In France, 1,200 employees die each year from work accidents. Half die while driving a vehicle. Faced with such a massacre, the public authorities have imposed, since 1is January 2017, the driver designation of company vehicles fined by speed cameras and red light.
In 2017, unaccustomed to this new legal obligation, you were 2.8 million to receive a notice of contravention (ACO) at 450 € in the mailboxes of your companies. Why, after paying 45.68 or 90 €, as you have always done, did you receive a second fine of 450 €? For many of you, it was a unfair increase of a fine already paid on time. However, this is not the case: registrations linked to a siren number in the national vehicle identification system (SIV) automatically trigger a tactical watch of the Antai. The fine for speeding lives its life, while that for non-designation arises 45 days after the date of the ACO “speed” in the event of non-designation.
Solution 1: appoint the driver within 45 days
First solution to avoid problems: do not forget to appoint the driver within 45 days. It seems simple, but invaded with paperwork, the boss of TPE-PME is easily in danger: an envelope forgotten under a pile, blind trust in an employee who is willing to pay but has no interest in losing points, a move locals no modification of the vehicle registration document, and here he is in an apocalyptic financial situation. Because the fine, which was already starting at € 450, will increase to € 675, then to € 1,875. Even more serious, at € 1,875, the fine for non-designation changes from the status of a fixed fine to that ofincreased fixed fine. And there, it is no longer the police who seek to make you pay spontaneously, it is the cash-fines which engages lawsuits with the means of the State: opinion of third party seizure holder on the company’s bank accounts, blocking the transfer of vehicle fleet registration cards, … difficult to get out of the trap!
Some are tempted to call in a lawyer, thinking in this way to defend their position in front of the police court. Depending on the legal status of your business, this is not always a good solution. Since 2017, the tenors of the Paris bar have been working to challenge a poorly written law, everyone agrees. There was the quarrel based on the difference between “legal representative” (the boss of the company) and “legal person” (the company). The criminal chamber of the court of cassation put everyone in agreement by explaining that what the legislator wanted was the name of the driver. And if this name is not communicated to theNational Agency for Automated Crime Processing (Antai) within the 45-day period, the public prosecutor (prosecutor for contraventions) can sue be the boss, or the company. The fines being multiplied by five for the companies, all the officers of the public prosecution (OMP) of France and Navarre aimed at efficiency and sued the companies!
ACO speed paid means ACO speed received! And the public prosecutors revel in this kind of situation.
Others attempted to argue that the starting point of the 45 days was unknown because it was not known whether the speed ACO had been received by the business owner. Again, failure. The court of cassation having considered that the police court has only one obligation: “ensure in the debates and the documents tendered, that proof of sending the ACO speed started the 45-day period“. And of course, the file submitted to the judge now presents a summary of the procedures undertaken by Antai, on which appears the date of dispatch of the ACO speed. Above all, the reflex of many bosses is to pay the speed fine quickly or have it paid by the employee. However, how to pay an ACO without having the electronic payment number which appears in the mail, and only in the mail? ACO speed paid means ACO speed received! And PKOs revel in this kind of situation.
PKOs who, moreover, have been rather conciliatory with the perpetrators of this offense since the implementation of the device: poorly drafted forms (but since corrected), intervention of the Defender of Rights, several million € of increases have been canceled, for respect the cash flow of companies, some very small, who had not perceived the danger of this reform of the highway code. In April 2020, the Court of Cassation spared companies without legal personality but there are still many cases in the pipeline …
Solution 2: negotiate rather than dispute
But time has passed, bosses are playing the game and 90% of automated fines result in a designation by employers. It is better because, today, the situation becomes stiffer: those who hope to obtain an indulgence when they have already received cancellations will be at their expense, at best a final rebate will be granted in very specific cases and argued … “repeat offenders” who do not want to comply with this new device or who hope to get through the drops may be disillusioned: in court, the penalty can reach € 3,750 per fine !
Conflict with the system can be a ruinous strategy for this factual offense. A robot has detected a delay and sanctions it: how do you prove something that you never took the time to do? These disputes can be very dangerous for your cash flow. With 5 badly managed speeding tickets, we are already almost at € 10,000 in criminal debt. Something to cool off any CFO!
The Versailles Police Court was seized in 2020 of 120 cases related to a large car manufacturer which, badly advised, thought it useful to bring the matter to litigation. Convictions have been raining down for a year. Despite all the talent of the renowned Parisian lawyer who defends him, this company risks assuming nearly € 240,000 in fines. Because, what do we ask the bosses, if not to say who was driving! There is nothing infringing on freedoms. The Court of Cassation once again reminded lawyers who wanted to use this tactic: the obligation to designate is not disproportionate with regard to road safety objectives.
Solution 3: good internal organization
So what can be done to avoid these hassles? First of all, a good internal organization based on appointment by the company without expecting the employee to assume an obligation which relies above all on the boss. Then, to flee the legal conflict at all costs, even if it means negotiating with the collection bodies. But to conduct this negotiation, it is absolutely necessary that your company does not appear in the eyes of the public authorities, as a rogue who tries at all costs to protect the points of the drivers’ licenses. We will therefore avoid the designation of a foreign driving license which is a false good technique. In case of discovery, the public prosecutor will take care of reminding you, at the hearing, that it is not good to take it for a fool by foiling the device.