31978H0072

COMMISSION RECOMMENDATION of 16 December 1977 to the Government of the Kingdom of Belgium on two draft Royal Decrees implementing Directives 74/561/EEC and 74/562/EEC on admission to the occupations of road haulage operator and road passenger transport operator in national and international transport operations (1) (78/72/EEC)

Under cover of a letter, dated 27 May 1977, the Permanent Representation of Belgium to the European Communities communicated to the Commission, for consultation purposes, the text of two draft Royal Decrees implementing the two Council Directives of 12 November 1974 on admission to the occupations of road haulage operator and road passenger transport operator in national and international transport operations.

These texts were communicated in accordance with Articles 7 (1) and 6 (1), respectively, of the abovementioned Directives.

The Commission regrets that, as a result of the late communication of the implementing measures by the Belgian Government, the latter has not only failed to fulfil, in time, the obligations incumbent upon it pursuant to Articles 7 and 6, respectively, of the two Council Directives of 12 November 1974, but has also prevented the Commission from issuing this opinion on time.

The Commission issues the following recommendation on the abovementioned draft Royal Decrees: 1. The Commission finds that the draft Royal Decrees laying down the conditions for admission to the occupations of road haulage operator and road passenger transport operator in national and international transport operations satisfy the provisions of the two Directives as regards the principle, definition and implementing procedures for the requirements of good repute and financial standing (Articles 3 and 2, respectively, of the Directives).

2. However, as regards the requirement of financial standing, the Commission draws the attention of the Belgian Government to the wording of the first subparagraph of Article 3 (1) and the first subparagraph of Article 2 (1), respectively, of the Directives, whereby undertakings must be of appropriate financial standing.

Since this requirement is not embodied in the wording of Article 2 of either of the draft Decrees, the Commission recommends that the Belgian Government make good this deficiency.

3. The Commission finds that, under Article 4 of both draft Royal Decrees, the requirement of professional competence must be satisfied before 1 January 1980 by natural persons and undertakings authorized, after 31 December 1974 and before 1 January 1978, to carry on the occupation of road haulage operator and/or road passenger transport operator, pursuant to the Law of 1 August 1960 and the Decree-Law of 30 December 1946 respectively.

(1) OJ No L 308, 19.11.1974, pp. 18 and 23. However, it should be noted, in general, that Articles 5 (1) and 4 (1), respectively, of the Community Directives, expressly exempt natural persons and undertakings authorized before 1 January 1978 under national rules to carry on the occupation of road haulage operator and/or road passenger transport operator from the requirement of furnishing evidence that they satisfy the provisions of Articles 3 and 2, respectively, of the Directives, as regards the requirements of good repute, financial standing and professional competence.

Articles 5 (2) and 4 (2), respectively, of the Directives, restrict the scope of this exemption in that they specify that natural persons who, after 31 December 1974 and before 1 January 1978, have been authorized to carry on the occupation of carrier or designated to manage the transport operations of an undertaking, must satisfy the requirement of professional competence before 1 January 1980, without having provided evidence of professional competence under national rules.

Since the road haulage provisions in force in Belgium i.e. the Law of 1 August 1960, embody requirements for professional competence, it must be considered that Article 4 of the draft Royal Decree on admission to the occupation of road haulage operator is not in accordance with the Community provisions.

The Commission therefore recommends that the Belgian Government amends the draft Royal Decree on admission to the occupation of road haulage operator, by deleting the provisions referred to in Article 4 thereof.

The Commission also recommends the amendment of Article 4 of the draft Royal Decree on admission to the occupation of road passenger transport operator to ensure compliance with Article 4 (1) of the Community Directive, by the deletion of the obligation on the passenger transport undertakings cited to satisfy the requirement of professional competence.

4. As regards the draft Decree on the carriage of goods by road, the Commission observes that Article 8 (3) thereof exempts natural persons awarded a transport certificate or authorization after 31 December 1974 and before 1 January 1978 from the requirement to attend courses but requires them to pass an examination.

However, for the reasons already given in point 3 above, the requirement to pass an examination runs counter to the Community Directive.

The Commission therefore recommends that the Belgian Government amend Article 8 (3) of the draft Decree to ensure compliance with Article 5 of the Directive on admission to the occupation of road haulage operator.

5. As regards admission to the occupation of road haulage operator, the Commission finds, in general, that, for the following reasons, the provisions of Articles 31 to 35 of the draft Royal Decree do not comply with the Community Directive: - they provide merely for an exemption from the requirement laid down for obtaining a certificate of professional competence ; whereas Article 5 (1) of the Community Directive provides for an exemption from the requirements of good repute, financial standing and professional competence;

- they specify that the exemption applies only to natural persons, whereas Article 5 (1) of the Community Directive stipulates that both natural persons and undertakings shall be exempt from the requirements laid down for admission to the occupation of carrier.

6. The Commission also observes that the abovementioned Articles 31 to 35 include certain restrictions relating to the routes or categories of goods for which the transport authorizations have been issued. More particularly: (a) Article 31 exempts carriers from the requirement to provide evidence of professional competence if, on 1 January 1978, they already hold a certificate of professional competence for international transport, but it does not so exempt holders of certificates valid exclusively for transport operations between Belgium and the Netherlands.

As regards the latter, Article 34 of the draft Decree provides that the relevant certificate of professional competence is valid only for transport operations carried out between Belgium and the Netherlands and vice versa.

This means that the draft Royal Decree lays down different professional competence requirements for different routes, which is incompatible with the Community Directive, since the latter makes no provision for the Member States to have any such option.

(b) Articles 32 and 33 exempt carriers from the requirement to furnish evidence of professional competence for international transport if, before 1 January 1975, they were authorized to carry out: - international transport operations for which provision is made in Annexes I and II to the first Council Directive of 23 July 1962;

- transport operations between Belgium and the Grand Duchy of Luxembourg.

In view of the general scope of Article 5 (1) of the Community Directive, these provisions must apply to all carriers who, before that date, were authorized to carry on the occupation of international carrier, without any distinction as regards the category of goods carried or the route served.

The Commission therefore recommends that the Belgian Government amend Articles 31 to 35 of the draft Royal Decree to ensure compliance with the Community Directive, in the manner indicated above.

7. As regards road passenger transport operators, it should be noted that the Community Directive provides that natural persons and undertakings shall be exempt from the requirement to provide evidence that they satisfy the requirements of good repute, financial standing and professional competence if, before 1 January 1978, they were authorized, in a Member State, under national rules, to carry on the occupation of road passenger transport operator in national and/or international transport operations.

Article 31 of the draft Royal Decree, however, provides merely for exemption from the requirements laid down for obtaining a certificate of professional competence ; the Belgian Government must therefore be asked to expand Article 31 to ensure compliance with Article 4 of the Community Directive, by stipulating that the exemption applies to all three requirements : good repute, financial standing and professional competence.

Done at Brussels, 16 December 1977.

For the Commission

Richard BURKE

Member of the Commission