In several ways, 2006 was one that will stay with me. Politically, 2006 was the year in which Minister Verdonk lost the battle for the VVD list leader position to Mark Rutte. That same Minister Verdonk came under fire that year because of the Hirsi Ali affair, who subsequently left the House of Representatives. It was the year in which the Balkenende II cabinet would fall.

On a personal level, 2006 was the year when I first came into contact with the driving hours law, the operation of the tachograph and all the administration that came with it at Vallenduuk Lawyers. It was the year in which the digital tachograph and the new driving hours regulation were introduced.

Now, 15 years later, the smart tachograph has made its appearance and from mid-2023 the new generation will make its appearance. Ultimate goal of the tachograph is and always will be to provide the most complete and reliable picture of driving and rest times possible. After all, without proper recording, supervision is not possible. It is therefore not for nothing that in the absence of tachograph registration the fines are sky-high. A sloppy 4,400 euros per day that data from the vehicle or driver's card is missing. And since there are several days on a single vehicle or driver card file, a fine over a 28-day inspection period could quickly pass the one-ton mark.

Remarkably, the inspectorate never distinguished between data that were not there because of a mistake, or data that, let's say, it was still quite convenient that they could not be shown during an inspection. In both cases, a fine was imposed per missing day. In the proceedings I have conducted against the imposition of this type of fine since 2006, I have therefore regularly argued that it was not appropriate to impose a fine for the absence of a single file per day. Especially when there was no question of intent and the driving and rest periods could be established in other ways. After all, supervision was simply still possible, albeit in a different way.

Unfortunately, ILT and the Council of State insisted on fining per day. After all, tachograph and driver card data was indispensable for proper supervision. For every day the records were missing, a fine was imposed. With a recent ruling by the Court of Justice of the EU, this principle may have come to an end.

In 2013, two Italian drivers were checked for their driving and rest periods during a roadside inspection. During this inspection, they were found to be unable to produce the record sheets for the previous 28 days. A penalty was imposed on them in respect of each missing day. The drivers disagreed. They argued that they had committed only a single offense, because the provision in question only requires them to produce the record sheets for the previous 28 days in case of inspection. According to the drivers, therefore, only a single penalty could be imposed on them. The European Court went along with this. According to the Court, the then Regulation 3821/85 only follows from the obligation to show driving and rest period records for a period of 28 days. Failure to show these only constitutes one offense and not 28.

This ruling could have major implications for cases where a transporter is accused of not being able to submit data for several days. For years, ILT has pushed these violations away under Section 4:3(1) of the Working Hours Act, which requires an employer to keep proper records. I see in this a parallel with the Court's ruling. Just as the obligation to submit record sheets in the event of an inspection constitutes a single violation, the keeping of proper records is, in my view, also a single violation. It would be a break from current case law and a totally different approach to company inspections. The question now, of course, is whether cases decided in the past can be reopened. After all, the fines might well have been imposed in error. Although reopening old cases is difficult in our country, it is not impossible.

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