C-145/78

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 22 MARCH 1979 <apnote>1</apnote>

A. P. Augustijn v Staatssecretaris van Verkeer en Waterstaat (preliminary ruling requested by the Raad van State)

"Road transport of goods"

Case 145/78

Transport — Common policy — Road haulage operator — Admission to the occupation — Condition of professional competence — Definitive exemption — Discretionary power of the Member States (Council Directive No 74/561, Art. 4 (2))

Article 4 (2) of Council Directive No taking. However, that provision must not 74/561 which by way of exception and be understood to mean that it does not in certain duly justified special cases auth­ allow the competent authorities in the orizes the Member States to grant Member States to take the view that a definitive exemption from the condition definitive exemption from the condition of professional competence for the of professional competence may be operation of a transport undertaking granted in the case of two partners who, only to such persons as possess at least three years' practical experience in the having both acquired at least three years' day-to-day management of the said practical experience in the day-to-day undertaking, does not cover the case of a management of the same undertaking, person who does not have the intention decide to carry it on in the form of two of continuing to operate the same under- new undertakings.

STAATSSECRETARIS VAN VERKEER EN WATERSTAAT (Secretary of State for Transport, Water Control and Construction)

on the interpretation of Council Directive No 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (Official Journal L 308, p. 18),

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President of the First Chamber, A. M. Donner and A. O'Keeffe, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

The knowledge required to satisfy that nership and continue their activities in condition is specified in the Annex to the the form of two separate undertakings to Directive; the way in which that be set up. knowledge is to be acquired is laid down In order to be able to act as operator of in Article 3 (4): his new undertaking, A. P. Augustijn by "… by attending courses, by practical a letter of 23 December 1976 applied for experience in a transport undertaking or exemption from the condition of pro­ by a combination of both". fessional competence laid down in the last sentence of Article 56 (1) of the According to Article 4 (2), exemption WAG. from the condition of professional competence may, "by way of exception That application was dismissed by a and in certain special cases", be decision of the Staatssecretaris van definitively granted by the competent Verkeer en Waterstaat of 4 July 1977 on authorities in the Member States to a the ground that, although the appellant person wishing to operate a transport possesses sufficient experience in the undertaking if such person possesses "at field of the carriage of goods, he did not least three years' practical experience in gain that experience in the undertaking the day-to-day management of the under­ to be operated. The decision is based on taking". Article 56 of the WAG as well as on the provisions of the aforesaid Council directive. B — The national legislation applicable Article 56 (1) of the Wet Autovervoer D — The question referred for a pre­ Goederen (Law on the carriage of goods liminary ruling by motor vehicle, hereinafter referred to as the WAG) provides that authorization By an interlocutory judgment of 7 June to engage in the occupation of transport 1978 the Raad van State (Council of operator shall be granted only if inter State) decided to stay the proceedings alia the condition of professional and refer the following question to the competence is satisfied, but that in Court of Justice for a preliminary ruling special cases the minister is empowered pursuant to Article 177 of the EEC to grant exemptions. Article 128 of the Treaty: Decision implementing the WAG "Can the exemption from the condition provides that in order to satisfy that of professional competence in a special condition operators must be in case within the meaning of Article 4 (2) possession of a technical diploma of Council Directive No 74/561/EEC of recognized by the minister and submit a 12 November 1974 on admission to the declaration by the Rijksinspecteur van occupation of road haulage operator in het Verkeer (National Traffic Inspector) national and international transport certifying two years' paid employment operations be granted only if the with an undertaking engaged in the practical experience was gained in an carriage of goods. undertaking which is being operated in

its entirety in the same legal form or can — An application for exemption made operation of the undertaking within the on 22 December 1976 should not be meaning of the aforesaid provision also examined by reference to a Council be understood to include operation of directive which entered into force on one or more self-contained parts of the 1 January 1977; undertaking?". — Even assuming that the Directive is The Raad van State holds that an answer applicable, the matter in fact to the question whether the respondent concerns the continuance of an under­ correctly interpreted Article 4 (2) of the taking, as the two partners are each Directive by ruling that operation of the taking a section of the former part­ undertaking should not be understood to nership: only the legal nature of the include a part of the activities carried out undertaking is changing; in the original undertaking, in this case under a different name and in another — At all events, the present case does indeed concern a "special case" legal form, is essential to its judgment. within the meaning both of the WAG The judgment of the Raad van State was and of the Directive. received at the Court on 19 June 1978. Upon hearing the report of the Judge- B — Observations submitted by the Rapporteur and the views of the Netherlands Government Advocate General the Court decided to open the oral procedure without any According to the Netherlands Govern­ preparatory inquiry and to assign the ment Article 4 (2) of the Council case to the First Chamber if the Directive implies that the exemption can Netherlands Government, which relate only to the undertaking in which submitted written observations, had no the professional competence has come to objection. The Netherlands Government be lacking and to experience gained in gave its agreement to such assignment. that undertaking. A distinction must be drawn between two cases: II — Summary of the written observations submitted un­ — Where the legal structure of an under­ der Article 20 of the taking is altered whilst the activities Protocol on the Statute of are in fact continued, the pursuit of the Court of Justice of the the activities under the new structure EEC may be regarded as the operation of the former undertaking; A — Observations submitted by Mr Augustijn

— On the other hand where, as here, existing undertaking in which the the undertaking ceases to exist and practical experience was acquired is not two new undertakings are set up decisive in itself. whilst operation of the former one is Thus the Commission believes that terminated, it is not possible to speak exceptional exemption from the of the operation of two branches of condition of professional competence the activity of that undertaking. laid down in the directive may be auth­ orized in a special case where the under­ C — Observations submitted by the taking is not operated in its entirety or in Commission of the European the same legal form. Communities The Commission of the European According to the Commission, the Communities, represented by its Legal essential requirement in the present case Adviser Raymond Baeyens, acting as is proof of practical experience in a Agent, presented oral argument at the transport undertaking corresponding to hearing on 18 January 1979. effective knowledge of matters. The designation or legal structure of the The Advocate General delivered his undertaking which carries on in whole or opinion at the hearing on 15 February in part the activities pursued by the 1979.

Decision

1 By an interlocutory judgment of 7 June 1978 which was received at the Court on 19 June 1978, the Raad van State, Afdeling Rechtspraak (Council of State, Administrative Appeals Section), referred a question to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of Council Directive No 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (Official Journal 1974, L 308, p. 18).

5 Article 3 (1) of Council Directive No 74/561/EEC provides that natural persons or undertakings wishing to engage in the occupation of road haulage operator shall inter alia satisfy the condition as to professional competence. The knowledge required to satisfy that condition is specified in the Annex to the directive. As provided in Article 3 (4), that knowledge is acquired by attending courses, by practical experience in a transport undertaking or by a combination of both. According to Article 4 (2) of the Directive the auth­ orities in the Member States may, by way of exception, definitively authorize a person not fulfilling the conditions of professional competence to operate a transport undertaking where such person possesses "at least three years' practical experience in the day-to-day management of the undertaking".

6 The Raad van State asked the following question :

AUGUSTIJN v STAATSSECRETARIS VAN VERKEER EN WATERSTAAT

"Can the exemption from the condition of professional competence in a special case within the meaning of Article 4 (2) of Council Directive No 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations be granted only if the practical experience was gained in an undertaking which is being operated in its entirety in the same legal form or can operation of the undertaking within the meaning of the aforesaid provision also be understood to include operation of one or more self-contained parts of the undertaking?"

7 Article 4 (1) concerns the conditions which must be fulfilled in order for a person not satisfying the condition of professional competence to be auth­ orized to operate a transport undertaking on a temporary basis and for a limited period in the event of the death or incapacity of the person who satisfied the conditions of professional competence laid down in Article 3.

On those grounds,

THE COURT (First Chamber)

in answer to the question referred to it by the Raad van State by an inter­ locutory judgment of 7 June 1978, hereby rules:

Article 4 (2) of Council Directive No 74/561/EEC must not be understood to mean that it does not allow the competent authorities in the Member States to take the view that a definitive exemption from the condition of professional competence may be granted in the case of two partners who, having both acquired at least three years' practical experi­ ence in the day-to-day management of the same undertaking, decide to carry it on in the form of two new undertakings.

Mertens de Wilmars Donner O'Keeffe

Delivered in open court in Luxembourg on 22 March 1979.