COMMISSION RECOMMENDATION of 6 May 1977 addressed to the Government of the French Republic concerning two draft decrees implementing Council Directives 74/561/EEC and 74/562/EEC of 12 November 1974 on admission to the occupation of road haulage operator and admission to the occupation of road passenger transport operator in national and international transport operations (77/357/EEC)

By letter of 4 January 1977, the Office of the Permanent Representative of France to the European Communities sent to the Commission, for consultation, the texts of two draft decrees implementing the two Council Directives of 12 November 1974 concerning, respectively, admission to the occupation of road haulage operator in national and international transport operations and road passenger transport operator in national and international operations (1).

These texts were submitted in pursuance of Articles 7 (1) and 6 (1) respectively of the said 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, particularly 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 French 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.

As regards the draft decrees themselves, the Commission delivers the following recommendation: 1. The Commission notes that, as regards admission to the occupation of road haulage operator and road passenger transport operator, the draft decree amending Decree No 49-1473 of 14 November 1949 (amended) and the draft decree concerning recognition of competence to engage in these occupations meet the requirements of the provisions of the two abovementioned Directives on the following points: - the principles, definitions and implementing rules regarding good repute, financial standing and professional competence (Articles 3 and 2 respectively of the above Directives);

- the operation, whether temporary or permanent, of an undertaking in accordance with the principles and rules set out in Articles 4 and 3 respectively of the said Directives.

2. However, as regards the testing of professional competence, the Commission would draw the attention of the French Government to the wording of the first sentence of Article 3 (4) and the first sentence of Article 2 (4) respectively of the two Directives. From these provisions it follows that competence must be proved on those points listed in the Annex to each Directive.

The Commission has not been informed of the programme drawn up by the French Government in this respect and accordingly recommends that the French Government make good this shortcoming.

3. The Commission also notes that the new Article 46 (1) and (2), introduced by the amending decree into the Decree of 14 November 1949, lists those transport operations to which the conditions of good repute, financial standing and professional competence as defined in the first paragraph of that Article do not apply.

As regards road passenger transport operators, Article 2 of the Decree of 14 November 1949 sets out certain transport operations which are exempted from such conditions. The Commission considers that the Directive of 12 November 1974 (74/562/EEC) on admission to the occupation of road passenger transport operator does not preclude such exemptions as long as compliance with the conditions laid down in Article 1 (3) of that Directive is ensured, namely: - that the exemptions concern persons or undertakings engaged exclusively in road passenger transport services for non-commercial purposes or having a main occupation other than that of road passenger transport operator, and

- that their transport operations have only a minor impact on the transport market.

(1) OJ No L 308, 19.11.1974, pp. 18 and 23. As regards road haulage, the exempted operations are set out in Article 23 of the Decree of 14 November 1949. They include inter alia transport operations using a vehicle or vehicle unit with a maximum authorized weight not exceeding 2 500 kilograms, unless the vehicle or unit is regularly used in the carriage of for hire or reward goods (Article 23 (11) of the Decree). In this connection, the Commission would remind the French Government that Article 2 (1) of the Directive of 12 November 1974 on admission to the occupation of road haulage operator provides that:

"This Directive shall not apply to natural persons or undertakings engaging in the occupation of road haulage operator by means of vehicles the permissible payload of which does not exceed 3 75 metric tons or the permissible total laden weight of which does not exceed six metric tons. Member States may, however, lower the said limits for all or some categories of transport operations".

The Commission therefore recommends that the French Government amend the wording of Article 23 (11) of the Decree of 14 November 1949 in such a way that the types of transport operations concerned are specified, regard being at the same time had to the exemption provided for in Article 2 (1) of the abovementioned Directive.

4. The Commission would also draw the attention of the French Government to the provisions of Articles 5 (1) and 4 (1) respectively of the two Directives. Under the terms of these Articles 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 transport shall be exempt from the requirement to furnish proof that they satisfy the provisions laid down in Article 3 (carriage of goods), or Article 2 (carriage of passengers).

Whilst the regulations currently in force in Frence already include conditions of professional competence and, to some extent, of good repute (necessary for entry in the commercial register, which is compulsory) for road haulage operators, and a condition of good repute (to the same extent) for road passenger transport operators, the condition as to financial standing is inadequately represented by entry in the commercial register.

As the draft decree amending the Decree of 14 November 1949 includes the additional requirement that the applicant must have a post office cheque account, bank account or treasury account, the Commission recommends that the French Government add this point to the transitional measures contained in Article 5 of the draft decree, so as to conform with Articles 5 (1) and 4 (1) respectively of the two Directives.

5. Finally, the Commission notes that, as regards the withdrawal of authorization when the requirements as to good repute, financial standing and professional competence are no longer met, the measures required by Articles 6 (2) and 5 (2) respectively of the two Directives already exist under French law. The Commission would nevertheless emphasize to the French Government the need, pursuant to paragraphs 1 and 3 of the the said Articles, for provisions, in so far as these do not already exist under French law, - requiring that reasons be given for any decision to reject an application for admission to the occupation, and

- ensuring that those concerned are able to defend their interests by appropriate means if a decision is taken to reject an application or withdraw authorization.

Done at Brussels, 6 May 1977.

For the Commission

Richard BURKE

Member of the Commission