Romantiek Transport BVba & Ors v Vehicle and Operator Services Agency

An exemption from UK operator-licensing requirements for a vehicle permitted to carry out cabotage applies only when cabotage is actually being performed. Cabotage under the relevant Community legislation means temporary national road haulage in another Member State. A Community authorisation does not permit full-time operation in the host State. Where use is non-temporary and no cabotage exists, the carrier must hold a UK operator’s licence, and the vehicle may be detained under domestic enforcement provisions. The licensing and return procedures apply equally to domestic and non-domestic hauliers.

The Vehicle and Operator Services Agency detained seven vehicles and nine trailers belonging to the appellants under the Goods Vehicles (Licensing of Operators) Act 1995. The appellants held Belgian Community authorisations and claimed that their vehicles were exempt because they were permitted to carry out cabotage under Community Council Regulation (EEC) No. 3118/93.

The Transport Tribunal found that the vehicles were being used entirely, or almost entirely, in the United Kingdom and were not performing cabotage. It upheld the detentions and refused their return. The appeal concerned whether paragraph 23 of Schedule 3 to the Goods Vehicles (Licensing of Operators) Regulations 1995 applied merely because cabotage was permitted, and whether enforcement had to be left to the Belgian authorities.

The appeal was dismissed unanimously. Longmore LJ gave the leading judgment, with Toulson and Tuckey LJJ agreeing.

1. The starting point was section 2(1) of the Goods Vehicles (Licensing of Operators) Act 1995, which requires an operator’s licence unless a statutory exemption applies. Section 2(2)(d), Regulation 33 and Schedule 3 of the Goods Vehicles (Licensing of Operators) Regulations 1995 must be read together.
2. Paragraph 23 of Schedule 3 is directed to vehicles actually carrying out cabotage. It does not exempt a vehicle merely because its carrier holds a Community authorisation or is entitled in principle to perform cabotage. Cabotage under Community Council Regulation (EEC) No. 3118/93 is national road haulage in another Member State carried out on a temporary basis.
3. Non-temporary or full-time operation in the United Kingdom is therefore outside cabotage. If no cabotage operation exists, paragraph 23 does not apply. Article 8, including its host-State penalty regime, and the wider cabotage Regulation cannot be invoked to avoid the domestic licensing requirement.
4. The court rejected the suggested strict distinction between vehicles as objects and vehicles according to their use. Schedule 3 had developed through successive amendments, and each exemption had to be construed individually. The predecessor Schedule 5 to the Goods Vehicles (Operator’s Licences, Qualifications and Fees) Regulation 1984 reinforced the danger of seeking overall drafting consistency.
5. The licensing and detention scheme was not discriminatory. Regulation 10 of the Goods Vehicle (Enforcement Powers) Regulations 2001 did not impose a separate burden of proof; in any event, the relevant question was whether the operator had a licence, and that question applied equally to domestic and non-domestic hauliers.

The Transport Tribunal’s findings that the vehicles were not performing cabotage and that their detention was justified were upheld.

1. Transport Tribunal — found that the Belgian companies were being used to continue UK operations without a UK operator’s licence, held that the vehicles were not performing cabotage, and refused their return.
2. Court of Appeal (Civil Division) — dismissed the appeal and upheld the Tribunal’s decision: [2008] EWCA Civ 534.