DOE ADVICE SHEET ON THE USE OF BUS OPERATORS LICENSED IN OTHER EU MEMBER STATES
This advice sheet provides guidance for organisations in Northern Ireland (NI) who use passenger transport operators based in other European countries to provide transport of passengers, with that transport of passengers wholly within NI (that is, no passengers cross the border). This advice sheet is for general reference only. Whilst every effort has been made to ensure that the information provided is accurate, it should not be treated as a complete or authoritative statement of law.
The Department of the Environment (‘the Department’) is the competent authority for the regulation of bus operators in Northern Ireland, with the Driver and Vehicle Agency (DVA) carrying out the licensing function. DVA is also responsible for monitoring the compliance of operators under national and EU law and, for ensuring that services provided by foreign operators in NI are lawful.
Different rules apply where an operator picks up passengers in their own Member State and brings them into another Member State. You can obtain guidance on the rules that apply to this type of service from DVA.
The Transport Act (NI) 1967 requires an operator who provides passenger transport services in Northern Ireland to hold a Road Service Licence (normally called a bus operator’s licence) issued by the Department. However, EU Regulation 1073/2009 allows operators who are established (licensed) in other Member States to provide passenger services within NI on a temporary basis. When such passenger transport services are provided within NI by an operator from another Member State, this is known as “cabotage”. Cabotage means that passengers are picked up and set down wholly in NI by an operator licensed in another Member State.
Cabotage operations are only lawful if they are conducted on a temporary basis and by an operator properly licensed in their own Member State. If the services provided do not fall within the definition of “on a temporary basis”, they can only be undertaken by the holder of a NI bus operator’s licence.
A bus found to be operating an unlawful service can be prohibited from continuing its journey and the operator may be subject to prosecution or have other penalties imposed. There may also be implications for the validity of insurance held by the operator.
What is “temporary”?
The EU regulation does not define “temporary” but instead sets out the criteria for assessing the temporary character of cabotage operations. Applying these criteria, the Department for Transport in Britain has set out the following guidelines.
“Cabotage operations must not be:
- frequent, regular or continuous,
- involve the vehicle returning to the Member State where it is licensed, and
- be entirely ad hoc, casual and circumstantial and at infrequent intervals”
Implications for hirers
To ensure compliance with the law, the use of passenger transport from operators licensed outside the UK for work based wholly within the UK must meet the criteria set out above.
A NI bus operator’s licence is likely to be required if the contracted transport services are:
- Undertaken wholly within NI, that is the passengers are picked up and set down within NI (for instance, picking up students to take them to or from school, or to or from sports fixtures or other events), AND the services fit any of the following criteria:-
o They are for a permanent service (for example, they are the subject of a long term arrangement for a continuous service) ;
o They are for a frequent service (for example, daily services to and from school);
o They are for a regular service (for example, weekly trips to specific events or venues); or
o They are part of a series of services provided by the same operator for the same hirer (for instance, part of an arrangement under which an operator undertakes to take students to various events or venues)
In particular, the Department has recently received legal advice that indicates that contracts with operators licensed outside UK routinely to provide home to school transport could not be considered temporary in nature as they are frequent, regular and continuous. Therefore, contracted services such as these can only be carried out by holders of an operator’s licence issued in UK.
It is likely that a one off hire to provide a stand alone service would be considered to be temporary in nature and could be undertaken by an operator licensed outside UK. However, the temporary nature of that single journey would have to be assessed alongside any other stand alone services with the same operator for similar journeys.
Given the complex nature of the rules which apply to cabotage services, DVA will be closely monitoring services provided by operators licensed outside the UK to ensure that they are complying with the legislation.
DVA will undertake roadside checks of operators and may contact the hirer directly to obtain information on the hire of the vehicle and any previous history with a view to determining if the services can be deemed to be cabotage.
Checks to make when hiring a bus
You should check that:
- The operator has the appropriate operator’s licence to carry out the service.
- If the operator is licensed in another Member State, that they have a international passenger service licence and a community licence to carry out the trip and that the service can be carried out by a foreign operator under the cabotage rules
- The operator has valid hire or reward insurance for the service to be operated
You should also always be satisfied that the vehicles to be used are safe and roadworthy and that drivers are properly licensed and trained.
You can check if an operator has a current operator’s licence in NI at www.DVANI.gov.uk (Driver and Vehicle Licensing, Commercial Licensing, List of Licensed Road Service Operators)
The Driver & Vehicle Agency
Road Transport Licensing Division
148-158 Corporation Street
Tel. (028) 9025 4129