Explanatory Memorandum to COM(2007)265 - Access to the market in the carriage of goods by road within the EC to or from the territory of a Member State or passing across the territory of one or more Member States - Main contents
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| dossier | COM(2007)265 - Access to the market in the carriage of goods by road within the EC to or from the territory of a Member State or passing ... |
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| source | COM(2007)265  |
| date | 23-05-2007 |
Directive 96/26/EC on admission to the occupation of road transport operator, Regulations (EEC) No 881/92, (EEC) No 3118/93, (EEC) No 684/92, and (EC) No 12/98 on access to the road transport market form the pillars of the internal market in road transport.
This legislative framework has allowed balanced development of the internal market. The directive introduced minimum quality standards which must be met in order to enter the profession, while the four regulations liberalised international road haulage and occasional passenger services and established regulated competition between regular passenger services and for cabotage haulage operations by non-resident carriers. Operators have developed and diversified their services, responding more closely to customers' needs for just-in-time or specialised services. The sector as a whole has started to move towards consolidation on a constantly expanding market.
The experience shows that certain measures of this legislative framework are unequally applied and enforced because of unclear or incomplete legal provisions. As regards freight transport by road this is the case with Regulations (EEC) No 881/92, (EEC) No 3118/93 and Directive 2006/94/EC (which is the codification of the First Council Directive of 23 July 1962). On certain aspects, road hauliers have to cope with different national rules and a degree of legal uncertainty, which may entail for them additional cost when they operate in several Member States.
The recast of these Regulations is therefore to enhance the clarity, readability and enforceability of the current rules.120
Regulation (EEC) No 881/92 establishes the freedom of international carriage of goods by road for hire and reward for the undertakings which hold a Community licence while the first Council Directive identifies certain transports which are exempted from all sort of authorisations. Regulation (EEC) No 3118/93 allows undertakings which hold a Community licence granted by a Member State to provide road haulage services within other Member States under the condition that this service is provided on a temporary basis. Community licences can be delivered only to undertakings established in a Member State which satisfy minimum requirements in terms of good repute, financial standing and professional capacity in accordance with Directive 96/26/EC.
The Commission had announced in its legislative programme for 2006 its intention to examine more in detail these rules and if needed to make them simpler, clearer and more enforceable. After several studies, a public consultation and an impact assessment, it appears that the lack of clarity or incompleteness of the current provisions give rise to inconsistencies, enforcement difficulties and unnecessary administrative burdens in the following areas:
- scope of application of the Regulation on transports by Community hauliers to and from third countries;
- difficulties in implementing the concept of temporary cabotage; despite an interpretative communication published in 2005 on the basis of the Court of Justice definition of 'temporary' in connection with the freedom of services, difficulties have remained and Member States tend to implement rules which are divergent, difficult to enforce or which impose an additional administrative burden;
- ineffectiveness of the exchange of information between Member States although already provided for in the current rules; as a result, undertakings which operate on the territory of a Member State other than their Member State of establishment hardly risk any administrative sanctions, as a result of which the competition might be distorted between these undertakings less inclined to comply with rules and the others;
- heterogeneity of the various control documents (Community licence, certified copies and driver attestation) which creates problems during the roadside checks and often leads to considerable time losses for operators.
The proposal aims at revising and consolidating Regulations (EEC) No 881/92, (EEC) No 3118/93 and Directive 2006/94/EC.
The proposal improves the efficiency of the internal market of road haulage by enhancing the legal certainty, cutting administrative costs and allowing a fairer competition. It enables the customers of road transport, hence the economy as a whole, since road transport has a key role in the supply and distribution chains of the European industry, to reap more benefits from the internal market. It contributes consequently to the attainment of the objectives of the Lisbon strategy by strengthening the competitiveness of Europe.
The new regulation contributes indirectly to improving road safety by a more effective monitoring of undertakings which operate in several Member States.
This proposal falls under the programme “better regulation” and is in conformity with the commitment taken by the Commission to simplify and update the acquis. A particular attention was given to simplification and to greater coherence of the legal provisions of Regulations (EEC) No 881/92 and (EEC) No 3118/93 with the ones contained in the proposed recast of Directive 96/26/EC laying down the basic conditions to be authorised to the profession and for their monitoring.
Consultation methods used, principal sectors concerned and the respondents' general profile
Before drafting this proposal a public consultation exercise was conducted in order to gather as many comments and suggestions as possible from the individuals and bodies concerned. This consultation, organised jointly with the one on admission to the profession, used a questionnaire which was published on internet and sent to all the organisations which represent at national or European level the key stakeholders.
The Commission received 67 contributions from national authorities, international and national associations of road operators, users, employees or various interest groups and individual companies. The Commission discussed the key issues addressed in this recast in the framework of the social dialogue with the social partners on 5 September 2006. On 7 November 2006 a consultation meeting with stakeholders was held in Brussels with the participation of delegations from 42 organisations representing the industry plus 37 observers from national administrations.
The respondents generally shared the view that there is a need for further simplification and clarification of the current regulatory framework for the road transport market. One aspect repeatedly highlighted was the need to render the current rules, notably the ones on access to the market of road haulage more easily and effectively enforceable. It emerges clearly from the consultation the other following conclusions:
- goods transport and passenger transport by road should remain regulated in two separate sets of rules. These are two different types of transport and stakeholders feel that they do not have sufficient commonalities to treat them in one legal text;
- there is almost unanimity among them that a simple, clear and enforceable definition of cabotage needs to be found. As regards the actual solution, the replies are – not surprisingly – quite diverse. However, there seems to be large support for the approach to link cabotage to an international journey, hence to avoid empty runs;
- many contributions pointed out the need for applying correctly the existing rules and have them enforced properly. A better cooperation between national enforcement authorities should take place, which would require the setting-up of an EU-wide register of licensed operators or database of Community licences;
- there has also been a clear support to further standardise the models of Community licence, certified copies and driver attestation.
The summary of the received answers to the public consultation, complete text of the individual answers and report of the hearing of 7 November 2006 are available on the following site: ec.europa.eu/transport/road/consultations .
The stakeholder consultation was accompanied by an independent expert, Prof. Brian Bayliss, co-chairman of the Committee of Enquiry on Road Transport which, in July 1994, had elaborated a comprehensive report on the state of completion of the internal market in road transport and of the work necessary to complete it.
The impact analysis carried out to prepare this proposal covered the recast of both the rules on admission to the profession and the ones on access to the market, in view of their close links and in view of their overlaps.
The impact assessment built on various studies carried out during 2004, 2005 and 2006 i It was the result of a contract with an external consultant. During the work on the contract, constant feedback was provided from the impact assessment to make sure that the proposed recast took account of its findings. The principle of proportionate analysis has been applied and the analysis has focused on the most significant forms of impact and distributive effects.
Five policy options have in total to be assessed:
1. the “no change” option would leave the present road legislation unaltered and the problems outlined at the start of this document would persist and eventually even become worse;
2. the “technical simplification and non-regulatory” option would merely entail a merger of the current two regulations and the Directive. It would be very easy to implement, but it would not solve the problem of the unclear definition of cabotage and of the diverging national rules. The only substantive amendments would me made to standardise certain control documents. It would slightly reduce administrative costs but the main problems identified at the start of this document would remain;
3. the “harmonisation” option would contribute to fairer competition, improve compliance with the road transport rules and raise the average level of professional qualifications in the sector. It would entail a clear and enforceable definition of cabotage and largely improved rules on compliance and enforcement rules. Administrative costs would remain broadly the same but enforcement costs could be reduced in the long run. This policy option is likely to have broad support;
4. the “higher quality standards” option would raise to an even higher level the average professional qualifications in the sector and improve its financial capacity. In the long run, it would encourage more efficient operators, bringing benefits for the whole economy. In the short term, it entails additional administrative costs which would penalise very small undertakings and independent operators. This policy option is more controversial;
5. in the “liberalisation” option cabotage would be almost completely liberalised. This could reduce transport costs in the short term but without necessarily improving the effectiveness of the transport sector failing a prior further harmonisation especially in the social and fiscal field. And without harmonising quality standards at the upper level (i.e. implementing option 4) first, it could push more efficient operators out of the market. In the long run, the overall effect on market efficiency would be neutral if not negative. This policy option would cut jobs in certain countries. Given its wide-ranging implications a much more thorough analysis would need to be undertaken exceeding the current framework of simplification.
In view of these results, this proposal reflects the Option 3 referred to as “harmonisation” option. The summary of the impact analysis and the complete report of this impact analysis accompany this proposal. The impact analysis shows that the present Regulation in combination with the other two Regulations proposed at the same time (on passenger transport and admission to the occupation) will reduce distortions to competition, will improve compliance with social and road safety rules and will offer the Member States the possibility to reduce administrative costs in the order of EUR 190 million per year.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- 1.1. Motivations and objectives of the proposal
- The recast of these Regulations is therefore to enhance the clarity, readability and enforceability of the current rules.120
- 1.2. General context
- 1.3. Provisions in force in the field of the proposal
- 1.4. Consistency with the other policies and the objectives of the Union
- 2. CONSULTATION OF THE INTERESTED PARTIES AND IMPACT ANALYSIS
- 2.1. Consultation of the interested parties
- Synthesis of the received answers and in the way in which they were taken into account
- 2.2. Obtaining and use of expertise
- 2.3. Impact analysis
- 3.1. Summary of the proposed measures
- 3.2. Legal basis
- 3.3. Principle of subsidiarity
- 3.4. Principle of proportionality
- 3.5. Choice of the instruments
- 4. BUDGETARY IMPACT 409
- 5. ADDITIONAL INFORMATION 0
- 5.1. Simplification
- 5.2. Repeal of existing legislation
- 5.3. European Economic Area
- 5.4. Detailed explanation of the proposal
- Clarification of the scope, the definitions and the principle
- Community licence and driver attestation
- Definition and control of cabotage
- Cooperation between Member States
- Withdrawals of Community licence and exchange of information
- Annexes
- Unchanged provisions
This proposal consolidates and merges the two regulations on access to the road transport market and the first Council directive exempting certain transport. It clarifies the existing legal provisions and supplements them on certain aspects to strengthen overall consistency and to guarantee effective application. It introduces the following substantial modifications:
- a simple, clear and enforceable definition of “cabotage” allowing for up to three transport operations consecutive to an international journey and within seven days and the obligation for the holder to keep in the vehicles documents like the consignment letters which show the date and place of arrivals and departure;
- a simplified and standardised format for the Community licence, certified copies and the driver attestation in order to reduce the administrative burden and delays especially at road side checks;
- enhancing of the current legal provisions by obliging a Member State to act, when requested to do so by another Member State, when a haulier to whom it delivered a Community licence commits an infringement in the Member State of establishment or in another Member State. Such action should take the form of at least a warning. Enhanced procedures to communicate between Member States are put in place using the contact points established pursuant to the new Regulation on the admission to the occupation of road transport operator.
The draft Regulation, which repeals Regulations (EEC) No 881/92, (EEC) No 3118/93 and the first Council Directive of 23 July 1962, is based on Article 71 of the treaty establishing the European Community.
The principle of subsidiarity applies insofar as the proposal does not fall within the exclusive competence of the Community.
The main objective of the proposal is to clarify existing Community rules and therefore it cannot be achieved by the Member States alone. Moreover, the proposal seeks to enhance the existing exchange of information between Member States, which cannot be made by a Member State alone and can be made only in a compartmental way on a bilateral basis by the Member States.
A Community action is therefore necessary having regard to the impossibility for a Member State or a group of Member State of solving satisfactorily the identified problems. The proposal is therefore in conformity with the principle of subsidiarity.
The proposal does not exceed what is required to achieve its objective and respects the principle of proportionality for the following reasons:
- it deals with international transport for which a prescriptive approach is required which allows an homogeneous application and provides for fair competition;
- in case of serious or repeated minor infringements, the proposal obliges Member States to issue a warning but leaves it to the discretion of Member States to decide when Community licences, certified copies or driver attestations should be withdrawn.
The proposed instrument is a regulation because
the recast concerns areas which are already covered by Regulations, and because
the attempt by the Commission in 2005 to clarify the existing rules on road cabotage by means of a communication, i.e. a non-regulatory act, has not been sufficient to help clarify the temporary nature of cabotage.
The proposal will not affect the Community budget.
The proposal contributes to the simplification of the acquis. It appears in the rolling programme of the Commission for the update and the simplification of the acquis communautaire and in its legislative and work programme under the reference 2006/TREN/42.
In this proposal, the obsolete measures were abolished and, as much as possible, the contents, the presentation and the formulation of the regulations were re-examined to facilitate their comprehension and to avoid ambiguous interpretations.
This proposal is in conformity with the inter-institutional agreement of 28 November 2001 for a more structured recourse to the technique of the recasting of the legal acts. It was worked out on the basis of a preliminary consolidation of the text carried out, by means of a computer system, by the Office for Official Publications of the European Communities. When Articles were renumbered, the correlation between old and the new numbering is exposed in a correspondence table which appears in Annex III to the recasted Regulation.
The adoption of the proposal will lead to the repeal of Regulations (EEC) No 881/92, (EEC) No 3118/93 and of Directive 2006/94/EC, which has recently codified the first Council Directive of 23 July 1962.
The proposed act concerns an EEA matter and should therefore extend to the EEA.
This proposal consolidates and merges Regulations (EEC) No 881/92 and (EEC) No 3118/93 on access to the road transport market and Directive 2006/94/EC exempting certain transport operations. It clarifies the existing legal provisions and supplements them on certain aspects to strengthen overall consistency and to guarantee effective application.
The proposal introduces the following substantial modifications:
Article 1 clarifies the scope. The Regulation applies to all international carriage on the territory of the Community, including carriage from and to third countries, and to national road haulage services operated by a non-resident haulier on a temporary basis (“cabotage”). As regards international carriage to or from a third country Article 1 specifies that, as long as there is no agreement between the Community and the third country in question, the Regulation does not apply to that part of the journey carried out within the Member State of loading or unloading. It does, however, apply within a Member State crossed in transit.
Only certain clearly defined, commercially irrelevant transport operations are exempted from the scope of the Regulation.
Article 2 and Article 3 introduce the new definitions of “non resident haulier” and of “serious infringement or repeated minor infringements”.
Article 4 introduces new provisions to specify more clearly the format of the Community licence. Article 5 does likewise as regards the driver attestation. The models of these documents are contained in Annexes I and II. Both Articles provide for the Commission the possibility to adapt the models of these documents to technical progress having recourse to the regulatory procedure with scrutiny provided for by Decision 1999/468/EC.
Article 8 introduces a new definition of cabotage specifying in a more detailed way the condition that cabotage must be carried out “on a temporary basis”. The temporary nature is clarified both by limiting the number of cabotage operations and the timeframe within which they are to be carried out. Hauliers are permitted to carry out up to three cabotage operations consecutive to an international carriage once the goods carried in the course of the incoming international carriage have been delivered. The last cabotage operations should take place within seven days.
Enforcement bodies will be able to check more easily whether a cabotage is lawful by looking at the CMR consignment letters which indicate the dates of loading and unloading of an international carriage. For the sake of completeness, Article 8 therefore identifies the information which should be documented and available within the vehicle, knowing that these data are in the CMR consignment letters used in all international transport. Such definition would allow for instance an efficient operator doing regular international transport to optimise the loading of its vehicle and to reduce their empty returns.
Article 8 does not prevent Member States from granting hauliers established in another Member State additional access to their domestic road haulage markets in accordance with their national legislation.
The provision of Article 8 of Regulation 3118/93 on safeguard measures in case of serious disturbances of a national transport market is not taken over into the new recast Regulation. This provision has never ever been used since the opening up of national markets for cabotage on 1 January 1994 and can therefore be considered redundant.
Although the existing regulations have already provided for the mutual assistance by Member States practice has shown that this cooperation never fully developed. Infringements committed by hauliers outside their Member State of establishment were only in isolated cases reported by the Member State where the infringement took place and hardly ever resulted in a sanction imposed by the Member State of establishment of the haulier.
In order to strengthen and facilitate the exchange of information between national authorities, Article 10 obliges Member States to exchange information via the national contact points which are to be set up pursuant to the Regulation on the admission to the occupation of road transport operator. These are designated administrative bodies or authorities in charge of carrying out the information exchange with their counter parts in the other Member States. Also, Article 13 stipulates that Member States enter in their national register of road transport undertakings all serious infringements and repeated minor infringements committed by their own haulier and which have led to the imposition of a sanction.
There are two possible approaches to homogenise the current monitoring and control systems employed by Member States. The first is to empower the Member State so that they can impose dissuasive sanctions to non-resident hauliers crossing their territory, for instance by suppressing the mutual recognition of the Community licence. This option could lead to discriminatory behaviour by the control authorities and may not be compatible with the freedom of circulation. A second approach is to enhance the power and means of the national authorities who are habilitated to deliver and withdraw the Community licence. The current proposal, in combination with the revision of Directive 96/26/EC, follows this latter approach.
Consequently, when a haulier commits a serious infringement or repeated minor infringements of Community road transport legislation, Article 11 introduces an obligation for the competent authority of the Member State of establishment of the haulier to issue a warning. This obligation also applies to cases where the haulier committed such an infringement in another Member State. In addition, Article 11 i clarifies the sanctions that the Member State may impose on the hauliers established within its territory, namely the (temporary or partial) withdrawal of certified copies of the Community licence or of the Community licence itself or of driver attestations. It is clarified that a Member State may also impose as a sanction the temporary or permanent disqualification of a haulier's transport manager.
Article 12 introduces a new procedure to be followed by the Member State which ascertains an infringement committed by a non-resident haulier. This Member State has one month to communicate the information according to a minimum standard format. It may ask the Member State of establishment to impose administrative sanctions. The Member State of establishment of the haulier concerned has three months to inform the other Member State of the follow-up.
Several modifications are proposed as regards the layout of the models for the Community licence and driver attestation in the Annexes I and II of the Regulation. These changes should help to standardise these control documents and improve their readability. Certain adaptations have been made to the text contained in the documents reflecting the normative changes in the new Regulation.
The following provisions remain in substance unchanged, albeit with some technical adaptations:
Regulation (EEC) No 881/92 – Articles 3 and 7; Regulation (EEC) No 3118/93 - none