COMMISSION RECOMMENDATION of 19 September 1977 to the United Kingdom Government regarding the draft Regulations implementing Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (77/608/EEC)

By letters dated 22 December 1976 and 18 February 1977, the Permanent Representation of the United Kingdom to the European Communities sent to the Commission, for consultation purposes, the text of draft Regulations relating to the implementation of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations.

This communication was sent pursuant to Article 7 (1) of the Directive, which provides that "Member States shall, after consulting the Commission and before 1 January 1977, adopt the measures necessary for the implementation of this Directive, and in particular Article 3 (4) thereof".

The Commission regrets that the United Kingdom Government, by failing to inform it of the implementing measures in good time, has thereby failed to fulfil the obligations incumbent upon it under Article 7 of the Directive, and has made it impossible for the Commission to issue this recommendation by the requisite date.

The Commission hereby issues the following recommendation in respect of the draft Regulations referred to above: 1. The Commission notes that the draft United Kingdom Regulations satisfy the provisions of the Directive on the following points: (a) the principle, definition and implementation of the conditions regarding good repute and professional competence (Article 3 of the Directive);

(b) the temporary operation of a road haulage undertaking, pursuant to Article 4 (1);

(c) the withdrawal of authorizations where the provisions of Article 3 (1) (a), (b) or (c) are no longer satisfied, pursuant to Article 6 (2).

2. As regards financial standing, the Commission recommends that the United Kingdom Government supplements Section 9 (3) of the draft Regulations to take account of Article 3 (3) of the Directive, namely:

"Appropriate financial standing shall consist in having available sufficient resources to ensure the launching and proper administration of the undertaking..."

3. As regards the determination of the natural persons who must, in each case, meet the conditions of admission to the occupation set out in Article 3 (1) of the Directive, the Commission draws the attention of the United Kingdom Government to the definition of an "undertaking" contained in the second subparagraph of Article 1 (2) of the Directive. Undertakings are defined there as any association or group of persons with or without legal personality. Two or more individuals trading in partnership, as referred to in Section 9 (6) of the draft Regulations, must therefore be regarded as forming an undertaking.

In this case it is therefore insufficient to provide, as does Section 9 (6) that if one or more of the partners is professionally competent then the holder of the authorization will be regarded as meeting this condition. It is essential that, as provided in the third subparagraph of Article 3 (1) of the Directive, "provisions (a) and (c) above (good repute and professional competence) must be satisfied by one of the natural persons who will continuously and effectively manage the transport operations of the undertaking".

Consequently, the Commission recommends that the United Kingdom Government amends Section 9 (6) of the draft Regulations to ensure that the requirements of the third subparagraph of Article 3 (1) referred to above are satisfied.

4. The Commission also notes that Section 10 of the draft Regulations contains certain special provisions to regulate the hypothetical situation where the holder of an authorization - or the applicant - is a holding company whilst the vehicles used - or to be used - under the authorization belong to a subsidiary. These provisions indicate that it is the subsidiary that must be assessed on all points concerning good repute and financial standing.

The Commission recommends that the United Kingdom Government supplements Section 10 so as to ensure that the professional competence required is also assessed at this level, having regard to the third subparagraph of Article 3 (1) of the Directive.

5. As regards the transitional provisions, Sections 4 (4) and 9 of the draft Regulations largely meet the corresponding requirements of Article 5 of the Directive.

However, the Commission draws the attention of the United Kingdom Government to the wording of this Article.

In the first place Article 5 (1) does not make the application of the temporary provision subject to proof that the occupation has been exercised continuously.

The Commission therefore recommends that the Government amends this point in Section 4 (4) of the draft order so as to bring it into line with the Community provisions.

Secondly, Article 5 (2) of the Directive provides that natural persons who, after 31 December 1974 and before 1 January 1978, were: (i) authorized to engage in the occupation of road haulage operator without having furnished proof under national regulations, of their professional competence, or

(ii) designated continuously and effectively to manage the transport operations of the undertaking,

must, before 1 January 1980, satisfy the condition of professional competence referred to in Article 3 (4).

The same requirement applies in the case referred to in the third subparagraph of Article 3 (1).

Section 9 (9) of the draft Regulations, which deals with this point, requires that the same persons meet the conditions of professional competence by 1 January 1978, thus imposing stricter conditions than those intended by Article 5 (2) of the Directive.

The Commission therefore recommends that the United Kingdom Government amends Section 9 (9) so that the natural persons concerned may benefit from the time limit laid down at the end of Article 5 (2) of the Directive.

6. Finally, the Commission reminds the Government that Article 6 (1) and (3) of the Directive requires that Member States shall state the grounds for any decisions to reject applications for admission to the occupation and that they shall ensure that the parties concerned are able to defend their interests by appropriate means with regard either to any such decision to refuse authorization or a decision to withdraw an authorization.

As the draft Regulations make no provision on this subject the Commission recommends that the United Kingdom Government remedies this shortcoming.

Done at Brussels, 19 September 1977.

For the Commission

Richard BURKE

Member of the Commission