In March 2008, the European Commission adopted a proposal for a Directive facilitating cross-border enforcement in the field of road safety. Whereas the European Parliament has supported the Commission’s choice of legal basis – “transport policy”, Member States were divided over this issue. Several Member States were not convinced as to the appropriateness of the legal basis chosen by the Commission. In fact, several Member States, including the UK, have stressed that several aspects of the proposal fall under the third pillar, consequently, the proposal should be adopted by the justice and home affairs council, unanimously, and under the consultation procedure.
However, in the meantime, the Lisbon Treaty, entered into force, hence, whether it is based on the "transport policy" or in the “police cooperation” provisions, the proposal would be subject to the ordinary legislative procedure and QMV in the Council. Nevertheless, being based on ‘police co-operation' chapter means that the UK may decide whether it wants to opt in or opt out from the proposal.
This proposal has been a priority for the Belgian Presidency. In fact, the Belgian Presidency ‘s draft compromise represents an improvement to the Commission proposal, as it has proposed to change the legal basis from ‘transport' Article 91(1)(c) TFEU to the ‘police co-operation', Article 87(2) TFEU. Nevertheless, the Transport Council has negotiated the proposal.
On 2 December, the Transport Council "concluded on a political agreement" on the proposal. It seems that a “proper political agreement” would be achieved once the UK and Ireland have decided whether to opt-in or opt out. The Council still has to confirm today’s agreement by adopting its common position, which will be then sent to the European Parliament for a second reading. Once there is an agreement on the final text, and the proposal is adopted, Member states will have two years to transpose the directive into national law, after it enters into force.
Now, the Government has three months to decide whether or not to opt into the proposal. The Parliamentary Under-Secretary of State, Department for Transport , Mike Penning, has said to the European Scrutiny Committee that the Government would take into account road safety, implementations costs as well as the proposal implications for the UK sovereignty. The UK does not have a higher proportion of non-resident traffic from neighbouring countries as other Member States and the proposal would entail undue burdens for the Driver and Vehicle Licensing Agency (DVLA) and UK police forces, consequently the Government should opt out.