JUDGMENT OF 22. 3. 1979 — CASE 145/78 AUGUSTIJN v STAATSSECRETARIS VAN VERKEER EN WATERSTAAT

In Case 145/78 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

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

JUDGMENT

Facts and Issues

I — Facts and written procedure

A — The Council Directive

B — The national legislation applicable

C — The facts

D — The question referred for a preliminary ruling

II — Summary of the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations submitted by Mr Augustijn

B — Observations submitted by the Netherlands Government

C — Observations submitted by the Commission of the European Communities

Decision

Costs

I —. Facts and written procedure

A —. The Council Directive

B —. The national legislation applicable

C —. The facts

D —. The question referred for a preliminary ruling

II —. Summary of the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations submitted by Mr Augustijn

B —. Observations submitted by the Netherlands Government

C —. Observations submitted by the Commission of the European Communities

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).

2. This question was raised in the context of a dispute over the dismissal by the Staatssecretaris van Verkeer en Waterstaat (Secretary of State for Transport, Water Control and Construction) of the appellant's application of 23 December 1976 for exemption from the condition of professional competence referred to in the last sentence of Article 56 (1) of the Wet Autovervoer Goederen (Law on the carriage of goods by motor vehicle). The ground for that refusal was that, although the applicant possessed sufficient experience in the field of the carriage of goods, he had not gained that experience in the undertaking to be operated.

3. It appears from the case file that the appellant in the main action and his brother, who are both panners in a partnership authorized to undertake transport by lorry to no fixed schedules, intended to dissolve that partnership and continue their activities in the form of two separate undertaking to be set up.

4. The Staatssecretaris applied Article 56 (1-) of the Wet Autovervoer Goederen, according to which authorization to engage in the occupation of transport operator shall be granted only if inter alia the condition of professional competence is satisfied, although the minister is empowered to grant exemptions in special cases. The Decision implementing that law provides that in order to satisfy the condition of professional competence it is necessary to be in possession of a technical diploma recognized by the minister and in addition submit a declaration by the competent inspector certifying two years' paid employment with an undertaking engaged in the carriage of goods.

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 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.

6. The Raad van State asked the following question :

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 authorized 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.

8. Article 4 (2) concerns the condition subject to which a person not satisfying the condition of professional competence may be authorized definitively to operate a transport undertaking when the same situation arises, namely at least three years' practical experience in the day-to-day management of the undertaking concerned. Article 4 (2), which by way of exception and in certain duly justified special cases authorizes the Member States to grant definitive exemption from the condition of professional competence for the operation of a transport undertaking only to such persons as possess at least three years' practical experience in the day-to-day management of the said undertaking, does not cover the case of a person who does not have the intention of continuing to operate the same undertaking.

9. However, that provision 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 experience in the day-to-day management of the same undertaking, decide to carry it on in the form of two new undertakings.

10. The costs incurred by the Netherlands Government and by the Commission of the European Communities, which submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action 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 Raad van State by an interlocutory judgment of 7 June 1978, hereby rules: