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3 MAI 1999. - Transportation of Things by Road Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
TITLE I. - General
CHAPTER I. - Introductive provision and definitions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. For the purposes of this Act and its enforcement orders, it shall be understood by:
1° "Minister": the Minister who has the transportation of things by way in his or her powers;
2° "carriage of things by road done for own account": any transport of things by road, to the extent that the following conditions are met simultaneously:
(a) things carried, including by means of a trailer, must be owned by the company using the motor vehicle or have been purchased, sold, taken or given for rent, marketed, produced, extracted, processed or repaired by it;
(b) the things carried, including by means of a trailer, shall be brought to the company using the motor vehicle, shipped from that undertaking or moved either inside that undertaking or, for its own purposes, outside that undertaking;
(c) motor vehicles used for this transport must be owned or leased by the company;
(d) the carriage shall be an incidental activity in the entire business of the undertaking;
3° "carriage of things by road carried on behalf of others": any transport of things by road that is not referred to in 2°;
4° "paid transport of things by road": any transport of things by road carried on behalf of others, by way of counter-prestation in the form of any direct or indirect benefits, in cash or in kind; the rental of a motor vehicle with driver is assimilated to a paid transport of things by road;
5° "road coasting": any activity referred to in Article 3 and carried out by a company having no operating seat in Belgium, when the place of loading and the place of unloading of the things carried are both located on Belgian territory;
6° "automotive vehicle": any means of carriage by ground, equipped with an engine, intended to circulate by its own force, excluding vehicles on rails, mopeds, motorcycles, tricycles and engine quadricycles, as defined by the Royal Decree of 1^er December 1975 on the General Regulation on Road Traffic Police;
7° "trailer": any means of carriage by land, excluding vehicles on rails, intended to be fired by a motor vehicle;
8° Vehicle: any means of transport referred to in 6° and 7°;
9° "vehicle train": any set of vehicles attached to each other for the purpose of being driven by a single force;
10° "company": any natural person, any legal person with or without a profit, any association of persons without a legal personality and with or without a profit, and any body within the public authority, whether it has a legal personality or is dependent on an authority with that personality;
11° "Operating headquarters": a fixed establishment where the direction of the activities of the enterprise referred to in section 3 is effectively exercised, where the documents relating to these activities are kept permanently and where the company is represented by a person authorized to hire it in respect of third parties;
12° "Shipping": one or more things loaded in one or more places for a single order donor and intended to be transported in one journey and by one motor vehicle or one train of vehicles, to one or more places of unloading, for one consignee;
13° "transport commissioner": any natural or legal person who, for compensation, undertakes to carry out a carriage of goods and enforces this transport on his own behalf by third parties;
14° « commissioner- shipper » : any natural or legal person who, for compensation, undertakes to carry goods, in his or her own name but on behalf of his or her constituent, and to execute or enforce one or more related operations to such carriages such as reception, delivery to third parties carriers, storage, insurance and clearance.
CHAPTER II. - Scope of application
Art. 3. This Act applies:
1° to any paid transport of things by road, by means of a vehicle or vehicle train;
2° to any unladen movement of a vehicle or vehicle train, carried out by road, in relation to a transport referred to in 1°;
3° to the carriage of things by road carried on for own account, by means of a vehicle or train of vehicles, in cases determined in article 22, § 1^er2°, b.
Art. 4. The King determines the transport of things by road that, given their low impact on the transport market, due to the low mass of the vehicle, the nature of the things carried or the short distance travelled, do not fall under the application of this Act and its enforcement orders.
CHAPTER III. - Principles
Art. 5. § 1^er. A company with an operating seat in Belgium shall not carry out an activity referred to in Article 3, 1 and 2 if:
1° it does not hold the original of one of the transport licences referred to in Articles 15 and 16;
2° the motor vehicle used for this purpose is not accompanied by a certified copy conforming to the Minister or his delegate of one of the transport licences referred to in sections 15 and 16.
§ 2. The transport licences referred to in sections 15 and 16 shall be granted by the Minister or by his delegate to the company with an operating seat in Belgium, which meets the conditions of access to the profession and exercise of the profession referred to in Part II; these transport licences are refused or withdrawn by the Minister or his delegate if the company does not meet or no longer meets these conditions.
Art. 6. A company that does not have an operating seat in Belgium may not carry on an activity under Article 3 on Belgian territory if the motor vehicle used for that purpose is not accompanied, as the case may be, by a certified copy of the community transport licence referred to in Article 19 or by the original of one of the transport licences referred to in Articles 20 and 21.
PART II. - Access to and exercise of the profession
CHAPTER I. - Conditions
Art. 7. Any company wishing to access the profession of carrier of things by road or exercising that profession must comply with the conditions of honesty, professional and financial capacity established by or under this Act.
CHAPTER II. - Honorability
Art. 8. § 1^er. If the company is a natural person, it meets the condition of honesty when:
1° neither this physical person nor those possibly designated by it to direct the activities of the enterprise referred to in Article 3, 1° and 2° did not, in Belgium or abroad, cause a serious criminal conviction to be carried out in force of tried thing;
2° none of the persons referred to in the 1° have incured, in Belgium or abroad, serious criminal convictions, carried out in force of trial, for offences relating to:
(a) the safety of vehicles and the masses and dimensions of these vehicles;
(b) the protection of the environment from the various pollution resulting from the exercise of the profession of carrier of things by road;
(c) Road traffic police;
(d) the driving and rest times of the vehicle drivers and the use of the tachograph;
(e) paid transportation by road;
(f) the conditions of pay and work in force within the profession of carrier of things by road;
(g) mandatory liability insurance for self-propelled vehicles;
(h) the excise duty on mineral oils;
3° This natural person is not struck by any prohibition of a commercial activity enacted under Royal Decree No. 22 of 24 October 1934 relating to the judicial prohibition of certain convicts and bankrupts to perform certain functions, professions or activities.
§ 2. If the company is not a natural person, it meets the condition of honorability when none of the persons responsible for the day-to-day management of the company and when none of the persons designated to direct the activities of the enterprise referred to in Article 3, 1 and 2°:
1° did not incur a conviction as referred to in § 1^er1°;
2° did not incur convictions as referred to in § 1^er2°;
3° is struck by a prohibition imposed under Royal Decree No. 22 of 24 October 1934 referred to in § 1^erThree.
When a corporation is responsible for the day-to-day management of the business, the condition set out in paragraph 1^er also applies to all designated natural persons to direct this legal entity.
§ 3. For the application of the provisions referred to in § 1^er1° is considered a serious criminal conviction:
1° any criminal conviction that resulted in a fine greater than four thousand francs or a principal prison sentence greater than six months;
2° any criminal conviction that resulted in a fine of more than two thousand francs but not exceeding four thousand francs or a principal prison sentence of more than three months but not exceeding six months and for which, in the case concerned, the Minister or his or her delegate makes an unfavourable assessment.
§ 4. For the application of the provisions referred to in § 1^er, 2° are considered to be serious criminal convictions for offences under the above-mentioned requirements:
1° where no criminal conviction has been committed abroad:
(a) all criminal convictions that, overall, resulted in a total fine of more than two thousand francs or a total prison sentence greater than four months;
(b) all criminal convictions, which, overall, resulted in a total fine of more than one thousand francs but not exceeding two thousand francs or a total principal prison sentence of more than three months but not exceeding four months and for which, in the case concerned, the Minister or his delegate issued an unfavourable assessment;
2° where one or more criminal convictions have been committed abroad:
(a) all criminal convictions in Belgium and which, overall, resulted in a total fine of more than two thousand francs or a total prison sentence greater than four months;
(b) without prejudice to the case referred to in (a), all criminal convictions in Belgium and abroad which, overall, resulted in a total fine of more than one thousand francs or a total principal prison sentence of more than three months and for which, in the case in question, the Minister or his delegate issued an unfavourable assessment.
§ 5. § 1^er 4 also apply the following provisions:
1° it is not taken into account:
(a) convictions for a fine not exceeding seventy-five francs or a principal prison sentence greater than fifteen days;
(b) penalties or fractions of sentences with a suspended sentence if the fine is less than one thousand francs or if the principal prison sentence is less than three months;
2° for criminal fines, the additional decimals are disregarded;
in respect of convictions for offences to which the legislation relating to additional decimals on penal fines is not applicable, the amount to be taken into consideration is the quotient resulting from the division of the fine imposed by a divider to be determined by the King;
3° the appreciation of the Minister or his delegate referred to in § 3, 2 or § 4, 1°, (b) and § 4, 2°, (b) shall not intervene except after the reasoned opinion of the Commission on the Carriage of Goods by Road referred to in Article 39;
in this assessment, one or more of the following criteria are taken into account: the effect of the offences on competition loyalty and on road safety, the frequency of the offences, the evolution of the company's behaviour, the circumstances in which the offences were committed, the nature of the activities carried out, the general morality and the professional consciousness of the person in question, the history including the involvement in previous bankruptcies, the perspectives
Art. 9. The King determines:
1° the evidence of the condition of honesty;
2° the period granted to the company to produce the evidence referred to in 1°;
3° the maximum period after which the condition of honesty must be reviewed, this period not exceeding 5 years;
4° the divider referred to in Article 8, § 5, 2°, paragraph 2.
CHAPTER III. - Professional capacity
Art. 10. § 1^er. If the company is a natural person, it meets the condition of professional capacity when either that natural person or another person designated by it and who effectively and permanently directs the activities referred to in Article 3, 1 and 2° is the holder of a certificate or certificate of professional capacity.
If the company is not a natural person, it meets the condition of professional capacity when one of the natural persons who effectively and permanently direct the activities referred to in Article 3, 1 and 2°, holds a certificate or certificate of professional capacity.
§ 2. To be considered to be an effective and continuous leader in a company's transportation activity, the person who implements his or her certificate of professional capacity in that undertaking must frequently intervene in a number of specified activities; these activities can only be carried out by the person referred to in a limited number of businesses.
§ 3. An unfavourable decision for non-effective or non-permanent direction of the company's transportation activities by a person who holds the certificate or certificate of professional capacity, may be revised by the Minister or by his or her delegate.
§ 4. When one of the persons designated to direct a company's transportation activity dies, becomes physically or legally incapable of performing its duties or leaves the business in other circumstances, the company must report this event to the Minister or his delegate.
Art. 11. § 1^er. The certificate of professional capacity shall be issued by the Minister or by his delegate, in accordance with the requirements laid down by the King, to any natural person who:
1° first followed the courses organized by the minister or by the bodies which the King agrees to this effect;
2° then passed the examinations organized by a review jury that the minister constitutes.
§ 2. The professional certificate referred to in Article 10 is the document that. issued by the authority or proceeding designated for this purpose by each other Member State of the European Union or the European Economic Area, proves that a natural person has the competence required by the Member State concerned.
Art. 12. § 1^er. The King determines:
1° modes of proof of professional capacity;
2° the model of the certificate of professional capacity;
3° the list of subjects subject to courses and examinations;
4° the possible exemptions from the obligations referred to in Article 11, § 1^er;
5° the method of organizing courses;
6° the procedure for organizing examinations;
7° the procedure for the application for a review of the unfavourable decision referred to in Article 10, § 3;
8° the minimum requirements to be met by the holder of a certificate or certificate of professional capacity to be considered to be effective and permanently directing the activities referred to in Article 3, 1° and 2°;
9° the maximum period after which the condition of professional capacity must be reviewed, this period not exceeding 5 years;
10° the period granted to the company:
(a) to report to the Minister or his delegate that one of the persons designated to effectively and continuously direct the activities referred to in section 3, 1 and 2 has died, has become physically or legally incapable of performing his or her duties or has left the said business;
(b) to regularize the situation after one of the events referred to in (a).
§ 2. The King may delegate to the Minister the powers conferred on him in § 1^er5° and 6°.
CHAPTER IV. - Financial capacity
Art. 13. A company is satisfied with the condition of financial capacity when it justifies the establishment of a solidarity bond that is based on the number of vehicles for which copies, certified by the Minister or his delegate, of national transport licences or community transport licences were sought or issued.
Art. 14. § 1^er. The King determines:
1° the amount of the bond required;
2° the nature of the bonds allowed to form these bonds;
3° the model of bond certificates;
4° the assignment of bail;
5° the requirements for the bail application;
6° the obligations of the parties concerned in the event of bail and in the event of a reduction or termination of the bond;
7° the requirements for the release of bail.
§ 2. The King may delegate to the Minister the power conferred upon him in § 1^erThree.
PART III. - Transport licences
CHAPTER I. - Companies established in Belgium
Art. 15. The national transport licences allow companies with operating headquarters in Belgium to carry out the activities referred to in Article 3, 1 and 2°, within the borders of Belgium.
Licences referred to in paragraph 1^er shall be issued, upon request, to any company whose headquarters are located in Belgium and which meets the conditions of honorability, professional capacity relating exclusively to national transport and financial capacity set out in Part II.
Art. 16. The community transport licences referred to in the Community regulations concerning access to the market of goods by road in the European Union allow companies with a headquarters in Belgium to carry out the activities referred to in Article 3, 1 and 2°, both inside and outside the borders of Belgium.
Licences referred to in paragraph 1^er shall be issued, upon request, to any company whose headquarters are located in Belgium and which meets the conditions of honesty, professional capacity relating to international transport and financial capacity set out in Part II.
Art. 17. The national transport licences and, in accordance with the Community regulations referred to in section 16, the community transport licences are as follows:
1° an original that must be kept at the company's headquarters;
2° a number of certified copies that are in compliance with the Minister or the Minister's delegate, corresponding to that of motor vehicles available to the company in accordance with the limits of the financial capacity of the undertaking referred to in section 13; each copy must be on board the motor vehicle to which it relates.
Art. 18. An unfavourable decision for non-compliance with the criteria set out in section 2, 11°, concerning the company's headquarters, may be revised by the Minister or by his delegate.
CHAPTER II. - Companies established in a Member State of the European Union or the European Economic Area
other than Belgium
Art. 19. The Community transport licences referred to in the Community regulations concerning access to the market of goods by road in the European Union allow companies with a headquarters of operation in a Member State of the European Union or European Economic Area other than Belgium to carry out the activities referred to in Article 3, 1 and 2° in Belgian territory.
CHAPTER III. - Companies established outside the European Union and the European Economic Area
Art. 20. International transport licences and similar documents allow companies that do not have an operating seat in a Member State of the European Union or the European Economic Area, to cross the borders of Belgium and to carry out activities referred to in Article 3 without, however, carrying out road cabotage.
These licences are issued on request under the following conditions:
1° in the presence of regulations of the European Union or bilateral or multilateral agreements concluded by the European Union or the King, international transport licences are issued in accordance with such regulations or agreements;
2° in the absence of any regulations or agreements referred to in 1°, international transport licences are issued as long as:
(a) reciprocity is granted by the country of registration of the vehicle concerned;
(b) the King did not suspend the issuance of the international transport licences in question;
(c) their delivery shall be carried out within the limits and conditions established by the King in accordance with the legislative and regulatory provisions relating to the import, export and transit of the goods.
Art. 21. The cabotage licences and the documents assimilated allow companies with no operating seat in a Member State of the European Union or the European Economic Area to cross the borders of Belgium in order to carry out road cabotage.
These licences are issued, upon request, in accordance with Community regulations or bilateral or multilateral agreements relating to the transport of things by road concluded by the European Union or by the King.
CHAPTER IV. - Implementation
Art. 22. § 1^er. The King determines:
(1) the terms and conditions relating to the application for a review of the unfavourable decision referred to in section 18;
2° the cases for which, in the absence of reciprocity in favour of companies established in Belgium, an international transport licence or a cabotage licence is also required:
(a) for trailers registered in a State not a member of the European Union or the European Economic Area and used to cross the borders of Belgium, including to carry out road cabotage;
(b) for vehicles registered in a State not a member of the European Union or of the European Economic Area and used to cross the borders of Belgium, including to carry out road cabotage, on the occasion of transport of things by road carried on its own account;
3° documents that may be considered for transport licences and the conditions of such assimilation;
4° the possible dispensations of transport licences;
5° the modalities for their issuance, replacement, renewal and delisting;
6° the requirements and procedures for their refusal and withdrawal;
7° the conditions of their validity;
8° the amount of royalties to be levied for the benefit of registered organizations, in return for services presumed in the preparation and issuance of transport licences;
9° the manner in which royalties are collected and the amounts for payment of stamp fees;
10° the model of transport licences;
11° advertising to be given to the issuance and delisting of transport licences;
12° any statistical information to be provided by companies.
§ 2. The King may delegate to the Minister the powers conferred on him in § 1^er, 3°, 5°, 9° and 10°.
PART IV. - Car letters
Art. 23. For any consignment, a consignment note must be established.
Art. 24. § 1^er. The King determines:
1° the different models of car letters and the indications that must be included therein;
2° the number of copies of the letters of car and the use that must be made of it;
3° the bodies authorized to issue the consignment letters and the conditions of such issuance and the control thereof.
§ 2. The King may delegate to the Minister the powers conferred on him in § 1^er.
PART V. - Control
CHAPTER I. - Qualified officers
Art. 25. Without prejudice to the provisions of paragraph 2, the King shall determine the categories of agents of the authority responsible for overseeing the application of community regulations in the matter of road transport, this Act and its enforcement orders.
Agents belonging to one of the categories referred to in paragraph 1^er are responsible for the application of sections 32 and 33 provided that they have been individually designated for this purpose by the Attorney General to the Court of Appeal in the jurisdiction of which they have their administrative residence.
CHAPTER II. - Research and recognition of offences
Art. 26. § 1^er. The agents referred to in section 25 shall have access to any vehicle and buildings assigned to the professional activities of the carriers, their policy-holders and anyone involved in the execution of a transportation of things subject to the Community regulations concerning the carriage of things by road, this Act and its enforcement orders; only residential premises are excluded from the application of this provision.
§ 2. At the request of an officer referred to in section 25:
1° the original of one of the transport licences referred to in Articles 15 and 16 shall be submitted to the operator seat of any enterprise carrying on an activity referred to in Article 3, 1° and 2°;
2° Every driver of a vehicle used for the operation of the activities referred to in Article 3 shall be required to present immediately to the driver:
(a) as the case may be, a certified true copy referred to in 17, 2°, a certified true copy of a transport licence referred to in section 19, or the original of one of the transport licences referred to in sections 20 and 21;
(b) in the case of rental or financing of the motor vehicle:
b.1. the original or a certified copy conforming to the municipal administration of the rental or rental-financing contract of this motor vehicle;
b.2. if the driver is not himself the one who hires, the original or a certified copy conforming to the municipal administration, the driver's employment contract or a recent salary card;
(c) if the vehicle is used for the operation of the activities referred to in section 3, 1°: the consignment note referred to in section 23;
(d) the individual document referred to in Article 11 of the Royal Decree of 8 August 1980 concerning the holding of social documents; this individual document is required only if the driver's status is one of the following:
- be bound by a contract of employment;
- without being bound by such a contract, provide benefits under the authority of another person;
- without working under the authority of another person, be nevertheless subject, in whole or in part, to the social security legislation of workers;
3° any carrier, order donor, shipper, transport assistant, renter of a vehicle and any company engaged in the rental-financing of vehicles is required to provide any information, to satisfy its summons, to produce, without displacement, its books and other professional documents, to allow it to take copies or extracts of these books or documents or to make them available to it; these operations may also be carried out at the operating headquarters of the aforementioned persons.
§ 3. The agents referred to in section 25 are required to assist each other.
Art. 27. Except in the case of the application of sections 32 and 33, the agents referred to in section 25 shall find the offences of community regulation in the matter of carriage of things by road, this Act and its enforcement orders, by verbatim records that are held to the contrary.
Copy of the minutes is sent to the offenders within fifteen days of the finding of the offences.
CHAPTER III. - Carriage of things by road by means of a vehicle without a valid transport license
Art. 28. § 1^er. Any person who carries things by road by means of a vehicle not covered by a valid transport licence or by an assimilated document is required, at the intervention of an agent referred to in section 25, to demonstrate that:
1° or a carriage of things by road not subject to this Act and its enforcement orders;
2° is a paid transport of things by road, carried out by means of a vehicle not subject to the transport licence, in accordance with this Act and its enforcement orders.
§ 2. Any paid transport of things by road carried out by means of a vehicle or train of vehicles whose total mass in charge or whose dimensions are greater than the authorized standards is considered to be carried out without a valid transport licence.
Any carriage of things by road carried on its own account in the same circumstances as those set out in paragraph 1^er is assimilated to a carriage made without a valid transport license.
CHAPTER IV. - Implementation
Art. 29. The King designates the authority responsible for communicating to other Member States of the European Union or the European Economic Area or receiving from them the information prescribed by the Community regulations concerning the transport of things by road and relating to offences committed by companies.
PART VI. - Sanctions
CHAPTER I. - ex officio measures
Art. 30. Where the evidence referred to in section 28 cannot be provided, the officer referred to in section 25 who finds that a carriage of things by road is carried out by means of a vehicle not covered by a valid licence or copy of a transport licence or by an assimilated document may, without prejudice to the provisions of section 27:
1° force the driver either to return to the place of loading and to unload the vehicle, or to transship the load on a vehicle that has been issued a transport license; in this case, the return to the place of loading, unloading or trans-shipment and the operations that they require are carried out at the expense and risk of the perpetrator of the offence, who remains responsible for the agrarian or loss of unloaded or trans-shipped things and the delay in their delivery;
2° to carry out, at the expense and risk of the perpetrator of the offence, the immobilization of these vehicles until the unloading or trans-shipment referred to in 1° could have been operated.
Art. 31. § 1^er. Any transportation licence, any copy of a transport licence or any document similar to it that has been the subject of a withdrawal decision, found in the possession of the licensee or its attendants, shall be immediately seized by the agents referred to in section 25 and transmitted to the Minister or his delegate.
§ 2. Any transportation licence, copy of a transportation licence or any similar document found in the possession of a person other than the licensee or its attendants shall be removed by the agents referred to in section 25 and transmitted immediately to the Minister or his delegate.
With respect to companies with an operating seat in Belgium, the national transportation licence or its copy or community transport licence or its removed copy may only be returned to the licensee after three months of the date of the removal, unless the said licensee is in good faith, in particular if it has declared the loss or theft of the document, prior to the finding referred to in paragraph 1^er.
CHAPTER II. - Perception and consignation of an amount when finding certain offences
Art. 32. § 1^er. In the event of a finding in a public place of one of the offences under this Act and its enforcement orders referred to in section 36, it may, if the act has not caused injury to another person and by the agreement of the perpetrator of the offence, be collected, either immediately or within a time specified by the King, an amount whose amount cannot be greater than the maximum of the fine provided for that offence.
§ 2. The payment extinguishes the public action, unless the Public Prosecutor's Office notify the interested party in the month from the day of payment that it intends to carry out this action.
The notification shall be made by fold recommended to the position; it is deemed to be made on the first business day following that of the deposit made at the post.
Art. 33. § 1^er. If the perpetrator of the offence, found in a public place, does not have a fixed domicile or residence in Belgium and does not immediately pay the proposed amount, he must record in the hands of the agents referred to in Article 25 an amount intended to cover the fine and any legal costs.
§ 2. The vehicle driven by the perpetrator of the offence shall be held at the cost and risk of the offence, until such sum has been paid and the justification for the payment of any vehicle retention costs.
§ 3. If the amount due is not paid in the non-six-hours from the date of the offence, the seizure of the vehicle may be ordered by the Public Prosecutor's Office.
A notice of seizure is sent to the owner of the vehicle within two business days.
The vehicle remains at the expense and risk of the offender for the duration of the seizure.
The seizure is waived after justification for the payment of the amount to be recorded and any costs to keep the vehicle.
§ 4. If the exercise of public action results in the conviction of the person concerned, the following provisions apply:
1° where the legal costs due to the State and the fine pronounced are less than the amount collected or recorded, the surplus shall be returned;
2° where the vehicle has been seized, the judgment shall order that the competent administration for the management of the Domains proceed to the sale of the vehicle, in the absence of payment of the fine and legal costs within forty days of the pronouncement of the judgment; this decision is enforceable notwithstanding any appeal.
When the legal costs due to the State, the fine imposed and the possible costs of keeping the vehicle are less than the proceeds of the sale, the surplus shall be returned.
§ 5. In the event of the acquittal of the person concerned, the amount collected or recorded or the vehicle seized shall be returned; the possible costs of keeping the vehicle are borne by the State.
§ 6. In the event of a conditional sentence of the person concerned, the amount collected or recorded shall be returned after deduction of court fees; the seized vehicle shall be returned after payment of court fees and justification for payment of any costs for the preservation of the vehicle.
§ 7. When the public prosecutor decides not to pursue or when the public action is switched off or prescribed, the recorded amount or the seized vehicle shall be returned.
§ 8. Where, pursuant to section 216bis of the Code of Criminal Investigation, the amount determined by the Public Prosecutor's Office is less than the amount collected, the surplus is returned.
§ 9. The provisions of this section shall not apply where the offence has been committed by a member circulating for the purposes of the service or by one of the persons referred to in sections 479 and 483 of the Code of Criminal Investigation.
Art. 34. The King determines:
1° the amount of the amount to be charged referred to in Article 32, § 1^er and the modalities of its perception;
2° the amount of the amount to be recorded under Article 33, § 1^er and the modalities of his perception.
CHAPTER III. - Criminal provisions
Art. 35. § 1^er. Offences to this Act and its enforcement orders, referred to in section 36, are punishable by imprisonment from eight days to six months and a fine of fifty to ten thousand francs, plus additional decimals, or only one of these penalties, without prejudice to damages if it is purchased.
The provisions of Book I of the Criminal Code, including Chapter VII and Article 85, apply to these offences.
§ 2. In the event of a recidivism within two years of the conviction, the penalty shall not, without prejudice to section 56 of the Criminal Code, be less than double the sentence imposed previously by the head of the same offence.
§ 3. In the event of a conviction for remunerated carriage by means of a vehicle not covered by a transport licence, in accordance with the provisions of this Act and its enforcement orders:
1° the judge may order the confiscation or temporary immobilization of the vehicle; in the event of a temporary immobilization, the judge determines the duration of the temporary immobilization and indicates where the vehicle will be placed on the chain at the owner's expense and risk;
2° damages awarded to the civil party are preferred on the vehicle used to commit the offence. This privilege takes place immediately after that provided for in section 20, 5° of the Act of 16 December 1851 on the revision of the mortgage regime.
§ 4. By derogation from article 43, paragraph I of the Criminal Code, the confiscation of the vehicle may only be imposed for offences under this Act and its enforcement orders in the case determined in § 3.
Art. 36. The transgression of the provisions of this Act and its enforcement orders shall be punishable by:
1° the obligation to hold a valid transport licence in accordance with Articles 5, §§ 1^er and 6 and, in the cases fixed by the King, pursuant to Article 22, § 1^er2°;
2° the deadlines for honesty and professional capacity, fixed by the King under articles 9, 2° and 12, § 1^er10°, a);
3° the obligation of effective and permanent direction of the business by the person designated to assert his or her professional capacity, in accordance with section 10;
4° the bonds of bonds, fixed by the King under Article 14, § 1^er6°;
5° the obligation to return the transport licences that have been the subject of a withdrawal decision, fixed by the King under Article 22, § 1^er6°;
6° the requirements relating to the validity of the transport licences, fixed by the King under Article 22, § 1^er7°;
7° the obligations relating to the payment of royalties, fixed by the King under Article 22, § 1^er8° and 9°;
8° the obligation to provide statistical information, possibly fixed by the King under Article 22, § 1^er12°;
9° the obligation to establish a consignment note, as set out in Article 23 and the related obligations, established by the King under Article 24;
10° the access of the agents referred to in Article 25 to vehicles and buildings, in accordance with Article 26, § 1^er;
11° the detention and presentation to the agents referred to in Article 25, of information and documents determined and the summons by these agents, in accordance with Articles 26, § 2 and 28.
Art. 37. § 1^er. shall be punished in the same way as the perpetrators of the contraventions and offences committed by the company, the principal, the shipper, the transport commissioner or the shipper commissioner:
1° which, prior to the execution of a transport of things subject to this Act and its enforcement orders, will knowingly fail to ensure that the required transport licence has been issued for the motor vehicle used and that the required consignment note has been established;
2° who knowingly have given instructions or made acts that have caused the following offences, which, by promises or threats, have directly provoked these offences or have cooperated directly with their commission:
(a) exceeding the permissible maximum mass and dimensions of vehicles;
(b) non-compliance with vehicle loading safety requirements;
(c) failure to comply with the requirements for driving and rest periods of vehicle drivers;
(d) exceeding the maximum permissible speed of vehicles.
§ 2. shall be punished in the same way as the carrier if the carrier is a natural person - or, if the undertaking is not a natural person, in the same way as the natural person to whom the offences committed by that undertaking must be charged - the holder of the certificate or certificate of professional capacity that has not effectively and permanently directed the activities of the enterprise referred to in Article 3, 1° and 2°, in accordance with the provisions of Article 10.
PART VII. - Transport contract
Art. 38. § 1^er. The provisions of Article 1^er, points 2 and 3 as well as articles 2 to 41 of the Convention relating to the Contract for the International Carriage of Goods by Road, abbreviated CMR Convention, signed in Geneva on 19 May 1956 and approved by the Law of 4 September 1962 and the provisions of the Protocol to the above-mentioned Convention, signed in Geneva on 5 July 1978 and approved by the Law of 25 April 1983, are applicable to the national carriage of things by road.
§ 2. Articles 1^er 7 and 9 of the Act of 25 August 1891 revising the title of the Code of Commerce concerning contracts of carriage are not applicable to the carriage of things by road.
§ 3. The provisions of §§ 1^er and 2 do not apply:
1° to postal transport carried out in a public service;
2° to funeral transport;
3° to moves.
§ 4. Recursory actions deriving from the contract for the carriage of goods by road must, under penalty of loss, be filed within one month of the date of the summons which gives rise to the appeal.
§ 5. For the purposes of this title, the transport commissioner is considered to be a carrier with respect to its contractual obligations and responsibilities.
PART VIII. - Commission on the Transport of Goods by Road
Art. 39. § 1^er. A commission shall be established with the competent authority for the carriage of things by road under the name of Commission on the carriage of goods by road.
§ 2. The functions of the Commodity Transport Commission are as follows:
1° give a reasoned opinion on any questions relating to the transport of things by road that it considers appropriate and report to the Minister;
2° give, at the request of the Minister, a reasoned opinion on any matter relating to the carriage of things by road;
3° give the Minister or his delegate a reasoned opinion, prior to any assessment of the condition of honesty, in accordance with Article 8, § 5, 3°;
4° give the Minister or his delegate a reasoned opinion, prior to any revision of an unfavourable decision:
(a) for non-effective or non-permanent direction of the company's transportation activities by a person who holds the certificate or certificate of professional capacity, in accordance with Article 10, § 3;
(b) for failure to meet the operating seat criteria set out in section 18.
§ 3. The King determines:
1° the composition of the Commission on the Transport of Goods by Road;
2° the pre-examination procedure and the functioning of the commission.
§ 4. The King may delegate to the Minister the powers conferred on him in § 3, 2°.
§ 5. The Minister shall appoint the Chairperson and members of the Commodity Transport Commission by road and their alternate.
PART IX. - Steering Committee on the Transport of Goods by Road
Art. 40. § 1^er. A committee shall be established with the competent authority for the transport of things by road under the name of the Committee for Consultation on the Transport of Goods by Road.
§ 2. The Steering Committee on the Transport of Goods by Road consists of representatives of the relevant ministerial departments and professional organizations representing the transport of things by road; it meets at the request of one of the above-mentioned parties.
Its function is to allow:
1° to the Minister or his delegate to inform the aforementioned professional organizations of any matter that may be of interest to the aforementioned sector;
2° to the aforementioned professional organizations to submit to the relevant ministerial departments the problems of the sector they represent;
3° to the two parties referred to above to deliberate on any issue relating to the transport of things by road.
§ 3. The King determines:
1° the composition of the Commodity Coordination Committee by road;
2° the functioning of this committee.
§ 4. The King may delegate to the Minister the powers conferred on him in § 3, 2°.
§ 5. The Minister appoints the Chair of the Commodity Transport Coordination Committee by road.
TITRE X. - Amendments, abrogations and entry into force
Art. 41. § 1^er. Section 20, 5° of the Act of 16 December 1851 on the revision of the mortgage regime was supplemented by a second paragraph, which reads as follows: "The damages to the civil party on the vehicle that was used to commit the offence. "
§ 2. The following amendments are made to the Act of 18 February 1969 on Measures for the Enforcement of International Treaties and Acts on Road, Rail or Inland Waterway, as amended by the Acts of 6 May 1985, 21 June 1985 and 28 July 1987:
1° to Article 2, § 2, the words "if it is the property of the perpetrator of the offence, the perpetrator or the accomplice" are deleted;
2° to Article 2, § 3, the words "when the property belongs to the perpetrator of the offence, the perpetrator or the accomplice" are deleted;
3° to Article 3, § 1^er, paragraph 2, the word "five" is replaced by the word "15".
Art. 42. The law of 1^er August 1960 relating to the paid transport of things by motor vehicles, as amended by the laws of 10 October 1967 and 18 November 1977, Royal Decree No. 239 of 31 December 1983 and the laws of 6 May 1985, 21 June 1985 and 21 May 1991, is repealed.
Art. 43. The King shall determine the date of entry into force of this Act, with the exception of sections 37, § 1^er and 38 who enter into force on the tenth day following the day of the publication of this Act to the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 3 May 1999.
ALBERT
By the King:
Minister of Transport,
Mr. DAERDEN
Seal of the state seal:
The Minister of Justice:
T. VAN PARYS
____
Note
(1) House of Representatives
Session 1998-1999.
Parliamentary documents:
1743/1 - Bill.
1743/2 - Amendments.
1743/3 - Amendments.
1743/4 - Amendments.
1743/5 - Opinion of the Council of State.
1743/6 - Amendments.
1743/7 - Report.
1743/8 - Text adopted by the Commission on Infrastructure, Communications and Public Enterprises.
1743/9 - Amendments.
1743/10 - Articles adopted in plenary meeting.
1743/11 - Text adopted in plenary and transmitted to the Senate.
Anals parliamentarians.
Discussion - Session of January 13, 1999.
Adoption - Meeting of 21 January 1999.
Senate.
Session 1998-1999.
Parliamentary documents:
1-1242/1 - Bill passed by the House of Representatives.
1-1242/2 - Amendment.
1-1242/3 - Amendment.
1-1242/4 - Report.
1-1242/5 - Text adopted by the Commission on Finance and Economic Affairs.
1-1242/6 - Decision not to amend.
Annales parlementaire :
Session of 1^er April 1999.