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,

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

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 laid down in Article 251 of the Treaty [3],

Whereas:

(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 occupation of road haulage operator or road passenger transport operator (the "occupation of road transport 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 interests of road transport operators, their customers and the economy as a whole, together with improvements in road safety. They will also facilitate the effective exercise of the right of establishment by road transport operators.

(2) Council Directive 96/26/EC of 29 April 1996 on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations [4] 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 monitoring, 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.

(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 transport of international goods and certain cabotage operations is accessible to undertakings throughout the Community. The only condition imposed on such undertakings is that they have a Community licence, which can be obtained provided they satisfy the conditions governing admission to the occupation of road transport operator laid downin Regulation (EC) No …/2009 of the European Parliament and of the Council of … on common rules for access to the international road haulage market (recast) [5] and Regulation (EC) No …/2009 of the European Parliament and of the Council of … on common rules for access to the international market for coach and bus services (recast) [5].

(4) 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.

(5) 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 special characteristics of, and constraints in, those 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 Community licence. The adaptation of the conditions to 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.

(6) In the interests of fair competition, the common rules governing the exercise of the occupation of road transport operator should apply as widely as possible to all undertakings. However, it 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.

(7) 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.

(8) 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. It is therefore appropriate to specify the conditions under which a person is considered to effectively and continuously manage the transport activities of an undertaking.

(9) 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 infringements of Community rules should result in the loss of good repute provided that the competent authority has ascertained that a duly completed and documented investigation procedure granting essential procedural rights took place before its final decision and that appropriate rights of appeal were respected.

(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.

(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 uniformity of examinations and to promote a high quality of training, it is appropriate to provide that Member States may authorise examination and training centres according to criteria to be defined by them. Transport managers should possess the requisite knowledge for managing both national and international transport 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, and provision should be made for updating them. It should be possible for Member States to exempt from the examinations persons who can provide proof of continuous experience in managing transport activities.

(12) Fair competition and road transport that is fully compliant with the rules require a uniform level of monitoring by Member States. The national authorities responsible 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 authorities 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 throughout the Community, which comply with the Community rules on the protection of personal data, would facilitate such cooperation and reduce the costs involved in checks for both undertakings and administrations. 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 administrative costs of checks and to improving their effectiveness.

(14) Some data contained in national electronic registers concerning infringements and penalties are personal. Member States should therefore take the measures necessary to ensure compliance with Directive 95/46/EC of the European Parliament and of 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 [6], in particular with regard to the monitoring of the processing of personal data by public authorities, the right of data subjects 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.

(15) 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. Interconnection of 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.

(16) 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 information to be forwarded, should be specified.

(17) In order to facilitate freedom of establishment, the production of appropriate documents issued by a competent 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 establishement, 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 certificate issued in accordance with this Regulation should be regarded as sufficient proof by the Member State of establishment.

(19) Closer monitoring of the application of this Regulation at Community level is required. This presupposes the 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 undertakings 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) Since the objective of this Regulation, namely the modernisation of the rules governing admission to the occupation 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 principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary to achieve that objective.

(22) 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 [7].

(23) In particular, the Commission should be empowered to draw up a list of categories, types and degrees of seriousness of infringements leading to the loss of good repute of road transport operators, to adapt to technical progress Annexes I, II and III to this Regulation 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 amend non-essential elements of this Regulation inter 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

1. This Regulation governs admission to, and the pursuit of, the occupation of road transport operator.

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.

4. By way of derogation from paragraph 2, this Regulation, 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 operator solely by means of motor vehicles with a maximum authorised speed not exceeding 40 km/h.

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

(a) the nature of the goods carried; or

(b) the short distances involved.

Article 2

Definitions

For the purposes of this Regulation:

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;

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;

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 passengers, 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 operator" shall mean an administrative decision which 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 conditions laid down in this Regulation, and which is empowered to grant, suspend or withdraw an authorisation to pursue the occupation of road transport operator;

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

Article 3

Requirements to be engaged in the occupation of road transport operator

1. Undertakings engaged in the occupation of road transport operator shall:

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

(b) be of good repute;

(c) have appropriate financial standing;

(d) have the requisite professional competence.

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

Article 4

Transport manager

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:

(a) effectively and continuously manages the transport activities of the undertaking;

(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.

2. If an undertaking does not satisfy the requirement as to professional competence laid down in Article 3(1)(d), the competent authority may authorise it to engage in the occupation 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 her responsibilities are exercised independently of any undertakings for which the undertaking carries out transport operations.

3. Member States may decide that a transport manager designated 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 fleet of vehicles that is smaller than that referred to in paragraph 2(c).

4. The undertaking shall notify the competent authority of the transport manager or managers designated.

CHAPTER II

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

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 particular its accounting documents, personnel management documents, 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

1. Subject to paragraph 2 of this Article, Member States shall determine the conditions to be met by undertakings and transport 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 reference in this Article to convictions, penalties or infringements shall include convictions, penalties or infringements of the undertaking itself, its transport managers and any other relevant person as may be determined by the Member State.

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 undertaking, 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 time and the installation and use of recording 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.

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

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 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, the conviction or penalty shall lead to the loss of good 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 the loss of good repute. Member States shall take into account information on those infringements, including 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 infringement which are most frequently encountered;

(ii) define the degree of seriousness of infringements according to their potential to create a risk of fatalities or serious injuries; and

(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 transport 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 relevant provisions of national law.

Article 7

Conditions relating to the requirement as to financial standing

1. In order to satisfy the requirement laid downin 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 accredited person, that, every year, it has at its disposal capital and reserves totalling at least EUR 9000 when only one vehicle is used and EUR 5000 for each additional vehicle used.

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 the European Union. They shall have effect from 1 January of the following calendar year.

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 [8].

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 professional 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 with the agreement of the competent authority which authorised the pursuit of the occupation of road transport operator, and that it may not be released without the agreement of that authority.

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.

Article 8

Conditions relating to the requirement as to professional competence

1. In order to satisfy the requirement 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.

2. Only the authorities or bodies duly authorised for this purpose by a Member State, in accordance with criteria defined by it, may organise and certify the written and oral examinations 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 transport managers with continuous training to update their knowledge if they wish to do so.

4. A Member State may exempt the holders of certain higher 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 qualifications. 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 examinations 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 competence. 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.

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

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

Article 9

Exemption from examination

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 Regulation. Those competent authorities shall be empowered to:

(a) examine applications made by undertakings;

(b) grant authorisations to engage in the occupation of road transport operator, and suspend or withdraw such authorisations;

(c) declare a natural person to be unfit to manage the transport activities of an undertaking in the capacity of transport manager;

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

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

Article 11

Examination and registration of applications

1. A transport undertaking which complies with the requirements 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 undertaking 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.

The assessment of an application may result in the issue of a Community licence in accordance with Regulations (EC) No …/2009 and (EC) No …/2009. A Member State may issue an authorisation other than a Community licence for undertakings which only perform transport operations within the territory of that Member State.

2. The competent authority shall record in the national electronic 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).

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.

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 designated 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.

Measures designed to amend non-essential elements of this 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 scrutiny referred to in Article 25(3).

5. Undertakings with an authorisation to engage in the occupation of road transport operator shall, within a period of 28 days or less, as determined by the Member State of establishment, notify the competent authority which granted the authorisation of any changes to the data referred to in paragraph 2.

Article 12

Checks

1. The competent authorities shall monitor whether undertakings 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 legislation relating to road transport activities [10] to cover all infringements 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 the regulatory procedure with scrutiny referred to in Article 25(3).

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

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 in Article 3, it shall notify the undertaking thereof. If the competent authority establishes that one or more of those requirements is no longer satisfied, it may set one of the following time limits for the undertaking to rectify the situation:

(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 replacement transport manager where the transport manager no longer satisfies the requirement as to good repute or professional competence;

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

(c) a time limit not exceeding six months where the requirement 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 accordance with Article 6, the competent authority shall declare that transport manager unfit to manage the transport activities of an undertaking.

2. Unless and until a rehabilitation measure is taken in 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

1. Negative decisions taken by the competent authorities of 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 transport 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 rehabilitation 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 undertakings 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 Regulation, 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 in the occupation of road transport operator. The data contained in that register shall be processed under the supervision of a public authority designated for that purpose. The relevant data contained in the national electronic register shall be accessible to all the competent authorities of the Member State in question.

By 1 June 2009, the Commission shall issue guidelines on 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.

2. National electronic registers shall contain at least the following data:

(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 and, where appropriate, the serial number of the Community 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.

For the purposes of point (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 electronic register for two years from the expiry of the suspension or the withdrawal of the licence, and shall thereafter be immediately removed.

Data concerning any person declared to be unfit for the occupation of road transport operator shall remain in the national electronic register as long as the good repute of that person has not been re-established pursuant to Article 6(3). Where such a rehabilitation 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 electronic registers are accessible throughout the Community through the national contact points defined in Article 18. Accessibility through national contact points shall be implemented 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.

6. Common rules concerning the implementation of paragraph 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).

Article 17

Protection of personal data

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 specify the identity of the authority responsible for processing the data, the type of data processed and the reasons for such action;

(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 reasonable 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 legitimate 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 framework of this Regulation shall use the national contact points designated pursuant to paragraph 1.

3. Member States which exchange information concerning the infringements referred to in Article 6(2) or transport 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 19

Certificates of good repute and equivalent documents

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 issued by a competent judicial or administrative authority in the Member State where the transport manager used to reside.

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 document referred to in paragraph 1, that Member State shall accept as sufficient proof for nationals of other Member States a certificate 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 certificate shall relate to the specific information taken into consideration in the Member State of establishment.

3. If the document referred to in paragraph 1 or the certificate 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 paragraph 3.

Article 20

Certificates relating to financial standing

Where a Member State imposes on its nationals certain conditions 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.

Article 21

Certificates of professional competence

1. Member States shall recognise as sufficient proof of professional 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.

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).

CHAPTER VI

FINAL PROVISIONS

Article 22

Penalties

1. Member States shall lay down the rules on penalties 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.

2. The penalties referred to in paragraph 1 shall include, in 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 information on convictions and penalties for any serious infringements, and other specific information liable to have consequences for the pursuit of the occupation of road transport operator, in compliance with the provisions applicable to the protection of personal data.

Article 25

Committee procedure

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 equipment in road transport [14].

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.

Article 26

Reporting

1. Every two years, Member States shall draw up a report on 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, financial standing and professional competence;

(b) the number of authorisations granted by year and by type, those suspended, those withdrawn, the number of declarations 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).

2. On the basis of the reports referred to in paragraph 1, the Commission shall, every two years, submit a report to the European Parliament and to the Council on the pursuit of the occupation of road transport operator. That report shall 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 [15].

Article 27

List of competent authorities

Each Member State shall forward to the Commission by… [] a list of competent authorities which it has designated to authorise the pursuit of the occupation 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 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 …

[4] OJ L 124, 23.5.1996, p. 1.

[5] OJ L …

[6] OJ L 281, 23.11.1995, p. 31.

[7] OJ L 184, 17.7.1999, p. 23.

[8] OJ L 222, 14.8.1978, p. 11.

[] The date of entry into force of this Regulation.

[10] OJ L 102, 11.4.2006, p. 35.

[] Two years from the entry into force of this Regulation.

[] Date of application of this Regulation.

[] Two years after after the entry into force of this Regulation.

[14] OJ L 370, 31.12.1985, p. 8.

[15] OJ L 102, 11.4.2006, p. 1.

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ANNEX I

I. LIST OF SUBJECTS REFERRED TO IN ARTICLE 8

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 practical 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 education, 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 therefrom;

(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 practical 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].

D. FISCAL LAW

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

(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) 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;

(2) 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) 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;

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

(9) be familiar with the principles of marketing, publicity and public relations, including transport services, sales promotion 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, authorisations 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;

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 accordance 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) 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 [4], Directive 96/35/EC [5] and Regulation (EEC) No 259/93 [6];

(9) 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 force in different Member States (speed limits, priorities, waiting and parking restrictions, use of lights, road 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.

II. ORGANISATION OF THE EXAMINATION

1. Member States will organise a compulsory written examination which they may supplement by an optional oral examination 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 %.

[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).

[4] 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).

[5] 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).

[6] 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).

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ANNEX II

SECURITY FEATURES OF THE CERTIFICATE OF PROFESSIONAL COMPETENCE

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.

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ANNEX III

MODEL OF THE CERTIFICATE OF PROFESSIONAL COMPETENCE

EUROPEAN COMMUNITY

(Colour Pantone stout fawn — Format DIN A4 cellulose paper 100 g/m 2 or more)

(Text in the official language(s) or one of the official languages of the Member State issuing the certificate)

Distinguishing sign of the Member State concerned ( 1 )

Name of the authorised authority or body ( 2 )

CERTIFICATE OF PROFESSIONAL COMPETENCE IN ROAD HAULAGE [PASSENGER TRANSPORT ( 3 ) ]

No …

We

hereby certify that ( 4 )

born on in

has successfully passed the tests for the examination (year: ……….; session: …………..) ( 5 ) necessary for the award of the certificate of professional competence in road haulage [passenger transport] ( 6 ) in accordance with 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.

This certificate constitutes the sufficient proof of professional competence referred to in Article 21 of Regulation (EC) No …/2009 of the European Parliament and of the Council.

Issued at, on ( 7 )

( 1 ) Distinguishing sign of the State: (B) Belgium, (BG) Bulgaria, (CZ) Czech Republic, (DK) Denmark, (D) Germany, (EST) Estonia, (GR) Greece, (E) Spain, (F) France, (IRL) Ireland, (I) Italy, (CY) Cyprus, (LV) Latvia, (LT) Lithuania, (L) Luxembourg, (H) Hungary, (M) Malta, (NL) Netherlands, (A) Austria, (PL) Poland, (P) Portugal, (RO) Romania, (SLO) Slovenia, (SK) Slovakia, (FIN) Finland, (S) Sweden, (UK) United Kingdom.

( 2 ) Authority or body designated in advance for this purpose by each Member State of the European Community to issue this certificate.

( 3 ) Delete as appropriate.

( 4 ) Surname and forename; place and date of birth.

( 5 ) Identification of the examination.

( 6 ) Delete as appropriate.

( 7 ) Seal and signature of the authorised authority or body issuing the certificate.

+++++ TIFF +++++

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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.

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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 three proposals of the so-called "Road Package" [1].

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 legislative 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 in industry's production and distribution systems, it will contribute to boost the EU's competitiveness.

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 Position 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 transport 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 transport business. That person must be employed and remunerated by the company.

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 responsibility 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 information 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.

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

The Commission proposal introduces more precise indicators for measuring a company's financial 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 examination 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. Furthermore, 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 introduces common principles designed to ensure greater transparency, comparability and, ultimately, credibility 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.

Whilst following in principle the Commission proposal, the Council decided to introduce some provisions 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 competent 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 possibility 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 information, and certain procedures to be followed.

The Council agreed in principle with the Commission proposal in establishing national electronic registers. 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 professional 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.

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 Commission 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.

[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 international 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).

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