1BY AN INTERLOCUTORY JUDGMENT OF 13 JUNE 1978 WHICH WAS RECEIVED AT THE COURT ON 19 JUNE 1978 , THE RAAD VAN STATE , AFDELING RECHTSPRAAK ( COUNCIL OF STATE , ADMINISTRATIVE APPEALS SECTION ), REFERRED SEVERAL QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 74/561/EEC OF 12 NOVEMBER 1974 ON ADMISSION TO THE OCCUPATION OF ROAD HAULAGE OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS ( OFFICIAL JOURNAL 1974 , L 308 , P . 18 ).
2THESE QUESTIONS WERE RAISED IN THE CONTEXT OF A DISPUTE OVER THE DECISION OF THE STAATSSECRETARIS VAN VERKEER EN WATERSTAAT ( SECRETARY OF STATE FOR TRANSPORT , WATER CONTROL AND CONSTRUCTION ) DATED 4 MAY 1977 GRANTING THE APPELLANT IN THE MAIN ACTION EXEMPTION FROM THE CONDITION OF PROFESSIONAL COMPETENCE REFERRED TO IN THE LAST SENTENCE OF ARTICLE 56 ( 1 ) OF THE WET AUTOVERVOER GOEDEREN ( LAW ON THE CARRIAGE OF GOODS BY MOTOR VEHICLE ) BUT RESTRICTING THE DURATION OF THAT EXEMPTION TO 1 JANUARY 1980 .
3IT APPEARS FROM THE CASE FILE THAT THE APPELLANT HAS WORKED FOR A NUMBER OF YEARS IN A TRANSPORT UNDERTAKING MANAGED FIRST BY HIS FATHER IN THE FORM OF A ONE-MAN BUSINESS AND THEN BY HIMSELF FROM A DATE WHICH IS NOT SPECIFIED BUT IS IN ANY EVENT PRIOR TO 1968 .
4THE STAATSSECRETARIS APPLIED ARTICLE 56 ( 1 ) OF THE WET AUTOVERVOER GOEDEREN , ACCORDING TO WHICH AUTHORIZATION TO ENGAGE IN THE OCCUPATION OF TRANSPORT OPERATOR SHALL BE GRANTED ONLY IF INTER ALIA THE CONDITION OF PROFESSIONAL COMPETENCE IS SATISFIED , ALTHOUGH THE MINISTER IS EMPOWERED TO GRANT EXEMPTIONS IN SPECIAL CASES . THE DECISION IMPLEMENTING THAT LAW PROVIDES THAT IN ORDER TO SATISFY THE CONDITION OF PROFESSIONAL COMPETENCE IT IS NECESSARY TO BE IN POSSESSION OF A TECHNICAL DIPLOMA RECOGNIZED BY THE MINISTER AND IN ADDITION SUBMIT A DECLARATION BY THE COMPETENT INSPECTOR CERTIFYING TWO YEARS ' PAID EMPLOYMENT WITH AN UNDERTAKING ENGAGED IN THE CARRIAGE OF GOODS .
5ARTICLE 3 ( 1 ) OF COUNCIL DIRECTIVE NO 74/561/EEC PROVIDES THAT NATURAL PERSONS OR UNDERTAKINGS WISHING TO ENGAGE IN THE OCCUPATION OF ROAD HAULAGE OPERATOR SHALL INTER ALIA SATISFY THE CONDITION AS TO PROFESSIONAL COMPETENCE . THE KNOWLEDGE REQUIRED TO SATISFY THAT CONDITION IS SPECIFIED IN THE ANNEX TO THE DIRECTIVE . AS PROVIDED IN ARTICLE 3 ( 4 ), THAT KNOWLEDGE IS ACQUIRED BY ATTENDING COURSES , BY PRACTICAL EXPERIENCE IN A TRANSPORT UNDERTAKING OR BY A COMBINATION OF BOTH .
6ARTICLE 4 ( 1 ) PROVIDES THAT TEMPORARY EXEMPTION FROM THE CONDITION OF PROFESSIONAL COMPETENCE MAY BE GRANTED FOR A MAXIMUM PERIOD OF ONE YEAR , WITH EXTENSION FOR A MAXIMUM PERIOD OF SIX MONTHS , IN SPECIAL CASES IN ORDER TO PREVENT THE ABSENCE OF A PERSON WHO FULFILS THE CONDITIONS OF PROFESSIONAL COMPETENCE LEADING TO A TRANSPORT UNDERTAKING ' S SUSPENDING ITS ACTIVITIES OR GOING OUT OF BUSINESS FOLLOWING THE DEATH OR PHYSICAL OR LEGAL INCAPACITY OF THE OPERATOR OR MANAGER WHO SATISFIED THE SAID CONDITIONS . HOWEVER , ACCORDING TO ARTICLE 4 ( 2 ) THE AUTHORITIES IN THE MEMBER STATES MAY , BY WAY OF EXCEPTION , DEFINITIVELY AUTHORIZE A PERSON NOT FULFILLING THE CONDITIONS OF PROFESSIONAL COMPETENCE TO OPERATE A TRANSPORT UNDERTAKING WHERE SUCH PERSON POSSESSES ' ' AT LEAST THREE YEARS ' PRACTICAL EXPERIENCE IN THE DAY-TO-DAY MANAGEMENT OF THE UNDERTAKING ' ' .
7FINALLY , ARTICLE 5 ( 2 ) OF THE DIRECTIVE PROVIDES THAT : ' ' . . . THOSE NATURAL PERSONS WHO , AFTER 31 DECEMBER 1974 AND BEFORE 1 JANUARY 1978 , WERE : - AUTHORIZED TO ENGAGE IN THE OCCUPATION OF ROAD HAULAGE OPERATOR WITHOUT HAVING FURNISHED PROOF , UNDER NATIONAL REGULATIONS , OF THEIR PROFESSIONAL COMPETENCE , OR - DESIGNATED CONTINUOUSLY AND EFFECTIVELY TO MANAGE THE TRANSPORT OPERATIONS OF THE UNDERTAKING , MUST SATISFY , BEFORE 1 JANUARY 1980 , THE CONDITION OF PROFESSIONAL COMPETENCE . . . ' ' .
8THE RAAD VAN STATE ASKED THE FOLLOWING QUESTIONS : 1 . UNDER ARTICLE 3 ( 4 ) OF COUNCIL DIRECTIVE NO 74/561/EEC OF 12 NOVEMBER 1974 ON ADMISSION TO THE OCCUPATION OF ROAD HAULAGE OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS ARE THE MEMBER STATES AT LIBERTY TO ADOPT RULES WHEREBY APART FROM THE ACQUISITION OF A TECHNICAL DIPLOMA THE CONDITION AS TO PROFESSIONAL COMPETENCE IS ALSO SATISFIED IF THE COMPETENT AUTHORITY OR BODY DETERMINES THE PROFESSIONAL COMPETENCE ON THE BASIS OF THOROUGH AND EXTENSIVE PRACTICAL EXPERIENCE OF AT LEAST SIX YEARS IN A SENIOR MANAGERIAL POSITION IN AN UNDERTAKING ENGAGED IN THE CARRIAGE OF GOODS? 2 . DOES AN AUTHORIZATION GRANTED AFTER 31 DECEMBER 1974 AND BEFORE 1 JANUARY 1978 BY THE COMPETENT AUTHORITIES OF A MEMBER STATE TO A NATURAL PERSON TO ENGAGE IN THE OCCUPATION OF ROAD HAULAGE OPERATOR WITHOUT HAVING FURNISHED PROOF OF HIS PROFESSIONAL COMPETENCE UNDER NATIONAL REGULATIONS CEASE TO BE VALID IF , PURSUANT TO ARTICLE 5 ( 2 ) OF THE DIRECTIVE THAT PERSON DOES NOT FULFIL THE CONDITION OF PROFESSIONAL COMPETENCE REFERRED TO IN ARTICLE 3 ( 4 ) BEFORE 1 JANUARY 1980 EVEN IF THE AFORESAID AUTHORITIES GAVE SUCH AUTHORIZATION BECAUSE THEY HELD THAT THERE EXISTED A SPECIAL CASE WITHIN THE MEANING OF ARTICLE 4 ( 2)? 3 . IS ARTICLE 4 ( 2 ) OF DIRECTIVE NO 74/561/EEC APPLICABLE ONLY IN THE CASE REFERRED TO IN THE FIRST PARAGRAPH OF THAT ARTICLE OF THE DEATH OR PHYSICAL OR LEGAL INCAPACITY OF THE NATURAL PERSON WHO SATISFIES THE PROVISIONS OF ARTICLE 3 ( 1 ) ( A ) AND ( C ) OR MAY THAT PROVISION ALSO BE APPLICABLE TO OTHER CASES? 4 . IF THE ANSWER TO THE LAST QUESTION IS IN THE AFFIRMATIVE SHOULD ' ' PHYSICAL INCAPACITY ' ' IN ARTICLE 4 ( 1 ) OF THAT DIRECTIVE ALSO BE UNDERSTOOD AS INCLUDING THE ATTAINMENT OF AN AGE AT WHICH A PERSON IS DEEMED NO LONGER TO BE CAPABLE OF WORKING? QUESTION 1
9IN THE ABSENCE OF ANY CO-ORDINATION OF THE NATIONAL RULES ON THE ACQUISITION OF PROFESSIONAL KNOWLEDGE , ARTICLE 3 ( 4 ) OF THE COUNCIL DIRECTIVE LEAVES IT TO THE MEMBER STATES TO ESTABLISH THAT PERSONS WISHING TO ENGAGE IN THE OCCUPATION OF ROAD HAULAGE OPERATOR POSSESS THE NECESSARY COMPETENCE . THE MEMBER STATES ARE GIVEN A CHOICE BETWEEN THE FOLLOWING SYSTEMS FOR VERIFYING THAT KNOWLEDGE : ASSESSMENT BY EXAMINATION , REGARD TO PRACTICAL EXPERIENCE IN THE SPHERE OF TRANSPORT OR FINALLY A COMBINATION OF BOTH .
10THE AFOREMENTIONED NETHERLANDS LEGISLATION PROVIDES THAT POSSESSION OF THE KNOWLEDGE IS ASSESSED BY AN EXAMINATION ENTITLING SUCCESSFUL CANDIDATES TO A TECHNICAL DIPLOMA , AND BY VERIFICATION OF TWO YEARS ' PRACTICAL EXPERIENCE IN A TRANSPORT UNDERTAKING .
11THEREFORE THE ANSWER TO QUESTION 1 SHOULD BE THAT THE PROVISIONS OF ARTICLE 3 ( 4 ) OF THE DIRECTIVE ALLOW MEMBER STATES TO ADOPT REGULATIONS UNDER WHICH PROFESSIONAL COMPETENCE IS ESTABLISHED EITHER BY THE ACQUISITION OF A DIPLOMA OR ON THE BASIS OF APPROPRIATE PRACTICAL EXPERIENCE FOR A PERIOD TO BE DETERMINED BY THE MEMBER STATES , OR BY A COMBINATION OF BOTH . QUESTION 3
12ARTICLE 4 ( 1 ) OF THE DIRECTIVE EMPOWERS MEMBER STATES TO GRANT TEMPORARY EXEMPTION FROM THE CONDITION OF PROFESSIONAL COMPETENCE IN DULY JUSTIFIED SPECIAL CASES WHERE THE NATURAL PERSON ENGAGED IN THE OCCUPATION OF TRANSPORT OPERATOR DIES OR SUFFERS PHYSICAL OR LEGAL INCAPACITY . ARTICLE 4 ( 2 ) ALLOWS DEFINITIVE EXEMPTION TO BE GRANTED IN EXCEPTIONAL CASES , BUT THIS IS ONLY WITHIN THE LIMITS LAID DOWN AND IN THE SITUATIONS REFERRED TO IN ARTICLE 4 ( 1 ), THAT IS TO SAY IN DULY JUSTIFIED SPECIAL CASES IN THE EVENT OF THE DEATH OR PHYSICAL OR LEGAL INCAPACITY OF THE NATURAL PERSON ENGAGED IN THE OCCUPATION OF TRANSPORT OPERATOR .
13THIS CONCLUSION MUST BE REACHED BECAUSE ARTICLE 4 ( 2 ) RELATES TO A SITUATION IN WHICH , UNLIKE THE SITUATION IN ARTICLE 4 ( 1 ), THE 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 .