COMMISSION RECOMMENDATION of 19 September 1977 to the United Kingdom Government regarding the draft Regulations implementing 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 (77/609/EEC)

By letter dated 3 March 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 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.

This communication was sent pursuant to Article 6 (1) of the Directive, which provides that "Member States shall, after consulting the Commission and before 1 January 1977, adopt the measures necessary for the implementation of this Directive, and in particular Article 2 (4) thereof".

The Commission regrets in the first instance 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 Article 6 of the Directive, 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 the draft United Kingdom Regulations satisfy the provisions of the Directive on the following points: (a) the principle, definition and implementation of the conditions regarding good repute and professional competence (Article 2 of the Directive);

(b) the statement of grounds for decisions rejecting an application for admission to the occupation, the withdrawal of authorization if one or more of the conditions of admission are no longer met and the ability of the parties concerned to defend their interests with regard to such decisions (Article 5 of the Directive).

2. The definition of financial standing will, however, have to be clarified in the light of Article 2 (3) of the Directive, which provides that:

"Appropriate financial standing shall consist in having available sufficient financial resources to ensure the launching and proper administration of the undertaking."

The Commission therefore advises the United Kingdom Government to expand Section 10 (3) of the draft Regulations.

3. The Commission also notes that the 10th subparagraph of Section 2 (1) of the draft Regulations excludes services provided by means of a vehicle constructed or adapted for the carriage of not more than 17 persons (including the driver), otherwise than in the course of a business of carrying passengers, or by a person whose main occupation is not the provision of road passenger transport services. Although Article 1 (3) of the Directive does not prohibit such exemptions, it does make them subject to three conditions, namely, that they are granted only to natural persons or undertakings: (i) engaged exclusively in road passenger transport services for non-commercial purposes, or

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

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

The Commission recommends the United Kingdom Government to amend the 10th subparagraph of Section 2 (1) of the draft Regulations to ensure that the requirements of Article 1 (3) of the Directive, particularly the first and third, are fully met.

4. As regards the determination of the natural persons who must, in each case, fulfil the conditions of admission to the occupation set out in Article 2 (1) of the Directive, the Commission draws the attention of the United Kingdom Government to the definition of "undertaking" contained in the second subparagraph of Article 1 (2) of the Directive. 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 10 (6) of the draft Regulations, must therefore be regarded as forming an undertaking. It is therefore not enough, as subsection 6 states, to take it that if one or more 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 2 (1) of the Directive provides that "provisions (a) and (c) (good repute and professional competence) must be satisfied by one of the natural persons who will continuously and effectively manage the transport operations of the undertaking". The Commission therefore recommends that the United Kingdom Government amends Section 10 (6) of the draft Regulations to ensure that the requirements of the third subparagraph of Article 2 (1) of the Directive are satisfied.

5. The Commission also draws the Government's attention to the wording of Article 3 (1) of the Directive:

"Member States shall determine the circumstances in which operation of a road passenger transport undertaking may, by way of derogation from the provisions of Article 2 (1), be continued 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 provisions of Article 2 (1) (a) and (c)."

The Commission advises the United Kingdom Government to expand Section 7 (4) of the draft Regulations to ensure that the time limits laid down in Article 3 (1) of the Directive are respected.

6. Finally, as regards the transitional provisions, Section 10 (7) and (8) broadly meets the corresponding requirements of Article 4 of the Directive. The Commission would, however, remind the United Kingdom Government of the precise wording of Article 4 (2):

"However, those natural persons who, after 31 December 1974 and before 1 January 1978, were: - authorized to engage in the occupation of road passenger transport operator without having furnished proof, under national regulations, of their professional competence, or

- designated continuously and effectively to manage the transport operations of the undertaking,

must satisfy, before 1 January 1980, the condition of professional competence referred to in Article 2 (4).

The same requirement shall apply in the case referred to in the third subparagraph of Article 2 (1)."

The Commission finds that, under Section 10 (8), such persons must comply with the requirement of professional competence before 1 January 1978, and they are thus subject to stricter conditions than those intended by Article 4 (2) of the Directive.

The Commission therefore recommends that the United Kingdom Government amends Section 10 (8) on this point so that the natural persons concerned may benefit from the time limit laid down in Article 4 (2) of the Directive.

Done at Brussels, 19 September 1977.

For the Commission

Richard BURKE

Member of the Commission