C-146/78

JUDGMENT OF 22. 3. 1979 — CASE 146/78

2. Article 4 (2) of Directive No 74/561 haulage operator without having to allows definitive exemption from the furnish proof of their professional condition of professional competence competence must do so before 1 to operate a transport undertaking to January 1980, may not be invoked be granted in exceptional cases, but against persons entitled under Article this is only within the limits laid down 4 (2) of that directive to the definitive and in the situations referred to in exemption from the condition of pro­ Article 4 (1), that is to say in duly fessional competence on the ground justified special cases in the event of that they possess at least three years' the death of the physical or legal practical experience in the day-to-day incapacity of the natural person management of the undertaking. engaged in the occupation of transport operator. 4. "Physical incapacity" within the 3. The provision in Article 5 (2) of meaning of Article 4 (1) of Directive Directive No 74/561 that those No 74/561 may not be taken to mean persons who, after 31 December 1974 the attainment of an age at which a and before 1 January 1978 were auth­ person is decreed no longer to be orized to engage in the occupation of capable of working.

In Case 146/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Raad van State, Afdeling Rechtspraak (Council of State, Administrative Appeals Section) for a preliminary ruling in the proceedings pending before that court between

A. J. WATTENBERG

and

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the "… by attending courses, by practical procedure and the observations experience in a transport undertaking or submitted pursuant to Article 20 of the by a combination of both". Protocol on the Statute of the Court of According to Article 4 (1) of the Justice of the EEC may be summarized Directive, exemption from the condition as follows: as to professional competence may be granted "on a temporary basis for a maximum period of one year, with I — Facts and written procedure extension for a maximum period of six A — The Council Directive months, in … special cases in the event of the death or physical or legal In order to harmonize the Member incapacity of the natural person engaged States' transport legislation, the Council in the occupation of transport operator adopted on 12 November 1974 Directive or of the natural person who satisfies" No 74/561/EEC on admission to the the condition as to professional occupation of road haulage operator in competence. national and international transport According to Article 4 (2), exemption operations. from the condition of professional Article 3 (1) of the Council Directive competence may, "by way of exception provides that natural persons or under­ and in certain special cases", be takings 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; the way in which that knowledge is to be acquired is laid down in Article 3 (4):

definitively granted by the competent C — The facts authorities in the Member States to a A. J. Wattenberg (born in 1936) has person wishing to operate a transport worked for several years in a transport undertaking if such person possesses "at undertaking managed first by his father least three years' practical experience in (born in 1903) in the form of a one-man the day-to-day management of the under­ business and then by himself as from a taking". date which is not specified but is at least Article 5 (2) of the Directive provides prior to 1968. that: In order to be able to act as the operator of an undertaking, A. J. Wattenberg by a "… those natural persons who, after 31 letter of 1 February 1977 applied for December 1974 and before 1 January exemption from the condition of pro­ 1978, were: fessional competence referred to in the last sentence of Article 56 (1) of the — authorized to engage in the WAG. occupation of road haulage operator without having furnished proof, By a decision of 4 May 1977 the Staats­ secretaris van Verkeer en Waterstaat under national regulations, of their professional competence, or (Secretary of State for Transport, Water Control and Construction) granted the — designated continuously and exemption applied for, but restricted the effectively to manage the transport duration of its validity to 1 January 1980. operations of the undertaking, The reasons given for this restriction included the provisions of the must satisfy, before 1 January 1980, aforementioned Council Directive. the condition of professional com­ petence… ". D — The questions referred for a pre­ liminary ruling B — The national legislation applicable By an interlocutory judgment of 13 June 1978 the Raad van State (Council of Article 56 (1) of the Wet Autovervoer State) decided to stay the proceedings Goederen (Law on the carriage of goods and refer the following questions to the by motor vehicle, hereinafter referred to Court of Justice for a preliminary ruling as the WAG) provides that authorization pursuant to Article 177 of the EEC to engage in the occupation of transport Treaty: operator shall be granted only if inter 1. Under Article 3 (4) of Council alia the condition of professional Directive No 74/561/EEC of 12 competence is satisfied, but that in November 1974 on admission to the special cases the minister is empowered occupation of road haulage operator to grant exemptions. Article 128 of the in national and international transport Decision implementing the WAG operations are the Member States at provides that in order to satisfy that liberty to adopt rules whereby apart condition operators must be in from the acquisition of a technical possession of a technical diploma diploma the condition as to pro­ recognized by the minister and submit a fessional competence is also satisfied declaration by the Rijksinspecteur van het Verkeer (National Traffic Inspector) certifying two years' paid employment with an undertaking engaged in the carriage of goods.

3. Is Article 4 (2) of Directive No A — Question 1 74/561/EEC applicable only in the case referred to in the first paragraph The Netherlands Government points out of that article of the death of physical that, although the question raised may be or legal incapacity of the natural answered in the affirmative, such an person who satisfies the provision of answer would leave intact the obligation Article 3 (1) (a) and (c) may that which the Netherlands impose upon the provision also be applicable to other operator to prove his professional cases?

4. If the answer to the last question is in the affirmative should "physical incapacity" in Article 4 (1) of that Directive also to be understood as including the attainment of an age at which a person is deemed no longer to be capable of working?

The Raad van State holds that an answer to the question whether the respondent in the main action interpreted Article 4 (2) of the Directive correctly by restricting the period of validity of the exemption granted pursuant to the provisions of Article 5 (2) is essential to its judgment. It is further of the opinion that it is not clear from the wording of

JUDGMENT OF 22. 3. 1979 — CASE 146/78

C — Questions 3 and 4 The Netherlands Government thinks that the very wording of Article 4 of the Directive pleads in favour of a broad interpretation of Article 4 (2). On the one hand the granting of definitive

WATTENBERG v STAATSSECRETARIS VAN VERKEER EN WATERSTAAT

Adviser Raymond Baeyens, acting as The Advocate General delivered his Agent, presented oral argument at the opinion at the hearing on 15 February hearing on 18 January 1979. 1979.

Decision

1 By an interlocutory judgment of 13 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 several questions 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).

2 These questions were raised in the context of a dispute over the decision of the Staatssecretaris van Verkeer en "Waterstaat (Secretary of State for Transpon, Water Control and Construction) dated 4 May 1977 granting the appellant in the main action exemption from the condition of professional competence referred to in the last sentence of Article 56 (1) of the Wet Auto­ vervoer Goederen (Law on the carriage of goods by motor vehicle) but restricting the duration of that exemption to 1 January 1980.

6 Article 4 (1) provides that temporary exemption from the condition of pro­ fessional competence may be granted for a maximum period of one year, with extension for a maximum period of six months, in special cases in order to prevent the absence of a person who fulfils the conditions of professional competence leading to a transport undertaking's suspending its activities or going out of business following the death or physical or legal incapacity of the operator or manager who satisfied the said conditions. However, according to Article 4 (2) the authorities 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".

7 Finally, Article 5 (2) of the Directive provides that:

"… those 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

WATTENBERG v STAATSSECRETARIS VAN VERKEER EN WATERSTAAT

— designated continuously and effectively to manage the transport operations of the undertaking,

4. If the answer to the last question is in the affirmative should "physical incapacity" in Article 4 (1) of that directive also be understood as including the attainment of an age at which a person is deemed no longer to be capable of working?

JUDGMENT OF 22. 3. 1979 — CASE 146/78

Question 1

9 In the absence of any co-ordination of the national rules on the acquisition of professional knowledge, Article 3 (4) of the Council Directive leaves it to the Member States to establish that persons wishing to engage in the occupation of road haulage operator possess the necessary competence. The Member States are given a choice between the following systems for verifying that knowledge: assessment by examination, regard to practical experience in the sphere of transport or finally a combination of both.

10 The aforementioned Netherlands legislation provides that possession of the knowledge is assessed by an examination entitling successful candidates to a technical diploma, and by verification of two years' practical experience in a transport undertaking.

11 Therefore the answer to Question 1 should be that the provisions of Article 3 (4) of the Directive allow Member States to adopt regulations under which professional competence is established either by the acquisition of a diploma or on the basis of appropriate practical experience for a period to be determined by the Member States, or by a combination of both.

Question 2

15 Article 5 is a transitional provision applying to the case of persons furnishing proof that, before 1 January 1978, they were authorized under national regu­ lations in a Member State to engage in the occupation of road haulage operator. The said persons are deemed to satisfy the condition of pro­ fessional competence and are exempt from the requirement to furnish proof thereof.

16 However, Article 5 (2) restricts the scope of that rule by providing that those persons who, between 31 December 1974 and 1 January 1978, were auth­ orized to engage in the occupation concerned without having to furnish proof of their competence must do so before 1 January 1980. That provision of the Directive was adopted in order to deal with situations prior to its implementation (1 January 1977) or situations in the course of being verified. It concerns situations different from those covered by Article 4.

JUDGMENT OF 22. 3. 1979 — CASE 146/78

17 Therefore the answer to the question should be that the provision in Article 5 (2) may not be invoked against persons entitled under Article 4 (2) to definitive exemption on the ground that they possess at least three years' practical experience in the day-to-day management of the undertaking.

Question 4

in answer to the questions referred to it by the Raad van State by an interlo­ cutory judgment of 13 June 1978, hereby rules:

1. The provisions of Article 3 (4) of Council Directive No 74/561/EEC allow Member States to adopt regulations under which professional

WATTENBERG v STAATSSECRETARIS VAN VERKEER EN WATERSTAAT

competence is established either by the acquisition of a diploma or on the basis of appropriate practical experience for a period to be determined by the Member States, or by a combination of both.

2. Article 4 (2) of the Directive applies only in the event, referred to in paragraph (1), of the death or physical or legal incapacity of the natural person engaged in the occupation of transport operator or satisfying the condition as to professional competence.

3. The provision in Article 5 (2) may not be invoked against persons entitled under Article 4 (2) to definitive exemption on the ground that they possess at least three years' practical experience in the day-to-day management of the undertaking.