When the use of international commercial arbitration to resolve disputes is on the rise, arbitral tribunals must play a significant part in achieving an international anti-corruption effort. Tribunals and arbitrators encounter several challenges when dealing with corruption cases. Therefore, a clear understanding of the arbitrator's role in investigating corruption, especially in the absence of party allegations should be addressed and tackled.

Corruption is regarded as a significant and important problem in international commercial arbitration, focusing on its prevention, detection, and resolution in commercial sectors. As a result, it has raised questions about what defines the arbitrator's function when accusations of corruption are raised, or allegations of corruption develop because it has been acknowledged as a subject of global and transnational public policy.

This alarming topic caused scholars in the legal field to produce various perspectives on this matter, leading to differing theories. For example, the contractual theory considers arbitrators as agents of the parties, and originate their rights and duties from their contracts. This approach suggests that instead of looking at criminal law, arbitrators should focus on the parties' commercial responsibilities and rights. Conversely, the status theory gives arbitrators judicial authority, defining their functions according to applicable jurisdictional law. This theory also states that arbitrators must ensure that their actions do not conflict with the principles of the national laws (Born 2009, 1598).

Court's interpretations of these theories vary. Some courts subscribe to the first theory and show a hesitancy to combat corruption, while other arbitrators who follow the second theory take hold of both stated and presumed corruption cases. This is due to the lack of a universally accepted understanding of the arbitrator's position in the context of corruption, making it even more crucial to address the arbitrator's role in investigating corruption cases, particularly when there is no party allegation.

Therefore, this blog endeavors to address this alarming issue and debate that leave arbitral tribunals and arbitrators in a difficult situation every time they are faced with corruption cases.

BACKGROUND

Defining the role of arbitrators in investigating corruption cases and determining their authority to address corruption even without explicit allegations from parties has long been debated in the field of arbitration. This lack of a widely accepted understanding has led to various studies and theories.

The first theory is the contractual theory. This theory believes that arbitrators derive their rights and responsibilities solely from the parties' contractual agreement (Fan 2017, 5). According to this theory, arbitrators are appointed by the parties and are expected to operate within the boundaries set by the parties' agreement.

While, on the other hand, the status theory challenges the contractual perspective (Fan 2017, 4). Advocates of this theory believe that arbitrators' rights and duties are not solely tied to party agreements, but are also derived from applicable jurisdictional or national laws. According to this theory, arbitrators have a broader role beyond party contracts. They are seen as serving not only the parties' interests but also upholding the international rule of law. In this view, arbitrators are considered "servants of truth" rather than just "servants of parties" (Uluc 2016, 245).

However, from a legal approach, arbitrators are obligated to settle disputes fairly, adhere to the arbitration agreement, prevent delays through suitable procedures, issue enforceable awards, and make good faith efforts to investigate potential criminal law violations. They must follow the arbitration process protocol set by the parties, but they can also diverge from it when necessary for fairness or efficiency. Article 18 of the UNCITRAL Model Law Act stated clearly that “the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.” (UNCITRAL Model Law 2006, 14).

Arbitrators have certain vested powers, such as determining language, venue, expert and fact witnesses, and documents. The power to investigate is a debated issue, varying under different national arbitration laws. Some laws grant arbitrators the authority to gather evidence not provided by parties, especially in cases involving corruption.

For example, Article 184 of the Swiss Federal Statute on Private International Law grants arbitrators the power to conduct evidence-taking (Swiss Federal Statute on Private International Law 1987, 62). Also, norms empower arbitrators to inquire, classify issues, evaluate facts, and request additional evidence, as seen in the LCIA Arbitration Rules (Article 22) and IBA Rules on Evidence (Articles 3(10) & 4(10)).

In addition to what is stated above, and from a social perspective, it is important to state that corruption is a significant problem in modern societies, causing harm to the economy, society, and justice systems. It's viewed as a deep-rooted issue in social structures, affecting numerous countries worldwide, including those in the EU (European Commission 2014, I). According to a survey conducted by the European Commission in March-April 2022, a majority of Europeans consider corruption unacceptable, though this belief has slightly declined since December 2019. The idea that giving presents or favors for public services is acceptable has gained popularity but is held by fewer people. Legal scholars note that attitudes towards corruption vary across countries, including within the EU (Special Eurobarometer 523 2022, 30).

A recent European Commission survey from July 2022 suggests that federal authorities should encourage trust in authorities and encourage reporting of corruption cases. Although around 6% of Europeans claim to have witnessed corruption in the past year, only 15% of these cases were reported. Nearly half of the respondents believe that corruption cases are hard to prove and investigate (European Commission 2022, 3rd paragraph).

Therefore, this debate on the role of arbitrators in investigating and combating corruption, even without specific allegations, will be explored and further discussed in the upcoming section.

DISCUSSION

In the context of the arbitral process, when a party alleges corruption to challenge the validity of an agreement, the arbitrator is obligated to investigate this claim to determine the presence of corruption. However, a key question arises when the arbitrator comes across evidence indicating that the parties might be involved in corruption or have altered the arbitration process for unlawful purposes, without any explicit claims from the parties themselves. The central debate revolves around defining the arbitrator's role in investigating corruption cases in the absence of party allegations.

It is important to note that arbitrators face significant challenges when encountering corruption cases that have not been raised by parties' claims, particularly when their authority is derived from the parties' agreement. Unlike judges in national courts, arbitrators are appointed by parties to resolve contractual disputes, giving rise to distinct expectations regarding their role in addressing corruption. The rise of corruption within arbitration demands that arbitrators not only fulfill their standard role as defined by parties' agreements but also adopt a role dedicated to serving international public policy. This transformation positions arbitrators as truth-seekers who scrutinize all aspects of a dispute, including potential corruption.

Nevertheless, the increasing global emphasis on combating corruption encourages arbitrators not to disregard evidence pointing to corrupt practices. Scholars have observed a growing trend of arbitral tribunals feeling a duty to investigate suspected corruption cases in order to protect broader public interests (de Navacelle & Musso 2022, I B). Several reasons contribute to this trend. Firstly, arbitral institutions' regulations, such as Article 42 of the ICC Arbitration Rules, mandate arbitrators to issue enforceable awards (ICC Arbitration Rules 2017). Rendering an award that acknowledges a corruption case would conflict with worldwide anti-corruption laws and policies. For instance, in France, arbitral tribunals are prompted to take up corruption cases proactively to prevent awarding decisions that involve corruption.

Secondly, experts argue that arbitrators are not solely private decision-makers; their rulings have substantial public implications (de Navacelle & Musso 2022, paragraph 19). Ignoring corruption cases, whether suspected or raised by parties, would imply a refusal to engage in the global anti-corruption movement, which could adversely affect the public interest.

Arbitrators possess the necessary authority and tools to investigate corruption cases, even those not formally alleged by parties. Various laws governing arbitral institutions confer general investigative authority upon arbitrators to establish case facts. For instance, Article 25 (1) of the ICC Arbitration Rules mandates arbitrators to ascertain case facts using all relevant means (ICC Arbitration Rules 2017). Similarly, Article 22.1 (iii) of the LCIA Arbitration Rules empowers arbitrators to investigate case facts, classify issues, and apply relevant laws (LCIA Arbitration Rules 2020). 

Moreover, it should be stated that additional powers granted to arbitrators to aid in investigating corruption cases include the ability to request testimony from impartial witnesses and demand relevant documents from parties. If parties refuse to comply with such requests, the arbitrator can interpret this refusal as a lack of document production.

Therefore, arbitrators possess the authority to investigate corruption cases, even when not prompted by parties' claims. They play a role in the global fight against corruption and must uphold their jurisdiction, even if parties contest their competence in dealing with such matters. This approach aligns with the increasing emphasis on combatting corruption and serves broader public interests. In other words,  the trend indicates that arbitrators are increasingly inclined to investigate corruption even when not explicitly alleged by parties. This transformation is driven by a commitment to fairness and the protection of international public policy. As a result, arbitrators are evolving into truth-seekers who delve into all facets of disputes, including potential corruption.

CONCLUSION

We can deduce that when claims or suspected evidence of corruption appear, arbitral tribunals, arbitrators, and the institutions charged with managing them encounter challenging situations, however, they do not all follow the same technique, approach, or outcomes. Some argue that arbitrators should only investigate corruption if parties bring allegations, while others believe arbitrators should actively pursue any suspicious evidence to maintain impartiality and uphold global public policy, given their authority to examine corruption cases. These variations illustrate the tremendous difficulties that several tribunals and arbitrators encounter when trying to solve corruption issues.

Due to the alarming nature of this topic, it is observed that arbitrators are becoming the servants of truth in investigating corruption cases even if they are not raised by parties’ allegations or even if parties try to claim that the tribunal is not competent to deal with corruption cases in order to have a fair decision and protect international public policy.

The success in combating corruption is based on how arbitrators handle such cases. Arbitrators who actively investigate corruption cases demonstrate adherence to international law and public policy, showcasing the potency of international commercial arbitration in upholding the global legal framework against corruption. Noting that this balancing of devotion and dedication, coupled with the proactive involvement of arbitrators in investigating corruption, will significantly contribute to international commercial arbitration's survival as an effective dispute resolution system.

 

For a list of references, click HERE.

Author: Layan Al Fatayri, PhD student, Marton Géza Doctoral School of Legal Studies, University of Debrecen

Kategória: Public LawBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 

• A hozzászóláshoz regisztráció és bejelentkezés szükséges

Air transport is one of the sectors most affected by the disruptions caused by the COVID-19 crisis. As a result of the government's response to the effects of the crisis, the trend towards increased competition in the sector in recent decades seems to have been reversed, at least temporarily, mainly by strengthening the market position of larger companies owned by or of strategic importance to the state. This paper presents a methodological example for examining the expansion of the state's role in a particular regulatory area. More specifically, it examines how the impact of the COVID-19 crisis can be measured in the evolution of ECJ case law on the legality of state aid.

Introduction

The Court of Justice of the European Union (hereinafter CJEU) has played a role in all of the major crises afflicting the European Union (hereinafter EU) over the past decade (Conant 2021).[1] The CJEU has had to rule on a number of disputes linked to a crisis such as those affecting the economic and financial situation in 2008, the Eurozone, democratic backsliding, migration, Brexit, the COVID-19 epidemic and Russia's aggression in Ukraine.

This paper presents the partial results of a three-year comprehensive research project.[2] The hypothesis of the research is that the regulatory role of the state in various forms (exclusive rights, ownership, subsidies, etc.), both in Europe and outside Europe, has expanded significantly over the last decade and a half, mainly following the 2008 crisis and then in the context of the fight against the coronavirus crisis. In addition, the relevant EU internal market and competition rules have become more permissive (Horváth & Bartha 2018; Bartha & Horváth 2022; Horváth 2016; Horváth 2018). The research aims to examine these developments mainly in the context of public services in the EU Member States, in particular on the basis of the case law of the CJEU. The main research question is to what extent can the process of expansion of public roles be seen as a specific outcome of the crises of the last decades (the 2008 crisis, the climate change transition to a climate crisis, and the coronavirus crisis starting in 2020), or to what extent are they independent of all these effects.

This paper is a methodological example of an attempt to answer this question in a particular regulatory area. More specifically, it will be examined how the impact of the COVID-19 crisis can be measured in the evolution of the case law of the CJEU on the legality of state aid.

1. Regulatory background

Prohibition of State aid having a distortive effect on the operation of the internal market is among the fundamental rules of European integration. As a main rule, Article 107(1) of the Treaty on Functioning of the European Union (hereinafter TFEU) provides that “any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market”. Article 107 (2) and (3) provides exceptions to the general prohibition by defining categories of acts that are or can be regarded as compatible with the internal market, further detailed rules on exemptions are laid down in secondary legislation (see Table 1 below).

In the European Union, a strict control mechanism has been established in order to filter State aids falling under the prohibition of Article 107 TFEU. In accordance with Article 108 TFEU, all new aid measures must be notified to the Commission, i. e. the main authority being responsible for reviewing the legality of State aids, in advance[3] and Member States must wait for the Commission's decision before they put the measure into effect. There are, however, certain exceptions to mandatory notification. If the Commission considers the State aid measure incompatible with the internal market, it will require the Member State to recover the aid from the beneficiary. The decisions of the Commission may be challenged before the CJEU. If the state concerned does not comply with the Commission’s decision within the prescribed time, the Commission or any other interested state may initiate an infringement procedure against this state [Article 108(2) TFEU]. Article 107 TFEU or Commission decisions may also be subject to preliminary ruling procedure under Article 267 TFEU. Article 107 TFEU may be directly invoked before the judicial forums of the Member States and national courts also play an essential role with respect to recovery of unlawful aids.

Article 107 TFEU also sets up a system of exemptions, based on specific legal grounds. These include aid that can be established without specific assessment (1) and aid that can be designated as such by specific decisions but on a discretionary basis (2) (Horváth et al. 2023).

(1) In the former context, Article 107 TFEU distinguishes between aid declared compatible with the common market and aid which, by virtue of its classification, does not distort competition. The items of aid falling within this category are (a) aid having a social character, granted to individual consumers; (b) aid to make good the damage caused by natural disasters or exceptional occurrences; (c) aid granted to the economy of certain areas of the Federal Republic of Germany affected by the division of Germany [see Article 107(2) TFEU].

(2) The second category is the aid which is compatible with the internal market on the basis of the Commission's discretionary decision. The subcategories are: (a) aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment; (b) aid to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of a Member State; (c) aid to facilitate the development of certain economic activities or of certain economic areas; (d) aid to promote culture and heritage conservation; (e) other categories of aid as may be specified by decision of the Council of the European Union.

The majority of state aid measures has been adopted on the basis of Article 107(2)(b) and 107(3)(b) TFEU. In the earlier decades of the European integration, the „remedy a serious disturbance” exemption had been applied only a few times, but this practice has changed when the 2008 economic crisis hit Europe (Rosano 2020).

After the wake of the global financial and economic crisis of 2008, the Commission assessed, within one year, over 100 national schemes or measures to support financial institutions under EU state aid rules (Lowe 2011). The Commission also adopted its first Temporary Framework (Commission 2009), as well as communications and regulations in order to allow member states to grant certain types of aid to structurally weak companies and those facing a sudden shortage or unavailability of credit in order to reduce the negative effects of the crisis. According to the Commission’s view, global crises like the one of 2008 or the COVID-19 pandemic and the ongoing Russian–Ukrainian war required (and still require) exceptional policy responses such as the “remedy a serious disturbance” exemption. These measures left more room for member states to grant state aid in those sectors that are affected by the negative economic consequences, even indirectly (Bartha & Horváth 2022).

In March 2020 the Commission adopted the COVID-19 Temporary Framework (Commission 2020), based on the authorization in TFEU to allow Member States to take exceptional state aid measures to remedy a serious disturbance across the EU economy. The Framework allowed for a wider-than-usual granting of State aid, but on condition that a number of specific requirements were met (Creve & Gaarslev 2023).

The present study examines the legal assessment by the CJEU of state aid schemes in the aviation sector adopted under the „crisis exemptions” of Article 107 TFEU and the COVID-19 Temporary Framework. Specifically, the analysis focuses on those schemes notified by Member States to the Commission, and whose legal assessment decisions were subsequently challenged before the CJEU in the context of annulment proceedings. The choice of the air transport sector was explained in particular by the fact that it was the sector which was the main target of the challenges to the Commission decisions in the first two years of the epidemic and therefore the sector for which we currently have a sufficient number of court cases.

The state aid schemes subject to this paper have been collected from a specific state aid dataset[4] developed from data in the Commission's competition law database.[5] Based on the schemes identified this way, the relevant judicial decisions have been selected from the case law database of the CJEU.[6]

2. The Case Law of the EU General Court

The basic data of the selected court cases and the outcome of the decisions are summarised in Table 1 below.

Table 1: Judgments of the CJEU on the legality of COVID-19 aid measures in the aviation sector

Source: author’s compilation based on data from CJEU Competition Law database

During the first half of 2020, the measures taken to control the spread of the coronavirus disease caused major disruptions in economic activity. Air transport was particularly affected, with a 50% decrease in the total number of flights worldwide (and more than 90% in some countries) in April and May 2020 (Abate et al. 2020; Commission 2020). To mitigate the negative impact of revenue losses, several countries, including EU Member States, have provided financial support to national airlines and other actors in the aviation value chain (Abate et al. 2020). These measures mainly aimed at ensuring essential connectivity, security of supply during the pandemic and preserving jobs in the industry (Abate et al. 2020; OECD 2021; Tuiminen et al. 2022).

The active role of the two airlines (in particular Ryanair the largest privately owned listed airline in Europe, see OECD 2021, 10) as plaintiffs (see Table 1) is mainly explained by the fact that the majority of crisis state aid granted by Member States in the air transport sector went primarily to airlines which were State-owned or of strategic importance to the government, but which were also the main competitors of the plaintiffs in the provision of passenger transport services from European airports.

In the contested decisions, the Commission declared all the state aid schemes subject to the CJEU cases listed in Table 1 to be lawful, i. e. compatible with the EU internal market. In 12 out of the 18 judgments, the General Court found that the decision at issue complied with the relevant substantive and procedural rules of the European Union, and, as Table 1 shows, annulled the Commission's decision in only 6 cases. Of the 6 cases, only 2 decisions were on the merits, in the other 4 cases the Court concluded that the Commission's decision should be annulled for breach of the obligation to state reasons, and in 3 of these decisions the annulment was also suspended pending a new decision by the Commission, which means that the implementation of the aid scheme can start.

Thus, the General Court held that the Commission's decision did not comply with EU state aid rules on the merits in only 2 out of 18 cases. It is worth taking a closer look at these decisions. In these cases, unlike in the other cases, Ryanair (and Condor) based its appeals, on the Commission’s failure to comply with the provisions of the Temporary Framework (Nicolaides 2023).

In its judgment delivered in the case Ryanair v Commission [SAS], the General Court ruled that the Commission’s decision to approve Danish and Swedish state aid to SAS in 2020 in connection with the COVID-19 pandemic was unlawful. The critical point of the state aid scheme (a recapitalisation measure) was that Denmark and Sweden had not sufficiently ensured that SAS would have an incentive to buy back the shares acquired by the Member States once SAS had overcome its financial difficulties. The Temporary Framework, however, requires that if the aid in question constitutes a recapitalisation acquiring shares in the company, then the Member State must exit the company as soon as possible once the company has regained financial stability (Commission 2020a, Creve & Gaarslev 2023). The General Court, in agreement with Ryanair’s application, argued that the Commission had failed to justify “the direct application of Article 107(3)(b) TFEU and a derogation from the provisions of the Temporary Framework requiring the inclusion of a step-up or alternative mechanism as regards equity instruments.” (Ryanair v Commission [SAS], para. 80).

In joint cases Ryanair v Commission and Condor v Commission [Lufthansa], the Court reached the same conclusion stating that, in the contested state aid scheme, the calculation of the price at which the state acquires shares upon entry into the beneficiary’s capital did not constitute an alternative set-up mechanism in the meaning of the Temporary Framework to provide an incentive to buy back state’s shareholding as quickly as possible. The Court also established that the Commission had not assessed whether the beneficiary would not have been able to obtain financing on the market at affordable terms which is a precondition for granting state aid in the form of recapitalization under the Temporary Framework. The General Court also found that, when assessing the potential risks of distortion of competition resulting from the contested aid, that the Commission failed to assess correctly whether DLH held significant market power at main airports other than Frankfurt and Munich, such as Düsseldorf and Vienna, thereby infringing the provisions of the Temporary Framework.

Conclusions

Air transport is one of the sectors most affected by the disruptions caused by the COVID-19 crisis. Most governments gave a high priority to maintaining air transport connectivity in order to protect economic activity and jobs, not only in aviation itself but also in related sectors such as tourism (Abate et al. 2020). This implies, on the one hand, a limitation of the importance of the policy priorities that shaped the evolution of the air transport sector before the crisis, especially those related to climate change and environmental protection (Abate et al. 2020). On the other hand, the development towards increased competition in the sector in the last decades seems to be reversing, at least temporarily, mainly strengthening the market position of larger companies that are state-owned or of strategic importance to the state.

The sectoral case study and related legal analysis presented above, as opposed to the method of analyzing a specific "leading case", provides an opportunity to assess the main trends and specificities of the whole body of case law related to a particular challenge in a given sector, taking into account the relevant legal and policy context. As a result, we can see that the Commission has essentially accepted the Member States' changed policy priorities in the aviation sector due to the crisis and their state aid measures constituting stronger public intervention. The case law of the CJEU has not fundamentally changed the Commission's practice, but there are several examples where the CJEU has required Member States to comply with the conditions laid down in the Temporary Framework (despite its soft law nature) more strictly than the Commission, i.e. the creator of the Framework, itself.

 

For a list of references, click HERE.

Author: Ildikó Bartha, Professor of Law, University of Debrecen, Faculty of Law and Political Studies

[1] The present paper was Supported by the ÚNKP-22-5 New National Excellence Program of the Ministry for Culture and Innovation from the source of the National Research, Development and Innovation Fund.”

[2] I.e. the research project of the author entitled “Versenypiac vs. válságkezelés? Szabályozási kihívások az Európai Unióban” [Competitive market vs. crisis management? Regulatory challenges in the European Union] supported by the János Bolyai Research Scholarship of the Hungarian Academy of Sciences.

[3] Otherwise they are declared as 'unlawful aid' if the Commission receives information on such aid granted without its prior authorisation.

[4] Dataset of the project K 134499, K_20 ‘OTKA’ NKFI Found, National Research, Development and Innovation Office (Hungary) (hereinafter OTKA/NKFI database).

[5] https://competition-cases.ec.europa.eu/search (hereinafter Commission Competition Law Database).

[6] https://curia.europa.eu/jcms/jcms/j_6/en/ (hereinafter CJEU Case Law Database).

Kategória: European UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 

• A hozzászóláshoz regisztráció és bejelentkezés szükséges

The immense boost of dockless electric scooter (e-scooter) fleets in the cities in the European Union occurred like wildfire. There were, for example, more than 15,000 scooters available for rent on the streets of Paris, and in Cologne, authorities expected as many as 40,000 users by the end of 2019. It is estimated that currently there are over 360,000 e-scooters available for rent on European streets.

Background

Proponents of e-scooters highlight their potential to replace short distance passenger car journeys, to serve as a first and last mile to public transportation networks, and to help solve the urban transport challenge of poor air quality stemming from increased congestion as well.

The operation of e-scooters results in both direct and indirect environmental impacts, which can be significant without corrective measures. Analysis undertaken by the International Transport Forum demonstrates factors that influence the direct environmental impact related to average daily distances, vehicle lifetime, operator collection practices, vehicle weight and material choice in manufacturing. It should also be highlighted that following the COVID-19 public health crisis, the necessity and popularity of reallocating space away from passenger cars has grown.

However, emerging data on the risks of e-scooters highlights significant safety risks, with risks of accidents potentially seven times greater than in the case of bicycles. Several risk factors contribute to the probability of users being involved in accidents and the severity of the incidents, including experience, use of alcohol and drugs and awareness of rules and protective equipment. A study of accidents in Copenhagen noted that riders primarily sustained facial bruising and lacerations and were sometimes under the influence of alcohol or drugs (36.6%). Around one-third of accidents occurred between 23:00 and 07:00, which may indicate a safety benefit to regulating the operation of scooters during hours in which riders are more likely to be involved in an incident. In another study of patients involved in e-scooter or e-bike accidents, 8.4% of those involved were pedestrians; three-quarters of those pedestrians were vulnerable road users, either between the ages of 0-14 or older than 60 years of age (Siman-Tov, M., Radomislensky, I., Israel Trauma Group & Kobi Peleg, 2017.).

Options available to authorities can include soft measures to improve user behaviour, through the distribution of materials focused on safety training and raising awareness of rules, and stronger regulatory measures that target the cause of crashes or mitigate their impact, such as limits on riders per e-scooter and on the use of phones while riding. Insurance provided by operators can be an important element to consider for the safety of users when accidents happen. This should cover damages that arise from collision, liability for third parties and their property as well as medical costs. Many of the measures associated with the protection of vulnerable road users can also apply, such as passenger car speed restrictions, traffic calming measures, separated bicycle lanes or similar.

In conclusion, e-scooters have brought challenges for cities. Like other vehicles using the road, e-scooters need to operate within an adequately personalised regulatory framework. Over the last couple of years, cities have reacted to the trend of shared micro-mobility in different ways, ranging from total prohibition to total openness, with many variations in between. Some have adapted policy over time by reacting to developments on the ground, including responding to reactions from the public. This has, in turn, resulted in widespread, yet dissimilar, amendments to national regulations. Latecomers have usually taken a more restrictive approach than early adopters.

Overview of Policy Relating to E-Scooters

Austria recognizes and legally states the distinction between electric scooters and other motor-driven vehicles like mopeds, electric bikes, motorized bicycles, etc. The country does not require any license or insurance for electric scooters. However, there are some age restrictions: 12-year-olds who want to ride an e-scooter must be supervised by people of at least 16 years of age. Furthermore, children that are younger than 12 years must wear helmets. Scooters with a maximum power output of 600W and 25 km/h maximum speed can be operated legally on public roads. Austria’s parking rules for e-scooters are the same as those for bikes. All offences lead to administrative fines.

France has categorized electric scooters as „personal motorized travel devices.” In September 2019, a new mobility bill added e-scooters to France’s traffic law with measures including a minimum age (children as young as 8) and guidelines on where they can be used. E-scooters are banned from pavements, their speed limit on roads is 20 km/hour and it is mandatory for children under 12 years of age to wear helmets. In October 2019, various fines for e-scooter violations and offences were decreed. In Lyon, a shared e-scooter operator has introduced a speed limiter that is based on a global positioning system (GPS) where, within the city’s pedestrian zone, vehicles are restricted to 8 km/hour. Paris aims to limit the number of providers operating in the city, with a tender to select up to three operators, which will be allowed to continue providing their service. The national mobility bill hands local authorities the power to limit the number of vehicles and operators, and impose additional requirements on maintenance, noise and pollution. In June 2021, Paris threatened to ban e-scooters if their operators don’t enforce speed limits and other rules after a pedestrian was knocked down and killed by two riders who fled the scene. Critics say the aforementioned rules are hardly enforced, and abandoned scooters are often seen scattered on sidewalks and squares. Confirming the above, deputy mayor David Belliard, in charge of transportation, said he had summoned executives from the three e-scooter operators, Lime, Dott and Tier, telling them he had received „lots of negative feedback about scooters on sidewalks, the sense of insecurity, and scooters abandoned in the streets.”

Finland classifies electric scooters as lightweight electric vehicles. This category constitutes vehicles with a motor of a maximum of 1000W and a top speed of 25 km/h. However, if your electric scooter is slower than 15 km/h, then it will be categorized as a „pedestrian-assisted device.” As an e-scooter owner in Finland, you don’t need insurance or a driving license. Although not punishable by law, helmets are strongly recommended. Furthermore, you must not drive on the pavement.

Similar to Finland’s legislation, Germany declares electric scooters as lightweight electric micro mobiles meant for personal use. These lightweight electric vehicles do not need to be registered; however, they do require insurance. After the insurance process is complete, a sticker is attached to the scooter to indicate that it has been insured. The minimum legal age for riding an e-scooter in Germany is 14 years. Helmets, like in other countries, are recommended but not mandatory. Moreover, no driving license is needed to operate an electric scooter. Germany has the same parking laws for e-scooters as for bicycles. Finally, only one person can use a scooter at a time.

Up till 2019, there was no formal legislative framework in Italy regarding the use of electric scooters. Only around mid-2019 was a national-level set of policies formed. The Italian Ministry of Transport decreed that electric scooters (which are popular in Milan, Turin and Rimini) can be legally operated on roads and in pedestrian areas. However, this accessibility was limited by the speed of the scooters. The law sets a minimum age of 14 and wearing a helmet is mandatory for those under 18. E-scooters can be driven at a maximum speed of 25 km/hour on carriageways where bicycles are allowed and 6 km/hour in pedestrian areas.

The legal policies revolving around e-scooters are tricky in Hungary. This is because a distinct category for electric scooters does not exist as of now. There are two interpretations of the current law in Hungary for electric scooters. One side affirms that, according to the legislative texts, electric scooters do not count as traffic, but rather as pedestrians. Therefore, they cannot be qualified as vehicles. On the other hand, some other experts have claimed that, once the dispute is settled and electric scooters are considered electric vehicles, they should be allowed on cycle paths and roads, but not on pavements. Perhaps there is still some more time until we see this debate come to a logical resolution, but until then, the theory forbids the use of electric scooters.

Belgium refers to electric scooters as „moving devices.” When it comes to e-scooters, the law in Belgium is very lenient compared to other places in the world. There is no age limit at all, meaning children can ride electric scooters as well. Furthermore, no license, insurance, or registration is required. Helmets are recommended but not obligatory. The rider’s speed defines whether they can access the pavement or not. For instance, if they are slow enough to be categorized as a pedestrian, they can ride on the footway. But if they’re faster (more than 5-6 km/h), they can only ride on cycle paths, where their speed is limited to 25 km/hour, which mirrors the requirement for e-bikes. According to recent news, the Brussels parliament wants to get tougher on shared e-scooters and bicycles by introducing special parking areas, speed limits and fines if the vehicles are dumped in the street. Arnaud Verstraete, leader of the Greens in the Brussels-Capital Region's parliament, in the last days of October 2021, put forward a plan for stricter rules with the support of the ruling parties in the parliament. It is expected to be voted on in early 2022.

Sweden classifies electric scooters as electric bikes in some conditions. If an electric scooter has a continuous power output of 250W, a max speed of 20 km/h, and can only be used by one person at a time, it is legal. E-scooters must have brakes, an audible warning device, such as a bicycle bell, and riders younger than 15 years of age are required to wear a helmet.

Conclusion

The European Commission is also looking at e-scooters and micro-mobility in general, with guidelines for use under consideration at the moment. Technical standards are also being considered under possible plans for standardisation or type approval for certain categories of devices (Sokolowski, M. M., 2020., Bosetti, S., 2021.).

In the future, the success of electric scooters won’t come from public interest – it’s already there. Adding another type of mobility into city planning may seem daunting, but if anything, it will force our cities to respond properly to new challenges.

 

For a list of references, click HERE.

Author: dr. Petra Ágnes Kanyuk, Lecturer, University of Debrecen, Faculty of Law

Kategória: Public TransportationBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 

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