First Memorandum by the
Department of the Environment, Transport and the Regions
1999 (S.I. 1999/3413)
1. The Committee has requested
a memorandum on the following points:
If the term "cabotage
transport operations" in regulation 1(2), and the term "Community
licence" in regulation 3(1), of this instrument are intended
to bear the meanings assigned to them in Article 1 of Council
Regulation (EC) No. 12/98, explain why no cross-reference to that
Article was made in this instrument.
2. The Department took the view
that in the context of the Council Regulation cross-referencing
was unnecessary on the ground that the Courts were bound to refer
to Article 1 in any event. However, on further reflection the
Department accepts that cross-referencing would have been helpful
to the reader and will bear the point in mind for the future.
It appears to
follow from regulation 3, read with regulation 10, of this instrument
that a Community carrier with a valid Community licence may carry
out any cabotage transport operations in Great Britain including
such operations excluded by virtue of Article 3 of Council Regulation
12/98 from its scope. If that is the effect of this instrument,
explain on what the Secretary of State relies for its making under
section 2(2) of the European Communities Act 1972.
3. A valid Community licence
would not be required for UK cabotage operations which are authorised
under Article 3. Council Regulation 12/98 is directly applicable
and has direct effect, and therefore regulation 3 does not create
an offence as respects carriers who are authorised to carry out
cabotage transport operations by operation of law, but does create
an offence as respects carriers who are required to have a valid
Community licence to carry out cabotage transport operations.
Section 2(2) of the European Communities Act 1972 would be the
appropriate power in such circumstances.
Does the offence
created by regulation 4(1) of this instrument extend to contravention
of Article 6(4) (if, for example, the carrier and the transport
organiser were to rely on a purely oral contract)?
4. Regulation 4(1) only applies
to "occasional services". It does not, therefore, extend
to a contravention of Article 6(4).
applies in the case of a road passenger transport carrier established
in a Member State of the European Community other than the United
Kingdom. In respect of regulation 5, explain how a United Kingdom
traffic commissioner or the Secretary of State can be the competent
authority of the Member State of establishment of a Community
carrier to whom the instrument relates, given that such a carrier,
by definition will not be established in the United Kingdom.
5. The competent authority of
the Member State of establishment is required to carry out functions
under or in connection with Articles 7, 9, 11(2) (in so far as
required by 11(3)), 11(3) and 11(4). The host Member State is
required to carry out functions under Article 11(2). Regulation
5 is intended to do no more than nominate the competent authority
for the United Kingdom to carry out its tasks as Member State
of establishment. It was not the Department's intention to make
the Secretary of State the competent authority of the Member State
of establishment in respect of a carrier established elsewhere.
The Department has omitted in these Regulations to appoint the
competent authority in the United Kingdom to carry out the functions
required of the host Member State under Article 11(2). The Department
apologises for the error and will make amending Regulations shortly.
7th February 2000