P6_TC1-COD(2007)0098

Position of the European Parliament adopted at first reading on 21 May 2008 with a view to the adoption of Regulation (EC) No …/2008 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 and repealing Council Directive 96/26/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 71 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 Committee of the Regions (2),

Having consulted the European Data Protection Supervisor,

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, hereinafter referred to as occupation of road transport operator. Such common rules will help to contribute towards achieving a higher level of professional qualification for transport operators, the rationalisation of the market, and an improved quality of service rendered, in the interests of 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 for 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, the impact assessment carried out, and various studies show that the Directive is being applied in a very disparate fashion from one Member State to another. The disparities in question have several adverse consequences, in particular distortion of competition, a lack of market transparency, a lack of uniformity with regard to monitoring, and the risk that undertakings with a low level of professional qualification may be negligent or less compliant with road safety rules and social welfare rules, 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 access to the market in international goods transport and certain cabotage operations is open to undertakings throughout the Community. The only condition imposed on such undertakings is that they have a Community licence, which they can obtain provided that they satisfy the conditions governing admission to the occupation, in accordance with Regulation (EC) No…/2008 of the European Parliament and of the Council of … [on common rules for access to the international road haulage market] (5) and Regulation (EC) No…/2008 of the European Parliament and of the Council of … [on common rules for access to the market for coach and bus services] (6).

(4)

It is therefore appropriate to modernise the existing rules on admission to the occupation of road transport operator, in order to ensure that they are applied more uniformly and more effectively. Since compliance with these 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.

(5)

In the interests of fair competition, the common rules governing the exercise of the occupation should apply as widely as possible to all undertakings. However, it is unnecessary to include in this Regulation undertakings which only perform transport operations with a very small impact on the transport market.

(6)

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 Member State in question can, if necessary, 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 presuppose that undertakings are stably and effectively established.

(7)

The natural persons with the requisite good repute and professional competence should be clearly identified and designated to the competent authorities. Such persons, referred to as ‘transport managers’, should be resident in a Member State and continuously and effectively run the transport activities of road transport undertakings. It is appropriate to specify the conditions under which a person is considered to manage, continuously and effectively, a transport activity in an undertaking.

(8)

The good repute of transport managers is conditional on their not having incurred serious criminal convictions or serious sanctions, in particular for infringing Community rules relating to road transport. Il is necessary to define jointly, in the areas covered by Community rules, the types of infringements and the corresponding degrees of seriousness liable to detract from the good repute of an undertaking.

(9)	The Commission should be pursuing the aim of ensuring that serious offences are punished with the same rigour in the different Member States, and taking appropriate measures to that end.

(10)

A road transport undertaking must have a minimum financial standing to ensure proper launching and proper administration of the undertaking. It is appropriate to use well defined relevant financial indicators which can be established on the basis of the annual accounts. Undertakings which so wish should be afforded the possibility of demonstrating their financial standing with a bank guarantee or other financial instrument such as insurance , which may constitute a simpler and less expensive method for them.

(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 undergo high-quality training. To ensure greater uniformity of training and examination and transparency vis-à-vis applicants, it is appropriate to provide that the Member States accredit examination and training centres according to criteria to be defined by them. Since the completion of the internal market, the national markets are no longer separate. Consequently, those responsible for managing transport activities 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.

(12)

Fair competition and road transport that is fully compliant with the rules call for 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 they take suitable measures if necessary, in particular in the most serious cases by suspending or withdrawing authorisations, or declaring as unsuitable transport managers who are negligent or act in bad faith. This must be preceded by due consideration of the measure with respect to the proportionality principle. An undertaking should, however, be warned in advance and should have a reasonable period of time within which to rectify the situation before incurring such sanctions.

(13)

More organised administrative cooperation between Member States would improve the effectiveness of the monitoring of undertakings operating in several Member States and reduce administrative costs. Electronic registers of undertakings interconnected throughout the Community, in compliance with the Community rules on the protection of personal data, would facilitate such cooperation and reduce the cost involved in checks for both undertakings and administrations. There are already national registers in most Member States. There is also already infrastructure in existence for interconnection between Member States. More systematic use could therefore be made of these national registers of undertakings and their interconnection throughout the Community at a lower cost, thus contributing to a significant reduction in the administrative costs of checks and an improvement in their effectiveness.

(14)

Some of the data contained in these registers concerning infringements and sanctions are personal. Member States must therefore take the measures necessary to ensure that 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 (7) is complied with, in particular with regard to the monitoring of the processing of such data by a public authority, 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 keep this type of data for at least two years to ensure that disqualified undertakings do not establish themselves in other Member States.

(15)

It is essential to interconnect the national registers so as to enable information to be exchanged rapidly and efficiently between Member States and guarantee that transport operators are not tempted to commit, or take the risk of committing, serious infringements in Member States other than their country of establishment. Interconnection of this kind entails the joint definition of the precise format for the data to be exchanged and the technical procedures for the exchange of data.

(16)	In order to ensure the efficient exchange of information between Member States, national contact points should be designated and certain common procedures in terms of time limits and the nature of the information to be forwarded as a minimum should be specified.

(17)

To facilitate freedom of establishment, the production of appropriate documents issued by a competent authority in the country of origin of the road transport operator should be accepted as sufficient proof of good repute for admission to the activities in question in a host Member State, providing that it can be ascertained that the persons concerned have not been declared unfit to pursue the occupation in the other Member States from which they come.

(18)	With regard to professional competence, a single model certificate issued in accordance with the Community provisions of this Regulation should be regarded as sufficient proof by the Member State of establishment, so as to facilitate freedom of establishment.

(19)

Closer monitoring of the application of the provisions of this Regulation is required at Community level, which presupposes the forwarding of regular reports on the good repute, financial standing and professional competence of undertakings in the road transport sector drawn up on the basis of the national registers.

(20)	Member States should provide for penalties applicable to infringements of the provisions of this Regulation. Such penalties shall be effective, proportionate and dissuasive.

(21)

Since the objective of this Regulation, namely modernisation of the rules governing admission to the occupation of road transport operator in order to ensure that they are applied more uniformly and comparably 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 objectives.

(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. (8)

(23)

The Commission should, in particular, be authorised to draw up a list of categories, types and degrees of seriousness of severe infringements which may under certain circumstances lead to the loss of the requisite good repute of road transport operators, to adapt to technical progress the Annex to this Regulation concerning the knowledge to be taken into consideration for the recognition of professional competence by the Member States and the Annex concerning the model certificate of professional competence, and to draw up the list of infringements which may lead the authorities, under certain circumstances, and proportionate to the nature of the infringement, to consider suspending or withdrawing the authorisation to pursue the occupation or issuing a declaration of unsuitability. Since the measures in question are of general scope and are designed to amend non-essential elements of this Regulation or to supplement it by the addition of 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. On the grounds of efficiency, the time limits normally applicable in the context of the regulatory procedure with scrutiny should be shortened for the updating of the model certificate of professional competence.

(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 the occupation of road transport operator and the pursuit of that occupation.

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 and 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 operations .

3.    By way of derogation from paragraph 1, this Regulation shall not apply:

(a)	to 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 transport operations.

(b)	to undertakings which are engaged in road passenger transport services exclusively for non-commercial purposes performed free of charge , which have a main occupation other than that of road passenger transport operator, and which use vehicles driven by their own employees.

(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.

Article 2

Definitions

For the purposes of this Regulation:

(a)	‘the occupation of road transport’ operator shall mean the occupation of road passenger transport operator or the occupation of road haulage operator;

(b)	‘the occupation of road haulage operator’ shall mean the activity of any undertaking transporting goods for hire or reward by means of either a motor vehicle or a combination of vehicles;

(c)

‘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 against payment by the person transported or by the transport organiser,

(d)

‘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;

(e)

‘transport manager’ shall mean a natural person employed by an undertaking or, if that undertaking is a natural person, that same person or, where provided for , another natural person designated by it by means of a contract, who effectively and continuously manages the transport activities of that undertaking;

(f)	‘authorisation to pursue the occupation of road transport operator’ shall mean an administrative decision which authorises an undertaking which satisfies the conditions provided for in this Regulation to pursue the occupation of road transport operator;

(g)

‘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 verifies whether an undertaking satisfies the conditions provided for in this Regulation, and which is empowered to award, suspend or withdraw the authorisation to pursue the occupation of road transport operator;

(h)	‘Member State of establishment’ shall mean the Member State in which an undertaking is established , regardless of whether its transport manager originates in another country;

Article 3

Requirements for engaging in the occupation of road transport operator

Undertakings engaged in the occupation of road transport operator must satisfy the following requirements:

(a)	be effectively and stably established in one of the Member States as provided for in Article 5 ;

(b)	be of good repute as provided for in Article 6 ;

(c)	be of appropriate financial standing as provided for in Article 7 ;

(d)	have the requisite professional competence as provided for in Article 8 .

The conditions to be met in order to satisfy each of these requirements are set out in Chapter II. Notwithstanding this Regulation, Member States may decide to impose additional conditions that undertakings must meet in order to be allowed 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(b) and (d) and also meets the following conditions:

(a)	he or she must effectively and continuously manage the transport activity of the undertaking, and

(b)

have a genuine link to the undertaking, in other words be an employee, partner, director, shareholder or have a similar contractual relationship with the undertaking , or manage it, or, if the undertaking is a natural person, be that same person , or, if the undertaking is a partnership, be entitled to legally represent and make binding decisions on behalf of the partnership ;

(c)	be a resident in a Member State.

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

2.    If an undertaking does not satisfy the requirement as to professional competence provided for in Article 3(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 , provided that:

(a)	it designates another natural person residing in a Member State who satisfies the requirements provided for in Article 3(b) and (d), and is empowered by means of a contract to carry out duties as transport manager on behalf of the undertaking and notifies the competent authority thereof ;

(b)

the contract linking the undertaking with the transport manager specifies the tasks to be performed on a continuous basis by the party concerned, 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, accounting, the assignment of loads or services to drivers and vehicles, and the verification of safety procedures;

(c)

the person designated does not manage, in the capacity of transport manager, the transport activities of more than four different undertakings . The competent authority may decide on the maximum number of vehicles to be managed by the transport manager, which will not be higher than 50 for each transport manager;

(d)	the person designated is independent of the other undertakings which call upon the undertaking to carry out transport operations or which carry out transport operations on behalf of the undertaking .

Chapter II

Conditions to be met

Article 5

Conditions relating to the requirement as to establishment

To satisfy the requirement provided for in Article 3(a) the undertaking must in the Member State concerned:

(a)

have an establishment with premises in which it keeps its business documents in line with the periods of time laid down by law and in particular all its accounting documents, personnel management documents and any other document on secure data supports , to which the authority competent to authorise the pursuit of the occupation must have access in order to verify compliance with the conditions provided for in this Regulation while complying with all relevant standards for the protection of personal data;

(b)	have at its disposal one or more vehicles, whether wholly owned or, for example, under a hire purchase, hire or leasing contract or under a purchase contract, which are registered in that Member State;

(c)	conduct effectively and continuously its operations at an operating centre, situated in that Member State, with the necessary equipment and be able to prove on request where in the Member State of establishment the vehicles are parked when they are not in use.

Article 6

Conditions relating to the requirement as to good repute

1.   For the purposes of Article 3(b), and subject to paragraph 2, Member States shall determine the conditions which an undertaking and a transport manager must meet pursuant to this Regulation in order for either to satisfy the requirement as to good repute.

These conditions shall include the following requirements :

(a)

there are no compelling grounds for doubting the good repute of the transport undertaking, its transport managers or any relevant person, such as conviction or penalties for any serious infringement of national rules in force in the field of: (i) commercial law; (ii) insolvency law; (iii) the pay and employment conditions in the profession; (iv) road traffic; (v) professional liability; and (vi) human or drugs trafficking.

(b)

the transport manager or the transport undertaking has not incurred convictions in one or more of the Member States for serious infringements of Community rules concerning in particular: (i) the driving time and rest periods of drivers, working time, and the installation and use of recording equipment; verification should cover their continuous compliance, the archiving of data and the protection of personal data obtained ; (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 passenger transport; (vi) safety in the carriage of dangerous goods by road; (vii) the installation and use of speed-limiting devices on certain categories of vehicle; (viii) the driving licence; (ix) admission to the occupation.

2.   For the purposes of paragraph 1, subparagraph 2 (b):

(a)

a conviction or penalties incurred by the transport manager or the transport undertaking in one or more of the Member States for the most serious infringements of Community rules, set out in Annex III, shall lead to the loss of good repute after a duly completed administrative procedure and, if appropriate, after a check at the premises of the undertaking unless the competent authority, under exceptional and for duly justified reasons, establishes that this constitutes a disproportionate response. In such a case, the exceptional and duly justified reasons shall be recorded in the national register and indicated in the report referred to in Article 25(1). The measures designed to amend non-essential elements of this Regulation relating to the adaptation of Annex III to take account of the development of the Community acquis in the field of road transport shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 24(3).

(b)

the Commission shall adopt, not later than 1 January 2010 a list of categories, types and degrees of seriousness of infringements which 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 11(2).

The measures designed to amend non-essential elements of this Regulation by supplementing it relating to this list shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 24(3).

To this end and not later than 1 January 2010, 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 as to good repute shall not be satisfied until rehabilitation or any other measure having an equivalent effect has taken place pursuant to the relevant existing national provisions.

Article 7

Conditions relating to the requirement as to financial standing

1.   For the purposes of Article 3(c), an undertaking must be able at all times to meet its financial obligations in the course of the annual accounting year. To this end, the undertaking must demonstrate , on the basis of annual accounts certified by an auditor or a duly accredited person, that it has at its disposal each year capital and reserves totalling at least EUR 9 000 for a single vehicle used and EUR 5 000 for each additional vehicle used.

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.

For the purposes of this Regulation, the value of the euro in those national currencies which are non-participants in the third stage of Monetary Union shall be fixed every year . 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 meaning those defined in the 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 (9).

2.   By way of derogation from paragraph 1, the competent authority may agree that an undertaking may give proof of its financial standing by means of a certificate from one or more banks or other financial institutions including insurance companies providing a joint and several guarantee for the undertaking in the form of a bank guarantee, or any other similar means, in respect of the amounts specified in point (a) of paragraph 1. The bank guarantee or insurance may be called in by the competent authority which authorises the pursuit of the occupation and cannot be released without the agreement of the latter. The competent authority shall also determine the conditions under which the bank guarantee or insurance may be called in and released for the benefit of other creditors.

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 is applied for and not those of any other entities established in any other Member State.

Article 8

Conditions relating to the requirement as to professional competence

1.   For the purposes of Article 3(d), the person or persons concerned shall possess knowledge corresponding to the level of training provided for in Section I of Annex I in the subjects listed therein. It shall be established, by means of a compulsory written examination which, if a Member State so decides, may be supplemented by an oral examination. These examinations shall be organised in accordance with Section II of Annex I.

2.     The persons concerned shall sit the examination in their Member State of residence.

3.   Only the authorities and bodies accredited for this purpose by a Member State in accordance with criteria defined by it may organise the written and oral examinations whereby professional competence can be established. Member States shall regularly verify that the conditions under which the authorities and bodies which they have accredited organise the examinations are in accordance with Annex I.

4.   Member States shall accredit, in accordance with mutually compatible criteria defined by them, the bodies capable of offering applicants high-quality training to prepare them efficiently for the examination, and continuous training so that transport managers who so wish can update their knowledge. Member States shall regularly verify that these bodies at all times fulfil the criteria on the basis of which they were accredited.

5.   Member States may exempt from the examination persons who provide proof of at least 10 years' continuous practical experience, gained prior to the publication of this Regulation, in a transport undertaking at management level.

6.     Member States may promote training as described in Annex I and an examination as described in Article 8, paragraph 1, for transport managers at 10-year intervals to ensure that managers are aware of developments in the sector.

7.     Member States shall ensure that transport managers with practical experience returning to the profession after a five-year period of absence shall undertake the retraining and updating that are necessary to prove their continuous professional competence and their knowledge regarding the current developments of the legislation applicable to this profession.

8.   A Member State may exempt the holders of higher education diplomas or technical education diplomas issued in that Member State and which entail attendance at courses in the subjects listed in Annex I and which they specifically designate to this end from training in the subjects covered by the diplomas and from the examination .

9.   A certificate issued by the authority or body referred to in paragraph 3 must be produced as proof of professional competence. That certificate shall not be transferable to any other natural or legal person . It shall be drawn up in accordance with the model certificate set out in Annex II and bear the engraved stamp or seal of the accredited authority or body which issued it.

10.   The Commission shall adapt Annex I and Annexe II to technical progress. Since these measures are designed to amend non-essential elements of this Regulation, they shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 24(3), as regards Annex I, and in accordance with the regulatory procedure with scrutiny referred to in Article 24(4), as regards Annex II.

11.   Exchanges of experience and information between Member States concerning training, examinations and accreditation shall be actively encouraged, mainly but not exclusively, by the Committee referred to in Article 24 and by any other body that the Commission may designate.

Chapter III

Authorisation and monitoring

Article 9

Competent authorities

1.   Each Member State shall designate one or more competent authorities to ensure that the Regulation is implemented correctly. Those competent authorities shall be empowered to:

(a)	examine applications made by undertakings;

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

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

(d)	carry out the requisite checks to verify whether an undertaking satisfies the requirements provided for 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 10

Examination and registration of applications

1.    A transport undertaking which complies with the requirements provided for 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 provided for in that Article.

2.   The competent authority shall be responsible for updating and maintaining the electronic register referred to in Article 15.

The competent authority shall record in the electronic register referred to in Article 15 the official name of the undertaking, the name of the transport manager designated by it and an indication as to whether he or she is apt for transport management , the address of the establishment, the number of vehicles used and, if the authorisation is valid for international transport, the serial number of the Community licence and that of the certified copies.

3.   The time limit for the examination of an application for authorisations by a competent authority shall be as short as possible and shall not exceed three months.

4.   From 1 January 2012 a competent authority shall verify in case of doubt , when assessing the good repute of an undertaking, that the transport manager(s) designated is not (are not) — at the time of the application — declared, in one of the Member States, unfit to manage the transport activity of an undertaking pursuant to Article 13.

5.   Undertakings with an authorisation to engage in the occupation of road transport operator shall, within 28 days, notify the competent authority which granted the authorisation of any changes in the data referred to in paragraph 2.

Article 11

Checks

1.   The competent authorities shall verify that undertakings which they have authorised to engage in the occupation of road transport operator continue to fulfil the requirements provided for in Article 3. To that end, they shall check every five years that undertakings still fulfil each of those requirements.

The Commission shall adapt the periodicity of regular checks to technical progress, notably the national electronic registers as provided for in Article 15. Since these measures are designed to amend non-essential elements of this Regulation, they shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 24(3).

2.   In addition to the verifications provided for in paragraph 1, the competent authorities shall carry out checks targeting undertakings classed as posing an increased risk under the system established by the Member States pursuant to Article 9 of Directive 2006/22/EC (10) of the European Parliament and of the Council. Member States shall extend this risk classification system to cover all the infringements specified in Article 6 of this Regulation.

3.   A Member State shall carry out the requisite checks to verify whether an undertaking still meets the conditions governing admission to the occupation whenever the Commission so requests. It shall inform the Commission of the results of the checks carried out at the Commission's request and of the measures taken if it is established that the undertaking no longer meets the conditions provided for in this Regulation.

Article 12

Warning procedure and procedure for the withdrawal of authorisations

1.    If the competent authority establishes that an undertaking runs the risk of no longer satisfying the requirements provided for in Article 3 the competent authority shall notify the undertaking thereof. If the competent authority establishes that one of those requirements is no longer satisfied, the competent authority may grant a time limit for the undertaking to rectify the situation within the following limits:

(a)

a time limit not exceeding three months for the recruitment of a replacement for the transport manager if the latter no longer satisfies the requirements as to good repute or professional competence, which may be extended by three months in the event of the death or physical incapacity of the transport manager;

(b)	a time limit not exceeding three 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 if the requirement as to financial standing is not satisfied, in order to demonstrate, on the basis of a financial plan with realistic assumptions, that the requirement as to financial standing will once again be satisfied on a permanent basis as from the next accounting year.

2.    The competent authority may require undertakings whose authorisation has been suspended or withdrawn to ensure that their transport managers follow the training course and pass the examination referred to in Article 8 prior to any rehabilitation measure.

3.    If the competent authority establishes that the undertaking no longer satisfies one or more of the requirements provided for in Article 3, it shall suspend or withdraw the authorisation to engage in the occupation of road transport operator granted to an undertaking no later than the time limits referred to in paragraph 1.

Article 13

Declaration of unfitness of the transport manager

1.   In the event of serious infringements as referred to in Article 6(1)(b) the seriousness of which is well established by dint of their systematic, premeditated nature or by attempts to hide the facts and for which the transport manager is responsible , the competent authority shall declare the transport manager of an undertaking whose authorisation has been withdrawn unfit to manage the transport activity of an undertaking.

2.   Unless and until a rehabilitation measure in accordance with the relevant national provisions has been taken, the certificate of professional competence referred to in Article 8(9) of the person declared to be unfit to manage transport activities shall no longer be valid in any Member State.

Article 14

Decisions of the competent authorities and appeals

1.    Negative decisions taken by the competent authorities in 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 the transport manager shall state the reasons on which they are based.

Such decisions shall take into account the information available concerning infringements committed in other Member States by the undertaking or one of the transport managers which are such as to detract from the good repute of the undertaking, and 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 , including to a court of law .

Chapter IV

Simplification and administrative cooperation

Article 15

National electronic registers

1.   For the purposes of implementing this Regulation, and in particular Articles 10, 11, 12, 13 and 25, each Member State shall keep a national electronic register of road transport undertakings and transport managers 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 , which shall also be responsible for the use and updating of this data. The national electronic register shall contain one public section and one confidential section. The electronic register shall be accessible on line to all the competent authorities of the Member State in question, as referred to in Article 9. The confidential section of the electronic register shall be accessible to the authorities other than the competent authorities only if they are duly endowed with powers relating to supervision and the imposition of sanctions in the road transport sphere and whose officials are sworn.

Not later than 1 January 2010, the Commission shall define, together with Member States the minimal structure of the data which have to be entered in the national electronic register.

The section of the national electronic register related to the road transport undertakings of a Member State shall contain 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 the legal representative;

(d)

the type of authorisation, the number of vehicles which it covers and, where appropriate, the serial number of the Community licence and that of the certified copies , and the vehicle registration mark of each vehicle being operated under the authorisation outside of the undertaking's Member State of establishment;

(e)	the number, the category and the type of serious infringements , which have resulted in a sanction in the last two years;

(f)	the names of any persons declared to be unfit to manage the transport activity of an undertaking in the last two years, and the rehabilitation measures applicable.

The section of the national electronic register related to the road transport managers of a Member State shall contain the following data:

(a)	the name of the transport manager declared to be fit to manage the transport activity or an undertaking;

(b)	the name, legal form and the address of the undertaking or undertakings managed;

Member States may choose to keep the information contained in subparagraph 3 (e) and (f) 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 10 working days after receiving the request.

In any case, the information contained in subparagraph 3 (e) and (f) 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 sphere and whose officials are sworn or otherwise are under a formal obligation of secrecy.

2.   Data concerning an undertaking the authorisation of which has been suspended or withdrawn shall remain in the register for two years as from the expiry of the suspension or withdrawal of the licence and shall thereafter be immediately removed .

Data concerning any person declared to be unfit for the occupation shall remain in the register as long as the good repute of this person is not re-established pursuant to the provisions set out in Article 6(3). After such rehabilitation or equivalent measures have been taken, the data shall be immediately removed.

Such data shall specify the reasons for the suspension or withdrawal of the authorisations or the declaration of unfitness and the corresponding duration.

3.   Member States shall take all necessary measures to ensure that all the data contained in the electronic register are kept up to date and are accurate, in particular those referred to in paragraph 1, subparagraph 3, (e) and (f)

4.   Member States shall take all necessary measures to ensure that the national electronic registers are interconnected throughout the Community no later than 31 December 2010. Interconnection shall be implemented in such a way that a competent authority in any Member State can consult the electronic registers of all the Member States. The Commission shall take any initiative necessary in order to facilitate the implementation of this paragraph.

5.   For the purposes of paragraph 4, the common rules concerning the format of the data exchanged, concerning the technical procedures for automatic consultation of the electronic registers of the other Member States shall be adopted by the Commission in accordance with the advisory procedure referred to in Article 24(2).

Article 16

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 are recorded or it is planned to forward such data 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;

(b)	all persons have the right of access to data relating to them with the authority responsible for processing the data. This right shall be ensured without constraint, at reasonable intervals and without excessive delay or cost for the applicant;

(c)	all persons have the right to obtain the rectification, erasure or blocking of incomplete or inaccurate data relating to them;

(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 those data.

Article 17

Administrative cooperation between Member States

1.   Where a Member State detects an infringement committed by an undertaking the authorisation of which has been issued by a competent authority in another Member State, and the seriousness of the infringement could result in the suspension or withdrawal of the authorisation pursuant to this Regulation, the Member State shall communicate to the other Member State all the information in its possession concerning the infringement and any sanctions which it has imposed.

2.   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 Commission the names and addresses of their national contact points by […] at the latest. The Commission shall draw up a list of all the contact points and forward it to the Member States.

3.   Member States which exchange information in the framework of this Regulation shall use the national contact points designated pursuant to paragraph 2.

4.   Member States which exchange information concerning the infringements referred to in Article 6(2) or concerning any transport managers declared to be unfit shall comply with the procedure and time limits referred to in Article 12(1) of Regulation (EC) No…/2008 [on common rules for access to the international road haulage market], or, as appropriate, Article 23(1) of Regulation (EC) No…/2008 [on common rules for access to the market for coach and bus services]. A Member State which receives notification of a serious infringement which has resulted in a conviction from another Member State shall record that infringement in its national electronic register.

Chapter V

Mutual recognition of diplomas, certificates and other evidence of formal qualifications

Article 18

Certificates of good repute and equivalent documents

1.   Without prejudice to Article 10(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(s) 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 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 facts taken into consideration in the Member State of establishment.

3.   If a document required in accordance with paragraphs 1 and 2 has not been issued by the Member State(s) where the transport manager used to reside , it may be replaced by a declaration on oath or by a solemn declaration made by the person concerned before a competent judicial or administrative authority or, where appropriate, 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.   Documents issued in accordance with paragraphs 1 and 2 shall not be accepted if produced more than three months after their date of issue. This condition shall apply also to declarations made in accordance with paragraph 3.

Article 19

Certificates relating to financial standing

Where a Member State imposes on its nationals certain conditions relating to financial standing in addition to those provided for in Article 7, that 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 20

Certificates of professional competence

1.   Member States shall recognise as sufficient proof of professional competence certificates complying with the model certificate set out in Annex II which are issued by the authorities or bodies accredited for that purpose.

2.   Certificates issued before […] as proof of professional competence pursuant to the provisions in force until that date shall be deemed equivalent to the certificate the model for which is set out in Annex II and shall be recognised as proof of professional competence in all Member States. Member States shall inform the Commission of the certificates they recognise as proof of professional competence for the purposes of this Article.

Chapter VI

Final provisions

Article 21

Penalties

1.   Member States shall determine the system of penalties for infringements of the provisions of this Regulation and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided for must be effective, proportionate and dissuasive. Member States shall give notification of the provisions in question not later than 1 January 2012 and shall give notification of any subsequent amendment concerning them as soon as possible.

2.   The penalties referred to in paragraph 1 shall comprise in particular the suspension of the authorisation to engage in the occupation, the withdrawal of such authorisation, and the declaration of the unfitness of the transport managers involved. They shall also comprise the confiscation of any vehicle used by any undertaking which carries out transport operations without having an authorisation as provided for in this Regulation.

Article 22

Transitional provisions

Undertakings which, before the date of entry into force of this Regulation, have an authorisation to engage in the occupation of road transport operator shall comply with the provisions of this Regulation no later than two years after that date.

Article 23

Mutual assistance

The competent authorities in the Member States shall cooperate closely and shall grant each other mutual assistance for the purposes of applying this Regulation. They shall exchange information on convictions for any serious infringements, or other specific facts 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 24

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  (11).

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.

4.   Where reference is made to this paragraph, Articles 5a(1) to (4) and (5)(b) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. The time-limits laid down in of Article 5a(3)(c), (4)(b) and (4)(e) of Decision 1999/468/EC shall be one month.

Article 25

Reports on the pursuit of the occupation

1.   Every two years the 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 analysis 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;

(c)	the number of certificates of professional competence issued each year;

(d)	core statistics relating to the national electronic registers and their use by competent authorities ; and

(e)

an analysis of the exchanges of information with the other Member States, including in particular the annual number of established infringements notified to other Member States and the replies received pursuant to Article 17(3), and the annual number of requests and replies received pursuant Article 17(4).

2.   The Commission shall draw up every two years, on the basis of these national reports, a report for the attention of the European Parliament and 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. 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 2006on the harmonisation of certain social legislation relating to transport  (12).

3.     By 1 June 2009 the Commission shall report on the likely impact of extending the scope of this Regulation to include commercial transport with vehicles whose design and equipment are appropriate and which are intended to carry up to nine persons including the driver. The Commission shall if necessary take the relevant initiatives.

Article 26

List of competent authorities

Each Member State shall forward to the Commission by 1 June 2009 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 accredited authorities or bodies responsible for organising the examinations 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 27

Communication of national measures

Member States shall communicate to the Commission the text of the laws, regulations or administrative provisions of national law which they adopt in the field governed by this Regulation no later than six days after their date of adoption and for the first time by1 June 2009.

Article 28

Repeal

Directive 96/26/EC is hereby repealed.

References to the repealed Directive shall be construed as references to this Regulation.

Article 29

Entry into force

This Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

It shall apply with effect from 1 June 2009

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(1)  OJ C …

(2)  OJ C …

(3)  Position of the European Parliament of 21 May 2008.

(4)  OJ L 124, 23.5.1996, p. 1. .

(5)  OJ L …

(6)  OJ L …

(7)  OJ L 281, 23.11.1995, p. 31.

(8)  OJ L 184, 17.7.1999, p. 23. .

(9)  OJ L 222, 14.8.1978, p. 11 .

(10)  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 and repealing Council Directive 88/599/EEC (OJ L 102, 11.4.2006, p. 35).

(11)  OJ L 370, 31.12.1985, p. 8. .

(12)  OJ L 102, 11.4.2006, p. 1.