Explanatory Memorandum to COM(2007)263 - Common rules concerning the conditions to be complied with to pursue the occupation of road transport operator - Main contents
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| dossier | COM(2007)263 - Common rules concerning the conditions to be complied with to pursue the occupation of road transport operator. |
|---|---|
| source | COM(2007)263  |
| date | 23-05-2007 |
Directive 96/26/EC on admission to the occupation of road transport operator, the four Regulations on access to the road transport market,[1] together with the deregulation of international transport prices which took place a few years earlier, shaped the internal market in road transport.
The common requirements for admission to the occupation, as laid down in the Directive, have ensured minimum quality standards for road transport, while the opening-up of the market as a result of the Regulations has made for greater competition. Generally speaking, this legislative framework has proved successful, in so far as road transport companies are charging more favourable rates, offering diversified services and responding more closely to customers' needs for just-in-time services.
However, experience shows that some of the measures of this legislative framework are not applied and enforced uniformly, as a result of legal provisions that are unclear, incomplete or not in keeping with the development of the sector. This is the case with the Directive on admission to the occupation, which applies to all road transport companies, whatever their size (owner-operators, small and medium-sized enterprises or large companies). The different ways in which the Directive is being applied are detrimental to fair competition. Companies remain subject to monitoring and checks which vary from one Member State to another, with very different levels of professional qualification and financial soundness. This prevents full benefit from being taken of all the advantages of the internal market in road transport.
The proposal for a Regulation is intended to replace the Directive and rectify these shortcomings.
Directive 96/26/EC establishes minimum conditions relating to good repute, financial standing and professional competence which companies have to satisfy to be authorised to engage in the occupation of road transport operator, that is to say to carry out national or international goods or passenger transport operations. These conditions are the only common requirements imposed on companies to be authorised to carry out their activities on the Community road transport market. The Directive also establishes mutual recognition of some of the documents required in order to obtain an authorisation.
In its legislative programme for 2006 i the Commission announced that it intended to examine in detail the rules deriving from this Directive and, where appropriate, to take steps to ensure that they are applied in a more harmonised, simpler, more enforceable and more effective fashion. Its examination was based on an extensive stakeholder consultation and an impact assessment, and revealed that Member States had had difficulty in transposing the Directive and were applying it in a very disparate manner. By way of illustration, the success rates in the examinations to test professional competence vary between the Member States from 10% to over 90%. This has several drawbacks, including:
- the risk of distortion of competition between, on the one hand, transport operators with a real establishment that is accessible to the authorities responsible for checking their compliance with the minimum standards for admission to the occupation and, on the other, 'letter-box' companies which can avoid proper monitoring;
- a lack of market transparency on account of the disparities between the minimum standards of financial and professional competence and, as a corollary, 'the subcontracts in series'; road transport customers have no guarantee as to the quality offered by road transport companies;
- the continuing presence of negligent companies with low levels of professional qualification and financial standing, entailing risks for road safety and jeopardising the socio-economic efficiency of road transport (better qualified companies cannot compete);
- monitoring that is not uniform and is not coordinated between the national authorities which are supposed to withdraw authorisations from companies committing offences which tarnish their good repute. This lack of coordination creates unnecessary administrative costs and undermines the credibility and dissuasiveness of the withdrawal of licences.
The proposal for a Regulation 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.
The new Regulation will indirectly improve road safety as a result of stricter monitoring of negligent companies, which are more likely to be involved in accidents than others. It will improve the working conditions of road transport workers by raising the standards of professional qualification. It will also strengthen the independence of certain owner-operators vis-à-vis their customers and protect them from practices tantamount to employing them in a disguised or indirect way.
Lastly, this proposal follows on from the Commission's commitment to simplify the content of the 'acquis' and to update it. It is part of the 'better regulation' programme for the updating and simplification of the Community acquis. The legislative simplification achieved consists in greater legal clarity, by means of provisions that are easier to monitor, can be enforced in practice and ensure greater overall consistency with the provisions of the Regulations on access to the transport market i. It also gives the Member States the possibility of reducing certain unnecessary administrative burdens relating to checks.
Modernisation of the rules governing admission to the occupation of road transport operator, in particular by introducing electronic registers, is one of the immediate measures to be taken in the context of the 'Action Programme for Reducing Administrative Burdens in the European Union' proposed by the Commission on 24 January 2007.[4] The conclusions of the European Council meeting of 8 and 9 March call upon Parliament and the Council to give special priority to these immediate measures and therefore to the examination and adoption of this proposal.
Consultation of interested parties
Before this proposal was drafted, a public consultation exercise was conducted in order to gather as many comments as possible from stakeholders. This consultation, organised jointly with that carried out in connection with the parallel recasting of the four Regulations on market access, was based on a questionnaire which was published on the Internet and sent by mail to all organisations which represent the road transport sector.
The Commission received 67 written contributions from national authorities, national and European organisations representing road freight and passenger transport operators, users and various other economic interest groups. On 7 November 2006 the Commission held a hearing for stakeholders who had replied to the public consultation in writing or had expressed their interest in the meantime. This hearing was attended by 42 delegations representing the industry plus 37 observers from national administrations.
The stakeholders generally considered that the conditions to be complied with to pursue the occupation of road transport operator needed to be more harmonised, and better enforced and monitored. With the exception of passenger transport operators, who thought that higher standards should be required, they recommended giving priority to the harmonisation of the existing national rules. Generally, they advocate:
- improving monitoring by means of checks targeting high-risk companies (rather than more frequent systematic checks), an operational exchange of information between the authorities in the various Member States which are supposed to monitor the companies' conduct, and the use of electronic registers which would reduce administrative costs;
- introducing common provisions to ensure that companies have a real, stable establishment, so as to reduce distortion of competition by 'letter-box' companies;
- harmonising the indicators used to measure a company's financial standing and the standard of examinations to test professional competence;
- ensuring that the holder of a certificate of professional competence does actually run the transport business and is not just a 'front' for obtaining an authorisation.
All the comments made during this process have been taken into consideration. Several of them enabled improvements to be made to the attached proposal and the impact assessment. In this way, the Commission broadened the range of options that needed to be assessed in order to reflect the various points of view expressed. Accordingly, it did not act on the idea of replacing the financial standing condition by compulsory professional liability insurance, since several stakeholders considered that this idea was not sufficiently well-developed.
A summary of the replies received to the public consultation, the text of the individual replies and the record of the hearing of 7 November 2006 are available at: ec.europa.eu/transport/road/consultations
The Commission's public consultation benefited from the independent expertise provided by Professor Brian Bayliss, who in 1994 was Co-Chairman of the Committee of Enquiry on Road Transport which produced a comprehensive report on the state of completion of the internal market and the work that still needed to be accomplished at that time.
The impact assessment carried out to prepare this proposal covered the recasting of both the rules on admission to the occupation and those on access to the market, in view of their close links and their overlaps. It was based on various studies carried out during 2004, 2005 and 2006. Special care was taken to ensure that the scope of the assessment was adjusted to take account of the stakeholders' reactions and to adapt the attached proposal to take account of the conclusions of the assessment.
Five policy options were assessed:
The 'no change' option: this would leave the existing road legislation unaltered. The problems outlined at the beginning of this document would persist or even become worse as cabotage is opened up to all Member States.
The 'technical simplification and non-regulatory' option: this would entail merging and consolidating the five EC legislative instruments into three. It would provide the Member States and the industry with non-binding guidelines for implementing these instruments. This option would be easy to implement, but it would be unlikely to reduce the differences between the national rules, and hence solve the main problems identified at the outset.
The 'harmonisation' option: this would turn the current Directive and the four Regulations into three Regulations and, in so doing, harmonise admission to the occupation to a greater extent, increase legal clarity concerning cabotage and improve its application. This option would contribute to fair competition, improve compliance with road transport rules, in particular concerning safety, and increase the average level of professional standards in the sector.
The 'higher quality standards' option: this would gradually introduce higher financial standing requirements and compulsory continuous training for transport managers in companies. In the short term, this option would make entry proportionally more difficult for small companies. In the long run, it would encourage operators to be more efficient, bringing benefits for society as a whole.
The 'liberalisation' option: this would open up cabotage to competition to a greater extent and would liberalise regular international coach services. This option would reduce certain transport rates, but without necessarily improving the socio-economic effectiveness of road transport unless accompanied by prior further harmonisation, including in the taxation and social field. This option would entail the risk of job losses in some countries. At all events, given the likely scale of its impact, a more thorough analysis would need to be undertaken, and this option would go beyond the framework of simplification of which this proposal is part.
This proposal therefore reflects option No 3, the 'harmonisation' option. An executive summary of the impact assessment and the full text of the impact assessment accompany this proposal. The impact assessment estimates that the proposal for a Regulation, in combination with the other two market access Regulations proposed at the same time, will reduce distortions of competition, improve the compliance of transport operators with social and road safety rules, and enable the Member States to reduce administrative costs by around €190 million per annum.[5]
Summary of the measures proposed
The proposal for a Regulation lays down the conditions with which all companies must comply to be authorised to pursue the occupation of road transport operator. It clarifies the existing legal provisions and supplements them so as to strengthen overall consistency and to guarantee effective and uniform application. It introduces:
- the concept of the responsibility of the transport manager who lends his or her professional competence certificate to a company to enable it to obtain an authorisation, and stricter rules governing his or her links with the company;
- criteria to be met to ensure that a company is actually stably established in a Member State and that its conduct can be properly monitored by the national authority which authorised it to pursue the occupation;
- comparable financial indicators to measure a company's financial standing, compulsory minimum training of 140 hours prior to the examination to test professional competence which all applicants must sit, and the accreditation of training centres and examination centres;
- the obligation for authorities which discover that a transport operator no longer satisfies the good repute, financial standing or professional competence conditions to warn the operator and, if remedial action is not taken within a specified period, to impose administrative sanctions ranging from withdrawing its authorisation to disqualifying its transport manager;
- mutual recognition between Member States of infringements of EC road transport rules. This will result in the totalling-up of serious repeated infringements wherever they are committed which, above a certain threshold, are likely to tarnish a transport operator's good repute and lay it open to the sanctions referred to above;
- electronic registers interconnected between all Member States so as to reduce the administrative cost of monitoring companies and facilitate the exchange of information between Member States;
- the gradual elimination of certain exceptions which, since they are left to the discretion of Member States, are not granted to companies in a uniform manner. These exceptions are no longer justified and distort competition to the detriment of the vast majority of companies which do not benefit from them.
The proposal for a Regulation, which repeals Directive 96/26/EC, is based on Article 71 of the Treaty establishing the European Community.
The aim of this proposal is essentially to harmonise the national rules imposed on companies regarding admission to the occupation, and in so doing to make the internal market more effective. This harmonisation cannot be brought about by the Member States acting alone. Moreover, the proposal seeks to improve the exchange of information between the Member States' authorities which monitor compliance with the rules governing admission to the occupation, which can only be done in piecemeal fashion on a bilateral basis by the Member States. Community action is therefore necessary since it is impossible for a single Member State or group of Member States to satisfactorily solve the problems identified.
The proposal complies with the proportionality principle for the following reasons.
- the proposal lays down common conditions but does not prevent Member States from adding their own conditions concerning admission to the occupation;
- the only limit to this possibility derives from the principle of freedom of establishment and the need to ensure the mutual recognition of certain certificates, but the proposal does not introduce any substantial change compared with the provisions already in force;
- the proposal offers the Member States a choice between two methods whereby a company can provide evidence of its financial standing (financial indicators or bank guarantees);
- the obligations imposed on the national authorities which authorise the pursuit of the occupation take due account of their discretionary powers, in particular with regard to establishing and ruling on infringements. Based on the ruling of the Court in its judgment of 13 September 2005, i i t establishes a common approach to the imposition of administrative sanctions such as the withdrawal of authorisations. Given the fact that such sanctions are already very dissuasive, the Regulation does not, however, make provision for other sanctions of a criminal or financial nature and leaves the Member States free to decide on this matter.
Lastly, the harmonisation of the conditions governing the pursuit of the occupation cannot be limited solely to companies authorised to carry out international transport operations, given that, since the completion of the internal market, the national markets are no longer separate for the following reasons:
- several Member States make no distinction between authorisations issued for an international transport operation and those issued for a purely national transport operation;
- in other Member States, companies authorised to carry out transport operations only within a Member State are in competition with companies from other Member States carrying out cabotage;
- companies authorised to carry out international transport operations fall back on their national market when, because of the economic situation, they can no longer find customers wanting them to carry goods to other Member States.
The proposal for a Regulation, like the current Directive, therefore covers all transport operations, including national ones.
The main objective of revising the rules governing admission to the occupation of road transport operator is to ensure that these rules are applied more effectively and in a less disparate way. A Regulation, which is directly applicable and will ensure more uniform application, would therefore appear to be the most appropriate instrument. It will make for greater transparency, and help to reduce certain administrative costs. This choice seems all the more appropriate considering that admission to the occupation is the basic condition for gaining access to the market, and a Regulation has been the instrument used since 1992 in that area.
Contents
- Budgetary implications
- Grounds and objectives
- Issue addressed
- Consistency with other EU policies and objectives
- CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- Collection and use of expertise
- Impact assessment
- LEGAL ASPECTS
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instrument
- European Economic Area
- PROVISIONS PROPOSED
- New provisions
- Requirement as to establishment
- Making the transport manager responsible
- Clarification of the conditions to be satisfied with regard to good repute
- New indicators for measuring a company's financial standing
- Improving professional competence
- Improving monitoring
- Administrative simplification and cooperation
- Other amendments
The proposal will not entail any additional cost for the Community budget.
The proposal for a Regulation is of relevance to the EEA and should therefore be extended to it.
Taking-over of existing provisions
This proposal supplements and revises the existing rules on admission to the occupation of road transport operator. It therefore takes over several principles and provisions from Directive 96/26/EC:
- the three conditions to be satisfied by a company wishing to gain admission to the occupation (good repute, professional competence and financial standing) (Article 3);
- mutual recognition of diplomas, certificates and other evidence of formal qualification to facilitate freedom of establishment (Articles 18 to 20);
- the model certificate of professional competence (Annex II) and the list of subjects of which knowledge is required in order to obtain that certificate (Annex I).
However, a recasting on the basis of the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts would not have made it possible to achieve the requisite degree of legal clarity. The principles and provisions in question constitute an 'acquis' that cannot be called into question. The Commission therefore calls upon the European Parliament and the Council to take the greatest possible account of this, and to exercise their prerogatives with regard to the new provisions, as described below.
Clarification of the definitions and updating of the scope
Article 1 adds to the list of definitions to facilitate more uniform application. Article 2 defines the new scope which is consistent with the other road transport legislation by including all vehicles over 3.5 tonnes and limiting the exemptions to certain transport operations clearly identified in other Community acts.
Articles 3 and 5 lay down common rules to ensure that only companies that are genuinely and stably established can be authorised to engage in the occupation. 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. Under Article 5, companies are genuinely and stably established if they have an office, registered vehicles and an operating centre.
Article 4 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 for qualification purposes 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.
Article 6 lists the Community rules serious infringements of 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. This list is a precondition for any organised exchange of information between Member States and the definition of common thresholds for the withdrawal of authorisations.
Article 7 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) i 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.
Article 8 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 centres 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 reasoning behind this is that those whose job it is to manage transport activities will most certainly have had occasion to manage transport operations between different Member States in the course of their careers.
Articles 9, 10, 11 and 13 clarify and strengthen the role of the authorities designated by the Member States to check that companies meet the conditions laid down in the Regulation. These Articles introduce common principles designed to ensure greater transparency, comparability and, ultimately, credibility for the rules governing admission to the occupation. Articles 10 and 12 indicate the time limits to be complied with by those authorities when examining dossiers, and the time limits that may be granted to companies to rectify their situation before incurring a sanction. Article 12 requires the competent authorities to warn companies which run the risk of no longer satisfying the conditions set out in the Regulation. Article 21 sets out a gradual range of sanctions going from partial withdrawal of the authorisation to disqualification of the transport operator. Where checks are concerned, Article 11 provides for targeted checks which Member States can carry out instead of systematic checks more frequently than the existing five-year checks. The targeted checks method has proved to be an effective way of detecting infringements and reducing administrative costs, since only companies identified as being at risk are checked.
Article 15 calls for the introduction in each Member State of an electronic register of companies which should be interconnected throughout the Community by the end of 2010 in compliance with the rules on the protection of personal data. Such registers already exist in many Member States, and have proved to be effective in reducing the administrative costs of monitoring companies. Article 16 indicates the essential rules applicable to the protection of personal data, in accordance with Directive 95/46/EC. Article 17 provides for the designation of national contact points to be used for the exchange of information, and certain procedures to be followed (detailed in the proposals for Regulations adopted in parallel with this proposal).
The other substantive amendments concern general provisions resulting from the amendments indicated above, in particular to specify the applicable transitional period and gradually eliminate unjustified prior rights, the committee procedure rules which apply, and the reports to be compiled to ensure more rigorous monitoring at national and Community level.