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COMMISSION OPINION

of 10 August 1984

addressed to the Government of France concerning the draft decree on road passenger transport

(Only the French text is authentic)

(84/436/EEC

In accordance with Article 1 of the Council Decision of 21 March 1962 instituting a procedure for prior examination and consultation in respect of certain laws, regulations and administrative provisions concerning transport proposed in Member States (1), as amended by Council Decision 73/402/EEC of 22 November 1973 (2), the French Government notified the Commission, in a letter of 10 July 1984 from the Office of its Permanent Representative to the European Communities, of a draft decree on road passenger transport.

The Commission received the letter from the Office of the Permanent Representative on 16 July 1984 and, in accordance with Article 1 of the abovementioned Council Decision, the other Member States were also notified.

In a letter of 20 July 1984 to the Directorate-General for Transport, the Office of the French Permanent Representative requested the emergency procedure provided for in Article 2 (4) of the Council Decision. The Directorate-General for Transport received this letter on 24 July.

The Commission arranged a briefing session with representatives of the French Government in Brussels on 26 July. At the meeting these representatives gave Commission officials a version of the draft decree which had been amended extensively compared with the version sent with the letter of 10 July.

No Member State has asked for consultation and the Commission has not considered it appropriate to consult all Member States on the measure in question.

In accordance with Article 2 (1) of the Council Decision the Commission has formulated the following opinion:

1. The Commission notes that, according to the French Government, the purpose of the draft decree is to take measures required to implement Articles 7, 27 and 29 of Law No 82-1153 of 30 December 1982, a framework law on inland transport. The Commission gave its opinion (3) on the draft law on 15 December 1982. The Commission also notes that the draft decree concerns only road passenger transport inside France with the exception of the Île de France (the Paris region) since special legal provisions are to be enacted in the near future to implement the law in that region.

The Commission notes that the implementing measures proposed in the draft decree relate to:

- organization of the registration required of undertakings engaged in public road passenger transport activities,

- definition and organization of the various types of road passenger transport service,

- rules on admission to the occupation of road passenger transport operator on domestic routes.

2. The Commission considers that the French Government should take this opportunity to align national definitions of regular and occasional services on the definitions adopted by the Community to the international carriage of passengers by road between Member States in Regulation No 117/66/EEC (4).

The Commission notes that the provisions of the operating regulation referred to in Article 8 of Decree No 49-1473 of 14 November 1949, which is to be repealed, will be embodied in the agreements to be concluded with public and private undertakings providing regular services and ad hoc services.

3. As regards rules on admission to the occupation of road passenger transport operator, the Commission would make the following remarks and recommendations having regard to 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 (5):

(a) Article 2 of the draft decree, in conjunction with Articles 5 and 13, exempts from registration as a road passenger transport undertaking, and thereby exempts from the rules on admission to the occupation of road passenger transport op- erator, transport authorities set up by a regional body which do not have legal personality but only financial autonomy. This exemption contravenes the provisions of the second paragraph of Article 1 (2) of Directive 74/562/EEC which states that 'any official body, whether having its own legal personality or being dependent upon an authority having such personality' is bound by the rules on admission to the occupation of road passenger transport operator.

The Commission asks the French Government to change the wording of Article 2 of its draft in order to make it comply with Directive 74/562/EEC.

(b) The Commission has taken note of Article 7 (a) of the draft decree which reduces the list of diplomas exempting the holder from the requirement to prove professional competence listed in the interdepartmental decree of 31 December 1977, which means that exemption now applies only to holders of diplomas from an establishment offering courses in transport and approved and an interdepartmental decree.

The Commission is of the opinion that this amendment conforms with Directive 74/562/EEC, although it cannot finally decide whether Article 7 of the draft decree is compatible until it sees the future draft implementing orders mentioned by the French Government.

The Commission asks the French Government to communicate these draft orders in good time.

(c) The Commission has noted the statements made by the French Government at the briefing session on 26 July 1984 that the rules concerning good repute and appropriate financial standing shall, as at present, be covered separately from the rules on professional competence and will continue to be governed by the Law of 30 August 1947 on the reorganization of commercial and industrial occupations and the Law of 22 October 1940 on payment by cheque and bank transfer.

(d) The Commission also notes that, as stated by the French Government, the requirement to state grounds for decisions rejecting an application for admission to the occupation of road passenger transport operator and ways of appealing against these decisions, within the meaning of Article 5 (1) of Directive 74/562/EEC, are covered by the Law of 11 July 1979 and the Decree of 28 November 1983 on the stating of grounds for administrative acts and improvement of relations between the authorities and the public.

(e) With regard to Article 12 of the draft decree, the Commission has taken note of the statement made by the French Government at the briefing session on 26 July 1984 to the effect that the second and third paragraphs of Article 12 will be deleted.

(f) Article 37 (a) of the draft decree, which defines 'services carrying their own staff organized by a public body or by an undertaking for their normal working needs' as private services, seems to exempt transport operators providing these services from the rules on admission to the occupation of road passenger transport operator. The Commission has taken note of the statements made by the French Government that road passenger transport operators providing these services will be subject to these rules.

In order to preclude any ambiguity the Commission asks the French Government to make this point clear in Article 37 (a).

(g) The Commission would draw the attention of the French Government to the differences in treatment between national and international carriers and also between carriers in the Île de France and national carriers which could arise, in respect of admission to the occupation of road passenger transport operator, from Article 52 of the draft decree.

4. The Commission is informing the other Member States of this recommendation.

Done at Brussels, 10 August 1984.

For the Commission

Giorgios CONTOGEORGIS

Member of the Commission

(1) OJ No 23, 3. 4. 1962, p. 720/62.

(2) OJ No L 347, 17. 12. 1972, p. 48.

(3) OJ No L 361, 22. 12. 1982, p. 27.

(4) OJ No 147, 9. 8. 1966, p. 2688/66.

(5) OJ No L 308, 19. 11. 1974, p. 23.