Act To Amend Act Of 19 December 2006 On The Safety Of Railway Operations, To Establish Administrative Fines (1)

Original Language Title: Loi modifiant la loi du 19 décembre 2006 relative à la sécurité d'exploitation ferroviaire, en vue d'instaurer des amendes administratives (1)

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belgiquelex.be - Carrefour Bank of Legislation

28 DECEMBER 2011. - An Act to amend the Act of 19 December 2006 relating to railway safety to introduce administrative fines (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act partially transposes Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on the security of community railways and amends Council Directive 95/18/EC on the licensing of rail inter-carriages, as well as Council Directive 2001/14/EC on the distribution of railway infrastructure capacities, the pricing of railway infrastructure and security certification, as amended by Directive 2008/57/EC of the European Parliament and the Council of 17 June 2008
Art. 3. Section 12 of the Act of 19 December 2006 on railway safety, recently amended by the Act of 26 January 2010, is supplemented by a 14° written as follows:
"14th the imposition of administrative fines. »
Art. 4. In the same Act, an article 13/1 is inserted as follows:
“Art. 13/1. § 1er. The security authority may impose an administrative fine on a railway company, the railway infrastructure manager and the holder in the event of an offence under sections 59bis and 59ter.
§ 2. An agent referred to in Article 58/1, § 1erprepares a report in the event of an offence under sections 59/1 and 59/2.
The King determines the model of the legitimation card that is presented during the control missions.
The report is dated and mentions at least:
1° the name of the alleged offender;
2° the offence;
3° the place, date and time of the finding of the offence.
The report is immediately forwarded to the direction of the security authority.
A copy of the report is sent to the alleged offender at the latest upon notification of intent to make an administrative fine.
§ 3. Management shall inform the alleged offender within fifteen days of the date of the report of the intention to impose an administrative fine. Management may extend this period if it considers it necessary for the exercise of the duties and competencies of the security authority. In addition, management may extend this period if it gives the alleged offender a time limit to terminate the offence.
The notification is made by registered mail or in the manner determined by the King, and mentions in penalty of nullity the amount envisaged by the administrative fine, and the name of the alleged offender.
This notification can only relate to facts that would have been committed less than five years before the shipment of the recommended fold.
§ 4. The alleged offender is invited to communicate his defence in writing within 30 days of notification of this notice. If the alleged offender does not have a seat in Belgium, this period is extended by fifteen days.
The alleged offender is also informed:
1° that it may, upon request, consult the documents that are on the basis of the intention to impose an administrative fine and obtain copies thereof;
2° he can comment orally on his written defence. For this purpose, the alleged offender shall submit a written request to the security authority within thirty days of receipt of the notification.
The alleged offender may be assisted or represented by a lawyer, and may call witnesses.
If the alleged offender is of the opinion that he does not have sufficient time for his defence, he or she may apply to the security authority for reasons within fifteen days. If the security authority does not rule in this matter within forty-five days, the application is deemed to be accepted. The period referred to in § 6 shall be suspended for the duration of the extension of the period referred to in this paragraph.
The security authority is loyal and impartial in the collection and communication of evidence and evidence on defence.
§ 5. When an administrative fine is imposed, the amount of the fine is adapted to the seriousness of the offence and to the extent to which it may be charged to the offender. In addition, the frequency of the offence and the circumstances under which the alleged offender committed the offence is taken into account.
If at the time of the decision to impose an administrative fine, the facts are no longer an offence within the meaning of sections 59/1 and 59/2, the administrative fine will not be imposed.
§§ 3 and 4 shall apply in the case of the appeal referred to in Article 14/5.
§ 6. The right of the security authority to impose an administrative fine expires two years after the notification of the security authority referred to in § 3.
Art. 5. Section 14/6 of the Act, inserted by the Act of 26 January 2010, is supplemented by a paragraph written as follows:
"By derogation from paragraph 3, the appeal against a decision under section 12, 14°, has a suspensive effect. »
Art. 6. In Title III, Chapter 1erin the same law, an article 58/1 is inserted as follows:
“Art. 58/1. § 1er. The King shall designate the officers of the security authority responsible for monitoring compliance with this Act and its enforcement orders.
They can:
1° freely enter, at any time and without prior warning, any rolling stock or intended to circulate on the infrastructure;
2° carry out all the findings, gather information, take statements, submit documents, documents, books and objects and seize those necessary for the control or necessary for the purpose of ending the offence.
They claim their control rights only if it is reasonably useful for the performance of their control missions.
For the purpose of carrying out their missions, they may require public force.
§ 2. He has the right to access:
1° to the domicile of the business managers, administrators, managers, directors and other staff of the company concerned, as well as to the housing and premises used for the professional purposes of natural and legal persons, internal or external, responsible for the commercial, accounting, administrative, fiscal and financial management of the company;
2° at the headquarters of the company concerned.
However, they do not have access to the premises referred to in paragraph 1er under the following conditions:
1° having received prior and written authorization from the occupant;
2° having received the prior and written authorization of the examining magistrate. In this case, they can only access the dwelling and living space between 8 and 18 hours.
§ 3. The agents referred to in § 1er are held in professional secrecy as to the information obtained in the exercise of their control missions. »
Art. 7. Section 59 of the Act is replaced by the following:
"Art. 59. Notwithstanding section 43, paragraph 3, the offences of this Act and its enforcement orders, the failure to comply with a decision by the security authority, any obstruction to the verifications and investigations of the security authority and any impediment to the action of the investigative body shall be punished by imprisonment from eight days to one year, and by a fine of only twenty-six euros to five thousand.
The provisions of Book Ier the Penal Code shall apply to offences referred to in paragraph 1er.
Paragraph 1er is not applicable to the railway, infrastructure manager and holder who commits an offence under section 59/1 that is punishable by an administrative fine.
Paragraph 1er is not applicable to the railway company, the infrastructure manager and the holder who commits an offence to an enforcement order of that law which, under section 59/2, is punished by an administrative fine. »
Art. 8. In Title III of the same Act, a chapter III, comprising articles 59/1, 59/2 and 59/3, is inserted as follows:
“Chapter III. Administrative amendments
Art. 59/1. The following offences are punishable by administrative fine:
1° the offence of Article 6, § 3, is punishable by an administrative fine of 2,000 to 4.000 euros;
2° the offence of Article 6, § 4, is punishable by an administrative fine of 2,000 to 4.000 euros;
3° the offence of Article 8 is punishable by an administrative fine of 1,000 to 2,000 euros;
4° the offence of Article 9 is punishable by an administrative fine of 2,000 to 4.000 euros;
5° the non-compliance, by the railway company or the railway infrastructure manager, of the measures referred to in section 13 is punishable by an administrative fine of 4,000 to 8,000 euros;
6° the refusal to provide the technical assistance referred to in Article 14, paragraph 3, shall be punished with an administrative fine of 1,000 to 2,000 euros;
7° the offence of Article 16 is punishable by an administrative fine of 4,000 to 8,000 euros;
8° the offence of Article 17 is punishable by an administrative fine of 4,000 to 8,000 euros;
9° the offence of article 18, first sentence, is punishable by an administrative fine of 4,000 to 8,000 euros;
10° the offence of article 18, second sentence, is punishable by an administrative fine of 4,000 to 8,000 euros;
11° the late filing of the report referred to in Article 19 is punishable by an administrative fine of 500 to 1,000 euros;
12° the non-deposit of the report referred to in Article 19 shall be punished by an administrative fine of 2,000 to 4.000 euros;
13° the incomplete filing of the report referred to in Article 19 is punishable by an administrative fine of 20 to 4.000 euros;
14° non-compliance with the obligations referred to in Article 20 is punishable by an administrative fine of 1,000 to 2,000 euros;
15° the non-immediate communication of the substantial amendments referred to in Article 24 is punishable by an administrative fine of 1,000 to 2,000 euros;
16° the offence of article 30, paragraph 2, is punishable by an administrative fine of 1,000 to 2,000 euros;
17° the non-compliance with the obligations relating to the validity of the train operator's licence, referred to in section 37/15, is punishable by an administrative fine of 2,000 to 4,000 euros;
18° the offence of section 37/4, paragraph 1er, is punished by an administrative fine of 500 to 1,000 euros per train operator;
19° unless exceptions are provided by law, failure to comply with the obligations relating to train operators' certificates in respect of infrastructure, equipment or language knowledge, referred to in section 37/15, shall be punished with an administrative fine of 2,000 to 4.000 euros;
20° the offence of section 37/9 is punishable by an administrative fine of 500 to 1,000 euros;
21° the offence of section 37/10, paragraph 3, is punishable by an administrative fine of 500 to 1,000 euros;
22° the offence of section 37/11 is punishable by an administrative fine of 1,000 to 2,000 euros;
23° the offence of section 37/13 is punishable by an administrative fine of 2,000 to 4,000 euros;
24° the offence of section 37/14 is punishable by an administrative fine of 1,000 to 2,000 euros;
25° the offence under section 37/20, paragraph 3, is punishable by an administrative fine of 4,000 to 8,000 euros;
26° the non-verification of the fact that the accompanying person holds a certificate referred to in Article 37/23, § 1erParagraph 1er, before it is authorized to perform the determinative tasks defined in the same article, is punished by an administrative fine of 2,000 to 4,000 euros;
27° the non-registration by the holder, in violation of section 38, of a vehicle in the NVR, with the name of the maintenance entity, is punishable by an administrative fine of between 1,000 and 2,000 euros;
28° non-communication or late communication to the security authority of the necessary modifications to the NVR referred to in section 38, is punishable by an administrative fine of between 1,000 and 2,000 euros;
29° the non-compliance, by the maintenance entity, of the rules stipulated in sections 39 to 42/1 concerning certification, is punishable by an administrative fine of 4,000 to 8,000 euros;
30° any obstruction to the exercise of the powers of the investigative body referred to in section 46 shall be punished by an administrative fine of 4,000 to 8,000 euros;
31° the failure to respond within the time limit of an audit, inspection or control report relating to the security rules referred to in Article 6, or relating to an approval or security certificate, shall be punished with an administrative fine of 500 to 1,000 euros;
32° the failure to take corrective action within the time limit provided, after an audit, inspection or inspection report relating to the security rules referred to in section 6, or relating to an approval or security certificate, is punished by an administrative fine of 2,000 to 4,000 euros;
33° to exceed the "immediate intervention" values of the road safety tolerances, in accordance with the basic safety parameters of the ITS Infrastructure, or not to comply with the safety procedures of the ITS Signal control and control, more than twice a year, is punished with an administrative fine of 2,000 to 4,000 euros;
34° the non-payment or late payment of royalties referred to in articles 14/1, 14/2, 14/4, 33, 33/1 and 33/2 shall be punished with an administrative fine of 20 to 500 euros.
The offences mentioned in the previous paragraph may also be committed by negligence or default of foresight.
Art. 59/2. § 1er. The King defines, by order deliberately in the Council of Ministers, the offences against the orders made pursuant to this Act which are punishable by administrative fine.
The offences are divided into three degrees.
Offences may also be committed by negligence or lack of foresight.
§ 2. First-degree offences relate to facts and behaviours that do not have an impact on the safety of individuals and that do not seriously interfere with the operation of the security authority or investigative body.
The offences referred to in paragraph 1er are punished with an administrative fine of 50 to 1,000 euros.
§ 3. Second-degree offences relate to acts and behaviours that have a direct or indirect impact on the safety of persons or that seriously interfere with the operation of the security authority or investigative body.
The offences referred to in paragraph 1er are punished with an administrative fine of 100 to 2,000 euros.
§ 4. Third-degree offences relate to acts and behaviours that are likely to cause a serious accident or accident.
The offences referred to in paragraph 1er are punished with an administrative fine of 400 to 8,000 euros.
§ 5. The King may, by order deliberately in the Council of Ministers and within the minimum and maximum limits provided for in paragraphs 2 to 4, set a minimum and maximum amount or amounts in the event of an administrative fine.
To define the degree and rate of punishment, the King takes into account the seriousness of the punishable acts and their proportionality in relation to administrative fines.
Art. 59/3. § 1er. In case of mitigating circumstances, the administrative fine may be reduced, without it being less than
1° 50 euros for first-degree offences;
2° 100 euros for second degree offences;
3° 200 euros for third degree offences;
4° half of the minimum amount of the amounts provided for in section 59/1.
§ 2. In the event of a number of offences referred to in sections 59/1 and 59/2, all administrative fines will be accumulated, although they may not exceed the maximum of the highest administrative fine.
§ 3. The security authority may provide for in its decision to impose an administrative fine only if the offender no longer commits an offence for a year, the administrative fine is null and void.
§ 4. §§ 1er to 3 shall apply in full to the appeal referred to in Article 14/5.
§ 5. If the offender is liable for an administrative fine provided for in section 59/1 and 59/2, one year after a decision by the security authority to impose an administrative fine has become final, or one year after the decision on the appeal against that decision has passed in force of a judgment, the minimum amounts defined in section 59/1, § 1er, and in article 59/2, paragraphs 2 to 4, will be doubled.
§ 6. An administrative fine cannot be imposed:
1° where the repressive judge has already imposed a penalty for the fact in question;
2° where the fact in question has already given rise to an acquittal, to a simple statement of guilt without penalty, to a suspension of the conviction or to a transaction referred to in Article 216bis of the Code of Criminal Investigation.
§ 7. If the alleged offender is criminally prosecuted for acts that are inseparably linked to the fact that the security authority intends to impose an administrative fine, the deadlines mentioned in this title are suspended until the criminal judge has ruled.
§ 8. Additional decimals referred to in Article 1erParagraph 1er, the Act of 5 March 1952 on additional decimals on penal fines also applies to administrative fines referred to in sections 59/1 and 59/2.
In its decision, the security authority refers to the increase made under the above-mentioned Act of 5 March 1952 and the amount resulting from that increase.
§ 9. The offender has completed the administrative fine a month after the decision to impose an administrative fine has become final or the decision on the appeal against this decision has passed into force. The administrative fine comes to the Treasury. The offender pays the amount to the Administration of the cadastre, registration and domains.
The clerk of the Cadastre Administration, registration and domains shall inform the security authority of the payment.
If the offender pays the administrative fine with delay, the amount will be increased in full law with a minimum of five per cent of the amount of the administrative fine.
The right to receive the administrative fine is prescribed by two years from the last day the offender should have paid. This period is suspended in the case referred to in Article 59/3, § 3. »
Art. 9. This Act is referred to as "SSICF Administrative Fines Act".
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, December 28, 2011.
ALBERT
By the King:
Deputy Prime Minister and Minister of the Interior,
Ms. J. MILQUET
The Secretary of State for Environment, Energy and Mobility,
Mr. WATHELET
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011-2012.
House of Representatives.
Documents. - Bill 53-1758/001. - Report, 53-1758/002. - Text adopted by the Commission, 53-1758/003. Text adopted in plenary and transmitted to the Senate, 53-1758/004.
Full report. - 17 November 2011.
Senate.
Documents. - Project not referred to by the Senate, 5-1335/1.