Highway Law – attribution to employers of breaches of a behavioural duty pertaining to road transport drivers
Mere social administrative offence;
Burden of proof;
Principle of guilt;
Presumption of guilt;
European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR).
RULING No. 45/14
9 of January of 2014
The Court found no unconstitutionality in a norm that generically makes companies responsible for any infractions committed by drivers in their service, even outside Portuguese territory. The norm creates a rebuttable presumption (praesumptio iuris tantum) that responsibility for a breach of a duty to behave lawfully can be attributed to the employer of a road transport driver, although this responsibility is excluded if the company demonstrates that it organised the driver’s work in such a way that the latter was able to comply with the provisions of both the European Regulation on the provision of a road transport control device and the Regulation of the European Parliament and the Council on the harmonisation of certain social legislation relating to road transport. The legal presumption is that if a driver does not fulfil a duty established by law, and that failure is typified as an administrative offence (as opposed to a crime), the infraction in question occurred because the employer did not take the necessary measures that might have prevented the occurrence of the administrative offence event. The natures of administrative offences and penal infractions are different, and this difference led the Court to find that the norm before it could not be considered to violate the penal principle of guilt, or indeed any other constitutional parameter.
This concrete review case was obligatorily brought by the Public Prosecutors’ Office because the court a quo had refused to apply a norm contained in the Law that transposed a European Directive and regulates the regime for imposing sanctions for breaches of the provisions of the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR), on the grounds that the norm was unconstitutional. The sanctions imposed by this Law include those regarding breaches of the norms on driving times, breaks and rest times and on controlling the use of tachographs in the road transport business.
The objectives of the international regulations on this issue were to harmonise the conditions under which road transport enterprises compete with one another (they must all incorporate the expenses linked to working conditions and road safety into their business costs), and to improve both working conditions and road safety.
This subject had already been regulated in Portugal by a 1989 Executive Law, which was itself designed to comply with the AETR. However, this Executive Law did not include a precept that expressly attributed the responsibility for infractions linked to working and rest times to the employer or the worker. 1999 saw the approval of a new general regime governing labour-related administrative offences, which said that employers were generically responsible for labour-related infractions. A Labour Code was passed in 2003, but the absence from it of a norm of this nature led to the understanding that it was necessary to demonstrate that an employer was actually responsible for the material commission of an administrative offence in order for the employer to be held legally liable.
Against this background, Regulation (EC) no. 561/2006 of the European Parliament and the Council entered into force in 2007. It laid down that transport enterprises are responsible for any infraction committed by their drivers, even if the infraction takes place in the territory of another Member State or a third country.
The creation of this presumption dispenses with the need to allege and prove the material facts that could make the employer liable for the acts of a driver employed by it. However, employers are allowed to show that they have organised their road transport work in such a way that the driver in their service could have complied with the breached norm, whereupon the employer’s liability is excluded.
The Constitutional Court said that where administrative offences are concerned, the attribution of a fact to an agent must be based on an extensive concept of authorship under which the author of an administrative offence is considered to be any agent that contributed causally or co-causally to the occurrence of the fact. This extensive concept of authorship differs from the more restrictive penal law equivalent, and is especially obvious in cases like the situation before the Court in this case, where the facts that have been committed involve a company’s organisational and functional structure. This construction is logically derived from the existence in the law governing mere administrative offences of norms that create duties, failure to comply with which is sanctioned by fines. The imposition of duties on a wide range of agents gives them both the ability to fulfil or breach those duties, and the responsibility for such breaches. The attribution rule derived from this extensive concept of authorship means that the entity in charge will always be held liable whenever the duty it is legally required to uphold, or whose breach it is required to avoid, is not fulfilled.
Inasmuch as an employer is under a legal duty to ensure compliance with the rules regarding driving times, breaks and rest times and the control of the use of tachographs in the road transport business, it can be held liable for an administrative offence under the terms of the Law before the Court in cases in which, as a consequence of its actions, it has directly given rise to the so-called ‘anti-juridical result’, or it has causally or co-causally contributed by omission to the commission of an infraction by a driver in its service.
The Court considered that the presumption that a driver’s failure to comply with rules is caused by a defective organisation of the activity in question is not arbitrary.
Where the law governing mere administrative offences – when all that is at stake is the imposition of fines – is concerned, there can be no reservations in this respect, all the more so in the case of this particular norm, which allows the employer to demonstrate that it should avoid any responsibility for the administrative offence.
Quite apart from any other distinctions that result from the difference between the natures of acts that are unlawful under the criminal law and those that are unlawful under the law governing administrative offences, this difference conditions the impact of the principles of guilt, proportionality and sociability.
Ruling no. 336/08 (19-06-2008).