Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (Text with EEA relevance)

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

By way of derogation from paragraph 2, this Regulation shall, unless otherwise provided for in national law, not apply to:

(a) undertakings engaged in the occupation of road haulage operator solely by means of motor vehicles or combinations of vehicles the permissible laden mass of which does not exceed 3,5 tonnes engaged exclusively in national transport operations in their Member State of establishment;

(aa) undertakings engaged in the occupation of road haulage operator solely by means of motor vehicles or combinations of vehicles, the permissible laden mass of which does not exceed 2,5 tonnes;

(b) undertakings engaged in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of road passenger transport operator;

(c) undertakings engaged in the occupation of road transport operator solely by means of motor vehicles with a maximum authorised speed not exceeding 40 km/h.

For the purposes of point (b) of the first subparagraph, any carriage by road, other than carriage for hire or reward or on own account, for which no direct or indirect remuneration is received and which does not directly or indirectly generate any income for the driver of the vehicle or for others, and which is not linked to professional activity, is to be considered as carriage exclusively for non-commercial purposes.

Member States may exempt from the application of all or some of the provisions of this Regulation only those road transport operators engaged exclusively in national transport operations having only a minor impact on the transport market because of:

(a) the nature of the goods carried; or

(b) the short distances involved.

Article 2

Definitions

For the purposes of this Regulation:

Article 3

Requirements for engagement in the occupation of road transport operator

Undertakings engaged in the occupation of road transport operator shall:

(a) have an effective and stable establishment in a Member State;

(b) be of good repute;

(c) have appropriate financial standing; and

(d) have the requisite professional competence.

Article 4

Transport manager

An undertaking which engages in the occupation of road transport operator shall designate at least one natural person, the transport manager, who satisfies the requirements set out in Article 3(1)(b) and (d) and who:

(a) effectively and continuously manages the transport activities of the undertaking;

(b) has a genuine link to the undertaking, such as being an employee, director, owner or shareholder or administering it, or, if the undertaking is a natural person, is that person; and

(c) is resident in the Community.

If an undertaking does not satisfy the requirement of professional competence laid down in Article 3(1)(d), the competent authority may authorise it to engage in the occupation of road transport operator without a transport manager designated in accordance with paragraph 1 of this Article, provided that:

(a) the undertaking designates a natural person residing in the Community who satisfies the requirements laid down in Article 3(1)(b) and (d), and who is entitled under contract to carry out duties as transport manager on behalf of the undertaking;

(b) the contract linking the undertaking with the person referred to in point (a) specifies the tasks to be performed on an effective and continuous basis by that person, and indicates his or her responsibilities as transport manager. The tasks to be specified shall comprise, in particular, those relating to vehicle maintenance management, verification of transport contracts and documents, basic accounting, the assignment of loads or services to drivers and vehicles, and the verification of safety procedures;

(c) in his or her capacity as transport manager, the person referred to in point (a) may manage the transport activities of up to four different undertakings carried out with a combined maximum total fleet of 50 vehicles. Member States may decide to lower the number of undertakings and/or the size of the total fleet of vehicles which that person may manage; and

(d) the person referred to in point (a) performs the specified tasks solely in the interests of the undertaking and his or her responsibilities are exercised independently of any undertakings for which the undertaking carries out transport operations.

CHAPTER II

CONDITIONS TO BE MET TO SATISFY THE REQUIREMENTS LAID DOWN IN ARTICLE 3

Article 5

Conditions relating to the requirement of establishment

In order to satisfy the requirement laid down in point (a) of Article 3(1), in the Member State of establishment an undertaking shall:

(a) have premises at which it is able to access the originals of its core business documents, whether in electronic or any other form, in particular its transport contracts, documents relating to the vehicles at the disposal of the undertaking, accounting documents, personnel management documents, labour contracts, social security documents, documents containing data on the dispatching and posting of drivers, documents containing data relating to cabotage, driving time and rest periods, and any other document to which the competent authority must have access in order to verify the undertaking’s compliance with the conditions laid down in this Regulation;

(b) organise its vehicle fleet’s activity in such a way as to ensure that vehicles that are at the disposal of the undertaking and are used in international carriage return to one of the operational centres in that Member State at least within eight weeks after leaving it;

(c) be registered on the register of commercial companies of that Member State or on a similar register whenever required under national law;

(d) be subject to tax on revenues and, whenever required under national law, have a valid value added tax registration number;

(e) once an authorisation has been granted, have at its disposal one or more vehicles which are registered or put into circulation and authorised to be used in conformity with the legislation of that Member State, regardless of whether those vehicles are wholly owned or, for example, held under a hire-purchase agreement or under a hire or leasing contract;

(f) effectively and continuously conduct its administrative and commercial activities with the appropriate equipment and facilities at premises as referred to in point (a) situated in that Member State and manage its transport operations effectively and continuously using the vehicles referred to in point (g) with the appropriate technical equipment situated in that Member State;

(g) on an ongoing basis, have at its regular disposal a number of vehicles that comply with the conditions laid down in point (e) and drivers who are normally based at an operational centre in that Member State, in both cases proportionate to the volume of transport operations carried out by the undertaking.

In addition to the requirements laid down in paragraph 1, Member States may require an undertaking to have, in the Member State of establishment:

(a) proportionate to the size of the activity of the undertaking, duly qualified administrative personnel at the premises or the transport manager reachable during customary business hours;

(b) proportionate to the size of the activity of the undertaking, operational infrastructure other than the technical equipment referred to in point (f) of paragraph 1 in the territory of that Member State, including an office which is open during customary business hours.

Article 6

Conditions relating to the requirement of good repute

Subject to paragraph 2 of this Article, Member States shall determine the conditions to be met by undertakings and transport managers in order to satisfy the requirement of good repute laid down in Article 3(1)(b).

In determining whether an undertaking has satisfied that requirement, Member States shall consider the conduct of that undertaking, its transport managers, executive directors and any other relevant person as may be determined by the Member State. Any reference in this Article to convictions, penalties or infringements shall include convictions, penalties incurred by or infringements of the undertaking itself, its transport managers, executive directors and any other relevant person as may be determined by the Member State.

The conditions referred to in the first subparagraph shall include at least the following:

(a) that there be no compelling grounds for doubting the good repute of the transport manager or the transport undertaking, such as convictions or penalties for any serious infringement of national rules in force in the fields of: (i) commercial law; (ii) insolvency law; (iii) pay and employment conditions in the profession; (iv) road traffic; (v) professional liability; (vi) trafficking in human beings or drugs;  and (vii) tax law; and

(b) that the transport manager or the transport undertaking have not in one or more Member States been convicted of a serious criminal offence or incurred a penalty for a serious infringement of Community rules relating in particular to: (i) the driving time and rest periods of drivers, working time and the installation and use of recording equipment; (ii) the maximum weights and dimensions of commercial vehicles used in international traffic; (iii) the initial qualification and continuous training of drivers; (iv) the roadworthiness of commercial vehicles, including the compulsory technical inspection of motor vehicles; (v) access to the market in international road haulage or, as appropriate, access to the market in road passenger transport; (vi) safety in the carriage of dangerous goods by road; (vii) the installation and use of speed-limiting devices in certain categories of vehicle; (viii) driving licences; (ix) admission to the occupation; (x) animal transport; (xi) the posting of workers in road transport; (xii) the law applicable to contractual obligations; (xiii) cabotage.

During the administrative procedure, the transport manager or other legal representatives of the transport undertaking, as the case may be, shall be given the right to present their arguments and explanations.

During the administrative procedure, the competent authority shall assess whether, due to specific circumstances, the loss of good repute would constitute a disproportionate response in the individual case. In that assessment, the competent authority shall take into account the number of serious infringements of national and Union rules as referred to in the third subparagraph of paragraph 1, as well as the number of most serious infringements of Union rules as set out in Annex IV for which the transport manager or the transport undertaking has been convicted or has had penalties imposed. Any such finding shall be duly reasoned and justified.

Where the competent authority finds that the loss of good repute would be disproportionate, it shall decide that the undertaking concerned continues to be of good repute. The reasons for this decision shall be recorded in the national register. The number of such decisions shall be indicated in the report referred to in Article 26(1).

Where the competent authority does not find that the loss of good repute would be disproportionate, the conviction or penalty shall lead to the loss of good repute.

To that end, the Commission shall:

(a) lay down the categories and types of infringement which are most frequently encountered;

(b) define the degree of seriousness of infringements according to their potential to create a risk of fatalities or serious injuries and to distort competition in the road transport market, including by undermining the working conditions of transport workers;

(c) provide the frequency of occurrence beyond which repeated infringements shall be regarded as more serious, taking into account the number of vehicles used for the transport activities managed by the transport manager.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(3).

Article 7

Conditions relating to the requirement of financial standing

In order to satisfy the requirement laid down in point (c) of Article 3(1), an undertaking shall at all times be able to meet its financial obligations in the course of the annual accounting year. The undertaking shall demonstrate, on the basis of annual accounts certified by an auditor or a duly accredited person, that for each year it has at its disposal capital and reserves totalling at least:

(a) EUR 9 000 , for the first motor vehicle used;

(b) EUR 5 000 for each additional motor vehicle or combination of vehicles used that has a permissible laden mass exceeding 3,5 tonnes; and

(c) EUR 900 for each additional motor vehicle or combination of vehicles used that has a permissible laden mass exceeding 2,5 tonnes but not exceeding 3,5 tonnes.

Undertakings engaged in the occupation of road haulage operator solely by means of motor vehicles or combinations of vehicles that have a permissible laden mass exceeding 2,5 tonnes but not exceeding 3,5 tonnes shall demonstrate, on the basis of annual accounts certified by an auditor or a duly accredited person, that for each year they have at their disposal capital and reserves totalling at least:

(a) EUR 1 800 for the first vehicle used; and

(b) EUR 900 for each additional vehicle used.

Member States may require that undertakings established in their territories demonstrate that they have at their disposal for these vehicles the same amounts of capital and reserves as for the vehicles referred to in the first subparagraph. In such cases, the competent authority of the Member State concerned shall inform the Commission accordingly, and the Commission shall make that information publicly available.

For the purposes of this Regulation, the value of the euro in the currencies of Member States which do not participate in the third stage of the economic and monetary union shall be fixed every year. The rates to be applied shall be those obtained on the first working day of October and published in the Official Journal of the European Union. They shall have effect from 1 January of the following calendar year.

The accounting items referred to in the first subparagraph shall be understood as those defined in Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (¹).

Article 8

Conditions relating to the requirement of professional competence

The persons concerned shall sit the examination in the Member State in which they have their normal residence or the Member State in which they work.

‘Normal residence’ shall mean the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal ties which show close links between that person and the place where he is living.

However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who, consequently, lives in turn in different places situated in two or more Member States, shall be regarded as being in the place of his personal ties, provided that such person returns there regularly. This last condition shall not be required where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence.

A Member State may exempt the holders of certain higher education qualifications or technical education qualifications issued in that Member State, specifically designated to this end and entailing knowledge of all the subjects listed in Annex I from the examination in the subjects covered by those qualifications. The exemption shall only apply to those sections of Part I of Annex I for which the qualification covers all subjects listed under the heading of each section.

A Member State may exempt from specified parts of the examinations holders of certificates of professional competence valid for national transport operations in that Member State.

Article 9

Exemption from examination