Opinion of the Economic and Social Committee on the 'Proposal for a Council Regulation laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State` () (97/C 30/16)

On 7 February 1996 the Council decided to consult the Economic and Social Committee, under Article 75 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport and Communications, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 24 July 1996. The rapporteur was Mr Ghigonis.

At its 338th Plenary Session of 25 and 26 September 1996 (meeting of 25 September 1996), the Economic and Social Committee adopted the following Opinion by 77 votes to eight with six abstentions.

1. Thrust of the proposed Regulation

1.1. The proposal for a Council Regulation, on the one hand, incorporates the text of Regulation 2454/92 () which was annulled by the Court of Justice (), and on the other, introduces some changes, the most important of which are described below:

- Non-discriminatory treatment on the grounds of the carrier's nationality is reinforced by a supplementary clause.

- A distinction is made between 'regular services` and 'regular international services`. A definition of regular international services has been inserted from EEC Regulation 684/92 ().

- A definition of 'occasional services` has been taken in part from Regulation 684/92. The shuttle services category has been deleted, since it does not exist in the national legislation of the Member States. Shuttle services are classified as 'regular services` or 'occasional services`, according to the features of the service.

- The scope has been widened to include regular services and all special regular services.

1.2. Under the new proposal, cabotage transport operations are allowed:

- for all occasional services: with effect from 1 January 1996, with the journey form as control document;

- for all special regular services: with effect from 1 January 1996, with the carrier/organizer contract and the journey form as control documents;

- in connection with a regular international service operated by a non-resident carrier: with effect from 1 January 1996, but subject to authorization from the host Member State;

- for all other regular services: from 1 January 1996, subject to the conditions in Article 5(2).

1.3. The basic principles for the application procedure and granting of authorization for cabotage in connection with a regular international service are taken from EEC Regulation 684/92. Nevertheless, the conditions for rejecting an application have been changed. The provision of Regulation EEC 684/92, according to which an application for authorization may be rejected if it can be shown that the service in question would seriously affect the viability of a comparable rail service on the direct sections concerned, has been omitted.

1.4. The performance of cabotage transport operations remains subject to the laws, regulations and administrative provisions in force in the host Member States.

1.4.1. Nevertheless, a specific provision has been included for regular services not performed as part of a regular international service (Art.5(2)). According to this provision, the performance of such services is subject, save as otherwise provided in Community legislation, to the existing laws, regulations and administrative provisions in force in the host Member State, regarding the routes to be operated and the regularity, continuity and frequency of services.

1.4.2. The Regulation retains the certificate for carriers wishing to perform cabotage transport operations (Article 6).

2. General comments

2.1. It was with great interest that the Committee took note of this new proposal on cabotage in road passenger transport, and it welcomes the fact that, compared to the provisions of the current Regulation 2454/92, the principle of the freedom to provide services has been extended.

2.1.1. Given that regular services are not covered by the current Regulation, the Committee is surprised at the speed with which these services are to be liberalized.

2.1.2. The Committee feels that gradual liberalization of cabotage for regular services might perhaps have been more appropriate.

2.1.3. In view of the extent of the changes and the undoubted impact the proposed liberalization will have on intra-Community and national road passenger transport services in the Member States, the Committee regrets that the Commission failed to present the report on the cabotage situation mentioned in Article 12 of Regulation 2454/92, before going ahead with the new proposal, and that the sector was not consulted.

2.1.4. The proposed amendment to Regulation 684/92 which has just been published, provides much of the groundwork for several provisions of the new cabotage proposal. The Committee therefore feels that the two new proposals should have been dealt with in tandem, with a view to harmonizing the legislation governing road passenger transport.

2.1.5. The proposed amendment to Regulation 684/92 introduces some new provisions (e.g. removal of shuttle services) for the definition of 'services`, the application procedure for authorization to perform regular services, and the introduction of a Community licence for road passenger transport; this replaces the national certificates delivered by the competent authorities of the Member State of establishment, confirming that the carrier may operate on the international road passenger transport market.

2.1.6. The new provisions in the proposed amendment will have an enormous effect on the wording of the new cabotage proposal; accordingly, it should be given due consideration.

2.2. Nevertheless, the Committee has some comments to make regarding the new cabotage proposal for road passenger transport services.

2.2.1. Concerning the definition of cabotage, the Committee notes that the principle of non-discriminatory treatment on the grounds of the carrier's nationality or place of establishment has been given a welcome boost. Nevertheless, the Committee would like to see a clearer explanation of the term 'registered office or other establishment`, since a single carrier can have several registered offices in separate Member States.

2.2.2. The Committee also notes that a distinction has been drawn between cabotage operations for regular national services, and those for regular international services, and that cabotage operations for special regular services have been extended beyond the frontier zone.

2.2.3. The Committee notes that each Member State lays down its own specific conditions under which carriers may operate regular national services and special regular services.

2.2.4. The Committee feels that these two sectors should not be jeopardized; they are often in a difficult position in many Member States, and this leads to excessive competition. A more prudent approach should be adopted for these services.

2.2.5. The Committee suggests that cabotage operations for special regular services should be governed by the same conditions as those for regular national services, referred to as other regular services in the proposal.

2.2.6. In this context, it suggests deferring the extension of cabotage operations for other regular services, so that the sector will have time to gear itself up for competition.

2.2.6.1. So that the sector can gear itself up for competition, the conditions for ensuring a level playing field, such as those laid down in Articles 4 and 5 of the proposed Regulation, must be defined more precisely.

2.2.6.2. This also applies to the 'temporary` nature of the freedom to carry out cabotage operations, as defined in Article 1 of Regulation 2454/92.

2.2.7. Concerning cabotage operations for regular international services, the Committee feels that the proposal should give a clearer indication of the conditions under which these services may be provided, in order to avoid an unwarranted surge in competition for regular services including regular urban services which are operated nationally only.

2.2.8. The Committee notes that two distinct approaches have been created for the application procedure and granting of authorization for cabotage: one for cabotage on international services and one for regular national services.

2.2.8.1. For the latter, application and authorization procedures are more stringent. Nevertheless, a certain lack of clarity remains. Potential applicants will have to deal with a number of grey areas, and this could make it difficult to police the cabotage system.

2.2.8.2. The procedure will also lead to the creation of 15 different cabotage systems, and most certainly cause distortions of competition between carriers of different nationalities. Early harmonization of national regulations is therefore desirable: in this connection, consideration must be given to the competition conditions of domestic carriers.

2.2.9. Finally, on the subject of control documents, the Committee notes that despite the introduction of a Community licence for road passenger transport, the new cabotage proposal retains the certificate for carriers who wish to perform cabotage operations.

2.2.10. The Committee believes that the number of control documents should be kept to the bare minimum, in order to smooth out procedures for carriers.

2.2.11. Moreover, in January the Commission presented a Green Paper on the Citizens' Network, in order to launch a debate on public transport and its legislative framework. Since the new proposal also deals with public transport, the Committee regrets that the Commission was unable to await the outcome of these discussions before presenting new regulations for the sector and calls on the Commission to give due consideration to the Committee Opinion on the Green Paper.

3. Proposed amendments

Text of the Proposal Text proposed by ESC

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Brussels, 25 September 1996.

The President of the Economic and Social Committee

Carlos FERRER

() OJ No C 60, 29. 2. 1996, p. 10.

() OJ No L 251, 29. 8. 1992, p. 1.

() Case C - 388/92.

() OJ No L 74, 20. 3. 1992, p. 1.