COMMISSION RECOMMENDATION of 19 September 1977 to the United Kingdom Government regarding the draft Regulations implementing, in Northern Ireland, Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations and Council Directive 74/562/EEC of 12 November 1974 on admission to the occupation of road passenger transport operator in national and international transport operations (77/607/EEC)

By letter dated 18 April 1977, the Permanent Representation of the United Kingdom to the European Communities sent to the Commission, for consultation purposes, the text of draft Regulations implementing, in Northern Ireland, Council Directives 74/561/EEC and 74/562/EEC of 12 November 1974 on admission to the occupation of road haulage operator and road passenger transport operator respectively in national and international transport operations.

This communication was sent pursuant to Articles 7 (1) and 6 (1) respectively of the 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 Directives, and in particular Articles 3 (4) and 2 (4) respectively.

The Commission regrets that the United Kingdom Government, by failing to inform it of the implementing measures in good time, has thereby failed to fulfil the obligations incumbent upon it under Articles 7 and 6 respectively of the two Directives, and has made it impossible for the Commission to issue this recommendation by the requisite date.

The Commission hereby issues the following recommendation in respect of the draft Regulations referred to above: 1. The Commission notes that for admission to the occupations both of road haulage operator and of road passenger transport operator, the draft United Kingdom Regulations for Northern Ireland satisfy the provisions of the two Directives on the following points: (a) the principle, definition and implementation of the conditions regarding good repute, financial standing and professional competence (Articles 3 and 2 respectively of the Directives);

(b) the temporary operation of an undertaking under the circumstances and conditions laid down in Articles 4 (1) and 3 (1) respectively of the Directives;

(c) the implementation of Articles 6 (2) and (3) and 5 (2) and (3) respectively of the Directives concerning the withdrawal of authorizations and the channels of appeal.

2. As regards the carriage of passengers by road and, in particular, the exemption of certain categories from the scope of the Directive, the Commission draws the attention of the United Kingdom Government to Article 1 (3) of Directive 74/562/EEC, which makes such exemptions subject to the following conditions, namely, that they are granted only to natural persons or undertaking: (i) engaged exclusively in road passenger transport services for non-commercial purposes, or

(ii) having a main occupation other than that of road passenger transport operator, and

(iii) in so far as their transport operations have only a minor impact on the transport market.

The Commission therefore advises the United Kingdom Government to expand Section 3 (3) of the draft Regulations to ensure that the requirements of Article 1 (3) of the Directive, particularly the last one, are fully met.

3. As regards the determination of the natural persons who must, in each case, meet the conditions of admission to the occupation set out in Articles 3 (1) and 2 (1) respectively of the two Directives, the Commission draws the attention of the United Kingdom Government to the definition of an "undertaking" contained in Article 1 (2) of both Directives. Undertakings are defined there as any association or group of persons with or without legal personality. Two or more individuals trading in partnership, as referred to in Section 5 (6) (new Section 46A) of the draft Regulations, must therefore be regarded as forming an undertaking.

It is therefore not enough, as Section 5 (6) states, to take it that if one of the partners is professionally competent then the holder of the authorization will be regarded as meeting this condition. On the contrary, the third subparagraph of Article 3 (1) and the third subparagraph of Article 2 (1) respectively of the two Directives provide that one of the natural persons who will continuously and effectively manage the transport operations of the undertaking must satisfy the conditions of good repute and professional competence.

Consequently, the Commission recommends that the United Kingdom Government amends Section 5 (6) (new Section 46A) of the draft Regulations to ensure that the requirements of the third subparagraphs of Articles 3 (1) and 2 (1) respectively of the two Directives are satisfied.

4. The Commission also notes that Section 5 (4), (a), (b) and (e) and 5 (5) (a), (b) and (e) of the draft Regulations do not fully reflect the corresponding provisions of the Directives on transitional measures (Articles 5 and 4 respectively).

First, the Commission draws the attention of the United Kingdom Government to the first paragraph of Articles 5 and 4 respectively of the Directives, which provides 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/road passenger transport operator in national and/or international transport operations shall be exempt from the requirement to furnish proof that they satisfy the provisions laid down in Articles 3 and 2 respectively of the two Directives. This dispensation, then, covers not only professional competence but also good repute and financial standing.

The Commission therefore advises the United Kingdom Government to supplement its draft Regulations accordingly.

Secondly, natural persons who meet one or other of the conditions laid down in Articles 5 (2) and 4 (2) respectively of the two Directives must satisfy the condition of professional competence before 1 January 1980. They can do so, however, only under the system of determining professional competence in force in the United Kingdom, i.e. by holding a certificate issued by the competent authority confirming that the applicant has a sound knowledge of the subjects listed in the Annexes to the two Directives, or any other certificate, diploma or qualification recognized by the Department (Section 5 (4) (c) and (d) and 5 (5) (c) and (d) of the draft Regulations, or by complying with the conditions of professional experience defined in Section 5 (4) (e) and (5) (e) of the draft Regulations.

The Commission therefore advises the United Kingdom Government to comply with the provisions of the Directives which state that only natural persons who, after 31 December 1974 and before 1 January 1978, have been authorized to engage in the occupation of transport operator or designated to manage an undertaking in accordance with Articles 5 (2) and 4 (2) of the Directives respectively will be given a further two years to fulfil the conditions of professional competence laid down in each Member State.

5. Finally, the Commission advises the United Kingdom Government to add a provision to its draft Regulations requiring that grounds be given for decisions rejecting an application for admission to the profession, as laid down in Articles 6 (1) and 5 (1) respectively of the Directives, unless this is already stipulated by statutory provisions in force.

Done at Brussels, 19 September 1977.

For the Commission

Richard BURKE

Member of the Commission