Transportation service applications to be regulated?
Major changes to the Road Transport Act are in the pipeline. The changes are intended to regulate the activities of firms that act as go-betweens in passenger services, for instance by providing mobile applications or computer software.
A new type of regulated activity
Acting as a passenger service intermediary, an activity to date not subject to regulation, is to be regulated under the Road Transport Act of 6 September 2001.
The bill amending the Road Transport Act and the Act on Drivers’ Working Hours provides for a definition of a passenger transport intermediary service intended to cover a wide range of firms. A firm that acts as a passenger service intermediary is to be deemed to be any firm that forwards orders for passenger services and does the following by delivering or providing mobile applications, computer software, ICT systems or other means of transmission:
- Enters into transportation agreements on behalf of a customer or a firm that provides a passenger service,
- Charges a fee for a passenger service,
- Enables a transportation agreement to be concluded and a fee for a transportation service to be paid.
No licence is a non-starter
According to the proposed amendment, a licence will be required to launch and perform a passenger transportation intermediary service. This will be a new type of licence: a licence to act as a go-between in passenger services.
A firm applying for a licence of this kind will have to prove among other things that its financial standing is sufficient to guarantee the launch and operation of a road transport business, which is defined as having access to funds or assets of a value of PLN 5000. It will also have to demonstrate that it is legally entitled to make use of a motor vehicle or vehicles used for the road transportation. These vehicles will be subject to technical requirements specified in the Road Traffic Law.
The authority with the power to grant, deny, modify or revoke a licence to provide road transportation services in Poland will be the Chief Road Transport Inspector. A template for the licence will be specified in the relevant Minister of Transport regulation.
Electronic records and a register also required
Holding a licence is not the only obligation resting with firms that act as a passenger service intermediary. A firm of this kind will also be required for instance to keep records in electronic form of all of the orders from customers forwarded to drivers, and to keep a list in electronic form of businesses (drivers) to whom it forwards the orders. The details that have to be recorded include the passenger service start and finishing times, the registration number of the vehicle used to perform the passenger service, and details of the business contracted to provide the passenger service. The data listed in the records and the list will have to be retained for three years. At an authority’s request, the intermediary will be required to provide the Road Transport Inspectorate or National Revenue Administration with information in the records and on the list within 14 days of receiving a notice requesting that information.
Fines and a blacklist
Anyone who provides the intermediary service without a licence will face a fine of PLN 40 000, and this penalty will also apply for failure to provide information contained in the records of all of the forwarded orders or in the list of firms whose passenger services were retained.
Also, there are plans for possible registration of a firm that acts as an intermediary in passenger services in violation of the law in a register of domains, mobile applications, software, IT systems or other means of transmission used to provide passenger transport intermediary services in breach of the Road Transport Act. This will be a public register and placement will be ex officio following acceptance by the Minister of Transport or the unit named in an announcement made by that minister. Removal from the register will only be possible if an appeal is filed by the intermediary within two months of placement on the register and is successful. A statement of grounds supporting removal from the register will have to be provided in the appeal. Information as to the result of an appeal will be provided in the form of an administrative decision issued quickly, within seven days of the authority receiving the appeal.
At this current early stage of work on the amendment, it is hard to predict whether it will be enacted, and in what form, and what effect it will ultimately have on firms in the passenger service business. Even at the moment it appears that the mechanisms that firms providing mobile transport applications use to monitor their drivers and vehicle fleet operators will be especially important.
Both partners operating vehicle fleets and individual drivers providing services directly are now required to obtain one of the licences currently specified in the Road Transport Act: a passenger service licence or licence to provide a taxi service in Poland. This is because under the amendment, using the services of unlicensed firms will be among the possible grounds for a licence to act as an intermediary in passenger services to be revoked. Where a licence is revoked, it will be possible to reapply for a licence no earlier than three years from the day on which the ruling revoking the licence became final and binding.
Preparations for the envisaged regulatory changes need to be made now, because the proposed transition provisions only give businesses 90 days to adjust to the new requirements.
Joanna Krakowiak, legal adviser, Life Science & Regulatory Practice, M&A and Corporate Practice, Wardyński & Partners
Nina Kuśnierkiewicz, Environmental Law Practice, M&A and Corporate Practice, Wardyński & Partners