Common Position (EC) No 5/2009 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 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (Text with EEA relevance)
Date: 2009-01-09
Institutions: Council of the European Union
Subjects: carriage of goods, carrier, professional qualifications, road safety, road transport, working conditions

17.3.2009

EN

Official Journal of the European Union

C 62 E/1

III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 5/2009

adopted by the Council on 9 January 2009

with a view to the adoption of a 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 and repealing Council Directive 96/26/EC

(Text with EEA relevance)

(2009/C 62 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

road safety. They will also facilitate the effective exercise
of the right of establishment by road transport operators.

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 71(1) thereof,

(2)

Having regard to the proposal from the Commission,

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

Having regard to the opinion of the European Data Protection
Supervisor (2),

After consulting the Committee of the Regions,

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

transport operations (4)

Council Directive 96/26/EC of 29 April 1996 on admis-
sion to the occupation of road haulage operator and road
passenger transport operator and mutual recognition of
diplomas, certificates and other evidence of formal quali-
fications intended to facilitate for these operators the
right to freedom of establishment in national and inter-
national
laid down minimum
conditions governing admission to the occupation of
road transport operator and the mutual recognition of
the documents required in this connection. However,
experience, an impact assessment and various studies
show that that Directive is being applied inconsistently
by Member States. Such disparities have several adverse
consequences,
in particular adistortion of competition
and a lack of market transparency and of uniform moni-
toring, as well as the risk that undertakings employing
staff with a low level of professional qualification may be
negligent or less compliant with the rules on road safety
and social welfare, which may harm the image of the
sector.

(1)

The completion of an internal market in road transport
with fair conditions of competition requires the uniform
application of common rules on admission to the occu-
pation of road haulage operator or road passenger trans-
road transport
port operator
operator’). Such common rules will contribute to the
achievement of a higher level of professional qualification
for road transport operators, the rationalisation of the
market and an improved quality of service, in the inter-
ests of road transport operators, their customers and the
economy as a whole, together with improvements in

‘occupation of

(the

(1) OJ C 151, 17.6.2008, p. 16.
(2) OJ C 14, 19.1.2008, p. 1.
(3) Opinion of

the European Parliament of 21 May 2008 (not yet
published in the OfficialJournal), 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)

These consequences are all the more detrimental in that
they are liable to disturb the smooth functioning of the
internal market in road transport, since the market in the
international goods and certain cabotage
transport of
operations is accessible to undertakings throughout the
Community. The only condition imposed on such under-
takings is that they have a Community licence, which can
conditions
be obtained provided they
governing admission to the occupation of road transport
operator laid downin Regulation (EC) No …/2009 of the
the Council of … on
European Parliament and of
road
common rules
haulage market
(EC)

to the international
Regulation

for access

(recast) (5)

satisfy

and

the

(4) OJ L 124, 23.5.1996, p. 1.
(5) OJ L …

C 62 E/2

EN

Official Journal of the European Union

17.3.2009

No …/2009 of
the
Council of … on common rules for access to the interna-
tional market for coach and bus services (recast) (1).

the European Parliament and of

(9)

It is therefore appropriate to modernise the existing rules
on admission to the occupation of
road transport
operator in order to ensure that those rules are applied
more uniformly and effectively. Since compliance with
those rules constitutes the main condition governing
access to the Community market, and the applicable
Community instruments in this field are Regulations, a
Regulation would appear to be the most appropriate
instrument to govern admission to the occupation of
road transport operator.

The good repute of transport managers is conditional on
their not having been convicted of a serious criminal
offence or not having incurred a penalty, for a serious
infringement, in particular, of Community rules relating
to road transport. A conviction or penalty incurred by a
transport manager or a road transport undertaking in
one or more Member States for the most serious infrin-
gements of Community rules should result in the loss of
good repute provided that the competent authority has
ascertained that a duly completed and documented inves-
tigation procedure granting essential procedural rights
took place before its final decision and that appropriate
rights of appeal were respected.

in,

characteristics of, and constraints

Member States should be allowed to adapt the conditions
with which to comply in order to pursue the occupation
of road transport operator in the outermost regions
referred to in Article 299(2) of the Treaty because of the
those
special
regions. However, the undertakings established in those
regions which comply with the conditions to pursue the
occupation of road transport operator only as a result of
such adaptation should not be able to obtain a Com-
the conditions to
munity licence. The adaptation of
pursue the occupation of road transport operator should
not hinder undertakings which would have been
admitted to the occupation of road transport operator
and which comply with the general conditions laid down
in this Regulation from carrying out transport operations
in the outermost regions.

In the interests of fair competition, the common rules
governing the exercise of the occupation of road trans-
port operator should apply as widely as possible to all
undertakings. However,
is unnecessary to include
within the scope of this Regulation undertakings which
only perform transport operations with a very small
impact on the transport market.

it

It should be the responsibility of the Member State of
establishment to verify that an undertaking satisfies at all
times the conditions laid down in this Regulation so that
the competent authorities of that Member State are able,
if necessary,
to decide to suspend or withdraw the
authorisations which allow that undertaking to operate
on the market. Proper compliance with, and reliable
monitoring of, the conditions governing admission to the
occupation of road transport operator presuppose that
undertakings have an effective and stable establishment.

Natural persons with the requisite good repute and
professional competence should be clearly identified and
designated to the competent authorities. Such persons
(‘transport managers’), should be those who effectively
and continuously manage the transport activities of road
transport undertakings.
is therefore appropriate to
specify the conditions under which a person is consid-
ered to effectively and continuously manage the transport
activities of an undertaking.

It

(10)

It is necessary for road transport undertakings to have a
minimum financial
standing to ensure their proper
launching and administration. A bank guarantee or a
professional
liability insurance may constitute a simple
and cost-efficient method of demonstrating the financial
standing of undertakings.

authorise

examination

(11) A high level of professional qualification should increase
the socio-economic efficiency of
the road transport
sector. It is therefore appropriate that applicants for the
post of transport manager should possess high-quality
professional knowledge. In order to ensure greater unifor-
mity of examinations and to promote a high quality of
training, it is appropriate to provide that Member States
may
centres
according to criteria to be defined by them. Transport
managers should possess the requisite knowledge for
transport
managing both national and international
operations. The list of subjects of which knowledge is
required in order to obtain a certificate of professional
competence and the procedures for the organisation of
examinations are likely to evolve with technical progress,
It
and provision should be made for updating them.
should be possible for Member States to exempt from the
examinations persons who can provide proof of contin-
uous experience in managing transport activities.

training

and

(12)

is

that

competition and road transport

Fair
fully
compliant with the rules require a uniform level of moni-
toring by Member States. The national authorities respon-
sible for monitoring undertakings and the validity of
their authorisations have a crucial role to play in this
respect, and it is appropriate to ensure that those authori-
ties take suitable measures if necessary, in particular the
suspension or withdrawal of authorisations or
the
declaration of unfitness of transport managers who are
repeatedly negligent or who act in bad faith.

(13)

Better organised administrative
cooperation between
Member States would improve the effectiveness of the
monitoring of undertakings operating in several Member
States and would reduce administrative costs in the
future. Electronic registers of undertakings interconnected
the Community, which comply with the
throughout

(4)

(5)

(6)

(7)

(8)

(1) OJ L …

17.3.2009

EN

Official Journal of the European Union

C 62 E/3

Community rules on the protection of personal data,
would facilitate such cooperation and reduce the costs
involved in checks for both undertakings and administra-
tions. National registers already exist in several Member
States. Infrastructure has also been set up with a view to
promoting interconnection between Member States. A
more systematic use of electronic registers could therefore
make a significant contribution to reducing the adminis-
their
trative
effectiveness.

to improving

costs of

checks

and

(14)

(15)

(16)

(17)

and of

Some data contained in national electronic registers
concerning infringements and penalties are personal.
Member States should therefore take the measures neces-
sary to ensure compliance with Directive 95/46/EC of
the European Parliament
the Council of
24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free
movement of such data (1), in particular with regard to
the monitoring of the processing of personal data by
public authorities,
to be
provided with information, their right of access and their
right to object. For the purposes of this Regulation,
it
would appear to be necessary to retain such data for at
least two years to ensure that disqualified undertakings
do not establish themselves in other Member States.

the right of data subjects

It is essential to gradually interconnect national electronic
registers so as to enable information to be exchanged
rapidly and efficiently between Member States and to
guarantee that road transport operators are not tempted
to commit, or to take the risk of committing, serious
infringements in Member States other than their Member
State of establishment.
this kind
entails the joint definition of the precise format of the
data to be exchanged and the technical procedures for
the exchange of that data.

Interconnection of

In order to ensure the efficient exchange of information
between Member States, national contact points should
be designated and certain common procedures relating as
a minimum to time limits and the nature of the informa-
tion to be forwarded, should be specified.

to facilitate freedom of establishment,

In order
the
production of appropriate documents issued by a compe-
tent authority in the Member State where the transport
manager used to reside should be accepted as sufficient
proof of good repute for admission to the occupation of
road transport operator in the Member State of estab-
lishement, provided that the persons concerned have not
been declared unfit to pursue that occupation in other
Member States.

(18) With regard to professional competence,

in order to
facilitate freedom of establishment, a single model certifi-
cate issued in accordance with this Regulation should be
regarded as sufficient proof by the Member State of
establishment.

forwarding to the Commission of regular reports, drawn
up on the basis of national registers, on the good repute,
financial standing and professional competence of under-
takings in the road transport sector.

(20) Member States should provide for penalties applicable to
infringements of this Regulation. Such penalties should
be effective, proportionate and dissuasive.

(21)

(22)

(23)

Since the objective of this Regulation, namely the moder-
nisation of the rules governing admission to the occupa-
tion of road transport operator in order to ensure that
those rules are applied more uniformly and effectively in
the Member States, cannot be sufficiently achieved by the
Member States and can therefore be better achieved at
Community 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 prin-
ciple of proportionality, as set out in that Article, this
Regulation does not go beyond what is necessary to
achieve that objective.

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 (2).

I,

to adapt

road transport operators,

In particular, the Commission should be empowered to
draw up a list of categories, types and degrees of serious-
ness of infringements leading to the loss of good repute
to technical
of
progress Annexes
to this Regulation
II and III
concerning the knowledge to be taken into consideration
for the recognition of professional competence by the
Member States and the model certificate of professional
competence, and to draw up a list of
infringements
which in addition to those set out in Annex IV to this
Regulation may lead to the loss of good repute. Since
those measures are of general scope and are designed to
this Regulation inter
amend non-essential elements of
alia by supplementing it with new non-essential elements,
they must be adopted in accordance with the regulatory
procedure with scrutiny provided for in Article 5a of
Decision 1999/468/EC.

(24) Directive 96/26/EC should be repealed,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

(19)

Closer monitoring of the application of this Regulation
is required. This presupposes the
at Community level

This Regulation governs admission to, and the pursuit of,

1.
the occupation of road transport operator.

(1) OJ L 281, 23.11.1995, p. 31.

(2) OJ L 184, 17.7.1999, p. 23.

C 62 E/4

EN

Official Journal of the European Union

17.3.2009

2.
This Regulation shall apply to all undertakings established
in the Community which are engaged in the occupation of road
transport operator. It shall also apply to undertakings which
intend to engage in the occupation of road transport operator.
References to undertakings engaged in the occupation of road
transport operator
shall, as appropriate, be considered to
include a reference to undertakings intending to engage in such
occupation.

3.
As regards the regions referred to in Article 299(2) of the
Treaty, the Member States concerned may adapt the conditions
to be complied with in order to pursue the occupation of road
transport operator, insofar as operations are fully carried out in
those regions by undertakings established there.

By way of derogation from paragraph 2, this Regulation,
4.
unless otherwise provided for in national law, shall not apply to:

(a) undertakings engaged in the occupation of road haulage
operator solely by means of motor vehicles or combinations
of vehicles the permissible laden weight of which does not
exceed 3,5 tonnes. Member States may, however, lower this
limit for all or some categories of road transport operations;

(b) undertakings engaged in road passenger transport services
exclusively for non-commercial purposes or free of charge,
or which have a main occupation other than that of road
passenger transport operator;

(c) undertakings engaged in the occupation of road transport
solely by means of motor vehicles with a

operator
maximum authorised speed not exceeding 40 km/h.

3) ‘the occupation of road transport operator’ shall mean the
occupation of road passenger transport operator or the
occupation of road haulage operator;

4) ‘undertaking’

shall mean any natural person, any legal
person, whether profit-making or not, any association or
group of persons without legal personality, whether profit-
making or not, or any official body, whether having its own
legal personality or being dependent upon an authority
having such personality, engaged in the transport of passen-
gers, or any natural or legal person engaged in the transport
of freight with a commercial purpose;

5) ‘transport manager’ shall mean a natural person employed
by an undertaking or, if that undertaking is a natural person,
that person or, where provided for, another natural person
designated by that undertaking by means of a contract, who
effectively and continuously manages the transport activities
of that undertaking;

6) ‘authorisation to pursue the occupation of road transport
shall mean an administrative decision which
operator’
authorises an undertaking which satisfies the conditions laid
down in this Regulation to pursue the occupation of road
transport operator;

7) ‘competent authority’ shall mean a national, regional or local
authority in a Member State which,
for the purpose of
authorising the pursuit of the occupation of road transport
operator, verifies whether an undertaking satisfies the condi-
tions laid down in this Regulation, and which is empowered
to grant, suspend or withdraw an authorisation to pursue
the occupation of road transport operator;

5. Member States may exempt from the application of all or
some of the provisions of this Regulation road transport opera-
tors engaged exclusively in national transport operations having
only a minor impact on the transport market because of:

8) ‘Member State of establishment’ shall mean the Member
State in which an undertaking is established, regardless of
whether
from another
transport manager originates
country.

its

(a) the nature of the goods carried; or

(b) the short distances involved.

Article 2

Definitions

For the purposes of this Regulation:

Article 3

Requirements to be engaged in the occupation of road
transport operator

Undertakings engaged in the occupation of road transport

1.
operator shall:

(a) have an effective and stable establishment in a Member

1) ‘the occupation of road haulage operator’ shall mean the
activity of any undertaking transporting goods for hire or
reward by means either of motor vehicles or combinations
of vehicles;

State;

(b) be of good repute;

2) ‘the occupation of road passenger transport operator’ shall
mean the activity of any undertaking operating, by means of
motor vehicles so constructed and equipped as to be suitable
for carrying more than nine persons, including the driver,
and intended for that purpose, passenger transport services
for the public or for specific categories of users in return for
payment by the person transported or by the transport
organiser;

(c) have appropriate financial standing;

(d) have the requisite professional competence.

2. Member States may decide to impose additional require-
ments, which shall be proportionate and non-discriminatory, to
be satisfied by undertakings in order to engage in the occupa-
tion of road transport operator.

17.3.2009

EN

Official Journal of the European Union

C 62 E/5

Article 4

Transport manager

fleet of vehicles that is smaller than that referred to in para-
graph 2(c).

The undertaking shall notify the competent authority of

4.
the transport manager or managers designated.

1.
An undertaking which engages in the occupation of road
transport operator shall designate at least one natural person,
the transport manager, who satisfies the requirements set out in
Article 3(1)(b) and (d) and who:

CHAPTER II

(a) effectively and continuously manages the transport activities

of the undertaking;

CONDITIONS TO BE MET TO SATISFY THE REQUIREMENTS
LAID DOWN IN ARTICLE 3

(b) has a genuine link to the undertaking, such as being an
employee, director, owner or shareholder or administering
it, or, if the undertaking is a natural person, is that person;
and

(c) is resident in the Community.

If an undertaking does not satisfy the requirement as to
2.
professional competence laid down in Article 3(1)(d),
the
competent authority may authorise it to engage in the occupa-
tion of road transport operator without a transport manager
designated in accordance with paragraph 1 of
this Article,
provided that:

(a) the undertaking designates a natural person residing in the
Community who satisfies the requirements laid down in
Article 3(1)(b) and (d), and who is entitled under contract to
carry out duties as transport manager on behalf of
the
undertaking;

(b) the contract

linking the undertaking with the person
referred to in point (a) specifies the tasks to be performed
on an effective and continuous basis by that person, and
indicates his or her responsibilities as transport manager.
The tasks to be specified shall comprise, in particular, those
relating to vehicle maintenance management, verification of
transport contracts and documents, basic accounting, the
assignment of loads or services to drivers and vehicles, and
the verification of safety procedures;

(c) in his or her capacity as transport manager, the person
referred to in point (a) may manage the transport activities
of up to four different undertakings carried out with a
combined maximum total
fleet of 50 vehicles. Member
States may decide to lower the number of undertakings
and/or the size of the total fleet of vehicles which that
person may manage; and

(d) the person referred to in point (a) performs the specified
tasks solely in the interests of the undertaking and his or
responsibilities are exercised independently of any
her
undertakings for which the undertaking carries out trans-
port operations.

3. Member States may decide that a transport manager desig-
nated in accordance with paragraph 1 may not in addition be
designated in accordance with paragraph 2, or may only be so
designated in respect of a limited number of undertakings or a

Article 5

Conditions relating to the requirement as to establishment

In order to satisfy the requirement laid down in Article 3(1)(a),
an undertaking shall, in the Member State concerned:

(a) have an establishment situated in that Member State with
premises in which it can make available, upon request, to
the competent authority its business documents, in particu-
lar its accounting documents, personnel management docu-
ments, documents containing data relating to driving time
and rest and any other document to which the competent
authority must have access in order to verify compliance
with the conditions laid down in this Regulation. Member
States may require that establishments on their territory
have such documents available at their premises at any time;

(b) once an authorisation is granted, have at its disposal one or
more vehicles which are registered or otherwise put into
circulation in conformity with the legislation of
that
Member State, whether those vehicles are wholly owned or,
for example, held under a hire purchase agreement or a hire
or leasing contract;

(c) conduct its operations effectively and continuously and with
the necessary equipment at an operating centre situated in
that Member State.

Article 6

Conditions relating to the requirement as to good repute

Subject to paragraph 2 of this Article, Member States shall
1.
determine the conditions to be met by undertakings and trans-
port managers in order to satisfy the requirement as to good
repute laid down in Article 3(1)(b).

In determining whether an undertaking has
satisfied that
requirement, Members States shall consider the conduct of the
undertaking,
its transport managers and any other relevant
person as may be determined by the Member State. Any refer-
ence in this Article to convictions, penalties or infringements
shall
the
include convictions, penalties or infringements of
undertaking itself, its transport managers and any other relevant
person as may be determined by the Member State.

C 62 E/6

EN

Official Journal of the European Union

17.3.2009

The conditions referred to in the first subparagraph shall include
at least the following:

(a) that there are no compelling grounds for doubting the good
repute of the transport manager or the transport under-
taking, such as convictions or penalties for any serious
infringement of national rules in force in the fields of:

(i) commercial law,

(ii) insolvency law,

(iii) pay and employment conditions in the profession,

(iv) road traffic,

(v) professional liability; and

(b) that the transport manager or the transport undertaking has
not in one or more Member States been convicted of a
serious criminal offence or incurred a penalty for a serious
infringement of Community rules relating in particular to:

(i) the driving time and rest periods of drivers, working
recording

installation and use of

time and the
equipment;

(ii) the maximum weights and dimensions of commercial

vehicles used in international traffic;

(iii) the initial qualification and continuous training of

drivers;

(iv) the roadworthiness of commercial vehicles, including
the compulsory technical inspection of motor vehicles;

(v) access to the market in international road haulage or,
as appropriate, access to the market in road passenger
transport;

(vi) safety in the carriage of dangerous goods by road;

(vii) the installation and use of speed-limiting devices in

certain categories of vehicle;

(viii) the driving licence;

(ix) admission to the occupation;

(x) animal transport.

For the purposes of point (b) of the third subparagraph of

2.
paragraph 1:

(a) Where the transport manager or the transport undertaking
has in one or more Member States been convicted of a
serious criminal offence or incurred a penalty for one of the
most serious infringements of Community rules as set out
in Annex IV, the competent authority of the Member State
of establishment shall carry out
in an appropriate and
timely manner a duly completed administrative procedure,
which shall include, if appropriate, a check at the premises
of the undertaking concerned.

that good repute is unaffected. In such case, the reasons
shall be recorded in the national register. The number of
such decisions shall be indicated in the report referred to in
Article 26(1).

If the competent authority does not find that the loss of
good repute would constitute a disproportionate response,
lead to the loss of good
the conviction or penalty shall
repute;

(b) the Commission shall draw up a list of categories, types and
degrees of seriousness of infringements of Community rules
which, in addition to those set out in Annex IV, may lead to
take into
the loss of good repute. Member States shall
account
including
information on those infringements,
information received from other Member States, when
setting the priorities for checks pursuant to Article 12(1).

Those measures, designed to amend non-essential elements
of this Regulation by supplementing it and which relate to
this list, shall be adopted in accordance with the regulatory
procedure with scrutiny referred to in Article 25(3).

To this end, the Commission shall:

(i) lay down the categories and types of
which are most frequently encountered;

infringement

(ii) define the degree of

infringements
according to their potential to create a risk of fatalities
or serious injuries; and

seriousness of

(iii) provide the frequency of occurrence beyond which
repeated infringements
shall be regarded as more
serious, by taking into account the number of drivers
used for the transport activities managed by the trans-
port manager.

3.
The requirement laid down in Article 3(1)(b) shall not be
satisfied until a rehabilitation measure or any other measure
having an equivalent effect has been taken pursuant to the rele-
vant provisions of national law.

Article 7

Conditions relating to the requirement as to financial
standing

In order

to satisfy

requirement

1.
laid downin
the
Article 3(1)(c), an undertaking shall at all times be able to meet
its financial obligations in the course of the annual accounting
year. To this end, the undertaking shall demonstrate, on the
basis of annual accounts certified by an auditor or a duly accre-
dited person, that, every year, it has at its disposal capital and
reserves totalling at least EUR 9 000 when only one vehicle is
used and EUR 5 000 for each additional vehicle used.

The procedure shall determine whether, due to specific
circumstances, the loss of good repute would constitute a
disproportionate response in the individual case. Any such
finding shall be duly reasoned and justified.

If the competent authority finds that the loss of good repute
would constitute a disproportionate response, it may decide

For the purposes of this Regulation, the value of the euro in the
currencies of Member States which do not participate in the
third stage of the European Monetary Union shall be fixed every
five years. The rates to be applied shall be those obtained on the
first working day of October and published in the Official
Journal of
from
1 January of the following calendar year.

the European Union. They shall have effect

17.3.2009

EN

Official Journal of the European Union

C 62 E/7

The accounting items referred to in the first subparagraph shall
be understood as those defined in Fourth Council Directive
78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the
Treaty on the annual accounts of certain types of companies (1).

2.
By way of derogation from paragraph 1, the competent
authority may agree or require that an undertaking demonstrate
its financial standing by means of a certificate such as a profes-
sional
liability insurance from one or more banks or other
financial institutions including insurance companies, providing a
joint and several guarantee for the undertaking in respect of the
amounts specified in the first subparagraph of paragraph 1.
Member States may decide that the guarantee may be called in
the
with the
authority which
agreement of
authorised the pursuit of
the occupation of road transport
operator, and that it may not be released without the agreement
of that authority.

competent

3.
The annual accounts referred to in paragraph 1, and the
guarantee referred to in paragraph 2, which are to be verified,
are those of the economic entity established in the Member
State in which an authorisation has been applied for and not
those of any other entity established in any other Member State.

tions. The exemption shall only apply to those sections of Part I
of Annex I for which the qualification covers all subjects listed
under the heading of each section.

A Member State may exempt from specified parts of the exami-
nations holders of certificates of professional competence valid
for national transport operations in that Member State.

5.
A certificate issued by the authority or body referred to in
paragraph 2 shall be produced as proof of professional compe-
tence. That certificate shall not be transferable to any other
person. It shall be drawn up in accordance with the security
features and the model certificate set out in Annexes II and III
and shall bear the seal of the duly authorised authority or body
which issued it.

The Commission shall adapt Annexes I, II and III to tech-
6.
nical progress. Those measures, designed to amend non-essential
elements of this Regulation, shall be adopted in accordance with
the
to in
Article 25(3).

regulatory procedure with scrutiny

referred

7.
The Commission shall encourage and facilitate exchange
of experience and information between Member States, or
through any body it may designate, concerning training, exami-
nations and authorisations.

Article 8

Conditions relating to the requirement as to professional
competence

Article 9

Exemption from examination

In order

requirement

to satisfy the

1.
laid down in
Article 3(1)(d), the person or persons concerned shall possess
knowledge corresponding to the level provided for in Part I of
Annex I in the subjects listed therein. That knowledge shall be
demonstrated by means of a compulsory written examination
which, if a Member State so decides, may be supplemented by
an oral examination. Those examinations shall be organised in
accordance with Part II of Annex I. To this end, Member States
may decide to impose training prior to the examination.

Only the authorities or bodies duly authorised for this
2.
purpose by a Member State, in accordance with criteria defined
by it, may organise and certify the written and oral examina-
tions referred to in paragraph 1. Member States shall regularly
verify that
the conditions under which those authorities or
bodies organise the examinations are in accordance with
Annex I.

3. Member States may duly authorise,
in accordance with
criteria defined by them, bodies to provide applicants with high-
quality training to prepare them for the examinations and trans-
port managers with continuous
training to update their
knowledge if they wish to do so.

Member States may decide to exempt from the examinations
referred to in Article 8(1) persons who provide proof that they
have continuously managed a road haulage undertaking or a
road passenger transport undertaking in a Member State for the
period of 15 years before … (*).

CHAPTER III

AUTHORISATION AND MONITORING

Article 10

Competent authorities

1.
Each Member State shall designate one or more competent
authorities to ensure the correct implementation of this Regu-
lation. Those competent authorities shall be empowered to:

(a) examine applications made by undertakings;

(b) grant authorisations to engage in the occupation of road
suspend or withdraw such

and

transport operator,
authorisations;

A Member State may exempt the holders of certain higher
4.
education qualifications or
technical education qualifications
issued in that Member State, specifically designated to this end
and entailing knowledge of all the subjects listed in Annex I
from the examination in the subjects covered by those qualifica-

(c) declare a natural person to be unfit to manage the transport
transport

activities of an undertaking in the capacity of
manager;

(d) carry out the requisite checks to verify whether an under-
taking satisfies the requirements laid down in Article 3.

(1) OJ L 222, 14.8.1978, p. 11.

(*) The date of entry into force of this Regulation.

C 62 E/8

EN

Official Journal of the European Union

17.3.2009

2.
The competent authorities shall publish all the conditions
laid down pursuant to this Regulation, any other national provi-
sions, the procedures to be followed by interested applicants
and the corresponding explanations.

28 days or less, as determined by the Member State of establish-
ment, notify the competent authority which granted the authori-
sation of any changes to the data referred to in paragraph 2.

Article 11

Examination and registration of applications

A transport undertaking which complies with the require-
1.
ments laid down in Article 3 shall, upon application, be
authorised to engage in the occupation of
road transport
operator. The competent authority shall ascertain that an under-
taking which submits an application satisfies the requirements
laid down in that Article. Member States may, in appropriate
national
legislation, specify the duration of authorisations to
engage in the occupation of road transport operator.

in accordance with Regulations

The assessment of an application may result in the issue of a
Community licence
(EC)
No …/2009 and (EC) No …/2009. A Member State may issue
an authorisation other than a Community licence for undertak-
ings which only perform transport operations within the terri-
tory of that Member State.

2.
The competent authority shall record in the national elec-
tronic register referred to in Article 16 the data relating to
undertakings which it authorises and which are referred to in
points (a) to (d) of the first subparagraph of Article 16(2).

Article 12

Checks

1.
The competent authorities shall monitor whether under-
takings which they have authorised to engage in the occupation
of road transport operator continue to fulfil the requirements
laid down in Article 3. To that end, Member States shall carry
out checks targeting those undertakings which are classed as
posing an increased risk. For that purpose, Member States shall
extend the risk classification system established by them
pursuant to Article 9 of Directive 2006/22/EC of the European
Parliament and of the Council of 15 March 2006 on minimum
conditions for the implementation of Council Regulations (EEC)
No 3820/85 and (EEC) No 3821/85 concerning social legisla-
tion relating to road transport activities (1) to cover all infringe-
ments specified in Article 6 of this Regulation.

2.
Until 31 December 2014, Member States shall carry out
checks at least every five years to verify that undertakings fulfil
the requirements laid down in Article 3.

Measures designed to amend non-essential elements of
this
Regulation and relating to a postponement of the date referred
to in the first subparagraph shall be adopted in accordance with
to in
the
Article 25(3).

regulatory procedure with scrutiny

referred

3.
The time limit for the examination of an application for
authorisation by a competent authority shall be as short as
possible and shall not exceed three months from the date on
which the competent authority receives all documents necessary
to assess the application. The competent authority may extend
this time limit for an additional two months in duly justified
cases.

3. Member States shall carry out individual checks to verify
whether an undertaking meets the conditions governing admis-
sion to the occupation of road transport operator whenever the
Commission so requests in duly motivated cases. It shall inform
the Commission of
the
measures taken if
the undertaking no
it
longer fulfils the requirements laid down in this Regulation.

the results of such checks and of
is established that

4.
Until 31 December 2012, the competent authority shall
verify, in the case of any doubt when assessing the good repute
of an undertaking, whether at the time of application the desig-
nated transport manager or managers are declared, in one of
the Member States, unfit to manage the transport activities of
an undertaking pursuant to Article 14.

From 1 January 2013, when assessing the good repute of an
undertaking, the competent authority shall verify, by accessing
the data referred to in point (f) of the first subparagraph of
Article 16(2), either by direct secure access to the relevant part
of the national registers or by request, whether at the time of
the application the designated transport manager or managers
are declared, in one of the Member States, unift to manage the
transport activities of an undertaking pursuant to Article 14.

this
Measures designed to amend non-essential elements of
Regulation and relating to a postponement for a maximum of
three years of the dates referred to in this paragraph shall be
adopted in accordance with the regulatory procedure with scru-
tiny referred to in Article 25(3).

Article 13

Procedure

for

the

suspension and withdrawal of

authorisations

1.
If the competent authority establishes that an undertaking
runs the risk of no longer fulfilling the requirements laid down
If
in Article 3,
the
it shall notify the undertaking thereof.
those
competent authority establishes that one or more of
requirements is no longer satisfied,
the
following time limits for the undertaking to rectify the situation:

it may set one of

(a) a time limit not exceeding six months, which may be
extended by six months in the event of the death or physical
incapacity of the transport manager, for the recruitment of a
transport
replacement
manager no longer satisfies the requirement as to good
repute or professional competence;

transport manager where

the

(b) a time limit not exceeding six months where the under-
taking has to rectify the situation by demonstrating that it
has an effective and stable establishment;

5.
Undertakings with an authorisation to engage in the occu-
pation of road transport operator shall, within a period of

(1) OJ L 102, 11.4.2006, p. 35.

17.3.2009

EN

Official Journal of the European Union

C 62 E/9

(c) a time limit not exceeding six months where the require-
ment as to financial standing is not satisfied,
in order to
demonstrate that that requirement will again be satisfied on
a permanent basis.

2.
The competent authority may require an undertaking
whose authorisation has been suspended or withdrawn to
ensure that its transport managers have passed the examinations
referred to in Article 8(1) prior to any rehabilitation measure
being taken.

3.
If the competent authority establishes that the undertaking
no longer satisfies one or more of the requirements laid down
in Article 3, it shall suspend or withdraw the authorisation to
engage in the occupation of road transport operator within the
time limits referred to in paragraph 1 of this Article.

Article 14

Declaration of unfitness of the transport manager

1. Where a transport manager loses good repute in accord-
ance with Article 6, the competent authority shall declare that
transport manager unfit to manage the transport activities of an
undertaking.

Unless and until a rehabilitation measure is taken in
2.
accordance with the relevant provisions of national
law, the
certificate of professional competence of the transport manager
declared to be unfit, referred to in Article 8(5) shall no longer
be valid in any Member State.

Article 15

Decisions of the competent authorities and appeals

Negative decisions taken by the competent authorities of
1.
the Member States pursuant to this Regulation,
including the
rejection of an application, the suspension or withdrawal of an
existing authorisation and a declaration of unfitness of a trans-
port manager, shall state the reasons on which they are based.

Such decisions shall
take account of available information
concerning infringements committed by the undertaking or the
transport manager which are such as to detract from the good
repute of the undertaking and of any other information at the
disposal of the competent authority. They shall specify the reha-
bilitation measures applicable in the event of the suspension of
an authorisation or a declaration of unfitness.

2. Member States shall take steps to ensure that the undertak-
ings and persons concerned have the possibility of appealing the
decisions referred to in paragraph 1 to at least one independent
and impartial body or a court of law.

CHAPTER IV

SIMPLIFICATION AND ADMINISTRATIVE COOPERATION

Article 16

National electronic registers

1.
For the purposes of the implementation of this Regu-
lation, and in particular Articles 11 to 14 and Article 26

thereof, each Member State shall keep a national electronic
register of
road transport undertakings which have been
authorised by a competent authority designated by it to engage
road transport operator. The data
in the occupation of
contained in that register shall be processed under the supervi-
sion of a public authority designated for that purpose. The rele-
vant data contained in the national electronic register shall be
accessible to all the competent authorities of the Member State
in question.

issue guidelines on
By 1 June 2009, the Commission shall
minimum requirements for
the data to be entered in the
national electronic register from the date of its setting in order
to facilitate the future interconnection of registers.
It may
recommend the inclusion of the vehicle registration marks in
addition to the data referred to in paragraph 2.

National electronic registers shall contain at

2.
following data:

least

the

(a) the name and legal form of the undertaking;

(b) the address of its establishment;

(c) the names of the transport managers designated to meet the
conditions as to good repute and professional competence
or, as appropriate, the name of a legal representative;

(d) the type of authorisation, the number of vehicles it covers
the Com-

the serial number of

and, where appropriate,
munity licence and of the certified copies;

(e) the number, category and type of serious infringements, as
referred to in Article 6(1)(b), which have resulted in a
conviction or penalty during the last two years;

(f) the name of any person declared to be unfit to manage the
transport activities of an undertaking, as long as the good
repute of that person has not been re-established pursuant
to Article 6(3), and the rehabilitation measures applicable.

the purposes of point

For
(e), Member States may, by
31 December 2015, choose to include in the national electronic
register only the most serious infringements set out in Annex IV.

Member States may choose to keep the data referred to in
points (e) and (f) of the first subparagraph in separate registers.
In such a case, the relevant data shall be available upon request
or directly accessible to all the competent authorities of the
Member State in question. The requested information shall be
provided within 30 working days of receipt of the request.

In any case, the data referred to in points (e) and (f) of the
first subparagraph shall only be accessible to authorities other
than the competent authorities if they are duly endowed with
powers relating to supervision and the imposition of penalties
in the road transport sector and their officials are sworn to, or
otherwise are under a formal obligation of, secrecy.

3.
Data concerning an undertaking whose authorisation has
been suspended or withdrawn shall remain in the national elec-
tronic register for two years from the expiry of the suspension
or the withdrawal of the licence, and shall thereafter be immedi-
ately removed.

C 62 E/10

EN

Official Journal of the European Union

17.3.2009

Data concerning any person declared to be unfit for the occupa-
tion of road transport operator shall remain in the national elec-
tronic register as long as the good repute of that person has not
been re-established pursuant to Article 6(3). Where such a reha-
bilitation measure or any other measure having an equivalent
effect is taken, the data shall be immediately removed.

The data referred to in the first and second subparagraphs shall
specify the reasons for the suspension or withdrawal of the
authorisation or the declaration of unfitness, as appropriate, and
the corresponding duration.

4. Member States shall take all necessary measures to ensure
that all the data contained in the national electronic register is
kept up-to-date and is accurate, in particular the data referred to
in points (e) and (f) of the first subparagraph of paragraph 2.

5. Without prejudice to paragraphs 1 and 2, Member States
shall take all necessary measures to ensure that the national elec-
tronic registers are accessible throughout
the Community
through the national contact points defined in Article 18.
Accessibility through national contact points shall be imple-
mented by 31 December 2012 in such a way that a competent
authority of any Member State is able to consult the national
electronic register of any Member State.

Common rules concerning the implementation of para-
6.
graph 5, such as the format of the data exchanged, the technical
procedures for electronic consultation of the national electronic
registers of the other Member States and the promotion of the
interoperability of these registers with other relevant data bases,
shall be adopted by the Commission in accordance with the
procedure referred to in Article 25(2). Those common rules
shall determine which authority is responsible for access to data
and further use and updating of data after access and, to this
effect, shall include rules on data logging and data monitoring.

7. Measures designed to amend non-essential elements of
this Regulation and relating to a postponement of the time
limits referred to in paragraphs 1 and 5 shall be adopted in
accordance with the regulatory procedure with scrutiny referred
to in Article 25(3).

(b) all persons have a right of access to data relating to them
held by the authority responsible for processing that data.
That right shall be exercisable without constraint, at reason-
able intervals and without excessive delay or cost for the
applicant;

(c) all persons whose data is incomplete or inaccurate have the

right to have that data rectified, erased or blocked;

(d) all persons have the right to oppose, on compelling legiti-
mate grounds,
the processing of data relating to them.
Where there is justified opposition, the processing may no
longer involve that data.

Article 18

Administrative cooperation between Member States

1. Member States shall designate a national contact point
responsible for the exchange of
information with the other
Member States with regard to the application of this Regulation.
Member States shall forward to the Commission the names and
addresses of
their national contact points by … (*). The
Commission shall draw up a list of all contact points and
forward it to the Member States.

2. Member States which exchange information in the frame-
work of this Regulation shall use the national contact points
designated pursuant to paragraph 1.

3. Member States which exchange information concerning
transport
the infringements referred to in Article 6(2) or
managers declared to be unfit shall comply with the procedure
and time limits referred to in Article 13(1) of Regulation (EC)
No …/2009 or, as appropriate, Article 23(1) of Regulation (EC)
No …/2009. A Member State which receives notification of a
serious infringement which has resulted in a conviction or a
penalty in another Member State shall record that infringement
in its national electronic register.

CHAPTER V

MUTUAL RECOGNITION OF CERTIFICATES AND OTHER
DOCUMENTS

Article 17

Article 19

Protection of personal data

Certificates of good repute and equivalent documents

With regard to the application of Directive 95/46/EC, Member
States shall ensure in particular that:

(a) all persons are informed when data relating to them is
recorded or is planned to be forwarded to third parties. The
information provided shall
the
authority responsible for processing the data, the type of
data processed and the reasons for such action;

specify the identity of

1. Without prejudice to Article 11(4), the Member State of
establishment shall accept as sufficient proof of good repute for
admission to the occupation of road transport operator the
production of an extract from a judicial record or, failing that,
an equivalent document
judicial or
administrative authority in the Member State where the trans-
port manager used to reside.

issued by a competent

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

17.3.2009

EN

Official Journal of the European Union

C 62 E/11

2. Where a Member State imposes on its own nationals
certain conditions relating to good repute, and proof that these
conditions are met cannot be provided by means of the docu-
ment referred to in paragraph 1, that Member State shall accept
as sufficient proof for nationals of other Member States a certifi-
cate issued by a competent judicial or administrative authority
in the Member State(s) where the transport manager used to
reside stating that these conditions have been met. Such certifi-
cate shall relate to the specific information taken into considera-
tion in the Member State of establishment.

3.
If the document referred to in paragraph 1 or the certifi-
cate referred to in paragraph 2 has not been issued by the
Member State(s) where the transport manager used to reside,
that document or certifiacte may be replaced by a declaration
on oath or by a solemn declaration made by the transport
manager before a competent judicial or administrative authority
or, where appropriate, before a notary in the Member State
where the transport manager used to reside. Such authority or
notary shall issue a certificate authenticating the declaration on
oath or the solemn declaration.

4.
A document referred to in paragraph 1 and a certificate
referred to in paragraph 2 shall not be accepted if produced
more than three months after their date of issue. This condition
shall also apply to a declaration made in accordance with para-
graph 3.

Article 20

Certificates relating to financial standing

Where a Member State imposes on its nationals certain condi-
tions relating to financial standing in addition to those set out
in Article 7, that Member State shall accept as sufficient proof
for nationals of other Member States a certificate issued by a
competent authority in the Member State(s) where the transport
manager used to reside stating that these conditions have been
met. Such certificate shall relate to the specific information
taken into consideration in the new Member State of
establishment.

CHAPTER VI

FINAL PROVISIONS

Article 22

Penalties

lay down the rules on penalties
1. Member States shall
applicable to infringements of the provisions of this Regulation,
and shall take all the measures necessary to ensure that they are
implemented. The penalties provided for shall be effective,
proportionate and dissuasive. Member States shall notify those
provisions to the Commission by … (**) at the latest and shall
notify it without delay of any subsequent amendment affecting
them. Member States shall ensure that all such measures are
applied without discrimination as to the nationality or place of
establishment of the undertaking.

The penalties referred to in paragraph 1 shall include, in
2.
particular, suspension of
the authorisation to engage in the
occupation of road transport operator, withdrawal of such
authorisation and a declaration of unfitness of the transport
manager.

Article 23

Transitional provisions

Undertakings which before … (***) have an authorisation to
engage in the occupation of road transport operator shall
comply with the provisions of this Regulation by … (****).

Article 24

Mutual assistance

The competent authorities of the Member States shall cooperate
closely and shall give each other mutual assistance for the
purposes of applying this Regulation. They shall exchange infor-
mation on convictions and penalties for any serious infringe-
ments, and other specific information liable to have conse-
quences for the pursuit of the occupation of road transport
operator, in compliance with the provisions applicable to the
protection of personal data.

Article 21

Certificates of professional competence

Article 25

Committee procedure

1. Member States shall recognise as sufficient proof of profes-
sional competence a certificate which complies with the model
certificate set out in Annex III and which is issued by the
authority or body duly authorised for that purpose.

1.
The Commission shall be assisted by the Committee set
up by Article 18(1) of Council Regulation (EEC) No 3821/85 of
20 December 1985 on recording
in road
transport (1).

equipment

2.
A certificate issued before … (*) as proof of professional
competence pursuant to the provisions in force until that date
shall be deemed to be equivalent to a certificate which complies
with the model certificate set out in Annex III and shall be
recognised as proof of professional competence in all Member
States. Member States may require that holders of certificates of
professional competence valid only for national transport pass
the examinations, or parts of the examinations, referred to in
Article 8(1).

(*) Date of application of this Regulation.

2. Where reference is made to this paragraph, Articles 3
and 7 of Decision 1999/468/EC shall apply, having regard to
the provisions of Article 8 thereof.

3. 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.

(**) Two years from the entry into force of this Regulation.
(***) The date of entry into force of this Regulation.
(****) Two years after after the entry into force of this Regulation.
(1) OJ L 370, 31.12.1985, p. 8.

C 62 E/12

EN

Official Journal of the European Union

17.3.2009

Article 26

Reporting

Article 27

List of competent authorities

Every two years, Member States shall draw up a report on
1.
the activities of the competent authorities and shall forward it
to the Commission. This report shall comprise:

(a) an overview of the sector with regard to good repute, finan-

cial standing and professional competence;

(b) the number of authorisations granted by year and by type,
those suspended, those withdrawn, the number of declara-
tions of unfitness and the reasons on which those decisions
were based;

(c) the number of certificates of professional competence issued

each year;

(d) core statistics relating to the national electronic registers and

their use by the competent authorities; and

(e) an overview of exchanges of

information with other
Member States, including in particular the annual number
of established infringements notified to other Member States
and the replies received pursuant to Article 18(2), as well as
the annual number of requests and replies received pursuant
to Article 18(3).

On the basis of the reports referred to in paragraph 1, the
2.
Commission shall, every two years, submit a report
to the
European Parliament and to the Council on the pursuit of the
occupation of
shall
road transport operator. That
contain,
in particular, an assessment of the operation of the
exchange of information between Member States and a review
of the functioning and data contained in the national electronic
registers. It shall be published at the same time as the report
referred to in Article 17 of Regulation (EC) No 561/2006 of the
European Parliament and of the Council of 15 March 2006 on
the harmonisation of certain social legislation relating to road
transport (1).

report

the occupation of

Each Member State shall forward to the Commission by… (*) a
list of competent authorities which it has designated to
authorise the pursuit of
road transport
operator and a list of
the authorised authorities or bodies
responsible for organising the examinations referred to in
Article 8(1) and issuing the certificates. A consolidated list of
those authorities and bodies throughout the Community shall
be published by the Commission in the Official Journal of the
European Union.

Article 28

Communication of national measures

Member States shall communicate to the Commission the text
of the laws, regulations and administrative provisions which
they adopt in the field governed by this Regulation no later
than 30 days after their date of adoption and for the first time
by … (*).

Article 29

Repeal

Directive 96/26/EC is hereby repealed.

Article 30

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 with effect 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

…

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

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

17.3.2009

EN

Official Journal of the European Union

C 62 E/13

I. LIST OF SUBJECTS REFERRED TO IN ARTICLE 8

ANNEX I

The knowledge to be taken into consideration for the official recognition of professional competence by Member States
must cover at least the subjects listed below for road haulage and road passenger transport respectively. In relation to
these subjects, applicant road haulage and road passenger transport operators must have the levels of knowledge and prac-
tical aptitude necessary for the management of a transport undertaking.

The minimum level of knowledge, as indicated below, may not be below level 3 of the training-level structure laid down
in the Annex to Decision 85/368/EEC (1), namely the level of knowledge acquired during the course of compulsory educa-
tion, which is supplemented either by vocational training and supplementary technical training or by secondary school or
other technical training.

A. CIVIL LAW

The applicant must, in particular, in relation to road haulage and passenger transport:

(1) be familiar with the main types of contract used in road transport and with the rights and obligations arising there-

from;

(2) be capable of negotiating a legally valid transport contract, notably with regard to conditions of carriage;

in relation to road haulage:

(3) be able to consider a claim by his or her principal regarding compensation for loss of or damage to goods during

transportation or for their late delivery, and to understand how such a claim affects his contractual liability;

(4) be familiar with the rules and obligations arising from the CMR Convention on the Contract for the International

Carriage of Goods by Road;

in relation to road passenger transport:

(5) be able to consider a claim by his principal regarding compensation for injury to passengers or damage to their
baggage caused by an accident during transportation, or regarding compensation for delays, and to understand how
such a claim affects his contractual liability.

B. COMMERCIAL LAW

The applicant must, in particular, in relation to road haulage and passenger transport:

(1) be familiar with the conditions and formalities laid down for plying the trade, the general obligations incumbent

upon transport operators (registration, record keeping, etc.) and the consequences of bankruptcy;

(2) have appropriate knowledge of the various forms of commercial companies and the rules governing their constitution

and operation.

C. SOCIAL LAW

The applicant must, in particular, in relation to road haulage and passenger transport, be familiar with the following:

(1) the role and function of the various social institutions which are concerned with road transport (trade unions, works

councils, shop stewards, labour inspectors, etc.);

(2) the employers' social security obligations;

(3) the rules governing work contracts for the various categories of worker employed by road transport undertakings
(form of the contracts, obligations of the parties, working conditions and working hours, paid leave, remuneration,
breach of contract, etc.);

(4) the rules applicable to driving time, rest periods and working time, and in particular the provisions of Regulation
(EEC) No 3821/85, Regulation (EC) No 561/2006, Directive 2002/15/EC (2) and Directive 2006/22/EC, and the prac-
tical measures for applying those provisions; and

(5) the rules applicable to the initial qualification and continuous training of drivers, and in particular those deriving

from Directive 2003/59/EC (3).

(1) Council Decision 85/368/EEC of 16 July 1985 on the comparability of vocational training qualifications between the Member States of the

European Community (OJ L 199, 31.7.1985, p. 56).

(2) Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons

performing mobile road transport activities (OJ L 80, 23.3.2002, p. 35).

(3) Directive 2003/59/EC of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of

drivers of certain road vehicles for the carriage of goods or passengers (OJ L 226, 10.9.2003, p. 4).

C 62 E/14

EN

Official Journal of the European Union

17.3.2009

D. FISCAL LAW

The applicant must,
governing:

in particular,

in relation to road haulage and passenger transport, be familiar with the rules

(1) Value Added Tax (VAT) on transport services;

(2) motor-vehicle tax;

(3) the taxes on certain road haulage vehicles and tolls and infrastructure user charges;

(4) income tax.

E. BUSINESS AND FINANCIAL MANAGEMENT OF THE UNDERTAKING

The applicant must, in particular, in relation to road haulage and passenger transport:

(1)

(2)

be familiar with the laws and practices regarding the use of cheques, bills of exchange, promissory notes, credit cards
and other means or methods of payment;

be familiar with the various forms of credit (bank credit, documentary credit, guarantee deposits, mortgages, leasing,
renting, factoring, etc.) and the charges and obligations arising therefrom;

(3)

know what a balance sheet is, how it is set out and how to interpret it;

(4)

be able to read and interpret a profit and loss account;

(5)

be able to assess the undertaking's profitability and financial position, in particular on the basis of financial ratios;

(6)

be able to prepare a budget;

(7)

(8)

(9)

be familiar with the cost elements of the undertaking (fixed costs, variable costs, working capital, depreciation, etc.),
and be able to calculate costs per vehicle, per kilometre, per journey or per tonne;

be able to draw up an organisation chart relating to the undertaking's personnel as a whole and to organise work
plans, etc.;

be familiar with the principles of marketing, publicity and public relations, including transport services, sales promo-
tion and the preparation of customer files, etc.;

(10) be familiar with the different types of insurance relating to road transport (liability, accidental injury/life insurance,

non-life and luggage insurance) and the guarantees and obligations arising therefrom;

(11) be familiar with the applications of electronic data transmission in road transport;

in relation to road haulage:

(12) be able to apply the rules governing the invoicing of road haulage services and know the meaning and implications

of Incoterms;

(13) be familiar with the different categories of transport auxiliaries, their role, their functions and, where appropriate,

their status;

in relation to road passenger transport:

(14) be able to apply the rules governing fares and pricing in public and private passenger transport;

(15) be able to apply the rules governing the invoicing of road passenger transport services.

F. ACCESS TO THE MARKET

The applicant must, in particular, in relation to road haulage and passenger transport, be familiar with the following:

(1) the occupational regulations governing road transport for hire or reward, industrial vehicle rental and subcontracting,
and in particular the rules governing the official organisation of the occupation, admission to the occupation, authori-
sations for intra-Community and extra-Community road transport operations, inspections and penalties;

(2) the rules for setting up a road transport undertaking;

(3) the various documents required for operating road transport services and the introduction of checking procedures to
ensure that the approved documents relating to each transport operation, and in particular those relating to the
vehicle, the driver, the goods and luggage are kept both in the vehicle and on the premises of the undertaking;

17.3.2009

EN

Official Journal of the European Union

C 62 E/15

in relation to road haulage:

(4) the rules on the organisation of the market in road haulage services, as well as the rules on freight handling and

logistics;

(5) border formalities, the role and scope of T documents and TIR carnets, and the obligations and responsibilities arising

from their use;

in relation to road passenger transport:

(6) the rules on the organisation of the market in road passenger transport;

(7) the rules for introducing road passenger transport services and the drawing up of transport plans.

G. TECHNICAL STANDARDS AND TECHNICAL ASPECTS OF OPERATION

The applicant must, in particular, in relation to road haulage and passenger transport:

(1) be familiar with the rules concerning the weights and dimensions of vehicles in the Member States and the procedures

to be followed in the case of abnormal loads which constitute an exception to these rules;

(2) be able to choose vehicles and their components (chassis, engine, transmission system, braking system, etc.) in accord-

ance with the needs of the undertaking;

(3) be familiar with the formalities relating to the type approval, registration and technical inspection of these vehicles;

(4) understand what measures must be taken to reduce noise and to combat air pollution by motor vehicle exhaust

emissions;

(5) be able to draw up periodic maintenance plans for the vehicles and their equipment;

in relation to road haulage:

(6)

be familiar with the different types of cargo-handling and loading devices (tailboards, containers, pallets, etc.) and be
able to introduce procedures and issue instructions for loading and unloading goods (load distribution, stacking,
stowing, blocking and chocking, etc.);

(7)

be familiar with the various techniques of ‘piggy-back’ and roll-on roll-off combined transport;

(8)

(9)

be able to implement procedures to comply with the rules on the carriage of dangerous goods and waste, notably
those arising from Directive 94/55/EC (1), Directive 96/35/EC (2) and Regulation (EEC) No 259/93 (3);

be able to implement procedures to comply with the rules on the carriage of perishable foodstuffs, notably those
arising from the Agreement on the International Carriage of Perishable Foodstuffs and on the Special Equipment to
be used for such Carriage (ATP);

(10) be able to implement procedures to comply with the rules on the transport of live animals.

H. ROAD SAFETY

The applicant must, in particular, in relation to road haulage and passenger transport:

(1) know what qualifications are required for drivers (driving licence, medical certificates, certificates of fitness, etc.);

(2) be able to take the necessary steps to ensure that drivers comply with the traffic rules, prohibitions and restrictions in
lights, road

force in different Member States (speed limits, priorities, waiting and parking restrictions, use of
signs, etc.);

(3) be able to draw up instructions for drivers to check their compliance with the safety requirements concerning the

condition of the vehicles, their equipment and cargo, and concerning preventive measures to be taken;

(4) be able to lay down procedures to be followed in the event of an accident and to implement appropriate procedures

to prevent the recurrence of accidents or serious traffic offences;

(5) be able to implement procedures to properly secure goods and be familiar with the corresponding techniques;

in relation to road passenger transport:

(6) have elementary knowledge of the layout of the road network in the Member States.

(1) Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States with regard to the transport of

dangerous goods by road (OJ L 319, 12.12.1994, p. 7).

(2) Council Directive 96/35/EC of 3 June 1996 on the appointment and vocational qualification of safety advisers for the transport of dangerous

goods by road, rail and inland waterway (OJ L 145, 19.6.1996, p. 10).

(3) Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the

European Community (OJ L 30, 6.2.1993, p. 1).

C 62 E/16

EN

Official Journal of the European Union

17.3.2009

II. ORGANISATION OF THE EXAMINATION

1. Member States will organise a compulsory written examination which they may supplement by an optional oral exami-
nation to establish whether applicant road transport operators have achieved the required level of knowledge in the
subjects listed in Part I and in particular their capacity to use the instruments and techniques relating to those subjects
and to fulfil the corresponding executive and coordination duties.

(a) The compulsory written examination will involve two tests, namely:

(i) written questions consisting of either multiple choice questions (each with four possible answers), questions

requiring direct answers or a combination of both systems,

(ii) written exercises/case studies.

The minimum duration of each test will be two hours.

(b) Where an oral examination is organised, Member States may stipulate that participation is subject to successful

completion of the written examination.

2. Where Member States also organise an oral examination, they must provide, in respect of each of the three tests, for a

weighting of marks of a minimum of 25 % and a maximum of 40 % of the total number of marks to be given.

Where Member States organise only a written examination, they must provide, in respect of each test, for a weighting
of marks of a minimum of 40 % and a maximum of 60 % of the total number of marks to be given.

3. With regard to all the tests, applicants must obtain an average of at least 60 % of the total number of marks to be
given, achieving in any given test not less than 50 % of the total number of marks possible. In one test only, a
Member State may reduce that mark from 50 % to 40 %.

17.3.2009

EN

Official Journal of the European Union

C 62 E/17

SECURITY FEATURES OF THE CERTIFICATE OF PROFESSIONAL COMPETENCE

ANNEX II

The certificate 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 and issue number;

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

C 62 E/18

EN

Official Journal of the European Union

17.3.2009

ANNEX III

17.3.2009

EN

Official Journal of the European Union

C 62 E/19

ANNEX IV

MOST SERIOUS INFRINGEMENTS FOR THE PURPOSES OF ARTICLE 6(2)(a)

1.

(a) Exceeding the maximum six-day or fortnightly driving time limits by margins of 25 % or more.

(b) Exceeding, during a daily working period, the maximum daily driving time limit by margin of 50 % or more

without taking a break or without an uninterrupted rest period of at least 4,5 hours.

2. Not having a tachograph and/or speed limiter, or using a fraudulent device able to modify the records of the recording
equipment and/or the speed limiter or falsifying record sheets or data downloaded from the tachograph and/or the
driver card.

3. Driving without a valid roadworthiness certificate if such a document is required under Community law and/or driving
with a very serious deficiency of, inter alia, the braking system, the steering linkages, the wheels/tyres, the suspension
or chassis that would create such an immediate risk to road safety that it leads to a decision to immobilise the vehicle.

4. Transporting dangerous goods that are prohibited for transport or transporting such goods in a prohibited or
non-approved means of containment or without identifying them on the vehicle as dangerous goods, thus endangering
lives or the environment to such extent that it leads to a decision to immobilise the vehicle.

5. Carrying passengers or goods without holding a valid driving licence or carrying by an undertaking not holding a valid

Community licence.

6. Driving with a driver card that has been falsified, or with a card of which the driver is not the holder, or which has

been obtained on the basis of false declarations and/or forged documents.

7. Carrying goods exceeding the maximum permissible laden weight by 20 % or more for vehicles the permissible laden
weight of which exceeds 12 tonnes, and by 25 % or more for vehicles the permissible laden weight of which does not
exceed 12 tonnes.

C 62 E/20

EN

Official Journal of the European Union

17.3.2009

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission presented the 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 on 25 May 2007 as one of
the so-called ‘Road
Package’ (1).

the three proposals of

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.

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 issue proposals to review the existing legis-
lative 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 establishing common rules concerning the conditions to be complied
with to pursue the occupation of road transport operator aims at establishing uniform and enforceable
provisions for the access to the profession of transport operator. Furthermore it will contribute to the
achievement of the objectives of the Lisbon Strategy, since it will make for fairer competition within the
sector and greater transparency for road transport customers. In the final analysis, it will contribute
towards the provision of more efficient and better transport services. Given the dominant role of road
transport
the EU's
competitiveness.

in industry's production and distribution systems,

it will contribute to boost

2. Key policy issues

i) Subject matter, scope and definitions

The Council followed largely the Commission proposal to clarify and streamline legal provisions.
However, the Council specified that this Regulation shall not apply to road passenger transport services
exclusively for non-commercial purposes or free of charge as well as to undertakings engaged in the
occupation of road transport operator solely by means of motor vehicles which cannot exceed 40 km/h.
The latter exemption was also proposed by the European Parliament. Furthermore, the Common Posi-
tion foresees that Member States may exempt from the application of this Regulation road transport
operators engaged exclusively in national transport operations having only a minor impact on the trans-
port market because of the nature of the goods carried or the short distance involved.

The European Parliament followed largely the Commission proposal.

ii) Transport manager

The Commission proposal specifies the links that the person with the required professional competence
(‘the transport manager’) must have with the company for which he or she is supposed to run the trans-
port business. That person must be employed and remunerated by the company.

(1) The other 2 legislative proposals concern:

— Proposal for a Regulation of the European Parliament and of the Council on common rules for access to the inter-

national road haulage market (recast)

— 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).

17.3.2009

EN

Official Journal of the European Union

C 62 E/21

Since that person is supposed to actually run the company's transport business on a permanent basis,
he or she must bear the consequences of his or her decisions and consequently assume responsibility for
infringements committed in connection with activities which he or she directs. This responsibility is
defined for the purposes of this Regulation, but is without prejudice to any criminal or financial respon-
sibility defined in the national legislation of a Member State. The possibility for owner-operators to use
another transport manager (‘external’ ones) for qualification reasons is regulated, in particular to increase
their independence with regard to bigger transport operators which entrust them with consignments,
and thus protect them from the practice of disguised employment.

The Council followed in general the Commission proposal. However, the Common Position clarifies the
differences between an ‘internal’ and an ‘external’ transport manager, notably in establishing different
requirements to become a transport manage such as being a resident in the Community. The latter one
is an independent person designated by an undertaking who manages, in the capacity of a transport
manager, the transport activities, such as vehicle maintenance management, verification of transport
contracts and documents, basic accounting, the assignment of loads or services to drivers and vehicles,
and the verification of safety procedures. The external manager is allowed to manage up to four different
undertakings carrying out transport operations with a combined maximum total fleet of 50 vehicles. In
this context Member States may decide to lower the number of undertakings and/or the number of total
fleet of vehicles. Furthermore, the Common Position forsees that Member States may prohibt or limit
that an internal transport manager is also authorised as an external transport manager of another
undertaking.

The European Parliament also followed closely the Commission proposal. However, like the Council, it
clarified the genuine link between transport undertaking and (internal) transport manager. As regards
the external transport manager the European Parliament proposed that the national competent authority
shall decide on the maximum number of vehicles to be managed by the transport manager.

iii) Conditions relating to the requirement as to establishment

The Commission proposal lays down common rules to ensure that only companies that are genuinely
and stably established can be authorised to engage in the occupation of a transport manager. The aim is
to ensure that all companies are subject to the same level of monitoring and to avoid situations where
some are not monitored by the authorities in the Member States in which they are established. Moreover
it is defined that companies are genuinely and stably established if they have an office, registered vehicles
and an operating centre.

The Council followed the Commission proposal, except for the requirement to have a sufficient number
of vehicle parking places for regular use by its vehicles, which was deleted.

The European Parliament followed largely the Commission's approach.

iv) Conditions relating to the requirement as to good repute

The Commission proposal contains a list of serious infringements of Community rules which may lead
to the loss of good repute even if committed in other Member States. It also indicates that repeated
minor infringements may be regarded as serious. It grants the Commission implementing powers to
draw up a common list of infringements, which is a precondition for any organised exchange of infor-
mation between Member States and the definition of common thresholds for the withdrawal of
authorisations.

The Council follows closely the Commission proposal. However, the Council deleted the reference to
repeated minor infringements and added animal transport as one of the requirements which a transport
manager or an undertaking has to respect. Furthermore, the Council clarifies the procedure consecutive
to the most serious infringements as set out in Annex III, for which the Council deleted the possibility
to be adapted by the comitology procedure. In this context, the Common Position entrusts competent
authorities with the discretion to determine in the case of a most serious infringement, whether the loss
of good repute would constitute a disproportionate response in a specific individual case.

The European Parliament followed largely the Commission proposal. However, like the Council, the
European Parliament deleted the reference to repeated minor infringements. Moreover, the European
Parliament sets 1 January 2010 as the deadline for the Commission to adopt a list of categories, types
and degrees of seriousness of infringements which may lead to the loss of good repute.

C 62 E/22

EN

Official Journal of the European Union

17.3.2009

v) New indicators for measuring a company's financial standing

introduces more precise indicators for measuring a company's financial
The Commission proposal
standing. Companies or Member States can choose between two options: either the current assets and
the ‘quick ratio’ (according to the terminology of the fourth accounting directive) established on the
basis of the company's annual accounts have to comply with certain thresholds or the company has to
provide proof of its financial standing by means of a bank guarantee. The financial indicators proposed
are those commonly used in financial analysis to assess a company's ability to meet its short-term debts.

The Council deleted the reference to the ‘quick ratio’, but in return gave the operator the possibility to
demonstrate its financial standing by means of a certificate such as a professional liability insurance
from one or more banks or other financial institutions including insurance companies.

The European Parliament also decided to delete the reference to the ‘quick ratio’ and to allow that an
insurance can be considered as proof for the company's financial standing. Moreover, the European
Parliament proposed that capital resources shall be demonstrated by means of a certified trading balance
sheet or a balance sheet for tax purposes. Persons applying for access to the profession of road transport
operator for the first time must submit a certified opening balance sheet. Lastly, the European Parliament
proposed to adapt the exchange rate for currencies on a yearly basis instead of every 5 years.

vi) Conditions relating to the requirement as to professional competence

The Commission proposal introduces a common approach combining training and a compulsory exami-
nation to test professional competence applicable to all applicants, including those with professional
experience and those holding a diploma. It also provides for a minimum system of accreditation for
examination and training centres, and calls for the promotion of exchanges of experience between
Member States in this area. Lastly, the possibility for Member States to make a distinction between the
level of qualification according to whether or not international transport is involved is removed.

The Council deleted the provision related to compulsory training prior to becoming a transport
manager. Furthermore, the Council's Common Position foresees that Member States may exempt the
holders of certain higher education or technical education qualifications, issued in that Member State,
from certain parts of the examination as well as holders of certificates of professional competence valid
for national transport operations in that Member State. Finally, the Council introduced the possibility for
Member States to exempt from the examination persons who have been continuously managing a road
haulage undertaking or a road passenger transport undertaking in a Member State for the last 15 years.

The European Parliament also decided to delete the provision on compulsory training, but in return
provided Member States with the possibility to promote regular training for transport managers. The
European Parliament also accepted that Member States may exempt from the examination persons who
have at least a 10-year continuous practical experience in a transport undertaking at management level.
In order to prevent abuse, for instance in the form of ‘tourist examination’, the European Parliament
foresees that a person should only sit the examination in the Member State of his/her residence. Further-
more, it is proposed that the criteria for the accreditation of the bodies for training and examination of
transport manager applicants are mutually compatible. Finally, the European Parliament introduced the
obligation for transport managers, after a five year period of professional absence, to undertake a
retraining.

vii) Authorisation and monitoring

The Commission proposal foresees to strengthen the role of the authorities designated by the Member
States to check that companies meet the conditions laid down in the Regulation. The proposal intro-
duces common principles designed to ensure greater transparency, comparability and, ultimately, cred-
ibility for the rules governing admission to the occupation. Moreover, the proposals establishes time
limits to be complied with by those authorities when examining dossiers, and time-limits that may be
granted to companies to rectify their situation before incurring a sanction. It also requires the competent
authorities to warn companies which run the risk of no longer satisfying the conditions set out in the
Regulation. The proposal sets out a gradual range of sanctions going from partial withdrawal of the
authorisation to disqualification of the transport operator. As far checks are concerned, the proposal
provides for targeted checks which Member States will carry out more frequently than the existing
five-year checks.

17.3.2009

EN

Official Journal of the European Union

C 62 E/23

Whilst following in principle the Commission proposal, the Council decided to introduce some provi-
sions in order to streamline and simplify the governing principles. Member States may issue different
authorisations for undertakings only performing national transport services. Member States may shorten
the delay within which the undertaking has to inform about changes concerning the data used for the
application of the authorisation. Furthermore, Member States have the possibility to extend the time
limit for the examination of the application of an authorisation. Until 31 December 2012, the compe-
tent authority shall verify, in the case of any doubt, that the transport manager is not declared, in one of
the Member States, unfit to manage the transport activity of an undertaking, whereas from 1 January
2013 the competent authority shall do this by accessing the national electronic registers. The Common
Position also integrates the approach to adapt the periodicity of checks of undertakings to technical
progress. Before 2015, Member States are obliged to carry out checks at least every five years, whereas
from 2015 onwards checks will be preformed according to a risk classification system.

The European Parliament also introduced a couple of amendments to the Commission proposal. From
1 January 2012, a competent authority shall verify in case of doubt that the transport manager is not
declared, in one of the Member States, unfit to manage the transport activity of an undertaking. As
regards the periodicity of checks, the Commission may change the period of five years for regular checks
in accordance with the regulatory procedure with scrutiny. Furthermore, Member States have the possi-
bility to require training and an examination for the transport managers of the undertakings whose
authorisation has been suspended or withdrawn. Finally, it is clarified that sanctions are only applicable
to a transport manager if he or she is responsible for the respective infringements.

viii) National electronic register

The Commission proposal calls for the introduction in each Member State of an electronic register of
transport undertakings which should be interconnected throughout the Community by the end of 2010.
It also provides for the designation of national contact points to be used for the exchange of informa-
tion, and certain procedures to be followed.

The Council agreed in principle with the Commission proposal in establishing national electronic regis-
ters. However, some additional provisions were introduced. Until 1 June 2009, the Commission has to
issue guidelines on the structure of the register. Member States need to establish their national register
24 months after the date of entry into force of the Regulation, i.e. 20 days after its publication. The
national registers have to be interconnected until 31 December 2012. Member States have to include
serious infringements into the national register only from 2016 onwards. Furthermore, all stipulated
time limits can be modified and (if necessary) postponed by the comitology procedure. Finally, the
Commission is invited to review the functioning and the elements of the national electronic registers in
its report.

The Parliament proposes to have a public and a private section in the national electronic register. The
latter being only accessible to the competent authorities under special conditions (i.e. endowed with
specific powers in the road transport sphere and sworn officials). The Parliament further proposes to
establish a register on transport managers. While the Parliament requests the inclusion of the vehicle
registration mark of vehicles operating outside the Member State of establishment in the register, the
Council Common Position foresees that the Commission may make, in 2009, a recommendation on the
inclusion of the vehicle registration marks. Finally, the European Parliament proposes that the competent
authority is responsible for updating and maintaining the electronic register.

3. Other policy issues

The Council decided to replace the term ‘sanction’ by ‘penalty’.

The Council decided to delete the provisions concerning ‘prior rights’, i.e. to exempt undertakings which
can provide proof that they were authorised in a Member State to engage in the occupation of road
haulage operator or road passenger transport operator from providing proof that they have the profes-
sional competence.

The Council modified the provisions concerning the reporting obligations with a view to decreasing
administrative burden.

The Council's Common Position foresees that the Regulation shall be applicable 24 months (instead of
18 months) after its entry into force.

C 62 E/24

EN

Official Journal of the European Union

17.3.2009

The Council decided to precise Annex II by adding a series of security features, of which at least two
have to be included in the documents.

The Council established Annex III setting out a list of the most serious infringements.

4. Other amendments adopted by the European Parliament

Further amendments not included in the Common Position concern the:

— reference to secure data supports as a condition relating to the requirement for the establishment;

— obligation that Member States inform the Commission about the certificates they recognise as proof

of professional competence;

— reference to archiving of data and data protection as Community rules whose non-respect could put

into question the good repute of a transport manager;

— reference to an interdiction to transfer the certificate on the professional competence to legal

persons;

— shortening of the time limits for an undertaking to replace a transport manager;

— deletion of the possibility to postpone via the regulatory procedure with scrutiny the interconnection

of the national registers;

— shortening of the time limits for an undertaking to demonstrate that it has an effective and stable

establishment;

— demand for a study on the possible inclusion of taxis into the scope of the Regulation;

— proposed date of 1 June 2009 for the application of the Regulation.

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 fully — already been included in its Common Position.