European Commission considering what, if any, action to take against government for failing to implement legislation changes concerning use of Section 19 permits for competitively-tendered work
The European Commission (EC) will soon deliver a reasoned opinion on what action it may take against the Department for Transport (DfT) over the DfT’s disregard of European law by permitting operation of minibuses without an O-Licence under Section 19 (S19) regulations.
The case – which began some years ago – stems from a complaint by several operators that are subject to O-Licences.
It says that bodies using S19 permits – which are subject to different standards of compliance and driver licencing – have undermined their businesses and that EU Directive 1071/2009, which states that an O-Licence is required by those organisations, is being breached.
The EC opened infringement proceedings in 2015. While the DfT will be able to reply to the reasoned opinion, it may ultimately be taken to court for failure to comply with the Directive, although the EC is not guaranteed to win any such case.
DfT guidance prohibits operations using S19 permits from making a profit.
However, the EU Directive states that the only bodies exempt from O-Licencing are those “engaged in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of a road passenger transport operator.”
The Directive does not mention profit. A legal opinion obtained by the operators says that in this context, commercial does not necessarily mean profit-making; that is contradicted by an opinion obtained by the Community Transport Association. It advises members to continue as normal.
In 2016, Traffic Commissioner Kevin Rooney stated that money may not change hands for work done under S19. The operators allege widespread abuse of the permit system, claiming that many local authorities (LAs) have awarded tenders that are operated under S19. They are seeking a Judicial Review into the S19 process.
They say that profit is thus made and that drivers are paid, something that is also prohibited under the Directive’s non-commercial derogation. DfT guidance was recently revised to reflect that. If the EC finds against the DfT, it may be taken to court. EU Directives overrule UK laws and member states do not normally have any option to ignore them.
Should enforcement action follow, it appears that many bodies currently using S19 permits would need an O-Licence. Drivers would also require full Category D1 driving licences, be subject to driving time regulations and need to possess a DCPC card.
It is understood that an exception may be made for minibuses in rural areas where no money changes hands. Some LAs have already agreed that the Directive must be adhered to and that tenderers for bus contracts must hold an O-Licence.
