31977H0173

COMMISSION RECOMMENDATION of 10 February 1977 addressed to the Government of the Kingdom of Denmark concerning a draft decree implementing certain provisions of Directive 74/561/EEC (77/173/EEC)

In a letter of 8 July 1976 the Office of the Danish Permanent Representative to the European Communities sent the Commission, for consultation, the text of a draft decree, dated 9 May 1974, concerning the implementation of the Council Directive of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (1).

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

The Commission makes the following recommendation with regard to the draft decree in question: 1. The Commission finds that, in accordance with Article 7 (1) of the Directive, the draft decree issued by the Danish Government defines and brings into operation the principle of professional competence laid down in Article 3 (4) of that Directive.

However, the Commission would point out to the Danish Government that, according to the first subparagraph of Article 3 (4), the necessary knowledge for satisfying the condition as to professional competence is to be acquired by attending courses, by practical experience in a transport undertaking, or by a combination of both. This list is restrictive and therefore eliminates any other possibility.

The Commission therefore recommends that the Danish Government amend its draft decree on this point and delete the reference to employment in a forwarding agency.

The Commission would also draw the attention of the Danish Government to the wording of the final subparagraph of Article 3 (4) : "The production of a certificate issued by the authority or body designated for that purpose by each Member State shall constitute proof of professional competence".

The Commission therefore recommends that the Danish Government include a provision to this effect in its draft decree.

2. The Commission has no comment to make on the programme relative to the knowledge required, laid down by the draft decree.

3. The Commission also notes that the conditions as to good repute and financial standing provided for in Article 3 of the Directive, and the rules governing the fulfilment by the applicant undertaking of the provisions of Article 3 (a) and (b) are already covered by legal provisions now in force in Denmark.

(1) OJ No L 308, 19.11.1974, p. 18. However, the Commission would remind the Danish Government of the provision laid down in the first sentence of the third subparagraph of Article 3 (1):

"Where the applicant is an undertaking, provisions (a) and (c) above must be satisfied by one of the natural persons who will continuously and effectively manage the transport operations of the undertaking ...".

The Commission therefore recommends that the Danish Government include a provision to this effect in Article 8 of the Decree of 19 October 1973.

4. The Commission would also remind the Danish Government: (a) that the provisions referred to in paragraph 3 must be implemented in accordance with the rules laid down by the Directive of 12 November 1974 and must be referred to the Commission for consultation, as provided for in Article 7 (1);

(b) that such measures, which bear upon both national and international transport operations, must include: - the conditions governing the continued operation of an undertaking under the circumstances provided for in Article 4 (1),

- the withdrawal of the authorization by the competent authority if it finds that the provisions of Article 3 (1) (a), (b) or (c) are no longer complied with,

- the requirement that the grounds on which decisions to reject an application for admission to the occupation are versed, shall be stated,

- the possibility for those concerned to defend their interests by appropriate means with regard to the decisions referred to in Article 6 (1) and (2),

- where appropriate, the transitional measures provided for in Article 5.

As the draft decree brought in by the Danish Government is silent on this matter, the Commission recommends that the Danish Government make good the deficiency and take the necessary steps.

Done at Brussels, 10 February 1977.

For the Commission

Richard BURKE

Member of the Commission