Proposal for a Council Regulation (EC) laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State

(96/C 60/08)

(Text with EEA relevance)

COM(95) 729 final - 96/0002(SYN)

(Submitted by the Commission on 5 January 1996)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

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

In cooperation with the European Parliament,

Whereas Council Regulation (EEC) No 2454/92 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State was annulled by the Court of Justice's ruling of 1 June 1994 (1), by reason of a fault in the legislative procedure for adoption thereof;

Whereas, pursuant to Article 75 (1) (b) of the Treaty, the establishment of a common transport policy entails, inter alia, laying down the conditions under which non-resident carriers may operate national transport services within a Member State;

Whereas Article 59 of the Treaty establishes the objective of abolishing restrictions on the freedom to provide services within the Community; whereas this objective must be achieved within the framework of the common transport policy in accordance with Article 61 (1) of the Treaty;

Whereas, as the Court of Justice has said (2), the obligations imposed on the Council by Article 75 (1) (a) and (b) of the Treaty include the obligation to ensure that there is freedom to provide services in the field of transport; whereas the extent of this obligation is clearly defined in the Treaty;

Whereas that provision entails the removal of all restrictions against a person providing the services in question on the grounds of his nationality or the fact that he is established in a Member State other than that in which the service is to be provided;

Whereas establishing the internal market involves the abolition of frontier controls and, consequently, an increase in intra-Community traffic;

Whereas the rules applicable to cabotage for all forms of coach and bus service must be established;

Whereas the provisions of the host Member State applicable to cabotage transport operations should be fixed;

Whereas provisions should be adopted so that action can be taken in the event of serious disturbance of the transport markets affected;

Whereas it is desirable that Member States should grant each other mutual assistance with a view to the sound application of this Regulation, particularly in respect of penalties applicable in the event of infringements;

Whereas it is for the Member States to adopt the measures necessary for the implementation of this Regulation;

Whereas the application of this Regulation should be monitored by means of a report to be submitted by the Commission,

HAS ADOPTED THIS REGULATION:

Article 1

Any carrier who operates road passenger transport services for hire or reward who:

- is established in a Member State, hereinafter referred to as the 'Member State of establishment`, in accordance with its legislation, and

- is authorized, in that State, in accordance with relevant Community law, to pursue the occupation of road passenger transport operator in international transport operations,

shall be permitted, under the conditions laid down in this Regulation and without discrimination on grounds of the carrier's nationality or place of establishment, temporarily to operate national road passenger services for hire or reward in another Member State, hereinafter referred to as the 'host Member State`, without being required to have a registered office or other establisment in that State.

Such national transport services are hereinafter referred to as 'cabotage transport operations`.

Article 2

For the purposes of this Regulation:

1. 'Regular services` means services which provide for the carriage of passengers at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points. Regular services shall be open to all - subject, where appropriate, to compulsory reservation.

2. 'Regular international services` means the services referred to in Article 2 (1) (1) of Council Regulation No 684/92 (1);

3. 'Special regular services` means regular services which provide for the carriage of specified categories of passengers, to the exclusion of other passengers, at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points.

Special regular services shall include:

(a) the carriage of workers between home and work;

(b) carriage to and from the educational institution for school pupils and students;

(c) the carriage of soldiers and their families between their place of origin and the area of their barracks.

The fact that a special service may be varied according to the needs of users shall not affect its classification as a regular service.

4. 'Occasional services` means services falling neither within the definition of a regular service nor within the definition of a special regular service. These services shall not cease to be occasional services solely because they are provided at certain intervals.

5. 'Vehicles` means motor vehicles which, by virtue of their type of construction and equipment, are suitable for carrying more than nine persons - including the driver - and are intended for that purpose.

Article 3

With effect from the date of entry into force of this Regulation, cabotage transport operations shall be authorized for the following services:

1. special regular services and occasional services;

2. the regular services defined in Article 2 (1), provided they are performed by a carrier not resident in the host Member State in the course of a regular international service in accordance with the provisions of Council Regulation 684/92;

3. the other regular services.

Article 4

1. Cabotage transport operations carried out in accordance with Article 3 (2) shall be subject to authorization by the competent authorities in the host Member State.

2. Applications for authorization may be refused:

(a) if the competent authorities in the host Member State produce evidence that the regular service for which the application to perform cabotage operations has been submitted would directly compromise the existence of regular services already authorized, except in cases in which the regular services in question are carried out only by a single carrier or group of carriers;

(b) if the competent authorities in the host Member State produce evidence that the regular service for which the application to perform cabotage operations has been submitted is aimed only at the most lucrative of the services existing on the links concerned.

The fact that an operator offers lower prices than are offered by other road carriers or the fact that the link in question is already operated by other road carriers may not in itself constitute justification for rejecting the application.

Paragraph 4 (a) of Article 7 of Regulation (EEC) No 684/92 shall apply, mutatis mutandis, to applications for authorization of cabotage operations in the form of the regular services provided in Article 3 (2).

Reasons must be given for rejection of the application.

The competent authorities may refuse applications only on the basis of reasons compatible with this Regulation.

3. The Member States shall guarantee carriers an opportunity to defend their interests in the event of rejection of their application for authorization.

4. Authorizations shall be issued in the name of the transport undertaking; the may not be transferred by the latter to third parties. However, the carrier who has received the authorization may, with the consent of the competent authority in the host Member State, operate the service through the only subcontractor authorized to provide the international service referred to in Article 2 (1) (1) of Regulation (EEC) No 684/92. In this case, the name and role of the subcontractor shall be indicated in the authorization. The subcontractor must fulfil the conditions laid down in Article 1.

In the case of undertakings associated for the purpose of performing cabotage operations in the form of a regular service, the cabotage authorization shall be issued in the names of all the undertakings. It shall be given to the undertaking that manages the operation and copies shall be given to the others. The authorization shall state the names of all the operators.

5. The authorization shall be valid for a maximum of five years and, in any case, for not longer than the authorization relating to the international service within the framework of which the cabotage operation is carries out.

6. Save in the event of force majeure, the operator of a regular cabotage service shall, until the authorization expires, take all measures to guarantee a transport service that fulfils the standards of continuity, regularity and capacity and the other conditions laid down by the competent authority of the host Member State with regard to the route of the service, the bus stops, the timetable and the period of validity of the authorization. These conditions may not be less favourable than the conditions applied to regular transport services provided by resident carriers.

7. The authorization or a certified true copy thereof must be kept on board the vehicle.

8. The Commission shall, after consulting the Member States, lay down the model for applications for authorization of cabotage operations in the form of regular services, the model authorization and the way in which they are to be used.

Article 5

1. The performance of the cabotage transport operations referred to in Article 3 shall be subject, save as otherwise provided in Community legislation, to the laws, regulations and administrative provisions in force in the host Member State in the following areas:

(a) rates and conditions governing the transport contract;

(b) weights and dimensions of road vehicles; such weights and dimensions may, where appropriate, exceed those applicable in the carrier's Member State of establishment, but they may under no circumstances exceed the technical standards set out in the certificate of conformity;

(c) requirements relating to the carriage of certain categories of passengers, namely schoolchildren, children and persons with reduced mobility;

(d) driving and rest time;

(e) VAT (value added tax) on transport services. In this area Article 21 (1) (a) of Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - common system of value added tax: uniform basis of assessment (1) - shall apply to the services referred to in Article 1 of this Regulation;

2. Save as otherwise provided in Community legislation, cabotage operations which form part of the transport services provided for in Article 3 (3) shall be subject 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.

Any compensation for public service obligations must be paid to all the Community operators concerned.

3. The technical standards of construction and equipment which must be met by vehicles used to carry out cabotage transport operations shall be those laid down for vehicles put into circulation in international transport.

4. The national provisions referred to in paragraphs 1 and 2 shall be applied by the Member States to non-resident carriers on the same conditions as those imposed on their own nationals, so as effectively to prevent any open or hidden discrimination on grounds of nationality or place of establishment.

5. If it is established that, in the light of experience, the list of areas covered by the host Member State's provisions, as referred to in paragraph 1, needs to be amended, the Council shall do so by a qualified majority, in cooperation with the European Parliament, on a proposal from the Commission.

Article 6

The Member State of establishment shall issue a certificate conforming to the model adopted by the Commission after consulting the Member States to carriers who apply therefor and who satisfy the conditions laid down in Article 1.

The authority or agency in that Member State with the power to issue the certificate shall also have the power to withdraw it, temporarily or definitively, in particular as one of the penalties referred to in Article 11 (4).

That certificate or a certified true copy thereof shall be kept on board the vehicle and be produced when requested by an authorized inspecting officer.

Article 7

1. Cabotage transport operations in the form of occasional services shall be carried out under cover of a control document - the journey form - which must be kept on board the vehicle and be produced when requested by an authorized inspecting officer.

2. The journey form, the model for which shall be adopted by the Commission after consulting the Member States, shall comprise the following information:

(a) the points of departure and destination of the service;

(b) the date of departure and the date on which the service ends.

3. The journey forms shall be supplied in books certified by the competent authority or agency in the Member State of establishment. The model for the book of journey forms shall be adopted by the Commission after consulting the Member States.

4. In the case of special regular services, the contract concluded between the carrier and the transport organizer, or a certified copy of the contract, shall serve as the control document.

However, the journey form shall be completed in the form of a monthly statement.

5. The journey forms used shall be returned to the competent authority or agency in the Member State of establishment in accordance with procedures to be laid down by the aforementioned authority or agency.

Article 8

1. At the end of each quarter and within three months, which may be reduced by the Commission to one month in the case referred to in Article 9, the competent authority or agency in each Member State shall communicate to the Commission the data concerning cabotage transport operations, in the form of special regular services and occasional services, carried out during that quarter by resident carriers.

The communication shall be effected by means of a table conforming to the model adopted by the Commission after consulting the Member States.

2. Once a year the competent authorities in the host Member State shall send the Commission statistics on the number of authorizations issued for cabotage transport operations in the form of the regular services defined in Articles 3 (2) and (3).

3. The Commission shall send the Member States as soon as possible summary statements drawn up on the basis of the data submitted under paragraph 1.

Article 9

1. In the event of serious disturbance of the internal transport market in a given geographical area due to or aggravated by cabotage, any Member State may refer the matter to the Commission with a view to the adoption of safeguard measures and shall provide the Commission with the necessary information and notify it of the measures it intends to take as regards resident carriers.

2. For the purposes of paragraph 1:

- 'serious disturbance of the internal transport market in a given geographical area` means the occurrence on that market of problems specific to it, such that there is a serious and potentially enduring excess of supply over demand, implying a threat to the financial stability and survival of a significant number of passenger transport undertakings,

- 'geographical area` means an area comprising part or all of the territory of a Member State or including part or all of the territory of other Member States.

3. The Commission shall examine the situation and, after consulting the Advisory Committee referred to in Article 10, shall decide within one month of receipt of the relevant Member State's request whether or not safeguard measures are necessary and shall adopt them if they are necessary.

The measures introduced in accordance with this Article shall remain in force for a period not exceeding six months, renewable once for the same period.

The Commission shall without delay notify the Member States and the Council of any decision taken pursuant to this paragraph.

4. If the Commission decides to take safeguard measures concerning one or more Member States, the competent authorities of the Member States involved shall be required to take measures of equivalent scope in respect of resident carriers and shall inform the Commission thereof.

These measures shall be implemented no later than the same date as the safeguard measures decided on by the Commission.

5. Each Member State may submit a Commission decision as referred to in paragraph 3 to the Council within 30 days of its notification.

The Council, acting by a qualified majority within 30 days of referral by a Member State or, if there are referrals by more than one Member State, of the first referral, may take a different decision.

The limits of validity laid down in the second subparagraph of paragraph 3 shall apply to the Council's decision.

The competent authorities of the Member States concerned shall be bound to take measures of equivalent scope in respect of resident carriers and shall inform the Commission thereof.

If the Council takes no decision within the period laid down in the second subparagraph, the Commission decision becomes final.

6. Where the Commission considers that the measures referred to in paragraph 3 need to be prolonged, it shall submit a proposal to the Council, which shall take a decision by qualified majority.

Article 10

The Commission shall be assisted by an Advisory Committee composed of representatives of the Member States and chaired by a representative of the Commission.

The tasks of the Committee shall be to advise the Commission on:

- any request from a Member State under Article 9 (1),

- measures intended to resolve a serious disturbance of the market as referred to in Article 9, in particular on the practical application of such measures.

The Committee shall draw up its rules of procedure.

Article 11

1. Member States shall assist one another in applying this Regulation.

2. Without prejudice to criminal prosecution, the host Member State may impose penalties on non-resident carriers who have committed infringements of this Regulation or of Community or national transport regulations within its territory on the occasion of a cabotage transport operation.

The penalties shall be imposed on a non-discriminatory basis and in accordance with paragraph 3.

3. The penalties referred to in paragraph 2 may, inter alia, consist of a warning or, in the event of serious or repeated infringements, a temporary ban on cabotage transport operations within the territory of the host Member State where the infringement was committed.

Where a falsified certificate, falsified authorization or falsified certified copy thereof is produced, the falsified document shall be withdrawn immediately and, where appropriate, forwarded as soon as possible to the competent authority of the carrier's Member State of establishment.

4. The competent authorities of the host Member State shall inform the competent authorities of the Member State of establishment of the infringements recorded and any penalties imposed on the carrier and may, in the event of serious or repeated infringements, at the same time transmit a request that a penalty be imposed.

In the event of serious or repeated infringements, the competent authorities of the Member State of establishment shall decide whether an appropriate penalty should be imposed on the carrier concerned; these authorities shall take into account any penalty already imposed in the host Member State and ensure that the penalties already imposed on the carrier concerned are, as a whole, proportional to the infringement or infringements which gave rise to such penalties.

The penalty imposed by the competent authorities of the Member State of establishment, after consulting the competent authorities of the host Member State, may extend to withdrawal of authorization to pursue the occupation of road passenger transport operator.

The competent authorities of the Member State of establishment may also, pursuant to its national law, arraign the carrier concerned before a competent national court or tribunal.

They shall inform the competent authorities of the host Member State of the decisions taken pursuant to this paragraph.

Article 12

Member States shall ensure that carriers may appeal against any admininistrative penalty imposed on them.

Article 13

The Commission shall report to the Council before 31 December 1999 on the application of this Regulation and, in particular, on the impact of cabotage transport operations on national transport markets.

Article 14

Member States shall adopt in good time and communicate to the Commission the laws, regulations and administrative provisions relating to the implementation of this Regulation.

Article 15

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

It shall apply from 1 January 1996.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

(1) Judgment of 1 June 1994, Case C-388/92, Parliament v. Council.

(2) Judgment of 22 May 1985, Case 13/83, Parliament v. Council.

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

(1) OJ No L 145, 13. 6. 1977, p. 1. Directive last amended by Directive 91/680/EEC (OJ No L 376, 31. 12. 1991, p. 1).