CELEX: 51995PC0729
Language: en
Date: 1996-01-12
Title: Proposal for a Council Regulation (EC) laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State

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51995PC0729

Proposal for a Council Regulation (EC) laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State  /* COM/95/0729 FINAL - SYN 96/0002 */  

Official Journal C 060 , 29/02/1996 P. 0010

Proposal for a  Council Regulation (EC) laying down the conditions under which non-resident carriers may operate  national road passenger transport services within a Member State(96/C  60/08)(Text with EEA  relevance)COM(95) 729 final - 96/0002(SYN)(Submitted by the Commission on 5 January  1996)THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 75  thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the Economic and Social Committee, In cooperation with the European Parliament, Whereas Council Regulation (EEC) No 2454/92 laying down the conditions under which non-resident  carriers may operate national road passenger transport services within a Member State was annulled  by the Court of Justice's ruling of 1 June 1994  (1), by reason of a fault in the legislative  procedure for adoption thereof; Whereas, pursuant to Article 75 (1) (b) of the Treaty, the establishment of a common transport  policy entails, inter alia, laying down the conditions under which non-resident carriers may  operate national transport services within a Member State; Whereas Article 59 of the Treaty establishes the objective of abolishing restrictions on the  freedom to provide services within the Community; whereas this objective must be achieved within  the framework of the common transport policy in accordance with Article 61 (1) of the Treaty; Whereas, as the Court of Justice has said  (2), the obligations imposed on the Council by Article  75 (1) (a) and (b) of the Treaty include the obligation to ensure that there is freedom to provide  services in the field of transport; whereas the extent of this obligation is clearly defined in the  Treaty; Whereas that provision entails the removal of all restrictions against a person providing the  services in question on the grounds of his nationality or the fact that he is established in a  Member State other than that in which the service is to be provided; Whereas establishing the internal market involves the abolition of frontier controls and,  consequently, an increase in intra-Community traffic; Whereas the rules applicable to cabotage for all forms of coach and bus service must be  established; Whereas the provisions of the host Member State applicable to cabotage transport operations should  be fixed; Whereas provisions should be adopted so that action can be taken in the event of serious  disturbance of the transport markets affected; Whereas it is desirable that Member States should grant each other mutual assistance with a view to  the sound application of this Regulation, particularly in respect of penalties applicable in the  event of infringements; Whereas it is for the Member States to adopt the measures necessary for the implementation of this  Regulation; Whereas the application of this Regulation should be monitored by means of a report to be submitted  by the Commission, HAS ADOPTED THIS REGULATION: Article 1 Any carrier who operates road passenger transport services for hire  or reward who: - is established in a Member State, hereinafter referred to as the 'Member State of establishment`,  in accordance with its legislation, and- is authorized, in that State, in accordance with relevant  Community law, to pursue the occupation of road passenger transport operator in international  transport operations, shall be permitted, under the conditions laid down in this Regulation and without discrimination on  grounds of the carrier's nationality or place of establishment, temporarily to operate national  road passenger services for hire or reward in another Member State, hereinafter referred to as the  'host Member State`, without being required to have a registered office or other establisment in  that State. Such national transport services are hereinafter referred to as 'cabotage transport operations`. Article 2 For the purposes of this Regulation: 1. 'Regular services` means services which provide for the carriage of passengers at specified  intervals along specified routes, passengers being taken up and set down at predetermined stopping  points. Regular services shall be open to all - subject, where appropriate, to compulsory  reservation. 2. 'Regular international services` means the services referred to in Article 2 (1) (1) of Council  Regulation No 684/92  (1); 3. 'Special regular services` means regular services which provide for the carriage of specified  categories of passengers, to the exclusion of other passengers, at specified intervals along  specified routes, passengers being taken up and set down at predetermined stopping points. Special regular services shall include: (a) the carriage of workers between home and work; (b) carriage to and from the educational institution for school pupils and students; (c) the carriage of soldiers and their families between their place of origin and the area of their  barracks. The fact that a special service may be varied according to the needs of users shall not affect its  classification as a regular service. 4. 'Occasional services` means services falling neither within the definition of a regular service  nor within the definition of a special regular service. These services shall not cease to be  occasional services solely because they are provided at certain intervals. 5. 'Vehicles` means motor vehicles which, by virtue of their type of construction and equipment,  are suitable for carrying more than nine persons - including the driver - and are intended for that  purpose. Article 3 With effect from the date of entry into force of this Regulation, cabotage transport  operations shall be authorized for the following services: 1. special regular services and occasional services; 2. the regular services defined in Article 2 (1), provided they are performed by a carrier not  resident in the host Member State in the course of a regular international service in accordance  with the provisions of Council Regulation 684/92; 3. the other regular services. Article 4 1.  Cabotage transport operations carried out in accordance with Article 3 (2) shall be  subject to authorization by the competent authorities in the host Member State. 2.  Applications for authorization may be refused: (a) if the competent authorities in the host Member State produce evidence that the regular service  for which the application to perform cabotage operations has been submitted would directly  compromise the existence of regular services already authorized, except in cases in which the  regular services in question are carried out only by a single carrier or group of carriers; (b) if the competent authorities in the host Member State produce evidence that the regular service  for which the application to perform cabotage operations has been submitted is aimed only at the  most lucrative of the services existing on the links concerned. The fact that an operator offers lower prices than are offered by other road carriers or the fact  that the link in question is already operated by other road carriers may not in itself constitute  justification for rejecting the application. Paragraph 4 (a) of Article 7 of Regulation (EEC) No 684/92 shall apply, mutatis mutandis, to  applications for authorization of cabotage operations in the form of the regular services provided  in Article 3 (2). Reasons must be given for rejection of the application. The competent authorities may refuse applications only on the basis of reasons compatible with this  Regulation. 3.  The Member States shall guarantee carriers an opportunity to defend their interests in the  event of rejection of their application for authorization. 4.  Authorizations shall be issued in the name of the transport undertaking; the may not be  transferred by the latter to third parties. However, the carrier who has received the authorization  may, with the consent of the competent authority in the host Member State, operate the service  through the only subcontractor authorized to provide the international service referred to in  Article 2 (1) (1) of Regulation (EEC) No 684/92. In this case, the name and role of the  subcontractor shall be indicated in the authorization. The subcontractor must fulfil the conditions  laid down in Article 1. In the case of undertakings associated for the purpose of performing cabotage operations in the  form of a regular service, the cabotage authorization shall be issued in the names of all the  undertakings. It shall be given to the undertaking that manages the operation and copies shall be  given to the others. The authorization shall state the names of all the operators. 5.  The authorization shall be valid for a maximum of five years and, in any case, for not longer  than the authorization relating to the international service within the framework of which the  cabotage operation is carries out. 6.  Save in the event of force majeure, the operator of a regular cabotage service shall, until the  authorization expires, take all measures to guarantee a transport service that fulfils the  standards of continuity, regularity and capacity and the other conditions laid down by the  competent authority of the host Member State with regard to the route of the service, the bus  stops, the timetable and the period of validity of the authorization. These conditions may not be  less favourable than the conditions applied to regular transport services provided by resident  carriers. 7.  The authorization or a certified true copy thereof must be kept on board the vehicle. 8.  The Commission shall, after consulting the Member States, lay down the model for applications  for authorization of cabotage operations in the form of regular services, the model authorization  and the way in which they are to be used. Article 5 1.  The performance of the cabotage transport operations referred to in Article 3 shall  be subject, save as otherwise provided in Community legislation, to the laws, regulations and  administrative provisions in force in the host Member State in the following areas: (a) rates and conditions governing the transport contract; (b) weights and dimensions of road vehicles; such weights and dimensions may, where appropriate,  exceed those applicable in the carrier's Member State of establishment, but they may under no  circumstances exceed the technical standards set out in the certificate of conformity; (c) requirements relating to the carriage of certain categories of passengers, namely  schoolchildren, children and persons with reduced mobility; (d) driving and rest time; (e) VAT (value added tax) on transport services. In this area Article 21 (1) (a) of Council  Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating  to turnover taxes - common system of value added tax: uniform basis of assessment  (1) - shall  apply to the services referred to in Article 1 of this Regulation; 2.  Save as otherwise provided in Community legislation, cabotage operations which form part of the  transport services provided for in Article 3 (3) shall be subject to the existing laws, regulations  and administrative provisions in force in the host Member State, regarding the routes to be  operated and the regularity, continuity and frequency of services. Any compensation for public service obligations must be paid to all the Community operators  concerned. 3.  The technical standards of construction and equipment which must be met by vehicles used to  carry out cabotage transport operations shall be those laid down for vehicles put into circulation  in international transport. 4.  The national provisions referred to in paragraphs 1 and 2 shall be applied by the Member States  to non-resident carriers on the same conditions as those imposed on their own nationals, so as  effectively to prevent any open or hidden discrimination on grounds of nationality or place of  establishment. 5.  If it is established that, in the light of experience, the list of areas covered by the host  Member State's provisions, as referred to in paragraph 1, needs to be amended, the Council shall do  so by a qualified majority, in cooperation with the European Parliament, on a proposal from the  Commission. Article 6 The Member State of establishment shall issue a certificate conforming to the model  adopted by the Commission after consulting the Member States to carriers who apply therefor and who  satisfy the conditions laid down in Article 1. The authority or agency in that Member State with the power to issue the certificate shall also  have the power to withdraw it, temporarily or definitively, in particular as one of the penalties  referred to in Article 11 (4). That certificate or a certified true copy thereof shall be kept on board the vehicle and be  produced when requested by an authorized inspecting officer. Article 7 1.  Cabotage transport operations in the form of occasional services shall be carried  out under cover of a control document - the journey form - which must be kept on board the vehicle  and be produced when requested by an authorized inspecting officer. 2.  The journey form, the model for which shall be adopted by the Commission after consulting the  Member States, shall comprise the following information: (a) the points of departure and destination of the service; (b) the date of departure and the date on which the service ends. 3.  The journey forms shall be supplied in books certified by the competent authority or agency in  the Member State of establishment. The model for the book of journey forms shall be adopted by the  Commission after consulting the Member States. 4.  In the case of special regular services, the contract concluded between the carrier and the  transport organizer, or a certified copy of the contract, shall serve as the control document. However, the journey form shall be completed in the form of a monthly statement. 5.  The journey forms used shall be returned to the competent authority or agency in the Member  State of establishment in accordance with procedures to be laid down by the aforementioned  authority or agency. Article 8 1.  At the end of each quarter and within three months, which may be reduced by the  Commission to one month in the case referred to in Article 9, the competent authority or agency in  each Member State shall communicate to the Commission the data concerning cabotage transport  operations, in the form of special regular services and occasional services, carried out during  that quarter by resident carriers. The communication shall be effected by means of a table conforming to the model adopted by the  Commission after consulting the Member States. 2.  Once a year the competent authorities in the host Member State shall send the Commission  statistics on the number of authorizations issued for cabotage transport operations in the form of  the regular services defined in Articles 3 (2) and (3). 3.  The Commission shall send the Member States as soon as possible summary statements drawn up on  the basis of the data submitted under paragraph 1. Article 9 1.  In the event of serious disturbance of the internal transport market in a given  geographical area due to or aggravated by cabotage, any Member State may refer the matter to the  Commission with a view to the adoption of safeguard measures and shall provide the Commission with  the necessary information and notify it of the measures it intends to take as regards resident  carriers. 2.  For the purposes of paragraph 1: - 'serious disturbance of the internal transport market in a given geographical area` means the  occurrence on that market of problems specific to it, such that there is a serious and potentially  enduring excess of supply over demand, implying a threat to the financial stability and survival of  a significant number of passenger transport undertakings, - 'geographical area` means an area comprising part or all of the territory of a Member State or  including part or all of the territory of other Member States. 3.  The Commission shall examine the situation and, after consulting the Advisory Committee  referred to in Article 10, shall decide within one month of receipt of the relevant Member State's  request whether or not safeguard measures are necessary and shall adopt them if they are  necessary. The measures introduced in accordance with this Article shall remain in force for a period not  exceeding six months, renewable once for the same period. The Commission shall without delay notify the Member States and the Council of any decision taken  pursuant to this paragraph. 4.  If the Commission decides to take safeguard measures concerning one or more Member States, the  competent authorities of the Member States involved shall be required to take measures of  equivalent scope in respect of resident carriers and shall inform the Commission thereof. These measures shall be implemented no later than the same date as the safeguard measures decided  on by the Commission. 5.  Each Member State may submit a Commission decision as referred to in paragraph 3 to the Council  within 30 days of its notification. The Council, acting by a qualified majority within 30 days of referral by a Member State or, if  there are referrals by more than one Member State, of the first referral, may take a different  decision. The limits of validity laid down in the second subparagraph of paragraph 3 shall apply to the  Council's decision. The competent authorities of the Member States concerned shall be bound to take measures of  equivalent scope in respect of resident carriers and shall inform the Commission thereof. If the Council takes no decision within the period laid down in the second subparagraph, the  Commission decision becomes final. 6.  Where the Commission considers that the measures referred to in paragraph 3 need to be  prolonged, it shall submit a proposal to the Council, which shall take a decision by qualified  majority. Article 10 The Commission shall be assisted by an Advisory Committee composed of representatives  of the Member States and chaired by a representative of the Commission. The tasks of the Committee shall be to advise the Commission on: - any request from a Member State under Article 9 (1), - measures intended to resolve a serious disturbance of the market as referred to in Article 9, in  particular on the practical application of such measures. The Committee shall draw up its rules of procedure. Article 11 1.  Member States shall assist one another in applying this Regulation. 2.  Without prejudice to criminal prosecution, the host Member State may impose penalties on  non-resident carriers who have committed infringements of this Regulation or of Community or  national transport regulations within its territory on the occasion of a cabotage transport  operation. The penalties shall be imposed on a non-discriminatory basis and in accordance with paragraph 3. 3.  The penalties referred to in paragraph 2 may, inter alia, consist of a warning or, in the event  of serious or repeated infringements, a temporary ban on cabotage transport operations within the  territory of the host Member State where the infringement was committed. Where a falsified certificate, falsified authorization or falsified certified copy thereof is  produced, the falsified document shall be withdrawn immediately and, where appropriate, forwarded  as soon as possible to the competent authority of the carrier's Member State of establishment. 4.  The competent authorities of the host Member State shall inform the competent authorities of  the Member State of establishment of the infringements recorded and any penalties imposed on the  carrier and may, in the event of serious or repeated infringements, at the same time transmit a  request that a penalty be imposed. In the event of serious or repeated infringements, the competent authorities of the Member State of  establishment shall decide whether an appropriate penalty should be imposed on the carrier  concerned; these authorities shall take into account any penalty already imposed in the host Member  State and ensure that the penalties already imposed on the carrier concerned are, as a whole,  proportional to the infringement or infringements which gave rise to such penalties. The penalty imposed by the competent authorities of the Member State of establishment, after  consulting the competent authorities of the host Member State, may extend to withdrawal of  authorization to pursue the occupation of road passenger transport operator. The competent authorities of the Member State of establishment may also, pursuant to its national  law, arraign the carrier concerned before a competent national court or tribunal. They shall inform the competent authorities of the host Member State of the decisions taken  pursuant to this paragraph. Article 12 Member States shall ensure that carriers may appeal against any admininistrative  penalty imposed on them. Article 13 The Commission shall report to the Council before 31 December 1999 on the application  of this Regulation and, in particular, on the impact of cabotage transport operations on national  transport markets. Article 14 Member States shall adopt in good time and communicate to the Commission the laws,  regulations and administrative provisions relating to the implementation of this Regulation. Article 15 This Regulation shall enter into force on the first day following its publication in  the Official Journal of the European Communities. It shall apply from 1 January 1996. This Regulation shall be binding in its entirety and directly applicable in all  Member States.(1) Judgment of 1 June 1994, Case C-388/92, Parliament v.  Council.  (2) Judgment of 22 May 1985, Case 13/83, Parliament v. Council.  (1) OJ No L 74, 20. 3. 1992, p. 1.  (1) OJ No L 145, 13. 6. 1977, p. 1. Directive last amended by Directive 91/680/EEC (OJ No L 376,  31. 12. 1991, p. 1).