Opinion of the Advocate General — ECLI:EU:C:2022:932
Date: 2022-11-24
Language of the case: Swedish
Subject matter: Social Policy;Transport
Procedure: Reference for a preliminary ruling
Origin: Sweden

Anonymised version 
Translation C-666/21 - 1 
Case C-666/21 
Request for a preliminary ruling 
Date lodged:  
5 November 2021 
Referring court:  
Hovrätten för Nedre Norrland (Sweden) 
Date of the decision to refer:  
25 October 2021 
Appellant and respondent: 
AI 
Appellant and respondent: 
Åklagarmyndigheten 
  
[…]  MINUTES […] 
[…]  18 October 2021 […] 
[…] 
PARTIES 
Appellant and respondent 
AI […] 
Appellant and respondent 
[…] 
Åklagarmyndigheten (Public Prosecutor’s Office, Sweden) 
EN 
REQUEST FOR A PRELIMINARY RULING OF 25. 10. 2021 – CASE C-666/21 
 
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[…] 
SUBJECT MATTER 
Tachograph offence, etc. […] 
[…] 
AI was convicted of a speeding offence at first instance but was acquitted of 
infringing the förordning om kör- och vilotider samt färdskrivare, m.m. 
(2004:865; Regulation on driving times, rest periods and tachographs, etc.) (‘the 
tachograph offence’). Both AI and the åklagare (Public Prosecutor) appealed 
against the judgment at first instance. 
The dispute relating to the tachograph offence concerns a journey undertaken by 
AI on the public highway on 4 April 2019 in a vehicle with registration plate 
number […]. During the journey, he was stopped by the police. During the police 
check, it was found that the vehicle was fitted with a tachograph that had not been 
inspected within the prescribed period and did not contain a tachograph disc. AI 
stated that he was on route to a snowmobile competition and had two 
snowmobiles in the cargo area. The journey took him more than 100 km from his 
place of residence. 
The vehicle was registered with the vägtrafikregistret (Road Traffic Register) as a 
lorry in EU vehicle category N3, which covers ‘Vehicles designed and constructed 
for the carriage of goods and having a maximum mass exceeding 12 tonnes’. 
Furthermore, it is established that the vehicle model is Volvo B10M- 70B, 
specifically the 1997 model. The vehicle has space for six passengers and is fitted 
with a hoist. The bodywork is stated to be that of a van, but with the comment: 
‘Front part of the van fitted out permanently as living area, rear part as cargo 
area’. The mass stated for the vehicle is 17 680 kg with a permitted cargo mass of 
5 120 kg. The vehicle is 3.6 metres high and 14.7 metres long. AI is the owner of 
the vehicle. 
As a result of further investigation into the case undertaken on the basis of, among 
other things, photographs of the vehicle and information provided by AI, it is 
apparent that the bodywork of the vehicle is similar to that of a bus, but that it has 
been fitted out permanently as a living area, which, according to AI, is used for his 
and his family’s personal use when travelling, as they have an interest in 
snowmobiling. It is also apparent that the vehicle has a cargo area which AI 
sometimes uses to transport his snowmobiles. However, according to AI, the 
principal purpose of the vehicle is to provide a temporary private residence and 
not to transport goods. 
It is common ground that vehicle […] was fitted with a tachograph and that it had 
not been inspected. Consequently, AI was prosecuted and then acquitted before 
the Sundsvalls tingsrätt (District Court, Sundvall) for infringement of Paragraph 6 
of Chapter 9 of the Regulation on driving times, rest periods and tachographs, etc. 
ÅKLAGAREN 
 
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An appeal was brought by the Public Prosecutor against the acquittal by the 
District Court. 
Paragraph 6 of Chapter 9 of the Regulation on driving times, rest periods and 
tachographs, etc. is worded as follows: ‘A fine shall be imposed on a driver who 
intentionally or negligently uses a tachograph which has not been inspected in 
accordance with Article 23(1) of Regulation (EU) No 165/2014.’ 1 
Article 3(1) of Regulation (EU) No 165/2014 provides as follows: ‘Tachographs 
shall be installed and used in vehicles registered in a Member State which are used 
for the carriage of passengers or goods by road and to which Regulation (EC) 
No 561/2006 applies.’ 
Article 23(1) of Regulation (EU) No 165/2014 provides as follows: ‘Tachographs 
shall be subject to regular inspection by approved workshops. Regular inspections 
shall be carried out at least every two years.’ 
Article 2(1) of Regulation (EC) No 561/2006 provides as follows: 
‘This Regulation shall apply to the carriage by road: 
(a) of goods where the maximum permissible mass of the vehicle, including any 
trailer, or semi-trailer, exceeds [3.5] tonnes, or 
(b) of passengers by vehicles which are constructed or permanently adapted for 
carrying more than nine persons including the driver, and are intended for that 
purpose.’ 
None of the exemptions provided for in Article 3 of Regulation (EC) No 561/2006 
is applicable in the present case. 
Furthermore, none of the exemptions from Regulation (EU) No 165/2014 enacted 
by Sweden into national legislation pursuant to Article 3 thereof for transport 
mentioned in Article 13(1) and (3) and Article 14(1) of Regulation (EC) 
No 561/2006 is applicable in the present case. 
The Public Prosecutor claims that, due to the vehicle’s mass and because it is used 
to transport snowmobiles, that vehicle is obliged to have a tachograph. In the 
proceedings, AI contended that the vehicle is not used for the commercial 
transport of goods, but rather only as a motorhome for private use and therefore is 
not obliged to have a tachograph. 
 
1 https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/forordning-
2004865-om-kor--och-vilotider-samt sfs-2004-865 (in Swedish). 
REQUEST FOR A PRELIMINARY RULING OF 25. 10. 2021 – CASE C-666/21 
 
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The Transportstyrelsen (Swedish Transport Agency) has produced non-binding 
legal guidance in the form of a memorandum 2 which makes it clear that a 
motorhome may take the form of a registered passenger car, a lorry or a bus. It is 
clear from that document that the Swedish Transport Agency, referring to the 
judgment of the Court of Justice of the European Union of 3 October 2013 in Case 
C-317/12, Lundberg (EU:C:2013:631), takes the view that all motorhomes 
registered as lorries are covered by the rules concerning driving times and rest 
periods in Regulation (EC) No 561/2006 where their total mass is greater than 
7 500 kg, regardless of whether or not the transport is ‘commercial’. 
The Hovrätt (Court of Appeal) issues the following 
ORDER 
(notified on 25 October 2021) 
1. The proceedings are stayed pending delivery by the Court of Justice of the 
European Union of its interpretation of the relevant provisions of EU law. 
2. Pursuant to Article 267 of the Treaty on the Functioning of the European 
Union, the Court of Appeal hereby decides to ask the Court of Justice of the 
European Union to give a preliminary ruling on the following questions: 
(a) Must the term ‘carriage by road of goods’ in Article 2(1)(a) of 
Regulation (EC) No 561/2006 be interpreted as including carriage by a 
vehicle with a total mass of greater than 3.5 tonnes the main use of 
which is to provide a temporary living area for private use? 
(b) In such circumstances, is the vehicle’s cargo capacity or how the 
vehicle is registered in the national road traffic register of relevance? 
[…] [decisions on the appeal] 
GROUNDS 
In order to determine whether AI was obliged to arrange for an inspection of the 
tachograph installed in the vehicle with registration plate number […], the first 
question to be answered is whether Regulation (EC) No 561/2006 is applicable to 
the carriage by road in question. Only once that question has been answered will it 
be possible to issue a decision on the criminal proceedings against him in which it 
is alleged that he failed to arrange for the tachograph to be inspected. 
It is understandable that AI’s vehicle can most readily be compared to a very large 
motorhome with space for six passengers. As the District Court found in its 
 
2  Swedish Transport Agency, 27 February 2014, Promemoria rörande kör- och vilotider samt 
färdskrivare vid vägtransport (Memorandum concerning driving times, rest periods and 
tachographs for carriage by road), p. 8. 
ÅKLAGAREN 
 
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acquittal, it is not by virtue of Article 2(1)(b) of Regulation (EC) No 561/2006 
that his vehicle is covered by that regulation. However, AI’s vehicle does have a 
cargo area, which means that it can be used for the carriage by road of goods. The 
vehicle is also registered as a lorry in the Road Traffic Register. According to the 
wording of Article 2(1)(a), since the vehicle’s total mass is greater than 3.5 tonnes 
and it was stopped while undertaking carriage by road, that regulation is 
applicable. The question which arises is whether a motorhome with a maximum 
mass of greater than 3.5 tonnes, the main use of which is to provide a temporary 
living area for private use, but also has the practical possibility of transporting 
goods, falls within the scope of the regulation according to its wording or whether 
Article 2(1)(a) thereof must be interpreted more strictly. 
It is apparent from, inter alia, Article 1 of Regulation (EC) No 561/2006 that the 
purpose of that regulation is to harmonise conditions of competition in the road 
sector and to improve working conditions and road safety. The obligation to have 
an approved tachograph installed makes it possible to monitor whether drivers are 
complying with their driving times and rest periods in order to achieve those 
objectives. 
There is nothing in the text of the regulation to suggest that the principal purpose 
or actual use of vehicles has a direct impact on the interpretation of Article 2(1), 
provided that the vehicle may also be used for the ‘carriage by road of goods’. 
However, the term ‘goods’ is not defined in the regulation. As the vast majority of 
vehicles weighing more than 3.5 tonnes are capable of carrying goods some way, 
regardless of their passenger capacity, it is difficult to interpret the wording of 
Article 2(1)(a) as meaning anything other than, in practice, it is the total mass that 
will determine whether the vehicle is covered by that provision of that regulation. 
It is clear from the recitals of Regulation (EC) No 561/2006 that it is intended to 
provide a clear and simple set of rules which will be understood, interpreted and 
applied by the road transport industry and the enforcement authorities (recitals 3 
and 4). The scope of the regulation is defined clearly by reference to the main 
categories of vehicle which it covers (recital 6). That militates in favour of an 
interpretation according to which the registration of the vehicle in the Road 
Traffic Register may be significant for the question of whether the regulation is 
applicable. The definition of ‘carriage by road’ in Article 4(a) may also be 
interpreted as covering only vehicles intended for the carriage of goods, which 
may suggest that the capacity of the vehicle in that regard may be relevant to the 
assessment. 
However, the wording of the term ‘carriage by road of goods’ implies that it 
covers primarily commercial transport within the context of economic activity, 
since, in everyday language, private equipment or luggage is rarely classified as 
goods. That interpretation is also borne out by the stated purpose of Regulation 
(EC) No 561/2006, namely to harmonise the conditions of competition within the 
road sector and to improve working conditions and road safety. It is difficult to 
conceive that heavy goods vehicles used exclusively by private individuals in the 
REQUEST FOR A PRELIMINARY RULING OF 25. 10. 2021 – CASE C-666/21 
 
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course of their hobby or leisure activities can be regarded either as constituting a 
threat to conditions of competition or as being significant for working conditions 
(see also the judgment of 3 October 2013, Lundberg, C-317/12, EU:C:2013:631, 
paragraph 28). 
At the same time, the regulation contains exemptions for those vehicles and 
journeys where the EU legislature has determined that the purpose of the 
provisions on, inter alia, driving times and rest periods [is] not relevant. Some of 
those exemptions, which concern certain vehicles used for non-commercial 
transport, as set out in Article 3(h) and (i), may also apply to those who use heavy 
goods vehicles for private purposes. On the basis of those exemptions, the 
conclusion can be drawn that the term ‘carriage by road of goods’ has a broad 
meaning. Specifically, the exemptions relating to specialised breakdown vehicles 
and specialised vehicles used for medical purposes laid down in Article 3(e) and 
(f) must be understood as meaning that such carriage by road would otherwise 
have been covered. Furthermore, the definition of ‘driver’ set out in Article 4(c) of 
the regulation makes it clear that, in order to fall within that definition, a person 
need not be driving the vehicle as part of his or her duties. 
According to the Court of Appeal, there is a clear contradiction between the 
purpose of Regulation (EC) No 561/2006 and its broad application under the 
wording of Article 2(1)(a) as regards heavy goods vehicles used exclusively for 
private purposes and unrelated to any commercial relationship where none of the 
exemptions referred to in Article 3 is applicable. The question also arises as to 
whether, in those cases, the application of the regulation’s rules on driving times 
and rest periods is proportionate to the objectives which it seeks to attain. 
In the light of the above, there are grounds for referring the [questions] to the 
Court of Justice of the European Union for a preliminary ruling. 
[…] [proceedings stayed] 
[…]