A new shoot on the Mobility Package trunk, took effect on Feb. 21, 2022. It involved new rules for cabotage (the cooling off period) and the establishment requirement: the return home vehicle. The return home vehicle imposes additional requirements on companies to prove that they are genuinely established in a Member State. Transport undertakings must, pursuant to Article 5 (1) (b) of Regulation 2020/1055, organize their fleet of vehicles in such a way that:
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'the vehicles available to the undertaking and used for international transport return to one of its operating sites in that Member State at least within eight weeks of departure from the Member State.'
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As a European Regulation, these rules operate directly, so without additional national legislation. However, now comes the crux, is violation of this rule also punishable? The Regulation contains neither a penalization nor a penalty standard. Indeed, the basic premise of European Union law is that criminal enforcement is (still) reserved to the individual member states. It is therefore the competence (and task) of the national state to provide for statutory provisions on enforcement.
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Now what if a criminal charge is imposed for failure to meet that return home vehicle standard?
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Fundamental pillar of criminal law is, that no act is punishable except by virtue of a prior statutory penal provision. This is the essence of the "legality principle. The legislature must define with sufficient precision what conduct is punishable, under what circumstances, and what the legal sanctions are. Only after such statutory enshrinement is a conviction possible.
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Of course, the most obvious law in that regard is the Road Goods Transport Act (hereafter Wwg). This law provides the basis for the requirements under which domestic transportation can take place. In the letter of Jan. 24, 2022, the Minister of Infrastructure and Water Management addressed the return home vehicle provision. It was announced that the Netherlands will implement "the package" according to the usual procedures. In addition, the implementation of Regulation 2020/1055 was addressed at the Ministerial Meeting held on February 18, 2022. It was noted that a number of articles from Regulation 2000/1055 require adaptation of the Wwg and the Economic Offenses Act, among others.
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To date, the review of the Wwg available for all to consult does not show any changes, related to the return home vehicle.
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Does this law - in its current form - then provide a sufficient basis for the return home vehicle standard? It does not, or insufficiently so. Article 2.2. Wwg provides rules for cabotage via the market regulation (mentioned in the Regulation Wwg). However, cabotage is a substantially different concept than (meeting) conditions of establishment. The Minister himself also explicitly mentions cabotage in addition to the compulsory return of the vehicle.
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So what about article 2.5 Wwg? That article, in short, prohibits commercial transport without a valid Community permit issued for that purpose. Surely any action in violation of a permit condition cannot mean that the permit as such has not been granted? That would be a very curious and untenable legal reasoning.
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All this leads to the conclusion that the Dutch legislator did not keep pace with the entry into force of the return home vehicle provision from Regulation 2020/1055. Previously, several member states have been reprimanded for not including additional provisions from the Mobility Package on time. The Netherlands is also among the "laggards".
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For the Netherlands, therefore, at present the return home vehicle norm has not been accompanied, with the introduction of a corresponding statutory penal provision. In concrete terms, this means that violation of the return home vehicle standard does not constitute a statutory offence. Nor can a sanction be imposed for failure to comply with that standard.
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The criminalization of the "return home vehicle rule" is expected to be introduced in more and more Member States in the near future. Although the issue of actual enforcement is again of quite a different order.
To be continued soon, no doubt.

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