COMMON POSITION (EC) No 33/95 adopted by the Council on 8 December 1995 with a view to adopting Council Directive 95/ . . . /EC of . . . 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 (95/C 356/01)

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 (1),

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

Acting in accordance with the procedure referred to in Article 189c of the Treaty (3),

Whereas Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (4), Council Directive 74/562/EEC of 12 November 1974 on admission to the occupation of road passenger transport operator in national and international transport operations (5) and Council Directive 77/796/EEC of 12 December 1977 aiming at the mutual recognition of diplomas, certificates and other evidence of formal qualifications for goods haulage operators and road passenger transport operators, including measures intended to encourage these operators effectively to exercise their right to freedom of establishment (6) have been substantially amended on a number of occasions; whereas, for reasons of rationality and clarity, the said Directives should be consolidated in a single text;

Whereas the organization of the transport market is one of the essential factors in the implementation of the common transport policy provided for in the Treaty;

Whereas the adoption of measures aimed at coordinating the conditions of admission to the occupations of road haulage or road passenger transport operators (hereinafter both referred to as 'road transport operator') is likely to favour effective exercise of the right of establishment of those operators;

Whereas it is necessary to provide for the introduction of common rules for admission to the occupation of road transport operator in national and international transport operations in order to ensure that such operators are better qualified, thus contributing to rationalization of the market, improvement in the quality of the service provided, in the interests of users, operators and the economy as a whole, and to greater road safety;

Whereas, therefore, the rules for admission to the occupation of road transport operator should cover the good repute, financial standing and professional competence of operators;

Whereas, however, it is not necessary to include in these common rules certain kinds of transport which are of limited economic importance;

Whereas, since 1 January 1993, access to the market of transfrontier road haulage transport operations has been governed by a system of Community licences issued on the basis of qualitative criteria;

Whereas, as regards the good-repute requirement, it is necessary, in order effectively to reorganize the market, to make admission to the pursuit of the occupation of road transport operator uniformly conditional on the applicant having no convictions for serious criminal offences, including offences of a commercial nature, not having been declared unfit to pursue the occupation and on compliance with the regulations applicable to the occupation of road transport operator;

Whereas, as regards the requirement of appropriate financial standing, it is necessary, in particular in order to ensure the equal treatment of undertakings in the various Member States, to lay down certain criteria which road transport operators must satisfy;

Whereas, in respect of good repute and financial standing, it would be appropriate to acknowledge relevant documents issued by a competent authority in the road transport operator's country of origin or the country whence he comes as sufficient proof for admission to the activities concerned in a host Member State;

Whereas, as regards the requirement of professional competence, it is advisable to stipulate that the applicant road transport operator demonstrate such competence by passing a written examination but that Member States may exempt the applicant from such an examination if he provides proof of sufficient practical experience;

Whereas, in respect of professional competence, the certificates issued pursuant to the Community provisions on admission to the occupation of road transport operator must be recognized as sufficient proof by the host Member State;

Whereas provisions should be made for a system of mutual assistance between Member States for the purpose of applying this Directive;

Whereas this Directive must not affect the obligations of the Member States concerning the deadlines for implementation or application of the Directives set out in Annex II, part B,

HAS ADOPTED THIS DIRECTIVE:

TITLE I

Admission to the occupation of road transport operator

Article 1

1. Admission to the occupations of road haulage operator or road passenger transport operator shall be governed by the provisions adopted by the Member States in accordance with the common rules contained in this Directive.

2. For the purposes of this Directive:

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

- 'the occupation of road passenger transport operator' shall mean the activity of any undertaking operating, by means of motor vehicles so constructed and equipped as to be suitable for carrying more than nine persons - including the driver - and intended for that purpose, passenger transport services for the public or for specific categories of users against payment by the person transported or by the transport organizer,

- 'undertaking' shall mean any natural person, any legal person, whether profit-making or not, any association or group of persons without legal personality, whether profit-making or not, or any official body, whether having its own legal personality or being dependent upon an authority having such personality.

Article 2

1. This Directive shall not apply to 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. Member States may, however, lower the said limits for all or some categories of transport operations.

2. Member States may, after consulting the Commission, exempt from the application of all or some of the provisions of this Directive road haulage undertakings engaged exclusively in national transport operations having only a minor impact on the transport market because of:

- the nature of the goods carried, or

- the short distance involved.

In the event of unforeseen circumstances, Member States may grant a temporary exemption pending completion of the consultations with the Commission.

3. Member States may, after consulting the Commission, exempt from the application of all or some of the provisions of this Directive undertakings engaged exclusively in certain road passenger transport services for non-commercial purposes or having a main occupation other than that of road passenger transport operator, in so far as their transport operations have only a minor impact on the transport market.

Article 3

1. Undertakings wishing to engage in the occupation of road transport operator shall:

(a) be of good repute;

(b) be of appropriate financial standing;

(c) satisfy the conditon as to professional competence.

Where the applicant is a natural person and does not satisfy requirement (c), the competent authorities may nevertheless permit him to engage in the occupation of road transport operator provided that he designates to the said authorities another person, satisfying requirements (a) and (c), who shall continuously and effectively manage the transport operations of the undertaking.

Where the applicant is a natural person:

- requirement (a) must be satisfied by the person or persons who will continuously and effectively manage the transport operations of the undertaking. Member States may require that other persons in the undertaking also satisfy this requirement,

- requirement (c) must be satisfied by the person or persons referred to in the first indent.

2. Member States shall determine the conditons which must be fulfilled by undertakings established within their territory in order to satisfy the good-repute requirement.

They shall provide that this requirement is not satisfied, or is no longer satisfied, if the natural person or persons who are deemed to satisfy this condition under paragraph 1:

(a) have been convicted of serious criminal offences, including offences of a commercial nature,

(b) have been declared unfit to pursue the occupation of road transport operator under any rules in force,

(c) have been convicted of serious, repeated 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.

In the cases referred to under (a), (b) and (c), the good-repute requirement shall remain unsatisfied until rehabilitation or any other measure having an equivalent effect has taken place, pursuant to the existing relevant national provisions.

3. (a) Appropriate financial standing shall consist in having available sufficient resources to ensure proper launching and proper administration of the undertaking.

(b) For the purposes of assessing financial standing, the competent authority shall have regard to: annual accounts of the undertaking, if any; funds available, including cash at bank, overdraft and loan facilities; any assets, including property, which are available to provide security for the undertaking; costs, including purchase cost or initial payment for vehicles, premises, plant and equipment, and working capital.

(c) The undertaking must have available capital and reserves of at least:

- ECU 3 000 per vehicle used or

- ECU 150 per tonne of the maximum authorized weight of the road haulage vehicles used by the undertaking, or

- ECU 150 per seat of the passenger transport vehicles used by the undertaking,

whichever is the lower.

Member States may derogate from the first subparagraph in the case of transport undertakings which pursue their activities exclusively on the national market.

(d) For the proposes of points (a), (b) and (c), the competent authority may accept as evidence of financial standing confirmation or assurance given by a bank or other suitably qualified establishment. Such confirmation or assurance may be given in the form of a bank guarantee or by any other similar means.

(e) Points (b), (c) and (d) shall apply only to undertakings authorized in a Member State, as from 1 January 1990, under national rules, to engage in the activities of road transport operator.

4. The condition relating to professional competence shall consist in the possession of skills demonstrated by passing a written examination, which may take the form of a multiple-choice examination, organized by the authority or body designated for this purpose by each Member State in the subjects listed in Annex I.

Member States may exempt from examination applicant road transport operators who provide proof of at least five years' practical experience in a transport undertaking at management level.

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.

A certificate issued by the authority or body referred to in the first subparagraph must be produced as proof of professional competence.

Article 4

Member States shall determine the circumstances in which a road transport undertaking may, notwithstanding Article 3 (1), be operated on a temporary basis for a maximum period of one year, with extension for a maximum period of six months, in duly justified special cases, in the event of the death or physical or legal incapacity of the natural person engaged in the occupation of road transport operator or of the natural person who satisfies the requirements of Article 3 (1) (a) and (c).

The competent authorities in the Member States may, by way of exception and in certain special cases, definitively authorize a person not fulfilling the requirement of professional competence referred to in Article 3 (1) (c) to operate the transport undertaking provided that such person possesses at least three years' practical experience in the day-to-day management of the undertaking.

Article 5

1. Undertakings furnishing proof that before:

- 1 January 1978 for Belgium, Denmark, Germany, France, Ireland, Italy, Luxembourg, Netherlands and the United Kingdom,

- 1 January 1984 for Greece,

- 1 January 1986 for Spain and Portugal,

- 3 October 1989 for the territory of the former German Democratic Republic,

they were authorized under national rules in a Member State to engage in the occupation of either road haulage or road passenger transport operator, as appropriate, in national and/or international road transport operations shall be exempt from the requirement to furnish proof that they satisfy the provisions of Article 3.

2. However, those natural persons who:

- after 31 December 1974 and before 1 January 1978 for Belgium, Denmark, Germany, France, Ireland, Italy, Luxembourg, the Netherlands and the United Kingdom,

- after 31 December 1980 and before 1 January 1984 for Greece,

- after 31 December 1982 and before 1 January 1986 for Spain and Portugal,

- after 2 October 1989 and before 1 January 1992 for the territory of the former German Democratic Republic,

were:

- authorized to engage in the occupation of either road haulage or road passenger transport operator, as appropriate, without having furnished proof, under national regulations, of their professional competence, or

- designated effectively and continously to manage the transport operations of the undertaking,

must have satisfied the condition of professional competence referred to in Article 3 (4) before:

- 1 January 1980 for Belgium, Denmark, Germany, France, Ireland, Italy, Luxembourg, the Netherlands and the United Kingdom,

- 1 January 1986 for Greece,

- 1 January 1988 for Spain and Portugal,

- 1 July 1992 for the territory of the former German Democratic Republic.

The same requirement shall apply in the case referred to in the third subparagraph of Article 3 (1).

Article 6

1. Decisions taken by the competent authorities of the Member States pusuant to the measures adopted on the basis of this Directive and entailing the rejection of an application for admission to the occupation of road transport operator shall state the grounds on which they are based.

2. Member States shall see to it that the competent authorities withdraw the authorization to pursue the occupation of road transport operator if they establish that the conditions of Article 3 (1) (a), (b) or (c) are no longer satisfied. In this case, however, they shall allow sufficient time for a substitute to be appointed.

3. With regard to the decisions referred to in paragraphs 1 and 2, Member States shall see to it that the undertakings covered by this Directive are able to defend their interests by appropriate means.

Article 7

1. Where serious offences or minor, repeated offences against the rules governing either road haulage or road passenger transport, as appropriate, have been committed by non-resident road transprot operators and might lead to withdrawal of the authorization to practise as a road transport operator, the Member States shall provide the Member State in which such a road transport operator is established with all the information in their possession concerning those offences and the penalties they have imposed.

2. If a Member State withdraws the authorization to practise as a road transport operator in international transport operations, it shall inform the Commission, which shall pass the necessary information to the Member States concerned.

3. Member States shall afford each other mutual assistance for the purpose of applying this Directive.

TITLE II

Mutual recognition of diplomas, certificates and other evidence of formal qualifications

Article 8

1. Member States shall, in respect of the activities referred to in this Directive, take the measures defined in this Directive concerning the establishment in their territories of the natural persons and undertakings referred to in Title I of the general programme for the abolition of restrictions on freedom of establishment (7).

2. Without prejudice to paragraphs 3 and 4, a host Member State shall, for the purpose of admission to the occupation of road transport operator, accept as sufficient proof of good repute or of no previous bankruptcy an extract from a judicial record, or failing that, an equivalent document issued by a competent judicial or administrative authority in the road transport operator's country of origin or the country whence he comes, showing that these requirements have been met.

3. Where the host Member State imposes on its own nationals certain requirements as to good repute and proof that such requirements are satisfied cannot be obtained from the document referred to in paragraph 2, that State shall accept as sufficient evidence in respect of nationals of other Member States a certificate issued by a competent judicial or administrative authority in the country of origin or in the country whence the foreign national comes stating that the requirements in question have been met. Such certificates shall relate to the specific facts regarded as relevant by the host country.

4. Where the country of origin or country whence the foreign national comes does not issue the document required in accordance with paragraphs 2 and 3, such document may be replaced by a declaration on oath or by a solemn declaration made by the person concerned before a competent judicial or administrative authority or, where appropriate, a notary in that person's country of origin or the country whence he comes; such authority or notary shall issue a certificate attesting the authenticity of the declaration on oath or solemn declaration. The declaration in respect of no previous bankruptcy may also be made before a competent professional body in the same country.

5. Documents issued in accordance with paragraphs 2 and 3 shall not be accepted if produced more than three months after their date of issue. This condition shall apply also to declarations made in accordance with paragraph 4.

Article 9

1. Where in a host Member State a certificate is required as proof of financial standing, that State shall regard corresponding certificates issued by banks in the country of origin or in the country whence the foreign national comes or by other financial bodies designated by that country, as equivalent to certificates issued in its own territory.

2. Where a Member State imposes on its own nationals certain requirements as to financial standing and where proof that such requirements are satisfied cannot be obtained from the document referred to in paragraph 1, that State shall accept as sufficient evidence, in respect of nationals of other Member States, a certificate issued by a competent administrative authority in the country of origin or in the country whence the foreign national comes, stating that the requirements in question have been met. Such certificate shall relate to the specific facts regarded as relevant by the host country.

Article 10

1. As from 1 January 1990, Member States shall recognize as sufficient proof of professional competence certificates as referred to in the fourth subparagraph of Article 3 (4) which are issued by another Member State.

2. With regard to undertakings authorized in Greece, before 1 January 1981, or, in the other Member States, before 1 January 1975, under national rules, to engage in the occupation of road haulage operator or road passenger transport operator in national and/or international road transport and in so far as the undertakings concerned are companies or firms within the meaning of Article 58 of the Treaty, Member States shall accept as sufficient proof of professional competence certificates stating that the activity concerned has actually been carried on in a Member State for a period of three years. This activity must not have ceased more than five years before the date of submission of the certificate.

In the case of a legal person, the certificate stating that the activity has actually been carried on shall be issued in respect of one of the natural persons actually in charge of the transport activities of the undertaking.

3. The certificates issued to road transport operators before 1 January 1990 as proof of their professional competence pursuant to the provisions in force until that date shall be deemed equivalent to the certificates issued pursuant to the provisions of this Directive.

TITLE III

Final provisions

Article 11

Member States shall designate the authorities and bodies competent to issue the documents referred to in Article 8 (2) and in Article 9 and the certificate referred to in Article 10 (2). They shall immediately inform the other Member States and the Commission thereof.

Article 12

Articles 8 to 11 shall also apply to nationals of member States who, pursuant to Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (8), carry on the activities of road haulage or road passenger transport operator in the capacity of employees.

Article 13

1. Member States shall take the measures necessary to comply with the provisions of this Directive, no later than the dates listed in Annex II, part B, after consulting the Commission.

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

Article 14

The Directives listed in Annex II, part A, are hereby repealed, without prejudice to the obligations of the Member States regarding the time limits for implementation or application set out in Annex II, part B.

References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlaltion table set out in Annex III.

Article 15

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ No C 286, 14. 11. 1990, p. 4 and amendment forwarded on 16 December 1993.

(2) OJ No C 339, 31. 12. 1991, p. 5 and OJ No C 295, 22. 10. 1994, p. 30.

(3) Opinion of the European Parliament of 13 December 1991 (OJ No C 13, 20. 1. 1992, p. 443) and of 20 April 1994 (OJ No C 128, 9. 5. 1994, p. 136), common position of the Council of . . . (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No L 308, 19. 11. 1974, p. 18. Directive as last amended by Regulation (EEC) No 3572/90 (OJ No L 353, 17. 12. 1990, p. 12).

(5) OJ No L 308, 19. 11. 1974, p. 23. Directive as last amended by Regulation (EEC) No 3572/90 (OJ No L 353, 17. 12. 1990, p. 12).

(6) OJ No L 334, 24. 12. 1977, p. 37. Directive as last amended by Directive 89/438/EEC (OJ No L 212, 22. 7. 1989, p. 101) and corrigendum (OJ No L 298, 17. 10. 1989, p. 31).

(7) OJ No 2, 15. 1. 1962, p. 36/62.

(8) OJ No L 257, 19. 10. 1968, p. 2. Regulation as last amended by Regulation (EEC) No 2434/92 (OJ No L 245, 26. 8. 1992, 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. These must be described in full detail and have been worked out or approved by the competent national authorities. They must be so designed as to be within the grasp of those persons whose education corresponds to the level normally reached at school-leaving age.

A. SUBJECTS OF WHICH KNOWLEDGE IS REQUIRED FOR ROAD TRANSPORT OPERATORS INTENDING TO ENGAGE EXCLUSIVELY IN NATIONAL TRANSPORT OPERATIONS

Law

Elements of civil, commercial, social and fiscal law, as necessary for engaging in the occupation, with particular emphasis on:

- general contracts;

- transport contracts, with particular reference to the responsibility of the haulage operator (nature and limits);

- commercial companies;

- ledgers;

- rules governing labour, social security;

- taxation systems.

1. Road haulage operator

(a) Business and financial management of an undertaking

- methods of payment and financing;

- costing;

- pricing and haulage terms;

- business accounts;

- insurance;

- invoicing;

- transport agents;

- management techniques;

- marketing.

(b) Access to the market

- provisions relating to the taking up and pursuit of the occupation;

- transport documents.

(c) Technical standards and aspects of operation

- weight and dimensions of vehicles;

- vehicle selection;

- type-approval and registration;

- vehicle maintenance standards;

- loading and unloading of vehicles;

- carriage of dangerous goods;

- carriage of foodstuffs;

- the relevant environmental protection concepts with reference to the use and maintenance of motor vehicles.

(d) Road safety

- laws, regulations and administrative provisions applicable to traffic;

- traffic safety;

- accident prevention and procedure in the event of an accident.

2. Road passenger transport operator

(a) business and financial management of an undertaking

- methods of payment and financing;

- costing;

- system of fares, prices and conditions of transport;

- business accounts;

- insurance;

- invoices;

- travel agencies;

- management techniques;

- marketing.

(b) Regulation of road passenger services

- institution of transport services and transport plans;

- conditions of fulfilment of passenger services;

- provisions relating to admission to, and pursuit of, the occupation;

- transport documents.

(c) Technical standards and aspects of operation

- vehicle selection;

- type-approval and registration;

- vehicle maintenance standards;

- the relevant environmental protection concepts with reference to the use and maintenance of motor vehicles.

(d) Road safety

- laws, regulations and administrative provisions applicable to traffic;

- traffic safety;

- geographical knowledge of routes;

- accident prevention and procedure in the event of an accident.

B. SUBJECTS OF WHICH KNOWLEDGE IS REQUIRED FOR ROAD TRANSPORT OPERATORS INTENDING TO ENGAGE IN INTERNATIONAL TRANSPORT

Law

- subjects listed under A as appropriate;

- provisions applicable either to the transport of goods or of passengers by road, as appropriate, between Member States and between the Community and non-member countries, arising out of national laws, Community standards, international conventions and agreements;

- customs practices and other formalities related to transport controls;

- main traffic regulations in the Member States.

ANNEX II

PART A

REPEALED DIRECTIVES (referred to in Article 14)

- Directive 74/561/EEC

- Directive 74/562/EEC

- Directive 77/796/EEC

and their sucessive amendments:

- Directive 80/1178/EEC

- Directive 80/1179/EEC

- Directive 80/1180/EEC

- Directive 85/578/EEC

- Directive 85/579/EEC

- Directive 89/438/EEC

- Regulation (EEC) No 3572/90: only Articles 1 and 2

PART B

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ANNEX III

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 16 October 1990 the Commission submitted to the Council a proposal based on Article 75 of the EC Treaty with the aim of consolidating the legislation in force on admission to the occupation of road transport operator (1). The Directives in question were 74/561/EEC and 74/562/EEC on admission to the occupations of road haulage operator and road passenger transport operator in national and international transport operations. The Directives were adopted by the Council in 1974 and amended in 1980, 1985 and 1989.

The European Parliament delivered its opinion on the proposal on 13 December 1991, approving the Commission proposal as it stood (2). The Economic and Social Committee delivered its opinion on 25 September 1991 (3).

On 16 December 1993 the Commission amended the proposal pursuant to Article 189a(2) of the Treaty to include Council Directive 77/796/EEC, concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications for road haulage operators and road passenger transport operators, including measures intended to encourage these operators effectively to exercise their right to freedom of establishment, as amended in 1980 and 1989 (4).

On 20 April 1994 the European Parliament approved the amended proposal as it stood (5). The Economic and Social Committee delivered its opinion on 1 June 1994 (6)

The Council adopted its common position pursuant to Article 189c of the Treaty on 8 December 1995.

II. AIMS OF THE PROPOSAL

The aim of the Commission proposal is a true consolidation involving the repeal of the previous acts. Making Community law simpler and clearer may contribute to the making of 'a people's Europe'.

The merging of the three earlier Directives led the Commission to propose slight changes to the wording of the texts, inter alia in the Annexes to the old Directives. The deadlines for implementing the various provisions of the repealed Directives are set out in Annex II B.

III. SUMMARY OF THE COMMON POSITION

The Council approved the Commission proposal as it stood, subject to the following amendments:

- improved drafting of Article 3 (3) (c);- inclusion in the texts of Articles 5 and 10 (2) of the implementing deadlines to be met by the Member States which acceded to the Community after the adoption of the Directives; in the proposal these dates were set out in footnotes;

- deletion from Article 11 of the deadline for designating the authorities or bodies competent to issue the documents and certificates;

- deletion of the penultimate recital in the proposal, for which there was no corresponding Article;

- a number of linguistic changes to ensure the uniformity of the texts in the different offical languages of the Communities.

All these amendments to the Commission proposal are simply matters of drafting and change neither the meaning nor the scope of the earlier Directives.

(1) OJ No C 286, 14. 11. 1990, p. 4.

(2) OJ No C 13, 20. 1. 1992, p. 443.

(3) OJ No C 339, 31. 12. 1991, p. 5.

(4) 11505/93 TRANS 159 (COM(93) 586 final, SYN 479).

(5) OJ No C 128, 9. 5. 1994, p. 136.

(6) OJ No C 295, 22. 10. 1994, p. 30.