Avis juridique important

Judgment of the Court (First Chamber) of 11 May 1993. - H.J.J. van Doesselaar v Minister van Verkeer en Waterstaat. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Transport of goods by road - Occupational competence. - Case C-304/91. European Court reports 1993 Page I-02303

Summary Parties Grounds Decision on costs Operative part

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Transport ° Common policy ° Road haulier ° Pursuit of occupation ° Authorization before 1 January 1978 ° Condition of occupational competence ° Proof ° Exemption ° Transitional provision ° Scope

(Council Directive No 74/561, Art. 5)

A natural person who, before 1 January 1978, continuously and effectively managed the transport operations of an undertaking, and was authorized to do so under national rules, is entitled to rely upon Article 5 of Directive 74/561 on admission to the occupation of road haulage operator in national and international transport operations, which provides that a person who, before 31 December 1974, was designated continuously and effectively to manage the transport operations of a road haulage undertaking, is to be definitively exempt from the obligation of furnishing proof of occupational competence.

In Case C-304/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Netherlands College van Beroep voor het Bedriijfsleven (Administrative Court of Last Instance in matters of trade and industry) for a preliminary ruling in the proceedings pending before that court between

H.J.J. van Doesselaar,

and

Minister van Verkeer en Waterstaat,

on the interpretation of Article 5(1) of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (OJ 1974 L 308, p. 18),

THE COURT (First Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, R. Joliet and D.A.O. Edward, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° the Netherlands Government, by B.R. Bot, Secretary-General of the Ministry for Foreign Affairs, acting as Agent,

° the Commission of the European Communities, by Vittorio Di Bucci and Thomas van Rijn, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Netherlands Government, represented by J.W. de Zwaan, of the Legal Service of the Ministry of Foreign Affairs, acting as Agent, and of the Commission of the European Communities, represented by T. van Rijn, at the hearing on 17 December 1992,

after hearing the Opinion of the Advocate General at the sitting on 28 January 1993,

gives the following

Judgment

1 By order of 8 November 1991 received at the Court on 28 November 1992, the College van Beroep voor het Bedrijfsleven referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (OJ 1974 L 308, p. 18).

2 That question was raised in proceedings between Mr H.J.J. van Doesselaar, the applicant in the main proceedings, and the Minister van Verkeer en Waterstaat (Minister of Transport and Waterways, hereinafter referred to as "the Minister"). The proceedings concern the Minister' s refusal to grant Mr van Doesselaar' s request for exemption from the occupational competence requirement provided for in Article 56 of the Wet Autovervoer Goederen (Law on the carriage of goods by road).

3 It is apparent from the file that in 1960 Mr van Doesselaar entered into partnership with Mr E.F. van Esbroek to carry on the business of road hauliers. The undertaking was authorized to carry on that business since Mr van Esbroek was in possession of the requisite documents attesting occupational competence under the Netherlands legislation then in force. For an initial period of not more than two years, Mr van Esbroek performed certain administrative tasks. However, from 1962 to 1987 Mr van Doesselaar in fact managed the transport operations of the undertaking on his own.

4 On 23 April 1987 Mr van Esbroek died, bringing the partnership to an end. By letter of 1 August 1987, Mr van Doesselaar, who wished to continue the business on his own, applied to the Minister for exemption from the occupational competence requirement under national legislation. It is not disputed that Mr van Doesselaar is not and never has been in possession of any document attesting his occupational competence.

5 By a decision of 24 December 1987, the Minister rejected Mr van Doesselaar' s application. In support of this decision the Minister stated that Mr van Doesselaar had not been entitled since 1960 to carry on the business of road haulier on his own because he did not fulfil the requirement of occupational competence. Furthermore, in the opinion of the Minister, the exemption requested by Mr van Doesselaar could not be granted under Article 5 of the aforesaid Directive 74/561.

6 Mr van Doesselaar appealed against this decision to the College van Beroep voor het Bedrijfsleven. That court, considering that the dispute involved a question of the interpretation of Community law, decided to stay the proceedings and referred the following question to the Court:

"Must Article 5(1) of Directive 74/561/EEC, in conjunction with Article 5(2) thereof, be interpreted as meaning that the natural person continuously and effectively managing the transport operations of an undertaking which, if the directive had been correctly implemented, would have fallen within the terms of the transitional provision is entitled, on the continuation of the undertaking as a one-man business after termination of the partnership which carried on the undertaking, to the application of the provisions of that article, even if effect has not been given thereto by the national legislature?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8 It is first of all necessary to examine the system of admission to the occupation of road haulage operator in national and international transport operations established by Directive 74/561. In this respect Article 3 of the directive provides, inter alia, that natural persons or undertakings wishing to engage in the occupation of road haulage operator have to satisfy the conditions of good repute, financial standing and competence. The second subparagraph of 3(1) states that, where the applicant is a natural person and does not satisfy the last-mentioned condition, the competent authorities may nevertheless permit him to engage in the occupation of road haulage operator provided that he designates to the said authorities another person, satisfying the conditions as to good repute and competence, who will continuously and effectively manage the transport operations of the undertaking. The third subparagraph of paragraph 1 provides that where the applicant is an undertaking, one of the natural persons who continuously and effectively manages the transport operations of the undertaking has to satisfy those conditions.

9 It appears from the wording and structure of these provisions that Article 3 of the directive seeks to ensure that the person continuously and effectively managing the transport operations of the undertaking satisfies the condition as to competence.

10 It is in this light that Article 5 of the directive must be considered. As the Court held in its judgment in Case 146/78 Wattenberg v Staatssecretaris van Verkeer en Waterstaat [1979] ECR 1041, this article is a transitional provision intended to deal with the case of persons furnishing proof that, before 1 January 1978, they were authorized under national regulations in a Member State to engage in the occupation of road haulage operator.

11 Article 5 consists of two paragraphs; the first provides that, persons furnishing proof that, before 1 January 1978, they were authorized under national regulations in a Member State to engage in the occupation of road haulage operator in national and/or international road transport operations are to be exempt from the requirement to furnish proof that they satisfy the provisions laid down in Article 3.

12 Article 5(2) is a derogation from the rule laid down in Article 5(1) in favour of "natural persons who, after 31 December 1974 and before 1 January 1978, were authorized to engage in the occupation of road haulage operator without having furnished proof, under national regulations, of their professional competence, or [were] designated continuously and effectively to manage the transport operations of the undertaking". Article 5(2) provides that these two categories of persons must satisfy, before 1 January 1980, the condition as to competence.

13 Therefore, Article 5(1) should be interpreted as exempting definitively from the obligation to furnish proof of competence any person who, from a date prior to 31 December 1974, was designated continuously and effectively to manage the transport operations of the undertaking.

14 That interpretation is consonant with the purpose of the directive. Indeed, since the aim of Article 3 is to ensure that the person or persons, who continuously and effectively manage the transport operations of the undertaking, satisfy the condition as to competence, the terms of Article 5(1) "natural persons ... furnishing proof that, before 1 January 1978, they were authorized under national regulations in a Member State to engage in the occupation of road haulage operator", must be interpreted as referring to persons who, prior to that date, were authorized under national regulations continuously and effectively to manage the transport operations of an undertaking.

15 It is for the national court to determine first whether, prior to 1 January 1978, the person concerned did in fact continuously and effectively manage the transport operations of an undertaking, and then, if necessary, whether that situation was authorized under national rules. The ground on which the authorization was granted under domestic law is, in this respect, irrelevant.

16 As is apparent from the judgment in the aforesaid Wattenberg case, a person falling within Article 5(1) is presumed to satisfy the condition as to competence and is exempted from furnishing proof of it. Such a person is, therefore, entitled in his own right, to rely upon Article 5(1), once the transitional period of the directive has expired.

17 The reply to the question submitted by the national court must therefore be that natural persons, who, before 1 January 1978, continuously and effectively managed the transport operations of an undertaking, and were authorized to do so under national rules, are entitled to rely upon Article 5 of Directive 74/561.

Costs

18 The costs incurred by the Netherlands Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the College van Beroep voor het Bedrijfsleven by order of 8 November 1991, hereby rules:

A natural person who, before 1 January 1978, continuously and effectively managed the transport operations of an undertaking, and was authorized to do so under national rules, is entitled to rely upon Article 5 of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations.