Judgment;Summary — ECLI:EU:C:2019:784
Date: 2019-09-26
Language of the case: Hungarian
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Hungary

Anonymised version 
Translation C-600/18 – 1 
Case C-600/18  
Request for a preliminary ruling 
Date lodged: 
24 September 2018 
Referring court: 
Szombathelyi Közigazgatási és Munkaügyi Bíróság (Szombathely 
Administrative and Labour Court, Hungary) 
Date of the decision to refer:  
14 September 2018 
Applicant: 
UTEP 2006. SRL 
Defendant: 
Vas Megyei Kormányhivatal Hatósági Főosztály, Hatósági, 
Építésügyi és Oktatási Osztály (Office of the Government 
Delegation in the Province of Vas, Inspection, Construction and 
Education Department) 
      
Szombathelyi Közigazgatási és Munkaügyi Bíróság (Szombathely 
Administrative and Labour Court, Hungary)  
[…] 
In the administrative proceedings between UTEP 2006. SRL ([…] Province of 
Covasna, Dalnic […] [Romania], applicant, and the Vas Megyei 
Kormányhivatal Hatósági Főosztály, Hatósági, Építésügyi és Oktatási 
Osztály ([…]  Szombathely […]) (Office of the Government Delegation in the 
Province of Vas, Inspection, Construction and Education Department) ([…] 
Szombathely […], Hungary), defendant, the Szombathelyi Közigazgatási és 
Munkaügyi Bíróság (Szombathely Administrative and Labour Court) adopts the 
following:  
EN 
REQUEST FOR A PRELIMINARY RULING OF 14.9.2018 – CASE C-600/18  
 
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Order: 
The referring court […] [procedural element] refers the following question for a 
preliminary ruling to the Court of Justice of the European Union, under 
Article 267 of the Treaty on the Functioning of the European Union (TFEU): 
Should [Article] 92 TFEU be interpreted as precluding an interpretation of 
Article 12/A of the a kis- és középvállalkozásokról, fejlődésük támogatásáról 
szóló 2004. [évi] XXXIV. törvény (Law No XXXIV of 2004 on small and 
medium-sized enterprises and aid for their development; ‘KKV Law’) and the 
practice of the authorities followed in this respect, according to which 
Article 12/A of the KKV Law cannot be applied to enterprises (legal entities) that 
are not registered in Hungary, but in another Member State, but that are otherwise 
in line with the concept of small and medium-sized enterprise laid down by that 
Law? 
[…] [procedural information] 
GROUNDS 
I. Facts 
The applicant is a business organisation that has its registered office in Romania 
and that is involved in transport, among other activities, and whose characteristics 
are in line with the concept of small and medium-sized enterprise laid down in the 
KKV Law. 
On 15 May 2017, during a traffic inspection operation conducted in Hungary (at 
kilometre point 117 on national road 8, in the district of Jánosháza), traffic 
inspectors of the first-level authority inspected an articulated heavy goods vehicle, 
identified by registration plates CV46UTP/CV25UTP, which was being driven by 
Z and which was operated by the applicant. During this inspection, the traffic 
inspectors discovered that, at 1.00 (Eastern European Time) on 12 May 2017, the 
driver of the above vehicle had removed from the tachograph, when this was 
displaying a distance of 1 136 635 kilometres, the driver recording disc for 11 and 
12 May 2017. At 10.14 on 14 May 2017, he inserted the driver recording disc for 
14 May 2017 into the tachograph, which was still displaying the above distance. 
The driver noted by hand, on the reverse of the driver recording discs, a rest time 
corresponding to the period between 1.00 on 12 May 2017 and 10.14 on 14 May 
2017. After inspecting the transport documents, it became clear that, on 12 May 
2017, the vehicle driver had carried out a loading and unloading operation for the 
COVERIS S.R.L. enterprise in the town of Sfântu Gheorghe [Romania]. This 
finding was confirmed by the fact that, according to a security service record, he 
had gone through a security checkpoint at 8.10 on 12 May 2017. As apparent from 
the certification of refuelling in the waybill, the driver of the above vehicle had 
filled the vehicle with 282 litres of fuel at 9.42 on 14 May 2017, also in the town 
of Sfântu Gheorghe. The vehicle driver could not provide the driver recording disc 
UTEP 2006. 
 
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certifying the loading and refuelling activity. On examining the tachograph, the 
inspectors discovered that the vehicle driver had removed, from the fuse board, 
the fuse that made the electrical connection with the tachograph and that, for this 
reason, the tachograph had not recorded the driving time, speed and distance. As a 
result, this information on the driver’s activity was not recorded on the driver 
recording disc. The record sheets did not reflect the facts and were therefore likely 
to mislead or deceive the inspecting authority when examining the vehicle driver’s 
activity at a later date. 
The first-level authority found in the proceedings that the enterprise was primarily 
responsible for the above offences and that it had not proven otherwise during said 
proceedings, because it had not proven that the vehicle driver had received 
training organised by the enterprise regarding correct use of the tachograph. The 
first-level authority considers that the valid issue of the driver qualification card 
does not replace this training. The first-level authority found that the applicant had 
infringed Article 33(1) and (3) and Article 32(3) 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’). Consequently, 
due to having infringed the rule in Article 5(e) of 156/2009. (VII.29.) Korm. 
Rendelet (Government Decree No 156/2009 of 29 July 2009; ‘penalty regulation’) 
– in other words, Regulation No 165/2014 – it imposed […] on the applicant, 
through a decision dated 7 June 2017, an administrative fine of HUF 800 000 in 
accordance with point H9 of Annex 4 to the penalty regulation. 
The applicant appealed against the original decision and asked, as its main plea, 
for that decision to be annulled and for it to be released from paying the fine. In 
the alternative, it asked for the amount of the fine to be reduced. The applicant 
refuted the administrative authority’s assessment of the facts. It maintained that, 
from 1.00 on 12 May 2017 to 10.14 on 14 May 2017, no one drove the articulated 
heavy goods vehicle identified by registration plates CV46UTP/CV25UTP 
because it was in the loading area. The vehicle was refuelled from a 1 000-litre 
tank to which fuel had been transferred from a pump that was being repaired, with 
this being the solution that had to be adopted because the MOL company’s pump 
was being repaired and only passenger vehicles could be refuelled from this. The 
applicant stated that Z did not drive the vehicle carrying the tank and presented as 
evidence, among other documents, a route sheet. The applicant maintained that 
there was no evidence that that articulated heavy goods vehicle was refuelled from 
the MOL pump or that Z was driving this vehicle at the time of its refuelling. The 
applicant also considered that it was not proven that Z had gone through the 
security checkpoint at 8.10 on 12 May 2017. It was at that time that the delivery 
note in the driver’s name had been issued. The signature on the waybill was not 
Z’s, as was apparent from the document. The applicant also considered that the 
statement that the vehicle driver had removed the fuse that made the electrical 
connection with the tachograph was unfounded, because it did not appear to have 
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been removed at the time of the inspection. The applicant maintained that the fact 
that the tachograph fuse was worn did not prove that the articulated heavy goods 
vehicle identified by registration plates CV46UTP/CV25UTP was moving with 
the fuse removed from 1.00 on 12 May 2017 to 10.14 on 14 May 2017. The 
applicant also considered that the recording of the vehicle cab and the seizure of 
the documents were not legal. 
In a decision of 28 July 2017 […], the defendant, as the second-level authority, 
upheld the decision of the first-level authority. With regard to reducing the 
amount of the fine, it stated that Article 12/A of the KKV Law – which allows a 
fine to be replaced with a warning – did not apply because only small and 
medium-sized enterprises, which form the majority of the Hungarian economy, 
are entitled to benefit from this provision, which cannot therefore be applied to 
non-resident enterprises.  
The applicant lodged an administrative appeal against the defendant’s final 
decision, in which it asked, as its main plea, for the decision to be annulled and, in 
the alternative, for the amount of the fine to be reduced. It put forward the 
following arguments in addition to those indicated above. In the notice of appeal, 
it argued that the ‘CERTIFICAT DE PREGATIRE PROFESIONALA A 
CONDUCATORULUI AUTO’, which corresponds to the Hungarian driver 
qualification card, certifies that, on the date of its issue, Z knew about driving and 
rest time and about use of the tachograph and data recording sheets or cards. It 
also considered that the fact that, as a non-resident enterprise, the fine imposed 
could not be replaced with a written warning was discriminatory. In the 
applicant’s opinion, in the EU authorities cannot act, in the case of fines imposed 
for offences, based on whether the accused is resident in the country or elsewhere. 
It maintains that this interpretation by authorities discriminates against small and 
medium-sized enterprises resident in another Member State and distorts 
competition in the internal market to the detriment of such enterprises.  
II.1. EU law 
Article 91 TFEU 
‘1. For the purpose of implementing Article 90, and taking into account the 
distinctive features of transport, the European Parliament and the Council shall, 
acting in accordance with the ordinary legislative procedure and after consulting 
the Economic and Social Committee and the Committee of the Regions, lay down: 
(a) common rules applicable to international transport to or from the territory of 
a Member State or passing across the territory of one or more Member 
States; 
(b) the conditions under which non-resident carriers may operate transport 
services within a Member State; 
UTEP 2006. 
 
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(c) measures to improve transport safety; 
(d)  any other appropriate provisions. 
2. When the measures referred to in paragraph 1 are adopted, account shall be 
taken of cases where their application might seriously affect the standard of living 
and level of employment in certain regions, and the operation of transport 
facilities.’ 
Article 92 TFEU 
‘Until the provisions referred to in Article 91(1) have been laid down, no Member 
State may, unless the Council has unanimously adopted a measure granting a 
derogation, make the various provisions governing the subject on 1 January 1958 
or, for acceding States, the date of their accession less favourable in their direct or 
indirect effect on carriers of other Member States as compared with carriers who 
are nationals of that State.’ 
II.2. Hungarian law 
Hungary has been a member of the European Union since 1 May 2004. 
KKV Law 
On 1 September 2010 the legislature inserted Article 12/A into the KKV Law, 
which entered into force on 1 May 2004. This article was worded as follows on 
15 May 2017: 
Article 12/A 
‘1. When bodies carrying out official inspections of small and medium-sized 
enterprises – except for tax and customs procedures and inspection procedures 
involving institutions that carry out adult education activities – have to penalise 
the first offence committed, instead of imposing a fine, they shall warn the 
enterprises concerned and shall examine whether the procedure laid down in 
Article 94(1)(a) of the a közigazgatási hatósági eljárás és szolgáltatás általános 
szabályairól szóló 2004. évi CXL. törvény (Law No CXL of 2004 laying down 
general provisions on administrative procedures and services) can be applied. 
2. The fine cannot be replaced where: 
(a) the offence harms or threatens the life, physical integrity or health of 
persons; 
(b) the fine has been imposed for acts that have damaged the environment; 
(c) rules on the protection of minors under the age of 18 have been infringed; or 
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(d) the offence affects persons belonging to a clearly identifiable population 
group that is particularly vulnerable due to its age, naivety or impairment of 
its mental or physical conditions; 
(e) the enterprise fails to fulfil the duty of cooperation imposed by 
Article 29(11) of the a fogyasztóvédelemről szóló 1997. évi CLV. törvény 
(Law No CLV of 1997 on consumer protection) within the framework of the 
corporate conciliation procedure.’ 
Article 20(7) of the KKV Law 
‘This Law transposes the contents of the Commission Recommendation of 6 May 
2003 concerning the definition of micro, small and medium-sized enterprises 
(2003/361/EC) into national law.’ 
III. Reasons for initiating the procedure: 
One of the legal issues raised in the dispute involves determining whether, if an 
offence has been committed by the [applicant] party, should Article 92 TFEU be 
interpreted as precluding an interpretation of Article 12 of the KKV Law – and the 
practice of the authorities followed in this respect – according to which Article 12 
of the KKV Law cannot be applied to enterprises (legal entities) that are not 
registered in Hungary, but in another Member State, but that are otherwise in line 
with the concept of small and medium-sized enterprise laid down by said Law. 
The applicant is an enterprise of this nature. 
The applicant maintains that the legal interpretation [of the KKV Law] made by 
the defendant infringes Article 92 TFEU and therefore distorts competition 
between carriers from [different] Member States. 
IV. Other procedural issues 
[…] [procedural information and details of the referring court] 
Szombathely, 14 September 2018. 
[…] (signatures)