COMMISSION RECOMMENDATION of 12 May 1978 to the Government of Ireland regarding draft Regulations implementing Council Directive 74/561/EEC on admission to the occupation of road haulage operator in national and international transport operations (78/482/EEC)

Under cover of a letter dated 22 July 1977, the Office of the Irish Permanent Representative to the European Communities forwarded to the Commission, for consultation purposes, the text of draft Regulations implementing Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (1).

This notification was made pursuant to Article 7 (1) of that Directive.

The Commission regrets the tardy notification of the implementing measures : not only has the Irish Government thereby exceeded the time limit for fulfilling the obligations incumbent upon it under Article 7 of Directive 74/561/EEC but also it has made it impossible for the Commission to adopt this recommendation in good time.

The Commission makes the following recommendation regarding the draft Regulations: 1. The Commission notes that the Irish Government's draft Regulations satisfy in principle the provisions of the Community Directive as regards admission to the occupation of road haulage operator, subject to approval of the implementing measures which have yet to be taken and to the following amendments to be made to them.

2. Regulation 3 (1) of the draft Regulations prohibits any person engaged in the occupation of road haulage operator from carrying goods unless he is the holder of a national or international road freight certificate. This Regulation therefore covers only "persons", a term which is not defined any further, and does not include undertakings.

The Irish Government has explained that in its national legislation the term "person" covers both natural and legal persons.

However, in view of the definition of the term "undertakings" contained in the second subparagraph of Article 1 (2) of the Community Directive, which covers associations, groups and bodies, some of which may not fall within the categories of natural and legal persons, the Commission recommends that the Irish Government provide expressly that the provisions of the proposed Regulations apply to the admission of both persons and undertakings to the occupation of road haulage operator.

3. The Commission also notes that Regulation 3 (2) of the draft Regulations exempts certain categories of transport operation from the application of Regulation 3 (1) (the possession of a road freight certificate constituting proof of satisfaction of the conditions of good repute, financial standing and professional competence).

However, Article 2 of the Directive does not provide for the possibility of exemption for certain types of transport operation, but for natural persons or undertakings engaged exclusively in certain transport operations.

The Commission therefore recommends, in the interests of clarity, that Regulation 3 (2) of the draft Regulations be amended to ensure compliance with Article 2 of the Directive.

4. The Commission also notes that Regulation 3 (2) of the draft Regulations exempts certain categories of transport operation from the requirement of possession of a road freight certificate. These include the following cases: (a) the carriage is by means of a lorry or tractor which complies with the conditions specified in section 7 (1) of the Road Transport Act 1935 (No 23 of 1935), as amended by section 29 of the Transport Act 1958 (No 19 of 1958), and which is used in the course of international transport;

(b) the carriage of cattle, sheep or pigs within the State.

The Commission considers that the transport operations referred to under (a) fall within the scope of the Directive, since they do not fall in the categories of transport operation exempted by Article 2 of the Directive (transport operations having only a minor impact on the transport market because of the nature of the goods carried or the short distance involved). (1) OJ No L 308, 19.11.1974, p. 18. As regards the transport operations referred to under (b) (the carriage of cattle, sheep or pigs within the State), the Commission believes, first, that they can be excluded from the scope of the Directive only if the operators concerned are engaged exclusively in this type of transport operation (e.g. they use vehicles which are built and equipped permanently for this purpose) ; and secondly that they can be regarded as having a minor impact on the transport market in question only if they are effected over short distances.

As regards the other exemptions provided for in Regulation 3 (2) of the draft Regulations (the carriage of turf and milk - subparagraphs (iii), (iv) and (v) of Regulation 3 (2) (b) - and farm-to-farm transport operations - Regulation 3 (2) (d)), the Commission has no objections to these, provided that the condition of exclusive engagement in such transport operations laid down in Article 2 of the Community Directive is fulfilled.

The Commission therefore recommends that Regulation 3 (2) of the draft Regulations be amended in the light of these comments.

5. On the principle of good repute, the Commission notes that Article 3 (2) of the Directive states that, pending coordination at a later date, each Member State shall determine the provisions relating to good repute which must be satisfied by the applicant.

The Commission, however, considers the provisions of the draft Regulations, in particular paragraphs (9) and (11) of Regulation 5, are unclear and incomplete.

In the interests of clarity, the Commission requests the Irish Government to incorporate new provisions in the draft Regulations defining the conditions regarding good repute which must be satisfied.

6. Paragraphs (1) and (2) of Regulation 8 of the draft Regulations grant temporary permission to carry on a road transport business in the event of the death or illness of the holder of a road freight certificate.

The Commission considers that these provisions do not fully meet the requirements of Article 4 (1) of the Community Directive because: (a) the draft Regulations do not define the conditions under which a business can continue to be run;

(b) they refer only to death and incapacity caused by ill-health, but do not mention legal incapacity.

The Commission therefore recommends that the Irish Government amend paragraphs (1) and (2) of Regulation 8 of the draft Regulations to satisfy the requirements of Article 4 (1) of the Community Directive.

7. Regulation 13 (4) of the draft Regulations provides that a certificate of professional competence may be granted by the Minister to any applicant if he holds: (a) a Chartered Institute of Transport intermediate or final examination pass ; or

(b) a university degree or other third level qualification which has called for a study of transport ; or

(c) any other qualification which the Minister is satisfied is equivalent to one of the qualifications referred to above.

The Commission notes that Article 3 (4) of the Community Directive allows Member States to exempt the applicant from having to furnish proof of professional competence if he holds certain advanced diplomas or technical diplomas implying sound knowledge of the subjects listed in the Annex to the Directive. This provision implies that Member States which decide to make use of this option must establish exactly which diplomas may justify the exemption in question.

Accordingly, the provision which leaves it to the Minister's discretion to decide whether a professional qualification is equivalent to that called for in the Community Directive is not compatible with Article 3 (4) of the Directive, and should therefore be deleted.

8. Subparagraph (a) of Regulation 13 (5) of the draft Regulations states : "Where a person satisfies the Minister that he holds a qualification and that the holding of such a qualification implies that the holder thereof has a knowledge sufficient for the purposes of these Regulations of one or more of the subjects listed in the Annex to the Directive, the Minister may grant to the person an exemption as regards that subject or subjects."

This partial exemption from the requirement to furnish proof of knowledge of one or more subjects does not comply with Article 3 (4) of the Directive, which provides : "Member States may exempt from the application of these provisions the holders of certain advanced diplomas or technical diplomas implying sound knowledge of the subjects listed in the Annex."

The Commission therefore recommends that subparagraph (a) of Regulation 13 (5) of the draft Regulations be amended to ensure compliance with Article 3 (4) of the Directive.

Done at Brussels, 12 May 1978.

For the Commission

Richard BURKE

Member of the Commission