1999/102/EC: Commission Decision of 25 January 1999 concerning a dispute between the Netherlands and France and Italy concerning authorisation of a regular passenger service by coach (notified under document number C(1999) 111) (Only the Danish, Dutch, English, French, German, Italian and Spanish versions are authentic) (Text with EEA relevance)
Date: 1999-01-25
Institutions: European Commission
Subjects: bus, carriage of passengers, freedom to provide services, intra-EU transport, transport licence

6. 2. 1999

EN

Official Journal of the European Communities

L 33/21

COMMISSION DECISION

of 25 January 1999

concerning a dispute between the Netherlands and France and Italy concerning
authorisation of a regular passenger service by coach

(notified under document number C(1999) 111)

(Only the Danish, Dutch, English, French, German, Italian and Spanish versions are
authentic)

(Text with EEA relevance)

(1999/102/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EEC) No 684/92 of
16 March 1992 on common rules for the international
carriage of passengers by coach and bus (1), as amended by
Regulation (EC) No 11/98 (2), and in particular Article 7(7)
thereof,

Whereas:

I. FACTS

(1) On 17 March 1998 the Dutch company Atlas
Reizen BV submitted to the competent Dutch
authorities, hereinafter referred to as the ‘author-
ising authority', an application for the authorisation
of a regular service by coach through various
namely Belgium, Denmark,
Member
Germany, Spain, France, Italy,
the Netherlands,
Austria and the United Kingdom.

States,

(2)

(3)

The service proposed by Atlas Reizen BV is aimed
only at non-European tourists, who reserve a full
tour which is payable in advance to a travel agency,
the price covering the whole tour and the ticket
being valid for the entire season. The route can be
taken only once. Tourists may be set down at one
of the predetermined stops in one of the Member
States and continue their trip a few days later in
another coach of the same service. Coaches stop
every other day to collect passengers at special
stops, usually near hotels. The tour operates from
April to October.

In accordance with the authorisation procedure set
out in Article 7(1) of Regulation (EEC) No 684/92,
authorisation is issued in agreement with all the
Member States in whose territories passengers are
picked up or set down; whereas in a letter dated 25
March 1998, the Dutch authorities transmitted the

application with a favourable opinion to all the
Member States concerned. Belgium, Denmark,
Germany, Spain, Austria and the United Kingdom
endorsed the application but France and Italy
rejected it.

from the application,

(4) On 10 April 1998 the French authorities stated that
they were opposed to the application on the basis
that
it differed only slightly from a previous
application submitted by the Dutch company
Vermaat’s Autobedrijf BV in a letter dated 12
August 1997, which the French authorities rejected
on 10 October 1997 on the grounds that it was not
possible,
to define the
category of service (regular, special regular or occa-
sional), that it was aimed at the most lucrative
market since it was offered only during the tourist
season, and it constituted unauthorised cabotage
within the meaning of 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 (3), as amended by the Act of
Accession of Austria, Finland and Sweden.

(5) On 21 April 1998 the Italian authorities informed
the Dutch authorities that they would endorse the
application on condition that no services would be
provided between two or more towns on Italian
territory, thus effectively refusing authorisation of
the service as presented.

(6) On 16 June 1998 the dispute in question was
referred to the Commission under Article 7(6) of
Regulation (EEC) No 684/92, which states that ‘If
the procedure for reaching the agreement referred
to in paragraph 1 does not enable the authorising
authority to decide on an application, the matter
may be referred to the Commission within the
time limit laid down in paragraph 3', that is three
months from submission of the application.

(1) OJ L 74, 20. 3. 1992, p. 1.
(2) OJ L 4, 8. 1. 1998, p. 1.

(3) OJ L 251, 29. 8. 1992, p. 1.

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Official Journal of the European Communities

6. 2. 1999

II. LEGAL ASSESSMENT

(7) Despite the fact that at the time of the adoption of
this Decision the amendments made by Regulation
(EC) No 11/98 have become applicable, the type of
service for which authorisation is requested must
be assessed in accordance with the rules and defini-
tions applicable when the application was sub-
mitted.

(8)

The service in question has certain characteristics
of a regular service as defined by Article 2(1) of
Regulation (EEC) No 684/92 in that
it carries
passengers at specified intervals along specified
routes, passengers being taken up and set down at
predetermined stopping points. However, in this
instance the service cannot be said to be open to
all, since it is available solely to non-European
tourists who reserve and pay for their ticket before
arriving in Europe, where the service is not
marketed. It cannot, therefore, be called a regular
service within the meaning of Article 2(1.1) of
Regulation (EEC) No 684/92.

(9) A service can be called a special regular service
under Article 2(1.2) of Regulation (EEC) No 684/92
if it carries a specified category of passengers to the
exclusion of other passengers, and the fact that
passengers are non-European is sufficient to consti-
tute a specified category of passengers.

(10)

The Court of Justice of the European Communities
established in its judgment in Case C-47/97 Clarke
& Sons and Ferne (1) that ‘the term “specified cate-
gories of passengers” within the meaning of Regu-
lation (EEC) No 684/92 must be understood as
referring to passengers sharing the same status.
That interpretation stems from the examples given
in Article 2(1.2) of Regulation (EEC) No 684/92
which refers, inter alia, to the carriage of workers,
school pupils, students and soldiers. It is not suffi-
cient, on the other hand, for there merely to be a
group of passengers assembled in advance (...). In
the case in the main proceedings, the transport
service is on each occasion carried out
for a
different group of passengers, the only common
element being that they all made reservations for a
journey with the same tour operator. Such passen-
gers do not therefore belong to a single specified
category'.

(11)

In this instance, the passengers are non-Europeans
who reserved their trip through the same tour oper-
ator, which does not mean that they share the same
status as defined by the Court of Justice. Further-
the passengers do not make the journey
more,
regularly in the same way as specified categories of

(1)

[1998] ECR I-2147, paras 21, 22 and 23.

passengers such as students, soldiers or workers
who travel between their home and place of
activity. In the present instance, passengers take the
coach service in one direction, once only in the
season, stopping off as they please for a few days at
one of the stopping points and subsequently taking
another coach of the same service to another desti-
nation, so that at no time can the group be consid-
ered homogenous. It must therefore be concluded
that this service does not fall into the category of a
special regular service.

(12)

It is then necessary to examine whether this service
could be called a shuttle service within the
meaning of Article 2(2) of Regulation (EEC) No
684/92. Such services are defined as
services
whereby groups assembled in advance are carried
from a single area of departure to a single area of
destination by means of repeated outward and
return journeys. These groups, made up of passen-
gers who have completed the outward journey, are
carried back to the place of departure in the course
of a subsequent journey.

The terms ‘area of departure' and ‘area of destina-
tion' mean the place where the journey begins and
the place where the journey ends, together with, in
each case,
localities within a radius of 50 kilo-
metres. Outside the areas of departure and destina-
tion, groups may be picked up and set down
respectively at up to three different places.

the purpose of

For
shuttle services, a group
assembled in advance is a group for which a body
or person responsible in accordance with the rules
of the state of establishment has taken charge of
conclusion of the contract or collective payment of
the service or has received all reservations and
payments before departure.

The service proposed by Atlas Reizen BV does not
meet these criteria, since it comprises a tour and
not several outward and return journeys, there are
more than three stops, payment is not collective
since each person reserves and pays for the trip
independently, and the group is not assembled in
advance. Classification under shuttle services with
accommodation, defined in Article 2(2.2), requires
the additional condition of accommodation at the
place of destination for at least 80 % of the passen-
gers, which is not the case for the service in ques-
tion, as it offers some accommodation but
in
It can therefore be
various destination areas.
concluded that the service offered by Atlas Reizen
BV cannot be classified as a shuttle service within
the meaning of Regulation (EEC) No 684/92.

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Official Journal of the European Communities

L 33/23

(13)

(14)

Regulation (EEC) No 684/92 defines occasional
services as services falling neither within the defini-
tion of regular services nor within the definition of
shuttle services.

The service proposed by Atlas Reizen BV cannot
fall within the category of
tours referred to in
Article 2(3.1)(a), where the same vehicle is used to
carry out a tour with one or more groups of passen-
gers previously assembled. In the present instance,
the conditions of the same vehicle carrying out the
tour and previously assembled group are not met
since, as already noted, each passenger decides
where to stop off and for how long. For the same
reasons the service cannot be classified in the
category of services carrying groups of passengers
previously assembled and providing accommoda-
tion for these groups as defined in Article 2(3.1)(b).
Neither can it be considered a service organised on
the occasion of special events such as seminars,
conferences and cultural or sporting events as
referred to in Article 2(3.1)(c), or as a service within
the meaning of Article 2(3.1)(d), that is a closed-
door tour or a laden journey followed by an empty
journey to the vehicle’s place of departure or an
empty journey followed by a laden return journey.
However, it can be considered a residual occasional
service as defined in Article 2(3.1)(e), which defines
these services as those which do not meet
the
criteria in (a) to (d).

(15) Moreover, Article 2(3.3) of Regulation (EEC) No
684/92 states that ‘The services referred to in recital
3 shall not cease to be occasional services solely
because they are provided at certain intervals'. In
the case in question a coach comes to pick up
passengers every other day. It must be concluded
that the service offered by Atlas Reizen BV can be
classified as a residual occasional service within the
meaning of Article 2(3.1)(e) of Regulation (EEC) No
684/92.

(16) Under Article 4(4) of Regulation (EEC) No 684/92,
residual occasional services are subject to author-
isation and the reasons for refusing such author-
isation are the same as the reasons for refusing
authorisation of regular services. Those reasons for
refusal are set out in Article 7(4) of Regulation
(EEC) No 684/92. Consequently, it must be exam-
ined whether the reasons given by France and Italy
for refusing authorisation are well-founded.

(17)

refusing
The justification given by France for
authorisation in their correspondence of 10 April
1998 was that
the application was similar to a
previous application submitted by another Dutch

(18)

(19)

(20)

in a letter
company, Vermaat’s Autobedrijf BV,
dated 12 August 1997, which the French author-
ities rejected on 10 October 1997. Since the current
application for authorisation was
submitted by
another company, Atlas Reizen BV, France cannot
plead similarity to an application from another
company as a ground for rejecting the application
within the meaning of Regulation (EEC) No 684/
92. Article 7 of Regulation (EEC) No 684/92 gives
a list of grounds for rejecting an application and
this list must be interpreted restrictively in order to
guarantee legal certainty. The justification put
forward by France cannot be considered as a
ground for refusal within the meaning of Regula-
tion (EEC) No 684/92. France should have recon-
sidered the grounds for refusal previously drawn up
in order to reject the application for authorization.
Moreover,
it has not been established that such
grounds could have been accepted in this case and
as the file now stands these grounds cannot be
taken into account.

The Italian authorities endorsed the application on
condition that no links were provided between two
or more towns on Italian territory, on the grounds
that this would constitute unauthorised cabotage
within the meaning of Regulation (EEC) No 2454/
92. They thus effectively refused authorisation.
However,
this condition cannot be taken into
account inasmuch as cabotage has been liberalised
for all occasional
from 1
January 1996.

services with effect

The Member States concerned were consulted on
28 October 1998. It emerged from this consultation
that the majority of Member States present support
the draft decision submitted by the Commission,
including the classification as a residual occasional
service. However, France remains opposed to such
classification as
service.
Several Member States have expressed the view that
the parts of
the journey effected on the same
national territory could be considered to be cabo-
tage within the meaning of Regulation (EEC) No
2454/92.

residual occasional

a

The amendments made by Regulation (EC) No
11/98, which are applicable from 11 December
1998, do not call in question the classification of
the service offered by Atlas Reizen BV as an occa-
sional service, as has been shown. However, the
new rules change the market access of that type of
service since occasional services are now grouped
in a single category and are no longer subject to
authorisation pursuant to the new Article 4(1),

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Official Journal of the European Communities

6. 2. 1999

HAS DECIDED AS FOLLOWS:

Article 3

Article 1

The service carried out by Atlas Reizen BV, Heemskerk,
the Netherlands, between Belgium, Denmark, Germany,
Spain, France, Italy, the Netherlands, Austria and the
United Kingdom is classified as a residual occasional
service within the meaning of Article 2(3.1)(e) of Regula-
tion (EEC) No 684/92. From the date on which the
provisions of Regulation (EC) No 11/98 amending Regu-
lation (EEC) No 684/92 became applicable, that service is
no longer subject to an authorisation.

Article 2

This Decision shall take effect 30 days after notification
to the Member States concerned.

This Decision is addressed to the Kingdom of Belgium,
the Kingdom of Denmark,
the Federal Republic of
Germany, the Kingdom of Spain, the French Republic,
the Italian Republic, the Kingdom of the Netherlands,
the Republic of Austria and the United Kingdom.

Done at Brussels, 25 January 1999.

For the Commission

Neil KINNOCK

Member of the Commission