COMMON POSITION (EC) No 25/98 adopted by the Council on 17 March 1998 with a view to adopting Council Directive 98/. . ./EC of . . . amending Directive 96/26/EC on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations (98/C 161/02)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 75(1) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (3),

(1) Whereas the differences between national regulations on admission to the occupation of road transport operator and the mutual recognition of diplomas, certificates and other evidence of formal qualifications could lead to distortions of competition;

(2) Whereas it is therefore necessary to continue the process of harmonisation in this area, within the operational framework of the internal market, by further strengthening the common rules provided for in Directive 96/26/EC (4);

(3) Whereas it is necessary, because of developments in the road haulage market and the operational requirements of the internal market, to extend the scope of Directive 96/26/EC to certain categories of road haulage operators for hire or reward using low-tonnage vehicles, such as courier services, subject to a specific derogation for road haulage undertakings engaged in local short-distance transport operations and using vehicles of a maximum authorised weight of between 3,5 and 6 tonnes;

(4) Whereas with regard to good repute, provision should be made for more stringent requirements, including requirements concerning the protection of the environment and professional liability;

(5) Whereas with regard to financial standing, it is necessary, in order to avoid imbalances in the market, to fix appropriate available capital and reserves at a higher minimum level and to fix the value of the ecu in national currencies every five years;

(6) Whereas, with regard to professional competence, it is necessary that applicant road transport operators provide proof of a harmonised minimum level of training in the same subjects and that they hold certificates, drawn up in accordance with a comparable model, certifying professional competence, in the commercial field in particular, at a harmonised minimum level and on the basis of uniform testing methods in all the Member States; whereas it is also necessary, for this purpose, to harmonise certain aspects of the organisation of the examination;

(7) Whereas certain Member States organise compulsory courses of preparation for the examinations of professional competence for applicants normally resident within their territories;

(8) Whereas, therefore, the levels of knowledge to be taken into consideration for the issue of a certificate of professional competence, without prejudice to Directive 92/26/EC, differ from one Member State to another; whereas, because of these differences, national measures are therefore likely to vary considerably within the framework defined in Annex I to the said Directive, particularly as regards the qualifications of transport operators, the quality of service and road safety;

(9) Whereas it should be accepted that, for a limited period and after consulting the Commission, Member States may require persons who have never previously obtained a certificate of professional competence in a Member State, but who have passed an examination of professional competence in one Member State when they were normally resident in another Member State where they intend to take up the occupation of road transport operator for the first time, to sit an additional examination; whereas such additional examination must cover areas in which national aspects of the profession differ from those of the Member State where they passed the examination, in particular the specific national commercial, social, fiscal and technical aspects or aspects linked to the organisation of the market and to company law;

(10) Whereas it is necessary to introduce transitional measures for the implementation of Directive 96/26/EC in Austria, Finland and Sweden;

(11) Whereas it is necessary to check periodically whether authorised transport operators still fulfil the requirements of good repute, financial standing and professional competence;

(12) Whereas it is necessary for Member States to impose effective, proportionate and dissuasive penalties in the interests of the smooth operation of the internal market,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 96/26/EC is hereby amended as follows:

1. in Article 1(2),

- the first indent shall be replaced by the following:

'- "the occupation of road haulage operator" shall mean the activity of any undertaking transporting goods for hire or reward by means of either a motor vehicle or a combination of vehicles,`;

- the following indent shall be added:

'- "normal residence" shall mean the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living.

However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. This last condition shall not be required where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence.`;

2. in Article 2:

- paragraph 1 shall be replaced by the following:

'1. This Directive shall not apply to undertakings engaged in the occupation of road haulage operator by means of motor vehicles or combinations of vehicles the maximum authorised weight of which does not exceed 3,5 tonnes. Member States may, however, lower this limit for all or some categories of transport operations.`,

- the present text of paragraph 2 shall become paragraph 2(a) and the following subparagraph shall be inserted:

'(b) In the case of undertakings engaged in the occupation of road haulage operator using vehicles the maximum authorised weights of which are between 3,5 and 6 tonnes the Member States may, after informing the Commission, exempt from the application of all or part of this Directive undertakings engaged exclusively in local transport and having only a minor impact on the transport market because of the short distances involved.`;

3. in Article 3:

- paragraph 2(c) shall be replaced by the following:

'(c) have been convicted of serious offences against the rules in force concerning:

- the pay and employment conditions in the profession, or

- road haulage or road passenger transport, as appropriate, in particular the rules relating to drivers' driving and rest periods, the weights and dimensions of commercial vehicles, road safety and vehicle safety, the protection of the environment and the other rules concerning professional liability.`,

- paragraph 3(c) shall be replaced by the following:

'(c) The undertaking must have available capital and reserves of at least ECU 9 000 when only one vehicle is used and at least ECU 5 000 for each additional vehicle.

For the purposes of this Directive, the value of the ecu in national currencies shall be fixed every five years. The rates to be applied shall be those obtained on the first working day of October and published in the Official Journal of the European Communities. They shall have effect from 1 January of the following calendar year.`,

- paragraph 3(d) shall be replaced by the following:

'(d) For the purposes of subparagraphs (a), (b) and (c) the competent authority may accept or require, by way of proof, the confirmation or assurance provided by a bank or other properly qualified institution. Such confirmation or assurance may be given by a bank guarantee, possibly in the form of a pledge or security, or by any other similar means.`,

- paragraph 4 shall be replaced by the following:

'4. (a) The condition relating to professional competence shall consist in the possession of knowledge corresponding to the level of training provided for in Annex I in the subjects listed therein. It shall be established by means of a compulsory written examination which may be supplemented by an oral examination organised in the form set out in Annex I by the authority or body designated for that purpose by the Member State.

(b) Member States may exempt from examination applicants who provide proof of at least five years' practical experience in a transport undertaking at management level, provided such applicants sit a test, the arrangements for which shall be determined by the Member States in accordance with Annex I.

(c) Member States may exempt the holders of certain advanced diplomas or technical diplomas, which provide proof of a sound knowledge of the subjects listed in Annex I to be defined by them, from sitting an examination in the subjects covered by the diplomas.

(d) A certificate issued by the authority or body referred to in (a) shall be produced as proof of professional competence. This certificate shall be drawn up in accordance with the form of certificate set out in Annex Ia.

(e) With regard to applicants intending to perform the effective and continuous management of undertakings engaging solely in national transport operations, Member States may stipulate that the knowledge to be taken into consideration in order to establish professional competence shall cover only subjects relating to national transport. In that case, the certificate of professional competence, a model of which is contained in Annex Ia hereto, shall state that the holder is qualified to perform the effective and continuous management of undertakings engaging solely in transport operations within the Member State that issued the certificate.

(f) After consulting the Commission a Member State may require that any natural person who holds a certificate of professional competence issued by a competent authority in another Member State after . . . (*) when that person was normally resident in the first Member State sit an additional examination organised by the authority or body designated for that purpose by the first Member State. The additional examination shall cover the specific knowledge relating to the national aspects of the occupation of road haulage operator in the first Member State.

This point shall apply for a period of three years from . . . (*). That period may be extended for a further maximum period of five years by the Council acting on a proposal from the Commission according to the rules of the Treaty. It shall apply only to natural persons who, when they obtained the certificate of professional competence under the conditions referred to in the first subparagraph, had not yet obtained the said certificate in a Member State.

(*) One year after the date of entry into force of this Directive.`;

4. in Article 5:

- in paragraph 1 the following indent shall be added:

'- 1 January 1995 for Austria, Finland and Sweden.`,

- in paragraph 2, first subparagraph, the following indent shall be added after the indent commencing '- after 2 October 1989`:

'- after 31 December 1994 and before 31 December 1996 for Austria, Finland and Sweden,`,

- in paragraph 2 following indent shall be added at the end of the first subparagraph after the indent commencing '- 1 July 1992`:

'- 1 January 1997 for Austria, Finland and Sweden,`,

- the following paragraph shall be added:

'3. (a) All undertakings that are authorised to engage in the occupation of road transport operator before . . . (*) shall, as regards the fleets of vehicles they operate on that date, comply with Article 3(3) no later than . . . (**).

Such undertakings shall, however, fulfil the conditions imposed in Article 3(3) as regards any additions to their fleets after . . . (*).

(b) Undertakings engaged in the occupation of road haulage operator before . . . (*) by means of vehicles for which the maximum authorised weights are between 3,5 and 6 tonnes shall comply with the conditions imposed in Article 3(3) no later than . . . (**).

(*) Deadline for the implementation of this Directive laid down in Article 2(1).

(**) Two years after the deadline for the application of this Directive.`;

5. in Article 6(1) the following subparagraph shall be added:

'Member States shall ensure that the competent authorities check regularly and at least every five years that undertakings still fulfil the requirements of good repute, financial standing and professional competence.`;

6. in Article 7:

- the beginning of paragraph 1 shall be replaced by '1. Where offences against the rules . . .`,

- the existing paragraph 2 shall be deleted and the existing paragraph 3 shall become new paragraph 2;

7. in Article 8:

- in paragraph 2 the words 'or of no previous bankruptcy` shall be deleted,

- in paragraph 4 the last sentence shall be deleted;

8. in Article 10(3) the date of 1 January 1990 shall be replaced by the date laid down in Article 2(1), first subparagraph, of this Directive;

9. the following Articles shall be inserted after Article 10:

'Article 10a

Member States shall provide for systems of penalties for infringements of the national provisions adopted in accordance with this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided for shall be effective, proportionate and dissuasive.

Article 10b

After . . . (*) Member States shall recognise as sufficient proof of professional competence certificates complying with the form of certificate set out in Annex Ia and issued by the authority or body designated for that purpose by each other Member State.

(*) One year after the date of entry into force of this Directive.`;

10. Annex I shall be replaced by Annex I to this Directive and Annex Ia as set out in Annex II to this Directive shall be added.

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than . . . (5*). They shall forthwith inform the Commission thereof.

When the Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. The Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field governed by this Directive.

Article 3

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Brussels, . . .

For the Council

The President

(1) OJ C 95, 24.3.1997, p. 66 and OJ C 324, 25.10.1997, p. 6.

(2) OJ C 287, 22.9.1997, p. 21.

(3) Opinion of the European Parliament of 17 July 1997 (OJ C 286, 22.9.1997, p. 224), Council common position of 17 March 1998 and European Parliament Decision of . . . (not yet published in the Official Journal).

(4) OJ L 124, 23.5.1996, p. 1.

(5*) One year after the date of entry into force of this Directive.

ANNEX I

'ANNEX I

I. LIST OF SUBJECTS REFERRED TO IN ARTICLE 3(4)

The knowledge to be taken into consideration for the official recognition of professional competence by the Member States must cover at least the subjects listed below for road haulage and road passenger transport respectively. In relation to these subjects, applicant road haulage and road passenger transport operators must have the levels of knowledge and practical aptitude necessary for the management of a transport undertaking.

The minimum level of knowledge, as indicated below, may not be below level 3 of the training-level structure laid down in the Annex to Decision 85/368/EEC (1), that is the level achieved in training acquired in the course of compulsory education supplemented either by vocational training and supplementary technical training or by secondary-level school technical training.

A. Civil law

Road haulage and passenger transport

The applicant must, in particular:

1. be familiar with the main types of contract used in road transport and with the rights and obligations arising therefrom;

2. be capable of negotiating a legally valid transport contract, notably with regard to conditions of carriage;

Road haulage

3. be able to consider a claim by his principal regarding compensation for loss of or damage to goods during transportation or for their late delivery, and to understand how such a claim affects his contractual liability;

4. be familiar with the rules and obligations arising from the CMR Convention on the contract for the international carriage of goods by road;

Road passenger transport

5. be able to consider a claim by his principal regarding compensation for injury to passengers or damage to their baggage caused by an accident during transportation, or regarding compensation for delays, and to understand how such a claim affects his contractual liability.

B. Commercial law

Road haulage and passenger transport

The applicant must, in particular:

1. be familiar with the conditions and formalities laid down for plying the trade, the general obligations incumbent upon transport operators (registration, keeping records, etc.) and the consequences of bankruptcy;

2. have appropriate knowledge of the various forms of commercial company and the rules governing their constitution and operation.

C. Social law

Road haulage and passenger transport

The applicant must, in particular:

1. be familiar with the role and function of the various social institutions which are concerned with road transport (trade unions, works councils, shop stewards, labour inspectors, etc.);

2. be familiar with the employers' social security obligations;

3. be familiar with the rules governing work contracts for the various categories of worker employed by road transport undertakings (form of the contracts, obligations of the parties, working conditions and working hours, paid leave, remuneration, breach of contract, etc.);

4. be familiar with the provisions of Regulation (EEC) No 3820/85 (1) and Regulation (EEC) No 3821/85 (2) and the practical arrangements for implementing these Regulations.

D. Fiscal law

Road haulage and passenger transport

The applicant must, in particular, be familiar with the rules governing:

1. VAT on transport services;

2. motor-vehicle tax;

3. the taxes on certain road haulage vehicles and tolls and infrastructure user charges;

4. income tax.

E. Business and financial management of the undertaking

Road haulage and passenger transport

The applicant must, in particular:

1. be familiar with the laws and practices regarding the use of cheques, bills of exchange, promissory notes, credit cards and other means or methods of payment;

2. be familiar with the various forms of credit (bank credit, documentary credit, guarantee deposits, mortgages, leasing, renting, factoring, etc.) and with the charges and obligations arising from them;

3. know what a balance sheet is, how it is set out and how to interpret it;

4. be able to read and interpret a profit and loss account;

5. be able to assess the undertaking's profitability and financial position, in particular on the basis of financial ratios;

6. be able to prepare a budget;

7. be familiar with his undertaking's cost elements (fixed costs, variable costs, working capital, depreciation, etc.), and be able to calculate costs per vehicle, per kilometre, per journey or per tonne;

8. be able to draw up an organisation chart relating to the undertaking's personnel as a whole and to organise work plans, etc.;

9. be familiar with the principles of marketing, publicity and public relations, including transport services sales promotion and the preparation of customer files, etc.;

10. be familiar with the different types of insurance relating to road transport (liability, accidental injury/life insurance, non-life and luggage insurance) and with the guarantees and obligations arising therefrom;

11. be familiar with the applications of electronic data transmission in road transport;

Road haulage

12. be able to apply the rules governing the invoicing of road haulage services and know the meaning and implications of Incoterms;

13. be familiar with the different categories of transport auxiliaries, their role, their functions and, where appropriate, their status;

Road passenger transport

14. be able to apply the rules governing fares and pricing in public and private passenger transport;

15. be able to apply the rules governing the invoicing of road passenger transport services.

F. Access to the market

Road haulage and passenger transport

The applicant must, in particular:

1. be familiar with the occupational regulations governing road transport for hire or reward, industrial vehicle rental and sub-contracting, and in particular the rules governing the official organisation of the occupation, admission to the occupation, authorisations for intra- and extra-Community road transport operations, inspections and sanctions;

2. be familiar with the rules for setting up a road transport undertaking;

3. be familiar with the various documents required for operating road transport services and be able to introduce checking procedures for ensuring that the approved documents relating to each transport operation, and in particular those relating to the vehicle, the driver, the goods and luggage are kept both in the vehicle and on the premises of the undertaking;

Road haulage

4. be familiar with the rules on the organisation of the market in road haulage services, on freight handling and logistics;

5. be familiar with frontier formalities, the role and scope of T documents and TIR carnets, and the obligations and responsibilities arising from their use;

Road passenger transport

6. be familiar with the rules on the organisation of the market in road passenger transport;

7. be familiar with the rules for introducing road passenger transport services and be able to draw up transport plans.

G. Technical standards and aspects of operation

Road haulage and passenger transport

The applicant must, in particular:

1. be familiar with the rules concerning the weights and dimensions of vehicles in the Member States and the procedures to be followed in the case of abnormal loads which constitute an exception to these rules;

2. be able to choose vehicles and their components (chassis, engine, transmission system, braking system, etc.) in accordance with the needs of the undertaking;

3. be familiar with the formalities relating to the type approval, registration and technical inspection of these vehicles;

4. understand what measures must be taken to reduce noise and to combat air pollution by motor vehicle exhaust emissions;

5. be able to draw up periodic maintenance plans for the vehicles and their equipment;

Road haulage

6. be familiar with the different types of cargo-handling and loading devices (tailboards, containers, pallets, etc.) and be able to introduce procedures and issue instructions for loading and unloading goods (load distribution, stacking, stowing, blocking and chocking, etc.);

7. be familiar with the various techniques of 'piggy-back` and roll-on roll-off combined transport;

8. be able to implement procedures for complying with the rules on the carriage of dangerous goods and waste, notably those arising from Directive 94/55/EC (1), Directive 96/35/EC (2) and Regulation (EEC) No 259/93 (3);

9. be able to implement procedures for complying with the rules on the carriage of perishable foodstuffs, notably those arising from the Agreement on the international carriage of perishable foodstuffs and on the special equipment to be used for such carriage (ATP);

10. be able to implement procedures for complying with the rules on the transport of live animals.

H. Road safety

Road haulage and passenger transport

The applicant must, in particular:

1. know what qualifications are required for drivers (driving licence, medical certificates, certificates of fitness, etc.);

2. be able to take the necessary steps to ensure that drivers comply with the traffic rules, prohibitions and restrictions in force in different Member States (speed limits, priorities, waiting and parking restrictions, use of lights, road signs, etc.);

3. be able to draw up drivers' instructions for checking their compliance with the safety requirements concerning the condition of the vehicles, their equipment and cargo, and concerning preventive measures to be taken;

4. be able to lay down procedures to be followed in the event of an accident and to implement appropriate procedures for preventing the recurrence of accidents or serious traffic offences;

Road passenger transport

5. have elementary knowledge of the layout of the road network in the Member States.

II. ORGANISATION OF THE EXAMINATION

1. Member States shall organise a compulsory written examination which they may supplement by an optional oral examination to establish whether applicant road transport operators have achieved the required level of knowledge in the subjects listed in Part I, in particular, their capacity to use the instruments and techniques relating thereto and to fulfil the corresponding executive and coordination duties.

(a) The compulsory written examination shall involve two tests, namely:

- written questions consisting of either multiple choice questions (each with four possible answers), questions requiring direct answers or a combination of both systems,

- written exercises /case studies.

The minimum duration of each test is two hours.

(b) Where an oral examination is organised, Member States may stipulate that participation is subject to successful completion of the written examination.

2. Where Member States also organise an oral examination, they must provide, in respect of each of the three tests, for a weighting of marks of a minimum of 25 % and a maximum of 40 % of the total number of marks to be given.

Where Member States organise only a written examination they must provide, in respect of each test, for a weighting of marks of a minimum of 40 % and a maximum of 60 % of the total number of marks to be given.

3. With regard to all the tests, applicants must obtain an average of at least 60 % of the total number of marks to be given, achieving in any given test not less than 50 % of the total number of marks possible. In one test only, a Member State may reduce that mark from 50 % to 40 %.

(1) Council Decision 85/368/EEC of 16 July 1985 on the comparability of vocational training qualifications between the Member States of the European Community (OJ L 199, 31.7.1985, p. 56).

(1) Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ L 370, 31.12.1985, p. 1).

(2) Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ L 370, 31.12.1985, p. 8). Regulation as last amended by Commission Regulation (EC) No 1056/97 (OJ L 154, 12.6.1997, p. 21).

(1) Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road (OJ L 319, 12.12.1994, p. 7). Directive as last amended by Commission Directive 96/86/EC (OJ L 335, 24.12.1996, p. 43).

(2) Council Directive 96/35/EC of 3 June 1996 on the appointment and vocational qualification of safety advisers for the transport of dangerous goods by road, rail and inland waterway (OJ L 145, 19.6.1996, p. 10).

(3) Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ L 30, 6.12.1993, p. 1). Regulation as last amended by Regulation (EC) No 120/97 (OJ L 22, 24.1.1997, p. 14).`

ANNEX II

'ANNEX Ia

EUROPEAN COMMUNITY

>START OF GRAPHIC>

(Stout fawn paper - Format: DIN A4)

(Text in the official language(s) or one of the official languages of the Member State issuing the certificate)

Distinctive symbol of the Member State concerned (1)

Designation of the competent authority or body (2)

CERTIFICATE OF PROFESSIONAL COMPETENCE IN NATIONAL [AND INTERNATIONAL] (3) ROAD HAULAGE [PASSENGER TRANSPORT] (3)

No . . .

We (2), .

hereby certify:

(a) that (4) . . . . . . . . . . . . . . . . . . . . . born in . . . . . . . . . . . . . . . . . . . . . on .

has passed the tests of the examination (year: . . . . . . . . . . . . . . . . . . . . .; session: . . . . . . . . . . . . . . . . . . . . .) (5) organised for the award of the certificate of professional competence in national [and international] (3) road haulage [passenger transport] (3) in accordance with (6) .

(b) that the person referred to in (a) is qualified to work in a professional capacity in an undertaking responsible for road haulage [road passenger transport] (3):

- engaging solely in national transport (3),

- engaging in international transport (3).

This certificate constitutes the sufficient proof of professional competence referred to in Article 10(1) of Council Directive 96/26/EC of 29 April 1996 on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations.

Issued at . . . . . . . . . . . . . . . . . . . . ., on . . . . . . . . . . . . . . . . . . . . .

. (7)

(1) Distinctive symbol of the State: (B) Belgium, (DK) Denmark, (D) Germany, (GR) Greece, (E) Spain, (F) France, (IRL) Ireland, (I) Italy, (L) Luxembourg, (NL) Netherlands, (A) Austria, (P) Portugal, (FIN) Finland, (S) Sweden, (UK) United Kingdom.(2) Authority or body designated in advance for this purpose by each Member State of the European Community to issue this certificate.(3) Delete as appropriate.(4) Surname and forenames; place and date of birth.(5) Identification of the examination.(6) Reference to the provisions of national law adopted in this field in accordance with the abovementioned Directive.(7) Signature and stamp of the competent authority or body issuing the certificate.>END OF GRAPHIC>

`

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 5 February 1997, the Commission submitted to the Council a proposal for a Directive, based on Article 75(1) of the EC Treaty, amending Directive 96/26/EC on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations (1). The European Parliament delivered its opinion on 17 July 1997 (2) while the Economic and Social Committee delivered its on 28 May 1997 (3).

In the light of the European Parliament's opinion, on 6 October 1997 the Commission submitted an amended proposal to the Council (4).

On 17 March 1998 the Council adopted its common position in accordance with Article 189c of the EC Treaty.

II. AIM OF THE PROPOSAL

The amended Commission proposal aims to continue, in the context of the operation of the internal market, the process of harmonisation in the field of admission to the occupation of road transport operator.

The Commission considers that the extent of Community harmonisation achieved is no longer sufficient, as existing differences between national rules may result in distortion of competition owing to the development of the road transport market, in particular road haulage, and the establishment of freedom to provide services in this field.

It will be recalled that, in the case of road haulage, freedom to provide services will be established on 1 July 1998, when cabotage without quantitative restrictions will become possible.

The Commission therefore proposes strengthening the common rules laid down in Directive 96/26/EC.

III. ANALYSIS OF THE COUNCIL'S COMMON POSITION

The Council's common position provides inter alia for the following amendments to Directive 96/26/EC.

(a) As regards road haulage, the common position enlarges the scope of the Directive in force. That Directive actually applies to transport operators using vehicles whose maximum authorised weight (MAW) exceeds 6 tonnes, while the common position also covers transport operators using vehicles whose MAWs exceed 3,5 tonnes.

The common position does, however, restrict the extension of the scope provided for in the Commission proposal, which makes every road haulage operator subject to the common rules regardless of the weight of vehicle used.

(b) As regards the requirement of good repute, the common position provides that that requirement shall not or shall no longer be fulfilled if an operator has been convicted of serious offences against certain rules governing transport, including offences against rules concerning the protection of the environment and professional liability.

Article 3(2)(c) of the Directive in force refers to convictions for 'serious, repeated offences`.

The Commission proposal increases the number of cases in which the requirement of good repute would no longer be fulfilled to include 'a serious criminal offence or repeated minor offences`.

The common position also provides that Member States are to lay down systems of penalties for offences against Directive 96/26/EC as amended.

(c) As regards the requirement regarding financial standing, the common position provides, as the Commission proposed, for increases in the figures, but no longer provides for different figures depending on the weight of an undertaking's haulage vehicles or the seating capacity of its passenger vehicles.

(d) As regards professional competence, the common position provides for:

- a more detailed examination procedure, updating and extension of the list of examination subjects and the introduction of a minimum harmonised level of the knowledge required of each subject,

- the maintenance of different examinations depending on whether the applicant intends to operate national or international transport.

The Commission proposal, on the other hand, provides for applicants to sit the same examination for both national and international transport,

- permanent exemption from the examination for applicants who supply proof of at least five years' practical experience as laid down in the Directive in force, provided that such applicants sit a test, the arrangements for which are determined by the Member States, in accordance with the subjects listed in Annex I to the Directive.

The Commission proposal, on the other hand, provides for the abolition of that exemption,

- the inclusion in Annex Ia to the Directive of a form of Community certificate of professional competence,

- the inclusion in the Directive of a provision, which was not contained in the Commission's amended proposal, authorising Member States, for a limited period and having first consulted the Commission, to require a person who has not previously obtained a certificate of professional competence in a Member State but has passed the examination in a Member State when he was normally resident in another Member State in which he intended to exercise the profession for the first time to sit an additional examination.

The additional examination is to cover the areas in which the national aspects of the occupation of road haulage operator differ from those of the Member State in which such persons passed the examination.

(e) The common position also includes, as the Commission proposed, transitional measures to ensure implementation of the amended Directive in the three new Member States, Austria, Finland and Sweden.

(f) As regards ensuring that the Directive is applied, the common position provides that the Member States shall check regularly (at least every five years) that the conditions governing access to the occupation are still fulfilled.

The draft does not include the provision proposed by the Commission that Member States should check financial standing between the second and third years.

(g) The common position provides that the Member States are to transpose the Directive within a year of its entry into force.

All road transport operators covered by the Directive and plying the trade before the Directive becomes applicable must comply with the new requirements regarding financial standing within two years of it becoming applicable.

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. Amendments adopted by the Council

The Council adopted the content if not the precise wording of the following amendments put forward by the European Parliament:

- amendment 9 making it clear that Annex I to the Directive in force is replaced by Annex I to the new Directive (drafting amendment included in Article 1(10) of the common position),

- amendment 10 inserting a new Article in Directive 96/26/EC obliging Member States to provide for a system of penalties (drafting amendment included in Article 1(9) of the common position inserting an Article 10a into Directive 96/26/EC).

2. European Parliament amendments not adopted by the Council

The Council did not adopt the following amendments:

(a) As regards the requirement of good repute:

- amendment 3, first part, which aimed to amend the first subparagraph of Article 3(2)(c) of Directive 96/26/EC so as to stipulate that the requirement of good repute is not or is no longer fulfilled where the natural persons required to fulfil it 'have been convicted in a criminal or administrative court of a serious offence, or repeated minor offences` against the rules referred to in that same point.

The common position extends the scope of the Directive in force which refers to convictions for 'serious, repeated offences` by amending this to read 'serious offences`.

The Council takes the view that a Member State should be allowed to judge an operator's good repute on the basis of its national legislation's interpretation of the seriousness of the offence.

The Council thought it was difficult to assess good repute on the basis of convictions for repeated minor offences, since these offences could simply be the subject of fines. It would be disproportionate to oblige Member States to refuse access to the profession on such grounds.

The Council also preferred the Directive to retain only the concept of conviction for a serious offence without specifying, given the diversity of situations obtaining in the Member States, that the convictions could be given in either a criminal or an administrative court,

- amendment 1 and amendment 3, second part, which concern the insertion in the Directive of a recital and a number of additions to Article 3(2)(c) of Directive 96/26/EC involving:

- provision that offences covered by the combating of fraud in the context of the common transit system and offences regarding the transport of live animals constitute offences which could result in non-recognition or loss of good repute,

- establishing a ratio between the number of journeys carried out by the undertaking concerned and the number of offences when assessing whether repeated minor offences have occurred.

The Council considers that:

- the provisions in force do not prevent Member States taking into consideration, when checking whether the good-repute requirement is satisfied, offences against the transit system or transport of live animals rules,

- the introduction of a common criterion for assessing minor offences is pointless, since the common position no longer concerns repeated minor offences.

Moreover, the seriousness of the offence should not be judged as a function of the size of the undertaking (number of vehicles involved or kilometres travelled by these vehicles) but on its own merits,

- amendment 8, which provides that in cases of serious offences or minor repeated offences against the transport rules referred to in particular in Article 3(2)(c) of the Directive, the Member State in which a non-resident road transport operator committed an offence which might lead to withdrawal of the authorisation to engage in the occupation or which has knowledge of such an offence must provide the Member State in which the road transport operator is established with all the information in its possession.

The Council considers that Article 1(6) of the common position, which amends Article 7(1) of Directive 96/26/EC, provides that Member States are to provide the Member State in which the road transport operator is established with all the information in their possession concerning any offences committed by the transporter which might lead to withdrawal of his authorisation. The provision's scope has thus been extended;

(b) as regards the financial standing requirement:

- amendment 4, which in an effort to harmonise in all the language versions the concept of 'capital and reserves` for the purposes of assessing undertakings' financial standing, uses the definition included in Directive 78/660/EEC (5), with one exception. The Council took the view that at this stage it was not absolutely necessary to harmonise the criteria for checking financial standing. The common position merely requires that the undertaking have available a certain amount per vehicle used without considering any regulation of the area of accounting or balance sheets. The Council deemed it preferable for the Member States to continue to apply their national legislation in this respect,

- amendment 7, which aims to supplement Article 6(1) of the Directive in force by providing that the competent national authorities are to assess every five years, and additionally between the second and third year during the five-year period, whether the financial standing requirement is still fulfilled and authorises them to grant in certain circumstances a further period of no more than one year within which to fulfil this criterion.

The Council considered that it was enough to provide in Article 1(5) of the common position (Article 6(1) of amended Directive 96/26/EC) that Member States must check regularly and at least every five years that undertakings still fulfil the three requirements for access to the occupation without distinguishing between them.

Member States may therefore, as the European Parliament wished, regularly check an operator's financial standing during the five-year period but are not obliged to do so;

(c) as regards the professional competence requirement:

- amendment 6, intended to supplement Article 6(1), second subparagraph, of the Directive in force, to specify that persons continuously and effectively managing a transport undertaking who have already fulfilled the requirements of professional competence under the test provisions of the Directive and have continuously exercised their profession may not be required to take the professional competence test a second time.

The Council took the view that the general rule laid down in the Directive was that an operator could not be required to sit the test a second time. A single exception was provided for, but it applied to a quite specific case (see Article 1(3) of the common position providing for the insertion of a new point (f) in Article 3(4) of the amended Directive),

- amendments 12 and 13 concerning Annex I(I)(F.5), and in particular:

- amendment 12, which provides in point F.5 that, where admission to the road haulage market is concerned, the candidate must be familiar only with frontier formalities and, in view of amendment 13, does not require him, as the Commission proposed, to be familiar also with the role and scope of T documents and TIR carnets as well as with the obligations and responsibilities arising from their use,

- amendment 13, aimed at adding a further point 5a requiring the candidate to have detailed knowledge of the Community and common transit system.

The Council did not adopt these amendments on the grounds that the knowledge required was excessively detailed;

(d) as regards the amendment of the transitional periods granted to the new Member States as a result of their membership of the EEA:

- amendment 2, designed to amend the sixth recital of the amended proposal, and

- amendments 5 and 14, the purpose of which was to amend Article 1 of the amended proposal (Article 5(1) and (2) of the Directive in force) as regards the transitional periods granted to Austria, Finland and Sweden to date from the entry into force of the EEA Agreement, namely 1 January 1994.

The European Parliament pointed out that, under the EEA Agreement, the provisions of the Directives which had been consolidated by Directive 96/26/EC had applied in these three States since 1 January 1994.

The Council supported the Commission's position and thought that Community legislation could apply only to Member States. The transitional periods in question had therefore to take as their reference date the date of accession to the Community, namely 1 January 1995 (see Article 1(4) of the common position regarding the new Article 5 of the amended Directive);

(e) as regards entry into force of the Directive:

- amendment 11, which proposes to lay down as the date of entry into force of the Directive the 20th day after its publication.

The Council deemed it preferable that the date of the Directive's entry into force should be that of its publication.

Since it is a Directive and since Member States were already allowed time to transpose it, the Council considered it advisable for it to enter into force as soon as possible so as to allow certain implementing decisions to be applied at an early date. Furthermore, this made it easier to establish exactly when the Directive entered into force.

(1) OJ C 95, 24.3.1997, p. 66.

(2) OJ C 286, 22.9.1997, p. 224.

(3) OJ C 287, 22.9.1997, p. 21.

(4) OJ C 324, 25.10.1997, p. 6.

(5) Fourth Council Directive of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ L 222, 14.8.1978, p. 11). Directive last amended by Directive 94/8/EC (OJ L 82, 25.3.1994, p. 33).