**Case C-124/09**

**Smit Reizen BV**

**v**

**Minister van Verkeer en Waterstaat**

(Reference for a preliminary ruling from the Raad van State)

(Reference for a preliminary ruling – Regulations (EEC) Nos 3820/85 and 3821/85 – Road transport – Obligation to record – Rest periods and other periods of work – Time spent in travelling to the place where a vehicle fitted with recording equipment is taken over – Meaning of ‘operating centre’)

Summary of the Judgment

1.        *Transport – Road transport – Social provisions – Period of work other than driving time – Rest period*

*(Council Regulations No 3820/85, Arts 1, para. 5, and 8(3) and (6), and No 3821/85, Art. 15)*

2.        *Transport – Road transport – Social provisions – Period of work other than driving time – Rest period*

*(Council Regulations No 3820/85, Art. 1, para. 5, and 8(7), and No 3821/85, Art. 15)*

1.        The concept of ‘operating centre’, featuring in paragraph 21 et seq. of the judgment in Case C-297/99 *Skills Motor Coaches and Others*, when it comes to classifying, in light of the provisions of Regulations No 3820/85 on the harmonisation of certain social
legislation relating to road transport and No 3821/85 on recording equipment in road transport, the time corresponding to
the journey made by a driver to travel from his home to the place where he is to take over a vehicle fitted with recording
equipment, must be defined as the place to which the driver is actually attached, namely the transport undertaking facilities
from which he usually carries out his service and to which he returns at the end of that service, in the normal exercise of
his functions and without complying with specific instructions from his employer.

(see paras 20, 31, operative part 1)

2.        Whether the driver concerned drives himself to the place where he must take over a vehicle fitted with recording equipment
or whether he is driven to that place by someone else has no bearing on the classification of the travelling time in the light
of the concept of ‘rest’ within the meaning of Article 1(5) of Regulation No 3820/85 on the harmonisation of certain social
legislation relating to road transport.

In this connection, first, Article 8(7) of Regulation No 3820/85 makes the option for a driver to take his daily rest in a
vehicle subject to the condition that that vehicle be fitted with a bunk and be stationary. Secondly, it would be contrary
to the objective of road safety to distinguish between whether or not the driver concerned drives himself to a place where
he is to take over a vehicle in which recording equipment is installed where he must drive that vehicle on arrival. The state
of tiredness of the driver which may endanger that objective may result not only from actually driving a vehicle but also
from the conditions in which the journey takes place.

(see paras 33-35, operative part 2)

JUDGMENT OF THE COURT (Third Chamber)

29 April 2010 (*)

(Reference for a preliminary ruling – Regulations (EEC) Nos 3820/85 and 3821/85 – Road transport – Obligation to record – Rest periods and other periods of work – Time spent in travelling to the place where a vehicle fitted with recording equipment is taken over – Meaning of ‘operating centre’)

In Case C‐124/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 25 March
2009, received at the Court on 3 April 2009, in the proceedings

**Smit Reizen BV**

v

**Minister van Verkeer en Waterstaat,**

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta, G. Arestis, J. Malenovský and T. von Danwitz (Rapporteur),
Judges,

Advocate General: Y. Bot,

Registrar: M.-A. Gaudissart, Head of Unit,

Having regard to the written procedure and further to the hearing on 28 January 2010,

after considering the observations submitted on behalf of:

–        Smit Reizen BV, by P. Mommers, advocaat,

–        the Netherlands Government, by C. Wissels, B. Koopman and Y. de Vries, acting as Agents,

–        the Italian Government, by G. Palmieri, acting as Agent, and by M. Russo, avvocato dello Stato,

–        the United Kingdom Government, by L. Seeboruth, acting as Agent,

–        the European Commission, by W. Roels and N. Yerrell, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

**Judgment**

1        This reference for a preliminary ruling concerns the interpretation of the expression ‘operating centre’ in paragraph 21 et
seq. of the judgment in Case C‐297/99 *Skills Motor Coaches and Others* [2001] ECR I-573, and of Article 1(5) 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).

2        The reference was submitted in the course of proceedings between Smit Reizen BV (‘Smit Reizen’) and the Minister van Verkeer
en Waterstaat (Minister of Transport and Waterways, ‘the Minister’) regarding a fine imposed upon the former as a result of
the infringement of provisions relating to drivers’ rest periods.

**Legal context**

*European Union law*

Regulation No 3820/85

3        The first recital in the preamble to Regulation No 3820/85 is worded as follows:

‘Whereas in the field of road transport, Community social legislation ... aims at the harmonisation of conditions of competition
between methods of inland transport, especially with regard to the road sector and the improvement of working conditions and
road safety; whereas progress made in these fields must be safeguarded and extended; whereas, however, it is necessary to
make the provisions of the said Regulation more flexible without undermining their objectives’.

4        According to the fifteenth recital in the preamble to that regulation, ‘a longer driving day, together with a shorter driving
time over a two-week period is likely to facilitate the management of transport undertakings and to contribute to social progress’.

5        Article 1 of that regulation provides:

‘In this Regulation:

...

(3)      “driver” means 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;

...

(5)      “rest” means any uninterrupted period of at least one hour during which the driver may freely dispose of his time;

...’

6        Under Article 8 of Regulation No 3820/85, which forms part of Section V thereof, entitled ‘Breaks and rest periods’:

‘1.      In each period of 24 hours, the driver shall have a daily rest period of at least 11 consecutive hours, which may be reduced
to a minimum of nine consecutive hours not more than three times in any one week, on condition that an equivalent period of
rest be granted as compensation before the end of the following week.

On days when the rest is not reduced in accordance with the first subparagraph, it may be taken in two or three separate periods
during the 24-hour period, one of which must be of at least eight consecutive hours. In this case the minimum length of the
rest shall be increased to 12 hours.

2.      During each period of 30 hours when a vehicle is manned by at least two drivers, each driver shall have a rest period of not
less than eight consecutive hours.

3.      In the course of each week, one of the rest periods referred to in paragraphs 1 and 2 shall be extended, by way of weekly
rest, to a total of 45 consecutive hours. This rest period may be reduced to a minimum of 36 consecutive hours if taken at
the place where the vehicle is normally based or where the driver is based, or to a minimum of 24 consecutive hours if taken
elsewhere. Each reduction shall be compensated by an equivalent rest taken en bloc before the end of the third week following
the week in question.

...

6.      Any rest taken as compensation for the reduction of the daily and/or weekly rest periods must be attached to another rest
of at least eight hours and shall be granted, at the request of the person concerned, at the vehicle’s parking place or driver’s
base.

7.      The daily rest period may be taken in a vehicle, as long as it is fitted with a bunk and is stationary.’

Regulation (EEC) No 3821/85

7        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 Commission Regulation (EC) No 432/2004 of 5 March 2004 (OJ 2004 L 71, p. 3; ‘Regulation No 3821/85’), provides
that the application of the provisions of Regulation No 3820/85 is to be checked though the use of recording equipment that
may indicate the ‘periods of time’ referred to in that latter regulation.

8        Article 2 of Regulation No 3821/85 provides that, for the purposes of that regulation, the definitions set out in Article
1 of Regulation No 3820/85 are to apply likewise.

9        Article 15(2) and (3) of Regulation No 3821/85 provides:

‘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:

...

–        operate the switch mechanisms enabling the following periods of time to be recorded separately and distinctly:

(a)      under the sign ...: driving time;

(b)      under the sign ...: all other periods of work;

(c)      under the sign ...: other periods of availability ...:

–        ...

(d)      under the sign ...: breaks in work and daily rest periods.’

*National legislation*

10      The Decree on working time in the transport sector (Arbeidstijdenbesluit vervoer, ‘the Atbv’) implements Regulation No 3820/85.
Article 2.5:1(4) of the Atbv, in the version in force at the material time, provided that drivers must comply with Articles
8 and 9 of that regulation.

11      Under Article 8:1(1) of the Atbv, failure to comply with Article 2.5:1(4) of that decree is punishable by a fine.

**The dispute in the main proceedings and the questions referred for a preliminary ruling**

12      Smit Reizen is a coach-hire company established in Harderwijk (Netherlands). It provides to a tour operator, Solmar Tours
in the present case, a shuttle coach service to and from Spain, from a departure and arrival point at Maarheeze (Netherlands),
approximately two hours by car from Harderwijk. Solmar Tours is the owner both of the land on which the departure and arrival
point is situated and of the building on the site, part of which is rented by Smit Reizen.

13      The coach shuttle service leaves from the site at Maarheeze and returns there four times per week. On the days concerned,
an employee of Smit Reizen, who takes care of scheduling and checks the driver’s papers, is present to facilitate the arrival
and departure of the coaches. The premises rented by Smit Reizen contain a canteen equipped with a coffee machine, a television,
toilets, a shower, bunks for the drivers and a variety of spare equipment for the coaches. Those premises also contain some
of Smit Reizen’s administrative effects and office materials, including tachograph disks, the drivers’ hourly account statements
and journey sheets.

14      According to the referring court, it is apparent from the file in the main proceedings that, at the material time, the drivers
drove themselves from their homes, in Harderwijk and Dronten (Netherlands), to the departure point at Maarheeze. However,
at the hearing before that court, the Director of Smit Reizen maintained that the drivers were transported by minibus to that
departure point. Subsequently, two drivers drove the coach, which is a vehicle subject to the obligation to use recording
equipment, to Spain.

15      By decision of 14 June 2006, the Minister fined Smit Reizen EUR 2 200, on the ground that some of its employees had not observed
the rest periods prescribed by Article 2.5:1(4) of the Atbv, read in conjunction with Article 8(2) of Regulation No 3820/85.
The time necessary to travel from the homes of the drivers concerned to the departure point at Maarheeze had not been taken
into account. The Minister considered that it followed from the judgment in *Skills Motor Coaches and Others* that that time must be recorded as working time since the establishment at Maarheeze could not be regarded as an ‘operating
centre’ of Smit Reizen.

16      On 5 December 2006, the Minister rejected as unfounded the objection brought against his decision of 14 June 2006 by Smit
Reizen.

17      The Rechtbank Zutphen (Zutphen Court), by judgment of 9 April 2008, declared the action brought before it by Smit Reizen to
be well founded, annulled the decision of 5 December 2006 rejecting Smit Reizen’s objection and ruled that the legal effects
of that decision were to be maintained in full. According to that court, the Minister rightly concluded that Smit Reizen had
infringed Article 2.5:1(4) of the Atbv. However, the grounds of his decision were held not to be correct. In the determination
of the period of 30 hours referred to in Article 8(2) of Regulation No 3820/85, all the time reasonably required by drivers
to travel to the place where they take over a vehicle fitted with recording equipment in order to begin their service should
be taken into account, whether or not that place where the vehicle is taken over must be regarded as an operating centre.

18      Smit Reizen appealed against this judgment to the referring court, claiming that the Rechtbank Zupthen had erred in its interpretation
of the judgment in *Skills Motor Coaches and Others*.

19      Since it takes the view that the outcome of the dispute in the main proceedings depends on the interpretation of the term
‘operating centre’ the Raad van State (Council of State) decided to stay the proceedings and to refer the following questions
to the Court for a preliminary ruling:

‘(1)      Against the background of Article 1(5) of [Regulation No 3820/85] and Article 15 of [Regulation No 3821/85], how must the
term “operating centre”, as referred to in paragraph 21, and elsewhere, of the judgment ... in [*Skills Motor Coaches and Others*] be interpreted?

(2)      For the assessment as to what constitutes rest for the purposes of Article 1(5) of [Regulation No 3820/85], does it make any
difference whether the driver concerned drives himself to a place where he is to take over a vehicle in which a tachograph
must be installed or is driven there by someone else?’

**On the questions referred**

*The first question*

20      By its first question, the referring court essentially asks how the expression ‘operating centre’ in paragraph 21 et seq.
of the judgment in *Skills Motor Coaches and Others* is to be interpreted, as regards the classification, in the light of the provisions of Regulations Nos 3820/85 and 3821/85,
of the time corresponding to the journey made by a driver to travel from his home to the place where he is to take over a
vehicle fitted with recording equipment.

21      In this connection, it must first of all be pointed out that the Court held, in paragraph 23 of the judgment in *Skills Motor Coaches and Others*, that a driver who goes to a specific place, other than the undertaking’s operating centre, indicated to him by his employer
in order to take over and drive a vehicle is satisfying an obligation towards his employer and therefore he does not freely
dispose of his time during that journey.

22      The Court thus held, in paragraph 35 of *Skills Motor Coaches and Others*, that the time necessarily spent travelling to take over a vehicle fitted with recording equipment, which is not at the driver’s
home or the employer’s operating centre must be regarded as forming part of ‘all other periods of work’ within the meaning
of Article 15 of Regulation No 3821/85.

23      Consequently, the term ‘operating centre’ must be defined in order to enable the referring court to assess whether the travelling
time at issue in the main proceedings must be taken into account as a period of work for the purpose of Article 15 of Regulation
No 3821/85.

24      It should be observed at the outset that, in view of the objectives of Regulation No 3820/85, stated in the first recital
in the preamble thereto, which consist inter alia in improving the working conditions of drivers and road safety, ‘operating
centre’ cannot be defined exclusively in the light of functional criteria linked to the internal organisation of the transport
undertaking, but must also take into account criteria relating to the person of the driver concerned.

25      First of all, as the United Kingdom Government submits, the expression ‘operating centre’ must not be equiparated with the
term ‘registered office’, since the latter may be established in a place without any connection to the day-to-day running
of the transport services, to which the driver travels only on a very exceptional basis.

26      Secondly, an interpretation of that term which is too broad would go against the *ratio legis* of Regulation No 3820/85 and, in particular, the objective of improving road safety. A definition whereby any place of departure
or arrival of the persons transported or any depot for vehicles belonging to the transport undertaking concerned could be
regarded as an operating centre should also be ruled out.

27      On the contrary, the term ‘operating centre’, as the Netherlands Government observed at the hearing, must correspond to the
place to which the driver regularly travels in the normal exercise of his functions in order to take over and drive a vehicle
fitted with recording equipment.

28      In Article 8(3) and (6) of Regulation No 3820/85, the expressions ‘the place where the driver is based’ and ‘the driver’s
base’ are used to designate such a place.

29      Lastly, as regards establishing precisely the operating centre to which a driver is normally attached, regard should be had
to the place to which the driver is actually attached, namely the place from which he usually carries out his service and
to which he returns at the end of that service, in the normal exercise of his functions and without complying with specific
instructions from his employer. In this respect, a contractual clause relating to the place of work of the driver concerned
may be an indication enabling such a place to be determined.

30      As far as the dispute in the main proceedings is concerned, it is for the referring court to assess, in the light of all the
factual circumstances of the case before it, where is the normal place of attachment of the drivers concerned.

31      In the light of the foregoing, the answer to the first question is that the term ‘operating centre’, in paragraph 21 et seq.
of *Skills Motor Coaches and Others*, must be defined as the place to which the driver is actually attached, namely the transport undertaking facilities from
which he usually carries out his service and to which he returns at the end of that service, in the normal exercise of his
functions and without complying with specific instructions from his employer.

*The second question*

32      By its second question, the referring court essentially asks whether the fact that the driver drives himself to the place
where he must take over a vehicle fitted with recording equipment or whether, on the other hand, he is driven to that place
by someone else has a bearing on the classification of the travelling time in the light of the concept of ‘rest’ within the
meaning of Article 1(5) of Regulation No 3820/85.

33      In this connection, first, Article 8(7) of Regulation No 3820/85 makes the option for a driver to take his daily rest in a
vehicle subject to the condition that that vehicle be fitted with a bunk and be stationary. That provision therefore precludes
a driver from taking his rest in a vehicle driven by another person.

34      Secondly, it would be contrary to the objective of road safety to make a distinction such as that made by the referring court
in its second question. The state of tiredness of the driver, as referred to in paragraph 25 of the judgment in *Skills Motor Coaches and Others*, which may endanger that objective, is likely to occur whether or not the driver of the vehicle travelling to the place where
the vehicle fitted with recording equipment is to be taken over is the same as the person who, on arrival, will have to drive
that latter vehicle. As the Italian Government pointed out, that state of tiredness may result not only from actually driving
a vehicle, but also from the conditions in which the journey takes place, such as its duration, the time of departure or the
state of the roads and, consequently, also affect the passenger as such.

35      Having regard to the foregoing, the answer to the second question is thus that whether the driver concerned drives himself
to the place where he must take over a vehicle fitted with recording equipment or whether he is driven to that place by someone
else has no bearing on the classification of the travelling time in the light of the concept of ‘rest’ within the meaning
of Article 1(5) of Regulation No 3820/85.

**Costs**

36      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:

1.      **The term ‘operating centre’, in paragraph 21 et seq. of the judgment in Case C-297/99 Skills Motor Coaches and Others must be defined as the place to which the driver is actually attached, namely the transport undertaking facilities from which
he usually carries out his service and to which he returns at the end of that service, in the normal exercise of his functions
and without complying with specific instructions from his employer.**

2.      **Whether the driver concerned drives himself to the place where he must take over a vehicle fitted with recording equipment
or whether he is driven to that place by someone else has no bearing on the classification of the travelling time in the light
of the concept of ‘rest’ within the meaning of Article 1(5) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on
the harmonisation of certain social legislation relating to road transport.**

[Signatures]

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- Language of the case: Dutch.