Proposal for a Council Directive 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 (97/C 95/13) (Text with EEA relevance) COM(97) 25 final - 97/0029(SYN)

(Submitted by the Commission on 4 February 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 7 (1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure referred to Article 189c of the Treaty and in cooperation with the European Parliament,

Whereas it is necessary to further strengthen the common rules provided for in 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 indented to facilitate for these operators the right to freedom of establishment in national and international transport operations (1);

Whereas it is necessary because of developments in the haulage market, changes in transport policies and the functioning of the internal market to extend the scope of application of this Directive to all road haulage operators for hire or reward with motor vehicles irrespective of their size;

Whereas with regard to the provisions of good repute, it is necessary to underline that this requirement is not satisfied if natural persons who are deemed to satisfy this condition have been convicted of one serious criminal offence or of certain repeated minor offences and to underline also the importance of the rules concerning the protection of the environment and professional liability;

Whereas with regard to the provisions of financial standing, it is necessary, in order to avoid imbalances in the market, to fix appropriate available capital and reserves at a higher and harmonized level; whereas it is necessary to examine the value of the Ecu fixed in national currencies every five years;

Whereas, with regard to the provisions of professional competence, it is advisable to stipulate that an applicant road transport operator demonstrates such competence by passing a compulsory written and an optional oral examination; whereas road transport operators must have the required knowledge for the pursuit of both national and international transport; whereas it is essential that all transport operators hold certificates certifying professional competence delivered at a harmonized level and in the basis of harmonized testing rules in all Member States; whereas it is also necessary, for this purpose, to harmonize certain aspects of the organization of the examination;

Whereas it is necessary to introduce a transitional arrangement as to the implementation of the Directive for Austria, Finland and Sweden;

Whereas it is necessary every five years to assess whether authorized operators still fulfil the provisions on good repute and financial standing and that a person at managerial level is professionally competent; whereas it is necessary that financial standing is also checked between the second and the third year of the five-year period;

Whereas the functioning of the internal market requires Member States to impose penalties which are effective, proportionate and dissuasive;

Whereas the requirements of this Directive as far as good repute and financial standing are concerned should be fulfilled by all road transport operators not later than 1 January 2000 in order to achieve the level of quality and the level of harmonization which are needed in the internal market;

Whereas, in accordance with the principle of proportionality, it is necessary and appropriate, in order to implement the fundamental objective of the common transport policy, to regulate the conditions on admission to the occupation of road transport operator; whereas this Directive shall not go beyond what is necessary to achieve this objective, in accordance with Article 3b (3) of the Treaty.

HAS ADOPTED THIS DIRECTIVE:

Article 1

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

Article 2 is modified as follows:

- Paragraph 1 is replaced by the following:

'The Directive shall apply to undertakings engaged in the occupation of road haulage operator and to those engaged in the occupation of road passenger transport operator as defined in Article 1.`

Article 3 is modified as follows:

- paragraph 2 (a) is replaced by the following:

'have been convicted of a serious criminal offence, including an offence of a commercial nature`,

- paragraph 2 (c) is replaced by the following:

'have been convicted of a serious offence, or repeated minor 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 rules concerning professional liability.`,

- paragraph 3 (c) is replaced by the following:

- 'The undertaking must have available capital and reserves of at least:

ECU 9 000 when only one vehicle is used and ECU 5 000 for each additional vehicle with a permissible payload of more than 3,5 tonnes, or of a permissible total laden weight of more than 6 tonnes, or per vehicle so constructed and equipped as to be suitable for carrying more than 20 persons - including the driver,

- undertakings engaged in the occupation of road haulage operator by means of vehicles the permissible payload of which does not exceed 3,5 tonnes or the permissible total laden weight of which does not exceed 6 tonnes, must for these vehicles have an available capital and reserves of at least ECU 9 000 when only one vehicle is used and ECU 700 per 500 kg of the maximum authorized weight for each additional vehicle,

- undertakings engaged in the occupation of road passenger transport operator by means of vehicles so constructed and equipped as to be suitable for carrying more than nine but no more than 20 persons - including the driver, must for these vehicles have an available capital and reserves of at least ECU 9 000 when only one vehicle is used and ECU 250 per seat 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 and shall have effect from 1 January of the following calendar year.`,

- paragraph 4 subparagraph 1 is replaced by the following:

'The condition relating to professional competence shall consist in the possession of skills in the subjects listed in the Annex and shall be demonstrated by passing a compulsory written and optional oral examination, according to the form set out in the Annex, organized by the authority or body designed for this purpose by each Member State.`,

- paragraph 4 subparagraph 2 is deleted.

Article 5 is modified as follows:

- in paragraph 1 the following new indent is added:

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

- in paragraph 2 (1) the following new indent is added:

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

- in paragraph 2 in the penultimate subparagraph the following new indent is added:

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

- a new paragraph 3 is added:

'All road transport operators who are authorized to practise before 1 January 1998 shall as from 1 January 2000 meet the provisions laid down in Article 3, (2) and (3)`.

In Article 6 two new subparagraphs are added to paragraph 1:

'Member States shall ensure that the competent authorities assess every five years whether or not the operator still fulfils the requirements of good repute and financial standing, and that the requirement of professional competence is still fulfilled by (a) person(s) continuously and effectively managing the transport operations of the undertaking.`

'Member States shall ensure that the competent authorities assess between the second and the third year during the period of five years whether or not the operator still fulfils the requirements of financial standing.`

Article 7 is modified as follows:

- in paragraph 1 the words 'serious offences` are replaced by 'a serious offence`,

- paragraph 2 is deleted,

- paragraph 3 becomes paragraph 2.

Article 8 is modified as follows:

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

- in paragraph 4 the last sentence is deleted.

Article 10 is modified as follows:

To paragraph 3 the following subparagraph is added:

'The certificates issued to road transport operators before 1 January 2000 on basis of at least five years' practical experience in a transport undertaking at management level shall be deemed equivalent to the certificates issued pursuant to the provisions of this Directive.`

Article 2

Annex I is replaced by the Annex to this directive.

Article 3

Member States shall lay down the system of penalties for breaching the national provisions adopted pursuant to 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. Member States shall notify the relevant provisions to the Commission no later than 1 July 1998 and shall notify any subsequent changes as soon as possible.

Article 4

1. Member States, after consulting the Commission, shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive at the latest by 1 July 1998. Member States shall apply these provisions as from 1 July 1998.

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

Article 5

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

Article 6

This Directive is addressed to the Member States.

(1) OJ No L 124, 23. 5. 1996, p. 1.

ANNEX

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

The knowledge to be taken into consideration for the official recognition of professional competence must cover at least the subjects listed below. In relation to these subjects, applicant road haulage and road passenger transport operators must have the levels of knowledge and practical aptitude set out below.

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. show that he is 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 this claim affects his contractual responsibility;

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 this claim affects his contractual responsibility.

B. Commercial law

Road haulage and passenger transport

The applicant must, in particular:

1. demonstrate that he is familiar with the conditions and formalities laid down as necessary for engaging in the occupation, the general obligations incumbent on transport operators (registration, keeping records, etc.) and the consequences of bankruptcy;

2. have appropriate knowledge of the various forms of commercial enterprise 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. know the employers' social security obligations and the social benefits to which workers are entitled (retirement pension, unemployment benefit, sickness benefits, etc.);

3. know 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 on driving periods and rest periods laid down in Regulation (EEC) No 3820/85, the provisions of Regulation (EEC) No 3821/85 on recording equipment in road transport 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. tolls and infrastructure user charges, and the taxes on certain road haulage vehicles;

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 company's profitability and financial position, in particular on the basis of financial ratios;

6. be able to prepare a budget;

7. know his company'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 organization chart relating to the company's personnel as a whole and to organize work plans and training programmes for employees, drivers, etc.;

9. know 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. know 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 subcontracting, and in particular the rules governing the official organization of the occupation, admission to the occupation, authorizations for intra- and extra-Community road transport operations, inspections and sanctions;

2. know 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 and the goods or luggage, are kept both in the vehicle and on the premises of the undertaking;

Road haulage

4. know the rules on the organization 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. know the rules on the organization of the market in road passenger transport;

7. know 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 of the European Union 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 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road,

- Directive 96/35/EC on the appointment and vocational qualification of safety advisers for the transport of dangerous goods by road, rail and inland waterway,

- Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community;

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 the different Member States of the European Union (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. know the basic layout of the road network in the Member States of the European Union.

II. ORGANIZATION OF THE EXAMINATION

The examination which shall ensure that road transport operators have achieved the level of knowledge in the subjects mentioned above, in particular, their capacity to use the instruments and techniques relating thereto and to fulfil executive and coordination duties, will consist of the following elements:

A. Compulsory written examination

1. Written questions on the basis of a minimum of 100 multiple choice questions with four alternative answers, with a deduction of one full point for incorrect answers.

The written examination represents 30 % of the total points to be reached and the candidate must answer 60 % of the question correctly to pass this part of the examination.

Duration: two hours.

2. Written exercises/case studies representing 40 % of the total points to be reached. The candidate will have to do 60 % of the exercises/case studies in a correct manner to pass this part of the examination.

Duration: two hours.

B. Non-compulsory oral examination

30 % of the total points have to be attained.

C. Where a Member State arranges for written examinations and exercises/case studies only, the percentage of total points under A.1. and A.2. will be 40 % and 60 % respectively.

D. Result

70 % of the full examination must have been answered correctly in order to pass the examination.