Common Position (EC) No 7/2009 of 9 January 2009 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council on common rules for access to the international road haulage market (recast) (Text with EEA relevance)
Date: 2009-01-09
Institutions: Council of the European Union
Subjects: carriage of goods, exchange of information, international transport, road transport, simplification of legislation, transport licence

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COMMON POSITION (EC) No 7/2009

adopted by the Council on 9 January 2009

with a view to the adoption of Regulation (EC) No …/2009 of the European Parliament and of the
Council of … on common rules for access to the international road haulage market (recast)

(Text with EEA relevance)

(2009/C 62 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(3)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 71 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure
Article 251 of the Treaty (2),

laid down in

(4)

Whereas:

(1)

(2)

A number of substantial changes are to be made to
Council Regulation (EEC) No 881/92 of 26 March 1992
on access to the market in the carriage of goods by road
within the Community to or from the territory of a
Member State or passing across the territory of one or
more Member States (3),
to Council Regulation (EEC)
No 3118/93 of 25 October 1993 laying down the condi-
tions under which non-resident carriers may operate
national road haulage services within a Member State (4),
and to Directive 2006/94/EC of the European Parliament
and of the Council of 12 December 2006 on the estab-
lishment of common rules for certain types of carriage of
goods by road (5). In the interests of clarity and simplifi-
cation, those legal acts should be recast and incorporated
into one single regulation.

The establishment of a common transport policy entails,
inter alia, laying down common rules applicable to access
to the market
in the international carriage of goods
by road within the territory of the Community, as well as
laying down the conditions under which non-resident
hauliers may operate transport services within a Member
State. Those rules must be laid down in such a way as to
contribute to the smooth operation of the internal trans-
port market.

(1) OJ C 204, 9.8.2008, p. 31.
(2) Opinion of

the European Parliament of 21 May 2008 (not yet
published in the Official
Journal), Council Common Position of
9 January 2009 and Position of the European Parliament of … (not yet
published in the Official Journal). Council Decision of …

(3) OJ L 95, 9.4.1992, p. 1.
(4) OJ L 279, 12.11.1993, p. 1.
(5) OJ L 374, 27.12.2006, p. 5.

the Community,

To ensure a coherent framework for international road
this Regulation
haulage throughout
should apply to all international carriage on Community
territory. Carriage from Member States to third countries
is still
largely covered by bilateral agreements between
the Member States and those third countries. Therefore,
this Regulation should not apply to that part of
the
journey within the territory of
the Member State of
loading or unloading as long as the necessary agreements
between the Community
third countries
concerned have not been concluded. It should, however,
apply to the territory of a Member State crossed in
transit.

and the

restrictions against

The establishment of a common transport policy implies
the
the person
removal of all
providing transport
services on the grounds of his
nationality or the fact that he is established in a different
Member State from the one in which the services are to
be provided.

(5)

(6)

(7)

In order to achieve this smoothly and flexibly, provision
should be made for a transitional cabotage regime as
long as harmonisation of the road haulage market has
not yet been completed.

Under Directive 2006/94/EC, a certain number of types
of carriage are exempt from Community authorisation
and from any other carriage authorisation. Within the
framework of the organisation of the market provided
for by this Regulation, a system of exemption from the
Community licence and from any other carriage authori-
sation should be maintained for some of those types of
carriage, because of their special nature.

Under Directive 2006/94/EC, the carriage of goods with
vehicles of a maximum laden weight of between
3,5 tonnes and 6 tonnes was exempt from the require-
ment for a Community licence. Community rules in the
field of road transport of goods and passengers, however,
apply in general
to vehicles with a maximum laden
weight of more than 3,5 tonnes. Thus, the provisions of
this Regulation should be aligned with the general scope
of application of Community road transport rules and
should only provide for an exemption for vehicles with a
maximum laden weight of 3,5 tonnes.

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(8)

The international carriage of goods by road should be
conditional on the possession of a Community licence.
Hauliers should be required to carry a certified true copy
of the Community licence aboard each of their vehicles
in order to facilitate effective controls by enforcement
authorities, especially those outside the Member State in
which the haulier is established. To this end, it is neces-
sary to lay down more detailed specifications as regards
the layout and other features of the Community licence
and the certified copies.

(14)

(15)

The provisions of Directive 96/71/EC of the European
Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of
the provision of services (2) apply to transport undertak-
ings performing a cabotage operation.

In order to perform efficient controls of cabotage opera-
tions, the enforcement authorities of the host Member
States should, at least, have access to data from consign-
ment notes and from recording equipment, in accordance
(EEC) No 3821/85 of
with Council Regulation
in road
20 December 1985 on recording equipment
transport (3).

(16) Member States should grant each other mutual assistance

with a view to the sound application of this Regulation.

(17) Administrative formalities should be reduced as far as
possible without abandoning the controls and penalties
that guarantee the correct application and effective enfor-
cement of this Regulation. To this end, the existing rules
on the withdrawal of the Community licence should be
clarified and strengthened. The current rules should be
adapted to allow the effective sanctioning of serious
infringements committed in a host Member State. Penal-
ties should be non-discriminatory and proportionate to
the seriousness of
should be
possible to lodge an appeal in respect of any penalties
imposed.

the infringements.

It

(18) Member States should enter in their national electronic
register of road transport undertakings all serious infrin-
gements committed by hauliers which have led to the
imposition of a penalty.

(19)

(20)

(21)

In order to facilitate and strengthen the exchange of
information between national authorities, Member States
should exchange the relevant information through the
national contact points set up pursuant to Regulation
(EC) No …/2009 of the European Parliament and of the
Council of … establishing common rules concerning the
conditions to be complied with to pursue the occupation
of road transport operator (4).

The measures necessary for the implementation of this
Regulation should be
adopted in accordance with
Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing
powers conferred on the Commission (5).

In particular, the Commission should be empowered to
adapt Annexes I, II and III to this Regulation to technical
progress. Since those measures are of general scope and
this
are designed to amend non-essential elements of
Regulation, they must be adopted in accordance with the
regulatory procedure with scrutiny provided for
in
Article 5a of Decision 1999/468/EC.

(2) OJ L 18, 21.1.1997, p. 1.
(3) OJ L 370, 31.12.1985, p. 8.
(4) OJ L …
(5) OJ L 184, 17.7.1999, p. 23.

(9)

The conditions governing the issue and withdrawal of
Community licences and the types of carriage to which
they apply, their periods of validity and the detailed rules
for their use should be determined.

(10) A driver attestation should also be established in order to
allow Member States to check effectively whether drivers
from third countries are lawfully employed or at the
disposal of the haulier responsible for a given transport
operation.

(11) Hauliers who are holders of Community licences
provided for in this Regulation and hauliers authorised to
operate certain categories of international haulage service
transport
should be permitted to carry out national
services within a Member State on a temporary basis,
without having a registered office or other establishment
therein. When such cabotage operations are performed,
they should be subject to Community legislation such as
Regulation (EC) No 561/2006 of the European Parliament
and of the Council of 15 March 2006 on the harmonisa-
tion of certain social
legislation relating to road trans-
port (1) and to national law in force in specified areas in
the host Member State.

(12)

Provisions should be adopted to allow action to be taken
the transport
in the event of serious disturbance of
markets affected. For that purpose it is necessary to intro-
duce a suitable decision-making procedure and for the
required statistical data to be collected.

(13) Without prejudice to the provisions of the Treaty on the
right of establishment, cabotage operations consist of the
provision of services by hauliers within a Member State
in which they are not established and should not be
prohibited as long as they are not carried out in a way
that creates a permanent or continuous activity within
this
that Member State. To assist the enforcement of
requirement, the frequency of cabotage operations and
the period in which they can be performed should be
limited. In the past, such national transport services were
permitted on a temporary basis. In practice, it has been
difficult to ascertain which services are permitted. Clear
and easily enforceable rules are thus needed.

(1) OJ L 102, 11.4.2006, p. 1.

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(22) Member States should take the necessary measures to
implement this Regulation, in particular as regards effec-
tive, proportionate and dissuasive penalties.

5.
This Regulation shall not apply to the following types of
carriage and unladen journeys made in conjunction with such
carriage:

(23)

cannot be

international

framework for

the Community,

Since the objective of this Regulation, namely to ensure a
road haulage
coherent
throughout
sufficiently
achieved by the Member States and can therefore, by
reason of its scale and effects, be better achieved at Com-
munity level, the Community may adopt measures,
in
accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty. In accordance with the principle
of proportionality, as set out in that Article, this Regu-
lation does not go beyond what is necessary in order to
achieve that objective,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

1.
This Regulation shall apply to the international carriage of
goods by road for hire or reward for journeys carried out
within the territory of the Community.

2.
In the event of carriage from a Member State to a third
country and vice versa, this Regulation shall apply to the part of
the journey on the territory of any Member State crossed in
transit. It shall not apply to that part of the journey on the terri-
tory of the Member State of loading or unloading, as long as
the necessary agreement between the Community and the third
country concerned has not been concluded.

Pending the conclusion of the agreements referred to in

3.
paragraph 2, this Regulation shall not affect:

(a) provisions relating to the carriage from a Member State to a
third country and vice versa included in bilateral agreements
concluded by Member States with those third countries;

(b) provisions relating to the carriage from a Member State to a
third country and vice versa included in bilateral agreements
concluded between Member States which, under either bilat-
eral authorisations or
liberalisation arrangements, allow
loading and unloading in a Member State by hauliers not
established in that Member State.

4.
This Regulation shall apply to the national carriage of
goods by road undertaken on a temporary basis by a non-resi-
dent haulier as provided for in Chapter III.

(a) carriage of mail as a universal service;

(b) carriage of vehicles which have suffered damage or break-

down;

(c) carriage of goods in motor vehicles the permissible laden
weight of which, including that of trailers, does not exceed
3,5 tonnes;

(d) carriage of goods in motor vehicles provided the following

conditions are fulfilled:

(i) the goods carried are the property of the undertaking
let out on hire or hired,
repaired by the

or have been sold, bought,
produced, extracted, processed or
undertaking;

(ii) the purpose of the journey is to carry the goods to or
from the undertaking or to move them, either inside or
outside the undertaking for its own requirements;

(iii) motor vehicles used for such carriage are driven by
personnel employed by, or put at the disposal of, the
undertaking under a contractual obligation;

(iv) the vehicles carrying the goods are owned by the under-
taking, have been bought by it on deferred terms or
have been hired provided that in the latter case they
meet
the
the conditions of Directive 2006/1/EC of
European Parliament and of the Council of 18 January
2006 on the use of vehicles hired without drivers for
the carriage of goods by road (1); and

(v) such carriage is no more than ancillary to the overall

activities of the undertaking;

(e) carriage of medicinal products, appliances, equipment and
other articles required for medical care in emergency relief,
in particular for natural disasters.

Point (d)(iv) of the first subparagraph shall not apply to the use
the
of a replacement vehicle during a short breakdown of
vehicle normally used.

6.
The provisions of paragraph 5 shall not affect the condi-
tions under which a Member State authorises its nationals to
engage in the activities referred to in that paragraph.

Article 2

Definitions

For the purposes of this Regulation:

1) ‘vehicle’ means a motor vehicle registered in a Member State,
or a coupled combination of vehicles the motor vehicle of
which at least is registered in a Member State, used exclu-
sively for the carriage of goods;

(1) OJ L 33, 4.2.2006, p. 82.

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2) ‘international carriage’ means:

(a) a laden journey undertaken by a vehicle the point of
departure and the point of arrival of which are in two
different Member States, with or without transit through
one or more Member States or third countries;

(b) a laden journey undertaken by a vehicle from a Member
State to a third country or vice versa, with or without
transit
through one or more Member States or
third countries;

(c) a laden journey undertaken by a vehicle between third
countries, with transit through the territory of one or
more Member States; or

(d) an unladen journey in conjunction with the carriage

referred to in points (a), (b) and (c);

3) ‘host Member State’ means a Member State in which a
haulier operates other than the haulier's Member State of
establishment;

4) ‘non-resident haulier’ means a road haulage undertaking

which operates in a host Member State;

5) ‘driver’ means any person who drives the vehicle even for a
short period, or who is carried in a vehicle as part of his
duties to be available for driving if necessary;

6) ‘cabotage operations’ means national carriage for hire or
reward carried out on a temporary basis in a host Member
State;

7) ‘serious infringement of Community road transport legisla-
tion’ means an infringement which may lead to the loss of
good repute in accordance with Article 6(1) and (2) of Regu-
lation (EC) No …/2009 and/or to the temporary or perma-
nent withdrawal of a Community licence.

tion of
that Member State concerning admission to the
occupation of road haulage operator, to carry out the inter-
national carriage of goods by road.

2.
The Community licence shall be issued by the competent
authorities of the Member State of establishment for renewable
periods of up to ten years.

Community licences and certified copies issued before the date
of application of this Regulation shall remain valid until their
date of expiry.

The Commission shall adapt the period of validity of the Com-
munity licence to technical progress, in particular the national
electronic registers of road transport undertakings as provided
in Article 16 of Regulation (EC) No …/2009. Those
for
measures, designed to amend non-essential elements of
this
Regulation, shall be adopted in accordance with the regulatory
procedure with scrutiny referred to in Article 15(2).

3.
The Member State of establishment shall issue the holder
with the original of the Community licence, which shall be kept
by the haulier, and the number of certified true copies
corresponding to the number of vehicles at the disposal of the
holder of the Community licence, whether those vehicles are
wholly owned or, for example, held under a hire purchase, hire
or leasing contract.

4.
The Community licence and the certified true copies shall
correspond to the model set out in Annex II, which also lays
down the conditions governing its use. It shall contain at least
two of the security features listed in Annex I.

CHAPTER II

INTERNATIONAL CARRIAGE

Article 3

General principle

International carriage shall be carried out subject to possession
of a Community licence and, if the driver is a national of a third
country, in conjunction with a driver attestation.

Article 4

Community licence

1.
The Community licence shall be issued by a Member
State, in accordance with this Regulation, to any haulier carrying
goods by road for hire or reward who:

The Commission shall adapt Annexes I and II
to technical
progress. Those measures, designed to amend non-essential
elements of this Regulation, shall be adopted in accordance with
the
to in
Article 15(2).

regulatory procedure with scrutiny

referred

5.
The Community licence and the certified true copies
thereof shall bear the seal of the issuing authority as well as a
signature and a serial number. The serial numbers of the Com-
munity licence and of the certified true copies shall be recorded
in the national electronic register of road transport undertakings
as part of the data relating to the haulier.

The Community licence shall be issued in the name of the
6.
haulier and shall be non-transferable. A certified true copy of
the Community licence shall be kept in each of the haulier's
vehicles and shall be presented at the request of any authorised
inspecting officer.

(a) is established in that Member State in accordance with Com-
that

legislation of

munity legislation and the national
Member State; and

(b) is entitled in the Member State of establishment, in accord-
ance with Community legislation and the national legisla-

In the case of a coupled combination of vehicles, the certified
true copy shall accompany the motor vehicle. It shall cover the
coupled combination of vehicles even where the trailer or semi-
trailer is not registered or authorised to use the roads in the
name of
registered or
authorised to use the roads in another Member State.

the licence holder or where it

is

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Article 5

Driver attestation

A driver attestation shall be issued by a Member State, in

1.
accordance with this Regulation, to any haulier who:

(a) is the holder of a Community licence; and

(b) in that Member State, either lawfully employs a driver who
is neither a national of a Member State nor a long-term resi-
dent within the meaning of Council Directive 2003/109/EC
of 25 November 2003 concerning the status of
third-
long-term residents (1), or
country nationals who are
lawfully uses a driver who is neither a national of a Member
State nor a long-term resident within the meaning of that
Directive and who is put at the disposal of that haulier in
accordance with the conditions of employment and of voca-
tional training laid down in that Member State:

(i) by laws, regulations or administrative provisions; and, as

appropriate,

(ii) by collective agreements, in accordance with the rules

applicable in that Member State.

2.
The driver attestation shall be issued by the competent
authorities of the Member State of establishment of the haulier,
at the request of the holder of the Community licence, for each
driver who is neither a national of a Member State nor a long-
term resident within the meaning of Directive 2003/109/EC
whom that haulier lawfully employs, or for each driver who is
neither a national of a Member State nor a long-term resident
within the meaning of that Directive and who is put at the
disposal of the haulier. Each driver attestation shall certify that
the driver named therein is employed in accordance with the
conditions laid down in paragraph 1.

3.
The driver attestation shall correspond to the model set
out in Annex III. It shall contain at least two of the security
features listed in Annex I.

The Commission shall adapt Annex III

4.
to technical
progress. Those measures, designed to amend non-essential
elements of this Regulation, shall be adopted in accordance with
the
to in
Article 15(2).

regulatory procedure with scrutiny

referred

The driver attestation shall bear the seal of the issuing
5.
authority as well as a signature and a serial number. The serial
number of the driver attestation may be recorded in the national
electronic register of road transport undertakings as part of the
data relating to the haulier who puts it at the disposal of the
driver designated therein.

6.
The driver attestation shall belong to the haulier, who puts
it at the disposal of the driver designated therein when that
driver drives a vehicle using a Community licence issued to that

(1) OJ L 16, 23.1.2004, p. 44.

haulier. A certified true copy of the driver attestation issued by
the competent authorities of
the haulier's Member State of
establishment shall be kept at the haulier's premises. The driver
attestation shall be presented at the request of any authorised
inspecting officer.

7.
A driver attestation shall be issued for a period to be deter-
mined by the issuing Member State, subject to a maximum
validity of five years. Driver attestations issued before the date of
application of this Regulation shall remain valid until their date
of expiry.

The driver attestation shall be valid only as long as the condi-
tions under which it was issued are satisfied. Member States
shall take appropriate measures to ensure that if those condi-
tions are no longer met, the haulier returns the attestation
immediately to the issuing authorities.

Article 6

Verification of conditions

1. Whenever an application for a Community licence or an
application for renewal of a Community licence in accordance
with Article 4(2) is lodged, the competent authorities of the
Member State of establishment shall verify whether the haulier
satisfies or continues to satisfy the conditions laid down in
Article 4(1).

The competent authorities of the Member State of estab-
2.
lishment shall regularly verify, by carrying out checks each year
covering at least 20 % of the valid driver attestations issued in
that Member State, whether
the conditions, referred to in
Article 5(1), under which a driver attestation has been issued
are still satisfied.

Article 7

Refusal to issue and withdrawal of Community licence and
driver attestation

If

the conditions laid down in Article 4(1) or

those
1.
referred to in Article 5(1) are not satisfied,
the competent
authorities of the Member State of establishment shall reject an
application for the issue or renewal of a Community licence or
the issue of a driver attestation, by means of a reasoned
decision.

The competent authorities shall withdraw a Community

2.
licence or a driver attestation where the holder:

(a) no longer satisfies the conditions laid down in Article 4(1)

or those referred to in Article 5(1), or

(b) has supplied incorrect information in relation to an applica-
tion for a Community licence or for a driver attestation.

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CHAPTER III

CABOTAGE

Article 8

General principle

1.
Any haulier for hire or reward who is a holder of a Com-
munity licence and whose driver, if he is a national of a third
country, holds a driver attestation, shall be entitled, under the
conditions laid down in this Chapter, to carry out cabotage
operations.

Once the goods carried in the course of an incoming
2.
international carriage have been delivered, hauliers referred to in
paragraph 1 shall be permitted to carry out, with the same
vehicle, or,
in the case of a coupled combination, the motor
vehicle of that same vehicle, up to three cabotage operations
following the international carriage from another Member State
or from a third country to the host Member State. The last
unloading in the course of a cabotage operation before leaving
the host Member State shall take place within seven days from
the last unloading in the host Member State in the course of the
incoming international carriage.

Within the time limit referred to in the first subparagraph, haul-
iers may carry out some or all of
the cabotage operations
permitted under that subparagraph in any Member State under
the condition that they are limited to one cabotage operation
per Member State within three days of the unladen entry into
the territory of that Member State.

3.
National road haulage services carried out in the host
Member State by a non-resident haulier shall only be deemed to
conform with this Regulation if the haulier can produce clear
evidence of the international carriage in the course of which he
has arrived in the host Member State and of each consecutive
cabotage operation carried out therein.

Evidence referred to in the first subparagraph shall comprise the
following details for each operation:

(a) the name, address and signature of the sender;

(b) the name, address and signature of the haulier;

(c) the name and address of the consignee as well as his signa-
ture and the date of delivery once the goods have been
delivered;

(d) the place and the date of taking over of the goods and the

place designated for delivery;

4.
Any haulier entitled in the Member State of establishment,
in accordance with that Member State's legislation, to carry out
the road haulage operations for hire or reward specified in
Article 1(5)(a), (b) and (c) shall be permitted, under the condi-
tions set out in this Chapter, to carry out, as the case may be,
cabotage operations of the same kind or cabotage operations
with vehicles in the same category.

5.
Permission to carry out cabotage operations, within the
framework of the types of carriage referred to in Article 1(5)(d)
and (e), shall be unrestricted.

Article 9

Rules applicable to cabotage operations

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

(a) the conditions governing the transport contract;

(b) the weights and dimensions of road vehicles;

(c) the requirements relating to the carriage of certain cate-
gories of goods, in particular dangerous goods, perishable
foodstuffs and live animals;

(d) the driving time and rest periods;

(e) the value added tax (VAT) on transport services.

The weights and dimensions referred to in point (b) of the first
subparagraph may, where appropriate, exceed those applicable
in the haulier's Member State of establishment, but they may
under no circumstances exceed the limits set by the host
Member State for national traffic or the technical characteristics
mentioned in the proofs referred to in Article 6(1) of Council
Directive 96/53/EC of 25 July 1996 laying down for certain
road vehicles circulating within the Community the maximum
authorised dimensions in national and international traffic and
the maximum authorised weights in international traffic (1).

The

laws,

regulations

2.
and administrative provisions
referred to in paragraph 1 shall be applied to non-resident haul-
iers under the same conditions as those imposed on hauliers
established in the host Member State, so as to prevent any
discrimination on grounds of nationality or place of
establishment.

Article 10

Safeguard procedure

(e) the description in common use of the nature of the goods
and the method of packing, and, in the case of dangerous
goods, their generally recognised description, as well as the
number of packages and their special marks and numbers;

(f) the gross weight of the goods or their quantity otherwise

expressed;

In the event of serious disturbance of the national trans-
1.
port market in a given geographical area due to, or aggravated
by, cabotage, any Member State may refer
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 hauliers.

the matter

(g) the number plates of the motor vehicle and trailer.

(1) OJ L 235, 17.9.1996, p. 59.

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2.

For the purposes of paragraph 1:

CHAPTER IV

— ‘serious disturbance of the national transport market in a
given geographical area’ means the existence on the 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 hauliers,

— ‘geographical area’ means an area covering all or part of the
territory of a Member State or extending to all or part of the
territory of other Member States.

The Commission shall examine the situation on the basis
3.
in particular of
the relevant data and, after consulting the
committee referred to in Article 15(1), shall decide within
one month of receipt of the Member State's request whether or
not safeguard measures are necessary and shall adopt them if
they are necessary.

Such measures may involve the temporary exclusion of the area
concerned from the scope of this Regulation.

Measures adopted in accordance with this Article shall remain
in force for a period not exceeding six months, renewable once
within the same limits of validity.

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 adopt safeguard measures
concerning one or more Member States, the competent authori-
ties of the Member States involved shall be required to take
measures of equivalent scope in respect of resident hauliers and
shall inform the Commission thereof. Those measures shall be
applied at the latest as from the same date as the safeguard
measures adopted by the Commission.

Any Member State may refer to the Council a decision
5.
taken by the Commission pursuant
to paragraph 3 within
30 days of its notification. The Council, acting by a qualified
majority may, within 30 days of that referral, or, if there are
referrals by several Member States, of the first referral, take a
different decision.

The limits of validity laid down in the third subparagraph of
paragraph 3 shall apply to the Council's decision. The compe-
tent authorities of
the Member States concerned shall be
required to take measures of equivalent scope in respect of resi-
dent hauliers, and shall inform the Commission thereof. If the
Council takes no decision within the period referred to in the
first subparagraph, the Commission decision shall become final.

MUTUAL ASSISTANCE AND PENALTIES

Article 11

Mutual assistance

Member States shall assist one another in ensuring the applica-
tion and monitoring of this Regulation. They shall exchange
information via the national contact points established pursuant
to Article 18 of Regulation (EC) No …/2009.

Article 12

Sanctioning of

infringements by the Member State of

establishment

1.
In the event of a serious infringement of Community road
transport legislation committed or ascertained in any Member
State, the competent authorities of the Member State of estab-
lishment of the haulier who has committed such infringement
shall take the appropriate action to pursue the matter which
may lead, inter alia, to the imposition of the following adminis-
trative penalties:

(a) temporary or permanent withdrawal of some or all of the

certified true copies of the Community licence;

(b) temporary or permanent withdrawal of

the Community

licence.

These penalties may be determined after the final decision on
the matter has been taken and shall have regard to the serious-
ness of the infringement committed by the holder of the Com-
munity licence and to the total number of certified true copies
of that licence that he holds in respect of international traffic.

2.
In the event of a serious infringement regarding any
misuse whatsoever of driver attestations, the competent authori-
ties of the Member State of establishment of the haulier who
committed such infringement shall
impose appropriate penal-
ties, such as:

(a) suspending the issue of driver attestations;

(b) withdrawing driver attestations;

(c) making the issue of driver attestations subject to additional

conditions in order to prevent misuse;

(d) withdrawing, temporarily or permanently, some or all of the

certified true copies of the Community licence;

(e) withdrawing, temporarily or permanently, the Community

licence.

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

that

These penalties may be determined after the final decision on
the matter has been taken and shall have regard to the serious-
ness of the infringement committed by the holder of the Com-
munity licence.

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3.
The competent authorities of the Member State of estab-
lishment shall communicate to the competent authorities of the
Member State in which the infringement was ascertained, as
soon as possible and at the latest within two months after their
final decision on the matter, which,
if any, of the penalties
provided for in paragraphs 1 and 2 have been imposed.

If such penalties are not imposed, the competent authorities of
the Member State of establishment shall state the reasons
therefor.

The competent authorities shall ensure that the penalties
4.
imposed on the haulier concerned are, as a whole, proportionate
to the infringement or infringements which gave rise to such
penalties, taking into account any penalty for the same infringe-
ment imposed in the Member State in which the infringement
was ascertained.

The competent authorities of the haulier's Member State
5.
law, bring
of establishment may also, pursuant
proceedings against the haulier before a competent national
court or tribunal. They shall inform the competent authority of
the host Member State of any decisions taken to this effect.

to national

6. Member States shall ensure that hauliers have the right to
appeal against any administrative penalty imposed on them
pursuant to this Article.

Article 13

Sanctioning of infringements by the host Member State

1. Where the competent authorities of a Member State are
aware of a serious infringement of this Regulation or of Com-
munity road transport legislation attributable to a non-resident
haulier, the Member State within the territory of which the
infringement
to the competent
authorities of the haulier's Member State of establishment, as
soon as possible and at the latest within two months after their
final decision on the matter, the following information:

is ascertained shall

transmit

(a) a description of the infringement and the date and time

when it was committed;

(b) the category, type and seriousness of the infringement; and

(c) the penalties imposed and the penalties executed.

The competent authorities of
the host Member State may
request the competent authorities of the Member State of estab-
lishment to impose administrative penalties in accordance with
Article 12.

non-discriminatory basis. These penalties may, inter alia, consist
of a warning, or,
in the event of a serious infringement, a
temporary ban on cabotage operations on the territory of the
host Member State where the infringement was committed.

3. Member States shall ensure that hauliers have the right to
appeal against any administrative penalty imposed on them
pursuant to this Article.

Article 14

Entry in the national electronic registers

Member States shall ensure that serious infringements of Com-
munity road transport legislation committed by hauliers estab-
lished in their territory, which have led to the imposition of a
penalty by any Member State, as well as any temporary or
permanent withdrawal of the Community licence or of the certi-
fied true copy thereof, are recorded in the national electronic
register of road transport undertakings. Entries in the register
which concern a temporary or permanent withdrawal of a Com-
munity licence shall remain in the database for two years from
the time of the expiry of the period of withdrawal, in the case
of temporary withdrawal, or from the date of withdrawal, in the
case of permanent withdrawal.

CHAPTER V

IMPLEMENTATION

Article 15

Committee procedure

The Commission shall be assisted by the committee estab-

1.
lished by Article 18(1) of Regulation (EEC) No 3821/85.

2. Where reference is made to this paragraph, Article 5a(1)
to (4) and Article 7 of Decision 1999/468/EC shall apply,
having regard to the provisions of Article 8 thereof.

Article 16

Penalties

Member States shall lay down the rules on penalties applicable
to infringements of the provisions of this Regulation, and shall
take all the measures necessary to ensure that they are imple-
mented. The penalties provided for must be effective, propor-
tionate and dissuasive. Member States shall notify those provi-
sions to the Commission by … (*), and shall notify it without
delay of any subsequent amendment affecting them.

2. Without prejudice to any criminal prosecution the compe-
tent authorities of the host Member State shall be empowered
to impose penalties on a non-resident haulier who has
committed infringements of this Regulation or of national or
Community road transport legislation in their territory during a
impose such penalties on a
cabotage operation. They shall

Member States shall ensure that all such measures are taken
without discrimination as to the nationality or place of estab-
lishment of the haulier.

(*) Two years from the date of entry into force of this Regulation.

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Article 17

Reporting

Every two years Member States shall inform the Commis-
1.
sion of the number of hauliers possessing Community licences
on 31 December of the previous year and of the number of
certified true copies corresponding to the vehicles in circulation
at that date.

2. Member States shall also inform the Commission of the
number of driver attestations issued in the previous calendar
year as well as the number of driver attestations in circulation
on 31 December of that same year.

the market

shall contain an analysis of

3.
The Commission shall draw up a report on the state of
the Community road transport market by the end of 2013. The
report
situation,
including an evaluation of the effectiveness of controls and the
evolution of employment conditions in the profession, as well
as an assessment as to whether harmonisation of the rules in
the fields,
inter alia, of enforcement and road user charges, as
well as social and safety legislation, has progressed to such an
the further opening of domestic road transport
extent
markets, including cabotage, could be envisaged.

that

CHAPTER VI

FINAL PROVISIONS

Article 18

Repeals

Regulations (EEC) No 881/92 and (EEC) No 3118/93 and Direc-
tive 2006/94/EC are hereby repealed.

References to the repealed Regulations and Directive shall be
construed as references to this Regulation and shall be read in
accordance with the correlation table set out in Annex IV.

Article 19

Entry into force

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

It shall apply from … (*).

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

Done at, …

For the European Parliament

The President

…

For the Council

The President

…

(*) Two years after the date of entry into force of this Regulation.

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SECURITY FEATURES OF THE COMMUNITY LICENCE AND THE DRIVER ATTESTATION

ANNEX I

The Community licence and the driver attestation must have at least two of the following security features:

— a hologram;

— special fibres in the paper which become visible under UV-light;

— at least one microprint line (printing visible only with a magnifying glass and not reproduced by photocopying

machines);

— tactile characters, symbols or patterns;

— double numbering: serial number of the Community licence, of the certified copy thereof or of the driver attestation

as well as, in each case, the issue number;

— a security design background with fine guilloche patterns and rainbow printing.

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ANNEX II

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ANNEX III

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ANNEX IV

CORRELATION TABLE

Regulation (EEC) No 881/92

Regulation (EEC) No 3118/93

Directive 2006/94/EC

This Regulation

Article 1(1)

Article 1(2)

Article 1(3)

Annex II

Article 2

Article 3(1)

Article 3(2)

Article 3(3)

Article 4

Article 5(1)

Articlse 5(2)

Article 5(3)

Article 5(4), Annex I

Article 5(5)

Article 6(1)

Article 6(2)

Article 6(3)

Article 6(4)

Article 6(5)

Article 7

Article 8(1)

Article 8(2)

Article 8(3)

Article 8(4)

Article 9(1) and (2)

Article 1(1)

Article 1(2)

Article 1(3)

Article 1(5)

Article 1(1) and (2),
Annex I; Article 2

Article 2

Article 1(6)

Article 2

Article 3

Article 4(1)

Article 5(1)

Article 4(2)

Article 4(3)

Article 4(4)

Article 4(5)

Article 4(6)

Article 4(2)

Article 5(2)

Article 5(2)

Article 5(3)

Article 5(6)

Article 5(7)

Article 6

Article 7(1)

Article 7(2)

Article 12(1)

Article 12(2)

Article 12(6)

Article 8(1)

Article 8(4)

Article 8(5)

—

Article 1(1)

Article 1(2)

Article 1(3) and (4)

Article 2

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Regulation (EEC) No 881/92

Regulation (EEC) No 3118/93

Directive 2006/94/EC

This Regulation

—

—

—

Article 9(1)

—

Article 9(2)

—

Article 10

Article 17(1)

Article 11

Article 13(1)

Article 12(4)

Article 13(2)

Article 12(4)

Article 12(5)

Article 13(3)

Article 18

Article 19

Annex II

Annex III

Article 3

Article 4

Article 5

Article 6(1)

Article 6(2)

Article 6(3)

Article 6(4)

Article 7

Article 8(1)

Article 8(2) and (3)

Article 8(4) subparagraphs 1
and 3

Article 8(4) subparagraph 2

Article 8(4) subparagraphs 4
and 5

Article 9

Article 10

Article 11

Article 12

Annex I

Annex II

Annex III

Annex IV

Article 4

Article 3

Article 5

Annex II, III

Article 10

Article 11(1)

Article 11(2)

Article 11(3)

Article 11a

Article 12

Article 13

Article 14

Article 15

Annex I

Annex III

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission presented the proposal for a Regulation on common rules for access to the interna-
tional road haulage market (recast) on 25 May 2007 as one of the three proposals of the so-called
‘Road Package’ (1).

On 21 May 2008, the European Parliament voted its opinion at 1st reading.

On 9 January 2009, the Council adopted its common position in accordance with Article 251 of the
Treaty.

In carrying out its work, the Council took account of the opinions of the European Economic and
Social Committee. The Committee of Regions decided not to give an opinion on the three proposals of
the road package.

II. ANALYSIS OF THE COMMON POSITION

1. General

Following the ‘Conclusions on the contribution of the transport sector to the Lisbon strategy’ of
the Spring 2007 European Council, the Commission decided to make proposals to review the existing
legislative framework on access to the profession of transport operator and access to the international
road haulage market as well as to the international market for coach and bus services, in order to, inter
alia, ensure that administrative burdens were appropriate and proportionate. As a whole, these new
proposals seek to modernise, replace and merge provisions governing road transport operators and
access to the road transport markets.

The proposal for a regulation on common rules for the access to the international road haulage market,
as it was presented by the Commission, aims at fairer competition by making these rules more compar-
able, consistent and enforceable. It also encourages better optimisation of vehicle loads in international
trips which contributes to reducing the environmental impact of transport.

The common position as agreed by the Council lays down rules concerning the access to the interna-
tional freight transport market. It consolidates, merges and substantially modifies Community legislation
currently in force by giving a simple, clear and enforceable definition of cabotage. It also simplifies the
standardised format for the Community licence, the certified copies and the driver attestation. In particu-
lar it rules on the periods of validity of the Community licence and on the verification of compliance,
and provides a list of security features in order to avoid manipulation and forgery of these documents.
Moreover, the common position enhances the current legal provisions on the exchange of information
and mutual assistance among the Member States and on penalties, i.e. the sanctioning of infringements
by the Member State of establishment and the host Member State. It also obliges Member States to enter
into their national register of road transport undertakings all serious infringements committed by their
own hauliers which have led to the imposition of a penalty. The common position also introduces the
obligation for the Commission to assess, in a report to be published at the end of 2013, whether the
progress in the harmonisation of certain rules (i.e. enforcement and road user charges) will allow a
further opening of the domestic transport markets, including cabotage.

(1) The other 2 legislative proposals concern:

— a proposal for a Regulation of the European Parliament and of the Council establishing common rules concerning
the conditions to be complied with to pursue the occupation of road transport operator (10114/1/07 TRANS 194
CODEC 602 + REV1 (en,fr, de)) and

— a proposal for a Regulation of the European Parliament and of the Council on common rules for access to the

market of coach and bus services (recast) (10102/2/07 TRANS 191 CODEC 601 + REV 2 (en, fr, de)).

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2. Key policy issues

i) Community licence and driver attestation

The Commission proposal foresees the issuing of a Community licence for a renewable period of five
years. Moreover, it obliges the Member States to record the serial numbers of the licence and the certified
true copies in the national electronic register of road transport undertakings provided for in the proposal
for a regulation on the admission to the transport operator.

The Council in its common position allows a more flexible approach and a longer period of validity for
the Community licence, given that the aforementioned register will allow an immediate verification of
the current status of a transport undertaking. The common position therefore extends the validity of the
renewable Community licence to ‘up to 10 years’, introduces the (comitology) regulatory procedure with
scrutiny to care for future necessary adaptations of the validity of the Community licence, and also
amends accordingly the provisions concerning the verification of conditions for the issuing and renewal
of the licence.

Concerning the issuing of a driver attestation, the Council decided to include in its common position a
reference to Directive 2003/109/EC concerning the status of third-country nationals who are long-term
residents (Article 5.1 (b) and 5.2). As for the recording of the serial number of the driver attestation in
the national electronic register, the common position deviates from the Commission proposal and leaves
this provision optional (Article 5.5).

In order to avoid possible falsifications of these documents, the Council decided to amend Annexes I
and II by adding a series of security features, of which at least two have to be used within the docu-
ments. The European Parliament decided to follow the Commission's approach and did not adopt
amendments on this issue.

ii) Cabotage

In order to clarify the temporary nature of cabotage, the original Commission proposal introduces a
new definition of this concept by limiting the number of cabotage operations to up to three within a
timeframe of seven days following an international carriage of goods. These limitations are aimed at
facilitating enforcement, as the relevant information could be gathered from the CMR consignment
letters, which are used in all international transport. For the sake of completeness the Commission
proposal also includes, in the relevant Article, the information which should be documented and avail-
able within the vehicle.

In its common position, the Council follows the Commission proposal, but, in order to avoid unladen
journeys on Community roads, introduces an additional provision allowing hauliers to carry out cabo-
tage operations in transited Member States. Such operations will be limited to one per transited Member
State within three days following the unladen entry into the territory of that Member State. The overall
number of operations, however, will still be limited to three within seven days. Such a wider approach
provides Community hauliers with more flexibility within the framework established by the original
Commission proposal, whilst at the same time setting a limit to uncontrolled cabotage operations and
contributing to environment protection by reducing the number of empty runs of vehicles.

The Council's common position also re-introduces certain safeguard measures which are currently in
force and which allow Member States, following approval by the Commission, to introduce protective
measures in case of serious disturbance of the national transport market in a geographical area due to
or aggravated by cabotage.

The Council also decided to include in its common position the obligation for the Commission to
assess, in a future report on the state of the Community road transport market, whether the progress in
the harmonisation of certain rules (i.e. enforcement and road user charges) allows further opening of the
domestic transport markets, including cabotage. This report will also contain an analysis of the market
situation and the evolution of employment conditions in the profession. The date of delivery of this
report is set for the end of 2013.

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The European Parliament also accepted the Commission's proposal of allowing three consecutive cabo-
tage operations within seven days. It adopted, however, an additional provision allowing cabotage opera-
tions in Member States which are transited by the vehicle on its way home under the condition that the
shortest homeward journey transits through that Member State and that the time limit of seven days is
respected. Moreover, the European Parliament also decided to re-introduce safeguard measures in case of
serious disturbance of a national market due to or aggravated by cabotage.

Furthermore, the European Parliament adopted provisions allowing Member States to conclude bilateral
agreements granting a less restrictive approach on cabotage, authorizing cabotag after partial unloading,
and requesting the introduction of a single harmonised model for a waybill valid throughout the
European Union for all haulage operations and including cabotage.

Contrary to the approach taken by the Council and the Commission, the European Parliament voted in
favour of a complete liberalisation of cabotage operations as of 1 January 2014.

iii) Cooperation between Member States

Following the Commission proposal and in order to facilitate and strengthen the exchange of informa-
tion between national authorities, the Council decided to include in its common position a provision
obliging the Member States to exchange information via the national contact points. The Council also
followed the Commission proposal concerning the obligation for the Member States to enter into their
national register of road transport undertakings all serious infringements of Community transport legis-
lation which have led to the imposition of a penalty. Moreover, the Council decided to enter into the
national registers any temporary or permanent withdrawal of the Community licence or of the certified
true copies. The latter entries will remain in the data base for two years.

The provisions concerning the establishment of national contact points as well as the national registers
are also contained in the draft Regulation on the admission to the occupation of road transport
operator.

The European Parliament decided to follow the Commission proposal and did not adopt amendments
on this issue.

iv) Sanctioning of infringements

In order to homogenise the current monitoring and control systems employed by Member States, the
Commission proposes to enhance the power and means of the national authorities who are habilitated
to deliver and withdraw the Community licence. The proposal therefore contains an obligation for the
competent authority of the Member State of establishment of the haulier to issue a warning, when a
haulier commits a serious infringement or repeats minor infringements of road transport legislation.
This obligation also applies to cases where the haulier committed such an infringement in another
Member State. A further provision clarifies the sanctions that the Member State may impose on the
hauliers established within its territory, namely the temporary or partial withdrawal of certified copies of
the Community licence, the Community licence itself or driver attestations. A Member State may also
impose as a sanction the temporary or permanent disqualification of a haulier's transport manager.

The common position as agreed by the Council follows to a large extent the Commission's approach
towards serious infringements. However, the Council decided against the issuing of a warning and
agreed to leave the choice of action to the Member States. Moreover, the Council agreed to leave the
weighing of repeated minor infringements to the discretion of the Member States. The common position
also introduces the obligation for the competent authority of the Member State of establishment of the
haulier to communicate to the competent authority of the Member State in which an infringement was
ascertained whether and which penalties have been imposed. The timeframe foreseen for this communi-
cation is fixed within two months after the final decision on the matter has been taken.

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The original Commission proposal also introduces a new procedure to be followed by the Member State
which ascertains a serious infringement committed by a non-resident haulier. This Member State has
one month to communicate the information (in minimum standard format) and may ask the Member
State of establishment to impose administrative sanctions. The Member State of establishment of the
haulier concerned has three months to inform the other Member State of the follow-up.

The Council common position has taken over this provision but allows two months for the communica-
tion. The Council common position does not contain any obligation for the Member State of establish-
ment of the haulier to report on the follow-up.

The European Parliament also decided against the inclusion of provisions concerning repeated minor
infringement. Moreover, it voted in favour of a provision allowing the imposition of fines as a possible
penalty.

3. Other amendments adopted by the European Parliament

The Council common position integrated fully or in principle amendments concerning a modified defi-
nition of the exception for the carriage of mail and the limitation of details contained in the evidence to
be produced for the international carriage in connection with cabotage operations.

The amendments not included in the common position concern:

— a recital on the relation to Directive 92/106/EEC on combined transport;

— an addition to the definition of cabotage;

— 1 January 2009 as a fixed date of application of this Regulation;

— the reference to the Directive on the posting of workers as rules applicable to cabotage;

— the possibility for Member States to regulate cross trade.

III. CONCLUSION

In establishing its common position, the Council has taken full account of the proposal of the Commis-
sion and the European Parliament's opinion at first reading. With respect to the amendments proposed
by the European Parliament, the Council observes that a considerable number of amendments have —
in spirit, partially or in full — already been included in its common position.

As regards the main issue of disagreement — the fixation of a date for the liberalisation of the cabotage
market — the Council considers its approach to be a balanced and appropriate response.