COMMISSION RECOMMENDATION of 6 May 1977 addressed to the Government of the Federal Republic of Germany concerning a law and an order implementing certain provisions 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 (77/355/EEC)

By letter of 25 November 1976, the Office of the Permanent Representative of the Federal Republic of Germany to the European Communities sent to the Commission, for consultation, copies of certain provisions of the law on road haulage (GüKG) of 6 August 1975 and of the second order of 24 April 1973 on the recognition of professional competence and of the knowledge required to manage a road haulage undertaking. These provisions include certain measures relating to the application of the Council Directive of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (1).

The provisions were submitted in pursuance of Article 7 (1) of the Directive, under which "Member States shall, after consulting the Commission and before 1 January 1977, adopt the measures necessary for the implementation of this Directive, in particular Article 3 (4) thereof".

The Commission notes with regret that, owing to the delay in submitting details of its implementing measures, the German Government was unable to fulfil by the due date its obligation under the said Article 7 and has made it impossible for the Commission to adopt this recommendation within the proper time.

The Commission makes the following recommendations regarding the provisions of the above law and implementing order: 1. As regards the field of application of these provisions, the Commission would remind the German Government that the Directive of 12 November 1974 is designed to introduce common rules on admission to the occupation of road haulage operator in both national and international transport operations.

In view of the fact that the provisions submitted to the Commission apply only to national transport, the German Government is asked to make good this deficiency.

2. The Commission notes that Article 10 of the law, which relates to long-distance haulage and Article 81, which deals with short-distance haulage, lay down the principle, in accordance with Article 3 (1) of the Directive, that admission to the occupation is to be subject to requirements as to good repute, financial standing and professional competence.

However, as regards financial standing, the Commission recommends that the German Government clarify the wording of the first sentence of Article 3 (3), which at present reads as follows:

"Financial standing means the possession of the financial resources necessary for the commencement and proper operation of the business ...".

Similarly, the Commission would draw the German Government's attention to certain rules regarding the implementation of the condition as to professional competence, as set out in Article 3 (4) of the Directive.

First, that Article provides that the necessary knowledge for the recognition of professional competence shall be acquired by attendance at courses, by practical experience in a transport undertaking or by a combination of both. This is an exhaustive list and therefore excludes the adoption of any other method. Consequently, the German Government is asked to amend Article 10 (2) of the law and Article I (1) of the implementing order accordingly and to delete the reference to practical experience acquired in a transport agency or a warehousing undertaking.

Secondly, the second subparagraph of Article 3 (4) of the Directive provides that a certificate issued by the responsible authority or body must be produced as proof of professional competence. However, the implementing order, in its Article 3, expressly provides for the issue of a certificate only in the case of recognition of professional competence by examination and not when it is recognized on the basis of practical experience. The German Government is accordingly asked to amend the order on this point.

(1) OJ No L 308, 19.11.1974, p. 18. 3. In the same connection, it is noted that the German Government intends to send to the responsible examining boards the list of subjects mentioned in Article 3 (4) of the Directive.

The Commission feels that it should be made clear that the recognition of professional competence should be based on the subjects included on this list.

4. The Commission would also draw the attention of the German Government to the actual terms of Article 4 (1) of the Directive regarding the operation of an undertaking on a temporary basis in certain cases:

"Member States shall determine the circumstances in which a road haulage undertaking may, by way of derogation from Article 3 (1), be operated on a temporary basis for a maximum period of one year, with extension for a maximum period of six months, in duly justified special cases in the event of the death or physical or legal incapacity of the natural person engaged in the occupation of transport operator or of the natural person who satisfies the provision of Article 3 (1) (a) and (c)."

First, this Article refers to three cases : death, physical incapacity and legal incapacity. As Article 19 of the law refers only to the case of death, the German Government is asked to amend it so as to include physical or legal incapacity as provided for in Article 4 (1) of the Directive.

Secondly, Article 19 of the Law refers only to the death of the operator. Article 10 (1) of the law, however - in accordance with the second and third subparagraphs of Article 3 (1) of the Directive - states that the operator does not necessarily have to be the natural person engaged in the activity of road haulage operator or the natural person who satisfies the provisions of Article 3 (1) (a) and (c) of the Directive. The German Government is therefore asked to amend Article 19 of the law so as to include the two cases referred to in these two subparagraphs.

5. The Commission notes that Article 78 of the law (long distance haulage) and Article 88 (short distance haulage) lay down different conditions regarding the withdrawal of authorization, which is contrary to Article 6 (2) of the Directive.

Within the field covered by the Directive, Article 78, relating to long distance haulage, provides for mandatory withdrawal of an authorization only when bankruptcy proceedings are opened on the assets of the head of the firm, any failure to meet the conditions of professional competence and good repute being a matter for discretionary withdrawal.

On the other hand, under Article 88 (5) (short distance haulage) the only grounds for mandatory withdrawal of an authorization is a breach of the condition as to good repute.

Accordingly, the Commission recommends to the German Government that it amend Article 78 and 88 of the law on road haulage so as to make any breach of the conditions as to good repute, financial standing or professional competence a ground for the mandatory withdrawal of authorization, both for long distance and for short distance haulage.

6. Lastly, the Commission notes that the requirements under Article 6 (1) and (3) of the Directive, whereby (i) any decision refusing an application for admission to the occupation of road haulage operator must state the grounds on which it is based and (ii) persons affected by a decision refusing or withdrawing authorization must have appropriate means to defend their interests, are already covered under the provisions of law generally applicable in Germany.

Done in Brussels, 6 May 1977.

For the Commission

Richard BURKE

Member of the Commission