Statutory Doc 3 - Transport Managers

SENIOR TRAFFIC COMMISSIONER

Statutory Document No. 3

TRANSPORT MANAGERS

This document is issued pursuant to section 4C of the Public Passenger Vehicles Act 1981 (as

amended). Representative organisations have been consulted in accordance with that provision.

Contents: Page

GUIDANCE

Goods Vehicles Legislation: The Goods Vehicles (Licensing of Operators) Act

1995

Passenger Carrying Vehicles Legislation: The Public Passenger Vehicles Act

1981

Case Law

DIRECTIONS

Determining Factors

Repute

Genuine Link (Internal and External Transport Managers)

General Responsibilities

Professional Competence

Acquired Rights (Formerly Known as ‘Grandfather Rights’)

Appeals Against Decisions Not to Issue an Acquired Rights Certificate

Checking Transport Manager Records

Periods of Grace

Annex 1 - Starting Point for Assessing the Capacity to Exercise Continuous and

Effective Management

R Turfitt

Senior Traffic Commissioner

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GUIDANCE

1. The Senior Traffic Commissioner for Great Britain issues the following Guidance

under section 4C(1) of the Public Passenger Vehicles Act 1981 (“1981 Act”) and

by reference to section 1(2) of the Goods Vehicles (Licensing of Operators) Act

1995 (“1995 Act”) to provide information as to the way in which the Senior Traffic

Commissioner believes that traffic commissioners should interpret the law in

relation to the requirements for and on transport managers.

2. A transport manager must be of good repute.1 The Certificate of Professional

Competence (CPC) must be appropriate for the type of licence being applied for.

Only those persons who can fulfil the statutory requirements for having

continuous and effective responsibility for the management of the transport

operations of the business in so far as they relate to the carriage of goods or

passengers (as defined below) can act as a transport manager. The transport

manager retains legal responsibility regardless of whether their individual

activities are delegated.

Goods Vehicles Legislation: The Goods Vehicles (Licensing of Operators) Act

1995

3. Standard licence holders and applicants for standard licences are required to

meet the requirements of professional competence. Section 13(1) requires the

applicant to satisfy the traffic commissioner that the requirements of section 13A

and 13C are met. Section 13A contains a requirement that an applicant for a

standard licence is professionally competent (in accordance with paragraphs 13

and 14A of Schedule 3).

4. A designated transport manager must meet the requirements of paragraph 14A

as follows:

• be a resident of the United Kingdom;

• be of good repute (in accordance with paragraphs 1 to 5 of Schedule 32

);

• be professionally competent (in accordance with paragraph 13 of Schedule

);

• effectively and continuously manages the transport activities of the

undertaking;

• is not prohibited from acting as a transport manager by a traffic commissioner;

and

• in the case of an external transport manager, is not designated to act in that

capacity for more than 4 operators or be responsible for more than 50 motor

vehicles or such smaller number as the traffic commissioner considers

appropriate.

5. Section 22(2)(a) and 22(2)(b) make it a condition of the licence for an operator to

inform the traffic commissioner of any change within 28 days that would affect

the fulfilment to be professionally competent and/or of any event which affects

1 See Statutory Guidance and Statutory Directions on Good Repute and Fitness and Statutory Guidance and

Statutory Directions on the Principles of Decision Making

2 2018/046 Mark Clinton – a competent and reputable transport manager should be aware of these provisions

3 The Secretary of State‘s powers to exempt an individual under paragraph 12 of Schedule 6, from the requirements

of professional competence, apply for the purpose of light goods vehicle licences only - see paragraph 11 of

Schedule 6

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the requirements under section 13A or paragraph 14A of Schedule 3. The traffic

commissioner then has discretion to consider a period of grace up to 6 months

to find a replacement (and a further 3 months in the case of death or incapacity

of the transport manager).

6. The statutory definition of “transport manager” in section 58, by reference to

section 13A(5), means ‘an individual employed by an undertaking or, if that

undertaking is an individual, that person or, where provided for, another individual

designated by that undertaking by means of a contract, who effectively and

continuously manages the transport activities of that undertaking’. Paragraph

14A of Schedule 3 refers to that person having a genuine link to the undertaking,

such as being an employee, director, owner or shareholder or administering it.

7. Under paragraph 15 of Schedule 3 a traffic commissioner cannot make an

adverse finding against an existing transport manager’s repute unless a notice

has been properly served4 on that transport manager:

• stating whether repute and/or professional competence is at issue;

• setting out the nature of the allegations;

• giving the transport manager 28 days from the date of service to make

representations; and

• stating that the transport manager is entitled to request an inquiry as provided

in section 35.

A traffic commissioner must consider any representations received under section

35 and hold a hearing if requested.

8. Under paragraph 16(1) of Schedule 3, where a traffic commissioner finds that a

transport manager has been convicted of a serious criminal offence or incurred

a penalty for one or more serious infringements that would lead to a loss of good

repute, in accordance with paragraph 5(2) the traffic commissioner must consider

whether a finding that the person was no longer of good repute would constitute

a disproportionate response and that consequently good repute is unaffected.

Any such finding must be duly reasoned and justified; the reasons shall be

recorded in the national register. If the traffic commissioner does not find that the

loss of good repute would be disproportionate the conviction or penalty shall lead

to a loss of good repute.

9. Under paragraph 16(2) of Schedule 3, where a traffic commissioner determines

that a transport manager has lost their good repute, the traffic commissioner must

order the person to be disqualified from acting as a transport manager. Whilst the

disqualification is in force the person may not act as a transport manager in

relation to any operator’s licence. The disqualification order can either be

indefinite or for such period as the commissioner thinks fit.5

10. However, under paragraph 17 of Schedule 3 (as amended by The Goods

Vehicles (Licensing of Operators) (Amendment) Regulations 2022), where a

transport manager is disqualified the traffic commissioner who made the order

4 Deemed served on the date on which it would have been delivered in the ordinary course of post to the transport

manager’s last known address, notwithstanding that it was returned as undelivered or was for any other reason

not received by the transport manager. See Statutory Guidance and Statutory Directions on Operating Centres,

Stable Establishment and Addresses for Service

5 See Statutory Guidance and Statutory Directions on Principles of Decision Making for suggested starting points

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may cancel the order no earlier than one year, beginning with the day on which

the order was made and only if the disqualified person has, after the order was

made:

• passed the written examination referred to in paragraph 13(1)(a); or

• for no less than three months undertaken training a traffic commissioner

considers appropriate.

11. A disqualification order can also be varied with the consent of the disqualified

person, either upon application by the disqualified person or of the traffic

commissioner’s own volition and only after serving notice stating:

• the intention to vary the measures specified;

• that the person is entitled to make representations within 28 days from the

date of notice; and

• that the person is entitled to request a hearing.

The traffic commissioner may specify measures with which the disqualified

person must comply before the order can be cancelled or varied.

Passenger Carrying Vehicles Legislation: The Public Passenger Vehicles Act

1981

12. Regulation 5 of the Road Transport Operator Regulations 2011 states that a

standard licence granted under the 1981 Act constitutes an authorisation to

engage in the occupation of road transport operator for the purposes of

Regulation (EC) No 1071/2009 in the capacity of road passenger transport

operator.

13. Standard licence holders and applicants for standard licences are required to

meet the requirements of professional competence. Section 14 requires the

traffic commissioner to be satisfied that an applicant for a standard licence meets

the requirements of sections 14ZA and 14ZC. 14ZA(1) requires an applicant to

be professionally competent (as determined in accordance with paragraphs 3, 4

and 6 of Schedule 3).

14. A designated transport manager must, by reference to section 82 of the 1981

Act6

, meet the requirements of Article 4 as follows:

• be of good repute (in accordance with paragraph 1 of Schedule 3);

• be professionally competent (in accordance with paragraph 6 of Schedule 3);

• effectively and continuously manages the transport activities of the

undertaking;

• is not prohibited from acting as a transport manager by a traffic commissioner;

and

• in the case of an external transport manager, is not designated to act in that

capacity for more than 4 operators or be responsible for more than 50 vehicles

or such smaller number as the traffic commissioner considers appropriate.

“transport manager” has the same meaning as in Regulation (EC) No 1071/2009

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15. Section 17(3)(b) makes it a condition of the licence for an operator to inform the

traffic commissioner of any change within 28 days. The traffic commissioner then

has discretion to consider a period of grace up to 6 months (and a further 3

months in the case of death or incapacity) to find a replacement.

16. The statutory definition of “transport manager” in section 82 (as amended by

Regulation (EC) No 1071/2009) means ‘a natural person employed by an

undertaking or, if that undertaking is a natural person, that person or, where

provided for, another natural person designated by that undertaking by means of

a contract, who effectively and continuously manages the transport activities of

that undertaking’. Article 4(1) of Regulation (EC) No 1071/2009 refers to that

person having a genuine link to the undertaking, such as being an employee,

director, owner or shareholder or administering it. It also refers to Regulation (EC)

No 1073/2009 of the European Parliament and of the Council of 21 October 2009,

amending Regulation (EC) No 561/2006, on common rules for access to the

international market for coach and bus services.

17. Under paragraph 7A of Schedule 3 of the Act a traffic commissioner cannot make

an adverse finding against a transport manager’s repute in respect of an existing

licence, unless a notice has been properly served7 on that transport manager:

• stating whether repute and/or professional competence is at issue;

• setting out the nature of the allegations;

• giving the transport manager 28 days from the date of service to make

representations; and

• stating that the transport manager is entitled to request an inquiry as provided

in section 54.

A traffic commissioner must consider any representations received under section

54 and hold a hearing if requested.

18. Under paragraph 7B(1) of Schedule 3 (as amended by Article 6(2) of Regulation

(EC) No 1071/2009), where a traffic commissioner finds that a transport manager

has been convicted of a serious criminal offence or incurred a penalty for one or

more serious infringements that would lead to a loss of good repute, the traffic

commissioner must consider whether a finding that the person was no longer of

good repute would constitute a disproportionate response and that consequently

good repute is unaffected. Any such finding must be duly reasoned and justified,

and the reasons shall be recorded in the national register. If the traffic

commissioner does not find that the loss of good repute would be

disproportionate the conviction or penalty shall lead to a loss of good repute.

19. Article 14(1) of Regulation (EC) No 1071/2009 provides that where a transport

manager loses good repute in accordance with Article 6 (as set out above) the

traffic commissioner shall declare that transport manager unfit to manage the

transport activities of an undertaking. Article 14(2) provides that unless and until

a rehabilitation measure is taken in accordance with the relevant provisions of

national law the CPC shall no longer be valid in any Member State.

7 Deemed served on the date on which it would have been delivered in the ordinary course of post to the transport

manager’s last known address, notwithstanding that it was returned as undelivered or was for any other reason

not received by the transport manager. See Statutory Guidance and Statutory Directions on Operating Centres,

Stable Establishment and Addresses for Service

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20. Under paragraph 17B(2) of Schedule 3 (as amended by the Road Transport

Operator Regulations 2011), where a traffic commissioner determines that a

transport manager has lost their good repute, the traffic commissioner must order

the person to be disqualified from acting as a transport manager. Whilst the

disqualification is in force the person may not act as a transport manager for any

road transport undertaking and their CPC is not valid. The disqualification order

can either be indefinite or for such period as the commissioner thinks fit.

21. However, under paragraph 7C of Schedule 3 (as amended by the Road Transport

Operator Regulations 2011), where a transport manager is disqualified the traffic

commissioner who made the order may, at any time, cancel the order or, with the

consent of the disqualified person, vary the order, either upon application by the

disqualified person or of the traffic commissioner’s own volition and only after

serving notice stating:

• the intention to vary the measures specified;

• that the person is entitled to make representations within 28 days from the

date of notice; and

• that the person is entitled to request a hearing.

The traffic commissioner may specify measures with which the disqualified

person must comply before the order can be cancelled or varied.

Case Law

22. This Guidance may be subject to decisions of the higher courts and to

subsequent legislation. The Senior Traffic Commissioner has extracted the

following principles and examples from existing case law.

23. The Upper Tribunal has emphasised the: “need for a proper, active transport

manager is not a mere formality but a serious requirement.” 8

It follows that a

transport manager should not be one in name only but should actively discharge

their duty to exercise continuous and effective management. Transport managers

should be able to supply a suitable certificate of qualification.9 This can be by way

of examination or entitlement (formerly “Grandfather Rights” now “Acquired

Rights”). Transport managers need to also be of good repute and should be

prepared to supply a certificate or equivalent document issued by a competent

authority from the EU Member State in which they used to reside.10 It is

incumbent upon the operator to ensure that any appointed transport manager

has the continuing ability and determination to give full and practical application

to the statutory duties.11

24. Continuous and effective responsibility means just that. An applicant or operator

can be taken to be aware of the various guidance documents issued on behalf of

the Senior Traffic Commissioner.12 When nominating an individual as a transport

manager it will be necessary to show that the person concerned will be able to

8 2017/023 Robert Arrowsmith trading as Arrowhead Contractors

9 2004/021 Carway Haulage Ltd. All new CPC qualifications will equip the holder to exercise effective management

of international operations. If a standard licence operator is contemplating international work then the operator

must ensure that the nominated CPC holder either holds a new style CPC or an old style international qualification.

10 2021/561 Pawel Damian Kaptur and KPD Haulage Ltd

11 2000/018 Euroline Transport Ltd and 2008/315 L C Mistry

12 2012/030 M G M Haulage & Recycling Ltd

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exercise that level of responsibility. The traffic commissioner must be in a position

to assess how much time that individual will devote to the business in question,

what other demands that person will have on their time and what contractual

relationship exists between the individual and the applicant/operator.

13 A

transport manager should be able to show that, however infrequently vehicles

return to the operating centre, he or she is able to and does exercise continuous

and effective management of the vehicles on a day to day basis. The

requirements of the legislation14 are unlikely to be satisfied by a transport

manager who lives abroad15 or even at the opposite end of the country.16

25. A transport manager must always be more than just a transport manager in

name.17 A transport manager risks their repute18 if they find themselves in this

position. If a transport manager finds them-self overridden by the operator or their

agent to the point at which the transport manager no longer has the requisite

continuous and effective responsibility, the transport manager must first notify the

operator in writing and then, if the matter is not resolved, is expected to take

appropriate action.19 In certain cases this may even include resignation, rather

than remain nominated and attempt to carry on their duties when being expressly

prevented from doing so by their employer. The transport manager can exercise

this responsibility alone or with the assistance of others.20 Persons who control

an entity which operates heavy goods or public service vehicles must have

sufficient knowledge to exercise proper oversight.

21 The ultimate responsibility

for supervising maintenance compliance rests on the operator and failures by

employees or outside contractors is a matter for mitigation only.22 The Goods

Vehicle (Licensing of Operators) Act 1995 and Regulation (EC) No 1071/2009

enable traffic commissioners to take action against the individual transport

manager alone.

26. A transport manager should also think carefully where there is an attempt to

reduce the hours worked from those declared on the application. The transport

manager should ensure that s/he has enough time so as to be able to comply

with his/her duties.23 Both the transport manager and the operator have a duty to

notify the traffic commissioner of a reduction in the hours worked as a transport

manager and where the transport manager resigns, they should notify the traffic

commissioner of that resignation through the Office of the Traffic

Commissioner.

27. As Paragraph 14A of Schedule 3 of the 1995 Act and Article 4 of Regulation (EC)

No 1071/2009 make clear, a transport manager must possess more than good

repute, a qualification and sufficient hours to meet the statutory duty. S/he must

be capable of actually managing the transport operation effectively. That may

13 2011/036 LWB Ltd, NT/2020/071 J Owens Transport Ltd – the relationship between an operator and a transport

manager is dynamic and integral to the successful operation of a transport business

14 The 1995 Act, as amended by The Goods Vehicles (Licensing of Operators) (Amendment) Regulations 2022,

now requires transport managers for goods operator to be resident in the United Kingdom

15 2006/405 Transclara Ltd, 2006/392 Gary Paul Brandon

16 2016/027 K McDonald trading as River Tay Executive Travel

17 2010/049 Aspey Trucks Ltd, 2009/307 Anne Jones Edwards and Edward Anthony Jones

18 See Statutory Guidance and Statutory Directions on Good Repute and Fitness

19 2003/258 J D Cowan & A Fenny

20 2003/343 Anglorom Trans (UK) Ltd & Others

21 2012/025 First Class Freight Ltd

22 1999/L56 Alison Jones trading as Jones Motors, Shamrock Coaches and Thomas Motor Services

23 2003/258 J D Cowan & A Fenny, 2006/056 Paul Oven Transport Services Ltd, 2016/059 Adrian John Dalton,

2016/068 Shaun Thomas Britton

24 2014/085 Richard Heard

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include an assessment not only of qualification but other facts such as knowledge

or confidence to manage.25 “Given the importance attached to operators

complying with the regulatory regime and given that transport managers must:

“effectively and continuously manage the transport activities of an undertaking

holding an operator’s licence”, it seems to us that whether or not an individual

has the character, personality, ability and leadership qualities to ensure compliant

operation as an operator or to effectively and continuously manage the transport

activities as a transport manager is a factor which can, properly, be taken into

account when assessing good repute.”26

28. These requirements apply equally to all operators regardless of the size of the

organisation and are an important part in maintaining the relationship of trust

upon which the licensing system is based.27 An operator must supervise and

monitor the actions of a transport manager28 by, for example, checking the

maintenance inspections, the annual test pass rate, the number of prohibitions

issued, the DVSA Operator Compliance Risk Score, the arrangements for

securing compliance with the drivers’ hours’ rules and tachograph regulations

etc.

29. Where a traffic commissioner finds that a transport manager has failed to live up

to the standards expected30 the correct approach is to consider making a finding

in respect of that transport manager’s repute. When considering whether to

disqualify a transport manager, the traffic commissioner will consider the

available evidence when determining the need to disqualify and the length of any

order relevant matters might include: admissions as to any misconduct, proposed

remedial measures, reliability of the evidence provided and acceptance of the

individual’s responsibilities.

30. It is not open to a traffic commissioner to find a loss of professional competence

unless there is a finding that the transport manager has never been professionally

competent or that there has been a previous declaration that the transport

manager was unfit by reason of a loss of good repute and has already had their

CPC suspended.32That is not to say that traffic commissioners do not have any

authority to make findings concerning a transport manager’s professional

competence. There will be instances when it will be open to traffic commissioners

to make a finding that a purported transport manager does not in fact hold a valid

certificate of professional competence. Examples might include where it was

forged, the holder was not entitled to the certificate in some other way, or that it

has been suspended as a result of a finding of loss of good repute elsewhere.

The Upper Tribunal has indicated that, in such instances, it would be difficult to

envisage circumstances in which such a finding would amount to a

“disproportionate response”.

25 2014/058 Angus Smales trading as Angus Smales Eventing

26 2014/050 Andrew Harris trading as Harris of Leicester

27 2005/205 Eddie Stobart Ltd

28 1999/L56 Alison Jones trading as Jones Motors

29 See General Responsibilities below

30 2018/046 Mark Clinton – upon a transport manager’s nomination they then become responsible for effectively

and continuously managing the company’s regulatory compliance and should make sure all systems meet the

legislative requirements

31 2021/046 James Reilly

32 2014/026 Simon Sivyer

33 2015/049 Matthew Reynolds

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31. In the past, where there was no power to revoke or withdraw a CPC on a finding

against the transport manager34

, the Transport Tribunal commented that where

a company’s licence was to be revoked, the traffic commissioner could also give

a direction under section 28(5)(a) in respect of the transport manager if the

transport manager was an officer (including a director) of the company. Whilst

this position has changed under the provisions above, and reflecting Articles 13

and 14 of Regulation (EC) No 1071/2009, there is scope for the traffic

commissioner to allow a period of grace of up to 6 months where the transport

manager no longer satisfies the requirement as to good repute any approach has

to ensure fairness to all operators.

32. The Upper Tribunal has confirmed that process: “Before such an order can be

made, a s.27(2) notice must be sent, stating the grounds upon which the TC is

considering an order of revocation and inviting the operator to make

representations in respect of those grounds which must be received by the OTC

within 21 days of the notice. Moreover, the right of an operator to request a public

inquiry when a TC is considering an order of revocation (as enshrined in s.29 of

the 1995 Act) is highlighted by s.27(4). ...Furthermore, the operator was notified

of the TC’s power to grant a PofG and invited to consider making such a request.

It is for the operator to determine within the period allowed whether to request a

public inquiry or make representations (including the nomination of a new

transport manager) and/or request a PofG. A request for a PofG is an admission

on the part of the operator that they no longer satisfy one or more of the statutory

requirements.”

33. In order to grant a period of grace the traffic commissioner or staff acting under

delegation must first establish that one or more of the requirements is no longer

satisfied.37 The traffic commissioner may then allow a period of grace to rectify

the situation to be granted from the date of determination that the mandatory

requirement is no longer met.

38 There is no additional procedural requirement.

To quote the Upper Tribunal:

“In our view, when considering whether or not to grant a period of grace, Traffic

Commissioners will need some tangible evidence, beyond mere hope and

aspiration, that granting a period of grace will be worthwhile, and that there are

reasonable prospects for a good outcome. Some sort of analysis along these

lines will be necessary because, amongst other reasons, Traffic Commissioners

have to decide how long to grant. Moreover, as with a stay, there is no point in

granting a period of grace if the likely effect is just to put off the evil day when

regulatory action will have to be taken”.

34. The provisions also allow for the rehabilitation of a transport manager. A traffic

commissioner is able to disqualify a transport manager for a period orrequire that

transport manager to in effect obtain a new Certificate of Professional

Competence before acting as a transport manager again. A failure to appoint a

34 2003/045 JJC Bulk Tippers Ltd, 2008/004 H & A Holdings Ltd, 2008/005 Mark Skellern Ltd & Mark Skellern,

2008/315 L C Mistry

35 2011/022 Andrew John Chatter trading as AJC Vehicle Delivery & Collection

36 2021/018 Egertons Recovery Group Ltd

37 2020/072 Cambridge Removals & Storage Ltd – whilst section 27(3) refers to a 21-day period in which the

operator can make representations, it does not prevent a traffic commissioner from deciding whether to grant a

Period of Grace

38 2015/040 Tacsi Gwynedd Ltd

39 2014/008 Duncan McKee and Mary McKee

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replacement transport manager after a period of grace or to communicate with

the traffic commissioner can amount to serious misconduct on the part of the

operator.40 When a period of grace is granted to an operator, they are responsible

for ensuring that they demonstrate the requirement is met prior to the expiry of

any period of grace. An operator should therefore actively manage any dates and

request an extension, when appropriate, whilst remembering that the grant and

any extension is always at the discretion of the traffic commissioner.41 If a period

of grace expires without the mandatory requirement being met then the traffic

commissioner is obliged to revoke the operator licence.42 A proposed transport

manager will not meet the requirement on an operator until that appointment is

authorised upon the traffic commissioner being satisfied that the proposed

transport manager meets all the requirements of paragraph 14A of Schedule 3 of

the 1995 or Article 4 of Regulation (EC) No 1071/2009.

35. The Upper Tribunal has considered the applicability of a rehabilitation measure

at the end of a disqualification period44

. Its provisional view is that if a traffic

commissioner decides that a transport manager needs to re-take and obtain the

necessary qualifications to secure a new Certificate of Professional Competence

before acting as a transport manager again then the traffic commissioner has the

power to impose an indefinite disqualification with a rehabilitation measure to that

effect.

36. The Upper Tribunal has clarified the position as follows: “the case of good repute

it does not automatically follow that good repute is restored at the end of a

disqualification. Instead it simply means that the person concerned has an

opportunity to apply to act as a transport manager, (or in the case of

disqualification from holding or obtaining an operator’s licence, to apply for a

licence). It is open to a Traffic Commissioner to call in such an application to

resolve any lingering doubts as to whether good repute, in either capacity, has,

in fact, been restored. By contrast at the end of a period of disqualification the

effect of paragraph 7B(3)(b) of Schedule 3 to the 1981 Act ceases and the person

concerned can again use their certificate of professional competence as

conclusive proof that they are professionally competent.”46

Employment – Genuine link (employment of Internal and External transport managers)

37. The key in determining whether or not a person is an employee (i.e. an internal

transport manager), are the terms of employment; or is a service provider (i.e. an

external transport manager), is the contract for supply of services. The Upper

Tribunal has warned against tying in the provision of a transport manager with a

consultancy service.47

40 2012/001 Zeeshan Malik trading as Langston’s Group, 2014/024 LA & Z Leonida trading as ETS, 2014/053 &

054 Carmel Coaches Ltd and Others

41 2018/011 Skyrider Ltd

42 2021/052 Ian James Blackmur t/a IJB Transport

43 2014/040 & 041 C G Cargo Ltd & Sukhwinder Singh Sandhu

44 2012/071 Silvertree Transport Ltd

45 This approach has been confirmed by the amendments to paragraph 17 of Schedule 3 of the 1995 Act by The

Goods Vehicles (Licensing of Operators) (Amendment) Regulations 2022

46 2014/050 Andrew Harris trading as Harris of Leicester, This follows the Upper Tribunal’s decision in 2014/025 &

026 H. Sivyer (Transport) Ltd & Simon Sivyer where it was held professional competence was not something

which could be lost in the same way that good repute can be lost

47 2012/013 Russet Red Ltd

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38. Terms or a contract of employment have not been comprehensively defined in

legislation or case law. The courts have adopted various tests in order to

determine whether or not a relationship amounts to a relationship of employment

but the general approach is to consider all the factors relevant to the issue of

employment and to weigh up those factors that point towards the existence of a

contract of employment and those that point away from such a contract48

. It will

be helpful to ask the following three questions:

• Has the transport manager undertaken to provide their work and skill in return

for remuneration?

• Is there such a degree of control to enable the transport manager to fairly be

called a ‘servant’?

• Are there any other factors inconsistent with the existence of a contract of

service?

39. The presence or absence of any one factor is not conclusive, as the decision

depends on the combined effect of all the relevant information. The factors given

should not be treated as a checklist to identify those factors that appear to point

one way and those which point the other, from which a result can be calculated.

It is the overall effect of the relationship between the parties involved that will lead

to a conclusion on whether or not a person is employed. It is wholly unacceptable

for the transport manager to sign a blank form, with the details to be added in at

a later date or to make a commitment to minimum contractual hours which one

or both of the parties then or subsequently departs from.

40. As with the test for who is an operator50 the issue is usually one of control: for

instance who is entitled to give the orders as to how the work should be done?51

The greater the amount of control exercised over the details of the work to be

done, the more likely the relationship is to be one of internal employment.52 In

general, a self-employed person (i.e. an external transport manager) is told what

to do, but not how to do it. An employee is normally part of the employer's

organisation and does their work as an integral part of the business whereas an

independent contractor is not usually integrated into the organisation but is

accessory to it.53 The courts have also identified the following factors as useful in

determining whether a person is an employee:

• the intention of the parties54;

• whether the person performing the services provide their own equipment55;

• whether they hire their own helpers56;

• what degree of financial risk they take;

• payment of income tax and National Insurance contributions;

• the degree of control57;

48 Carmichael and Another v National Power Plc [1999] UKHL 47 approved 3 questions posed by the judge in

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497

49 2006/252 Alec Hayden trading as Trans Consult

50 2004/426 E A Scaffolding & Systems Ltd

51 Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd and McFarlane [1946] UKHL 1

52 Simmons v Heath Laundry [1910] 1 KB 543

53 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497

54 Ferguson v John Dawson Ltd [1976] EWCA Civ 7

55 Market Investigations ltd v Minister of Social Security [1969] 2 QB 173, Ferguson v John Dawson Ltd [1976]

EWCA Civ 7

56 Stevenson Jordan and Harrison v MacDonald and Evans [1952] 1 TLR 101

57 Paul William Lane v Shire Roofing Company (Oxford) Ltd [1995] EWCA Civ 37

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• what degree of responsibility for investment and management they have58;

• whether they have an opportunity of profiting from the management of the

task.

41. The Upper Tribunal has explored transport manager declarations in respect of

the number of hours per week to be dedicated to fulfilling their statutory duty59

and the remuneration for completing those duties60

. On signing the TM1

declaration, a transport manager commits to fulfilling the statutory

responsibilities. If a transport manager is unable to discharge that duty on the

declared hours, they should consider increasing their input or resigning their role.

The Tribunal went on to highlight, in the case of Adrian John Dalton61, that a

transport manager can delegate tasks but that this does not shift their

responsibility and they must ensure that the delegated tasks are carried out

properly.

58 Binding v Great Yarmouth Port and Haven Commissioners [1923] 2 WLUK 69, Humberstone v Northern Timber

Mill (1949) 79 CLR 389

59 2016/059 Adrian John Dalton

60 2016/068 Shaun Thomas Britton

61 2016/059 Adrian John Dalton

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DIRECTIONS

42. The Senior Traffic Commissioner for Great Britain issues the following Directions

to traffic commissioners under section 4C(1) of the Public Passenger Vehicles

Act 1981 (as amended) and by reference to section 1(2) of the Goods Vehicles

(Licensing of Operators) Act 1995. These Directions are addressed to the traffic

commissioners in respect of the approach to be taken by staff acting on behalf of

individual traffic commissioners and dictate the operation of delegated functions

in relation to the requirements for and on transport managers.

Basis of Directions

43. In the interests of adopting a consistent approach to decision making, the

directions set out below are designed to assist support staff who must decide

whether to refer a proposed transport manager’s case to the traffic commissioner

for consideration and also the circumstances in which a traffic commissioner may

wish to consider the suitability of a proposed transport manager at a public

inquiry.

44. These directions are designed to assist staff when they are required to decide

whether or not to refer a case to a traffic commissioner following the receipt of an

application through the Vehicle Operator Licensing system, indicating that a

transport manager’s suitability is in question and/or continuous and effective

responsibility is in doubt. The Upper Tribunal historically indicated that, whilst

completion of the TM1 form is not mandatory if it is not completed then there will

be a heavier burden on the applicant and in reality, a completed paper or

electronic form is likely to prove more satisfactory.62 In practice members of staff

working on behalf of the traffic commissioner now expect applicants to complete

and submit the required information through the Vehicle Operator Licensing

system.

45. External transport managers (including those with a mix of internal and external

appointments) are limited to a maximum of 50 vehicles for up to a total of 4

operators. Whilst there are no statutory limitations on the number of standard

licences for which a suitably qualified “internal” transport manager can be

nominated, it is important to outline what the Senior Traffic Commissioner

considers to be determining factors when assessing the suitability of a proposed

transport manager within the legislative framework.

46. The holder of a standard international licence must engage a holder of an

international Certificate of Professional Competence to act as transport manager.

Determining Factors

47. Each case must be considered on its individual merits. If the proposed suitability

of a transport manager is called into question and any concerns cannot be

satisfied through correspondence, then that person and the relevant operator will

be given an opportunity to state their case at a public inquiry or by issuing a notice

and considering rehabilitation measures for the transport manager and giving the

operator time to rectify any professional competence failings. The legal

requirement is the same, irrespective of the size of operation, namely that the

62 2011/036 LWB Ltd

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nominated transport manager must be able to exercise continuous and effective

management of the transport operation in so far as it relates to the carriage of

goods or passengers. There are a number of determining factors that might be

taken into consideration by a traffic commissioner or delegated person when

considering the suitability of a transport manager.

48. Much of the information is already requested from applicants by staff acting on

behalf of the traffic commissioners in the Office of the Traffic Commissioner.

Further information, however, may be requested by a traffic commissioner so that

they may be completely satisfied that the requirements are met in all cases.

Applicants for licences and existing operators are advised to comply quickly and

accurately to any requests for information from staff in the Office of the Traffic

Commissioner.

49. Once the traffic commissioner is satisfied that particular proposals allow sufficient

capacity for the nominated CPC holder(s) to meet the statutory duty to exercise

effective and continuous management, and checks have confirmed the

qualification and repute of the individual CPC holder, there should be no real

need to revisit that assessment if direct replacements make the same

commitment, or it is proposed to appoint additional transport managers over and

above those already specified on a licence. This might also include the transfer

of the operations, for instance where the award of contracts results in a transfer

of staff under the Transfer of Undertaking (Protection of Employment)

Regulations 2006, as amended (TUPE). These do not need to be referred to the

traffic commissioner unless there is a current compliance issue. Any such

variations might therefore proceed administratively under delegations and

without further enquiries, subject to two important caveats:

• that there has been neither adverse compliance history on the ‘donor’ licence

at the operating centre(s) nor adverse history involving the individual CPC in

the last two years;

• that the applicant agrees to an undertaking that it will provide the relevant

evidence of qualification, evidence of a genuine link and submit an application

through the Vehicle Operator Licensing system within one month of the grant

of the application.

50. These Directions are in the main concerned with whether a CPC holder can meet

the statutory duty. The Statutory Guidance above provides examples of situations

where transport managers have found to be lacking. Operators and applicants

should therefore be alive to the types of questions which might be asked by or

on behalf of the traffic commissioner. The other requirements are outlined below.

Repute

51. These Statutory Directions must be read in conjunction with the Statutory

Guidance and Statutory Directions in respect of repute, as they apply to the

transport manager, and with the Statutory Guidance and Statutory Directions

regarding the principles of Decision Making. In particular, the traffic commissioner

will need to consider whether convictions or penalties for a serious infringement

of the following provide compelling grounds to bring into question the repute of

the operator and/or transport manager:

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• commercial law;

• insolvency law;

• pay and employment conditions in the profession;

• road traffic law;

• professional liability;

• trafficking in human beings or drugs.

52. In addition, to satisfy the repute requirement, the operator and/or the transport

manager cannot have been convicted of a serious criminal offence or incurred a

penalty for a serious infringement of Community rules relating in particular to:

• the driving time and rest periods of drivers, working time and the installation

and use of recording equipment;

• the maximum weights and dimensions of commercial vehicles used in

international traffic;

• the initial qualification and continuous training of drivers;

• the roadworthiness of commercial vehicles, including the compulsory

technical inspection of motor vehicles;

• access to the market in international road haulage or, as appropriate, access

to the market in road passenger transport;

• safety in the carriage of dangerous goods by road;

• the installation and use of speed-limiting devices in certain categories of

vehicle;

• driving licences;

• admission to the occupation;

• animal transport.

53. Under paragraph 17 of Schedule 3, where a transport manager is disqualified the

traffic commissioner who made the order may cancel the order no earlier than

one year, beginning with the day on which the order was made. A traffic

commissioner may consider the following as a basis for cancelling an order under

paragraph 17(1A)(b):

• passed the written examination referred to in paragraph 13(1)(a);

• for no less than three months acted under the direction of a professionally

competent transport manager who satisfies the requirements of good repute.

A traffic commissioner might also consider the applicability of a rehabilitation

measure at the end of a disqualification period, for instance, a 2-day CPC

refresher course. However, where the Transport Manager has deliberately acted

in a way which results in a risk to life and/or the operation of unsafe vehicles or

drivers to falsify records, it may be difficult to set a specific rehabilitative measure

beyond a long or indefinite period of disqualification.

Mutual Recognition of Certificates and Other Documents

54. Article 19 of Regulation (EC) No 1071/2009 allows, without prejudice to Article

11(4), for a traffic commissioner to accept as sufficient proof of good repute for

admission to the occupation, an extract from a judicial record, or failing that, an

equivalent document issued by a competent judicial or administrative authority in

the EU Member State where the transport manager or any other relevant person

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used to reside.63 Article 19(4) restricts the production of such a document or

certificate, to no more than 3 months after the date of issue.

55. Article 11(4) requires (post January 2013) that the competent authority verify, by

accessing data in Article 16(2)(f), whether the designated transport manager(s)

has been declared unfit. Article 16(2) sets out the minimum data to be recorded,

with 16(2)(f) referring specifically to those persons who have been declared unfit

to manage the transport activities of an undertaking.

Genuine Link (Internal and External Transport Managers)

56. A transport manager must also have a genuine link to the undertaking. The

application and other forms require a declaration to be made that an internal

transport manager has that genuine link. For an internal transport manager that

might be demonstrated if the transport manager is:

• the licence holder; or

• one of the partners whose name is on the licence; or

• is a director of the company in whose name the licence is held; or

• a full or part-time employee.

57. Employment might be demonstrated in a number of ways, starting with tax,

employee contributions and remuneration64. The traffic commissioner is entitled

to check this during the application process or during the life of the licence and

as against previous declarations by requesting proof of employment, such as a

contract (see below and Annex 2 for general responsibilities).

58. An external transport manager may be hired in to fulfil the role of transport

manager under a contract which specifies the tasks he or she will perform as the

transport manager. A transport manager cannot however be employed through

or part of a package supplied by a transport consultancy and any attempt to must

be referred to the traffic commissioner. An external transport manager can only

work for a maximum of 4 operators (not licences) with sole responsibility for a

combined total fleet of 50 authorised vehicles. The traffic commissioner may

determine for reasons such as other determining factors set out in the attached

Statutory Guidance and these Statutory Directions that for an individual that

number should be less. It is possible to be an internal transport manager for one

operator and an external transport manager for another. However, in that case,

the starting point will be to limit the number of operators and vehicles applicable

to those set for external transport managers for all the licences.

59. As the above suggests, ultimately the determination of the internal and/or

external status of a transport manager, is a matter for the traffic commissioner. A

starting point may be to check whether the nominated CPC holder has even met

with the applicant. It may be necessary to examine the terms of the contract of

employment particularly where there is a group of companies involved. One of

the purposes of the legislation is to avoid a situation where the transport manager

acts in name only and does not have continuous and effective management of

the transport operation. Where there is a history of short-term appointments,

which might indicate a CPC holder acting as akin to a transport manager for

63 2021/561 Pawel Damian Kaptur and KPD Haulage Ltd – the traffic commissioner can make enquiries and seek

documentation to confirm the requirements of the Act are met before issuing an operator’s licence

64 The National Living Wage should be considered - https://www.gov.uk/national-minimum-wage-rates

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convenience, further enquiries may be required so as to satisfy the traffic

commissioner that the nominated CPC holder will actually exercise the

responsibilities of transport manager.

General Responsibilities

60. Due to the varying nature of different transport businesses, it is not possible to

list all of the duties which a transport manager might be expected to undertake.

For the sake of completeness Annex 2 sets out the matters upon which CPC

holders are deemed to have knowledge by virtue of passing the examination.

Traffic commissioners understand that various transport manager functions are

often delivered by a number of individuals acting within a team. The key

determinant is how the nominated transport manager manages the delivery of

those functions as the transport manager retains ultimate responsibility for

discharging his or her duties, within their declared hours. The Senior Traffic

Commissioner has therefore identified the following non-exhaustive list of the

types of activity which might be expected of a transport manager:

• to manage, audit and review compliance systems to ensure that they are

effective;

• to review any shortcomings such as prohibitions and/or annual test failures;

• to ensure that relevant changes are notified in accordance with operator

licence requirements;

• to keep up to date on relevant changes in standards and legislation;

Drivers – administration

• to ensure that drivers hold the appropriate licence for the vehicle they are

driving (including non-GB vocational drivers from EU member states who are

required to register their driving licences with DVLA within 12 months of being

resident);

• to ensure that regular checks are carried out on the drivers’ licences (usually

every 3 months);

• to ensure that vocational drivers hold a valid driver CPC qualification (DQC);

• to ensure that all drivers hours records are kept for a period of no less than

12 months and are made available upon request;

• to ensure that all working time records are kept for a period of no less than 24

months and are made available upon request;

• to ensure that relevant declarations are posted for drivers in EU Member

States;65

Drivers – management

• to ensure compliance with the driving hours rules (EU or Domestic Hours

rules);

• to ensure that drivers are recording their duty, driving time and rest breaks on

the appropriate equipment or in drivers hours books and their records are

being handed back for inspection as required;

• where appropriate, to download and store data from the vehicle digital

tachograph unit (at least every 90 days) and from the drivers’ tachograph

smart cards (at least every 28 days);

• to ensure that drivers’ hours records are retained and are available to be

produced during the relevant period;

65 https://www.postingdeclaration.eu/landing

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• to ensure that records are retained for the purposes of the Working Time

Directive (WTD) and that they are available to be produced during the relevant

period;

• to ensure that drivers are adequately trained and competent to operate all

relevant vehicles and equipment;

• to contribute to relevant training and subsequent disciplinary processes as

required;

Drivers – operations

• to ensure that drivers are completing and returning their driver defect

reporting sheets and that defects are recorded correctly;

• to ensure that all drivers and mobile workers take adequate breaks and

periods of daily and weekly rest (as per the relevant regulations which apply);

Vehicle – administration

• to ensure that vehicle maintenance records are retained for a period of no

less than 15 months and are made available upon request;

• to ensure that vehicles are specified as required and that operator licence

discs are current and displayed correctly;66

• to ensure sufficient contingency within the level of authority;

• to ensure that vehicle payloads notifications are correct, height indicators are

fitted and correct, and tachograph calibrations are up to date and displayed;

• to ensure that there are up to date certificates of insurance indemnifying

company cars, commercial vehicles and plant;

• to ensure a suitable maintenance planner is completed and displayed

appropriately, setting preventative maintenance inspection dates at least 6

months in advance and to include the Annual Test and other testing or

calibration dates;

Vehicle – management

• to ensure that vehicles and trailers are kept in a fit and roadworthy condition;

• to ensure that reported defects are either recorded in writing or in a format

which is readily accessible and repaired promptly;

• to ensure that vehicles and trailers that are not roadworthy are taken out of

service;

• to ensure that vehicles and towed equipment are made available for safety

inspections, service, repair and statutory testing;

• to ensure that safety inspections and other statutory testing are carried out

within the notified O-licence maintenance intervals (ISO weeks);

• to liaise with maintenance contractors, manufacturers, hire companies and

dealers, as might be appropriate and to make certain vehicles and trailers are

serviced in accordance with manufacturer recommendations;

• to ensure the security of vehicles so that they can only be operated under the

authority of the operator.67

61. To assist members of staff in assessing applications to appoint a particular CPC

holder the Senior Traffic Commissioner has identified in Annex 1 those factors

which might be relevant to the capacity of the individual to meet the statutory duty

either alone or with the assistance of others. In assessing capacity, namely

66 A failure to notify vehicle changes promptly can potentially impact on a transport manager’s repute where for

example hired vehicles are left specified on the licence after being returned or there is some other loss

67 https://www.gov.uk/government/publications/security-guidance-for-goods-vehicle-operators-and-drivers

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whether there is sufficient time to conduct transport manager functions properly,

the Senior Traffic Commissioner has identified some general indicators as to

effective transport management:

• knowledge and skills – as indicated this requires more than just the formal

qualification;

• impact - where the individual CPC holder is recognised as a key person within

the organisation so that s/he can influence decisions relevant to compliance

and authority to deal with external contractors. Their position should reflect

the professional and personal responsibility vested in the individual;

• decision making – where the individual CPC holder is sufficiently close to

drivers to be able to influence their behaviours and senior enough to influence

the deployment of resources and to inform the decisions of the

owner/directors/partners.

62. The Upper Tribunal has previously recognised various qualities, such as ability

to effectively and continuously manage the transport activities as a transport

manager, as relevant factors that can be taken into account when assessing good

repute. Whilst Great Britain has not implemented specific training requirements

pursuant to Articles 8(5) and 8(6), one of the purposes of Regulation (EC) No

1071/2009 is that “applicants for the post of transport manager should possess

high-quality professional knowledge.”68 Continuing Professional Development

(CPD) is the term used to describe the learning activities professionals engage

in to develop and enhance their abilities. This practice promotes learning to be

conscious and proactive, rather than passive and reactive. CPD can take many

forms such as training workshops, conferences and events, e-learning programs,

best practice techniques and ideas sharing. If there has been sometime since

CPD was undertaken the starting point for evidence would be for the completion

of a 2-day transport manager CPC refresher course, run by either:

• a trade association (Logistics UK/ RHA/ BAR/ CPT);

• a professional body (IoTA/ CILT/ SOE/ IRTE);

• an approved exam centre offering the relevant transport manager CPC

qualification for the type of licence held; or

• a firm of solicitors (or their associated training organisation) with significant

experience with road transport regulatory and compliance issues (defined as

having represented road transport operators and/or transport managers in at

least 20 public inquiries over the past two years).

By way of comparison, drivers are required to complete 35 hours of periodic

training every 5 years to keep their Driver Certificate of Professional

Competence.

63. The Senior Traffic Commissioner has identified the following instances when a

transport manager should expect to provide evidence of their capacity to meet

the statutory duty through continuing professional development:

• on initial application when a transport manager has not been specified as such

within the previous five years;

• on initial application when a transport manager’s qualification is more than 10

years old;

68 Recital 11 of Regulation (EC) No 1071/2009

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• on application when a transport manager is proposing to be on more than one

licence or when the proposed hours are less than the starting point;

• on renewal of an operator’s licence;

• at Public Inquiry when considering whether a transport manager has

exercised continuous and effective management.

Professional Competence

64. Paragraph 13(2a) of Schedule 3 of the 1995 Act and Article 8(8) of Regulation

(EC) No 1071/2009 require that at application stage professional competence will

be demonstrated by production of a certificate which meets the security features

and the model certificate annexed to the EU Regulations and bears the seal of

the duly authorised authority or body which issued it.69 Under Article 8(2) the

examination must be sat in the Member State in which the holder has their normal

residence or, the Member State in which they work. A traffic commissioner is

unlikely to be able to accept a qualification in another Member State where they

do not normally reside or work.

65. In the case of digital applications electronic copies of original certificates must be

uploaded with the application, however traffic commissioners and staff acting on

their behalf reserve the right to request the original copy. In the case of a

nominated transport manager who is already accepted to act in that capacity on

another licence the repeat production of their certificate will not normally be

required, provided that one of the traffic commissioners already holds a record of

the original certificate. Again, traffic commissioners and staff acting on their

behalf reserve the right to request the original certificate, wherever there is any

doubt as to the qualification.

66. Those with existing third-party qualifications will continue to be exempt from the

CPC examination requirement and the Department for Transport (DfT) aims to

integrate them in future to the CPC regime. Bodies who had issued exemptions

re-issued certificates in the new CPC format and no new exemptions will be

issued. There will be no new national CPCs, but existing certificates will remain

valid for ‘national’ operations.

67. Members of staff working on behalf of the traffic commissioner must also ensure

applicants complete and submit the required information through the Vehicle

Operator Licensing system, including receipt of an electronic signature or return

of a signed TM1 form. Traffic commissioners and staff acting on their behalf

reserve the right to request the original document. In line with Article 8(1) the

holder of that certificate shall be deemed to possess knowledge corresponding

to the level set out in Part I of the Annex to the Regulations (see Annex 2 to these

Directions), unless found otherwise by a traffic commissioner or a competent

authority in an EU Member State.

68. The statutory duty refers to effective management and the traffic commissioner

might legitimately be concerned as to the currency of the nominated CPC holder’s

professional knowledge. The Senior Traffic Commissioner does not consider it

unreasonable for CPC holders to be aware of the conditions and undertakings

attached to the operator’s licence upon which they are named nor, given the

69 An individual exempted by the Secretary of State, under paragraph 12 of Schedule 6, from the requirements of

professional competence applies only to light goods vehicle licences – see paragraph 11 of Schedule 6

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potential impact on an operator’s repute, to be aware of the most serious

infringement provisions.70 In those circumstances it may be appropriate to

consider an undertaking that refresher training provided by a trade association,

professional body or an examination centre (approved by an awarding body)

which offers the management CPC qualification be completed within a specified

time with evidence of attendance to be produced.

Acquired Rights (Formerly Known as ‘Grandfather Rights’)

69. In line with Article 9 of Regulation (EC) No 1071/2009 previous ‘Grandfather

Rights’ (GFR) were replaced by new ‘Acquired Rights’ certificates. The Secretary

of State had responsibility for issuing certificates. They were issued on the basis

of a declaration that the individuals in question could provide proof, upon request,

that they had ‘continuously managed’ a road haulage or a road passenger

transport operation in one or more EU Member State for the period of 10 years

ending on 4 December 2009. Acquired Rights certificates were automatically

issued to all transport managers exercising ‘grandfather rights’ on an operator’s

licence at the date of implementation. Those holding ‘Grandfather Rights’ but not

listed as a transport manager on an operator’s licence at that date were also able

to apply for an “Acquired Rights” certificate.

70. The Secretary of State’s decision was based on details contained in an

application form. The details required included: the serial number of the GFR

certificate, date and place of birth, details of the work undertaken as a transport

manager from 4 December 1999 to 4 December 2009 including names and

addresses (and O-licence numbers where possible) for all operators worked for.

That information is therefore available from Department for Transport records.

71. A similar process, to that described above, has been adopted for the extension

of operator licensing which covers light goods vehicles which weigh more than

2.5 tonnes and up to 3.5 tonnes in maximum laden weight71 (either alone, or

combined weight when used with a trailer) and which operate internationally, for

hire or reward.

72. Paragraphs 11 to 18 of Schedule 6 of the 1995 Act72 provide for exemptions to

individuals, until the end of 20th May 2025, from the requirement under section

13A(3)(a)(i) or paragraph 14A(1)(c) of Schedule 3 to be professionally competent

if the Secretary of State is satisfied that the individual had, for ten years or more

ending with 20th August 2020, continuously managed national or international

transport operations as, for or on behalf of an undertaking that used only light

goods vehicles.

73. An individual may, on or before 20th May 2024, apply to the Secretary of State

for an exemption. Paragraph 19 states that these provisions will cease to have

effect at the end of 20th May 2025. After this date operators will need to have a

transport manager who holds a Certificate of Professional Competence approved

on their licence or risk action being taken under section 27.

70 See Statutory Guidance and Statutory Directions on Good Repute and Fitness

71 Or permissible laden mass, which is the equivalent term in EU Legislation

72 As inserted by The Goods Vehicles (Licensing of Operators) (Amendment) Regulations 2022

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74. A false declaration in order to obtain an Acquired Rights certificate will be treated

as having a serious impact on the repute of that transport manager and must be

referred to a traffic commissioner.

Appeals against Decisions Not to Issue an Acquired Rights Certificate for Light Goods

Vehicles

75. If the Secretary of State decides not to grant an exemption, the applicant may

appeal the decision to a traffic commissioner within 28 days beginning with the

day after the date the decision is made. The traffic commissioner then has 56

days, beginning with the day after the date the appeal is made, in which to either

confirm or reverse the decision. Consideration of an appeal may be by hearing,

if requested, or on the papers. It will be for the individual traffic commissioner to

decide on the structure of any hearing and the information required. There will be

no requirement for the Secretary of State or his nominee to be a party to that

appeal but the Secretary of State may apply to make representations and/or

appear.73 The law does not prevent new evidence being placed before the traffic

commissioner but the commissioner considering the appeal may issue a time

limit regarding the production of new evidence and may prevent any further

evidence being admitted after that date.

Checking Transport Manager Records

76. In October 2011 transport managers were requested to complete and return a

questionnaire in order to populate the national register. Some operators used this

opportunity to change the transport manager details without making an

application as they were required to do. The questionnaire specifically required

that the transport manager only list those licences for which they had been

authorised. Staff should be alive to this risk when making checks against the

records. If there has been a false declaration this will need to be referred to the

traffic commissioner to consider whether or not to take regulatory action in

respect of the named CPC holder and/or the operator.

77. A similar approach should be taken where the self-service facility has been used

and there is no subsequent application lodged. The Upper Tribunal has also been

critical of incidents where the name of the previous transport manager has been

left on the record awaiting an application.

Periods of Grace

78. Section 27(3A) of the 1995 Act and Regulation (EC) No 1071/2009 (Annex 2)

allows traffic commissioners a discretion in circumstances where it is found that

there is no authorised transport manager in place. The traffic commissioner can

allow a period of time of up to 6 months, which might be extended by 3 months

in the event of the death or physical incapacity of the transport manager, to find

a replacement transport manager. A transport manager is responsible for

continuous and effective management of a standard transport operation and an

important means by which a transport business maintains compliance. It is a

condition of an operator’s licence that changes in professional competence,

including the availability of a transport manager, are notified to the traffic

commissioner.

73 See Statutory Guidance and Statutory Directions on Case Management

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79. Where staff have grounds to suspect that there is no transport manager in place,

then the operator should be notified and given a limited time (for instance 14

days) to make written representations, before the traffic commissioner decides

whether to allow time for rectification and for what period. In order to allow a

period of grace the traffic commissioner must establish that the requirement for

a transport manager is no longer met. An application in effect invites a traffic

commissioner to make an adverse finding that the mandatory and continuing

requirement for professional competence is no longer met.

80. In practice this will usually be confirmed by the operator seeking to benefit from

a period of grace. Operators should understand that if, upon expiry of a period of

grace, professional competence has still not been demonstrated (as set out in

these Statutory Directions) then the operator’s licence will have to be revoked.

81. The Upper Tribunal has indicated that there should be tangible evidence that a

period of grace will be worthwhile, in other words there are reasonable prospects

that the mandatory requirement will be met before expiry of the specified period.75

The traffic commissioner can then be invited to decide how long to allow within

the maximum periods permitted by the legislation. For instance, where a

candidate has already failed the exams it may be more difficult to persuade a

traffic commissioner that resitting the exams provides that reasonable prospect

for the future.

82. If the qualifying circumstances are met then a traffic commissioner has a

discretion as to how long a period of grace they might grant. The Senior Traffic

Commissioner has set a starting point of 3 months, which is intended to allow an

extension to the maximum period should circumstances require it, taking account

of the situation of the operator and fairness to other operators who are already

complying. Only a traffic commissioner has authority to extend directions made

by a traffic commissioner.

75 2014/008 Duncan McKee

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ANNEX 1 - STARTING POINT FOR ASSESSING THE CAPACITY TO

EXERCISE CONTINUOUS AND EFFECTIVE MANAGEMENT

The matters set out in the following table will assist in deciding on an application. It is

of course open to a traffic commissioner to go up or down from any starting points

described. The overriding factor is the ability of the nominated qualified person to

exercise effective and continuous management of the transport undertaking.

Delegated Authority

Where the starting point is met and there is satisfactory information to show that the

General Responsibilities will be met (see ‘Determining Factors’ below) the decision

may be determined under delegated authority in accordance with existing delegations.

Proposals which do not meet these guidelines must be referred to the relevant traffic

commissioner for a decision. Once granted, direct replacements equating to the same

commitment need not be referred to the traffic commissioner unless there is a current

compliance issue.

Determining Factors

Ability

• Are effective systems in place so that the transport manager “either alone or

jointly with one or more other persons, has continuous and effective

responsibility for the management of the transport operations of the

business”? Who else is assisting the transport manager, what qualifications

do they hold, how will they be supervised and how the transport manager will

meet the obligation to exercise continuous and effective responsibility. What

technology and management systems will be utilised? How does the

compliance management of the organisation support the transport

manager(s) in meeting the statutory duty?

• The number of times and length of period that the transport manager intends

to visit each operating centre.

• Does the transport manager have ready access to the relevant records

including records of remedial action? See Statutory Guidance and Statutory

Directions on Operating Centres, Stable Establishments and Addresses for

Service

• The authority of the transport manager e.g. purchase of parts for vehicles or

maintenance equipment, ability to ‘hire and fire’, proper access to online

operator licence records

• Previous compliance history of licences with which the nominated transport

manager has been involved.76 Details may be required together with details

of any subsequent action taken by the transport manager.

Availability

The guidelines below refer to starting points only and give indicative weekly hours

of work which might be specified by a transport manager, but the traffic

commissioner will consider all relevant factors in determining whether the starting

76 This should not require a submission to contain every compliance episode, but checks should be completed to

ensure that there has been no significant change

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points should be departed from. The level of hours required for any other

employment, self-employment, or activities in which the proposed transport

manager is engaged must also be taken into account as they may restrict their ability

to devote sufficient time to the duties of a transport manager on any operator’s

licence. The suggested amounts of time are a starting point as to what traffic

commissioners might expect in terms of hours worked. They are intended as a

prompt to operators/applicants and the nominated CPC holder to discuss what time

is actually required to carry out the duties suggested at the General Responsibilities

paragraph above.

Motor Vehicles Proposed Hours (per week)

2 or less 2-4

3 to 5 4-8

6 to 10 8-12

11 to 14 12-20

15 to 29 20-30

30 to 50 30-Full Time

Above 50 Full Time and additional assistance required

Additional hours may be required for trailers.

• The number of operator licences and/or vehicles for which that transport

manager will be responsible. If a transport manager is already listed on at

least 3 other licences; and/or if a transport manager is already solely

responsible for 50 vehicles.

• The number of operating centres for which the transport manager is

responsible both on that licence and any other operator’s licences. The

geographical location of the transport manager in relation to the operator’s

business and all operating centres on all licences. The number of times and

length of period that the transport manager intends to visit each operating

centre.

• Access to the required records as, when and where needed including

records of remedial action. How does the compliance management of the

organisation support the transport manager(s) in meeting the statutory

duty?

• Does the transport manager have any other duties in the organisation e.g.

as a driver, director or contracts manager? Traffic commissioners will wish

to consider carefully any impact this may have on continuous and effective

responsibility for the transport operations.

• Does the proposed transport manager have other employment with another

employer (including as a driver) or are they also self employed in any

capacity? Traffic commissioners will wish to consider carefully any impact

this may have on continuous and effective responsibility for the transport

operations.

• In respect of total hours traffic commissioners will be aware that the road

transport working time legislation limits the average working week to 48

hours over a given reference period with no week within that reference

period being over 60 hours. The horizontal working time legislation (non-EU

regulated mobile workers) requires that ‘adequate rest’ be undertaken each

week.

77 These are starting points. Paragraph 14A of Schedule 3 of the 1995 Act and Regulation (EC) No 1071/2009 limit

external transport managers to act for no more than 4 licence holders with sole responsibility for a maximum of

50 vehicles (or fewer if EU Member States so choose), with a discretion allowed to the competent authority.

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Genuine Link

• The terms upon which the proposed transport manager is to be employed.

Is the contract directly with the transport manager or with a transport

consultancy? The traffic commissioner may wish to see a copy of the

contract of employment.

• Does the transport manager have a history of appearing on operator

licences for a short period possibly for the purpose of an application? The

genuine link between the operator/applicant and transport manager should

be investigated further before being referred to the traffic commissioner.

Knowledge

• A Certificate of Professional Competence (CPC) from any European Union

member state (after accession) should be taken as evidence of a transport

manager’s capability to perform that role, subject to matters that might

affect the transport managers’ good repute. These should be in the format

required by Annex III of Regulation (EC) No 1071/2009. (B) Belgium, (BG)

Bulgaria, (HR) Croatia, (CZ) Czech Republic, (DK) Denmark, (D) Germany,

(EST) Estonia, (GR) Greece, (E) Spain, (F) France, (IRL) Ireland, (I) Italy,

(CY) Cyprus, (LV) Latvia, (LT) Lithuania, (L) Luxembourg, (H) Hungary, (M)

Malta, (NL) Netherlands, (A) Austria, (PL) Poland, (P) Portugal, (RO)

Romania, (SLO) Slovenia, (SK) Slovakia, (FIN) Finland, (S) Sweden, (UK)

United Kingdom.

• Is the transport manager up to date with the current requirements of the

operator licence? What continuing professional development has the

transport manager undertaken? How recently has the transport manager

received training on his or her CPC duties? Details of the course, provider

and certificate of attendance may be required.

• The ability of the transport manager to ensure that the required records are

completed and maintained. Details of any issues regarding literacy and/or

numeracy.

• Are effective systems in place so that the transport manager “either alone or

jointly with one or more other persons, has continuous and effective

responsibility for the management of the transport operations of the

business”? Who else is assisting the transport manager, what qualifications

do they hold, how will they be supervised and how the transport manager

will meet the obligation to exercise continuous and effective responsibility.

What technology and management systems will be utilised?

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ANNEX 2 - RETAINED EU LEGISLATION

Regulation 5 of the Road Transport Operator Regulations 2011 states that a standard

licence constitutes an authorisation to engage in the occupation of road transport

operator for the purposes of:

Regulation (EC) No 1071/2009 establishing common rules concerning

conditions to be complied with to pursue the occupation of road transport

operator repealed Council Directive 96/26 EC and applicable from 4th December

2011

Article 3 - Requirements for engagement in the occupation of road transport

operator

1. Undertakings engaged in the occupation of road transport operator shall:

(d) have the requisite professional competence; and

2. Member States may decide to impose additional requirements, which shall be

proportionate and non-discriminatory, to be satisfied by undertakings in order to

engage in the occupation of road transport operator.

Article 4 -Transport manager

1. An undertaking which engages in the occupation of road transport operator shall

designate at least one natural person, the transport manager, who satisfies the

requirements set out in Article 3(1)(b) and (d) and who:

(a) effectively and continuously manages the transport activities of the undertaking;

(b) has a genuine link to the undertaking, such as being an employee, director, owner

or shareholder or administering it, or, if the undertaking is a natural person, is that

person; and

2. If an undertaking does not satisfy the requirement of professional competence laid

down in Article 3(1)(d), the competent authority may authorise it to engage in the

occupation of road transport operator without a transport manager designated in

accordance with paragraph 1 of this Article, provided that:

(a) the undertaking designates a natural person residing in the Community who

satisfies the requirements laid down in Article 3(1)(b) and (d), and who is entitled under

contract to carry out duties as transport manager on behalf of the undertaking;

(b) the contract linking the undertaking with the person referred to in point (a) specifies

the tasks to be performed on an effective and continuous basis by that person and

indicates his or her responsibilities as transport manager. The tasks to be specified

shall comprise, in particular, those relating to vehicle maintenance management,

verification of transport contracts and documents, basic accounting, the assignment

of loads or services to drivers and vehicles, and the verification of safety procedures;

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manage the transport activities of up to four different undertakings carried out with a

combined maximum total fleet of 50 vehicles. Member States may decide to lower the

number of undertakings and/or the size of the total fleet of vehicles which that person

may manage; and

(d) the person referred to in point (a) performs the specified tasks solely in the interests

of the undertaking and his or her responsibilities are exercised independently of any

undertakings for which the undertaking carries out transport operations.

3. Member States may decide that a transport manager designated in accordance with

paragraph 1 may not in addition be designated in accordance with paragraph 2 or may

only be so designated in respect of a limited number of undertakings or a fleet of

vehicles that is smaller than that referred to in paragraph 2(c).

4. The undertaking shall notify the competent authority of the transport manager or

managers designated.

Article 6 - Conditions relating to the requirement of good repute

1. Subject to paragraph 2 of this Article, Member States shall determine the conditions

to be met by undertakings and transport managers in order to satisfy the requirement

of good repute laid down in Article 3(1)(b).

In determining whether an undertaking has satisfied that requirement, Member States

shall consider the conduct of the undertaking, its transport managers and any other

relevant person as may be determined by the Member State. Any reference in this

Article to convictions, penalties or infringements shall include convictions, penalties or

infringements of the undertaking itself, its transport managers and any other relevant

person as may be determined by the Member State.

The conditions referred to in the first subparagraph shall include at least the following:

(a) that there be no compelling grounds for doubting the good repute of the transport

manager or the transport undertaking, such as convictions or penalties for any serious

infringement of national rules in force in the fields of:

(i) commercial law;

(ii) insolvency law;

(iii) pay and employment conditions in the profession;

(iv) road traffic law;

(v) professional liability;

(vi) trafficking in human beings or drugs; and

(b) that the transport manager or the transport undertaking have not in one or more

Member States been convicted of a serious criminal offence or incurred a penalty for

a serious infringement of Community rules relating in particular to:

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(i) the driving time and rest periods of drivers, working time and the installation and

use of recording equipment;

(ii) the maximum weights and dimensions of commercial vehicles used in

international traffic;

(iii) the initial qualification and continuous training of drivers;

(iv) the roadworthiness of commercial vehicles, including the compulsory technical

inspection of motor vehicles;

(v) access to the market in international road haulage or, as appropriate, access to

the market in road passenger transport;

(vi) safety in the carriage of dangerous goods by road;

(vii) the installation and use of speed-limiting devices in certain categories of

vehicle;

(viii) driving licences;

(ix) admission to the occupation;

(x) animal transport.

2. For the purposes of point (b) of the third subparagraph of paragraph 1:

(a) where the transport manager or the transport undertaking has in one or more

Member States been convicted of a serious criminal offence or incurred a penalty for

one of the most serious infringements of Community rules as set out in Annex IV, the

competent authority of the Member State of establishment shall carry out in an

appropriate and timely manner a duly completed administrative procedure, which shall

include, if appropriate, a check at the premises of the undertaking concerned.

The procedure shall determine whether, due to specific circumstances, the loss of

good repute would constitute a disproportionate response in the individual case. Any

such finding shall be duly reasoned and justified.

If the competent authority finds that the loss of good repute would constitute a

disproportionate response, it may decide that good repute is unaffected. In such case,

the reasons shall be recorded in the national register. The number of such decisions

shall be indicated in the report referred to in Article 26(1).

If the competent authority does not find that the loss of good repute would constitute

a disproportionate response, the conviction or penalty shall lead to the loss of good

repute;

(b) the Commission shall draw up a list of categories, types and degrees of

seriousness of serious infringements of Community rules which, in addition to those

set out in Annex IV, may lead to the loss of good repute. Member States shall take

into account information on those infringements, including information received from

other Member States, when setting the priorities for checks pursuant to Article 12(1).

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Those measures, designed to amend non-essential elements of this Regulation by

supplementing it and which relate to this list, shall be adopted in accordance with the

regulatory procedure with scrutiny referred to in Article 25(3).

To this end, the Commission shall:

(i) lay down the categories and types of infringement which are most frequently

encountered;

(ii) define the degree of seriousness of infringements according to their potential to

create a risk of fatalities or serious injuries; and

(iii) provide the frequency of occurrence beyond which repeated infringements shall

be regarded as more serious, by taking into account the number of drivers used

for the transport activities managed by the transport manager.

3. The requirement laid down in Article 3(1)(b) shall not be satisfied until a rehabilitation

measure or any other measure having an equivalent effect has been taken pursuant

to the relevant provisions of national law.

Article 8 - Conditions relating to the requirement of professional competence

1. In order to satisfy the requirement laid down in Article 3(1)(d), the person or persons

concerned shall possess knowledge corresponding to the level provided for in Part I

of Annex I in the subjects listed therein. That knowledge shall be demonstrated by

means of a compulsory written examination which, if a Member State so decides, may

be supplemented by an oral examination. Those examinations shall be organised in

accordance with Part II of Annex I. To this end, Member States may decide to impose

training prior to the examination.

2. The persons concerned shall sit the examination in the Member State in which they

have their normal residence or the Member State in which they work.

‘Normal residence’ shall mean the place where a person usually lives, that is for at

least 185 days in each calendar year, because of personal ties which show close links

between that person and the place where he is living.

However, the normal residence of a person whose occupational ties are in a different

place from his personal ties and who, consequently, lives in turn in different places

situated in two or more Member States, shall be regarded as being in the place of his

personal ties, provided that such person returns there regularly. This last condition

shall not be required where the person is living in a Member State in order to carry out

a task of a definite duration. Attendance at a university or school shall not imply

transfer of normal residence.

3. Only the authorities or bodies duly authorised for this purpose by a Member State,

in accordance with criteria defined by it, may organise and certify the written and oral

examinations referred to in paragraph 1. Member States shall regularly verify that the

conditions under which those authorities or bodies organise the examinations are in

accordance with Annex I.

4. Member States may duly authorise, in accordance with criteria defined by them,

bodies to provide applicants with high-quality training to prepare them for the

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examinations and transport managers with continuous training to update their

knowledge if they wish to do so. Such Member States shall regularly verify that these

bodies at all times fulfil the criteria on the basis of which they were authorised.

5. Member States may promote periodic training on the subjects listed in Annex I at

10-year intervals to ensure that transport managers are aware of developments in the

sector.

6. Member States may require persons who possess a certificate of professional

competence, but who have not managed a road haulage undertaking or a road

passenger transport undertaking in the last 5 years, to undertake retraining in order to

update their knowledge regarding the current developments of the legislation referred

to in Part I of Annex I.

7. A Member State may exempt the holders of certain higher education qualifications

or technical education qualifications issued in that Member State, specifically

designated to this end and entailing knowledge of all the subjects listed in Annex I

from the examination in the subjects covered by those qualifications. The exemption

shall only apply to those sections of Part I of Annex I for which the qualification covers

all subjects listed under the heading of each section.

A Member State may exempt from specified parts of the examinations, holders of

certificates of professional competence valid for national transport operations in that

Member State.

8. A certificate issued by the authority or body referred to in paragraph 3 shall be

produced as proof of professional competence. That certificate shall not be

transferable to any other person. It shall be drawn up in accordance with the security

features and the model certificate set out in Annexes II and III and shall bear the seal

of the duly authorised authority or body which issued it.

8A. A certificate issued to a person under paragraph 8 is not valid for the duration of

any order disqualifying the person from acting as a transport manager under:

(a) paragraph 16(2) of Schedule 3 to the 1995 Act; or

(b) regulation 15(2) of the Goods Vehicles (Qualifications of Operators) Regulations

(Northern Ireland) 2012(6).

9. The Commission shall adapt Annexes I, II and III to technical progress. Those

measures, designed to amend non-essential elements of this Regulation, shall be

adopted in accordance with the regulatory procedure with scrutiny referred to in Article

25(3).

10. The Commission shall encourage and facilitate the exchange of experience and

information between Member States, or through any body it may designate,

concerning training, examinations and authorisations.

Article 9 - Exemption from examination

Member States may decide to exempt from the examinations referred to in Article 8(1)

persons who provide proof that they have continuously managed a road haulage

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undertaking or a road passenger transport undertaking in one or more Member States

for the period of 10 years before 4 December 2009.

Article 11 - Examination and registration of applications

1. A transport undertaking which complies with the requirements laid down in Article 3

shall, upon application, be authorised to engage in the occupation of road transport

operator. The competent authority shall ascertain that an undertaking which submits

an application satisfies the requirements laid down in that Article.

2. The competent authority shall record in the national electronic register referred to in

Article 16 the data relating to undertakings which it authorises and which are referred

to in points (a)to (d) of the first subparagraph of Article 16(2).

3. The time limit for the examination of an application for authorisation by a competent

authority shall be as short as possible and shall not exceed 3 months from the date on

which the competent authority receives all documents necessary to assess the

application. The competent authority may extend this time limit for one additional

month in duly justified cases.

4. Until 31 December 2012, the competent authority shall verify, in case of any doubt

when assessing the good repute of an undertaking, whether at the time of application

the designated transport manager or managers are declared, in one of the Member

States, unfit to manage the transport activities of an undertaking pursuant to Article

14.

From 1 January 2013, when assessing the good repute of an undertaking, the

competent authority shall verify, by accessing the data referred to in point (f) of the

first subparagraph of Article 16(2), either by direct secure access to the relevant part

of the national registers or by request, whether at the time of the application the

designated transport manager or managers are declared, in one of the Member

States, unfit to manage the transport activities of an undertaking pursuant to Article

14.

Measures designed to amend non-essential elements of this Regulation and relating

to a postponement for a maximum of 3 years of the dates referred to in this paragraph

shall be adopted in accordance with the regulatory procedure with scrutiny referred to

in Article 25(3).

5. Undertakings with an authorisation to engage in the occupation of road transport

operator shall, within a period of 28 days or less, as determined by the Member State

of establishment, notify the competent authority which granted the authorisation of any

changes to the data referred to in paragraph 2.

6. The obligation imposed by paragraph 5 on such an undertaking constitutes a

condition attached to a qualifying licence for the purposes of:

(a) if the undertaking is established in Great Britain, section 26(1)(b) of the 1995 Act;

(b) if the undertaking is established in Northern Ireland, section 23(1)(b) of the 2010

Act.

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Article 13 - Procedure for the suspension and withdrawal of authorisations

1. Where a competent authority establishes that an undertaking runs the risk of no

longer fulfilling the requirements laid down in Article 3, it shall notify the undertaking

thereof. Where a competent authority establishes that one or more of those

requirements is no longer satisfied, it may set one of the following time limits for the

undertaking to rectify the situation:

(a) a time limit not exceeding 6 months, which may be extended by 3 months in the

event of the death or physical incapacity of the transport manager, for the recruitment

of a replacement transport manager where the transport manager no longer satisfies

the requirement as to good repute or professional competence;

2. The competent authority may require an undertaking whose authorisation has been

suspended or withdrawn to ensure that its transport managers have passed the

examinations referred to in Article 8(1) prior to any rehabilitation measure being taken.

3. If the competent authority establishes that the undertaking no longer satisfies one

or more of the requirements laid down in Article 3, it shall suspend or withdraw the

authorisation to engage in the occupation of road transport operator within the time

limits referred to in paragraph 1 of this Article.

Article 14 - Declaration of unfitness of the transport manager

1. Where a transport manager loses good repute in accordance with Article 6, the

competent authority shall declare that transport manager unfit to manage the transport

activities of an undertaking.

2. Unless and until a rehabilitation measure is taken in accordance with the relevant

provisions of national law, the certificate of professional competence, referred to in

Article 8(8), of the transport manager declared to be unfit, shall no longer be valid in

any Member State.

Article 19 - Certificates of good repute and equivalent documents

1. Without prejudice to Article 11(4), the Member State of establishment shall accept

as sufficient proof of good repute for admission to the occupation of road transport

operator the production of an extract from a judicial record or, failing that, an equivalent

document issued by a competent judicial or administrative authority in the Member

State where the transport manager or any other relevant person used to reside.

2. Where a Member State imposes on its own nationals certain conditions relating to

good repute, and proof that these conditions are met cannot be provided by means of

the document referred to in paragraph 1, that Member State shall accept as sufficient

proof for nationals of other Member States a certificate issued by a competent judicial

or administrative authority in the Member State(s) where the transport manager or any

other relevant person used to reside stating that these conditions have been met. Such

certificate shall relate to the specific information taken into consideration in the

Member State of establishment.

3. If the document referred to in paragraph 1 or the certificate referred to in paragraph

2 has not been issued by the Member State(s) where the transport manager or any

other relevant person used to reside, that document or certificate may be replaced by

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a declaration on oath or by a solemn declaration made by the transport manager or

any other relevant person before a competent judicial or administrative authority or,

where appropriate, before a notary in the Member State where the transport manager

or any other relevant person used to reside. Such authority or notary shall issue a

certificate authenticating the declaration on oath or the solemn declaration.

4. A document referred to in paragraph 1 and a certificate referred to in paragraph 2

shall not be accepted if produced more than 3 months after their date of issue. This

condition shall also apply to a declaration made in accordance with paragraph 3.

Article 21 - Certificates of professional competence

1. Member States shall recognise as sufficient proof of professional competence a

certificate which complies with the model certificate set out in Annex III and which is

issued by the authority or body duly authorised for that purpose.

2. A certificate issued before 4 December 2011 as proof of professional competence

pursuant to the provisions in force until that date shall be deemed to be equivalent to

a certificate which complies with the model certificate set out in Annex III and shall be

recognised as proof of professional competence in all Member States. Member States

may require that holders of certificates of professional competence valid only for

national transport pass the examinations, or parts of the examinations, referred to in

Article 8(1).

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EU ANNEX 1 - 1. LIST OF SUBJECTS REFERRED TO IN ARTICLE 8

The knowledge to be taken into consideration for the official recognition of professional

competence by Member States must cover at least the subjects listed below for road

haulage and road passenger transport respectively. In relation to these subjects,

applicant road haulage and road passenger transport operators must have the levels

of knowledge and practical aptitude necessary for the management of a transport

undertaking.

The minimum level of knowledge, as indicated below, may not be below level 3 of the

training-level structure laid down in the Annex to Council Decision 85/368/EEC78

(1), namely the level of knowledge acquired during the course of compulsory

education, which is supplemented either by vocational training and supplementary

technical training or by secondary school or other technical training.

A. Civil law

The applicant must, in particular, in relation to road haulage and passenger transport:

1. be familiar with the main types of contract used in road transport and with the rights

and obligations arising there from;

2. be capable of negotiating a legally valid transport contract, notably with regard to

conditions of carriage;

in relation to road haulage:

3. be able to consider a claim by his principal regarding compensation for loss of or

damage to goods during transportation or for their late delivery, and to understand

how such a claim affects his contractual liability;

4. be familiar with the rules and obligations arising from the CMR Convention on the

Contract for the International Carriage of Goods by Road;

in relation to road passenger transport:

5. be able to consider a claim by his principal regarding compensation for injury to

passengers or damage to their baggage caused by an accident during

transportation, or regarding compensation for delays, and to understand how such

a claim affects his contractual liability.

78 Council Decision 85/368/EEC of 16 July 1985 on the comparability of vocational training qualifications between

the Member States of the European Community (OJ L 199, 31.7.1985, p. 56)

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B. Commercial law

The applicant must, in particular, in relation to road haulage and passenger transport:

1. be familiar with the conditions and formalities laid down for plying the trade, the

general obligations incumbent upon transport operators (registration, record

keeping, etc.) and the consequences of bankruptcy;

2. have appropriate knowledge of the various forms of commercial companies and

the rules governing their constitution and operation.

C. Social law

The applicant must, in particular, in relation to road haulage and passenger transport,

be familiar with the following:

1. the role and function of the various social institutions which are concerned with

road transport (trade unions, works councils, shop stewards, labour inspectors,

etc.);

2. the employers’ social security obligations;

3. the rules governing work contracts for the various categories of worker employed

by road transport undertakings (form of the contracts, obligations of the parties,

working conditions and working hours, paid leave, remuneration, breach of

contract, etc.);

4. the rules applicable to driving time, rest periods and working time, and in particular

the provisions of Regulation (EEC) No 3821/85, Regulation (EC) No 561/2006,

Directive 2002/15/EC of the European Parliament and of the Council(1) and

Directive 2006/22/EC, and the practical measures for applying those provisions;

and

5. the rules applicable to the initial qualification and continuous training of drivers, and

in particular those deriving from Directive 2003/59/EC of the European Parliament

and of the Council79

D. Fiscal law

The applicant must, in particular, in relation to road haulage and passenger transport,

be familiar with the rules governing:

1. value added tax (VAT) on transport services;

2. motor-vehicle tax;

3. the taxes on certain road haulage vehicles and tolls and infrastructure user

charges;

4. income tax.

79 Directive 2003/59/EC of the European Parliament and of the Council of 15 July 2003 on the initial qualification

and periodic training of drivers of certain road vehicles for the carriage of goods or passengers (OJ L 226,

10.9.2003, p. 4)

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E. Business and financial management of the undertaking

The applicant must, in particular, in relation to road haulage and passenger transport:

1. be familiar with the laws and practices regarding the use of cheques, bills of

exchange, promissory notes, credit cards and other means or methods of payment;

2. be familiar with the various forms of credit (bank credit, documentary credit,

guarantee deposits, mortgages, leasing, renting, factoring, etc.) and the charges

and obligations arising there from;

3. know what a balance sheet is, how it is set out and how to interpret it;

4. be able to read and interpret a profit and loss account;

5. be able to assess the undertaking’s profitability and financial position, in particular

on the basis of financial ratios;

6. be able to prepare a budget;

7. be familiar with the cost elements of the undertaking (fixed costs, variable costs,

working capital, depreciation, etc.), and be able to calculate costs per vehicle, per

kilometre, per journey or per tonne;

8. be able to draw up an organisation chart relating to the undertaking’s personnel as

a whole and to organise work plans, etc.;

9. be familiar with the principles of marketing, publicity and public relations, including

transport services, sales promotion and the preparation of customer files, etc.;

10.be familiar with the different types of insurance relating to road transport (liability,

accidental injury/life insurance, non-life and luggage insurance) and the

guarantees and obligations arising there from;

11.be familiar with the applications of electronic data transmission in road transport;

in relation to road haulage:

12. be able to apply the rules governing the invoicing of road haulage services and

know the meaning and implications of Inco terms;

13. be familiar with the different categories of transport auxiliaries, their role, their

functions and, where appropriate, their status;

in relation to road passenger transport:

14. be able to apply the rules governing fares and pricing in public and private

passenger transport;

15. be able to apply the rules governing the invoicing of road passenger transport

services.

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F. Access to the market

The applicant must, in particular, in relation to road haulage and passenger transport,

be familiar with the following:

1. the occupational regulations governing road transport for hire or reward, industrial

vehicle rental and subcontracting, and in particular the rules governing the official

organisation of the occupation, admission to the occupation, authorisations for

intra-Community and extra-Community road transport operations, inspections and

penalties;

2. the rules for setting up a road transport undertaking;

3. the various documents required for operating road transport services and the

introduction of checking procedures to ensure that the approved documents

relating to each transport operation, and in particular those relating to the vehicle,

the driver, the goods and luggage are kept both in the vehicle and on the premises

of the undertaking;

in relation to road haulage:

4. the rules on the organisation of the market in road haulage services, as well as the

rules on freight handling and logistics;

5. border formalities, the role and scope of T documents and TIR carnets, and the

obligations and responsibilities arising from their use;

in relation to road passenger transport:

6. the rules on the organisation of the market in road passenger transport;

7. the rules for introducing road passenger transport services and the drawing up of

transport plans.

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G. Technical standards and technical aspects of operation

The applicant must, in particular, in relation to road haulage and passenger transport:

1. be familiar with the rules concerning the weights and dimensions of vehicles in the

Member States and the procedures to be followed in the case of abnormal loads

which constitute an exception to these rules;

2. be able to choose vehicles and their components (chassis, engine, transmission

system, braking system, etc.) in accordance with the needs of the undertaking;

3. be familiar with the formalities relating to the type approval, registration and

technical inspection of these vehicles;

4. understand what measures must be taken to reduce noise and to combat air

pollution by motor vehicle exhaust emissions;

5. be able to draw up periodic maintenance plans for the vehicles and their

equipment;

in relation to road haulage:

6. be familiar with the different types of cargo-handling and loading devices

(tailboards, containers, pallets, etc.) and be able to introduce procedures and issue

instructions for loading and unloading goods (load distribution, stacking, stowing,

blocking and chocking, etc.);

7. be familiar with the various techniques of ‘piggy-back’ and roll-on roll-off combined

transport;

8. be able to implement procedures to comply with the rules on the carriage of

dangerous goods and waste, notably those arising from Directive 2008/68/EC80(1)

and Regulation (EC) No 1013/200681

9. be able to implement procedures to comply with the rules on the carriage of

perishable foodstuffs, notably those arising from the Agreement on the

International Carriage of Perishable Foodstuffs and on the Special Equipment to

be used for such Carriage (ATP);

10. be able to implement procedures to comply with the rules on the transport of live

animals.

80 Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland

transport of dangerous goods(OJ L 260, 30.9.2008, p. 13). (1) and Regulation (EC) No 1013/2006(2)

81 Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of

waste (OJ L 190,12.7.2006, p. 1). (2)

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