S.I. No. 180/1988 - European Communities (Merchandise and Road Transport) Regulations, 1988

S.I. No. 180 of 1988.

EUROPEAN COMMUNITIES (MERCHANDISE AND ROAD TRANSPORT) REGULATIONS, 1988.

I, JOHN P. WILSON, Minister for Tourism and Transport, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972) and for the purpose of giving effect to Council Directive No. 74/561/EEC of 12 November, 1974^(1), and Council Directive No. 77/796/EEC of 12 December, 1977^(2) hereby make the following Regulations:

^(1)O.J. No. L308/18. 19.11.1974.

^(2)O.J. No. L335/37. 24.12.1977.

1 Citation and Commencement

1.

1. (1) These Regulations may be cited as the European Communities (Merchandise Road Transport) Regulations, 1988.

• (2) Regulation 7 (6) shall come into operation on the making of these Regulations.

• (3) These Regulations, other than Regulation 7 (6), shall come into operation on 30th September, 1988.

2 ..

2.

2. (1) In these Regulations—

"the Act of 1933" means the Road Transport Act, 1933 (No. 8 of 1933);

"the Act of 1986" means the Road Transport Act, 1986 (No. 16 of 1986);

"appropriate financial standing" shall be construed in accordance with Regulation 6 of these Regulations;

"appropriate fee" means the fee as described in Regulation 10 of these Regulations.

"carrier's licence" means either a national road freight carrier's licence or an international road freight carrier's licence;

"certificate of competence" means an "international certificate of competence" or a "national certificate of competence" granted in pursuance of Regulation 7 (5) or (6) of these Regulations;

"the Council Directive of 1977" means Council Directive No. 77/796/EEC of 12 December, 1977;

"the Council Directive of 1974" means Council Directive No. 74/561/EEC of 12 November, 1974;

"the condition of professional competence" means the condition as to professional competence referred to in Article 3 of the Council Directive of 1974 and shall be construed in accordance with Regulation 7 (2) of these Regulations;

"goods" does not include passenger's luggage or mails (including mail bags and postal packets other than telegrams) but does include anything which is merchandise within the meaning of section 2 of the Act of 1933;

"good repute" shall be construed in accordance with Regulation 5 of these Regulations;

"merchandise" has the meaning assigned to it by section 2 of the Act of 1933;

"merchandise licence" has the meaning assigned to it by section 2 of the Act of 1933;

"merchandise road transport" has the meaning assigned to it by section 2 of the Act of 1933;

"the Minister" means the Minister for Tourism and Transport;

"national road freight carrier's licence" and "international road freight carrier's licence" have the meanings assigned to them, respectively, by section 1 of the Road Transport Act, 1986 (No. 16 of 1986);

"the Register" has the meaning assigned to it by Regulation 9 of these Regulations;

"the Regulations of 1977" means the European Communities (Merchandise Road Transport) Regulations 1977 ( S.I. No. 386 of 1977 );

"relevant offences" means any of the offences specified in the First Schedule to these Regulations;

"statutory declaration" means a declaration under the Statutory Declarations Act, 1938 ;

"transport manager" in relation to a road transport business or to an application for a carrier's licence in respect of such a business, means a person who (a) holds a Certificate of Competence, (b) is of good repute and (c) is designated by notice in writing given to the Minister and is or will be engaged, either as an employee or as the owner of, a partner in or a director of the company carrying on the said business, to manage, continuously and effectively, the merchandise road transport business.

• (2) A word or expression that is used in these Regulations and in the Council Directive of 1974 or the Council Directive of 1977 has, unless the contrary intention appears, the same meaning in these Regulations that it has in the Directive.

3 Requirement to hold a Carrier's Licence

3.

3. Subject to the exemptions provided for in the Road Transport Acts, 1933 to 1986, no person shall in the course of a merchandise road transport business carried on by him, engage in the carriage of goods from a place within the State to a place within the State to a place outside the State or vice versa, unless that person hols an international road freight carrier's licence.

4 Carrier's Licence

4.

4. (1) An application for a carrier's licence shall contain or, where appropriate, be accompanied by—

• (a) where the applicant is an individual, particulars of any relevant offence of which the applicant and, where appropriate, the transport manager, has been convicted in the five year period prior to the making of the application;

• (b) where the application is a partnership, particulars of any relevant offence of which any of the partners or a transport manager of the partnership has been convicted in the five year period prior to the making of the application;

• (c) where the applicant is a company registered under the Companies Acts, 1963 to 1986, particulars of any relevant offence of which the Company or its secretary, transport manager, or any director thereof has been convicted in the five year period prior to the making of the application;

• (d) a statutory declaration in the form set out in the Second Schedule to these Regulations;

• (e) a tax clearance certificate or a C2 certificate issued by the Revenue Commissioners under section 17 of the Finance Act, 1970 ;

• (f) the current registration book and a certificate of insurance relating to each vehicle to be used in the proposed business showing that no amounts are due for registration or insurance in respect of each vehicle for at least one month following the date of application;

• (g) proof of ownership of a goods vehicle over 2.5 metric tons unladen weight, in the form of a receipt of purchase, or a lease or hire agreement or proof of the availability of a vehicle for use by the applicant;

• (h) a statement from a bank or other financial institution showing that the applicant is of appropriate financial standing and has the resources available to establish and administer a merchandise road transport business,

• (i) a certificate of competence issued under the European Communities (Merchandise Road Transport) Regulations, 1977 and 1981, or Regulation 7 of these Regulations to any person who is engaged or is being designated as the transport manager, and

• (j) such other information as the Minister may request.

• (2) In addition to the information required under paragraph (1) of this Regulation, the Minister may seek further particulars of any matters which appears to him to be relevant to his consideration of an application under that paragraph and he may require such particulars to be given to him by means of an affidavit, a statutory declaration, or in such manner as he may direct.

• (3) Nothing in this Regulation shall be construed as imposing a requirement to reveal particulars of any conviction in respect of which a court applied the Probation of Offenders Act, 1907.

• (4)
• (a) An applicant for a carrier's licence who is an individual who satisfies the Minister that he is of good repute, approrpate financial standing and who satisfies the condition as to professional competence shall be deemed to have complied with the requirements of subsection (1) (a) (inserted by the Act of 1986) of Section 11 of the Act of 1933.

• (b) An applicant for a carrier's licence which is a partnership and which satisfies the Minister that the partnership, each of the partners and transport manager is of good repute and that the partnership is of appropriate financial standing and satisfies the condition as to professional competence shall be deemed to have complied with the requirements mentioned in paragraph (a).

• (c) An applicant for a carrier's licence which is a company (incorporated under the Companies Acts, 1963 to 1986), who satisfies the Minister that the company, each of the directors, the company secretary and the transport manager are of good repute and that the said company is of appropriate financial standing and that is satisfies the condition as to professional competence shall be deemed to have complied with the requirements mentioned in paragraph (a).

5 Good Repute

5.

5. In considering whether or not an applicant for a carrier's licence is of good repute, the Minister shall have regard to—

• (a) any conviction of the applicant for a relevant offence, where the applicant is a natural person,

• (b) any conviction for a relevant offence of any of the partners of the applicant, where the applicant trades as a partnership,

• (c) any conviction for a relevant offence of the company or any director thereof, where the applicant is a company incorporated under the Companies Acts, 1963 to 1986,

• (d) any conviction for a relevant offence of the transport manager.

6 Financial Standing

6.

6. In considering whether an applicant for a carrier's licence is of appropriate financial standing the Minister shall take into consideration whether such applicant can prove that there are available to such applicant sufficient financial resources to ensure (where appropriate) the launching and (in any case) the continuity and proper administration of the relevant merchandise road transport business.

7 Professional Competence

7.

7. (1) the Minister shall be the competent Authority for the purposes of Article 3 of the Council Directive of 1974 and may issue a certificate, to be known and in these Regulations referred to as "a certificate of competence", to any natural person applying therefor who meets the appropriate requirements of paragraph (5) of this Regulation.

• (2) The condition as to professional competence shall be satisfied by the engagement of one or more transport managers.

• (3) Where there is a change of transport manager or where a person ceases to be transport manager otherwise than by reason of incapacity or death the Minister shall be notified in writing as soon as possible but in any event not later than fourteen days from such occurrence and in accordance with Article 6 (2) of the Council Directive of 1974 the Minister shall, where appropriate, allow a reasonable period within which a substitute transport manager shall be appointed and shall take up his duties, provided that such period shall not exceed three months from the date on which the person for the time being acting as transport manager has ceased to fulfil that role.

• (4) The Minister may conduct, or appoint a person to conduct on his behalf, examinations for the purposes of these Regulations and he may, in relation to such examinations provide or arrange for the provision of courses or training.

• (5) Subject to paragraph (7) of this Regulation, the Minister may, on an application being made to him by a person in that behalf:

• (a) grant to that person a national certificate of competence where he passes each of the subjects mentioned at A of the Annex to the Council Directive of 1974 in an examination held for the purposes of these Regulations by or on behalf of the Minister, or

• (b) grant to that person an international certificate of competence where he passes each of the subjects mentioned at A & B of the Annex to the Council Directive of 1974 in an examination held for the purposes of these Regulations by or on behalf of the Minister, or

• (c) grant to that person a national or an international certificate of competence, as the case may be, where the person is the holder of any diploma or other qualification recognised for the purpose of this paragraph by the Minister as set out in the Third Schedule of these Regulations.

• (6)
• (a) Where a person was granted an international road freight certificate under Regulation 5 (2) or (4) of the Regulations of 1977, that person, if an individual, or, in the case of an undertaking, the transport manager of the undertaking when the certificate was granted who was also the transport manager before 1 January, 1975, shall, on application to the Minister, be entitled to be granted an international certificate of competence under these Regulations.

• (b) Where an international road freight certificate was granted under Regulation 5 (3) or (5) of the Regulations of 1977—

• (i) if the certificate was granted to an individual, that individual,

• (ii) if granted to an undertaking, its transport manager at the time when the certificate was granted,

shall, if he was accepted as having complied with the requirements of provision (c) of Article 3 of the Council Directive of 1974, be entitled, on application to the Minister, to be granted an international certificate of competence under these Regulations.

• (c) A person who, within twenty-one days after the date of the making of these Regulations, applies to the Minister for an international certificate of competence under these Regulations and satisfies the Minister that, immediately before that date, he qualified for the grant of an international certificate of competence under Regulation 13 (2) of the Regulations of 1977 shall be entitled to be granted an international certificate of competence under these Regulations. Subject thereto, the said Regulation 13 (2) is hereby revoked.

• (d) The Minister may require such information to be given to him as appears to him to be relevant to his consideration of an application under any provision of this paragraph and he may require such information to be given to him on affidavit, by statutory declaration, or in such manner as he may direct.

• (7) Where a person who in accordance with paragraph 5 (a), 5 (b) or 5 (c) of this Regulation wishes to obtain such certificate of competence, he may apply to the Minister in such form as the Minister may direct and the Minister shall, on receipt of such an application, accompanied by the required evidence and on payment of the appropriate fee, grant to that person such certificate of competence.

• (8) A document which is issued for the purposes of the Council Directive of 1974 by the competent authority in a Member State of the European Communities in accordance with the Council Directive of 1977, and corresponds to a national certificate of competence or, as may be appropriate, an international certificate of competence, shall be regarded as proof of professional competence.

8 Continued Compliance

8.

8. (1) To enable the Minister to satisfy himself that each of the requirements of good repute, appropriate financial standing and professional competence continue to be satisfied by the holder of a carrier's licence the Minister may request such holder to provide such information from time to time as the Minister thinks fit.

• (2) The Minister may revoke a carrier's licence where a person to whom a request has been made under paragraph (1) of this Regulation has failed within the period specified by the Minister to provide that information.

9 Register of Certificates of Competence

9.

9. (1) The Minister shall cause to be established and kept a register of certificates of competence (hereinafter referred to as "the Register") and the Register shall be in such form and contain such particulars as the Minister shall from time to time direct.

• (2) The Register shall at all reasonable times be open to inspection by any persons.

• (3) Any person shall be entitled to obtain from the Minister a copy of any entry in the Register.

• (4) Every document purporting to be a copy of an entry in the Register, and purporting to be certified by an officer of the Minister to be true copy of such entry shall, without proof of the signature of the person purporting so to certify or that he was such officer, be received in evidence in any legal proceedings and shall, until the contrary is proved, be deemed to be a true copy of such entry and to be evidence of the terms of such entry.

• (5) Any change in the name or address of a person so registered in the Register shall be notified to the Minister.

10 Fees

10.

10. (1) There shall be paid to the Minister as regards—

• (a) an application for a certificate of competence in accordance with Regulation 7 (5) or 7 (6) (a) or (b) of these Regulations a fee of £10 per application,

• (b) inspection of the Register as provided for under Regulation 9 of these Regulations a fee of £3 per hour or part thereof,

• (c) the provision of a copy of any entry in the Register as provided for under Regulation 9 of these Regulations a fee of £5 per copy.

• (2) The following provisions shall have effect in relation to all fees payable to the Minister under this Regulation, namely:

• (a) a fee in respect of an application for a certificate of competence shall be retained by the Minister whether or not the application under paragraph 1 (a) of this Regulation is granted,

• (b) the fees shall be collected in money and taken in such manner as the Minister for Finance may from time to time direct, and shall be paid into the Exchequer in accordance with the directions of the Minister for Finance,

• (c) the Public Offices Fees Act, 1879, shall not apply in respect of such fees.

11 Notification of Death or Incapacity

11.

11. (1) Where the holder of a carrier's licence ceases to carry on or through ill-health becomes incapable of carrying on the relevant merchandise road transport business, the Minister shall be notified in writing as soon as may be, and in any event not later than two months from the occurrence of the event in question.

• (2) Where the holder of a carrier's licence dies, the personal representative of such holder shall, as soon as may be, and in any event not later than 2 months from the occurrence of the event in question, inform the Minister in writing.

• (3) Where a transport manager ceases by death to manage or, becomes through ill-health incapable of effectively managing the relevant merchandise road transport business, the holder of the carrier's licence shall, as soon as may be, and in any event not later than two months from the occurrence of the event in question, inform the Minister in writing.

12 Penalties

12.

12. (1) Any person who contravenes Regulation 3 of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

• (2) Any person who for the purpose of obtaining, whether for himself or another, the grant of a carrier's licence or a certificate of competence makes a declaration or statement or provides information which he knows to be false in a material particular or recklessly makes a declaration or statement or provides information which is so false shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or, at the discretion of the Court, to both.

13 Prosecutions by Minister

13.

13. An offence under these Regulations may be prosecuted by the Minister.

14 Revocation of 1977 and 1981 Regulations

14.

14. Subject to Regulation 7 (6) (c) of these Regulations, the European Communities (Merchandise Road Transport) Regulations, 1977 and 1981, and all Road Freight Certificates issued under those Regulations shall stand revoked on 30th September, 1988, provided however that such revocation shall not affect certificates of competence granted under those Regulations which said certificates shall continue in force as if they had been granted under these Regulations.

FIRST SCHEDULE

Relevant Offences under Regulation 5

• (b) any offence,

• (i) committed by the use (including driving), the attempt so to use or the permitting so to be used, or which otherwise arose in relation to a mechanically propelled vehicle that at the time of the offence was used for or in connection with the transport of merchandise by road, and

• (ii) which is an offence under the Road Traffic Act, 1961 , and which is an offence specified in the Second Schedule to that Act, as amended;

• (c) any offence under the Road Transport Act, 1933 ;

• (d) any offence under these Regulations;

• (e) any offence under the Dangerous Substances (Conveyance of Petroleum by Road) Regulations, 1979, or the Dangerous Substances (Conveyance of Scheduled Substances by Road) (Trade or Business) Regulations, 1986;

• (f) any offence under any Regulation made by the Minister under the European Communities Act, 1972 , relating to the carriage of goods by road;

• (g) any offence under the Offences against the State Act, 1939 ;

• (h) any offence under section 27 , 28 or 29 of the Diseases of Animals Act, 1966 ;

• (i) any offence under sections 168 or 186 of the Customs Consolidation Act, 1876;

• (j) any offence under section 3 of the Customs Act, 1956 ;

• (k) any offence under section 19 of the Misuse of Drugs Act, 1977 insofar as it relates to offences involving a vehicle;

• (l) any offences under the Firearms Acts, 1925 to 1971 as amended;

• (m) any offences under the Explosive Substances Act, 1883;

• (n) any offences under section 10 of the International Carriage of Perishable Foodstuffs Act, 1987 ;

• (o) any offence under section 33 of the Larceny Act, 1916 insofar as such conviction relates to the use of a haulage vehicle;

• (p) any offence under (a) section 21 of the Finance Act, 1935 , and (b) section 72 of the Finance Act, 1976 ;

• (q) any offence under section 30 of the Agriculture Produce (Fresh Meat) Act, 1930;

• (r) any offence under a law in force in a Member State of the European Communities, other than the State and which corresponds to any of the foregoing offences.

• (s) any indictable offence.

• (a) to any Act or Regulation shall be construed as a reference to that Act or Regulation as amended by any subsequent Act or Regulation.

• (b) to any specified section of an Act shall be construed as a reference to any Regulations made under that section.

SECOND SCHEDULE

Forms of Declaration referred to in Regulation 4 (1) (d)

I, ................................................. of ...................................................., do solemnly and sincerely declare that

• (1) I am neither a bankrupt nor a person in relation to whom there is in existence an arrangement with creditors, whether under the control of a court or otherwise or*

• *(2) I, being a partner in ...................................... (which said partnership is applying for the grant of a carrier's licence) am neither a bankrupt nor a person in relation to whom there is in existence an arrangement with creditors, whether under the control of a court or otherwise or

(In the case of a partnership' each partner should complete this declaration)

• *(3) Neither I, being the secretary of ..............................................., Ltd/plc (applicant for the grant of a carrier's licence) nor any director, manager, or officer of the said Company has been a secretary, director, manager or officer of a company which has been wound up by the High Court (other than

............................. who was involved in ...................................... as .................. being a company which was wound up by the High Court).

*Delete where not applicable.

Declared etc.	Applicant: ............................................. (signature)

THIRD SCHEDULE

GIVEN under my Official Seal, this 26th day of July, 1988.

JOHN P. WILSON,

Minister for Tourism and Transport.

EXPLANATORY NOTE.

The purpose of the Regulations is to:

— provide for the application of the access requirements, laid down in EC Directive No. 74/561 and given effect in Irish law by the European Communities (Merchandise Road Transport) Regulations, 1977 and 1981, to applicants for Carrier's Licences under the Road Transport Act, 1986 ;

— improve and strengthen the criteria for meeting the three access requirements of good repute, appropriate financial standing and professional competence;

— provide for the revocation of the facility whereby persons could up to the making of these Regulations apply for Certificates of Competence based on experience prior to 1975 either as operator or manager of a lawfully established merchandise road transport business;

— levy fees for grant of Certificates of Competence, inspection of the Register and issue of copies from the Register;

— provide for the introduction of penalties in cases where applicants make false or misleading statements for the purpose of obtaining either a Carrier's Licence or a Certificate of Competence, and for operation of an international road transport business by the holder of a national Carrier's Licence; and

— provide for the revocation of all Road Freight Certificates on 30 September, 1988.