A truck driver is fined for reporting rest time when he was actually driving around. The fine amounts to almost €11,000. The driver disagrees and argues that the authorities should take more account of the small size of his company. On 20 June 2023, the court ruled on the case. The main issue at stake was whether the size of a company should be taken into account when determining the amount of a fine. After reading this blog, you will know how the court answered this question.
On 14 October 2018, during a traffic control, it was determined that the driver of a truck had driven on three occasions without a driver card in the tachograph. He manually accounted for this time as rest time on the tachograph, but the vehicle records showed that driving had indeed taken place at those times. This constituted, in the eyes of the Environmental and Transport Inspectorate (on behalf of the Minister of Infrastructure and the Environment), a violation of section 2.4:4 of the Working Hours Decree on Transport. The Inspectorate imposed a fine of €10,875 on the driver's company, which he runs with his wife.
The driver does not deny having committed the offences, but argues that the fine should be struck down for another reason: it would be disproportionately high. In contrast, the Inspectorate argues that in determining the amount, it looked at the policy rule on fines under the Working Hours Act and the Working Hours Decree on Transport (Road Transport) (hereinafter: policy rule). The policy rule states that the fine on this offence is €4,400. That amount multiplied by three offences comes to a fine of €13,200. But the policy rule also states that if the offences were noticed during one and the same inspection, the maximum amount of the fine is limited to €10,875. The inspectorate thus argues that by limiting the maximum fine amount to one observation, it has sufficiently considered the facts and circumstances of the driver (and his company).
The driver disagrees. He feels that the fine is disproportionate to the nature of the offence and the financial impact on his business and family life; his wife and he only have a small business which would make the impact of the fine much greater than for a large business. He further states that he thought removing the card was allowed because a police officer would have explained it to him. On this last point, the court rules that an entrepreneur can be expected to know the rules himself and apply them properly; the argument is dismissed.
Proportionality of the policy rule
The court first notes that the (maximum) amount of the fine is not set by law, but must be fine-tuned by or on behalf of the minister. In doing so, the minister must in any case consider the seriousness of the offence and the degree of culpability of the offender. The greater the seriousness and the greater the culpability, the higher the fine may be. To streamline the approach to offences, the minister may issue policy rules which his officials must follow. However, these must always comply with the principle of proportionality: the government may not take decisions that are disproportionate to the facts and circumstances of the case. If the fine decision, although in line with the policy, still violates proportionality in a particular case, the minister must deviate from his policy rule and take a decision that is indeed proportionate. The court may review the minister's decision for proportionality.
Next, the court rules that the policy rule as mentioned above is generally not disproportionate. For example, the policy rule allows for deviation if the facts and circumstances of a specific case call for it.
The court, like earlier the Inspectorate on behalf of the minister, found that in this case there was average culpability that could be attributed to the driver. On this point, therefore, the fine decision is proportionate.
In addition, the court came to the opinion that this was a serious offence: not only did the driver drive without inserting the driver card into the tachograph, but additionally he made an incorrect statement after reinserting the card. Indeed, contrary to what he stated, he was not resting but driving. The court notes that it is irrelevant whether the distance covered was long or short. The incorrect statement is the most serious offence here, as it makes it much more difficult or even impossible to see whether or not the driver abides by the rules.
The driver further pointed out that merely driving without a driver card in the tachograph carries a maximum fine of €1,100 per offence. But the court concluded that this does not mean that, since another offence was also committed, the fine of €4,400 per offence is disproportionate.
Finally, we come to the driver's point that he has only a small business. The court considers that the policy rule does not distinguish between large and small companies. In each case, the maximum fine is the same. In practice, the impact of a fine will generally be heavier on a small transport company than on a significantly larger company, because the latter can be expected to have much higher turnover and profits, making the impact of the fine a lot smaller. At other points in the policy for trucks, the minister did take this into account. Indeed, in company inspections, the number of fines to be imposed - and their amount - are in part determined by the answer to the question how many employees a company has. The court ruled that the fine for this driver was so large that it hit him harder than the fine in general is intended to hit a company; the total assets of the company are only slightly larger than the fine. Even a payment plan, which the Inspectorate had proposed, does not alter this. In short: the amount of the fine is disproportionate to the size of the company. The fine is disproportionately high and therefore unlawful. In view of the above, the court annuls the fine and limits it to the amount of €6,000.
What this case teaches us is that while fines may be in line with policy, this does not immediately make them lawful. The government must consider the specific facts and circumstances of the case and not arrive at an amount that is disproportionately high. In doing so, the government must consider, among other things, the seriousness of the offence, the culpability of the offender and the size of the company.