NON-COMMERCIAL PERSONAL TRANSPORT – FACTS AND MYTHS
It is time to get away from the perception that the entrepreneur who runs a business in any field, using vehicles exceeding 3.5 tonnes is not subject to regulations of the law on road transport. Such a mistake can cost 8 000 PLN, and sometimes much more ….
It often happens that the entrepreneur who runs a company uses his own transport for the purpose of communicating employees to the workplace or transporting elements for production from one place to another. This type of transport is the so-called non-commercial personal transport. However, not many entrepreneurs know that when such transport is performed with a vehicle over 3.5 tonnes, it is subject to the provisions of the Act of 6 September 2001 on road transport (i.e. Journal of Laws of 2012, item 1265 as amended). This simply means that the entrepreneur who performs this type of transport must meet the conditions laid down by law, and any failure in doing so can lead to high administrative penalties prescribed in the abovementioned Act, headed by a penalty of 8 000 PLN for the absence of a certificate for personal transport.
According to article 4, paragraph 4 of the abovementioned Act non-commercial road transport – personal transport – is any vehicle passing through public roads with passengers or without, loaded or unloaded, intended for the non-commercial, national and international road transport of passengers or goods, performed by the entrepreneur in relation to the basic activity of the company, meeting the following conditions:
a) the motor vehicle used for the transport is driven by the entrepreneur or his employees,
b) the entrepreneur holds a legal title to dispose of motor vehicles,
c) for passage of a loaded vehicle – the transported goods are owned by the entrepreneur or were sold, rented, leased, produced, extracted, processed or repaired by him or when the purpose of the transport is to carry passengers or goods from or to the company for his personal use, as well as to transport employees and their families,
d) it is not the transport within business activities in the field of tourism services;
You should thus always look at the key postulates of such transportation, which are mentioned in the abovementioned provision.
Therefore, the main criterion, as indicated in the extensive case law, is servient and ancillary nature of such transport, in relation to the basic activity of the company led by the entrepreneur.
It is mentioned in, among others, the judgment of the Supreme Administrative Court in Warsaw of 28 September 2011, II GSK 905/10 deciding that:
Before undertaking any non-commercial road transport, the legislator (…) understands the indefinite type of business activity, but each vehicle passing (even once) through public roads with passengers or without, loaded or unloaded, intended for the non-commercial, national and international road transport of passengers or goods, performed by the entrepreneur in relation to the basic activity of the company.
It is therefore irrelevant whether the transport is performed once or regularly.
However, according to the Court:
The main criterion for classifying a given transport to personal road transport is servient and ancillary nature of such transport, in relation to the basic activity of the company led by the entrepreneur.
Some interpretational problems may be related to the concept of “ancillary nature” because it is not defined in any legal act. Some indication in this regard may be provisions concerning the Polish Classification of Activities. Accordingly, we can talk about an ancillary activity when its execution serves exclusively to support the main activity by providing services or goods only for the entrepreneur.
It is assumed that the fulfilment of a total of 3 conditions is conclusive to recognize the activity as ancillary:
is to serve only the individual, entrepreneur,
any expenditure on ancillary activity is to be the cost of the entrepreneur,
the end result cannot form part of the final product.
Importantly, in contrast to commercial road transport, which requires a separate license, it is a non-commercial transport, or otherwise unpaid. This means that the entrepreneur is obliged to bear costs of such transportation, which will be essential and necessary for the proper performance of his, other than the transport, main activity.
In addition, the legislator has determined that in order for a given transport to be considered as personal transport, it must met 4 conditions:
The motor vehicle used for the transport is driven by the entrepreneur or his employee.
According to article 4, paragraph 1 and 2 of the act on Freedom of Economic Activity:
The entrepreneur in the meaning of the Act is a physical person, body corporate and body unincorporated, which is given legal capability by a separate act; running a business on their own behalf. (…)
On the basis of this definition, there is no doubt that we can speak of personal transport only when the entrepreneur operates as a sole proprietor (natural person). However, this does not mean that in the case of running a business by legal persons, e.g. limited liability company, or organizational unit without legal personality, e.g. a general partnership or limited partnership, it cannot lead to performing personal transport. The case law contains a wide comment that in this case it is appropriate to recognize that the shareholder of such company, authorized to conduct its affairs should be understood as an entrepreneur or entrepreneur’s employee.
According to article 2 of the Labour Code, an employee is a person employed under an employment contract, appointment, election, nomination or cooperative employment contract.
According to the decision of the Administrative Court in Warsaw of 11 May 2005 (file no. VI SA/WA 2136/04, Legalis), if the rational legislator has not entered a different, commonly used definition of “an employee” in the act on road transport – which would apply on the basis of this act, it means that it should be based on the legal definition of this concept contained in the Labour Code.
The Supreme Administrative Court has expressed a similar thought in its judgment of 24 July 2007 (file no. I OSK 1254/06, Legalis), which pointed out that if the legislator deemed it possible to use the term “employee” in a different sense than the one used in the Labour Code, it would undoubtedly enter a different definition of this term in the act on road transport. It should therefore be considered that this issue, on the basis of the current case-law, is not debatable. Consequently, there are no reasonable grounds to believe that this group should include persons providing their services on the basis of civil contracts.
This solution should be considered as defective in the current realities. According to the wording of the act on working time of drivers – where it was explicitly said that there is a possibility for the use of civil law contracts in transport (“non-employed persons”) – that legislation is archaic and should be immediately amended in such a way as to extend the concept of an employee, to include persons providing services under civil law contracts, including “self-employed” persons.
According to the case law of administrative courts, e.g. the discussed condition is met when the vehicle is driven by a member of the entrepreneur’s family, even when he remains in any employment relationship.
It should therefore be pointed out that in the case of a spouse providing assistance to his/her spouse in any business activity, it must be recognized that such a person performing a specific physical work or other activities is acting as the spouse – acting on his/her behalf; such action should be treated as an action undertaken by the spouse, whose economic activity is formally registered (collaborator). This issue was resolved by, among others, the Administrative Court in Warsaw in its judgment of 20 October 2006 (file no. VI SA/WA 978/06, Legalis). A similar situation occurs in the case of persons with the status of a cooperating person or entrepreneur’s children (such a position is present in e.g. the judgment of the Administrative Court in Warsaw of 16 February 2006, VI SA/WA 1840/05, Legalis, as well as in the judgment of the Administrative Court in Warsaw of 21 Marc 2007, VI SA/WA 1955/06, Legalis).
The entrepreneur must have a legal title to dispose of motor vehicles.
Undoubtedly, this provision applies and includes mostly property rights. This title is in fact the most popular and common one. At the same time it gives the broadest powers to use and dispose of a thing, in this case a vehicle. The right of ownership is, however, not the only legal title that guarantees the fulfilment of this condition. The case law understands the concept of “obtaining a legal title” very broadly, indicating that the entrepreneur must hold a valid legal title to dispose of the vehicle, resulting also from an oral agreement or an agreement that was not mentioned in the Civil Code (the judgment of the Administrative Court in Warsaw of 9 January 2006 VI SA/WA 1273/05).
Nevertheless, it should be noted that the provision uses the term “to dispose”. In principle, this means that any agreement under which a person uses a vehicle within personal transport must include a record or determination that the vehicle can be used, i.e. used to perform road transport by the entrepreneur (the Administrative Court in Rzeszów expresses a similar thought, in its judgment of 17 January 2012, II SA/RZ 985/11, Legalis).
In practice – most frequently mentioned legal title to dispose of the vehicle is the one that is in accordance with article 252 of the Civil Code – using, renting, leasing or lending.
In the case of a loaded vehicle – the transported goods are owned by the entrepreneur or were sold, rented, leased, produced, extracted, processed or repaired by him or when the purpose of the transport is to carry passengers or goods from or to the company for his personal use, as well as to transport employees and their families.
This condition raises many controversies and disputes, mainly through its imprecision. It is difficult to perform an abstract assessment, which should be fulfilled in such cases.
According to the judgement of the Supreme Administrative Court of 25 January 2008, I OSK 1600/06, Lex No. 453411, which relates to the carriage of goods:
“Using a functional interpretation, it should be concluded that the hypothesis of this provision covers not only the situation when things after processing (manufacturing) are transported to the final consumer, but also the situation when things (materials, semi-finished products) are transported for processing by a company that does that in the ordinary course of business. An interpretation that the transport of things processed by the manufacturer meets the conditions of a non-commercial transport would be incomprehensible and incompatible with the ratio legis of article 4(4)(C) – the personal transport, and the transport of goods (materials) for processing (production) should be regarded as a road transport that requires a license. It is therefore necessary to assume that in both cases the transport of goods is a non-commercial transport – the personal transport performed ancillary as part of the economic activities (e.g. production) other than road transport, which consists in making and carrying out business in the commercial transport of persons or goods”.
In summary: When the vehicle is loaded with goods, it can be classified as a personal transport, when the transported goods are owned by the entrepreneur or were sold, rented, leased, produced, extracted, processed or repaired by him. In addition, it should be classified as a personal transport when the purpose of the transport is to carry goods from or to the company for the entrepreneur’s personal use.
The terms used by the legislator in this provision should be understood as defined in civil law, because the act on road transport does not give them a meaning specific to this act.
Undoubtedly, it has no significance for the qualification of a transport as a personal transport of carried goods, as well as transit route and a place of departure and destination.
In addition, the legislator distinguishes a transport, which can be qualified as a personal transport.
This includes the carriage of goods from or to the company for the entrepreneur’s personal use.
The used concept of “a company” is not too accurate.
The doctrine shows that it is legitimate to identify it with “the place of business”. However, if the entrepreneur runs economic activities in more than one place, it is not relevant whether the carriage is performed “to” or “from” the main place of business, or “to” and “from” other places of its execution. A legal title to dispose of the transported things is also irrelevant. The only relevant condition seems to be that the transport is carried out for the needs of business performed at this place.
This thesis is confirmed by the judgment of the Administrative Court of 17 May 2006 (VI SA/WA 552/06 Legalis):
the carriage of goods for personal needs of the company takes place when the transported goods are used only by the company; they are essential for its operation, such as: clothing, cleaning products, manufacturing equipment. Therefore, it involves the things “consumed” by the company, which in any case are not the subject of further commercial transactions or other activities in the process carried out by the company.
A similarly commented provision rules on the transport for the personal use in the case of passenger transport. The first situation which should be noted is the passenger transport from the company or to the company for the entrepreneur’s personal use.
The second situation is the transport of employees and their families.
It is not the transport within business activities in the field of tourism services.
The act of 29 August 1997 on tourist services provides legal definition of tourist services in article 3, point 1 which indicated that tourist services are guide services, hotel services and all other services provided to tourists or visitors.
In summary, road transport performed ancillary in terms of business can be classified as personal transport, only when all of the abovementioned conditions occur simultaneously. However, if any of the conditions is not fulfilled, then we are dealing with road transport, which requires a separate license.
At this point we should also dispel the second myth that occurs quite commonly in the transport ambient. There is a belief that drivers who perform personal transport do not apply the standard working or driving time, mandatory breaks and rest periods, as other drivers engaged in road transport.
Therefore, it should be stated that drivers engaged in personal transport, on the basis of the certificate, should apply the same requirements concerning working time in road transport. It concerns both the provisions of the act on working time of drivers, and regulation 561/2006/EC. Therefore, there is no doubt that any driver engaged in such services must remember that:
The daily driving period may only be 9 hours. It may be extended only two times in each week for up to 10 hours.
The weekly driving time shall not exceed 56 hours, and the total accumulated driving time during 2 consecutive weeks shall not exceed 90 hours.
After a driving period of 4.5 hours, each driver should do a break lasting at least 45 minutes. The break can be divided in such a way that the first one will last at least 15 minutes, followed by a break of at least 30 minutes.
Within 24 hours from the commencement of driving, the driver is required to perform 11 hours of uninterrupted rest. The rest period may be reduced to 9 hours, three times in each week. This shortening does not require any compensation. On the day when the rest is not reduced, it can be divided into 2 parts, the first of which must be at least 3 h, and the second at least 9 h.
In any two consecutive weeks, the driver:
has to use two regular weekly rest periods (45 consecutive hours),
or one regular weekly rest period and one reduced weekly rest period of at least 24 hours. This shortening needs to be compensated by an equivalent rest period taken at one time before the end of the third week following a given week.
A weekly rest period shall start no later than after the end of six 24-hour periods counting from the end of the previous weekly rest period.
The Law Firm Viggen rp
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