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COMMISSION OPINION

of 28 September 1988

addressed to the Government of the Kingdom of Denmark on a draft law on the carriage of goods by road

(Only the Danish text is authentic)

(88/525/EEC)

In accordance with Article 1 of the Council Decision of 21 March 1962 instituting a procedure for prior examination and consultation in respect of certain laws, regulations and administrative provisions concerning transport proposed in Member States (1), as amended by Decision 73/402/EEC (2), the Danish Government sent the Commission, under cover of a letter of 8 February 1988 from the Office of its Permanent Representative to the European Communities, the text of a draft law on the carriage of goods by road.

The letter from the Office of the Danish Permanent Representative reached the Commission on 10 February 1988; in accordance with Article 1 of the abovementioned Council Decision, copies were sent to the other Member States.

At the Commission's initiative, an information meeting with representatives of the Danish Government was held in Brussels on 16 May 1988. The Commission did not consider it necessary to consult all the other Member States on the provisions in question; no Member State has requested consultation.

Under Article 2 (1) of the Council Decision the Commission hereby delivers the following opinion:

1. The Commission notes that, according to the Danish Government, the aim of the draft law is to end quantitative restrictions on access to the Danish market for national road haulage services. Henceforth access to this market will be governed solely by quality criteria which all carriers will have to satisfy.

The draft law also seeks to define the conditions for withdrawing transport licences and to abolish the special licences required in order to perform regular road haulage services.

Finally, the new law planned by the Danish Government will include provisions to implement measures taken by the Council of the European Communities to establish the freedom to provide services on the national road haulage market in Denmark.

2. The Commission approves the Danish Government's initiative to create equal conditions of competition between carriers for hire or reward, to improve the social situation of the workers concerned and to improve road safety. The Danish Government's plans to abolish quantitative restrictions and replace them by quality conditions for access to the market are compatible with the approach advocated by the Commission and with Council Regulation (EEC) No 1841/88 of 21 June 1988 amending Regulation (EEC) No 3164/76 on the Community quota for the carriage of goods by road between Member States (3). Consequently, in Denmark the same rules will govern both national operations and international operations between Member States. This can only facilitate these operations and help to complete the internal market in road haulage services.

3. The Commission notes that the definition of 'own account' transport operations, as proposed in Article 1 (4) of the draft Danish law, differs from the definition in point 11 of Annex I to the first Council Directive of 23 July 1962 on the establishment of common rules for certain types of carriage of goods by road between Member States (1), as amended by Directive 80/49/EEC (2) in particular. Consequently, the Commission suggests that the Community definitions should be used.

4. The Commission notes that at the abovementioned meeting the representatives of the Danish Government stated that the main aim of Article 1 (2), Article 3 (2) and Article 4 (4) of the draft Danish law was to establish the freedom to provide road haulage services within Denmark. Nevertheless, the Commission feels that the reference in these Articles to 'international agreements' is too vague to ensure the freedom to provide road haulage services for the purposes of secondary Community legislation, i.e. the decisions adopted by the Council of the European Communities under Article 75 (1) (b) of the EEC Treaty. The Commission suggests that these Articles should be reworded and that an explicit reference to the 'Treaty establishing the European Economic Community and the secondary legislation derived therefrom' be added to the abovementioned Articles in the draft Danish law, possibly before the phrase 'international agreements'.

5. The Commission notes that Article 14 (2) would allow road haulage undertakings to continue to operate in the event of the death or physical or legal incapacity of the person engaged in the occupation of transport operator. The Commission reminds the Danish Government that, under Article 4 (1) of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (3), as amended by Directive 85/578/EEC (4), road haulage undertakings may continue to operate on a temporary basis for not more that one year, which may be extended by a maximum of six months in duly justified special cases. Article 4 (2) of Directive 74/561 EEC empowers the Danish authorities, by way of exception in certain special cases, definitively to authorize a person not fulfilling the professional competence condition laid down in Article 3 (1) (c) of the Directive to operate the transport undertaking, provided he possesses at least three years practical experience in the day-to-day management of the undertaking.

6. The Commission requests the Danish Government to notify to it in due course the implementing measures adopted to apply the law on the carriage of goods by road.

Done at Brussels, 28 September 1988.

For the Commission

Stanley CLINTON DAVIS

Member of the Commission

(1) OJ No 23, 3. 4. 1962, p. 720/62.

(2) OJ No L 347, 17. 12. 1973, p. 48.

(3) OJ No L 163, 30. 6. 1988, p. 1.

(1) OJ No 70, 6. 8. 1962, p. 2005/62.

(2) OJ No L 18, 24. 1. 1980, p. 23.

(3) OJ No L 308, 19. 11. 1974, p. 18.

(4) OJ No L 372, 31. 12. 1985, p. 34.