CELEX: 61994CJ0335
Social legislation relating to road transport
Derogation for refuse vehicles

By order of 31 October 1994, received at the Court on 28 December 1994, the Amtsgericht (Local Court) Recklinghausen referred
to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 4(6)
of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to
road transport (OJ 1985 L 370, p. 1; hereinafter
the regulation).
The questions were raised in the course of proceedings against Mr Mrozek and Mr Jäger, who were charged with infringing the
German rules on drivers' working time.
The regulation prescribes the duration of driving and rest periods in Sections IV and V.  However, Article 4 provides: This regulation shall not apply to carriage by:...
(6)
vehicles used in connection with the sewerage, flood protection, water, gas and electricity services, highway maintenance
and control, refuse collection and disposal, telegraph and telephone services, carriage of postal articles, radio and television
broadcasting and the detection of radio or television transmitters or receivers;
...
Mr Mrozek and Mr Jäger are employed in a managerial capacity by Rethmann Entsorgungswirtschaft (hereinafter
Rethmann) in Marl (Germany), and are responsible for allocating shifts and journeys to the company's drivers.  They were fined by
the Staatliches Gewerbeaufsichtsamt (Labour Inspectorate) of Recklinghausen for failing to allocate drivers' hours in accordance
with the Ausführungsverordnung zur Arbeitszeitordnung (Regulation implementing the German Code on Working Hours).
The materials transported were partly special household waste, such as dry-cell batteries and chemicals, and partly industrial
waste.  In respect of the household waste, Rethmann has concluded long-term waste-disposal contracts with a number of local
authorities.  The company organizes collection of the waste by placing containers at the disposal of residents on certain
dates, and also organizes its sorting and final disposal.
In their action before the Amtsgericht Recklinghausen challenging the fines, Mr Mrozek and Mr Jäger argued that the transportation
was by
vehicles used in connection with ... refuse collection and disposal within the meaning of Article 4(6) of the regulation, so that they were exempt from the obligations imposed by the latter.
They also argued that the exception laid down by the Community rules precluded the introduction of national legislation regulating
rules on driving time.
The Amtsgericht Recklinghausen therefore decided to stay the proceedings and refer the following questions to the Court of
Justice for a preliminary ruling:
(1)
How is the term
refuse collection and disposal in Article 4(6) of Regulation (EEC) No 3820/85 to be defined?
(a)
Does that term relate exclusively to the collection of refuse from private households or does it also include the transport
of waste from commercial undertakings?
(b)
As regards refuse from private households:
(aa)
Do special types of household waste, such as batteries, paints and solvents, also come within the exception contained in Article
4(6) of Regulation (EEC) No 3820/85?
(bb)
Does the exception apply only in respect of short journeys within a local authority area, in particular door-to-door transport,
or are longer journeys, such as transport to a more distant waste dump, also covered?
(cc)
Is the transportation of such refuse entitled to the benefit of Article 4(6) of the regulation even where the refuse is collected
and disposed of by private undertakings on behalf of the local authority?
(c)
If the transportation of commercial waste is also covered:
(aa)
Is the transportation of every kind of commercial waste covered?
(bb)
Are longer journeys, such as transport to dumps, also covered by Article 4(6) of the regulation?
(d)
Does Article 4(6) also apply to journeys by empty vehicles, such as return journeys from a dump without a load?
(e)
Are journeys in preparation for transportation, such as those transferring vehicles or trailers between different branches
of an undertaking, also covered?
(2)
What is the relationship between the derogating rule contained in Article 4(6) of Regulation (EEC) No 3820/85 and national
rules on driving periods?
(a)
If a journey comes within the derogating rule contained in Article 4(6) of the regulation, can a restriction on driving periods
still be imposed under national rules? or
(b)
Are national rules, such as the German Code on Working Hours or the Regulation implementing the Code on Working Hours, also
inapplicable to such journeys?
Question 1
In this question, the national court seeks in effect a definition of the phrase
vehicles used in connection with ... refuse collection and disposal used in Article 4(6) of the regulation.
Article 4 of the regulation lists certain categories of transport which are excluded from its scope.  Being thus a derogation
from the general scheme, Article 4 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.  Furthermore, the scope of the derogations which it lays down must be
determined in the light of the aims pursued by the regulation (see Case C-116/91
Licensing Authority South Eastern Traffic Area
v
British Gas
[1992] ECR I-4071, paragraph 12).
With regard to the interests which Article 4(6) of the regulation seeks to safeguard, the derogations provided for in that
provision are based on the nature of the services in connection with which the vehicles are used.  In that respect it is apparent
from the list in Article 4(6) that the services envisaged by that provision are all general services performed in the public
interest (see
Licensing Authority South Eastern Traffic Area
v
British Gas
, cited above, paragraph 13).
The purpose of the regulation, as the first recital in its preamble states, is to harmonize conditions of competition and
to improve working conditions and road safety.
In the light of those objectives, and primarily that relating to the improvement of road safety, the term
refuse collection should be interpreted as applying only to the collection of refuse from a place where it has been deposited.  Vehicles used
for that activity travel over a limited distance and for a short period, and the transport remains ancillary to the collection.
Refuse transport which does not have those features cannot fall within the exemption.  It is for the national court to determine
in each case before it whether that is so.
Moreover, since the services referred to in Article 4(6) are in the public interest, refuse which is capable of being the
subject of that activity should be defined to include both domestic and commercial waste and also special waste, the collection
of which is in the public interest.  That interpretation also conforms to the objective of harmonizing conditions of competition,
without however preventing more specific provisions from being applied to certain types of waste, such as Article 13(1)(d)
of the regulation, which applies to animal waste.
Within the limits thus defined, the movement of vehicles when empty and when preparing to carry out such transportation also
falls within Article 4(6) of the regulation.
Finally, the vehicles in question do not have to be used by the public authorities directly in order to benefit from the exemption.
Regulation No 3820/85 is intended to make more flexible the provisions of Council Regulation (EEC) No 543/69 on the harmonization
of certain social legislation relating to road transport (OJ, English Special Edition 1969 (I), p. 170).  Unlike the provision
it replaces, namely Article 4(4) of Regulation No 543/69, as amended by Council Regulation (EEC) No 2827/77 of 12 December
1977 amending Regulation (EEC) No 543/69 (OJ 1977 L 334, p. 1), Article 4(6) of Regulation No 3820/85 no longer refers to
vehicles which are used by other public authorities for public services.  The result of that amendment in the wording is that the derogation may benefit not only the public authorities but also
private undertakings which provide a general service in the public interest under their control.
The answer to Question 1 must therefore be that the words
vehicles used in connection with ... refuse collection and disposal in Article 4(6) of the regulation must be interpreted as covering vehicles used for the collection of waste of all kinds
which is not subject to more specific rules and for the transportation of such waste over short distances, within the context
of a general service in the public interest provided directly by the public authorities or by private undertakings under their
control.
Question 2
In this question, the national court asks whether national rules on driving periods may apply in areas which are excluded
from the scope of the Community rules, such as those areas referred to in Article 4(6) of the regulation.
Article 4 of the regulation provides for a general exclusion of certain forms of transport from the Community rules.  The
regulation does not seek to harmonize social legislation in respect of those forms of transport, so that Member States have
retained the power to regulate them.
That interpretation is supported by the fourteenth recital in the preamble to the regulation, which provides that the regulation
is to be without prejudice to any national rules whereby drivers are prohibited from driving for longer than they can with
complete safety.
The answer to Question 2 must therefore be that in areas not covered by the regulation Member States remain competent to adopt
rules on driving periods.
Costs
The costs incurred by the Austrian Government, the United Kingdom and the Commission of the European Communities, which have
submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings,
a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (First Chamber)
in answer to the questions referred to it by the Amtsgericht Recklinghausen by order of 31 October 1994, hereby rules:
(1)
The concept of
vehicles used in connection with ... refuse collection and disposal in Article 4(6) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation
relating to road transport must be interpreted as covering vehicles used for the collection of waste of all kinds which is
not subject to more specific rules and for the transportation of such waste over short distances, within the context of a
general service in the public interest provided directly by the public authorities or by private undertakings under their
control.
(2)
In areas not covered by Regulation No 3820/85, Member States remain competent to adopt rules on driving periods.
Edward
Jann
Sevón
Delivered in open court in Luxembourg on 21 March 1996.
R. Grass
D.A.O. Edward
Registrar
President of the First Chamber
–
Language of the case: German.