S.I. No. 18/1988:

EUROPEAN COMMUNITIES (TRANSPORT AUXILIARIES) REGULATIONS, 1988.

EUROPEAN COMMUNITIES (TRANSPORT AUXILIARIES) 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), with the consent of the Minister for the Marine, in so far as these Regulations relate to the activities specified in Regulation 3 (a) (ii), 3 (a) (iii) and 3 (a) (v) of these Regulations, and of the Minister for Agriculture and Food, in so far as these Regulations relate to the activity specified in Regulation 3 (c) of these Regulations, and for the purpose of giving effect to Council Directive No. 82/470/EEC of 29 June, 1982¹, hereby make the following Regulations:

¹O.J. No. L213, 21.7.1982., p.1.

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

2. (1) In these Regulations--

"certificate of experience" means a certificate issued by the competent authority pursuant to Article 7 (3) of the Council Directive;

"competent authority" has the meaning specified in Regulation 4 of these Regulations;

"the Council Directive" means Council Directive No. 82/470/EEC of 29 June, 1982¹;

"Member State" means a member state of the European Communities;

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

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

3. These Regulations shall apply to the activities specified at points A, B and C of Article 2 of the Council Directive in respect of which the usual titles current in the State are--

(a) in relation to the activities specified at point A of the said Article 2, as follows--

(i) Forwarding agent,

(ii) Shipping and forwarding agent,

(iii) Shipbroker,

(iv) Freight agent,

(v) Shipping agent,

(vi) Air freight agent, and

(vii) Road haulage broker,

(b) in relation to the activities specified at point B of the said Article 2, as follows--

(i) Travel agent,

(ii) Tour operator,

(iii) Air broker, and

(iv) Air travel organiser,

and

(c) in relation to the activity specified at point C of the said Article 2, as follows--

Market or lairage operator.

4. The competent authority in the State for the purposes of the Council Directive shall be--

(a) in relation to the activities specified in Regulation 3 (a) (i), 3 (a) (iv), 3 (a) (vi), 3 (a) (vii) and 3 (b) of these Regulations, the Minister;

(b) in relation to the activities specified in Regulation 3 (a) (ii), 3 (a) (iii) and 3 (a) (v) of these Regulations, the Minister for the Marine;

(c) in relation to the activity specified in Regulation 3 (c) of these Regulations, the Minister for Agriculture and Food.

5. (1) A citizen of the State, or a citizen of any other Member State, who has acquired in the State the experience specified in Article 6 of the Council Directive, and who wishes to take up and pursue in a Member State (other than the State) any of the activities to which these Regulations apply, may apply to the competent authority for a certificate of experience.

(2) Every application pursuant to paragraph (1) of this Regulation for a certificate of experience shall be in writing and shall be accompanied by--

(a) sufficient documentary evidence to establish that the applicant possesses the required experience in the activity in relation to which the certificate is sought; and

(b) a fee of £50 which shall be non-refundable.

(3) Every applicant for a certificate of experience shall furnish, within such time as may be specified in the requirement, to the competent authority such additional documents or evidence of experience as the competent authority may require.

6. (1) The competent authority shall grant a certificate of experience if he is satisfied that the applicant therefor satisfies the requirements of Article 6 of the Council Directive.

(2) If the competent authority is not so satisfied, or if the applicant fails or refuses to furnish any additional documents or evidence which the competent authority may require, the competent authority shall refuse to grant the certificate of experience.

7. (1) Without prejudice to the provisions of section 6 of the Transport (Tour Operators and Travel Agents) Act, 1982 (No. 3 of 1982), where a person who is a national of a Member State (other than the State) applies for a licence under Part II of that Act, the following provisions shall apply--

(a) insofar as the Minister's consideration of the application depends on proof of the good repute of the applicant or proof that the applicant has not previously been declared bankrupt, the Minister shall accept as such proof a document which complies with the provisions of paragraph 1 of Article 4 of the Council Directive;

(b) insofar as the Minister's consideration of the application depends on proof of any matter relating to the good repute of the applicant which cannot be ascertained from a document which complies with the provisions of paragraph 1 of Article 4 of the Council Directive, the Minister shall accept as such proof a certificate which complies with the provisions of paragraph 2 of the said Article 4;

(c) insofar as the Minister's consideration of the application depends on proof of the financial standing of the applicant, the Minister shall regard a certificate issued by a bank in a Member State (other than the State) as having the same force and effect as a certificate issued by a bank in the State;

(d) insofar as the Minister's consideration of the application depends on his satisfying himself as to the general, commercial or professional knowledge or ability of the applicant, the Minister shall accept as sufficient evidence of such knowledge or ability the fact (which fact may be established by the production of a certificate issued by the competent authority or body in the Member State of origin of the applicant or the Member State from whence the applicant comes) that the applicant has successfully pursued the activity of tour operator or travel agent, as the case may be, in a Member State (other than the State) for any of the periods referred to in paragraph 3 of Article 6 of the Council Directive.

(2) If an applicant, who is a national of a Member State (other than the State), for a licence under Part II of the Transport (Tour Operators and Travel Agents) Act, 1982 , is unable to provide, in support of his application, a document which complies with the provisions of paragraph 1 of Article 4 of the Council Directive or a certificate which complies with the provisions of paragraph 2 of that Article because the relevant authority in his country of origin has not issued such a document or certificate, such applicant may provide in support of his application a declaration on oath or, as the case may be, a solemn declaration, which complies with the provisions of paragraph 3 of the said Article 4.

8. (1) Whenever the competent authority proposes to refuse to grant a certificate of experience, the competent authority shall notify in writing the applicant of the proposal, and of the reasons therefor, and shall, if any representations are made by the applicant within 28 days after the date of such notice, consider the representations.

(2) Whenever the competent authority, having considered the representations (if any) that may have been made by or on behalf of the applicant, decides to refuse to grant the certificate of experience, the competent authority shall notify in writing the applicant accordingly, and the applicant may, within 21 days after the date of such notice, appeal to the District Court against such refusal.

(3) On the hearing of an appeal pursuant to paragraph (2) of this Regulation in relation to the refusal of the grant of a certificate of experience, the District Court may either confirm the refusal, or may allow the appeal, and if the appeal is allowed, the competent authority shall thereupon grant the certificate of experience.

(4) The decision of the District Court on an appeal pursuant to paragraph (2) of this Regulation shall be final save that, by leave of that Court, an appeal on a specified question of law shall lie to the High Court.

9. Any person who, for the purpose of obtaining for himself or for any other person a certificate of experience--

(a) knowingly makes a statement which is false or misleading, or

(b) knowingly furnishes a document which is false or which has been fraudulently obtained,

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 such fine and such imprisonment.

10. Summary proceedings in relation to an offence under these Regulations may be brought and prosecuted by the Minister, the Minister for the Marine or the Minister for Agriculture and Food, as the case may require.

11. (1) Fees payable under these Regulations shall be collected 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.

(2) The Public Offices Fees Act, 1879, shall not apply in respect of fees payable under these Regulations.

GIVEN under my Official Seal, this 10th day of February, 1988.

JOHN P. WILSON,

Minister for Tourism and Transport.

The Minister for the Marine hereby consents to the foregoing Regulations in so far as they relate to the activities specified in Regulation 3 (a) (ii), 3 (a) (iii) and 3 (a) (v) of these Regulations.

GIVEN under the Official Seal of the Minister for Marine,

this 10th day of February, 1988.

BRENDAN DALY,

Minister for the Marine.

The Minister for Agriculture and Food hereby consents to the foregoing Regulations in so far as they relate to the activity specified in Regulation 3 (c) of these Regulations.

GIVEN under the Official Seal of the Minister for Agriculture and Food,

this 10th day of February, 1988.

MICHAEL O'KENNEDY,

Minister for Agriculture and Food.

EXPLANATORY NOTE.

These Regulations, which were made by the Minister for Tourism and Transport, give effect to Council Directive 82/470/EEC, so as to facilitate the freedom of establishment and the freedom to provide services, in Member States of the European Communities, for certain appropriately experienced transport auxiliaries, that is to say, self-employed persons or employees whose current titles in Ireland are:

Category A -- Forwarding agent; Freight agent; Air freight agent; Road haulage broker; Tour operator; Travel agent; Air broker; Air travel organiser.

Category B -- Shipping and forwarding agent; Shipping agent; Shipbroker.

Category C -- Market or lairage operator.

The Regulations provide for the grant of a certificate of experience, by the appropriate competent authority in the State, to any appropriately experienced person -- whether an Irish citizen, or a citizen of any other EC Member State who acquired the relevant experience in the State-- wishing to operate as a transport auxiliary in any other EC Member State. A non-refundable fee of £50 must accompany every application for such a certificate and any person who knowingly makes a false statement, etc., for the purpose of obtaining such a certificate will be guilty of an offence and punishable by a fine not exceeding £1,000 and/or 12 months' imprisonment. The competent authority in the State in relation to:

Tour operators and travel agents are the only transport auxiliaries who are specifically regulated by Irish law, namely, the ( Transport (Tour Operators and Travel Agents) Act, 1982 ) (No. 3 of 1982). Accordingly, the Regulations make the required provision, in accordance with the Council Directive, in relation to the appropriate proof of good repute, financial standing and experience which may be required to be given by any national of another EC Member State who applies to the Minister for Tourism and Transport for a licence under that Act to operate as a tour operator or travel agent in Ireland.