FREEDOMS EXTENDED TO INTERNATIONAL ROAD TRANSPORT

Transcription

1 FREEDOMS EXTENDED TO INTERNATIONAL ROAD TRANSPORT Overvie view w of the main applicable le multilateral legal instruments related to international road transport

2 Overview of the main applicable multilateral legal instruments related to international road transport FREEDOMS EXTENDED TO INTERNATIONAL ROAD TRANSPORT

3 FREEDOMS EXTENDED TO INTERNATIONAL ROAD TRANSPORT (According to applicable multilateral legal instruments) TABLE OF CONTENTS 1. FREEDOM OF MOVEMENT 1.1 Basic Legal Instruments Vienna Convention on Road Traffic 1 / 1.2 Additional Legal Instruments 2 / European Agreement supplementing the 1968 Convention on Road Traffic, signed on 1 May 1971, including subsequent amendments 2. FREEDOM OF TRANSIT 2.1 Basic Legal Instruments New York Convention on Transit Trade of Land-Locked States GATT Additional Legal Instruments Revised Consolidated Resolution on the Facilitation of International Road Transport (R.E.4) Helsinki Declaration (3 rd Pan-European Transport Conference) 1 / Contrary to the Vienna Convention, the International Convention relative to Motor Traffic signed in Paris on and the Convention on Road Traffic signed in Geneva on foresee some technical standards and the recognition of registration certificates; however, they include no provisions on freedom of movement. 2 / Purely technical conventions such as those on transport infrastructure, road signs and signals or on road vehicle approval, construction and equipment, are not mentioned in this document. 2

4 3. FREEDOM TO PROVIDE TRANSPORT SERVICES 3.1 Basic Legal Instruments GATS 3.2 Additional Legal Instruments Revised Consolidated Resolution on the Facilitation of International Road Transport (R.E.4) Final Act of the Conference on Security and Co-operation in Europe (Helsinki, 1975) Helsinki Declaration (3 rd Pan-European Transport Conference) 3

5 3.3 Specific Instruments Passenger Transport Agreement on the International Carriage of Passengers by Road by means of Occasional Coach and Bus Services (ASOR) Agreement on the International Occasional Carriage of Passengers by Coach and Bus (INTERBUS) 3.4 Specific Instruments Goods Transport ECMT Consolidated Resolution No. 00/1 concerning the Rules to be Applied for International Freight Transport by Road ECMT Resolution No. 00/3 on Charges and Taxes in Transport, particularly in International Road Haulage 4

6 1. FREEDOM OF MOVEMENT 1.1 Basic Legal Instruments Vienna Convention on Road Traffic Freedom of movement is granted to road vehicles by the Convention on Road Traffic signed in Vienna in /. This freedom is set out as follows in the Convention s Article 3, 3: Contracting Parties shall be bound to admit to their territories in international traffic motor vehicles and trailers which fulfil the conditions laid down in Chapter III of this Convention ; they shall also be bound to recognize registration certificates issued in accordance with the provisions of Chapter III as prima facie evidence that the vehicles to which they refer fulfil the conditions laid down in the said Chapter III. Article 3, 7 of the Vienna Convention encourages Contracting Parties to favour such freedom as follows: Measures which the Contracting Parties have taken or may take either unilaterally or under bilateral or multilateral agreements to facilitate international road traffic by simplifying Customs, police, health and other similar formalities or to ensure that Customs offices and posts at a given frontier point have the same competence and are kept open during the same hours shall be deemed to be in conformity with the object of this Convention. It follows therefrom that any provision to the contrary would go against the very purpose of this Convention. Since no freedom is absolute, the Vienna Convention acknowledges - the right of every Contracting Party to depart from the obligation to admit in international traffic motor vehicles, trailers and combinations of vehicles (i) (ii) (iii) which do not fulfil the conditions laid down in Chapter III of the Convention (Art. 3, 3), whose overall mass or mass per axle or dimensions exceed the limits fixed by their domestic legislations for vehicles registered in their territories ( 1, Annex 1 to the Convention) which display a distinguishing sign other than that prescribed in Article 37 of this Convention ( 9, Annex 1 to the Convention); - the right of each Contracting Party to make the admission to its territory in international traffic of motor vehicles, trailers subject to its regulations concerning the commercial carriage of passengers and goods, to its regulations concerning insurance of drivers against third-party risks, to its 3 / Quotes refer to the text of the Vienna Convention of 8 November 1968 as amended in 1993 and

7 Customs regulations and, in general, to its regulations on matters other than road traffic (article 3, 8). The freedom of movement foreseen by the Vienna Convention on Road Traffic does not extend to the right of carriage, which is derived from legal instruments governing commercial road transport and trade, whose content will be reviewed hereafter. As for the environment, the Vienna convention includes moderate provisions which foresee, in its Article 59, that: The mechanical parts and equipment of a motor vehicle shall not, so far as this can possibly be avoided, give rise to any danger of fire or explosion; nor shall they cause excessive emission of noxious gases, opaque fumes, smells or noise. Given that requirements relating to the danger of fire or explosion must be met so far as this can possibly be avoided, no administrative sanction is foreseen by the Vienna Convention should such requirements not be met. 1.2 Additional Legal Instruments 4 / European Agreement supplementing the 1968Convention on Road Traffic, signed on 1 May 1971 and latest amended on 28 June 2006 As stated in its title, the above Agreement was drawn up to supplement the principles and rules of the 1968 Vienna Convention. 2. FREEDOM OF TRANSIT 5 / 2.1 Basic Legal Instruments New York Convention on Transit Trade of Land-Locked States Article 2 of the Convention foresees that: Freedom of transit shall be granted under the terms of this Convention for traffic in transit and means of transport 6 / 4 / This document mentions neither the provisions of the Treaty of Nice, nor the executive legal acts relating to freedoms granted to road transport in EU countries. Indeed, those freedoms are the result of specific EU objectives and hence cannot serve as an example for all countries. 5 / The wording in transit applies to any loaded or empty road motor vehicle, which enters and leaves the country at different points by whatever means of transport, provided the total journey within the country is by road and that there is no loading or unloading in the country (according to the Glossary for Transport Statistics, 2 nd edition, EUROSTAT, ECMT, UN/ECE, ECE/TRANS/NONE/98/8, February 1998, p.40). The wording transit in its commercial sense must also be distinguished from Customs transit, which is governed in particular by the 1975 TIR Convention and the EU Convention relating to the T document. 6 / Means of transport are defined in Article 1 of the Convention as follows: any railway stock, seagoing and river vessels and road vehicles. 6

8 The rules governing the use of means of transport, when they pass across part or the whole of the territory of another Contracting State, shall be established by common agreement among the Contracting States concerned, with due regard to the multilateral international conventions to which these States are parties. no discrimination shall be exercised which is based on the place of origin, departure, entry, exit or destination or on any circumstances relating to the ownership of the goods or the ownership, place of registration or flag of vessels, land vehicles or other means of transport used. Article 3 of the Convention further states that: Traffic in transit shall not be subjected by any authority within the transit State to customs duties or taxes chargeable by reason of importation or exportation nor to any special dues in respect of transit Under this Convention, States with a sea-coast are required to grant landlocked countries freedom of transit on their territory. Goods in transit shall be exempted from duties and taxes regardless of the means of transport, including for transhipment and warehousing operations and changes in transport modes. The New York Convention foresees that Nevertheless on such traffic in transit there may be levied charges intended solely to defray expenses of supervision and administration entailed by such transit. The rate of any such charges must correspond as nearly as possible with the expenses they are intended to cover and, subject to that condition, the charges must be imposed in conformity with the requirement of non-discrimination laid down in article 2, paragraph 1. Article 4 of the New York Convention stipulates that, regarding routes for the use of which tariffs or charges are levied, Contracting States shall undertake to apply to traffic in transit tariffs or charges which, having regard to the conditions of the traffic and to considerations of commercial competition, are reasonable as regards both their rates and the method of their application. Having stressed that These tariffs or charges shall be so fixed as to facilitate traffic in transit as much as possible and shall not be higher than the tariffs or charges applied by Contracting States for the transport through their territory of goods of countries with access to the sea, Article 4 extends this commitment to facilities operated or administered by firms or individuals, in cases in which the tariffs or charges are fixed or subject to control by the Contracting State. Finally, Article 4 stresses that its provisions must be applied under conditions of non-discrimination. Countries with access to the sea must therefore extend non-discriminatory treatment to the means of transport of land-locked countries, in particular as regards access to seaports. Freedom of transit as foreseen by the New York Convention applies to transit operations carried out by transport operators from the following countries of interest to the IRU: Belarus (land-locked country), Belgium, Croatia, Denmark, Finland, Hungary (land-locked country), Georgia, Mongolia (landlocked country), Norway, Uzbekistan (land-locked country), Netherlands, 7

9 Czech Republic (land-locked country), Russia, Slovakia (land-locked country), Sweden, Serbia (land-locked country), Montenegro, Turkey, Ukraine, and only on the territory of those countries mentioned. Certain countries without access to open sea, such as Luxemburg, Switzerland and Moldova in Europe, Azerbaijan or Armenia in the Caucasus, or Kazakhstan, Turkmenistan, Kyrgyzstan and Tajikistan in Central Asia, are not parties to the New York Convention, which seems incomprehensible inasmuch as several of these including the former Soviet republics have pointed out that their means of transport experience problems in crossing transit countries. It is unclear why these countries fail to start eliminating such problems by acceding to the New York Convention GATT 1994 Article V of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") foresees that: There shall be freedom of transit through the territory of each contracting party, via the routes most convenient for international transit, for traffic in transit to or from the territory of other contracting parties. No distinction shall be made which is based on the flag of vessels, the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport. such traffic coming from or going to the territory of other contracting parties shall not be subject to any unnecessary delays or restrictions and shall be exempt from customs duties and from all transit duties or other charges imposed in respect of transit, except charges for transportation or those commensurate with administrative expenses entailed by transit or with the cost of services rendered. All charges and regulations imposed by contracting parties on traffic in transit to or from the territories of other contracting parties shall be reasonable, having regard to the conditions of the traffic. With respect to all charges, regulations and formalities in connection with transit, each contracting party shall accord to traffic in transit to or from the territory of any other contracting party treatment no less favourable than the treatment accorded to traffic in transit to or from any third country. Consequently, GATT Article V: - clearly introduces freedom of transit for road vehicles via the routes most convenient for international transit through the territory of each contracting party; - rejects any discrimination of transit based on the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods or road vehicles; 8

10 - foresees the exemption of transit traffic from customs duties, transit duties and any other charges imposed on transit; - authorises transit States to collect charges commensurate with administrative expenses entailed by transit or with the cost of services rendered; - foresees, as regards formalities, that transit shall not be subject to any unnecessary delays or restrictions; - introduces, as regards transit duties, regulations and formalities, a mostfavoured nation clause for transit from or to the territory of any other Contracting Party. According to the GATT s own terms, any regulation of freedom of transit must be reasonable, having regard to the conditions of the traffic. It follows therefrom that: - any total or part ban on transit, - any quantitative restriction to transit in the form of authorisation quotas or restrictions on vehicle weights and dimensions below generally admitted standards, - any excessive charges levied on road transit in order to discourage carriers from performing a transit operation or to divert it to other countries or other transport modes, are either incompatible with the notion of freedom of transit as stipulated by the GATT, or are not reasonable according to the GATT. 9

11 2.2 Additional Legal Instruments Revised Consolidated Resolution on the Facilitation of International Road Transport (R.E.4) adopted by UNECE Having noted that the 1994 Marrakech Protocol (1994 GATT and 1994 GATS) establishing the World Trade Organization should be taken into account, the Consolidated Resolution stipulates the following in its : Without prejudice to other provisions of these principles, freedom of transit should be granted on major international traffic routes (E-roads in Europe, similar roads on other continents). Traffic should not be banned or subjected to such measures as transit duties, taxes (other than user charges and tolls for the use of transport infrastructures) or quotas. This provision reiterates and clarifies the provisions of GATT Article V. The routes most convenient for international transit mentioned in the latter are referred to by the Consolidated Resolution as E-roads in Europe and similar roads on other continents. In addition, according to , "States should ensure favourable conditions for transit on the sections of major international traffic routes on their territory and, in particular, eliminate any bottlenecks on these roads and at the State borders they cross and facilitate transit traffic flows with other special measures". However, the provisions of the Consolidated Resolution only apply inasmuch as they have been accepted by the States for which the Resolution is intended Helsinki Declaration (3 rd Pan-European Transport Conference) The Declaration, in its IV.2, recognises the principle of freedom to provide services which, according to IV.10, should lead to facilitation of transit by modern, compatible equipment and flexible procedures in border crossing. In addition, according to III.1 of this Declaration, regulatory and other measures should treat operators from all countries in a similar manner. However, since this is a statement, it puts forward intentions rather than compulsory standards. 10

12 3. FREEDOM TO PROVIDE TRANSPORT SERVICES 3.1 Basic Legal Instruments GATS The 1994 GATS foresees the freedom to provide transport services, in particular: - from the territory of one Contracting State to the territory of any other Contracting State (this provision encompasses all international goods transport operations by road), - by a carrier of one Contracting State, through commercial presence in the territory of any other Contracting State (this provision also encompasses road cabotage). To this end, each Contracting State must immediately and unconditionally accord to transport services and service suppliers most-favoured-nation treatment, i.e. treatment no less favourable than that it accords to like services and service suppliers of any other country. However, any freedoms extended in the framework of Customs or economic unions cannot be extended to service providers from third countries. 3.2 Additional Legal Instruments Revised Consolidated Resolution on the Facilitation of International Road Transport (R.E.4) adopted by UNECE The freedom to provide road transport services is foreseen in as follows: A State grants facilities on its territory to foreign carriers, if its own carriers benefit from equivalent facilities when they travel on the territory of countries where these carriers are established. Even Governments having in their country a system of authorizations for bilateral road transport should if possible issue, on request of the competent authorities, an authorization to the carriers of any country as long as the principle of reciprocity is respected. 11

13 Furthermore, States should apply the principle of non-discrimination by refraining from making distinctions based on the nationality or the place of business of the carrier and the origin or destination of the vehicles, particularly in respect of tax provisions, inspections and sanctions Final Act of the Conference on Security and Co-operation in Europe (Helsinki, 1975) The Final Act foresees that international transport services, including by road, should develop on the basis of reciprocal advantage. So as to favour such transport, the Final Act includes an undertaking on the part of Contracting States to simplify and to harmonise administrative formalities in the field of international transport, in particular at frontiers and to promote the harmonization of administrative and technical provisions concerning safety in road transport Helsinki Declaration (3 rd Pan-European Transport Conference) The Declaration, in its IV.2, recognises the principle of freedom to provide services which should lead to: Gradual liberalisation of transport markets in order to open access for transport operators to markets in all countries, completed by integration of procedures and the strict avoidance of unfair and discriminatory practices. Thus, according to III.1, regulatory and other measures should treat operators from all countries in a similar manner. However, the positive nature of this document is weakened by its merely declaratory character. 12

14 3.3 Specific Instruments Passenger Transport Agreement on the International Carriage of Passengers by Road by means of Occasional Coach and Bus Services (ASOR) Signed in Dublin on , this Agreement only applies to transport operations performed between the EU, Switzerland and Turkey. Any freedoms foreseen in this agreement are the same as those set out in the INTERBUS Agreement. Consequently, they are detailed below in the review of the latter agreement Agreement on the International Occasional Carriage of Passengers by Coach and Bus (INTERBUS) The INTERBUS Agreement, which entered into force on 1 January 2003, liberalises all four types of occasional services, i.e. closed-door tours (category A of the passenger waybill), services which make the outward journey laden and the return journey unladen (category B), services during which the outward journey is made unladen and the return journey laden (category C) and transit operations relating to the performance of the abovementioned tours and transport services. This liberalisation is granted to transport operators established on the territory of Contracting Parties. However, the notion of the transport operator s place of establishment covers two different meanings depending on whether the transport operator is a national of an EU member state or of a Contracting Party third state. For an EU national, the place of establishment amounts to the whole of EU territory, regardless of the member state in which the vehicle was registered. For a transport operator from a third country, the place of establishment is strictly the state in which his vehicle was registered. It follows therefrom that a national from an EU member state may freely perform a liberalised occasional service from any EU member state for category A and B services, or return to any EU member state for category C services. In contrast, a carrier from a third country may only freely perform liberalised occasional services from the country where his vehicle was registered (for category A and B services) or return journeys to his registration country for category C services. As mentioned above ( 3.1.1), each country having acceded to GATS must immediately and unconditionally accord to transport services and service suppliers of other GATS contracting countries most-favoured-nation treatment, i.e. treatment no less favourable than that it accords to like services and service suppliers of any other country. However, any freedoms extended in the framework of customs or economic unions cannot be extended to service providers from third countries. Now the freedoms arising from the INTERBUS Agreement are extended to a group of states which do not form a customs or economic union. It follows therefrom that any contracting party to GATS, whether or not a party to the INTERBUS Agreement, may claim on the sole 13

15 basis of GATS an extension to its carriers of the freedoms extended by the INTERBUS Agreement provided that the latter s requirements are met by it and its transport operators. 3.4 Specific Instruments Goods Transport ECMT Consolidated Resolution No. 00/1 concerning the Rules to be Applied for International Freight Transport by Road The freedom to provide services foreseen by this Resolution only extends to transport operations under cover of ECMT multilateral licences subject to a strict quota. Outside the ECMT licence quota, Member countries may apply a bilateral regime of permits, with or without quotas. This provision of the Consolidated Resolution is not in line with those of GATT, GATS, the New York Convention or the UNECE Consolidated Resolution. Consequently, its scope should be considered as relative. Given the primacy of legal instruments which such as GATT, GATS and the New York Convention require parliamentary ratification of ministerial legal instruments, the ECMT Resolution s restrictions to freedom to provide services are only really applicable to transport operations on the territory of ECMT member states which have not acceded to GATT, GATS or the New York Convention. Similarly, the provisions of the ECMT Consolidated Resolution allowing member states to withhold certain provisions contained in this Resolution from operators licensed in a Member country, which does not apply the principle of reciprocity are not in line with GATS. Indeed, GATS prohibits member states i.e. most ECMT member states from unilaterally withholding any facilities foreseen by GATS. Indeed, ECMT itself recalls in its Resolution N 00/3 of 2000, reviewed below, that the principle of reciprocity on which bilateral road haulage arrangements are based may introduce discrimination between hauliers from different Member countries since the obligation to pay (or exemption from) charges is based on nationality and consequently encourages its members to gradually shift the structure of taxation in transport to increase the share of more territorially based taxes and charges ECMT Resolution No. 00/3 on Charges and Taxes in Transport, particularly in International Road Haulage States sovereign right to introduce and apply taxes and fiscal charges on international road haulage services acknowledged by the ECMT Resolution cannot be considered as an absolute right. It is only applicable inasmuch as other legal instruments do not go against it. Now for transit, this right is largely mitigated by GATT Article V and New York Convention Article 4 (c.f. 2.1 above). Further, this right must be applied in moderation so as not to 14

16 contradict the freedom to provide services foreseen by GATS. Aware of this, in its Recommendations of 28 April 2005, ECMT invites members to gradually phase out duties and taxes on international road transport, including of a discriminatory nature such as those based on nationality or introduced as retaliatory measures. In addition, in its Recommendations ECMT observes that partial fuel tax refunds to hauliers leads to discrimination against foreign carriers. ECMT is also aware of the constraints arising from GATT Article V and invites members, in the above-mentioned recommendations, not to charge domestic and foreign hauliers differently for transit operations. Furthermore, ECMT advises against delegating entire responsibility for the levying and collection of fees to local (including border) administrations as this will almost inevitably lead to proliferation in the number and inflation in the level of charges