Council Regulation (EC) No 12/98 of 11 December 1997 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State
Date: 1997-12-11
Institutions: Council of the European Union
Subjects: administrative sanction, carriage of passengers, freedom to provide services, international transport, road cabotage, transport licence

L 4/10

‹

EN

‹

Official Journal of the European Communities

8. 1. 98

COUNCIL REGULATION (EC) No 12/98

of 11 December 1997

laying down the conditions under which non-resident carriers may operate
national road passenger transport services within a Member State

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 laid down in
Article 189c of the Treaty (3),

(1) Whereas Council Regulation (EEC) No 2454/92 of
23 July 1992,
laying down the conditions under
which non-resident carriers may operate national
road passenger transport services within a Member
State (4) was declared void by the Court of Justice in
its judgment of 1 June 1994 (5);

(2) 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;

(3) Whereas that provision entails the removal of all
restrictions against carriers providing the services in
question on the grounds of their nationality or the
fact that they are established in a Member State other
than that in which the service is to be provided;

(4) Whereas carriers providing such services should be
subject to comparable systems, so as to limit inequal-
ity in the conditions of competition because of their
nationality and country of establishment, and hence
promote the gradual approximation of national laws;

(5) Whereas the definitions of the various coach and bus
services should be the same as those adopted in the
context of international transport;

(6) Whereas non-resident carriers should be allowed to
operate certain forms of coach and bus services,

(1) OJ C 60, 29. 2. 1996, p. 10 and OJ C 124, 21. 4. 1997, p. 73.
(2) OJ C 30, 30. 1. 1997, p. 40.
(3) Opinion of the European Parliament of 28 November 1996
(OJ C 380, 16. 12. 1996, p. 35), Council Common Position of
14 April 1997 (OJ C 164, 30. 5. 1997, p. 17) and Decision of
the European Parliament of 16 July 1997 (OJ C 286, 22. 9.
1997, p. 84).

(4) OJ L 251, 29. 8. 1992, p. 1.
(5) Judgment of 1 June 1994, Case C-388/92, European Par-

liament v. Council (ECR 1994, p. I-2081).

bearing in mind the specific characteristics of each
form of service;

(7) Whereas the provisions applicable to cabotage trans-

port operations should be established;

and of

(8) Whereas the provisions of Directive 96/71/EC of the
the Council of
European Parliament
16 December 1996 concerning the posting of
workers in the framework of the provision of ser-
vices (6) apply in cases where, for the provision of
special regular services, carriers, post workers, who
have an employment relationship with those carriers,
from the Member State where they ordinarily work;

(9) Whereas, where regular services are concerned, only
regular services provided as part of a regular inter-
national
service, excluding urban and suburban
services, should be opened up to cabotage, subject to
certain conditions, and in particular to the legislation
in force in the host Member State;

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

(11) Whereas an advisory committee should be set up
with the task of assisting the Commission in drawing
up documents relating to cabotage transport opera-
tions in the form of occasional services and advising
the Commission on safeguard measures;

(12) 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 in-
fringements;

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

(14) Whereas the application of this Regulation should be
monitored by means of a report to be submitted by
the Commission;

(6) OJ L 18, 21. 1. 1997, p. 1.

8. 1. 98

‹

EN

‹

Official Journal of the European Communities

L 4/11

(15) Whereas the aforementioned judgment of the Court
of
Justice, which declared Regulation (EEC)
No 2454/92 void, upholds the effects of the Regula-
tion until such time as the Council has adopted new
legislation on the matter; whereas this Regulation
will not be applied until eighteen months after its
entry into force; whereas it must therefore be con-
sidered that the effects of the voided Regulation will
persist until this Regulation has been fully imple-
mented,

HAS ADOPTED THIS REGULATION:

Article 1

Any carrier who operates road passenger transport services
for hire or reward, and who holds the Community licence
provided for in Article 3a of Council Regulation (EEC)
No 684/92 of 16 March 1992 on common rules for the
international carriage of passengers by coach and bus (1),
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 establishment 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 appro-
priate, to compulsory reservation.

fact

that

The
the
service may be adjusted shall not affect its classifica-
tion as a regular service.

the operating conditions of

(2)

‘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 stop-
ping points.

(1) OJ L 74, 20. 3. 1992, p. 1. Regulation as amended by Regula-

tion (EC) No 11/98.

(See page 1 of this Official Journal).

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 homes 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.

(3)

‘Occasional services’ means services which do not fall
within the definition of regular services,
including
special regular services, and whose main characteristic
is that they carry groups constituted on the initiative
of a customer or of the carrier himself. These services
shall not cease to be occasional services solely because
they are provided at certain intervals.

(4)

‘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

Cabotage transport operations shall be authorized for the
following services:

(1) special regular services provided that they are covered
by a contract concluded between the organizer and
the carrier;

(2) occasional services;

(3) regular services, 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 Regulation (EEC) No 684/92.

Cabotage
pendently of such international service.

transport

cannot be performed inde-

Urban and suburban services shall be excluded from
the scope of this point.

‘Urban and suburban services’ means
transport
services meeting the needs of an urban centre or
conurbation, and transport needs between it and the
surrounding areas.

Article 4

The performance of the cabotage transport opera-
1.
tions 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 relation to the following areas:

L 4/12

‹

EN

‹

Official Journal of the European Communities

8. 1. 98

(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 establish-
ment, 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 cat-
egories of passengers, viz. schoolchildren, children
and persons with reduced mobility;

(d) driving and rest time;

(1)

21

(e) VAT (value added tax) on transport services; in this
area Article
of Council Directive
(a)
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.

Save as otherwise provided in Community legisla-
2.
tion, cabotage transport 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
authorizations,
operated and the regularity, continuity and frequency of
services as well as itineraries.

tendering procedures,

The technical standards of construction and equip-
3.
ment 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.

The national provisions referred to in paragraphs 1
4.
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 provi-
sions, as referred to in paragraph 1, needs to be amended,
the Council shall do so by a qualified majority, on a
proposal from the Commission.

Article 5

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

Article 6

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 in accordance with the
procedure laid down in Article 8, shall comprise the fol-
lowing 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 certi-
fied 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 in accordance
with the procedure laid down in Article 8.

4.
In the case of special regular services, the contract
concluded between the carrier and the transport or-
ganizer, or a certified true 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 that authority or agency.

Article 7

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 au-
thority or agency in each Member State shall communi-
cate to the Commission the data concerning cabotage
transport operations,
regular
services and occasional services, carried out during the
quarter in question by resident carriers.

in the form of

special

The communication shall be effected by means of a table
conforming to the model adopted by the Commission in
accordance with the procedure laid down in Article 8.

Cabotage transport operations in the form of occa-
1.
sional services shall be carried out under cover of a

(1) OJ L 145, 13. 6. 1977, p. 1. Directive as last amended by

Directive 96/95/EEC (OJ L 338, 28. 12. 1996, p. 89).

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 referred to
in Article 3 (3).

8. 1. 98

‹

EN

‹

Official Journal of the European Communities

L 4/13

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.

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

Article 8

Whenever reference is made to the procedure laid down
in this Article the Commission shall be assisted by the
advisory committee referred to in Article 10.

The representative of the Commission shall submit to the
committee a draft of
the measures to be taken. The
committee shall deliver its opinion on the draft within a
time limit which the chairman may lay down according
to the urgency of the matter, if necessary by taking a vote.

The opinion shall be recorded in the minutes; in addition,
each Member State shall have the right to ask to have its
position recorded in the minutes.

The Commission shall take the utmost account of the
opinion delivered by the committee. It shall inform the
committee of the manner in which its opinion has been
taken into account.

Article 9

In the event of serious disturbance of the internal
1.
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 stabil-
ity and survival of a significant number of
road
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 safe-
guard 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.

If

to take

the Commission decides

4.
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 Commis-
sion 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 refer a Commission deci-
sion 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 subpara-
graph of paragraph 3 shall apply to the Council’s deci-
sion.

competent

authorities of

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

the Member

If the Council takes no decision within the period laid
down in the second subparagraph, the Commission deci-
sion shall become 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 deci-
sion by qualified majority.

Article 10

The Commission shall be assisted by an advisory
1.
committee composed of representatives of the Member
States and chaired by a representative of the Commission.

The Committee, acting in accordance with the procedure
laid down in Article 8, shall assist the Commission in
drawing up a model for the journey forms, the book of
journey forms and the table referred to in Articles 6 and
7.

In addition, the tasks of the Committee shall be to

2.
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 the
practical application of such measures.

3.

The Committee shall draw up its rules of procedure.

L 4/14

‹

EN

‹

Official Journal of the European Communities

8. 1. 98

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 Regu-
lation 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 Community licence, falsified authoriza-
tion or falsified certified true 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 establish-
ment 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 infringements or infringements which
gave rise to such penalties.

The penalty imposed by the competent authorities of the
Member State of establishment, after consulting the

comptetent authorities of the host Member State, may
extend to withdrawal of authorization to pursue the occu-
pation of road passenger transport operator.

The competent authorities of the Member State of es-
tablishment 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 to the
courts against any administrative penalty imposed on
them.

Article 13

1.
The Commission shall report to the European Par-
liament and the Council before 30 June 1998 on the
results of the application of Regulation (EEC) No 2454/92
and the operation of regular services in the Member
States.

2.
The Commission shall report to the European Par-
liament and the Council by 31 December 1999 at the
latest on the application of this Regulation and, in par-
ticular, on the impact of cabotage transport operations on
national transport markets.

Article 14

Member States shall adopt in good time the laws, regula-
tions and administrative provisions necessary for imple-
mentation of
this Regulation and shall communicate
them to the Commission.

Article 15

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

It shall apply from 11 June 1999.

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

Done at Brussels, 11 December 1997.

For the Council

The President

M. DELVAUX-STEHRES