CELEX: 62019CJ0906
Reference for a preliminary ruling
Road transport
Harmonisation of certain social legislation
Regulation (EC) No 561/2006
Article 3(a)
Non-application of the regulation to carriage by road by vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 km
Mixed-use vehicle
Article 19(2)
Extraterritorial penalty
Infringement detected on the territory of a Member State committed on the territory of another Member State
Principle that offences and penalties must have a proper legal basis
Regulation (EEC) No 3821/85
Recording equipment in road transport
Article 15(2)
Obligation to insert the driver card
Article 15(7)
Obligation to produce the driver card whenever an authorising inspecting officer so requests
Failure to insert the driver card into the recording equipment affecting several of the 28 days preceding the day of inspection

This request for a preliminary ruling concerns the interpretation of Article 3(a) and Article 19(2) 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), read in conjunction with Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8), as amended by Regulation No 561/2006 (‘Regulation No 3821/85’).
The request has been made in criminal proceedings brought by the ministère public (Public Prosecutor’s Office, France) against FO, the managing director of a road transport company established in Germany, on account of the failure, on the part of one of the coach drivers employed by his company, to insert the driver card into the tachograph of the vehicle which that driver was driving.

Legal context

European Union law

Regulation No 3821/85
Regulation No 3821/85 repealed and replaced Regulation (EEC) No 1463/70 of the Council of 20 July 1970 on the introduction of recording equipment in road transport (OJ, English Special Edition, Series I 1970(II), p. 482). Regulation No 3821/85 was itself repealed and replaced by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Regulation No 3821/85 and amending Regulation No 561/2006 (OJ 2014 L 60, p. 1). However, given the date of the events in the main proceedings, regard must be had to Regulation No 3821/85.
The first sentence of Article 3(1) of Regulation No 3821/85 provided:
‘Recording equipment shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers or goods by road, except the vehicles referred to in Article 3 of Regulation [No 561/2006].’
Article 15 of Regulation No 3821/85 provided:
‘…
2.      Drivers shall use the record sheets or driver cards every day on which they are driving, starting from the moment they take over the vehicle. The record sheet or driver card shall not be withdrawn before the end of the daily working period unless its withdrawal is otherwise authorised. No record sheet or driver card may be used to cover a period longer than that for which it is intended.
…
3.      Drivers shall:
–        ensure that the time recorded on the sheet agrees with the official time in the country of registration of the vehicle,
–        operate the switch mechanisms enabling the following periods of time to be recorded separately and distinctly:
(a)      … driving time;
(b)      “other work” means any activity other than driving, as defined in Article 3(a) of Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities [(OJ 2002 L 80, p. 35)], and also any work for the same or another employer within or outside of the transport sector …;
…
7.      (a)      Where the driver drives a vehicle fitted with recording equipment in conformity with Annex I, the driver must be able to produce, whenever an inspecting officer so requests:
(i)      the record sheets for the current week and those used by the driver in the previous 15 days;
(ii)      the driver card if he holds one, and
(iii)      any manual record and printout made during the current week and the previous 15 days as required under this Regulation and Regulation [No 561/2006].
However, after 1 January 2008, the time periods referred to under (i) and (iii) shall cover the current day and the previous 28 days.
(b)      Where the driver drives a vehicle fitted with recording equipment in conformity with Annex IB, the driver must be able to produce, whenever an inspecting officer so requests:
(i)      the driver card of which he is holder;
(ii)      any manual record and printout made during the current week and the previous 15 days as required under this Regulation and Regulation [No 561/2006], and
(iii)      the record sheets corresponding to the same period as the one referred to in the previous subparagraph during which he drove a vehicle fitted with recording equipment in conformity with Annex I.
However, after 1 January 2008, the time periods referred to under (ii) shall cover the current day and the previous [28] days.
(c)      An authorised inspecting officer may check compliance with Regulation [No 561/2006] by analysis of the record sheets, of the displayed or printed data which have been recorded by the recording equipment or by the driver card or, failing this, by analysis of any other supporting document that justifies non-compliance with a provision, such as those laid down in Article 16(2) and (3).
…’

Regulation No 561/2006
Recital 17 of Regulation No 561/2006, which replaced and repealed Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1), is worded as follows:
‘(17)      This Regulation aims to improve social conditions for employees who are covered by it, as well as to improve general road safety. …’
Article 1 of Regulation No 561/2006 is worded as follows:
‘This 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. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry.’
Article 3(a) of that regulation indicates that the latter does not apply to carriage by road by ‘vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres’.
Under Article 4(e) of that regulation, for the purposes of the latter, ‘other work’ means ‘all activities which are defined as working time in Article 3(a) of Directive  [2002/15], except “driving”, including any work for the same or another employer, within or outside of the transport sector’.
Article 6 of Regulation No 561/2006, which sets the maximum driving times per day, per week and per period of two consecutive weeks, specifies in paragraph 5 thereof:
‘A driver shall record as other work any time spent as described in Article 4(e) as well as any time spent driving a vehicle used for commercial operations that do not fall within the scope of this Regulation, and shall record any periods of availability, as defined in Article 15(3)(c) of Regulation  [No 3821/85], since his last daily or weekly rest period. This record shall be entered either manually on a record sheet, a printout or by use of manual input facilities on recording equipment.’
Chapter V of Regulation No 561/2006, entitled ‘Control procedures and sanctions’, contains Articles 16 to 25 thereof.
Article 19 of that regulation provides:
‘1.      Member States shall lay down rules on penalties applicable to infringements of this Regulation and Regulation [No 3821/85] and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive and non-discriminatory. No infringement of this Regulation and Regulation [No 3821/85] shall be subjected to more than one penalty or procedure. The Member States shall notify the Commission of these measures and the rules on penalties by the date specified in the second subparagraph of Article 29. The Commission shall inform Member States accordingly.
2.      A Member State shall enable the competent authorities to impose a penalty on an undertaking and/or a driver for an infringement of this Regulation detected on its own territory and for which a penalty has not already been imposed, even where that infringement has been committed on the territory of another Member State or of a third country.
…
4.      Member States shall ensure that a system of proportionate penalties, which may include financial penalties, is in force for infringements of this Regulation or [Regulation No 3821/85] on the part of undertakings, or associated consignors, freight forwarders, tour operators, principal contractors, subcontractors and driver employment agencies.’

French law
According to the first subparagraph of Article L.  3315-5 of the code des transports (Transport Code), engaging in road transport with a driver card which is irregular or does not belong to the driver using it, or in circumstances where there is no driver card inserted in the vehicle’s tachograph, is punishable by six months’ imprisonment and a fine of EUR 3 750.

The dispute in the main proceedings and the questions referred for a preliminary ruling
On 2 April 2013, in Versailles (France), officers of the division for preventing and penalising road traffic offences carried out a roadside check of a coach operated by a transport undertaking whose registered office is in Segenthal (Germany).
In the course of that check, the driver was asked to produce records of his activity for the current day and for the previous 28 days. It was noted at that time that, for nine days falling within the period from 5 to 16 March 2013, the vehicle had been driven without the driver card having been inserted in the tachograph.
As a result of those facts, FO, the managing director of that transport undertaking, was prosecuted under the first subparagraph of Article L.  3315-5 of the Transport Code for the offence covered by that provision, committed by him on nine occasions.
The tribunal correctionnel de Versailles (Criminal Court, Versailles, France) found the allegations proved and fined FO EUR 10 125.
Before the cour d’appel de Versailles (Court of Appeal, Versailles, France), FO argued that the French criminal courts did not have territorial jurisdiction to hear the matter. In his view, neither French law (having regard to the criminal-law principle of territoriality) nor Article 19(2) of Regulation No 561/2006 permits the French authorities to prosecute the person who committed the alleged offences, since they were committed on the territory of another Member State of the European Union.
By judgment of 2 May  2018, the cour d’appel de Versailles (Court of Appeal, Versailles) upheld the judgment at first instance on both conviction and sentence. As regards, in particular, FO’s plea of lack of jurisdiction, it found that the alleged offences came under Article L.  3315-5 of the Transport Code enacted by way of implementation of Regulation No 3821/85, and highlighted that the express derogation from the principle of territoriality as regards prosecutions, laid down in Article 19(2) of Regulation No 561/2006, covered not only the provisions of the latter regulation but also those of Regulation No 3821/85.
FO brought an appeal before the Cour de cassation (Court of Cassation, France), requesting it to refer the question of the territorial jurisdiction of the French criminal courts to the Court of Justice for a preliminary ruling.
In addition, FO criticises the cour d’appel de Versailles (Court of Appeal, Versailles) on the ground that it did not address his submission that the regulations concerning driving time and rest periods do not apply to regular services covering less than 50 km. In particular, FO maintains that, during the nine days within the period of 28 days preceding the day of inspection, the driver of the vehicle at issue in the main proceedings had not been obliged to insert the driver card into the tachograph, given that, for the journeys undertaken during those days, the vehicle had been used for the carriage of passengers on regular services where the route covered by the service in question did not exceed 50 km. According to FO, since those journeys did not come within the scope of Regulation No 561/2006, by virtue of  Article 3(a) thereof, the obligations laid down in Article 15 of Regulation No 3821/85 did not apply to those journeys.
The Cour de cassation (Court of Cassation) is uncertain, in the first place, about the interpretation of Article 19(2) of Regulation No 561/2006.
In that regard, that court notes that, even though FO considers that that provision allows a Member State to impose penalties only in respect of infringements of Regulation No 561/2006 detected on its territory and committed on the territory of another Member State, it would be possible to interpret that provision as authorising penalties for infringements of Regulation No 3821/85 committed on the territory of another Member State, since the penalty for such infringements could be regarded as necessary for the suppression of infringements of Regulation No 561/2006. Furthermore, although a provision must be interpreted by taking into account not only its wording but also the context in which it occurs and the objectives of the rules of which it forms part, the broad interpretation of Article 19(2) of Regulation No 561/2006 corresponds to the objective pursued by that regulation, which is to improve the working conditions of employees in the road transport sector and to improve general road safety.
The Cour de cassation (Court of Cassation) also observes that the infringement of the obligation, laid down in Article 15(7) of Regulation No 3821/85, to produce, whenever an inspecting officer so requests, the record sheets and any manual record and printout made during the current day and the previous 28 days, must necessarily be detected on the territory of the Member State where the inspection takes place and which proceeds to prosecution, with the result that the question of whether the infringement was committed partly on the territory of another Member State does not arise.
In the second place, the Cour de cassation (Court of Cassation) is uncertain as to whether the obligations laid down in Article 15 of Regulation No 3821/85 apply in situations involving ‘mixed’ use of a vehicle, that is to say, when the vehicle is used, during a period of 28 days, both for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 km, within the meaning of the exception laid down in Article 3(a) of Regulation No 561/2006, and for transport which is covered by that regulation.
In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Does Article 19(2) of Regulation [No 561/2006] which provides that “a Member State shall enable the competent authorities to impose a penalty on an undertaking and/or a driver for an infringement of this Regulation detected on its territory and for which a penalty has not already been imposed, even where that infringement has been committed on the territory of another Member State or of a third country”, apply only to infringements of the provisions of that regulation, or does it also apply to infringements of Regulation [No 3821/85], which has been replaced by Regulation [No 165/2014]?
(2)      Is Article 3(a) of Regulation [No 561/2006] to be interpreted as permitting a driver to derogate from the provisions of Article 15(2) and (7) of Regulation [No 3821/85], which has been replaced by Regulation [No 165/2014], under which the driver must be able to produce, whenever an inspecting officer so requests, the record sheets and any manual record and printout made during the current day and the previous 28 days, where a vehicle is used, during a period of 28 days, for some journeys falling within the exception referred to above, and some journeys in respect of which there is no relevant derogation from the requirement to use recording equipment?’

Consideration of the questions referred

The second question
By its second question, which it is appropriate to answer first, the referring court asks, in essence, whether Article 3(a) of Regulation No 561/2006 must be interpreted as meaning that a driver who performs road transport services falling within the scope of that regulation is obliged to produce, whenever an inspecting officer so requests, the driver card, the record sheets and any manual record and printout made during the period consisting of the day of the inspection and of the previous 28 days, in accordance with Article 15(2), (3) and (7) of Regulation No 3821/85, even when, during that period, that driver has also undertaken, in the same vehicle, the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 km.
It is apparent from the order for reference that that question is raised in the context of a dispute in which the managing director of the transport undertaking at issue was prosecuted on account of the fact that a driver employed by that undertaking did not insert the driver card into the tachograph during a period in which he undertook the carriage of passengers, in the context of a regular service, where the route covered by the service in question did not exceed 50 km.
It must be recalled that Regulation No 561/2006, as is apparent from Article 1 thereof, 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. It also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry. As regards Regulation No 3821/85, it lays down, in particular, the requirements applicable to the approval, installation, verification and use of recording equipment used in road transport in order to verify compliance with certain provisions of social legislation relating to transport, in particular those laid down by Regulation No 561/2006.
In accordance with Article 3(1) of Regulation No 3821/85, vehicles registered in a Member State of the European Union which are used for the carriage of passengers or goods by road, except the vehicles referred to in Article 3 of Regulation No 561/2006, must be equipped with recording equipment. Under Article 3(a) of Regulation No 561/2006, the latter does not apply to the carriage by road by vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 km.
It is therefore necessary to determine to what extent that exclusion from the scope of Regulation No 561/2006 may affect the obligations laid down in Article 15 of Regulation No 3821/85 relating to the recording of driving time and inspection, in a situation involving the mixed use of a vehicle, such as that at issue in the main proceedings, consisting partly of road transport coming under the provisions of Regulation No 561/2006, and partly of carriage of passengers on regular services where the route covered by the service in question does not exceed 50 km.
In so far as the wording of Article 3(a) of Regulation No 561/2006 is concerned, it must be observed that the expression ‘vehicles used’ for the carriage of passengers on ‘regular services’ where the route covered by the service in question does not exceed 50 km, contained in that provision, suggests, as the Advocate General noted, in essence, in point 32 of his Opinion, that it covers only vehicles which are used exclusively for such transport, to the exclusion of vehicles which are used only occasionally for that purpose.
Furthermore, it must be noted that Article 3(a) of Regulation No 561/2006, in so far as it introduces an exception to the scope of that regulation, must be interpreted strictly. In particular, such an exception may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure, and the scope of that exception must be determined in the light of the aims pursued by the legislation at issue (see, by analogy, judgment of 3 October 2013,
Lundberg
, C‑317/12, EU:C:2013:631, paragraph 20 and the case-law cited).
In so far as the objectives pursued by Regulation No 561/2006 are concerned, it should be recalled that, in accordance with recital 17 and Article 1 thereof, that regulation seeks to harmonise the conditions of competition between inland transport modes, especially with regard to the road sector, and to improve the working conditions of employees in that sector and road safety, those objectives meaning in particular that, in principle, road transport vehicles must be equipped with an approved tachograph enabling compliance with driving times and drivers’ rest periods to be monitored (judgment of 2 March 2017,
Casa Noastră
, C‑245/15, EU:C:2017:156, paragraph 28 and the case-law cited).
In that regard, it is important to emphasise that the Court already held that the obligation for the driver to record any period referred to in Article 15(3)(b) of Regulation No 3821/85 extends to driving time spent by him or her performing a transport service which, under Article 4(3) of Regulation No 3820/85 and Article 3(1) of Regulation No 3821/85, falls outside the scope of Regulation No 3821/85. Such time constitutes a period when the driver is actually engaged in activities, during which he or she does not freely dispose of his or her time and which is liable to have a bearing on his or her driving, in that it will affect his or her state of tiredness (see, to that effect, judgment of 18 January 2001,
Skills Motor Coaches and Others
, C‑297/99, EU:C:2001:37, paragraphs 10, 25 and 36 to 39).
The influence on driving ability may occur even if the days on which the recording is missing differ from those on which the recording is undertaken regularly. Failure to comply with the rules on driving times, breaks and rest periods not registered by the recording equipment during the days on which the recording is missing may have a negative effect on the driver’s physical and psychological ability during a subsequent period.
This interpretation is corroborated by Article 6(5) of Regulation No 561/2006, which requires the driver to record as ‘other work’ any time spent driving a vehicle used for commercial operations not falling within the scope of that regulation.
Therefore, to adopt an interpretation of Article 3(a) of Regulation No 561/2006 according to which the exclusion, laid down in that provision, from the scope of that regulation is not limited to the exclusive use of the vehicle in question for the purposes of the particular road transport referred to in that provision would run counter to the objective of improving working conditions and road safety pursued by that regulation, by rendering Regulation No 561/2006 inapplicable to certain uses of that vehicle, which may affect driving, and by excluding those uses from being taken into account during the inspection of compliance with Article 15(2), (3) and (7) of Regulation No 3821/85.
In those circumstances, the answer to the second question is that Article 3(a) of Regulation No 561/2006 must be interpreted as meaning that a driver who performs road transport services falling within the scope of that regulation is obliged to produce, whenever an inspecting officer so requests, the driver card, the record sheets and any manual record and printout made during the period consisting of the day of the inspection and of the previous 28 days, in accordance with Article 15(2), (3) and (7) of Regulation No 3821/85, even when, during that period, that driver has also undertaken, in the same vehicle, the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 km.

The first question
By its first question, the referring court asks, in essence, whether Article 19(2) of Regulation No 561/2006 must be interpreted as precluding the competent authorities of a Member State from imposing a penalty on the driver of a vehicle or on a transport undertaking for an infringement of Regulation No 3821/85 committed on the territory of another Member State or of a third country but detected on its own territory and for which a penalty has not already been imposed.
It should be noted at the outset that, according to its own unambiguous wording, Article 19(2) of Regulation No 561/2006 provides that a Member State must enable the competent authorities to impose a penalty on an undertaking and/or a driver for an infringement detected on its territory and for which a penalty has not already been imposed, even where that infringement has been committed on the territory of another Member State or of a third country, only in relation to an infringement ‘of this Regulation’. The use of the latter terms thus shows clearly that that provision refers to infringements of Regulation No 561/2006 alone and not to infringements of Regulation No 3821/85.
That literal interpretation is corroborated by the context of Article 19(2) of Regulation No 561/2006.
It should be noted that, for its part, Article 19(1) of Regulation No 561/2006 expressly requires Member States to lay down rules on penalties for infringement of that regulation ‘and’ of Regulation No 3821/85. Similarly, Article 19 specifies, in paragraph 4 thereof, that Member States must ensure that a system of proportionate penalties, which may include financial penalties, is in force for infringements of Regulation No 561/2006 ‘or’ of Regulation No 3821/85.
The fact that that Article 19 refers, in paragraphs 1 to 4 thereof, to infringements of Regulations No 561/2006 and No 3821/85, while referring, in paragraph 2 thereof, to infringements of Regulation No 561/2006 alone, confirms that the latter paragraph cannot be interpreted as referring to infringements of Regulation No 3821/85.
It follows that, as EU law currently stands, the competent authorities of a Member State may not impose penalties in a situation involving infringements of Regulation No 3821/85 detected on the territory of that Member State but committed on the territory of another Member State. In so far as that aspect of the EU rules in force may have adverse effects on working conditions for drivers and on road safety, it is for the EU legislature to decide on any possible amendments (see, by analogy, judgment of 18 January 2001,
Skills Motor Coaches and Others
, C‑297/99, EU:C:2001:37, paragraph 34).
That interpretation is, moreover, the only one which is consistent with the principle that offences and penalties must have a proper legal basis, set out in the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, which requires the law to give a clear definition of offences and the penalties which they attract, that requirement being satisfied where the individual concerned is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him or her criminally liable (see, to that effect, judgment of 20 December 2017,
Vaditrans
, C‑102/16, EU:C:2017:1012, paragraph 51 and the case-law cited).
Consequently, the answer to the first question referred is that Article 19(2) of Regulation No 561/2006 must be interpreted as precluding the competent authorities of a Member State from imposing a penalty on the driver of a vehicle or on a transport undertaking for an infringement of Regulation No 3821/85 committed in the territory of another Member State or a third country but detected on its own territory and for which a penalty has not already been imposed.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Fifth Chamber) hereby rules:
1.
Article 3(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 must be interpreted as meaning that a driver who performs road transport services falling within the scope of that regulation is obliged to produce, whenever an inspecting officer so requests, the driver card, the record sheets and any manual record and printout made during the period consisting of the day of the inspection and of the previous 28 days, in accordance with Article 15(2), (3) and (7) of Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport, as amended by Regulation No 561/2006, even when, during that period, that driver has also undertaken, in the same vehicle, the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 km.
2.
Article 19(2) of Regulation No 561/2006 must be interpreted as precluding the competent authorities of a Member State from imposing a penalty on the driver of a vehicle or on a transport undertaking for an infringement of Regulation No 3821/85, as amended by Regulation No 561/2006, committed on the territory of another Member State or of a third country but detected on its own territory and for which a penalty has not already been imposed.
[Signatures]
*
Language of the case: French.