Busman lobbies EU Commision Vice-President over invasion of Donegal firms

Mr Leonard, of Leonard Travel, claims up to 90 per cent of Western Education and Library Board (WELB) private hire Home to School transport tenders in Londonderry and its hinterland from Strabane to Claudy are held by ROI firms.

The Federation of Passenger Transport NI (FPTNI) estimates at least 50 schools in the Londonderry area use firms from across the border and that this is threatening to put local operators out of business.

Back in September Mr Leonard told the Sentinel the local Home to School market was sewn up by southern firms and argued this could be in breach of a European Commission (EC) ‘cabotage’ directive which governs the operation of the international market for bus and coach hire services in the EU.

Under EU law ‘cabotage operations’ are national road passenger services for hire and reward carried out on a temporary basis by a carrier in a host member state or the picking up and setting down of passengers within a host state.

Mr Leonard said EU directive EC 1073/2009 says there may be grounds for refusal if a service seriously affects the viability of a comparable service operated under one or more public service contracts.

The local bus operator also argued that non-residents can be refused if the principal purpose of the service is not to carry passengers between stops located in different member states and if it is not carried out on a “temporary basis.”

Since September the FPTNI have been lobbying EU Transport Commissioner Siim Kallas on behalf of Mr Leonard and his fellow NI bus companies.

And Mr Leonard believes correspondence from Commissioner Kallas’ Deputy Head of Cabinet, Keir Fitch - based on the advice of experts from the Commission’s Directorate General - shows that the DoE could stop Donegal firms operating here.

In a document addressed to FPTNI on October 3, Mr Fitch wrote: “The basic position is that there are no limits on the journeys which transport operators from another Member State may provide once they are in connection with an international service - subject, of course, to compliance with health and safety and social measures.

“For regular (essentially scheduled) services, cabotage is only allowed provided the vehicle is running an international journey, and subject to safeguards, for Public Service Obligation (PSO) funded routes and against abuse.

“Similarly, ‘occasional’ or ‘special regular’ (e.g. contracted school) international services may carry out cabotage.

“For purely, domestic services, Member States may also authorise non-resident operators on a non-discriminatory basis. The Commission thus sees no reason to consider a further market opening - and so no need for an advisory group.”

Mr Leonard argues that this interpretation of the cabotage rule means Donegal firms would need to be making an international journey (i.e. from Raphoe to Londonderry, for example) to be allowed to carry out regular or special regular services.

He says Mr Fitch’s correspondence also means that for domestic services - if the DoE “may also authorise non-resident operators on a non-discriminatory basis” it may also withhold this authorisation. He believes the DoE are not doing enough to protect local bus operators. The DoE disputes this.

Mr Leonard also says further correspondence from EU lawyer Krimena Mileva suggests non-resident operators should only be allowed to provide domestic services if they carried out on a temporary basis. He says the three year Home to School contracts are not temporary.

Ms Mileva was asked by FPTNI if a non-resident operator was allowed to come into another country and lift passengers from that country and take them to a destination in that country on a regular basis as in the case of school transport.

She replied on October 17 that: “In accordance with Article 3 (1) in conjunction with Article 2 (2) (a) of Regulation 12/98 such operations may be authorised provided they are covered by a contract concluded between the organiser and the carrier and they are performed on a temporary basis.”

According to Mr Leonard all of this supports his argument that the statutory agencies are not doing enough to protect local businesses which are being frozen out of their own market.

The current state of affairs is having a dramatic impact on his own business.

“I’m very nearly out of business. I was gathering up 14 vehicles to put out on the school contracts. I got one contract. Out of the 14 vehicles I have had one on contract to the education board. That’s what I got.

“I was sitting then with 14 vehicles. I’ve started to sell them off. If I could, I would have sold them all but at the moment with this climate there is nobody buying buses. I’ve sold four in two months. I’ve eight left but there are drivers out of work, drivers who I would’ve given work to out of work because I don’t have it.”

He said some schools in the Western Education and Library Board (WELB) were using southern firms for almost all their Home to School contracts.

“Have the Driver and Vehicle Agency (DVA) got the right to stop this? We believe they do have from this letter from Keir Fitch and I have said that since 2007 and the DVA has said it cannot.

“What’s wrong is that the DVA is interpreting the EU Regulations completely wrong.”

He added: “The Republic adopts the option that we have enough operators down here, we don’t need you to do our work, which is sensible.

“The DVA have said to me on three different occasions that I should take the Dublin Government up for not allowing me in to do the work down there.

“I’m saying the Dublin Government are right. They don’t need me in there, they’ve got their own operators.”

He continued: “Tell me why these firms from Donegal are doing 90 per cent of their work in NI. If that’s the case why do we need buses, why do we need operators? The whole thing is just silly. It just doesn’t make sense.”

The Sentinel asked the DoE for its interpretation of the regulations but no response was available at the time of going to press.

Previously the DoE stated: “The rules that govern access to the international market for coach and bus services are laid down under Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009.

“This rules, which fully come into effect on 4th December 2011, provides that freedom to provide services constitutes a basic principle of the common transport policy and requires that carriers from all Member States be guaranteed access to international transport markets without discrimination on

grounds of nationality or place of establishment.”