COMMISSION RECOMMENDATION of 6 May 1977 addressed to the Government of the Grand Duchy of Luxembourg regarding a draft law implementing Council Directives 74/561/EEC and 74/562/EEC of 12 November 1974 on, respectively, admission to the occupation of road haulage operator and admission to the occupation of road passenger transport operator in national and international transport operations (77/356/EEC)

By letter of 10 December 1976, the Office of the Permanent Representative of the Grand Duchy of Luxembourg to the European Communities sent to the Commission, for consultation, a copy of a draft law on the implementation of the two Council Directives of 12 November 1974 : the Directive on admission to the occupation of road haulage operator in national and international transport operations, and that on admission to the occupation of road passenger transport operator in national and international transport operations (1).

This draft law was submitted in pursuance of Articles 7 (1) and 6 (1) respectively of the two Directives, which provide that Member States shall, after consulting the Commission and before 1 January 1977, adopt the measures necessary for the implementation of the said Directives, in particular Article 3 (4) of the first Directive and Article 2 (4) of the second.

The Commission notes with regret that, owing to the delay in submitting details of its implementing measures, the Luxembourg Government was unable to fulfil by the due date its obligations under Articles 7 and 6 respectively of the two Directives as aforesaid and has made it impossible for the Commission to adopt this recommendation within the proper time.

The Commission makes the following recommendation regarding the abovementioned draft law: 1. The Commission notes that in accordance with Articles 7 (1) and 6 (1) of the Directives, the draft law of the Luxembourg Government defines and implements all the common rules regarding admission to the occupation of road haulage operator and road passenger transport operator respectively in national and international transport operations, as laid down by the Directives.

2. However, the Commission would draw the attention of the Luxembourg Government to the difference between the terminology used in the draft law and that used in the two Directives.

Whereas the two Directives use the term "admission to the occupation of... operator", Article 2 (1) of the draft law states that "unless a person has been granted authorization, he may not engage in the occupation of (...) operator, whether as main or subsidiary occupation".

However, the explanatory memorandum to the draft law states that, where road passenger transport is concerned, the future law covers only admission to the occupation of road passenger transport operator ; actual engagement in this occupation is still dependent on an authorization issued by the Ministry of Transport, which in turn depends on transport policy considerations.

This being the case, and in order to keep to the terminology used in the two Directives and avoid any possibility of confusion, the Commission recommends that the Luxembourg Government amend the wording of Article 2 (1) to read as follows:

"Unless a person has written authorization from the Ministry responsible for granting authorizations of establishment, granted in accordance with the criteria laid down in the following provisions, he may not be admitted to the occupation of road haulage operator or road passenger transport operator, whether as main or subsidiary occupation".

3. Similarly, the Commission would remind the Luxembourg Government of the terms used in Article 1 (2) of the second Directive of 12 November 1974 to define "the occupation of road passenger transport operator":

"For the purpose of this Directive, "the occupation of road passenger transport operator" means the activity of any natural person or any undertaking operating by means of motor vehicles so constructed and equipped as to be suitable for carrying more than nine persons - including the driver - and intended for that purpose, passenger transport services, for the public or for specific categories of users against payment by the person transported or by the transport organizer".

(1) OJ No L 308, 19.11.1974, p. 18 and 23. This Community definition thus lays down certain conditions regarding the suitability of the motor vehicles used and the purpose for which they are intended.

As the definition given in Article 1 (3) of the draft law only covers motor vehicles "which are constructed and equipped to carry persons (...)" and omits the "suitability" condition, the Commission recommends that the Luxembourg Government bring the text of Article 1 (3) into line with the definition adopted in Article 1 (2) of the Directive.

4. Lastly, the Commission would draw the attention of the Luxembourg Government to the rules given in Articles 5 and 4 respectively of the two Directives regarding transitional measures.

First, paragraph 1 of both of these Articles states that natural persons and undertakings furnishing proof that, before 1 January 1978, they were authorized under national regulations in a Member State to engage in the occupation of road haulage operator (or road passenger transport operator) in national and/or international road transport operations shall be exempt from the requirement to furnish proof that they satisfy the provisions laid down in Article 3 (road haulage) or Article 2 (road passenger transport), taking into account the provisions in paragraph 2 of these two Articles.

Although it uses the terms of the two Directives, Article 11 (1) of the draft law makes the further stipulation that proof must be supplied that the occupation has been engaged in for an uninterrupted period until the draft law comes into force.

The Commission therefore recommends that the Luxembourg Government bring Article 11 (1) into line with the Community provisions.

Secondly, paragraphs 1 and 2 of Article 5 and Article 4 respectively of the two Directives specify the date of 31 December 1977 as the final deadline for the application of the transitional provisions.

As Article 11 (1) and (2) of the draft law refer only to the date when the law comes into force, the Commission recommends that the Luxembourg Government take steps to ensure that the time limit laid down by these two Directives - 1 January 1978 - is respected.

Done in Brussels, 6 May 1977.

For the Commission

Richard BURKE

Member of the Commission