Opinion of the Advocate General — ECLI:EU:C:2000:149
Date: 2000-03-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy;Transport
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary conviction to a fine not exceeding level 4 on the standard scale. III - Facts 13. The facts of the case are set out in the order for reference. This states thatMr Hume was employed as a coach driver. The nature of his duties was such thatthe fourth and fifth subparagraphs of Article 6(1) and Article 8(5) of RegulationNo 3820/85 were applicable to him. 14. During the period from 09.15 hours on 16 July 1995 to 16.45 hours on24 July 1995 his total driving time was 38 hours 30 minutes. Between 24 July 1995and 26 July 1995 Mr Hume took a rest period of 38 hours 30 minutes. 15. On 26 July 1995 he drove for eight hours and then took a rest period of 24hours. 16. Mr Hume worked again from 27 July 1995 to 3 August 1995, accumulatinga total driving time of 41 hours 45 minutes. He then commenced a rest period of36 hours 30 minutes away from his base. 17. On 5 January 1996 an information was laid against Mr Hume in thefollowing terms: '[The Defendant] on 25 July 1995 at Ferryhill in County Durham or elsewhere diddrive a vehicle to which Council Regulation (EEC) No 3820/85 applies and failedafter no more than twelve daily driving periods to take two weekly rest periodsback to back as required by Article 6(1) as defined by Article 8(3) of the saidapplicable Community rules, contrary to section 96(11A) of the Transport Act1968. 18. In the proceedings before the national court, the prosecution took as thebasis of its case the fact that, during the week commencing on 17 July 1995,Mr Hume had taken no weekly rest period. He was consequently obliged, inaccordance with Article 8(5) of Regulation No 3820/85, to add the weekly restperiod in respect of that week on to the weekly rest period for the weekcommencing 24 July 1995. However, he did not do so; instead, he merely took restperiods corresponding to his daily rest period and a period sufficient to compensatefor the reduced rest period of 36 hours that he had previously taken. Accordingto the prosecution, where a weekly rest period is postponed pursuant to Article8(5), the postponed rest period must be 'added on to the second week's weeklyrest, that is to say, taken together with the weekly rest prescribed in respect of thatsecond week. 19. The prosecution states in the alternative that, if the rest period in respectof the week commencing 17 July is regarded as having been postponed to 24 July,and even if Mr Hume was not obliged to take his rest period in that week togetherwith the postponed rest period, he was not entitled further to postpone his restperiod for the week commencing 24 July, but was obliged to take two weekly restperiods in that week. 20. In his defence, Mr Hume submitted that he had taken a sufficient weeklyrest during the week commencing 10 July 1995, although that rest had beenshortened and therefore needed to be supplemented by a compensatory restpursuant to Article 8(6) of Regulation No 3820/85, which was taken on 26 and27 July. Accordingly, he took an acceptable weekly rest in respect of the weekcommencing 17 July on 24 and 25 July, by way of postponement pursuant to Article8(5). He further took an acceptable weekly rest in respect of the weekcommencing 24 July on 4 and 5 August, by way of postponement pursuant toArticle 8(5). 21. Article 8(5) does not require that, in order for a weekly rest period to be'added to a period in the following week, it must be taken in conjunction withthat subsequent rest period as a single, uninterrupted period. By the same token,it is not necessary for both of those rest periods to be taken in the same week. IV - The questions referred 22. The Sedgefield Magistrates' Court considers that an interpretation of Article8 of the regulation is necessary in order to enable it to determine the case, and hasconsequently referred the following questions to the Court for a preliminary ruling: (1) Where, pursuant to Article 8(5) of Council Regulation (EEC) No 3820/85,a driver who is entitled to do so elects to postpone his weekly rest period until theweek following that in which it is due, must the driver take two weekly rest periods,consecutively and without break between them, in that following week? (2) If the answer to question (1) is in the negative, must such a drivernevertheless take two weekly rest periods in the following week, or is he permittedto postpone, in turn, the weekly rest period for that second week to the nextfollowing week? V - The submissions of the parties submitting observations 23. The United Kingdom Government regards it as convenient to begin with thesecond question, since unless Mr Hume was entitled to postpone the rest due in thesecond week, he contravened the regulation. It submits that Article 8(5) of theregulation can only be interpreted as meaning that the rest period in respect of thesecond week, to which the rest period for the previous week is to be 'added, mustalso be taken in that second week. That interpretation is borne out by the wordingand logic of the provision, which is designed to preclude the constant rolling-overof rest periods from one week to the next. 24. If, in the present case, the answer to the second question is as set out above,the first question need not be considered. In so far as such consideration isnevertheless necessary, the United Kingdom Government submits that where, onaccount of a weekly rest period having been postponed to the following week, tworest periods must be taken in that following week, it is not necessary in every casefor the two rest periods to be taken consecutively; that will only be necessary inorder to ensure that two rest periods are taken in the second week. The rationalefor this is to be found in the need to prevent the constant rolling postponement ofrest periods and to ensure that such periods are actually taken. It cannot in anyevent be inferred from the regulation that the rest periods in question must alwaysbe taken without interruption. Had that been the intention of the legislature, itcould have included an express provision to that effect in the regulation. 25. The French Government considers that the present case involves a problemof interpretation relating solely to the English language version of the regulation. The French text of the provisions in issue raises no difficulties of interpretation orapplication. It is apparent from the French wording of Article 8(5) that thepostponed rest period and the rest period in respect of the second week must betaken together, that is to say, without interruption. 26. The aim of Regulation No 3820/85 is to harmonise conditions of competitionand to improve working conditions and road safety. The lengthening of weekly restperiods is beneficial to social progress and to road safety. Consequently, Article8(5) can only be interpreted as meaning that, where two rest periods are to betaken in the same week, they may not be taken independently of each other. Inview of that interpretation, the second question referred by the national court doesnot call for a reply. 27. The Portuguese Government submits that the provisions concerning weeklyrest periods contained in Article 8(5) constitute an autonomous scheme which isintended to reconcile the rules regarding weekly rest periods with the specificconditions prevailing in the sector relating to non-regular transport services. Consequently, Article 8(5) clearly and unequivocally requires that a weekly restperiod which is postponed to the following week must be taken in conjunction withthe weekly rest period for that second week. 28. In the Commission's view, the English language version of Article 8(5)clearly indicates that the two weekly rest periods are to be taken together, that isto say, without interruption. This is further confirmed by the fact that theregulation contains no provision dealing with the question whether such weekly restperiods may be interrupted or postponed or, if that is possible, with theconsequential effects of such interruption or postponement. Such an interpretationis, moreover, borne out by the other language versions of the regulation. 29. The spirit and purpose of the regulation include the promotion of socialprogress and road safety. The attainment of that objective is furthered, inparticular, by the fixing of weekly rest periods, with the result that a broadinterpretation cannot be applied to Article 8(5). Given the very precise andcomprehensive terms in which the rules concerning the taking or postponement ofweekly rest periods are framed, Article 8(5) can only be interpreted as meaningthat the postponed weekly rest period and the rest period in respect of the secondweek are to be taken together and without interruption. Since that is the answerto be given to the first question referred by the national court, there is no need toanswer the second question. VI - Assessment 30. The first point to note is that Mr Hume is charged with having driven avehicle on 25 July 1995 without having taken the weekly rest periods prescribed. However, the national court states that, between 24 July and 26 July 1995,Mr Hume took a rest period totalling 38 hours and 30 minutes. Since (a) it is forthe court making the reference to establish the facts and chronology of the casebefore it and (b) the answers to the questions referred in that connection do notdepend on whether Mr Hume drove a vehicle on 25 July 1995 or took a rest onthat day, I do not propose to consider this point in any detail. 31. For the purposes of answering the first question, the decisive factor is theinterpretation to be applied to the wording of Article 8(5), in particular the phrase'added on to that second week's weekly rest. (4) 32. The wording in the other language versions indicates that Article 8(5) is infact to be understood as meaning that, where a postponement of a weekly restperiod results in the aggregation of that period with the weekly rest period inrespect of the following week, the two rest periods are to be taken together andwithout interruption. 33. That interpretation is supported not only by the wording in question but alsoby the very fact that that phrase is included in the provision. If it were possible totake the two rest periods separately, and had that been the intention of thelegislature, it would have been enough to provide that the rest period in respect ofthe second week may be postponed. 34. Thus, the wording of Article 8(5) runs counter to the view put forward bythe defendant in the main proceedings, even though the English language versionis not so clear and precise as to remove all doubt concerning its interpretation. 35. The Court has consistently held that, where a provision is insufficiently clearand unequivocal, its scope must be determined in the light of the objectives of theact in which it is contained and with regard to the legal context in which it issituated. (5) 36. As is apparent from the first recital in its preamble, the objectives of theregulation are threefold, namely: the removal of distortions of competition, theimprovement of working conditions and the promotion of road safety. Theregulation therefore contains detailed provisions concerning crew, driving times,breaks and rest periods, as well as rules concerning control procedures andpenalties for infringements of the regulation. 37. The seventeenth recital shows that the regulation was enacted in order tolay down, with regard to rest periods, the minimum duration of, and otherconditions governing, the daily and weekly rest periods of crew members. Inadopting the regulation, the Council took the view - according to the nineteenthrecital - that 'it is beneficial to social progress and to road safety to lengthenweekly rest periods, while enabling these periods to be shortened, provided that thedriver can compensate for parts of his rest period which have not been taken in aplace of his choosing within a given time. 38. Article 8(3) therefore provides that, in principle, a weekly rest periodtotalling 45 consecutive hours is to be taken. According to Article 8(3), that restperiod may be reduced to a minimum of 36, alternatively 24, consecutive hours. However, that reduction must be compensated by a rest taken en bloc before theend of the third week following the week in question. 39. In the case of the carriage of passengers, Article 8(5) provides that theweekly rest period may be postponed until the week following that in respect ofwhich the rest is due. Where that rest period is postponed, it must be added on tothat second week's weekly rest. 40. It is apparent from those provisions that a derogation from the prescribedduration of the weekly rest period is permissible only where the reduction in thatduration is compensated in the following week. Since - as shown above - theregulation lays down very detailed rules concerning the minimum duration of, andother conditions governing, the weekly rest period, a narrow interpretation is to beapplied to any possible exceptions to, or derogations from, those rules. 41. However, Mr Hume's submission would result in a wide interpretation, andwould run counter to the general objectives of the regulation. 42. In the context of the regulation, road safety is to be increased by imposingstrict limits on driving times and by laying down the rest periods to be taken. Social progress is to be promoted by allowing driving times to be lengthened orpermitting rest periods to be shortened only on condition that, in return, the driveris required to compensate for the rest time thereby lost. 43. The regulation is also specifically intended to protect the health of driversand, at the same time, to promote road safety. Those objectives can be attainedonly if the additional daily driving times permitted by way of exception are followedby a longer rest period. To allow that rest period to be split, that is to say,interrupted by further driving, would plainly run counter to the attainment of bothobjectives. Article 8(1) to (3) consistently refers, in relation to rest periods, toconsecutive hours; Article 8(6) provides that the rest must be 'attached to anotherrest. However, it cannot be concluded from the absence of the word 'consecutivein Article 8(5) that that provision permits the rest period to be split, since - havingregard to the spirit and purpose of the regulation - the phrase 'added on meansexactly the same thing, merely expressing it in different terms. 44. Moreover, the attainment of the objective of removing distortions ofcompetition is dependent on the scrupulous fulfilment by all undertakings of all ofthe obligations imposed on them by the regulation. To permit undertakingsregularly to plan their schedules in such a way as to exceed the driving timesprescribed would seriously jeopardise the attainment of the objective pursued, sincethis could undermine the entire system of limited driving times. 45. Consequently, if it were possible, as Mr Hume submits in the present case,to take the two weekly rest periods separately, in such a way as to postpone theweekly rest period to be taken in a given week to the following week, this wouldmean that the rest periods actually prescribed would not be adhered to; instead,they could be constantly postponed, ad infinitum, to the next following week. 46. Such a practice would be contrary, however, both to the wording of Article8(5) and to the spirit and purpose of the regulation. Since the regulation permitsthe length of the weekly rest period to be reduced only if precise conditions arefulfilled, namely that that reduction is compensated in the following week, it mustbe concluded, having regard to the very objectives of the regulation and to thecontext in which Article 8(5) is situated, that the two weekly rest periods prescribedmay not be taken separately from each other. 47. Consequently, the answer to be given to the first question referred by thenational court must be that where, pursuant to Article 8(5) of RegulationNo 3820/85, a driver elects to postpone his weekly rest period until the weekfollowing that in which it is due, he must take two weekly rest periods consecutivelyand without interruption in that following week. 48. Since the national court seeks an answer to its second question only in theevent that the answer to the first question is in the negative, there is no need toconsider that second question in detail. 49. I would merely mention that such a further postponement would be totallycontrary to the spirit and purpose of the regulation, and could not under anycircumstances be regarded as an 'adding on. The resulting free days would nolonger have any connection with the lengthened driving times, and would not serveas rest days providing an opportunity for recuperation. Indeed, if shrewdlyaccumulated, they could even be turned into extra leave days. VII - Costs 50. The costs incurred by the French, Portuguese and United KingdomGovernments and by the Commission of the European Communities, which havesubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main action, a step in the proceedings pending before thenational court, the decision on costs is a matter for that court. VIII - Conclusion 51. On the basis of the foregoing, I propose that the answer to be given to thequestion referred should be as follows: Where, pursuant to Article 8(5) of Regulation (EEC) No 3820/85, a driver electsto postpone his weekly rest period until the week following that in which it is due,he must take two weekly rest periods consecutively and without interruption in thatfollowing week. 1: Original language: German. 2: - Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization ofcertain social legislation relating to road transport (OJ 1985 L 370, p. 1). 3: - Emphasis added. 4: - For the other language versions, see point 11 above. 5: - See the judgments in Case 47/79 Nehlsen v Bremen [1979] ECR 3639, Case 113/83 Reginav Scott [1984] ECR 2863 and Case C-116/92 Charlton and Others [1993] ECR I-6755, andthe judgment of 28 October 1999 in Case C-6/98 Arbeitsgemeinschaft DeutscherRundfunkanstalten (ARD), not yet published in the European Court Reports.