PERSON WISHING TO ENGAGE IN THE OCCUPATION OF TRANSPORT OPERATOR IS IN POSSESSION OF ADDITIONAL QUALIFICATIONS ( PRACTICAL EXPERIENCE IN THE UNDERTAKING ) TO PUT FORWARD IN ORDER TO BE EXEMPTED , NO LONGER TEMPORARILY BUT DEFINITIVELY , FROM THE CONDITION AS TO PROFESSIONAL COMPETENCE REFERRED TO IN ARTICLE 3 ( 1 ), ALTHOUGH SUCH EXEMPTION MAY BE ENVISAGED ONLY BECAUSE IT IS A MATTER OF ALLOWING AN UNDERTAKING DISORGANIZED BY THE SUDDEN DEPARTURE OF ITS HEAD TO CARRY ON ITS ACTIVITIES . THE USE OF THE ADVERB ' ' HOWEVER ' ' AT THE BEGINNING OF ARTICLE 4 ( 2 ) CONFIRMS THAT THE TWO PARAGRAPHS MUST BE READ AS BEING IN COMBINATION WITH ONE ANOTHER .
14THEREFORE THE ANSWER TO QUESTION 3 SHOULD BE THAT ARTICLE 4 ( 2 ) OF THE DIRECTIVE APPLIES ONLY IN THE EVENT , REFERRED TO IN PARAGRAPH ( 1 ), OF THE DEATH OR PHYSICAL OR LEGAL INCAPACITY OF THE NATURAL PERSON ENGAGED IN THE OCCUPATION OF TRANSPORT OPERATOR OR SATISFYING THE CONDITION AS TO PROFESSIONAL COMPETENCE .
QUESTION 2
15ARTICLE 5 IS A TRANSITIONAL PROVISION APPLYING TO THE CASE OF PERSONS FURNISHING PROOF THAT , BEFORE 1 JANUARY 1978 , THEY WERE AUTHORIZED UNDER NATIONAL REGULATIONS IN A MEMBER STATE TO ENGAGE IN THE OCCUPATION OF ROAD HAULAGE OPERATOR . THE SAID PERSONS ARE DEEMED TO SATISFY THE CONDITION OF PROFESSIONAL COMPETENCE AND ARE EXEMPT FROM THE REQUIREMENT TO FURNISH PROOF THEREOF .
16HOWEVER , ARTICLE 5 ( 2 ) RESTRICTS THE SCOPE OF THAT RULE BY PROVIDING THAT THOSE PERSONS WHO , BETWEEN 31 DECEMBER 1974 AND 1 JANUARY 1978 , WERE AUTHORIZED TO ENGAGE IN THE OCCUPATION CONCERNED WITHOUT HAVING TO FURNISH PROOF OF THEIR COMPETENCE MUST DO SO BEFORE 1 JANUARY 1980 . THAT PROVISION OF THE DIRECTIVE WAS ADOPTED IN ORDER TO DEAL WITH SITUATIONS PRIOR TO ITS IMPLEMENTATION ( 1 JANUARY 1977 ) OR SITUATIONS IN THE COURSE OF BEING VERIFIED . IT CONCERNS SITUATIONS DIFFERENT FROM THOSE COVERED BY ARTICLE 4 .
17THEREFORE THE ANSWER TO THE QUESTION SHOULD BE THAT THE PROVISION IN ARTICLE 5 ( 2 ) MAY NOT BE INVOKED AGAINST PERSONS ENTITLED UNDER ARTICLE 4 ( 2 ) TO DEFINITIVE EXEMPTION ON THE GROUND THAT THEY POSSESS AT LEAST THREE YEARS ' PRACTICAL EXPERIENCE IN THE DAY-TO-DAY MANAGEMENT OF THE UNDERTAKING .
QUESTION 4
18ARTICLE 4 MAKES PROVISION FOR CASES IN WHICH THE ACTIVITY OF AN UNDERTAKING IS UNEXPECTEDLY STOPPED BY THE DEATH OR INCAPACITY OF THE PERSON WHO MANAGES IT . THE REACHING OF RETIREMENT AGE CANNOT BE REGARDED AS AN UNEXPECTED EVENT , SINCE IT IS FORESEEABLE . THEREFORE THE ATTAINMENT OF RETIREMENT AGE CANNOT BE REGARDED AS COMING WITHIN THE CONCEPT OF PHYSICAL INCAPACITY .
19ACCORDINGLY THE QUESTION MUST BE ANSWERED IN THE NEGATIVE .
Decision on costs
COSTS
20THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE , AND AS