Opinion of Advocate General Van Gerven delivered on 20 October 1993

1 Original language: Dutch.

2 OJ 1974 L 308, p. 18.

3 At the same time as Directive 74/561/EEC, the Council adopted, on 12 November 1974, Directive 74/562/EEC, parallel with the first and concerning admission to the occupation of road passenger transport operator in national and international transport operations. The wording of Articles 1(1). 2(1), first subparagraph, and (3) of the latter is exactly the same as that of Articles 1(1), 3(1), first subparagraph, and (3) of the former, which I have cited above.

4 Council Directive 89/438/EEC of 21 June 1989 amending Directive 74/561/EEC on admission to the occupation of road haulage operator in national and international transport operations, Directive 74/562/EEC on admission to the occupation of road passenger transport operator in national and international transport operations and Directive 77/796/EEC aiming at the mutual recognition of diplomas, certificates and other evidence of formal qualifications for goods haulage operators and road passenger transport operators, including measures intended to encourage these operators effectively to exercise their right to freedom of establishment (OJ 1989 L 212, p. 101).

5 Belgisch Staatsblad, 19 October 1978, p. 12464.

6 This is not the place for considering the question whether such a summary provision could be deemed to implement the Directive satisfactorily.

7 Royal Decree amending the Royal Decree of 5 September 1978 laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations {Belgisch Staatsblad, 22 October 1987, p. 15301).

8 Royal Decree laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations.

9 Article 21 of this decree provides that the guarantee shall be applied in its entirety to secure the debts of the undertaking ... provided that such debts arise from pursuit of the business of road haulage operator and that such business is covered by a transport certificate, genera! national transport licence or general international transport licence.

10 Article 40(2). No 2. of the Royal Decree of 5 September 1978. as amended, by that of 11 September 1987. provides that the surety shall be discharged ifit wishes to be released from its obligations: on the expiry of three months com mencing on the date when the Minister of Communications receives the registered letter notifying him of such decision.

11 The Commission also observes that the acts which arc the subject of the main proceedings took place before 1 January 1990, whereas Article 5(1) of Directive 89/438 states that it applies from that date. This appears to be correct with regard to the facts of Case C-21/93 (sec paragraph 7), but not beyond dispute with regard to those of Case C-20/93, some of which at least took place in 1990 (sec paragraph 7). However, the question docs not appear to be material and, if it were, it would fall to be decided by the national court.

12 Case C 106/89 Marleanng v Im Comercial Internacional de Alimentación [1990] LCR I 4135, paragraph 8.

13 The Belgian Government has not commented on the question. It merely observes that the Royal Decrees of 1989 and 1991 implement Directives 74/561 and 89/438 correctly, as the Commission has confirmed, and that in its opinion, the 1978 Decree, as amended in 1987, should be interpreted in the manner proposed by DKV and Mobil Oil. Therefore the Belgian Government has not stated its views on whether the Directive necessitates such interpretation.

14 The amended text of Article 3(3) merely requires the undertaking concerned to have a certain minimum capital (letter (c)) and the competent authorities of the Member States to have regard to certain factors set out in letter (b) for assessing financial standing.