61978J0021

1 . TRANSPORT - COMMON POLICY - ROAD PASSENGER TRANSPORT OPERATOR - ADMISSION TO THE OCCUPATION - REQUIREMENT RELATING TO GOOD REPUTE - DEFINITION - DISCRETION OF THE MEMBER STATES

( COUNCIL DIRECTIVE NO 74/562 , ART . 2 ( 2 ))

2 . MEASURES ADOPTED BY AN INSTITUTION - DIRECTIVE - DIRECT EFFECT

( EEC TREATY , ART . 189 )

3 . TRANSPORT - COMMON POLICY - ROAD PASSENGER TRANSPORT OPERATOR - ENGAGING IN THE OCCUPATION - AUTHORIZATION BEFORE 1 JANUARY 1978 - REQUIREMENT RELATING TO GOOD REPUTE - VERIFICATION BY THE NATIONAL AUTHORITIES

( COUNCIL DIRECTIVE NO 74/562 , ART . 2 ( 1 ) ( A ), ART . 4 ( 1 ) AND ART . 5 ( 2 ))

1 . ARTICLE 2 ( 2 ) OF COUNCIL DIRECTIVE NO 74/562 LEAVES THE MEMBER STATES A WIDE MARGIN OF DISCRETION AS TO THE REQUIREMENTS RELATING TO GOOD REPUTE IMPOSED ON APPLICANTS WISHING TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR . A PROVISION OF NATIONAL LAW WHEREBY AN APPLICANT WHO HAS A CRIMINAL CONVICTION MAY BE REGARDED AS NOT BEING OF GOOD REPUTE IF THE CRIMINAL CONDUCT PROVIDES GROUNDS FOR CONSIDERING THAT THERE IS IMMINENT DANGER OF MISUSE OF HIS OCCUPATION CANNOT BE REGARDED AS EXCEEDING THE MARGIN OF DISCRETION LEFT TO A MEMBER STATE .

2 . IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED TO A DIRECTIVE BY ARTICLE 189 TO EXCLUDE , IN PRINCIPLE , THE POSSIBILITY THAT THE OBLIGATION WHICH IT IMPOSES MAY BE INVOKED BY THOSE CONCERNED . IN PARTICULAR , WHERE THE COMMUNITY AUTHORITIES HAVE , BY DIRECTIVE , IMPOSED ON MEMBER STATES THE OBLIGATION TO PURSUE A PARTICULAR COURSE OF CONDUCT , THE EFFECTIVENESS OF SUCH AN ACT WOULD BE WEAKENED IF INDIVIDUALS WERE PREVENTED FROM RELYING ON IT BEFORE THEIR NATIONAL COURTS AND IF THE LATTER WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW .

3 . ALTHOUGH PERSONS WHO BEFORE 1 JANUARY 1978 HAD OBTAINED AUTHORIZATION TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR ARE EXEMPT FROM THE REQUIREMENT THEMSELVES TO FURNISH PROOF THAT THEY SATISFY THE REQUIREMENT RELATING TO GOOD REPUTE LAID DOWN IN ARTICLE 2 ( 1 ) ( A ) OF THE DIRECTIVE , THE NATIONAL AUTHORITIES NEVERTHELESS REMAIN COMPETENT TO VERIFY IN EACH CASE THAT THE SAID REQUIREMENT IS FULFILLED .

IN CASE 21/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY KOEBENHAVNS BYRET ( COPENHAGEN CITY COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

KNUD OLUF DELKVIST

AND

ANKLAGEMYNDIGHEDEN ( DANISH PUBLIC PROSECUTOR ), REPRESENTING THE LANDSNAEVNET FOR OMNIBUSKOERSEL ( NATIONAL MOTORBUS TRANSPORT BOARD )

ON THE INTERPRETATION AND VALIDITY OF ARTICLE 2 ( 1 ) ( A ) OF COUNCIL DIRECTIVE NO 74/562/EEC OF 12 NOVEMBER 1974 ON ADMISSION TO THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS ( OFFICIAL JOURNAL 1974 , L 308 , P . 23 ), IN PARTICULAR THE CONCEPT OF ' ' GOOD REPUTE ' ' CONTAINED IN THAT ARTICLE ,

1BY AN ORDER OF 10 FEBRUARY 1978 , WHICH WAS RECEIVED AT THE COURT ON 24 FEBRUARY 1978 , KOEBENHAVNS BYRET ( COPENHAGEN CITY COURT ) REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE INTERPRETATION AND VALIDITY OF ARTICLE 2 ( 1 ) ( A ) OF COUNCIL DIRECTIVE NO 74/562/EEC OF 12 NOVEMBER 1974 ON ADMISSION TO THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS ( OFFICIAL JOURNAL 1974 , L 308 , P . 23 ), IN PARTICULAR THE CONCEPT OF ' ' GOOD REPUTE ' ' CONTAINED IN THAT ARTICLE .

2THESE QUESTIONS WERE RAISED IN THE CONTEXT OF AN ACTION CONCERNING THE REJECTION BY THE COMPETENT DANISH AUTHORITY ON 29 DECEMBER 1976 OF AN APPLICATION BY A ROAD PASSENGER TRANSPORT OPERATOR ( TOURIST CATEGORY ) FOR THE RENEWAL OF HIS TRANSPORT LICENCE .

3THE GROUNDS FOR THAT REJECTION WERE THAT THE APPLICANT ' S PREVIOUS RECORD SHOWED THAT HE HAD SEVERAL CONVICTIONS FOR THEFT AND BURGLARY AND THAT HIS CRIMINAL CONDUCT PROVIDED GROUNDS FOR CONSIDERING THAT THERE WAS IMMINENT DANGER OF MISUSE OF HIS POSITION AS A PASSENGER TRANSPORT OPERATOR .

4THE COMPETENT DANISH AUTHORITY APPLIED THE PROVISIONS OF ARTICLE 78 ( 2 ) OF THE DANISH PENAL CODE ( STRAFFELOV ), ACCORDING TO WHICH A PERSON MAY BE PROHIBITED ON GROUNDS OF CRIMINAL CONDUCT FROM ENGAGING IN AN OCCUPATION WHICH REQUIRES SPECIAL PUBLIC AUTHORIZATION OR APPROVAL ONLY IF THE CRIMINAL CONDUCT PROVIDES GROUNDS FOR CONSIDERING THAT THERE IS IMMINENT DANGER OF MISUSE OF THE POSITION OR OCCUPATION WHICH HE WISHES TO KEEP OR TAKE UP .

5FOR THE PURPOSE OF HARMONIZING THE LEGISLATION OF THE MEMBER STATES IN THE MATTER OF TRANSPORT , ON 12 NOVEMBER 1974 THE COUNCIL ADOPTED DIRECTIVE NO 74/562/EEC ON ADMISSION TO THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS .

6ARTICLE 2 OF THAT DIRECTIVE PROVIDES THAT :

' ' ( 1 ) NATURAL PERSONS OR UNDERTAKINGS WISHING TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR SHALL :

( A ) BE OF GOOD REPUTE ;

( 2)PENDING CO-ORDINATION AT A LATER DATE , EACH MEMBER STATE SHALL DETERMINE THE PROVISIONS RELATING TO GOOD REPUTE WHICH MUST BE SATISFIED BY THE APPLICANT AND , WHERE APPROPRIATE , THE NATURAL PERSONS REFERRED TO IN PARAGRAPH ( 1 ).

. . . ' '

7ARTICLE 6 ( 1 ) PROVIDES THAT THE MEMBER STATES SHALL , AFTER CONSULTING THE COMMISSION , IMPLEMENT THE DIRECTIVE BEFORE 1 JANUARY 1977 .

8KOEBENHAVNS BYRET HAS REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :

1 . IS THE COUNCIL DIRECTIVE OF 12 NOVEMBER 1974 LAWFUL , VALID , DIRECTLY BINDING ON DANISH COURTS AND APPLICABLE TO RELATIONS BETWEEN A DANISH NATIONAL AND THE DANISH PUBLIC AUTHORITIES?

2 . DOES THE COUNCIL DIRECTIVE OF 12 NOVEMBER 1974 COVER A LEGAL SITUATION SUCH AS THE PRESENT CASE?

3 . IF QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE AN ANSWER TO THE FOLLOWING PRELIMINARY QUESTION IS REQUESTED , NAMELY MUST IT BE CONSIDERED THAT THE COUNCIL DIRECTIVE OF 12 NOVEMBER 1974 HAS AMENDED ARTICLE 78 ( 2 ) AND ( 3 ) OF THE PENAL CODE IN THAT THE STIPULATION IN THAT PROVISION THAT CRIMINAL CONDUCT MAY ONLY ENTAIL LOSS OF CIVIL RIGHTS IF SUCH CONDUCT PROVIDES GROUNDS FOR CONSIDERING THAT THERE IS IMMINENT DANGER OF MISUSE OF THE POSITION OF THE PERSON CONCERNED HAS BEEN SUPERSEDED WHOLLY OR IN PART SO THAT THE PROVISION RELATING TO GOOD REPUTE IN THE COUNCIL DIRECTIVE HAS BEEN SUBSTITUTED FOR THE PROVISION IN ARTICLE 78 ( 2 ) AND ( 3 ) OF THE PENAL CODE?

4 . ( A ) DOES ARTICLE 78 ( 2 ) AND ( 3 ) OF THE DANISH PENAL CODE , WHICH IS WORDED IN NEGATIVE TERMS , NAMELY THAT A PERSON CAN BE DEPRIVED OF THE RIGHT TO ENGAGE IN AN OCCUPATION WICH REQUIRES SPECIFIC PUBLIC AUTHORIZATION OR APPROVAL ONLY IF HIS CONDUCT PROVIDES GROUNDS FOR CONSIDERING THAT THERE IS IMMINENT DANGER OF MISUSE OF HIS POSITION OR OCCUPATION , SATISFY THE REQUIREMENTS RELATING TO GOOD REPUTE WHICH , ACCORDING TO THE COUNCIL DIRECTIVE , THE MEMBER STATES MUST LAY DOWN FOR PERSONS IN THIS SITUATION SINCE THE MEMBER STATES , PENDING CO-ORDINATION AT A LATER DATE , REMAIN FREE THEMSELVES TO LAY DOWN A MORE DETAILED DEFINITION OF THE REQUIREMENT RELATING TO GOOD REPUTE?

( B)IS THE PRESENT CASE COVERED BY THE TRANSITIONAL PROVISIONS IN ARTICLE 4 ( 1 ) SO THAT , BECAUSE THE APPLICANT WAS AUTHORIZED BEFORE 1 JANUARY 1978 UNDER THE DANISH PROVISIONS TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR WITHIN DENMARK , HE IS EXEMPT FROM THE REQUIREMENT TO FURNISH PROOF THAT HE FULFILS INTER ALIA THE REQUIREMENT RELATING TO GOOD REPUTE CONTAINED IN ARTICLE 2 ( 1 ) ( A)?

5 . IF THE ANSWER TO QUESTION 4 ( B ) IS IN THE AFFIRMATIVE , DOES THIS IMPLY THAT THE CASE CAN BE DECIDED BY KOEBENHAVNS BYRET WITHOUT REGARD TO THE PROVISIONS LAID DOWN IN THE COUNCIL DIRECTIVE OF 12 NOVEMBER 1974 OR DOES ARTICLE 5 ( 2 ), CONCERNING THE DUTY OF MEMBER STATES TO WITHDRAW AUTHORIZATIONS WHEN THE CONDITIONS IN ARTICLE 2 ( 1 ) ( A ) ( B ) AND ( C ) ARE NO LONGER SATISFIED , MEAN THAT IT IS IN ANY EVENT NECESSARY TO FIX REQUIREMENTS RELATING TO THE GOOD REPUTE OF THE APPLICANT?

THE FIRST PART OF QUESTION 1

9THE COUNCIL DIRECTIVE WAS ADOPTED IN ACCORDANCE WITH ARTICLE 75 OF THE TREATY FOR THE IMPLEMENTATION OF A COMMON TRANSPORT POLICY .

10THE AIM PURSUED IN THE DIRECTIVE , NAMELY THE INTRODUCTION OF COMMON RULES FOR ADMISSION TO THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS IN ORDER TO ENSURE THAT ROAD PASSENGER TRANSPORT OPERATORS ARE BETTER QUALIFIED , IN THE INTERESTS OF USERS , TRANSPORT OPERATORS AND THE ECONOMY AS A WHOLE , IS UNQUESTIONABLY IN ACCORDANCE WITH THE OBJECTIVES OF THE SAID ARTICLE 75 .

11THEREFORE THE ANSWER TO THE FIRST PART OF QUESTION 1 MUST BE THAT CONSIDERATION OF THE DIRECTIVE HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY .

QUESTIONS 3 AND 4 ( A )

12IT WILL BE CONVENIENT TO DEAL WITH QUESTIONS 3 AND 4 ( A ) BEFORE THE OTHERS .

13ARTICLE 2 ( 2 ) OF THE DIRECTIVE PROVIDES THAT PENDING CO-ORDINATION AT A LATER DATE , EACH MEMBER STATE SHALL DETERMINE THE PROVISIONS RELATING TO GOOD REPUTE WHICH MUST BE SATISFIED BY THE APPLICANT .

14THAT PROVISION LEAVES THE MEMBER STATES A WIDE MARGIN OF DISCRETION AS TO THE REQUIREMENTS RELATING TO GOOD REPUTE IMPOSED ON APPLICANTS WISHING TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR .

15A PROVISION OF NATIONAL LAW WHEREBY AN APPLICANT WHO HAS A CRIMINAL CONVICTION MAY BE REGARDED AS NOT BEING OF GOOD REPUTE IF THE CRIMINAL CONDUCT PROVIDES GROUNDS FOR CONSIDERING THAT THERE IS IMMINENT DANGER OF MISUSE OF HIS OCCUPATION CANNOT BE REGARDED AS EXCEEDING THE MARGIN OF DISCRETION LEFT TO A MEMBER STATE .

16THEREFORE THE ANSWER TO QUESTIONS 3 AND 4 ( A ) SHOULD BE THAT A STATUTORY PROVISION SUCH AS ARTICLE 78 OF THE DANISH PENAL CODE IS TO BE REGARDED AS A PROVISION VALIDLY ENACTED BY THE STATE WITHIN THE LIMITS OF THE DIRECTIVE .

QUESTION 4 ( B )

17ARTICLE 4 ( 1 ) OF THE DIRECTIVE PROVIDES THAT : ' ' NATURAL PERSONS AND UNDERTAKINGS FURNISHING PROOF THAT BEFORE 1 JANUARY 1978 THEY WERE AUTHORIZED UNDER NATIONAL REGULATIONS IN A MEMBER STATE TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR IN NATIONAL AND/OR INTERNATIONAL TRANSPORT OPERATIONS SHALL BE EXEMPT FROM THE REQUIREMENT TO FURNISH PROOF THAT THEY SATISFY THE PROVISIONS LAID DOWN IN ARTICLE 2 ' ' .

18QUESTION 4 ( B ) RAISES THE GENERAL ISSUE OF THE EFFECTS OF A DIRECTIVE ADOPTED UNDER ARTICLE 189 OF THE TREATY .

19ON THIS ISSUE , THE COURT HAS ALREADY HELD , IN ITS JUDGMENT OF 1 FEBRUARY 1977 IN CASE 51/76 ( NEDERLANDSE ONDERNEMINGEN ( 1977 ) ECR 113 ) INTER ALIA , THAT IF , BY VIRTUE OF THE PROVISIONS OF ARTICLE 189 , REGULATIONS ARE DIRECTLY APPLICABLE AND , CONSEQUENTLY , MAY BY THEIR VERY NATURE HAVE DIRECT EFFECTS , IT DOES NOT FOLLOW FROM THIS THAT OTHER CATEGORIES OF ACTS MENTIONED IN THAT ARTICLE CAN NEVER HAVE SIMILAR EFFECTS .

20IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED TO A DIRECTIVE BY ARTICLE 189 TO EXCLUDE , IN PRINCIPLE , THE POSSIBILITY THAT THE OBLIGATION WHICH IT IMPOSES MAY BE INVOKED BY THOSE CONCERNED .

21IN PARTICULAR , WHERE THE COMMUNITY AUTHORITIES HAVE , BY DIRECTIVE , IMPOSED ON MEMBER STATES THE OBLIGATION TO PURSUE A PARTICULAR COURSE OF CONDUCT , THE EFFECTIVENESS OF SUCH AN ACT WOULD BE WEAKENED IF INDIVIDUALS WERE PREVENTED FROM RELYING ON IT BEFORE THEIR NATIONAL COURTS AND IF THE LATTER WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW .

22THEREFORE IT IS TO BE INFERRED THAT EVEN IF NATIONAL LAW DOES NOT CONTAIN ANY PROVISION ANALOGOUS TO ARTICLE 4 OF THE DIRECTIVE , A NATIONAL AUTHORITY CANNOT , SUBJECT TO APPLICATION OF ARTICLE 5 OF THE DIRECTIVE , REQUIRE AN APPLICANT WISHING TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR TO FURNISH PROOF THAT HE SATISFIES THE REQUIREMENTS RELATING TO GOOD REPUTE , IF HE FURNISHES PROOF THAT HE WAS AUTHORIZED TO ENGAGE IN THAT OCCUPATION BEFORE 1 JANUARY 1978 .

QUESTION 5

23HOWEVER , ARTICLE 5 ( 2 ) OF THE DIRECTIVE PROVIDES THAT MEMBER STATES SHALL ENSURE THAT THE COMPETENT AUTHORITIES WITHDRAW THE AUTHORIZATION TO PURSUE THE OCCUPATION OF PASSENGER TRANSPORT OPERATOR IF THEY ESTABLISH THAT THE PROVISIONS OF ARTICLE 2 ( 1 ) ( A ), ( B ) OR ( C ) ARE NO LONGER SATISFIED . IN THAT CASE HOWEVER , THEY ARE TO ALLOW SUFFICIENT TIME FOR A SUBSTITUTE TO BE APPOINTED .

24IF THE AUTHORITIES CONSIDER THAT APPLICANTS DO NOT FULFIL THE REQUIREMENTS RELATING TO GOOD REPUTE , THEY MUST THEREFORE REFUSE THEM RENEWAL OF THEIR TRANSPORT LICENCE , BUT WHEN TRANSPORT OPERATORS COMING WITHIN ARTICLE 4 ( 1 ) OF THE DIRECTIVE ARE THE SUBJECT OF VERIFICATION , THEY CANNOT BE OBLIGED TO FURNISH SPECIAL PROOF .

25THEREFORE THE ANSWER TO QUESTION 5 MUST BE THAT ALTHOUGH PERSONS WHO BEFORE 1 JANUARY 1978 HAD OBTAINED AUTHORIZATION TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR ARE EXEMPT FROM THE REQUIREMENT THEMSELVES TO FURNISH PROOF THAT THEY SATISFY THE REQUIREMENT RELATING TO GOOD REPUTE LAID DOWN IN ARTICLE 2 ( 1 ) ( A ) OF THE DIRECTIVE , THE NATIONAL AUTHORITIES NEVERTHELESS REMAIN COMPETENT TO VERIFY IN EACH CASE THAT THE SAID REQUIREMENT IS FULFILLED .

26THE ANSWERS GIVEN MAKE IT UNNECESSARY TO REPLY TO THE OTHER QUESTIONS .

COSTS

27THE COSTS INCURRED BY THE DANISH GOVERNMENT , THE ITALIAN GOVERNMENT , THE NETHERLANDS GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

28AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY KOEBENHAVNS BYRET BY AN ORDER OF 10 FEBRUARY 1978 , HEREBY RULES :

1 . CONSIDERATION OF COUNCIL DIRECTIVE NO 74/562/EEC OF 12 NOVEMBER 1974 HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY .

2 . A STATUTORY PROVISION SUCH AS ARTICLE 78 OF THE DANISH PENAL CODE IS TO BE REGARDED AS A PROVISION VALIDLY ENACTED BY THE STATE WITHIN THE LIMITS OF THE DIRECTIVE .

3 . ALTHOUGH PERSONS WHO BEFORE 1 JANUARY 1978 HAD OBTAINED AUTHORIZATION TO ENGAGE IN THE OCCUPATION OF ROAD PASSENGER TRANSPORT OPERATOR ARE EXEMPT FROM THE REQUIREMENT THEMSELVES TO FURNISH PROOF THAT THEY SATISFY THE REQUIREMENT RELATING TO GOOD REPUTE LAID DOWN IN ARTICLE 2 ( 1 ) ( A ) OF THE DIRECTIVE , THE NATIONAL AUTHORITIES REMAIN COMPETENT TO VERIFY IN EACH CASE THAT THE SAID REQUIREMENT IS FULFILLED .