Strasbourg, 26 May 2008

Dear Mr Ø.,

On 26 January 2006, you submitted a complaint to the European Ombudsman against the European Commission concerning the implementation of Community legislation on the introduction of the digital tachograph in vehicles.

On 8 May 2006, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 24 July 2006. I shortly thereafter sent the Commission a request for supplementary information, which the Commission sent on 23 October 2006. I forwarded the Commission's opinion and its supplementary information to you with an invitation to make observations, which you sent on 22 December 2006.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

Background

As of 1 May 2006, the digital tachograph became mandatory for all new goods and transport vehicles put into service for the first time.

Tachographs register driving times and rest periods of professional drivers in road transport as referred to in Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85(1).

To put an end to the most common abuses of the legislation on the current analogue tachograph of the driving times and rest periods, the Council decided, in Regulation 2135/98(2), to adopt provisions for a digital tachograph. The digital tachograph was designed to ensure effective checking of the relevant social legislation in a more secure and reliable way. On 5 August 2002, the technical requirements for the digital tachograph system were published by the Commission in Regulation 1360/2002(3).

The introduction date for the digital tachograph foreseen in Regulation 2135/98 was 5 August 2004, that is, 24 months after the publication of the technical requirements in Regulation 1360/2002. However, due to the unavailability of type-approved equipment, difficulties encountered by vehicle manufacturers as regards the preparation of their production lines and difficulties regarding the implementation process in some Member States, the introduction was postponed several times, until 1 May 2006.

The present complaint to the European Ombudsman concerns the Commission's relevant actions in relation to the legislation referred to, and, in particular, the Commission's postponement of the above-mentioned deadline for the introduction of the digital tachograph (referred to by the Commission as the "moratorium").

The Ombudsman opened the present inquiry on 8 May 2006 into the following allegations made by the complainant:

1. The Commission had no legal authority to establish the moratorium concerning the compulsory installation of the digital tachograph.
2. The Commission had failed adequately to communicate with operators and with the Member States in relation to the introduction of the digital tachograph.
3. The Commission had failed to take relevant action to ensure that operators would not be subject to different rules in different Member States.

THE INQUIRY

The Commission's opinion

In its opinion on the complaint, the Commission made, in summary, the following remarks:

1. Legal framework

According to Article 2(1) of Regulation 2135/98, the digital tachograph had to be installed in all new vehicles within a period of 24 months from the date of publication of the technical requirements.

The period of 24 months was laid down in the legislation to give Member States, manufacturers and operators sufficient time to prepare for the introduction of the digital tachograph, and at the same time to exert pressure on the implementation process.

The technical requirements were published as Regulation 1360/2002 in the Official Journal on 5 August 2002. As a consequence, the digital tachograph should have become mandatory on 5 August 2004 at the latest.

The purpose of Article 2(1) of Regulation 2135/98 was to set a final introduction date. However, Article 2(1) did not prevent an early introduction of the digital tachograph, that is, before the final introduction date, in the event the new equipment became available at an earlier time. In this regard, Article 2(4) stipulated that drivers who, before the final introduction date, drove vehicles with a digital tachograph, for which the competent Member State authorities had not yet been able to issue driver cards, should, at the end of their daily work period, print out the information concerning driving times and rest periods.

2. Support to Member States, industry and transport operators

In order to support and facilitate Member States, industry and transport operators in implementing the digital tachograph, the Commission initiated and supported various projects, namely, the Card Issuing Working Group ("CIWG"), the Implementation of the Digital Tachograph ("IDT"), the monitoring of the Implementation of the Digital Tachograph ("MIDT"), Tachonet, and the European Root Certification Authority system ("ERCA"). These projects produced supporting documents, such as guidelines on the approval of workshops and on data management, card issuing best practices guide and a European Root policy document. For Denmark, the Danish State Police participated very actively in all of these projects.

Under the responsibility and management of the Commission, a system called Tachonet was established, in order to allow Member States to check the uniqueness of tachograph cards. The Commission also established a security key certification system and a laboratory which performed interoperability tests between different tachographs and cards.

Since 2000, many meetings were organised at regular intervals, involving Member State experts, tachograph manufacturers, vehicle manufacturers, transport operators and drivers and informing them about the latest technical, legal and political developments. The transport operators were represented at all these meeting by the International Road Transport Union ("IRU").

3. Problems in the industry

As of 2002, the IDT project organised meetings to assess the progress made in the implementation process by industry and Member States. During one of these meetings, in January 2003, the first signals were received that, due to difficulties in obtaining the necessary security, functional and interoperability certificates, tachograph manufacturers would not be able to obtain type approval for their new equipment before August 2003, the date foreseen in the time schedule described by Article 2 of Regulation 2135/98. However, one of the tachograph manufacturers officially stated that it would be able to obtain type approval for its new equipment only a few months later, that is, before the end of the year.

The Commission took into consideration the statement of this tachograph manufacturer that type approval would be obtained before the end of 2003 and the fact that a rapid introduction was necessary to improve road safety and social conditions. In light of the above, the Commission decided, at the time, not to propose, by legislative amendment through application of the co-decision procedure, a formal extension of the final introduction date. Moreover, such formal proposal would not have brought about the required immediate certainty.

At an ad-hoc meeting of the IDT project, held on 12 September 2003, it became clear that, contrary to the earlier statement of one of the tachograph manufacturers, there would be no type-approved equipment available before the end of the year, due to difficulties experienced in obtaining the necessary security, functional and interoperability certificates. Instead, experts concluded that, in the best case scenario, the first type-approval certificates could be granted in April 2004.

In the following months, the Commission carefully assessed the situation. It was concluded that, in the best case scenario, type-approved equipment would become available by April 2004. From that date, vehicle manufacturers would need 12 to 18 months to perform tests and set up their production lines. Meanwhile, Member States would have to adopt the necessary legal frameworks, set up a card issuing system, approve workshops and train control officers. With this in mind, it became clear that the initial introduction date 5 August 2004 was no longer feasible.

4. Relevant actions

Following a discussion at a special expert meeting on 20 February 2004, the Member States, industry and the IRU attended a meeting of the Transport Council on 9 March 2004, in order to consider the various options for the extension of the deadline. During that meeting, Commission Vice-President Loyola de Palacio announced a period of tolerance until August 2005 during which the Commission would abstain from initiating infringement proceedings against Member States. The Ministers of Transport were informed that a letter would soon be sent to the Member States, in which the issue would be explained in further detail.

Vice-President Loyola de Palacio's above announcement led to a number of press articles in various national and specialised papers and magazines. In a press release of 9 March 2004, for example, the Dutch transport association TLN (Transport en Logistiek Nederland) considered the Commission's approach to be wise and sensible.

On 21 April 2004, Vice-President Loyola de Palacio sent a letter announcing the "moratorium" for the introduction of the digital tachograph.

This letter recognised that the introduction of the digital tachograph would proceed at a different pace throughout the European Union. Some manufacturers and Member States were expected to be ready soon, whilst others would need more time to complete the implementation process. In this situation, the Commission wanted to provide a clear view to Member States, industry and transport operators. Submitting a formal proposal for the extension of the introduction date would, under these circumstances, not immediately bring about the required certainty. Alternatively, a moratorium provided a clear timetable to the Member States, industry and transport operators.

In addition, in order to accommodate practical difficulties linked to the introduction of the digital tachograph at a different pace, the letter introduced a set of transitional measures. These measures, which had been extensively discussed with Member States, industry and operators in the framework of an EDT meeting on 26 and 27 February 2004 in Dublin, provided guidance to national authorities responsible for the registration of new vehicles fitted with the digital tachograph and for enforcement of legislation concerning driving times and rest periods. For example, it was stated that, in terms of enforcement, the use of an analogue tachograph should be tolerated and respected in all vehicles which had been registered before the date of the moratorium came to an end throughout the European Union.

5. New introduction date - position of the EU institutions

At the meeting of the Transport Council on 11 June 2004, the Council came to a unanimous political agreement to include in the Commission proposal for amendments of the rules on driving times and rest periods (Regulation 3820/85) the new deadline of 5 August 2005 for the introduction of the digital tachograph. The reasoning behind this agreement was to ensure legal certainty for the interim period between 5 August 2004 and 5 August 2005. In the context of a political agreement, the Commission accepted the insertion of the new deadline in the text of the proposal. On 9 December 2004, the Council adopted a Common Position, which referred to the new deadline.

On 13 April 2005, Parliament in its resolution on the Council Common Position, proposed two amendments on the introduction schedule for the digital tachograph. One of these amendments required the introduction date for the digital tachograph to be linked to the date of entry into force of the new regulation on driving times and rest periods. That amendment provided inter alia that Member States were to issue cards up to two months after the entry of the Regulation into force. The other amendment proposed that new vehicles fitted with analogue tachographs could still be produced until August 2006. After that date it should still be possible to register vehicles fitted with the analogue equipment for one year more. As from August 2007, the installation of a digital tachograph would become mandatory for all new vehicles.

These amendments were discussed between the Council and the Parliament in conciliation under the British Presidency. During this process, the position of the Commission had always been consistent and fully in line with the common position of the Council, that is, that 5 August 2005 should be the final introduction date. Delaying the process still further, as proposed by Parliament's amendments, would be to treat unfairly those Member States and sections of industry that had invested in the reforms in order to be ready on time.

On the basis of the situation prevailing in May 2005, the Commission considered that there were no objective reasons for not introducing the digital tachograph as from 5 August 2005. The Commission's position was based on the following considerations:

• Three tachograph manufacturers (Actia, Siemens-VDO and Stoneridge) had stated that they were ready to support the market with the volumes needed as from May 2005.
• Vehicle manufacturers had completed tests with the new equipment and had signed contracts with the tachograph manufacturers to equip their vehicles by 5 August 2005.
• All tachograph manufacturers had developed and approved training programmes and were co-operating closely with the Member States.
• A security key certification system had been set up by the Commission and certificates had already been issued to several Member States, while many others were close to receiving the required certificates.
• Tachonet, the system that enabled the exchange of tachograph card information, had been operational since summer 2004. Some Member States were ready to connect to this system and others would soon follow.
• Member States had invested in setting up a card issuing system. Some of them had already issued cards; others would do so before August 2005.

These considerations were confirmed in an information note, which was sent to the Council Working Party on Land Transport on 2 June 2005.

In this information note, the Commission stated that, to ensure the necessary clarity in the market, it would continue to review the situation and that, through the MIDT project, which had been set up in the beginning of 2005, it would inform the stakeholders accordingly in the event of any technical delays.

Through the MIDT project, the stakeholders received detailed and up-to-date information about the state of development concerning (i) the introduction of the digital tachograph in the different EU Member States, and (ii) the on-going legislative process aiming at adopting a deadline for the digital tachograph's mandatory introduction in the field. This information was supplied through a dedicated web site, through news alerts and newsletters, as well as through regular and ad hoc meetings. It was therefore not unreasonable to declare in that respect that the various stakeholders had been well informed about the situation during the entire process.

6. Consequences of the institutional process (co-decision)

At the end of June 2005, it became clear that the introduction date of 5 August 2005, which according to the Commission was still valid for objective reasons, would be overtaken by the institutional process for the adoption of new legal deadlines.

At the meeting of the Transport Council on 27 and 28 June 2005, Vice-President Barrot said that he would accept that, after 5 August 2005, there would be a period of co-existence of the analogue and digital tachographs. That period would continue until the new Regulation on driving times and rest periods, including the deadline for the introduction of the digital tachograph, had entered into force and, in any case, no later than 1 January 2006. He also said that Member States that were ready could make the digital tachograph compulsory as from 5 August 2005 for their haulage operators, but they should not enforce it on operators coming from Member States which were not ready. He finally noted that he would write a letter to the Member States after the Council meeting. His statements were repeated at a press conference after the Council meeting and in a 12 January 2006 press release issued by the Commission.

On 28 June 2005, IRU issued a press release in which it stated that the mandatory introduction of the digital tachograph would be postponed until 1 January 2006 and that, in the meantime, a period of tolerance would be granted.

On 22 July 2005, Vice-President Barrot wrote a letter to the Member States, noting inter alia that the industry could deliver vehicles fitted with digital tachographs and that most of the Member States had completed the necessary legal frameworks and practical arrangements. In light of the above, Vice-President Barrot stated that the digital tachograph should be legally accepted and recognised by all Member States. However, a certain number of Member States had requested a final transitional period to complete putting in place the necessary arrangements. To this end, and after consultation with all the stakeholders, the Commission considered it reasonable to grant a final period of tolerance until 31 December 2005.

Since Parliament and the Council could not reach an agreement in the second reading on the proposed Regulation on the harmonisation of certain social legislation relating to road transport and amending Regulations 3821/85 and 2135/98 and repealing Regulation 3820/85, the conciliation procedure was started in October 2005. On 6 December 2005 both institutions reached an agreement. It was agreed that the use of the digital tachograph in new vehicles would become mandatory 20 days following the publication of the new regulation on the harmonisation of certain social legislation relating to road transport.

In parallel with the agreement in conciliation, the Parliament and the Council issued a joint declaration which stated that they would make every effort to complete the finalisation of the text to allow it to be published in the Official Journal in April and for digital tachographs to be mandatory for new vehicles from early May 2006.

7. Position of the Member States

Following the conciliation agreement, two Member States, namely, Denmark and Spain, nevertheless decided to impose use of digital tachograph as of 1 January 2006. The Commission immediately informed the responsible Member State authorities (through the Danish Ministry of Justice and the Spanish Ministerio de Fomento) that the Commission would accept the new deadline of May 2006 agreed upon during the Conciliation Committee of 6 December 2005. The Commission also pointed out that Member States were free to impose stricter rules on their own nationals on the basis of the principle of reverse discrimination. However, the Commission explained that it would not be appropriate to start enforcing the mandatory use of the digital tachograph as of 1 January 2006 for all new vehicles registered in the European Union, thereby sanctioning foreign drivers with new vehicles not being equipped with a digital tachograph.

In reply, the Spanish Ministerio de Fomento confirmed that they would support the introduction deadline of May 2006 for all new vehicles registered in the other Member States of the European Union. No reply was received from the Danish authorities.

In similar terms to those described above, the Commission replied to questions from the Italian Permanent Representation, the United Kingdom and the Austrian Ministry of Transport and the Portuguese Association of Transport Operators ANTRAM. In addition, IRU had been orally informed about the Commission's point of view and of the reply of the Spanish authorities.

8. Final introduction date

Meanwhile, on 12 January 2006, Vice-President Barrot sent a letter to all Member States informing them that he could accept, on the basis of the ongoing adoption of Regulation 561/2006, the date of May 2006, which was 20 days after publication of the forthcoming Regulation on driving times and rest periods, as the ultimate date for the mandatory introduction of the digital tachograph. The view of Vice-President Barrot was confirmed in a press release issue by the Commission on 19 January 2006 and at a plenary meeting of the MIDT project held in Vienna on 26 January 2006, with all Member States, industry and IRU present.

On 11 April 2006, Regulation 561/2006 was published in the Official Journal. In accordance with Article 27 of this Regulation, the digital tachograph became mandatory as of 1 May 2006 for all vehicles put into service for the first time in the European Union.

Commission conclusions

Given the chronological description of events and facts above, the criticism of the complainant did not seem to be justified.

The co-ordinated introduction of new technologies such as the digital tachograph remained a difficult process, given the technical complexities, the procedural constraints and the great diversity of stakeholders. In this case, these stakeholders included Member States, Parliament, the Council, the Commission, tachograph and vehicle manufacturers, road haulage operators (represented by the IRU), drivers and others.

Despite these difficulties, the Commission had been guided by a commitment to good governance, ensuring maximum transparency and openness for all stakeholders.

The success of this open approach was reflected in the fact that, to date, all new trucks and buses are equipped with the digital tachograph and that the very large majority of the Member States had successfully implemented the digital tachograph in their national systems.

As far as the situation in Denmark was concerned, it was worth noting that, since the beginning of this project, staff members of certain Danish government services had been active members in all the projects dealing with the introduction of the digital tachograph (CIWG, IDT, ERCA, Tachonet and MIDT). These projects had been the main catalysts for the smooth introduction of the digital tachograph in the European Union.

From its experience in other technology areas, the Commission was acutely aware that the introduction of new systems was sometimes difficult to follow for individual users of the system, despite the efforts of those involved to try to provide a maximum degree of transparency and clarity.

Having examined the Commission's above opinion, the Ombudsman found that the Commission had not adequately addressed the issue raised in the complainant's first allegation, and therefore asked the Commission to do so in a further request. In its reply, the Commission made the following remarks:

In reply to the question raised by the complainant, the Commission would like to point out that the moratorium did not involve an extension of the implementation deadlines provided for by Regulation 2135/98 but provided a period of tolerance during which the Commission would abstain from initiating infringement proceedings against Member States. The Commission recalled in this context the wide margin of discretion possessed in deciding whether to open infringement proceedings as regards the implementation of Community legislation.

As far as this dossier is concerned, the Commission, when announcing the moratorium, took into consideration the difficulties faced by the sector in completing the implementation of the new technology required for the introduction of the digital tachograph within the deadline stated by Regulation 2135/98. On this basis, and in order to ensure the implementation of Regulation 2135/98 in a non-discriminatory way in all Member States, the Commission announced publicly, during the Transport Council on 9 March 2004, that it would not open infringement proceedings against Member States. This announcement together with the letters sent to Member States by Vice-President Loyola de Palacio on 21 April 2004 and Vice-President Barrot on 22 July 2005 and 12 January 2006 respectively should therefore be interpreted in this way. In fact, as said before, the message was to be read not as granting an extension of the implementation deadlines provided for by the Regulation 2135/98 but as providing a period of tolerance during which the Commission would abstain from initiating infringement proceedings against Member States.

This decision was taken by the Commission also in recognition of the fact that a legislative initiative to revise Regulation 2135/98 would not have been adopted quickly enough in order to allow for a timely modification of the introduction date of the digital tachograph and, as a result, would not have addressed the practical difficulties encountered by the sector.

In fact, at the end of the legislative process, Parliament and the Council decided to fix a new date for the entry into force of digital tachograph, namely, 1 May 2006. In accordance with the new date fixed, the Commission started pre-infringement procedures by letter of 26 June 2006 requesting a precise state of play from Member States which did not, at that time, provide sufficient information. This led the Commission to send a letter of formal notice to two Member States on 11 October 2006.

The complainant's observations

In its observations, the complainant maintained its complaint and expressed a number of concerns regarding the on-going implementation of the relevant legislation.

THE DECISION

1 The allegation that the Commission had no legal authority to establish the moratorium concerning the compulsory installation of the digital tachograph
Background

1.1 To put an end to the most common abuses of the legislation concerning the analogue tachograph for driving times and rest periods, the Council of Ministers decided in Regulation 2135/98(4) to adopt provisions for a digital tachograph, which would ensure effective checking of the relevant legislation in a more secure and reliable way. On 5 August 2002, the technical requirements for the digital tachograph system were published by the European Commission in Regulation 1360/2002(5). The introduction date for the digital tachograph as foreseen in Regulation 2135/98 was 5 August 2004, that is, 24 months after the publication of the technical requirements in Regulation 1360/2002. However, due to the unavailability of type-approved equipment, difficulties of vehicle manufacturers as regards the preparation of their production lines and difficulties regarding the implementation process in some Member States, the Commission "postponed" the introduction of the tachograph several times by the Commission. The first "postponement" was announced by Commission Vice-President Loyola de Palacio through a "moratorium" sent out in a letter of 21 April 2004.

1.2 In its complaint, submitted on 26 January 2006, the complainant expressed a number of concerns relating to the introduction of the moratorium referred to above. These included, in particular, concerns with respect to legal uncertainty, allegedly poor communication with relevant operators on the part of the Commission, and the Commission's power to introduce the above-mentioned moratorium. The complainant stated that:

"[o]ur aim is primarily to complain of the criticisable handling and information on the part of the EU institutions in this matter in order to avoid a similar situation in future cases and to make the institutions appreciate that also the road transport industry has a right to good legislation and management of such legislation."

The complainant expressed particular concerns regarding a perceived lack of legal certainty, stating inter alia that the practical impact to road haulage operators:

"was not considered at that time. In such a situation, a relevant reaction from the Commission would have been to ensure that an operator with a digital tachograph driving in a country in which the digital tachograph had not yet been allowed would not run into troubles with the local authorities because of this".

The complainant also stated that "[i]n the entire process, communication to citizens and companies affected by the legislation has been neglected by the Commission. This has undermined the companies’ possibilities of making long-term, sound decisions and - even worse - their legal rights have been threatened. Which rules applied to whom and when was not clear. This was underlined by the situation as at 1 January 2006, when, for example, Spain stated that vehicles which did not have the digital tachograph, but which should have had one according to the Spanish rules, would be fined when entering Spain."

1.3 The Council and Parliament eventually adopted a new deadline for the introduction of the digital tachograph, as part of new related legislation, namely, Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85(6) ("Regulation 561/2006"). The new deadline was the end of May 2006.

The nature of the moratorium established by the Commission

1.4 The first allegation taken up for inquiry in the present case was that the Commission had no legal authority to establish the above-mentioned moratorium concerning the compulsory installation of the digital tachograph.

1.5 It is clear that, in order to assess this allegation, the nature of the "moratorium", and, in particular, its content and intended effects have to be examined.

1.6 In this respect it is noted that the Commission has not referred to any formal administrative or legal definition of "moratorium", but has merely provided its point of view on how that measure should be "interpreted" in the present case. It has stated that the moratorium did not involve an extension of the implementation deadlines provided for by Regulation 2135/98 but provided a period of tolerance during which the Commission would abstain from initiating infringement proceedings against Member States. The Commission has recalled the large margin it has in deciding whether to open infringement proceedings regarding the implementation of Community legislation. This, in fact, constitutes the full explanation provided by the Commission in response to the allegation here concerned.

1.7 In carrying out his present examination, the Ombudsman wishes to point out that he bases his examination on objective factors and on the evidence submitted in the case. The Commission's own explanations as to what the "moratorium" should be understood to have meant cannot be decisive, though they serve to enhance the understanding of what happened in the case.

1.8 It is clear from the outset that there are two main potential conclusions regarding the nature of the "moratorium". According to the first, the "moratorium" amounted, merely and exclusively, to a decision by the Commission not to use, for a certain period of time, the formal measures referred to in Article 226 of the EC Treaty (issuing a reasoned opinion and taking the Member States to court) for non-compliance with the legislation here concerned. According to the second conclusion, the "moratorium" constituted rather a concrete measure intended to have legal effects for the Member States and, potentially, private parties.

1.9 With regard to the first option, the Commission has rightly stated that it enjoys a wide margin of discretion in deciding whether to open infringement proceedings, under Article 226 of the EC Treaty, regarding the implementation of Community legislation(7). This discretion concerns a potential decision of the Commission to initiate or not to initiate the formal procedure under that provision, which involves a reasoned opinion and, if necessary, taking the Member State concerned to court. It is furthermore part of the scheme of Article 226 that the Commission may at all stages actively attempt to elicit compliance with Community law through, for instance, negotiation, coercion or "amicable" solutions(8). The Commission's powers to engage in such dialogue flows from Article 226 itself and Article 10 of the EC Treaty laying down a general principle of co-operation(9).

1.10 This legal framework, while both allowing and encouraging informal contacts and amicable solutions, does not, however, provide for any other formal substantive measures than the ones expressly mentioned in Article 226, namely, issuing a reasoned opinion and taking the Member State to court. The Commission's power to decide not to make use of these formal measures is a power of omission. That power does not per se provide for a competence to adopt and issue a series of alternative measures addressed to the Member States or other third parties.

1.11 The "moratorium" was formally announced by Commission Vice-President Loyola de Palacio in her letter of 21 April 2004 (quoted above under "The Complaint"). This letter reveals a number of the "moratorium's" essential features.

First, is clear from the letter that the "moratorium" was announced following technical problems implementing the system in some Member States. It did not, it seems, relate to identified unwillingness of all or certain Member States actually to implement the legislation concerned.

Second, the "moratorium" was announced long before the legislation was to enter into force. The "moratorium" therefore strictly speaking did not relate to any existing potential breaches of EU law, but rather to the Commission's informed view that such breaches would take place in the future because of technical difficulties in implementing it. As such, the "moratorium" concerned predicted situations rather than address a concrete existing situation of actual or potential breaches of Community law.

Third, the letter contained a high degree of specificity regarding the scope of the "moratorium". It expressly used terms such as "postponement" or "extension" of an existing deadline contained in the relevant legislation. The letter furthermore suggested that the "moratorium" created a required degree of "certainty", by stating that the alternative of introducing a new deadline through legislation would not bring about such certainty.

Fourth, the letter coupled the purported "extension" of the deadline here concerned with a series of specific instructions to the Member States, set out in mandatory terms: "transitional arrangements will have to be introduced by the Member States during the moratorium"; "the key elements of the transitional arrangements shall be"; "Member States must ensure"; "Member State authorities shall allow"; "[i]n terms of enforcement, the use of an analogue tachograph shall be allowed and respect in all vehicles, which have been registered before the end date of the period of extension, throughout the European Union").

1.12 In terms of relevant follow-up statements, Commission Vice-President Barrot wrote a letter to the Member States on 22 July 2005, in which he provided information on the state of affairs concerning the implementation of the legislation here concerned. In that letter, he first referred on the following terms to the main message in the Commission's letter of 21 April 2004:

"In its letter to the Member States of 21 April 2004, the Commission has already announced a moratorium to extend the deadline for the introduction of the digital tachograph (...)".

Referring to the aims of the "moratorium", Vice-President Barrot stated inter alia that:

"[f]inally, the aim of the moratorium was to ensure that Member States would not issue penalties to drivers of foreign vehicles entering their respective territories without a digital tachograph".

Referring, then, to the state of affairs (technical and legal), the Vice-President informed the Member States that the Commission considered that it was:

"reasonable to grant a final period of tolerance until 31 December 2005. In consequence, until that date, the Commission will abstain from initiating infringement proceedings against Member States for failure to introduce the digital tachograph on new vehicles. Member States may continue to permit the use of analogue tachograph on vehicles registered up until 31 December 2005, including on those vehicles registered on the territory of another Member State".

Shortly afterwards, an agreement was reached between the Council and Parliament to introduce, by means of legislation that was then being discussed, a new deadline of May 2006 for the introduction of the digital tachograph.

Certain Member States decided to impose the use of the digital tachograph as of 1 January 2006 (the new legislation just referred to had not yet entered into force). In this regard, the Commission immediately wrote to those Member States to inform them that it would not be appropriate to start enforcing the mandatory use of the digital tachograph as of 1 January 2006 for all new vehicles registered in the European Union. The Commission explained to those Member States that such enforcement would sanction foreign drivers with new vehicles that were not equipped with a digital tachograph.

1.13 By way of preliminary point for the assessment of the above information, it should be emphasised that the "moratorium" can only be seen in conjunction with the various other directly related statements, such as the above-mentioned instructions on how the "moratorium" should be implemented. It is clear that the modalities of a measure cannot be separated, for the purposes of an examination like the present one, from that measure itself.

1.14 On a substantive assessment, the "moratorium" does not appear to have constituted, merely and exclusively, a decision to establish a period of tolerance during which the Commission would simply abstain from initiating infringement proceedings against Member States. Indeed, the "moratorium" does not appear to fall within any of the categories of actions that the Commission is normally seen to be competent to take, under Article 226 of the EC Treaty, as an alternative to the formal measures in that provision, namely, by issuing a reasoned opinion and taking the Member State to court. First, the Commission's "moratorium" was not focussed on finding, discussing or otherwise concluding on existing breaches of Community law. Initially, this would at any rate have been legally impossible given that the "moratorium" was issued well in advance of the entry of the relevant legislation into force. Second, the "moratorium" did not concern the Member States' compliance with Community law as it stood, but rather contained the instruction that the Member States should not implement the Community legislation concerned, that is, for the stated period of the purported "extension" of the deadline here concerned. Third, the "moratorium" contained a number of precise instructions, formulated in mandatory terms, to the Member States, as to how the latter should act in light of the "moratorium". Fourth, the "moratorium" focussed on the uniform implementation of the EU legislation concerned. Such uniform implementation of EU legislation was of a regulatory nature and was clearly separate from the issue of whether one or several Member States were in fact able and willing to respect the legislation concerned.

1.15 In light of the above, the Ombudsman cannot conclude that the Commission has substantiated its view that the "moratorium" issued to the Member States constituted, merely and exclusively, an exercise of its discretion in the form of a decision not to initiate, for a specified period ('period of tolerance'), the formal measures provided for in Article 226 of the EC Treaty.

1.16 In light of the above findings, the Ombudsman must conclude that the Commission's moratorium was a concrete measure intended to have legal effects for the Member States and on market operators. The Ombudsman recalls that, in EU law, the question of whether a measure is intended to have legal effect is a purely objective one, separable from any expressed views or interpretations of the institution concerned(10). Even apparently obvious issues regarding the question of legal authority for adopting the measure in question are to be disregarded, as separate issues, for the purposes of determining the actual nature of the measure concerned. Instead, what is fundamental to an analysis of the present kind is whether the measure concerned established implementing arrangements entailing specific obligations(11).

1.17 In the present case, the "moratorium" was communicated to the Member State by the competent members of the Commission; it was formulated in precise terms as far as its purpose and main aims were concerned; it contained a series of instructions formulated in mandatory terms. It was the subject of extensions, also formally communicated, which furthermore involved contacts being made with individual Member States that were seen as potentially disrespecting the final extension of the moratorium. Finally, as concluded above, the measure is not recognisable as a mere informal measure of negotiation, dialogue, or similar measure, that the Commission could take once, in exercising its broad discretion, it had decided not to use the formal measures set out in Article 226 of the EC Treaty.

1.18 In light of these factors, the Ombudsman can only conclude that the "moratorium" announced by the Commission constituted a measure intended to have legal effects in Member States and on market operators.

The question of legal authority

1.19 The question of whether the Commission had legal authority (or 'competence') to adopt the "moratorium" does not require an in-depth analysis in the present case, given the nature of the main element of that measure. Through a mere announcement in the form of a letter to the Member States, the Commission effectively attempted to postpone a specific and unequivocal deadline laid down in an EU regulation, whereas neither the Treaties nor any of the legislation relevant to the present case provide for a competence to do so. Indeed, in its opinion in the present case, the Commission has not pursued an argument to that effect (but has, as noted above, chosen to argue that the "moratorium" was simply an exercise of its discretion under Article 226 of the EC Treaty). Furthermore, the existence of any such legal authority is also undermined by the fact that the legislation concerned specifically provided for a concrete measure to be taken by the Commission precisely in the case of the type of implementation problems described by the latter. However, this action was simply not taken in 2003 but only later in 2006(12).

1.20 In light of the foregoing, the Ombudsman finds that the allegation here concerned was justified, in that the Commission did not have legal authority to establish the "moratorium" that it issued in the present case. This was an instance of maladministration, and the Ombudsman will issue the critical remark below.

1.21 The Ombudsman would also like to emphasise his recognition of the fact that the problems faced by the Commission in relation to the digital tachograph's introduction were, in large part, related to seemingly exceptional technical problems at the level of the industrial actors concerned. Without prejudice to his finding in point 1.20 above, the Ombudsman wishes to point out here that the Commission's attempts to address those problems were clearly sincere and genuine. The Ombudsman furthermore has every reason to believe that the Commission's experience in dealing with the (exceptional) difficulties in relation to the introduction of the digital tachograph will be carefully taken into account should any similar situations arise in the future.

2 The allegation that the Commission failed adequately to communicate with operators and with the Member States in relation to the introduction of the digital tachograph

2.1 The Ombudsman understood the present allegation to raise two main issues, namely, first, the Commission's general communication with Member States and, second, the Commission communications in relation to the evident concerns of operators for certainty in their situation when crossing borders within the EU. With regard to the first issue, the Ombudsman notes that, in its observations, the complainant has stated that there is no doubt that the Commission has employed extensive resources with respect to the development and implementation of the digital tachograph. Furthermore, a substantial part of these resources has been employed in communicating with, and establishing contacts between, national authorities involved in the project. The complainant added that the Commission should receive credit for these efforts. The complainant, hence, does not seem to complain about this aspect of the Commission's communication activities.

2.2 The complainant's allegation seems rather to focus on the "moratorium" in question. As analysed above (point 1), the content and intended effect(s) of this "moratorium" went well beyond the establishment of a simple "period of tolerance" during which the Commission would abstain from opening infringement procedures. To this extent, the legal basis, nature and effects of the "moratorium" and the resulting legal situation were puzzling and apparently were not clearly presented and explained by the Commission to the Member States and stakeholders. This shortcoming seems to be an aspect of the basic problem identified in point 1 above. The Ombudsman, therefore, considers that no further inquiry into and consideration of this aspect of the case would be justified.

3 The allegation that the Commission failed to take relevant action to ensure that operators would not be subject to different rules in different Member States

3.1 In dealing with this allegation, the Ombudsman, first, recalls the complainant's relevant statement:

"[o]ur aim is primarily to complain of the criticisable handling and information on the part of the EU institutions in this matter in order to avoid a similar situation in future cases and to make the institutions appreciate that also the road transport industry has a right to good legislation and management of such legislation. (...) In such a situation, a relevant reaction from the Commission would have been to ensure that an operator with a digital tachograph driving in a country in which the digital tachograph had not yet been allowed would not run into troubles with the local authorities because of this. (...)" (emphasis added).

3.2 The Ombudsman further recalls his remarks in point 1 above regarding the "moratorium" in question and the absence of a legal basis for it. He also notes that the complainant has not made any specific, duly substantiated, arguments about the legal basis of the action he suggested that the Commission should or could have taken in the context of its "management" of the Community legislation at issue. As regards the observation about the need for "good legislation," it is the Ombudsman's understanding that the complainant refers to the rules of legislative nature the Commission intended to introduce through the "moratorium" in question. Independently of whether the wisdom and quality of such measures would be a matter amenable to the Ombudsman's review for maladministration, the problem of their legal basis identified above makes the separate examination of this matter unjustified. To the extent the complainant's allegation might be considered to question the wisdom and adequacy Regulation 2135/98(13), it would not concern a possible instance of maladministration, within the meaning of Article 195 of the EC Treaty, which defines the Ombudsman's mandate. In light of the above, the Ombudsman considers that no further inquiry into, and consideration, of the present allegation would be justified.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The Commission has failed to demonstrate that it had the legal authority to adopt the "moratorium" at issue, insofar as the latter involved regulatory measures which were clearly distinguishable from and went well beyond a decision to abstain from opening infringement procedures. Despite the explanations given by the Commission about the particular circumstances which led to the moratorium's adoption, the establishment by the Commission of the contested "moratorium," thus amounted in relevant part, to an instance of maladministration.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, Official Journal 2006 L 102, p. 1.

(2) Council Regulation (EC) No 2135/98 of 24 September 1998 amending regulation (EEC) No 3821/85 on recording equipment in road transport and Directive 88/599/EEC concerning the application of Regulations (EEC) No 3820/85 and (EEC) No 3821/85, Official Journal 1998 L 274, p. 1.

(3) Commission Regulation (EC) No 1360/2002 of 13 June 2002 adapting for the seventh time to technical progress Council Regulation (EC) No 3821/85 on recording equipment in road transport, Official Journal 2002 L 207, p. 1.

(4) See footnote 2.

(5) See footnote 3.

(6) See footnote 1.

(7) "[I]t is clear from the scheme of Article 169 [now Article 226] of the EEC Treaty that the Commission has no obligation to commence proceedings under that article; it has a discretionary power precluding the right of individuals to require it to adopt a particular position and to bring an action for annulment against its refusal to take action." See Case C-87/89 Sonito and Others v Commission [1990] ECR I-1981 at paragraph 6.

(8) The negotiation-phase of the process has been described in terms of finding an amicable settlement; see for instance the opinion of Advocate General Alber in Case C-328/96 Commission v Austria [1999] ECR I-7479, at paragraph 16; and cf. the opinion of Advocate General La Pergola in Case C-96/95 Commission v Germany [1997] ECR I-01653, paragraph 19 and the references cited therein.

(9) The power to request the necessary information and dialogue flows, at any rate, from the duty of co-operation contained in Article 10 of the EC Treaty.

(10) Cf. Case C-303/90 France v Commission [1991] ECR 1991 I-5315, paragraph 14 et seq.

(11) Cf. Case C-303/90 France v Commission cited above, paragraph 15.

(12) "In the event that 12 months after the date of publication of the act referred to in paragraph 1, EC type-approval has not been granted to any item of recording equipment which conforms to the requirements of Annex IB to Regulation (EEC) No 3821/85, the Commission shall submit a proposal to the Council for an extension of the deadline laid down in paragraphs 1 and 2." (Article 2(3) of the Regulation 2135/97). See also the Ombudsman's relevant remarks under point 3 below.

(13) It must be noted that this Regulation anticipated potential problems in the process of introducing the digital tachograph. More specifically, Article 2(3) of the Regulation provided the following: "In the event that 12 months after the date of publication of the act referred to in paragraph 1, EC type-approval has not been granted to any item of recording equipment which conforms to the requirements of Annex IB to Regulation (EEC) No 3821/85, the Commission shall submit a proposal to the Council for an extension of the deadline laid down in paragraphs 1 and 2." (Emphasis added). However, the present complaint did not contain a specific allegation regarding a failure by the Commission to make use of this provision. Such an allegation has therefore not been examined in this case.