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Cabotage case actually disciplinary
Haarlem— 5 July 2007
Davidson & Wilson BV from Hillegom, Netherlands have requested in vain for the return of three vehicles and three trailers impounded by VOSA since the end of last year. The Deputy Traffic Commissioner (DTC) in Edinburgh gave his decision on the 24th May 2007. According to this decision the vehicles were in breach of European cabotage rules for road transport. Analysing the judgment there is much on the behaviour in past and present of the owners of the company. There is virtually nothing on European law and a chance to clarify ‘temporarily' is missed. In general one can ask whether traffic commissioners are not prejudiced.
Traffic Commissioners are judges. Judges are supposed to be objective. They give both parties in a hearing every time to go into lengthy arguments and they do not show - at least in the case of Davidson & Wilson - that they have any prejudice over the case being put forward to them. In fact judges should be neutral and indifferent against legal issues, transport policy and the well being of the national transport industry. Apart from being judges TC's grant licences. In that licensing field one should have an idea and a view on transport policy. That is what happens when they openly pronounce what they think of certain trends in road transport. For example, that flagging-out is for cowboys, that driving with limousines most of time is illegal, that the technical state of foreign lorries is worse than the national fleet. 
Traffic Commissioners have openly advertised their disgust in the past about flagging-out in their Annual Report. A European Court verdict like Andreas Hoves was received with shock. This verdict declared ‘centre of operations' being the place where the vehicles were registered, instead of the place where the operator lives. It did not prevent a TC to write in the 2006 Annual report that in his view it should be the place where a person normally resides. This same TC speaks twice of ‘blatantly ' in connection with ‘cabotage'. He gives an example of a large domestic operator who had a loss of revenue in excess of £500,000 per annum because of cabotage. This company has probably convinced this TC. But how can this TC have an idea about this loss if their perception of illegal operation is only fed by national law and national interests? What chance on a fair trial has a foreign company with This TC? What chance has an operator who performs legal cabotage when the people that judge think it wise to protect the interest of the transport industry? Is this not outright discrimination by nationality, performed by people that are supposed to judge starting from a neutral point of view?
In the Davidson & Wilson case the DTC accepted the arguments from VOSA almost in entirety. The DTC however had to accept that the company was established in Holland. He adds a personal note where he says that for him it was crystal clear that Davidson & Wilson was in fact established in Scotland. By saying that he ignores that the doctrine in the Andreas Hoves case points to the place where the vehicles are registered. This and many other arguments brought forward by the defence seem to have been mainly ignored. For instance there is said nothing on the temporary character of cabotage. Both parties agreed that there is no certainty about what is meant with "temporary". Hope for people who believed that there was some interesting jurisprudence on that, has faded away. Both parties have submitted many arguments, but the DTC only argues that it is not ‘temporary' based on one national verdict. The DTC has not addressed the criteria, like frequency, periodicity, regularly, etc. to base on that the illegal cabotage. That VOSA sees this decision as a breakthrough is surprising. Maybe for their powers there is a breakthrough, but not on clarity on the subject of cabotage.
The verdict is not well balanced either. A detailed account of what happened in 29 pages and only 3 pages of consideration on legal issues. The justification for not returning the trailers is practically non-existent. The decision looks like a late revenge for companies that fled the UK to flag out for all kind of reasons, for tax reasons, high insurance premiums and the legal climate for transport operators. Why vehicle inspection every 6 weeks and thus loosing a vehicle for a day if the European law allows a period of a year?
So after all it was not surprising that Davidson and Wilson was punished by the headmaster as the naughty schoolboy who escaped classes. The said illegal cabotage is misused to force the operator to re-establish himself in the UK. VOSA was reproached by the defence that it has not followed the procedures described in the Cabotage Regulation about consulting the member state of establishment before taking drastic sanctions. Even a letter from the DFT from 2002 prescribed this procedure. The DTC has not even mentioned these European rules in his consideration.
From a Dutch point of view the whole procedure for recovery vehicles is very time-consuming and inefficient. Of course the legal system is different, but any Dutch judge would centre the case on the request for giving back the vehicles. That was to be done by focusing on the aspect whether the cabotage was legal or not? In the Dutch legal system that would take a court session of 1.5 hours at the maximum. In Edinburgh it took 3 full days. All allegations on the good or bad reputation of the person(s) that are requesting the vehicles back, would be wiped from the table by Dutch judges. So it was with astonishment to see that VOSA could bring in 15 years in history about alleged misconduct of owners of the BV. Even more astonishing is that an independent judge takes al these aspects into account, as if the meaning of ‘temporary' is different when one has a unblemished history or not. No wonder that cases like this are taking time and lead to lengthy decisions if judges allow parties (VOSA) wander around the transport atmosphere if there is a slight chance that it will affect the case. Incredible is also that aspects where vehicles are bought, where employees are paid, where maintenance is done has a bearing on the legal question. In fact taking into account these matters deny European freedom on workers and providing services to name a few. It may even constitute direct discrimination, it certainly is indirect discrimination. It looks like the DTC denies that there are so many EU rules that have demolished the walls on these commercial aspects. Where the DTC is totally passive and is not interfering with all that has been said by the parties, this role changes in writing his decision, when he even allows himself to think that the BV is not established in the Netherlands. Whether the impounding is a violation of UK national law as the vehicles from D&W had a community licence which they never lost, I leave to UK lawyers. What I understood is that the legal provision to impound was designated for a British vehicle with no licence at all. Another thing that seems strange to me is that ‘the reason to believe' of the illegal cabotage can be proved with evidence gathered at a later stage. Furthermore the defence argued that the focus should be set on the vehicle - not the company - when establishing reason to belief of illegal cabotage. One of the arguments raised by the defence is not even mentioned by the DTC in his decision. The Cabotage Regulation had in its original text a logbook to write down the cabotage-trips. The TC however argued not from the EC law - the Regulation - but from a document from the Commission; the Commissions Interpretative Communication from 2004. The defence stated that this is a document from the Commission with no legal standing. There is more to react on. Davidson & Wilson have chosen not to appeal. They would probably find a confirmation of the decision at the Transport Tribunal.
