With the advent of the smart tachograph and the changes brought about by the mobility package [1], new developments in enforcement could not fail to emerge. In this article, I will discuss the latest developments in tachograph checks and what the digitization of monitoring will mean for transport companies.

When the digital tachograph was introduced in 2006, it was a true revolution in the tachograph field. From then on, driving and rest periods would not only be easier and more efficient to monitor, it would also become more difficult to manipulate recorded data. With regard to the latter, practice proved more recalcitrant. Whereas initially people used a fairly easy to detect magnet, someone else's driver card or no driver card at all, today it is manipulated circuit boards and software that dominate.

And so it came about that today, more than 15 years later, the smart tachograph has made its appearance and from mid-2023 the new generation will make its appearance. As then, this piece of technology promises to prevent manipulation and simplify and speed up roadside checks. Moving with the times, we call it. Yet it is striking that despite all these technological developments, enforcement has remained quite traditional all these years.

Digital business checks

Traditional road and business inspections have predominated for years. There is nothing wrong with that in itself. After all, these inspection methods show a fairly accurate and up-to-date picture of a current transport order or a current business operation. There is direct contact between the inspector and the supervised party, and on-the-spot consideration can be made as to what action to take and interests to weigh.

On the other hand, these means of control are quite labor intensive. Both in terms of time and manpower required. A standard road check quickly takes an hour. Completing a company check can thus take several days. The focus of checks has also been on serious violations, such as systematic tachograph fraud. With only 200 inspectors involved in checks for compliance with driving and rest periods, the Netherlands was falling further and further behind in checking compliance with driving and rest periods. As a result, at some point it no longer met the European standard for the number of driver days to be (directly) checked. This should be 3%. Our country achieved just under half. Europe demanded action. That action came.

In a further explanation of her multi-year plan 2022-2026, the Minister promised that from 2022 the Netherlands is expected to meet the European standard for the number of driver days to be (directly) inspected, through the further digitalization of supervision, combined with physical inspections. In doing so, the Minister is not aiming to increase capacity, but wants to make her supervision more efficient and effective with the current capacity. This will be done in particular through the development of digital supervision.

In a digital inspection, the ILT requests driver and vehicle data from a transportation company over a three-month period. The company must submit this data digitally via a web form and answer a number of questions. The ILT analyzes the data for compliance with driving and rest periods, after which the company receives a final letter with the results of the analysis. With these results, the company itself can get to work on improving its business processes.

Digital inspections allow the ILT to conduct risk- and information-driven inspections. Companies with a high risk score the ILT inspects more intensively than companies with a low risk score. Companies that comply with the rules then get the ILT less frequent visits.

A win-win situation for the ILT. Not only can they check significantly more driver days in a much more efficient and effective way; the effort is also aimed at tackling companies where compliance with laws and regulations leaves much to be desired. For transport companies, this means an increase in the level playing field. At least, for Dutch transport companies among themselves. After all, if the neighbor has just as much chance of being inspected, that is good for competition among them.

Yet there are also dissenting voices. For although the ILT is not committed to less physical enforcement, the fact remains that foreign companies remain out of range during digital inspection. The inspection of these companies remains reserved for the traditional roadside inspections, and that simply requires hands. Hands that are insufficiently available.

Whether this will subsequently lead to an uneven playing field between Dutch and foreign companies, however, is questionable. Of course, company inspections, whether physical or digital, can only be conducted by the ILT on Netherlands-based carriers. But that has always been the case. The inspection of transport companies is simply reserved for the controlling authorities of the relevant country.

Digitization of road checks

For roadside inspections, on the other hand, an increasing inequality between Dutch and foreign companies emerged over the years. This was caused not least by a ban on the direct collection of fines for foreign transport companies at roadside inspections. Later, when a heavier burden of proof was added in order to impose the violation found at a roadside inspection not on the driver, but on the company, this seemed to give a carte blanche to the foreign carrier on Dutch territory. The chances of being checked and sanctioned were simply minimal. With the arrival of the smart tachograph, measures from the mobility package and further digitalization of supervision, a level playing field will soon be created here as well. Both for Dutch and foreign companies.

For road inspections, the ILT has been using technical aids for some time. For example, it uses the Weigh In Motion (WIM) system, which measures the axle loads of vehicles to determine whether they are overloaded. For several months, the ILT has also been experimenting with the use of a Direct Short Range Communication (DSRC) system, which allows tachograph data to be read from a short distance, on or at the roadside. These road inspections target all (Dutch AND foreign) transporters on Dutch territory.

In addition, other developments also mean that the ILT will have more enforcement tools at road checks. For example, the Inspectorate can now punish serious violations even if they occurred more than a day ago and the driver's card can be confiscated for such violations. Serious violations include driving without a driver card, using a manipulation device or driving on someone else's driver card. Also, during a roadside inspection, the inspector will soon be able to require the driver to contact the company to provide additional evidence, and the inspector will soon be allowed to inspect for 56 instead of the current 28 days. All in all, quite an expansion of the enforcement package that combined with the digitization of monitoring will soon make it a lot easier for the inspector. And then there is the ERRU register.

ERRU registry

On March 1, 2021, the new ERRU Policy Rule went into effect. It details how transportation violations can result in the temporary suspension or revocation of the license and/or declaring the transportation manager unfit.

With the "European Registers of Road Transport Undertakings," or "ERRU" for short, the sanction registers of member states are linked with the aim of more effective detection and enforcement. Irrevocable sanctions and convictions are recorded in the ERRU register. This includes about 130 different violations of, for example, driving and resting times, overloading, dimensions and violations related to the use of the tachograph. Depending on the severity of the offenses, penalty points of 1, 3, or 9 points, respectively, are assigned [2] . These penalty points can be assigned to both the transport company and the transport manager, and the corresponding points always count for a period of 2 years.

Depending on the number of certified copies of the permit certificate, a limit is set. And that limit can soon be reached. For example, the limit for a transport company with between 2 and 10 licenses is 27 penalty points. Freely translated, that is "only" three of the most serious violations. If the limit is exceeded, the ILT will send an advice to the NIWO. The NIWO will then initiate an investigation under the requirement of reliability and may ultimately, after proportionality assessment, suspend or revoke the transport license and/or declare the transport manager unfit. In addition, in the future, registrations will be linked to a risk classification. If ERRU registration takes place, then the Dutch or foreign roadside inspection can consult the register and see whether violations have previously occurred at the company. The latter will play an important role in roadside inspections and ensure that a transport company will be checked more often at the roadside or subjected to company inspections.

From the foregoing it is clear that we must avoid having too many irrevocable sanctions and convictions in the ERRU register. In the first instance this means that fines should be contested and not paid "just like that" just to get rid of them. As long as a fine is not yet irrevocable, it will not be included in the register.

But even more than challenging fines, violations must be prevented. And that means that transportation companies need to make intensive efforts to proactively tighten up operations and prevent violations. After all, no one wants to lose their license because of violations that could easily have been prevented.

Compliancy is key

Digitalization, various measures from the mobility package and cooperation between the various European inspectorates will ensure that road and company inspections will increase sharply in 2022. This kind of news is causing anxiety. I regularly get calls from transport companies asking what they should do when it's their turn. Of course, I then tell them about their rights and obligations during such an inspection. How they should behave during an inspection and what they should do if there are interventions. The most important advice is always: cooperate where you must, tolerate where you can. Fines are lurking and should be avoided whenever possible.

But there is also much to be gained during and prior to a (possible) inspection. Indeed, the most profit for a company lies in proper preparation and guidance during an inspection.

That starts with managing the digital data of vehicles and driver cards. Every transport operator is required to have these in order and is expected to ensure that everything is complete. Furthermore, the transport operator is also supposed to ensure that all data is reliable and that the tachograph is operated correctly. In particular, incorrect manual entry, driving without a card and not operating the switch (bed/hammer) correctly are violations that I frequently encounter. Besides these checks on the Working Hours Act and related laws and regulations, I see that the inspection services check a lot on, among other things, the requirement of employment, establishment requirements, permit requirements, cabotage, overloading, safety management, animal welfare, (minimum) wages, cross-border labor and, if the union is also around the corner, compliance with the Collective Labor Agreement for the Transport of Professional Goods.

This mode of ever-intensifying controls is causing the focus to shift from the reactive side, to the proactive side. 'Compliancy is the key'. Fortunately, the market is innovating along with this inspection development and we are seeing more and more services and tools that can help transport companies identify, evaluate and address risks. After all, prevention is better than cure and enables the entrepreneur to be ready for the future.

Footnotes1. See also previous articles in Weg en Wagen: Le cabotage change, Joost Wery, Number 92, February 2021; The mobility package: improvements for the international driver?, Gerdien van der Voet, Guido de Vos, Number 93, June 2021. The notes including the policy rules: https://www.niwo.nl/?pageID=208

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