Judgment;Summary — ECLI:EU:C:2020:353
Date: 2020-05-07
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers;Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation  C-96/19 — 1 
Case C-96/19 
Request for a preliminary ruling 
Date lodged: 
8 February 2019 
Referring court: 
Landesverwaltungsgericht Niederösterreich (Austria) 
Date of the decision to refer: 
4 February 2019 
Appellant: 
VO 
Respondent authority: 
Bezirkshauptmannschaft Tulln 
  
LVWG     [...] 
LANDESVERWALTUNGSGERICHT (REGIONAL ADMINISTRATIVE 
COURT) [...] 
NIEDERÖSTERREICH (LOWER AUSTRIA)   [...] 
[...]     St. Pölten, 4 February 2019 
In the appeal of VO [...] against the administrative decision of a penal nature of 
the Bezirkshauptmannschaft Tulln (District administrative authority, Tulln) of 
10 October 2018 [...] imposing penalties under the Kraftfahrgesetz 1967 (Austrian 
Law on Motor Vehicles 1967; ‘KFG 1967’), in respect of point 6 of the operative 
part of that penal order, following a public hearing on 3 January 2019, the 
Landesverwaltungsgericht Niederösterreich (Regional Administrative Court of 
Lower Austria) hereby [...] 
ORDERS 
EN 
REQUEST FOR A PRELIMINARY RULING OF 4. 2. 2019 — CASE C-96/19 
 
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1. The following questions are referred to the Court of Justice of the European 
Union pursuant to the second paragraph of Article 267 TFEU (Treaty on the 
Functioning of the European Union) for a preliminary ruling: 
I. Should Regulation (EU) No 165/2014, in particular the last sentence of 
Article 34(3) and Article 36(2) thereof, be interpreted as precluding national 
rules which require drivers of vehicles fitted with a digital tachograph within 
the meaning of Article 2(2)(h) of Regulation (EU) No 165/2014 to keep on 
board and produce, during controls, confirmations by the employer, which 
must fulfil the minimum requirements of the form drawn up by the 
Commission in accordance with Article 11(3) of Directive 2006/22/EC, for 
individual working days which are missing from the driver card 
(Article 2(2)(f) of Regulation (EU) No 165/2014), but for which no record 
sheets need be kept on board? 
II. If the answer to Question I is in the negative: [Or. 2] 
Is the form laid down by the Commission in its Decision 2009/959/EU 
wholly or partially invalid? 
2. [...] [stay of proceedings] 
Statement of reasons: 
I. Main proceedings 
The Landesverwaltungsgericht Niederösterreich (Regional Administrative Court 
of Lower Austria) has to rule in the main proceedings on a comprehensive, 
manifestly timeous and admissible, appeal brought by the appellant against the 
aforesaid administrative decision of a penal nature of the Bezirkshauptmannschaft 
Tulln (District administrative authority, Tulln; ‘the respondent authority’). In 
taking its decision, the respondent authority relied upon provisions of the 
Kraftfahrgesetz 1967 (Austrian Law on Motor Vehicles 1967; ‘the KFG 1967’). 
The Regional Administrative Court conducted a public hearing of the case on 
3 January 2019. On the basis of that hearing and the administrative file adduced 
by the respondent authority, the Regional Administrative Court holds as follows 
on the facts and procedure: 
2.1. The contested administrative decision of a penal nature is based on the fact 
that, on 27 March 2018, the appellant was stopped by a police officer (officer of 
the public security service and officer of the road traffic police) at a specified 
place in Sieghartskirchen (Lower Austria) while driving a heavy goods vehicle 
(‘HGV’) fitted with a digital tachograph belonging to his employer at the time. 
The tachograph contained the appellant's driver card. On reading the data stored 
on the driver card or tachograph, the police officer established that the appellant 
had obviously not operated the tachograph properly, if at all. [Or. 3] 
BEZIRKSHAUPTMANNSCHAFT TULLN 
 
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2.2. First, the equipment must have been set so that, while the driver card was in 
the equipment, every break from driving time was automatically recorded as a 
working period. The appellant had not corrected those automatic recordings, that 
is to say, he had not added rest periods to his driver card. As a result, only two 
seconds’ rest period had been recorded electronically on it over the entire period 
read from 27 February 2018 to 27 March 2018. For that reason, penalties were 
imposed on the appellant for failure to comply with various rest periods (points 1 
to 5 of the operative part of the contested administrative decision of a penal 
nature). The administrative decision of a penal nature of the Regional 
Administrative Court of Lower Austria was annulled by decision of even date [...] 
and the proceedings were stayed as the accusation of improper operation of the 
recording equipment could not be proven. As the appellant was not charged with 
improper operation per se under the contested administrative decision of a penal 
nature, the Administrative Court cannot penalise him for it. 
2.3. Point 6 of the operative part of the contested administrative decision of a 
penal nature, which is relevant to this request for a preliminary ruling, is based on 
the fact that, as a driver of a vehicle with a maximum permissible laden weight of 
over 3.5 t, the appellant was unable to produce confirmations of non-driving days 
in the period from 16:39 hours on 28 February 2018 to 07:20 hours on 5 March 
2018 or for the period from 11:49 hours on 5 March 2018 to 05:35 hours on 
6 March 2018 to an officer of the public security service or road traffic police on 
demand, even though the driver is required to produce the tachograph record sheet 
or the recording equipment in accordance with Regulation (EU) No 165/2014, 
together with the record sheets, handwritten records and printouts from the digital 
recording equipment provided for under that regulation and carried on board for 
periods in which the vehicle was driven with digital recording equipment and the 
driver card and any confirmations of non-driving days to such an officer on 
demand. The charge must have been brought on the basis of the fact that in those 
periods the appellant’s driver card was not in the digital recording equipment 
(tachograph) of the heavy goods vehicle controlled on 27 March 2018 and, 
therefore, there were no records whatsoever on the driver card. Nor was any 
information added to the driver card for those periods. [Or. 4] 
For this, a penalty of EUR 50 (10 hours’ imprisonment for default of payment) 
was imposed on the appellant pursuant to Paragraph 134(1) KFG 1967. 
The respondent authority applied Paragraph 102(1a) KFG 1967 as the legal basis 
for the obligation to produce confirmations for non-driving days. It states that the 
employer’s confirmations for individual days, which must fulfil the minimum 
requirements of the form drawn up by the Commission in accordance with 
Article 11(3) of Directive 2006/22/EC, must be carried on board if no record 
sheets are carried on board for those days. 
REQUEST FOR A PRELIMINARY RULING OF 4. 2. 2019 — CASE C-96/19 
 
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II. The position under national law 
1. [...] [powers of review of the court under national law] 
2. The Regional Administrative Court of Lower Austria finds that the legal 
qualification of the offence by the respondent authority is incorrect in any event 
under national law. Paragraph 102(1a) KFG 1967 applies only to vehicles fitted 
with an analogue tachograph. As the vehicle driven by the appellant was fitted 
with a digital tachograph, it would have infringed instead the last sentence of 
Paragraph 102a(4) KFG 1967, which applies to such vehicles. [Or. 5] 
[...] [powers of decision of the court: new penalty assessment in the event of 
infringement of the last sentence of Paragraph 102a(4) KFG 1967] 
3. Paragraph 102a(4) KFG 1967 was amended following the entry into force of 
Regulation (EU) No 165/2014 of the European Parliament and of the Council of 
4 February 2014 on tachographs in road transport, repealing Council Regulation 
(EEC) No 3821/85 on recording equipment in road transport and amending 
Regulation (EC) No 561/2006 of the European Parliament and of the Council on 
the harmonisation of certain social legislation relating to road transport 
(‘Regulation No 165/2014’), in such a way as to replace the reference to 
Regulation (EEC) No 3821/85 by a reference to Regulation No 165/2014, and it 
now reads as follows in the version published in the Federal Law Gazette I 
9/2017: 
‘Drivers of vehicles fitted with digital recording equipment within the meaning of 
Regulation (EU) No 165/2014 must operate the recording equipment in 
accordance with the instructions for use of the recording equipment. They must 
ensure that the recording equipment is operational during driving times and that 
their driver card is used in the recording equipment. Drivers must produce to 
officers of the public security service or road traffic police on demand the 
printouts, driver card and record sheets kept on board for the current day and the 
previous 28 days, as provided for in Regulation (EU) No 165/2014, if they have 
driven a vehicle in that period that was fitted with analogue recording equipment. 
The driver must be provided with confirmation thereof. If individual working days 
are missing from the driver card and no record sheets are kept on board for those 
days, confirmations by the employer for those days, which must fulfil the 
minimum requirements of the form drawn up by the Commission in accordance 
with Article 11(3) of Directive 2006/22/EC, must be carried on board and 
produced during controls.’ [Or. 6] 
III. Entitlement to make the reference to the Court of Justice 
[...] 
BEZIRKSHAUPTMANNSCHAFT TULLN 
 
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IV. First question 
1. Regulation (EU) No 165/2014 states in the last sentence of Article 34(3) that 
Member States may not impose on drivers a requirement to present forms attesting 
to their activities while away from the vehicle. That provision appears to have 
been worded absolutely and, in particular, does not grant a Member State the right 
to create exceptions. The predecessor Regulation (EEC) No 3821/85 repealed by 
the aforesaid regulation contained no such provision. 
However, the Bundesministerium für Verkehr, Innovation und Technologie 
(Austrian Federal Ministry of Transport, Innovation and Technology; ‘BMVIT’) 
takes the view in a circular issued on 1 April 2015 that the term ‘activities’ in the 
last sentence of Article 34(3) of Regulation No 165/2014 covers only other work, 
availability or breaks/rest referred to in Article 34(3) and (5) of Regulation 
No 165/2014. The BMVIT further states that the last sentence of Article 34(3) 
should be read in the context of Article 34 and that that rule therefore refers solely 
to the periods or activities listed in Article 34(3). It is only for these that no special 
forms are demanded, as they have to be added to the record sheets or to the driver 
card using the recording equipment, whereas non-driving days, such as annual or 
sick leave, must continue to be documented using the ‘EU form’ (meaning the 
form referred to in the last sentence of Paragraph 102a(4) [Or. 7] KFG 1967, as 
set out in Commission Decision 2009/959/EU amending Decision 2007/230/EC 
on a form concerning social legislation relating to road transport activities). That 
interpretation is also supported by the fact that the ‘EU form’ in current use is 
based on Article 11(3) of Directive 2006/22/EC of the European Parliament and of 
the Council of 15 March 2006 on minimum conditions for the implementation of 
Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social 
legislation relating to road transport activities and repealing Council Directive 
88/599/EEC (‘Directive 2006/22/EC’) and the fact that that directive applies 
without amendment. 
Therefore, the first question that arises is whether non-driving days fall under the 
term ‘activities’ in the last sentence of Article 34(3) of Regulation No 165/2014 
and whether it has therefore been prohibited since that regulation entered into 
force to demand that drivers produce confirmation of non-driving days, as still 
provided for in Paragraph 102a(4) KFG 1967. 
That prohibition is supported both by the absolute wording of the last sentence of 
Article 34(3) of Regulation No 165/2014 and by the reasons given by the BMVIT 
in a different part of the aforesaid circular, in which the BMVIT states on the 
question of the documentation of annual and sick leave, especially as to whether 
they have to be documented by entering them manually in the recording 
equipment or whether those periods fall under the periods referred to in 
Article 34(3) or (5)(b)(ii), (iii) and (iv) of Regulation No 165/2014, that a form is 
no longer required in the case of second-generation or later recording equipment, 
as the driver himself can add that time manually under the ‘bed symbol’ as work 
REQUEST FOR A PRELIMINARY RULING OF 4. 2. 2019 — CASE C-96/19 
 
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breaks/rest. If the driver does not add these activities, then the ‘EU form’ has to be 
used. 
Thus, the BMVIT contradicts itself in the circular by stating, on the one hand, that 
non-driving times do not fall under the periods referred to in Article 34(3) or 
(5)(b)(ii), (iii) or (iv) of Regulation No 165/2014 and, on the other hand, that, in 
the case of vehicles fitted with second-generation or later recording equipment 
[presumably meaning digital tachographs that comply with Regulation 
No 165/2014 [Or. 8]], the form is no longer necessary and annual and sick leave 
must be added under the ‘bed symbol’ in the recording equipment as a period 
covered by Article 34(5)(b)(iv) of Regulation No 165/2014. The latter line of 
argument would appear to be completely in keeping with the intention of 
Regulation No 165/2014 that all driving and rest periods of drivers using a vehicle 
fitted with digital recording equipment must be documented on the driver card and 
that there is therefore no longer any need to produce manual records (record 
sheets and other records such as the ‘EU form’) during controls. That is expressly 
provided for under Article 4(3)(e) of Regulation No 165/2014. 
2. That interpretation is also supported by Article 36(2) of Regulation 
No 165/2014. Although subparagraph (ii) of that paragraph requires drivers to 
produce the documents prescribed under Regulation (EC) No 561/2006 to a 
control officer, it does not require them to produce documents prescribed by 
Directive 2006/22/EC, especially therefore not the ‘EU form’. 
3. If control officers were no longer able to demand confirmation of non-
driving days on the basis of Regulation No 165/2014, especially because those 
days fall under the term ‘activities’ in accordance with the last sentence of 
Article 34(3) of that regulation, the last sentence of Paragraph 102a(4) KFG 1967 
would be at variance with EU law and should not be applied. In that case, the 
appellant in the main proceedings should not have been penalised for infringement 
of that provision. The referring court therefore finds that the question of whether 
such confirmations can still be demanded requires clarification. 
Second question 
1. Article 11(3) of Directive 2006/22/EC states that an electronic and printable 
form is to be drawn up by the Commission in accordance with the procedure 
referred to in Article 12(2) of that directive, to be used when a driver has been on 
sick leave or on annual leave, or when the driver has driven another vehicle 
exempted from the scope of Regulation (EEC) No 3820/85, during the period 
mentioned in the first indent of the first subparagraph of Article 15(7) of 
Regulation (EEC) No 3821/85. According to Article 47 of Regulation 
No 165/2014, references to [Or. 9] repealed Regulation (EEC) No 3821/85 should 
be construed as references to Regulation No 165/2014. 
Contrary to the form which applied previously pursuant to Commission Decision 
2007/230/EC and which was repealed by Decision 2009/959/EU, the form drawn 
BEZIRKSHAUPTMANNSCHAFT TULLN 
 
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up by the Commission on 14 December 2009 by Decision 2009/959/EU includes, 
in addition to the three periods referred to in Article 11(3) of Directive 
2006/22/EC, periods in which the driver was on leave or rest (point 16 of the 
form), performed other work than driving (point 18 of the form) or was available 
(point 19 of the form). Thus the Commission appears to have acted beyond the 
powers conferred on it under Article 11(3) of Directive 2006/22/EC. According to 
the recitals of Decision 2009/959/EU, this appears to have been driven by 
practical considerations which, however, conflict with the wording of 
Article 11(3) of Directive 2006/22/EC. 
Furthermore, if the vehicle is fitted with a digital tachograph, the three periods 
referred to in Article 34(3)(b) of Regulation No 165/2014 must be entered on the 
driver card using the manual entry facility provided for in the tachograph. 
According to the last sentence of Article 34(3) of Regulation No 165/2014, 
Member States may not impose on drivers a requirement to present forms attesting 
to their activities while away from the vehicle. Thus, the form drawn up by the 
Commission in Decision 2009/959/EU also appears to conflict with Article 34(3) 
of Regulation No 165/2014 and a mandatory form proving activity during the 
periods referred to in points 16, 18 and 19 of the form ceased to be allowed when 
Regulation No 165/2014 entered into force. 
2. The Regional Administrative Court of Lower Austria holds that, if points 16, 
18 and 19 of the form issued by Decision 2009/959/EU conflict with the aforesaid 
provisions, the form is — at least partially — invalid. [Or. 10] 
If the ‘EU form’ drawn up by Decision 2009/959/EU is (partially) invalid, the 
appellant should not be penalised under the last sentence of Paragraph 102a(4) 
KFG 1967. The referring court therefore finds that the issue of the (partial) 
invalidity of that form needs to be clarified, as it may be in conflict with 
Article 11(3) of Directive 2006/22/EC and Article 34(3) of Regulation 
No 165/2014. 
VI. [...] [stay of proceedings] 
[...] [Or. 11] [...] [no judicial remedy against the present order] 
[...] [service] 
Landesverwaltungsgericht Niederösterreich 
[...]