JUDGMENT OF 25. 1. 1977 -CASE 65/76 DERYCKE

In Case 65/76 Reference to the Court under Article 177 of the EEC Treaty by the Correctionele Rechtbank (Criminal Appeal Court), sitting at Oudenaarde (Belgium) for a preliminary ruling in the criminal proceedings pending by way of appeal in that court against

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts, procedure and observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and written procedure

Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport (OJ English Special Edition 1969 (I), p. 170), as amended by Regulations No 514/72 and No 515/72 of the Council of 28 February 1972 (OJ English Special Edition 1972 (I), pp. 124 and 135), contains provisions on working conditions in road transport with regard to the composition of crew, driving periods and rest periods.

To make it possible to check that these provisions are observed Article 14 of the regulation provides that crew members of a vehicle not assigned to a regular service are to carry an individual control book. Members of the crew are to enter from day to day in the daily sheets of the individual control book details of daily rest periods, certain breaks from work, driving periods and other periods of attendance at work.

Under Article 16 of Regulation No 543/69 the Council was required by 31 December 1969 to determine the technical characteristics of mechanical recording equipment to replace, as far as possible, the individual control book. In implementation of this provision the Council adopted Regulation No 1463/70 of 20 July 1970 on the introduction of recording equipment in road transport (OJ English Special Edition 1970 (II), p. 482), in turn amended by Regulation No 1787/73 of the Council of 25 June 1973 (OJ L 181, p. 1).

Article 18 of Regulation No 543/69 provides that Member States shall, in due time and after consulting the Commission, adopt such laws, regulations or administrative provisions as may be necessary for its implementation. Such measures are to cover, inter alia, the organization of, procedure for and means of control and the penalties to be imposed in case of breach.

In accordance with this provision a Royal Decree was issued in Belgium on 23 March 1970 implementing Regulation No 543/69 (Moniteur Belge, p. 3136).

As regards penalties this decree applies Article 2 of the Law of 18 February 1969 on implementation of international treaties and measures relating to transport by road, rail and inland waterway.

On 18 July 1975 the Belgian gendarmerie at Etikhove reported Mr Marcel Derycke, a stallholder, residing at Ronse, for having driven on the public highway a goods vehicle having a permissible maximum weight exceeding 3.5 tonnes and without his being in possession of an individual control book as provided for by Regulation No 543/69 and the Royal Decree of 23 March 1970 and without his vehicle having been fitted with recording equipment.

On 12 May 1976 the Politierechtbank (Police Court), Ronse, fined Mr Derycke FB 1500 with time for payment.

Mr Derycke thereupon appealed to the Correctionele Rechtbank (Criminal Appeal Court), sitting at Oudenaarde.

In support of his appeal he maintains that Regulation No 543/69 is not applicable to independent traders, but only to lorry-drivers in the service of an employer or undertaking.

By judgment dated 25 June 1976 the Correctionele Rechtbank, sitting at Oudenaarde, decided, in application of Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following question:

‘Is it to be understood from Articles 2 and 4 (2) of Regulation (EEC) No 543/69 of the Council of the European Communities of 25 March 1969 on the harmonization of certain social legislation relating to road transport that that regulation is applicable to any carriage of goods by a vehicle with a permissible maximum weight of 3.5 tonnes or over, irrespective of the status of the driver of that vehicle, so that those provisions are applicable to the carriage of goods either by an employee or by an independent trader? Or are the said articles of that Regulation (EEC) No 543/69 to be interpreted as meaning that the regulation applies, in respect of the carriage of goods by a vehicle having a permissible maximum weight of 3.5 tonnes or over, only to the carriage of goods by road by an employee of an undertaking, so that those provisions should not be applicable to the carriage of goods by an independent trader on his own account?’

The judgment of the Correctionele Rechtbank was lodged at the Court Registry on 13 July 1976.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were lodged on 15 September 1976 by the Commission of the European Communities.

On hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral procedure without a preparatory inquiry.

By order dated 19 October 1976, the Court, applying Article 95 (1) of the Rules of Procedure, referred the case to the Second Chamber.

II — Written observations submitted to the Court

The Commission of the European Communities takes the view that it follows both from the actual wording of Regulation No 543/69 and from its scope that it is applicable, subject to the exemptions expressly provided for in Article 4, both to the carriage of goods in a vehicle driven by an independent driver and to the carriage by road of goods effected by employed drivers.

a) With regard to the wording of the regulation the combination of Article 2 with Article 1 (1) gives it a very wide scope. Moreover the wording contains no convincing evidence that it applies only to carriage effected by employed persons. Carriage effected by a self-employed person is not included among the different types of transport to which, according to Article 4, the regulation does not apply. The distinction made by the instructions relating to the keeping of the individual control book, the books themselves and the weekly reports between the undertaking and the crew member takes account of the greater complexity in cases in which the undertaking and the crew member are different persons; its objective is in no way to exclude independent persons from the scope of the regulation.

b) With regard to the objectives it appears from the Council Decision of 13 May 1965 on the harmonization of certain provisions affecting competition in transport by rail, road and inland waterway (OJ English Special Edition 1965-1966, p. 67) that the first objective of Regulation No 543/69 is to harmonize the conditions of competition between Member States; this harmonization would be only partial if self-employed drivers were excluded. The regulation is also intended to improve road safety; its provisions relating to the period of driving, rest periods and minimum age of drivers must obviously apply both to the employed driver and the independent driver. The objective of promoting social progress appears to refer mainly to employed drivers; the imposition of minimum rest periods and the limitation of driving periods however constitute social progress for independent drivers in the same way as employed drivers.

c) With regard to the obligation imposed by Article 14 (1) of the regulation on crew members of a vehicle not assigned to a regular service to carry an individual control book it may be observed that Article 1 (3) (a) under the heading of ‘crew member’ defines the driver as ‘any person who drives the vehicle even for a short period, or who is carried in the vehicle in order to be available for driving if necessary’. This intentionally general terminology gives as wide a meaning as possible to the definition of driver.

d) It would therefore be appropriate to answer the question raised by the Correctionele Rechtbank, sitting at Oudenaarde, as follows: Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport applies, subject to the exceptions provided for in the regulation itself, to all carriage by road effected wholly or partially within the Community in vehicles, whether or not such vehicles are driven by employed or self-employed persons. The provisions of the regulation applicable to crew members apply without distinction to employed and self-employed crew.

III — Oral procedure

The Commission of the European Communities represented by its Legal Adviser, George L. Close, and Hendrik Bronkhorst, Member of the Legal Department, submitted its oral observations at the hearing on 25 November 1976 and replied to a question raised by the Court.

The Advocate-General delivered his opinion at the hearing on 16 December 1976.

Law

1. By judgment dated 25 June 1976, received at the Court Registry on 13 July 1976, the Correctionele Rechtbank, sitting at Oudenaarde, referred to the Court under Article 177 of the EEC Treaty a question on the interpretation of certain provisions on the scope of Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport (OJ English Special Edition 1969 (I), p. 170).

2. It appears from the judgment making the reference that the appellant in the main action was found guilty at first instance of having driven a lorry coming within the provisions of Regulation No 543/69 without being in possession of the individual control book required by the provisions of the same regulation.

3. The appellant, who is a stallholder, maintains that that regulation is not applicable to independent traders, but only to drivers who are working for a private employer or undertaking.

4. The national court has doubts on the interpretation of the provisions determining, in this respect, the scope of the regulation having regard in particular to the fact that the regulation is of a ‘social’ nature and that certain of the provisions, particularly the instructions in the annex laying down the model of the control book itself, use the concepts of ‘undertaking’, ‘employer’ and ‘worker’.

5. In order to settle this doubt the national court has referred the following question to the Court of Justice:

‘Is it to be understood from Articles 2 and 4 (2) of Regulation (EEC) No 543/69 of the Council of the European Communities of 25 March 1969 on the harmonization of certain social legislation relating to road transport that that regulation is applicable to any carriage of goods by a vehicle with a permissible maximum weight of 3.5 tonnes or over, irrespective of the status of the driver of that vehicle, so that those provisions are applicable to the carriage of goods either by an employee or by an independent trader?

Or are the said articles of that Regulation (EEC) No 543/69 to be interpreted as meaning that the regulation applies, in respect of the carriage of goods by a vehicle having a permissible maximum weight of 3.5 tonnes or over, only to the carriage of goods by road by an employee of an undertaking, so that those provisions should not be applicable to the carriage of goods by an independent trader on his own account?’

6. The scope of Regulation No 543/69 itself must be determined by the wording of the provisions relevant to the case, the structure of the regulation and its objectives.

7. Article 2, coming under Section II headed “Scope”, states: “This regulation shall apply to carnage by road” and Article 1 (1) provides that ‘carriage by road’ means ‘any journey by road of a vehicle… used for the carriage of passengers or goods’ save for vehicles expressly mentioned in Article 4.

8. It appears from this provision that the scope of the regulation is fundamentally determined in terms of a particular type of carriage and not by reason of the status of the driver.

9. The same conclusion may be reached from Article 1 (3) which defines the concept of ‘crew member’ as the driver, driver's mate and the conductor, and the driver is to be understood as ‘any person’ who drives the vehicle.

10. It is in this generic sense that the expressions ‘crew member’ and ‘driver’ are normally used throughout the regulation.

11. The concepts ‘undertaking’ and ‘employer’ used in the wording of the control book to cover the most frequent practical needs cannot be understood as making any change in the general structure of the regulation or placing a limitation on its scope.

12. Nor can a restrictive scope be given to the words ‘certain social legislation’ in the title to the regulation since this concept, far from being limited to relations between employers and employees, embraces in ordinary speech questions related to the well-being of the most diverse classes of the population.

13. The use of this phrase in Regulation No 543/69 cannot therefore be understood to exclude independent workers from the scope of the rules which it lays down.

14. The evidence to be found in the wording and the structure of the regulation is completely in accord with its objectives.

15. The first objective of the regulation is of a social nature consisting in protecting drivers and the crews of vehicles used for trade purposes against the harmful effects of excessive and badly distributed driving periods.

16. In addition, as shown by the second paragraph of the preamble, the objective of the regulation is to eliminate disparities liable to cause substantial distortion in competition in the transport sector by ending working practices based on an improper exploitation of the human factor.

17. Finally, as appears from various references in the preamble and from several of the provisions of the regulation, the latter is also intended to contribute to road safety on the public highway.

18. All these considerations apply, for the same reasons, to all drivers of vehicles whether they be employed or independent.

19. The exemption of independent drivers from the scope of the regulation would have repercussions which would be all the more serious in view of the fact that it would likewise involve the exemption of a large number of family-type or cooperative undertakings run by persons not bound by the typical links between employers and employees.

20. The effect of such an exemption would therefore be to open a considerable breach in the effectiveness of the provisions of the regulation.

21. For all these reasons it is appropriate to reply to the question raised that Articles 1, 2 and 4 of Regulation No 543/69 must be interpreted as covering any carriage coming within the scope of the regulation irrespective of the status of the driver of the vehicle so that the provisions of the regulation are applicable to carriage effected both by an independent trader and by an employed driver.

Costs

22. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

23. As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Correctionele Rechtbank, sitting at Oudenaarde, costs are a matter for that court.

On those grounds, THE COURT (Second Chamber) in answer to the question referred to it by the Correctionele Rechtbank, sitting at Oudenaarde, by judgment of 25 June 1976, hereby rules: