. Previously, the entity responsible for the proper execution of transport was the entrepreneur, and they were the addressee of the administrative decision imposing a financial penalty. Adjudication in these cases is to take place in the manner specified in the Code of Procedure in Misdemeanor Cases, and thus also in the ticket procedure –
Art. 95 et seq. This principle applies exclusively to the following violations:
1) the obligation to have the required documents in the vehicle, as referred to in Art. 87 (of the Road Transport Act),
2) rules concerning the maximum daily driving time, daily rest period, or exceeding the maximum driving time without a break, as specified in Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ EC L 370 of 31.12.1985) and in the European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR), drawn up in Geneva on 1 July 1970 (Journal of Laws of 1999, No. 94, items 1086 and 1087),
3) rules concerning the use of analogue recording equipment for speed, driving time, and rest time, and mandatory breaks and rest periods, as specified in Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ EC L 370 of 31.12.1985).
The basis for such a solution was the legislator’s intention to isolate those violations over which the entrepreneur has no influence, while the driver should know and apply the above regulations by virtue of their profession. At the same time, the possibility of initiating proceedings (and thus also concluding them by issuing a decision imposing a financial penalty) against the entrepreneur was maintained, presumably to eliminate cases where the norms of the regulations referred to in Art. 92a of the Road Transport Act are exceeded with the knowledge, consent, or even at the instruction of the entrepreneur. Unfortunately, the Act does not specify the premises upon which the liability of the driver or the carrier for whom they perform transport depends. Everything indicates that the resolution of this issue has been left to the officer of the inspection authority. However, this does not mean that they have complete discretion in indicating the person or entity to bear the consequences of violating the regulations. It is necessary to point out, above all, the need for an accurate and unambiguous determination of the circumstances and causes of the violation of the regulations. It seems that establishing the exclusive and unambiguous guilt (intentional or unintentional) of the driver at the time of inspection should exclude the possibility of initiating administrative proceedings against the entrepreneur. The lack of such a determination during the inspection theoretically leaves two possibilities regarding the further course of proceedings. The first is to determine the guilty person in the manner provided for by the Code of Procedure in Misdemeanor Cases; the second –
initiating administrative proceedings against the entrepreneur. In the authors’ opinion, the question of the possibility of conducting proceedings under the Code of Procedure in Misdemeanor Cases while simultaneously conducting administrative proceedings against the entrepreneur should be answered in the affirmative. However, the conclusion of one of the proceedings by punishing the driver or imposing a financial penalty on the entrepreneur in administrative proceedings should result in the discontinuation of the other proceedings. In the case of parallel proceedings in both modes, it will be reasonable for the administrative authority to apply the provisions of Art. 97 § 1 point 4 of the Code of Administrative Procedure, which allows for the suspension of proceedings when the resolution of the case and the issuance of a decision depend on the prior resolution of a preliminary issue by another authority or court (and thus also by the court competent in misdemeanor cases).
The article comes from the magazine “Logistyka” No. 2/2006.