CELEX: 62021CJ0666
Reference for a preliminary ruling
Road transport
Regulation (EC) No 561/2006
Scope
Article 2(1)(a)
Article 3(h)
Notion of ‘carriage by road of goods’
Notion of ‘maximum permissible mass’
Vehicle fitted out as a temporary private living space and for the non-commercial loading of goods
Regulation (EU) No 165/2014
Tachographs
Article 23(1)
Requirement for regular inspections by approved workshops

This request for a preliminary ruling concerns the interpretation of Article 2(1)(a) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1), as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 (OJ 2014 L 60, p. 1) (‘Regulation No 561/2006’).
The request has been made in proceedings between AI and the Åklagarmyndigheten (Public Prosecutor’s Office, Sweden) concerning an infringement of the rules on the use of tachographs.

Legal context

European Union law

Regulation No 561/2006
Recital 17 of Regulation No 561/2006 states as follows:
‘This Regulation aims to improve social conditions for employees who are covered by it, as well as to improve general road safety. It does so mainly by means of the provisions pertaining to maximum driving times per day, per week and per period of two consecutive weeks, the provision which obliges drivers to take a regular weekly rest period at least once per two consecutive weeks and the provisions which prescribe that under no circumstances should a daily rest period be less than an uninterrupted period of nine hours. …’
Article 1 of Regulation No 561/2006 states that that regulation ‘lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety’, and also ‘aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry’.
Article 2(1) of that regulation states:
‘This Regulation shall apply to the carriage by road:
(a)      of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes, or
(b)      of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver, and are intended for that purpose.’
Article 3 of that regulation provides:
‘This Regulation shall not apply to carriage by road by:
…
(h)      vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes used for the non-commercial carriage of goods;
…’
Article 4 of Regulation No 561/2006 provides:
‘For the purposes of this Regulation the following definitions shall apply:
(a)      “carriage by road” means any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of passengers or goods;
…
(m)      “maximum permissible mass” means the maximum authorised operating mass of a vehicle when fully laden;
…’

Regulation No 165/2014
Article 1(1) of Regulation No 165/2014 on tachographs in road transport is worded as follows:
‘This Regulation sets out obligations and requirements in relation to the construction, installation, use, testing and control of tachographs used in road transport, in order to verify compliance with Regulation (EC) No 561/2006, …’
Article 3 of Regulation No 165/2014, entitled ‘Scope’, provides, in paragraph 1:
‘Tachographs shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers or goods by road and to which Regulation (EC) No 561/2006 applies.’
Article 23 of Regulation No 165/2014, entitled ‘Inspections of tachographs’, provides, in paragraph 1:
‘Tachographs shall be subject to regular inspection by approved workshops. Regular inspections shall be carried out at least every two years.’

Swedish law
Under Paragraph 6 of Chapter 9 of Förordning (2004:865) om kör – och vilotider samt färdskrivare, m.m. (Regulation (2004:865) on driving times, rest periods and tachographs, etc.):
‘A fine shall be imposed on a driver who intentionally or negligently uses a tachograph which has not been submitted for an inspection in accordance with Article 23(1) of Regulation (EU) No 165/2014.’

The dispute in the main proceedings and the questions referred for a preliminary ruling
On 4 April 2019, during a police check, it was found that the vehicle driven by AI, registered in Sweden, was fitted with a tachograph which had not been inspected within the prescribed period. AI was transporting two snowmobiles in the cargo area of that vehicle and stated that he was en route to a snowmobile competition.
By judgment of 7 September 2020, the Sundsvall tingsrätt (District Court, Sundsvall, Sweden) convicted AI for speeding, but acquitted him of the offence of failing to submit the tachograph fitted to his vehicle for an inspection, as provided for in Paragraph 6 of Chapter 9 of Regulation (2004:865). Since the vehicle contained only six seats for passengers, that court held that it did not fall within the scope of Regulation No 561/2006, by virtue of Article 2(1)(b) of that regulation.
Both AI and the Public Prosecutor appealed against that judgment to the Hovrätten för Nedre Norrland (Court of Appeal, Southern Norrland, Sweden), the referring court.
The Public Prosecutor submits that the vehicle at issue, by reason of its weight and use for transporting snowmobiles, falls within the scope of Regulation No 561/2006 and is therefore subject to the requirement to use a tachograph.
According to AI, that is not the case, however, since that vehicle is not used for the commercial carriage by road of goods. He submits that, even if the vehicle has cargo space in which he sometimes transports his snowmobiles, it also includes a residential space for his personal use and that of his family during their journeys to practice snowmobiling, with the result that its principal purpose is to provide a temporary private living area.
The referring court states that the vehicle at issue appears in the national road traffic register as a lorry falling within category N3 and that the bodywork is described with the following comment: ‘Front part of the van fitted out permanently as living area, rear part as cargo area’. It also notes that that vehicle, the bodywork of which is similar to that of a bus, has a stated mass of 17 680 kilogrammes (kg), with a permitted cargo mass of 5 120 kg; it is 3.6 metres (m) high and 14.7 m long.
Since the vehicle in question has a cargo area capable of being used for the carriage by road of goods and the maximum permissible mass exceeds 3.5 tonnes, the referring court considers that that vehicle falls within the scope of Regulation No 561/2006 by virtue of Article 2(1) of that regulation. However, it is unsure about the interpretation of the notion of ‘carriage by road of goods’ within the meaning of that provision and asks, in particular, whether the principal purpose or actual use of the vehicle concerned, its cargo capacity and its registration in the national road traffic register are relevant for the interpretation of that notion.
The referring court considers that Article 2(1)(a) of Regulation No 561/2006 is primarily aimed at the carriage by road of goods in the course of a commercial activity. That interpretation is supported by the objectives pursued by that regulation, which is to harmonise the conditions of competition with regard to the road sector and to improve working conditions and road safety.
However, relying on the judgment of 3 October 2013,
Lundberg
(C‑317/12, EU:C:2013:631), that court observes that transport undertaken by heavy vehicles used exclusively by private individuals in the course of their leisure activities and unrelated to commercial activity scarcely undermines the objectives of harmonising conditions of competition with regard to the road sector and improving working conditions. It also asks whether the application to such vehicles of the rules on driving times, breaks and rest periods laid down by Regulation No 561/2006 is proportionate to those objectives.
In those circumstances, the Hovrätten för Nedre Norrland (Court of Appeal, Southern Norrland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must the term “carriage by road of goods” in Article 2(1)(a) of [Regulation No 561/2006] be interpreted as including carriage by a vehicle with a total mass of greater than 3.5 tonnes the main use of which is to provide a temporary living area for private use?
(2)      In such circumstances, is the vehicle’s cargo capacity or how the vehicle is registered in the national traffic register of relevance?’

Consideration of the questions referred
By way of a preliminary observation, it should be pointed out that, in order to provide a useful answer to the referring court, the Court of Justice may deem it necessary to consider provisions of EU law to which the national court has not referred in its questions, in particular by extracting from the statement of grounds in the order for reference the elements of EU law which, having regard to the subject matter of the dispute, require interpretation (see, to that effect, judgments of 12 December 1990,
SARPP
, C‑241/89, EU:C:1990:459, paragraph 8, and of 27 June 2017,
Congregación de Escuelas Pías Provincia Betania
, C‑74/16, EU:C:2017:496, paragraph 36).
In the present case, in order to determine whether a situation such as that at issue in the main proceedings falls within the scope of Regulation No 561/2006, it is necessary to examine not only whether the conditions laid down in Article 2(1)(a) of that regulation are satisfied, but also whether those referred to in Article 3(h) of that regulation are not satisfied.
Therefore, it must be understood that, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 2(1)(a) of Regulation No 561/2006, read in conjunction with Article 3(h) of that regulation, must be interpreted to the effect that the notion of ‘carriage by road of goods’, within the meaning of the first of those provisions, covers carriage by road by a vehicle whose maximum permissible mass, within the meaning of Article 4(m) of that regulation, exceeds 7.5 tonnes, including where it is fitted out not only as a temporary private living area but also for the non-commercial loading of goods, taking into account, if appropriate, that vehicle’s cargo capacity and the category in which it appears in the national road traffic register.
It is apparent from Article 2(1)(a) and Article 4(a) of Regulation No 561/2006 that that regulation applies to the carriage by road of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes.
The notion of ‘carriage by road’ is defined in Article 4(a) of that regulation as meaning ‘any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of passengers or goods’. The notion of ‘maximum permissible mass’ is defined in Article 4(m) of that regulation as being ‘the maximum authorised operating mass of a vehicle when fully laden’.
The wording of Article 2(1)(a) of Regulation No 561/2006, read in conjunction with Article 4(a) of that regulation, in so far as it defines the notion of ‘carriage by road’ by reference to ‘any journey’, cannot exclude from the scope of that regulation the non-commercial carriage by road of goods.
That literal interpretation is supported by the context of Article 2(1)(a) of Regulation No 561/2006. Article 3(h) of that regulation expressly excludes from its scope carriage by road by vehicles ‘with a maximum permissible mass not exceeding 7.5 tonnes used for the non-commercial carriage of goods’. As the Advocate General observed in point 39 of his Opinion, it follows from a combined reading of that provision with Article 2(1)(a) of that regulation that the non-commercial carriage by road of goods is excluded from the scope of Regulation No 561/2006 only where the maximum permissible mass of the vehicle concerned does not exceed 7.5 tonnes.
Conversely, where the maximum permissible mass of the vehicle in question exceeds 7.5 tonnes, the non-commercial carriage by road of goods, by virtue of those two provisions taken together, falls within the scope of Regulation No 561/2006 and must therefore comply with the rules on driving times, breaks and rest periods of drivers laid down by that regulation, and the obligations and requirements relating to the installation, use and control of tachographs under Regulation No 165/2014.
The fact that, as in the case in the main proceedings, a vehicle is fitted out not only as a temporary private living area but also for the non-commercial loading of goods is not such as to call into question the finding made in the preceding paragraph.
As regards the carriage by road of goods, the scope of Regulation No 561/2006, by virtue of both Article 2(1)(a) and Article 3(h) of that regulation, is determined by the ‘maximum permissible mass’ of the vehicle concerned, without changes such as that referred to in the preceding paragraph, the load capacity of that vehicle or the category in which it is entered in the national road traffic register being relevant for that purpose.
That interpretation is also supported by the objectives pursued by Regulation No 561/2006, including the improvement of road safety and the promotion of improved monitoring and enforcement practices by the Member States, set out in Article 1 of that regulation, read in conjunction with recital 17 thereof. The attainment of those objectives would be jeopardised if vehicles with a maximum permissible mass exceeding 7.5 tonnes could escape the road safety obligations imposed by that regulation, on account of their use as a temporary private living area and for the non-commercial loading of goods.
It should be added that any disadvantages connected with the obligations arising from the fact that a vehicle whose ‘maximum permissible mass’, within the meaning of Article 4(m) of Regulation No 561/2006, exceeds 7.5 tonnes is caught by that regulation, including where it is intended to be used in the non-commercial carriage by road of goods, does not appear disproportionate to the objective of improving road safety. That objective cannot be limited to the commercial carriage by road of goods. As the Advocate General observed in point 47 of his Opinion, if all non-commercial carriage by road of goods were to be excluded from the scope of Regulation No 561/2006, the objective of improving road safety, which the legislature of the European Union intended to implement when it adopted that regulation, would be undermined.
The same is true of the objective of promoting, in accordance with Article 1 of Regulation No 561/2006, improved monitoring and enforcement practices by Member States in respect of the rules laid down by that regulation and by Regulation No 165/2014.
In the light of the foregoing, the answer to the questions referred is that Article 2(1)(a) of Regulation No 561/2006, read in conjunction with Article 3(h) of that regulation, must be interpreted to the effect that the notion of ‘carriage by road of goods’, within the meaning of the first of those provisions, covers carriage by road by a vehicle whose maximum permissible mass, within the meaning of Article 4(m) of that regulation, exceeds 7.5 tonnes, including where it is fitted out not only as a temporary private living area but also for the non-commercial loading of goods, without that vehicle’s cargo capacity or the category in which it appears in the national road traffic register having any effect in that regard.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 2(1)(a) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014, read in conjunction with Article 3(h) of Regulation No 561/2006, as amended,
must be interpreted to the effect that the notion of ‘carriage by road of goods’, within the meaning of the first of those provisions, covers carriage by road by a vehicle whose maximum permissible mass, within the meaning of Article 4(m) of Regulation No 561/2006, as amended, exceeds 7.5 tonnes, including where it is fitted out not only as a temporary private living area but also for the non-commercial loading of goods, without that vehicle’s cargo capacity or the category in which it appears in the national road traffic register having any effect in that regard.
[Signatures]
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Language of the case: Swedish.