We, Beatrix, by the Grace of God, Queen of the Netherlands, Princess of Orange
Nassau, etc. etc. etc.
1. ------IND- 2003 0143 NL- EN- ------ 20030505 --- --- PROJET
Decree of
amending the Vehicle Rules with a view to including a ban on radar
reception appliances.
At the proposal of Our Minister for Transport, Public Works and Water
Management, in agreement with Our Minister for Justice and Our Minister
for Health, Welfare and Sports, of ..., No HDJZ/AWW/2003-…, Legal
Affairs Principal Directorate;
Having regard to Article 34, first paragraph, and Article 71 of the Road
Traffic Act 1994;
Having heard the Council of State (recommendation of … , No … );
In the light of the more detailed report by Our Minister for Transport,
Public Works and Water Management, in agreement with Our Minister
for Justice and Our Minister for Health, Welfare and Sports, of …, No
HDJZ/AWW/2003- …, Legal Affairs Principal Directorate;
Have approved and understood:
ARTICLE I
The Vehicle Rules shall be amended as follows:
A
A new article shall be inserted after Article 1a.5 which shall read as
follows:
Article 1a.6
1. It is prohibited to import, offer for sale, have in stock or supply radar
reception appliances capable of detecting the presence of an appliance that
is designed to establish when a vehicle has exceeded the maximum speed
limit.
2. The paragraph 1 does not apply to appliances imported into the
Netherlands and in respect of which, by means of trading documents, it is
demonstrated that these are subsequently exported to another Member
State of the European Communities.
B
A new article shall be inserted after Article 5.1.5 which shall read as
follows:
Article 5.1.6
If a motorised vehicle has been fitted with a radar reception appliance
that is capable of determining the presence of an appliance that is
designed to establish when a vehicle has exceeded the maximum speed
limit, the driver shall be prohibited to drive such vehicle and the owner or
the keeper thereof shall be prohibited to allow third parties to drive such
vehicle.
C
Article 8.1 shall now read as follows:
The infringement of Articles 5.1.1, paragraphs 1 and 2, 5.1.2, 5.1.3,
5.1.4 and 5.1.6 is a punishable offence.
ARTICLE II
This Decree shall enter into force as of [date].
Order and command that this Decree, with its Explanatory
Memorandum, be placed in the Bulletin of Acts and Decrees.
THE MINISTER FOR TRANSPORT, PUBLIC WORKS AND WATER
MANAGEMENT,
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EXPLANATORY MEMORANDUM
Introduction
The purport of this Decree is to ban radar reception appliances capable of
warning drivers that their speed is being measured. Speed checks form an
essential part of government efforts to encourage drivers of motorised
vehicles to observe existing speed limits. Exceeding speed limits causes
more road victims. The use of the appliances that are the subject of this
ban reduces the effectiveness of these checks and thus jeopardises road
safety.
Radar reception appliances capable of warning drivers that their speed is
being measured are also commonly known as radar detectors.
Radar detectors
Radars check speed by projecting certain electromagnetic waves onto
vehicles. These are reflected and returned by vehicles that are located
within a certain distance of the radar. The reflected signal is subsequently
translated into a frequency, the level of which is proportionate to the
vehicle's speed. The radar determines the speed on the basis of the
difference in frequency between the reflected and the original signal. A
radar detector in a vehicle registers these transmitted and reflected signals
and subsequently sounds a warning signal.
Purport of the ban
This Decree not only prohibits the presence of radar detectors in or on a
moving motorised vehicle, it also bans the import, offering for sale,
having in stock and supply of the appliances. It is precisely by banning
the trade in these and enforcing this ban effectively that the problem is
being tackled in a structural manner.
'Importing' shall be taken to mean introduction onto Dutch territory. The
transit of the appliances to another Member State of the European
Communities is allowed, provided that this closely follows the import, and
provided that the interested party can demonstrate the same on the basis of
trading documents. Trading documents shall be taken to mean purchase
orders, invoices or similar.
Basis of the ban
The ban on importing, offering for sale, having in stock and supplying
appliances, as provided for in Article 1a.6 of the Vehicle Rules, is based
on Article 34 of the Road Traffic Act 1994. The basis for the ban on the
presence of appliances in or on a moving motorised vehicle, as provided
for in Article 5.1.6 of the Vehicle Rules can be found in Article 71 of the
Road Traffic Act 1994.
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Reconcilability of the ban with supranational law
As already explained above, speed checks form an essential part of
government efforts to encourage drivers of motorised vehicles to observe
existing speed limits. Since exceeding speed limits leads to an increase in
the number of road victims, and the use of radar detectors reduces the
effectiveness of these checks, a ban on these appliances is essential from
the point of view of road safety. In the light of this, so as to ensure that
the ban is compatible with Community law, reference can be made to the
grounds of justification concerning law and order and public safety of
Article 30 EC.
Moreover, the introduction of this ban echoes the developments in this
area in various other Member States of the European Communities. For
example, similar bans are already in place in Belgium, Denmark, France,
Great Britain and Sweden. Germany is considering the introduction of
such a ban.
Since radar detectors work by receiving certain electromagnetic waves,
consideration has also been given to the fact whether the ban could
contravene the provisions of Article 10 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms (ECHR).
According to this article, everyone is entitled to freedom of speech. This
right also includes the freedom to receive or supply information or ideas.
This right, however, does not go so far as to provide protection with
regard to the receiving of electromagnetic waves that are not intended for
reception. The signals in question do not carry any information of any
substance and only serve to register speeding vehicles. The only
information which these signals provide is the fact that speed checks are
being carried out at a certain location, and this is exactly the type of
information that is not intended for public access.
Enforcement
The trading ban is particularly monitored by the Food and Commodities
Authority. This organisation will check the regular sales channels of the
appliances for the observation of the ban. The appliances are still
available from various shops/shopping chains and mail order companies.
The ban on importing the appliances is enforced by customs. These will
check the import of the appliances as part of their regular activities.
Since pursuant to Article 1, Section 4, of the Economic Offences Act,
infringing the provisions pursuant to Article 34, first paragraph, of the
Road Traffic Act 1994 is deemed an economic offence, this infringement
will be traced and dealt with within the framework of the Economic
Offences Act.
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The ban on the presence of the appliances in or on a moving motorised
vehicle will be enforced by the police and the Transport, Public Works
and Water Management Inspectorate as part of their regular activities. As
this enforcement falls within the scope of criminal law rather than
administrative law, any appliances found can be seized.
The Minister for Justice has asked the Board of Procurators-General, the
Corps Administrators' Consultative Body and the Council of Chief
Superintendents for their opinion on the draft Decree. The Board and
both consultative bodies have given their reaction by letter, dated 4
November 2002 and 19 November 2002, respectively. In these, only a few
observations were made of a technical nature which have not resulted in
an adjustment of the Decree.
Notification
The draft Decree was notified to the Commission of the European
Communities [notification number …/…/NL] on [date] in compliance
with Article 8(1) of Directive 98/34/EC of the European Parliament and of
the European Union of 22 June 1998 laying down a procedure for the
provision of information in the field of technical standards and regulations
and of rules on Information Society services (OJ L 204), as amended by
Directive 98/48/EC of 20 July 1998 (OJ L 217) [This has not resulted in a
reaction/This has resulted in the following reaction …]
The draft Decree has also been notified to the Secretariat of the World
Trade Organisation, in compliance with Article 2, paragraph 9, of the
Agreement on Technical Barriers to Trade that was established in
Marrakech on 15 April 1994 (Collection of treaties and conventions
1994/235).
Furthermore, on [date], the draft Decree was submitted to both chambers
of the States-General in accordance with Article 2b of the Road Traffic
Act 1994. [This has not resulted in a reaction/This has resulted in the
following reaction …]
THE MINISTER FOR TRANSPORT, PUBLIC WORKS AND WATER
MANAGEMENT,
Roelf H. de Boer
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