CELEX: 62004CJ0128
Road transport
Social legislation
Regulation (EEC) No 3821/85
Requirement to instal and use a tachograph
Regulation (EEC) No 3820/85
Exception for vehicles carrying material and equipment

This reference for a preliminary ruling concerns the interpretation of Article 13(1)(g) of 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).
This reference was made in the course of criminal proceedings against Raemdonck-Janssens BVBA (‘Raemdonck-Janssens’), a company
governed by Belgian law, and Mrs Raemdonck, director of the said company, for alleged infringement of the provisions of Council
Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).
Legal background
Community legislation
Regulation No 3821/85 requires vehicles used for road transport to be equipped with a tachograph. According to Article 14(2):
‘The undertaking shall keep the record sheets in good order for at least a year after their use and shall give copies to the
drivers concerned who request them. The sheets shall be produced or handed over at the request of any authorised inspecting
officer.’
Article 3(2) of Regulation No 3821/85 provides that Member States may exempt vehicles mentioned in Article 13(1) of Regulation
No 3820/85 from application of this regulation. They are to inform the Commission of the European Communities of any exemption
granted on that basis.
Article 13(1) of Regulation No 3820/85 provides:
‘1. Each Member State may grant exceptions on its own territories or, with the agreement of the States concerned, on the territory
of another Member State from any provision of this regulation applicable to carriage by means of a vehicle belonging to one
or more of the following categories:
…
(g)
vehicles carrying material or equipment for the driver’s use in the course of his work within a 50 kilometre radius of the
place where the vehicle is normally based, provided that driving the vehicle does not constitute the driver’s main activity
and that the exception does not seriously prejudice the objectives of the Regulation. The Member States may make such exceptions
subject to individual authorisation;
…
Member States shall inform the Commission of the exceptions granted under this paragraph.’
Article 1(3) of the same regulation defines ‘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’.
National legislation
The provisions of Regulation No 3821/85 have been implemented in Belgium by the Royal Decree of 13 July 1984 (
Belgisch Staatsblad
of 4 October 1984, p. 13509), as amended by the Royal Decree of 10 November 1987 (
Belgisch Staatsblad
of 19 December 1987, p. 19062). Article 1(2) of that decree provides that the obligation for motor vehicles which are registered
in Belgium and used for road transport to be fitted with a tachograph does not apply to motor vehicles listed in Annex 1 to
that decree. Annex 1(B)(8) refers to ‘vehicles carrying material or equipment for the driver’s use in the course of his work
within a 50 kilometre radius of the place where the vehicle is normally based, provided that driving the vehicle does not
constitute the driver’s main activity’.
The main proceedings and the question referred for a preliminary ruling
The activity in which Raemdonck-Janssens is engaged in the field of general infrastructure works consists in carrying out
horizontal drilling work, then laying pipes, cables and telecommunications networks. The company uses its own drivers, five
in all, to transport the necessary materials to the construction sites.
On 18 October 2001, a freight lorry belonging to Raemdonck-Janssens was checked. An inspection of the vehicle’s tachograph
discs showed that Mr Burm, the driver of the vehicle, had worked overtime.
Following that discovery, the officer authorised to inspect the application of social legislation requested access to tachograph
records over a period of one year in respect of all the drivers employed by Raemdonck-Janssens. He was initially only given
access to the records relating to Mr Burm for the final quarter of 2001, as well as to Mr Burm’s individual payslips for that
period. An inspection of those documents showed that Mr Burm had worked additional hours without receiving any overtime payment
or being allowed any time off in lieu of payment. Furthermore, it was noted that Mr Burm had worked on a Saturday, contrary
to the legislation relating to the performance of construction work. The authorised inspecting officer subsequently also had
access to the individual payslips of other drivers employed by Raemdonck-Janssens. Those payslips showed that the drivers
had at no time been paid in respect of the overtime worked.
The Openbaar Ministerie (Public Prosecutor’s Office) instituted criminal proceedings against Mrs Raemdonck and Raemdonck-Janssens
in the Rechtbank van eerste aanleg te Dendermonde (Court of First Instance, Dendermonde). The defendants maintain that transportation
undertaken by Raemdonck-Janssens falls within the exception contained in Article 13(1)(g) of Regulation No 3820/85. They claim
the drivers were hired to transport the necessary material and equipment, namely diggers, cables and slabs, to the construction
sites. The construction sites were located within a 50 kilometre radius of the company’s registered office. The defendants
state that, in the context of this provision, the terms ‘material or equipment’ cover building materials and materials intended
for laying, such as cables.
The Rechtbank van eerste aanleg te Dendermonde, taking the view that the criminal proceedings before it concern points of
Community law, decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must the terms “material or equipment” as contained in Article 13(1)(g) of … Regulation … No 3820/85 … be construed as covering
only “tools and instruments” or do those terms, on the contrary, also cover the goods required for the performance of construction
work, which may be transported together with or separate from the tools and instruments, such as building materials or cables?’
On the question referred for a preliminary ruling
By its question, the referring court is essentially asking whether the terms ‘material or equipment’ in Article 13(1)(g) of
Regulation No 3820/85 must, in the context of the exemption scheme provided for in Article 3(2) of Regulation No 3821/85,
be construed as covering only ‘tools and instruments’, or whether they also cover the goods required for the performance of
construction work, which may be transported together with or separate from the tools and instruments, such as building materials
or cables.
In order to give a helpful reply to that question, it is appropriate, first, to consider the conditions under which the exceptions
provided for in Article 13(1)(g) of Regulation No 3820/85 apply and, second, to analyse the scope of that provision.
As regards the conditions referred to, both the United Kingdom Government and the Commission doubt that these have all been
satisfied in the case that is the subject of the main proceedings. They query in particular the status of the drivers of the
vehicles carrying material or equipment, and the nature of the activities in which they are engaged. On the other hand, it
is not disputed that the vehicles in question were used within a 50 kilometre radius of the place where the vehicle is normally
based.
Under Article 13(1)(g) of Regulation No 3820/85, the exception referred to in that provision applies only provided that driving
the vehicle does not constitute the driver’s main activity. The driver must, in addition, use the material or equipment in
question in the course of his work. Those two conditions therefore relate to the activities of the driver, and not to those
of the undertaking concerned.
From the information available to the Court, it is not possible for it to determine with certainty whether the drivers employed
by Raemdonck-Janssens fulfil the requirements thus laid down. In those circumstances, it is for the referring court, before
which the main action has been brought and which must assume responsibility for the subsequent judicial decision, to determine
with regard to the facts of the case whether the said requirements have been fulfilled or not.
As regards the interpretation of the terms ‘material or equipment’ in Article 13(1)(g) of Regulation No 3820/85, the United
Kingdom Government and the Commission maintain that the terms do not cover only ‘tools and instruments’, but that they may
also include building materials and cables.
It should be noted that that interpretation is supported by the wording of the provision in issue, by the context in which
it appears, as well as by the purpose of the legislation of which it forms part.
It is important to note, first, that to construe the terms ‘material or equipment’ as referring only to ‘tools and instruments’
is inconsistent with the wording of Article 13(1)(g) of Regulation No 3820/85. Even though the term ‘equipment’ covers, in
particular, the tools and instruments transported by a driver in order to carry out his work, the fact remains that the term
‘material’ has a broader meaning and also includes materials needed to carry out that work.
Turning next to the context in which the terms ‘material or equipment’ appear, it should be noted that these must be construed
in the light of the conditions laid down in Article 13(1)(g) of Regulation No 3820/85, in particular those which follow from
the phrases ‘for the driver’s use in the course of his work’ and ‘provided that driving the vehicle does not constitute the
driver’s main activity’. The driver of a vehicle for whom driving the vehicle is not his main activity is likely, in order
to carry out his work, to have to transport not only tools and equipment, but also materials, such as building materials,
which are needed for that work. There is nothing to suggest that such materials may not also be covered by that provision.
Finally, as regards consideration of the purpose of the legislation in issue in the main proceedings, it is appropriate to
note not only the purpose of the exception provided for in Article 13(1)(g) of Regulation No 3820/85, but also the objectives
of that regulation as well as of Regulation No 3821/85. It is common ground that the aim of those regulations is to improve
road safety and the working conditions of long distance drivers. Those objectives are reflected in particular in the requirement
that road transport vehicles should be equipped with tachographs, so that the driving time and rest periods of the drivers
can be checked.
However, as is apparent from the fourth recital in the preamble to Regulation No 3821/85 and from Article 13(1) of Regulation
No 3820/85, certain vehicles and certain types of carriage by such vehicles may, without giving rise to difficulty, be excluded
from the scope of the regime established by those regulations. Subject to certain conditions and provided that the objectives
of the regime are not undermined, Member States may grant exceptions on their own territories for carriage by vehicles, such
as those mentioned in Article 13(1)(g) above. Given that the application of that provision is subject to strict conditions,
it would not go against the purpose of the legislation, namely the improvement of road safety and of the working conditions
of long distance drivers, to interpret the terms ‘material or equipment’ as covering also goods required for the performance
of construction work. That interpretation is likely, furthermore, to guarantee the effectiveness of the exception provided
for in Article 13(1)(g) of Regulation No 3820/85.
Having regard to the above, the answer to the question referred for a preliminary ruling must be that the terms ‘material
or equipment’ in Article 13(1)(g) of Regulation No 3820/85 must, in the context of the exemption scheme provided for in Article
3(2) of Regulation No 3821/85, be construed as covering not only ‘tools and instruments’, but also the goods, such as building
materials or cables, which are required for the performance of the work involved in the main activity of the driver of the
vehicle concerned.
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 (Third Chamber) hereby rules:
The terms ‘material or equipment’ in Article 13(1)(g) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation
of certain social legislation relating to road transport must, in the context of the exemption scheme provided for in Article
3(2) of Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport, be construed as
covering not only ‘tools and instruments’, but also the goods, such as building materials or cables, which are required for
the performance of the work involved in the main activity of the driver of the vehicle concerned.
[Signatures]
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Language of the case: Dutch.