Opinion of the Advocate General — ECLI:EU:C:2022:188
Date: 2022-03-10
Language of the case: Romanian
Subject matter: Social Policy;Transport
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation C-13/21 - 1 
Case C‑ 13/21 
Request for a preliminary ruling 
Date lodged: 
4 January 2021 
Referring court: 
Judecătoria Miercurea-Ciuc (Romania) 
Date of the decision to refer: 
10 November 2020 
Applicant: 
Pricoforest SRL 
Defendant: 
Inspectoratul de Stat pentru Controlul în Transportul Rutier 
(ISCTR) 
  
[...] 
JUDECĂTORIA MIERCUREA-CIUC 
[...] 
REQUEST FOR A PRELIMINARY RULING 
The Judecătoria Miercurea-Ciuc (Court of First Instance, Miercurea-Ciuc, 
Romania), of its own motion, [...] pursuant to Article 267 of the Treaty on the 
Functioning of the European Union (TFEU), requests 
THE COURT OF JUSTICE OF THE EUROPEAN UNION 
to give a preliminary ruling on the following questions concerning the 
interpretation of Article 13(1)(b) of Regulation No 561/2006, since the Court’s 
ruling on those questions will be useful for the resolution of the dispute in the 
national proceedings [...]. 
1. Is the concept of ‘radius of up to 100 km’ referred to in Article 13(1)(b) of 
Regulation No 561/2006 to be interpreted as meaning that a straight line drawn on 
EN 
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the map between the base of the undertaking and the destination must be less than 
100 km or as meaning that the distance actually travelled by the vehicle must be 
less than 100 km? 
2. Are the provisions of Article 13(1)(b) of Regulation No 561/2006 to be 
interpreted as meaning that the carrying out of transport operations within the 
scope of that provision, some of which remain within a radius of 100 km from the 
base of the undertaking and others of which exceed that radius, in a period of one 
month, in the context of the exemption of the situation referred to in 
Article 13(1)(b) of Regulation No 561/2006 from application of that regulation 
pursuant to a provision of national law, results in the exemption of all relevant 
transport operations from application of the regulation, or only those which [do 
not] […] exceed the radius of 100 km or none of them? 
Subject matter of the dispute. Relevant facts 
1 By writ of summons registered on the roll at the Judecătoria Miercurea-Ciuc on 
25 September 2020, Pricoforest SRL brought an action (plângere 
contravențională) against the Inspectoratul de Stat pentru Controlul în Transportul 
Rutier (State Road Transport Inspectorate) challenging a report of an offence [...] 
and seeking the annulment thereof or, in the alternative, the replacement of the 
fine by a warning. 
2 In the statement of claim, it is stated that, on 2 September 2020, at 9.43, on county 
road No 125, at the 16 km mark, the combination of vehicles used by the applicant 
for the transport of timber, consisting in the vehicle bearing the registration 
number NT 89 YZO and the trailer bearing the registration number NT 69 YZO, 
driven by [...], was stopped by an inspection team from the State Road Transport 
Inspectorate which asked [the driver] for the tachograph card. Subsequently, the 
applicant was sent at its place of business the report of an offence at issue, which 
imposed on it a fine for exceeding, by 5 hours and 56 minutes, the maximum daily 
driving time in the period 17 to 18 August 2020 and for reducing by more than 2 
hours the daily rest period on 25 August 2020. 
[OR 2] 
3 The applicant has pointed out that O. G. (Ordonanța Guvernului) n. 37/2007 
(privind stabilirea cadrului de aplicare a regulilor privind perioadele de conducere, 
pauzele și perioadele de odihnă ale conducătorilor auto și utilizarea aparatelor de 
înregistrare a activității acestora) (Government Decree No 37/2007 establishing 
the framework for application of the rules on driving times, breaks and rest 
periods for drivers and on the use of devices for recording drivers’ activities) 
applies solely to drivers carrying out road transport operations that are governed 
by Regulation No 561/2006, and that that regulation provides for exemption from 
the application of its provisions for transport operations carried out with vehicles 
used or hired without a driver by forestry undertakings, for carrying goods as part 
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of their own entrepreneurial activity within a radius of up to 100 km from the base 
of the undertaking, and that that exemption has been enacted in national law. 
4 In the alternative, the applicant has requested that the fine be replaced by a 
warning. 
5 In law, the applicant relies on the legislation mentioned above.  
6 For evidential purposes, the applicant has lodged the report of an offence at issue 
as well as other documents and has requested that it be allowed to give oral 
evidence. 
7 The defendant Inspectorate has lodged a defence in which it requests the dismissal 
of the claim and confirmation of the report of an offence as lawful and well-
founded. 
8 In the grounds of its defence, it has stated, in substance, that the applicant has 
committed the offence of exceeding by 5 hours or more the maximum daily 
driving time of 10 hours and the offence of reducing by 2 hours or more the 
minimum period of reduced daily rest. The inspectorate has also stated that the 
official who drew up the report described the facts constituting the offence and set 
out all the circumstances relevant to the assessment of the gravity of the offence, 
that the report enjoys a presumption of legality and veracity and that the failure to 
observe the driving times and rest periods represents a grave social threat, because 
it jeopardises the safety of road traffic and of other road users, inasmuch as fatigue 
and lack of rest are the principal causes of road accidents. 
9 In law, that inspectorate has referred to Regulation (EC) No 561/2006, Decision 
2009/959/EU, H.G. (Hotărârea Guvernului, Government Decision) n. 1088/2011, 
O.G. (Ordonanța Guvernului, Government Decree) n. 26/2011, O.G. (Ordonanța 
Guvernului, Government Decree) n. 37/2007, OMTI (Ordinul ministrului 
transporturilor și infrastructurii, Decree of the Minister for Transport and 
Infrastructure) n. 980/2011, O.G. (Ordonanța Guvernului, Government Decree) n. 
27/2011, Regulation (EC) No 1071/2009, Regulation (EC) No 1072/2009 and 
Regulation (EC) No 1073/2009. 
10 For evidential purposes, the defendant has lodged written documents and 
photographic evidence. 
11 On 6 November 2020, the defendant lodged written observations in which it 
stated that the exception under Article 13(1)(b) of Regulation (EC) No 561/2006 
relates to transport operations carried out strictly within a radius of 100 km from 
the place where the business is based. In the present case, that is in the village of 
Pitiligeni in Neamț County, and the vehicle was stopped by the inspection team in 
the town of Bălan in Harghita County, which is 130 km away from the 
undertaking’s base. 
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12 The applicant has lodged a reply in which it has stated that it does not dispute the 
recordings on the tachograph card used by the driver […], although it does dispute 
the way in which the reporting official interpreted them, inasmuch as he used the 
report generated by the TachoScan Control program without taking into account 
the other documents which, had they been requested, would have led to the 
conclusion that the times recorded on the tachograph card related to certain types 
of transport operation that are exempt [under] the provisions of Article 13(1)(b) of 
Regulation No 561/2006. The applicant has also stated that the official who 
reported the offence equated the radius of 100 km with the distance by road 
between the two places mentioned above. 
13 As regards the facts, the referring court notes that it is apparent from the report of 
the offence [...] that, on 2 September 2020, at 9.43, on county road No 125, at the 
16 km mark, in the town of Bălan in Harghita County, the combination of vehicles 
consisting in the vehicle bearing the registration number NT 89 YZO and the 
trailer bearing the registration number NT 69 YZO, used by the applicant on the 
basis of a certified copy […] of a transport licence, driven by [...], who was 
transporting goods (timber) for consideration on the public highway, was stopped 
and checked. At the time, following the checks that were carried out and the 
analysis of the data downloaded from the driver’s tachograph card [OR 3] using 
the TachoScan Control program, it was found that the maximum daily driving 
time of 10 hours, when it is permitted to exceed the same, had been exceeded by 5 
hours or more, that is to say, between 5.15 on 17 August 2020 and 19.23 on 
18 [August] 2020, the driver had driven for 15 hours and 56 minutes, when the 
maximum daily driving time is 10 hours, thus giving rise to an excess of 5 hours 
and 56 minutes. This was due to the fact that, during that interval of time, the 
driver was legally required to take a daily rest of at least 9 hours, but the longest 
period was only 6 hours and 48 minutes. As a result of this, the applicant was 
given a fine of 9 000 Romanian lei (RON) (or RON 4 500 lei if paid within 15 
days). In addition, it was noted that the minimum period of reduced daily rest had 
been reduced by 2 hours or more, when daily rest may be reduced only to 9 hours: 
on 25 August 2020, between 00.54 and 4.24, the driver [...] had completed a 
period of daily rest of only 3 hours and 30 minutes, as opposed to the minimum 
daily rest of 9 hours he was legally required to take, resulting in a reduction of that 
period by 5 hours and 30 minutes. As a result of this, the applicant was given a 
fine of RON 4 000 lei (or RON 2 000 lei if paid within 15 days). 
14 The applicant has its place of business in the municipality of Pipirig in Neamț 
County. 
15 The applicant has placed on the file three delivery notes (for the transport of 
timber), one dated 17 August 2020, [for a delivery to] Târgu Neamț (30 km by 
road from the applicant’s base), another, dated 25 May 2020, from the 
municipality of Pipirig in Neamț County to the city of Rădăuți in Suceava County 
(approximately 120 km by road) and the third, dated 2 September 2020, from the 
municipality of Sândominic in Harghita County to the municipality of Bogdănești 
in Suceava County (approximately 180 km by road). 
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Applicable national provisions. Relevant national case-law 
Government Decree No 37/2007 establishing the framework for application of the 
rules on driving times, breaks and rest periods for drivers and on the use of 
devices for recording drivers’ activities: 
‘Article 1 
(1) This decree establishes the framework for application of the rules on driving 
times, breaks and rest periods for drivers carrying out road transport operations 
under Regulation (EC) No 561/2006 of the European Parliament and of the 
Council of 15 March 2006 on the harmonisation of certain social legislation 
relating to road transport and amending Council Regulations (EEC) No 3821/85 
and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 
(“Regulation (EC) No 561/2006”), and road transport operations under the 
European Agreement concerning the Work of Crews of Vehicles engaged in 
International Road Transport (AETR) (“the AETR Agreement”). 
(2) This decree establishes the framework for application of the rules on the use 
of devices for recording driving times, breaks and rest periods for drivers 
(“tachographs or digital tachographs”), as defined in Annex I and Annex IB to 
Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording 
equipment in road transport, as amended. 
(3) This decree establishes the framework for application of the provisions 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 [OR 4] 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 (EU No 165/2014”).  
[...] 
Article 2 
The road transport operations referred to in Article 13(1)(a) to (d), (f) to (h) 
and (i) to (p) of Regulation (EC) No 561/2006 shall be exempt, on the 
territory of Romania, from application of the provisions of that regulation.’ 
Reasons for which the referring court has made the request for a preliminary 
ruling 
16 As regards the first question, the referring court has decided to refer the matter to 
the Court of Justice because the concept of ‘radius’ may mean the distance up to 
which an action is performed from the centre from which it is commenced. In the 
case of such an interpretation, a transport operation may not exceed a radius of 
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100 km from the undertaking’s base, but the vehicle may well travel further than 
100 km if the journey is not in a straight line. However, an interpretation 
consistent with the spirit of Regulation No 561/2006 would be that the concept of 
‘radius’ must refer to the distance actually travelled by the vehicle (the journey 
distance), because the regulation is aimed at improving social conditions for the 
employees to whom it applies, as well as improving road safety in general. Those 
aims cannot be achieved if the concept of ‘radius’, for the purposes of Article 
13(1)(b), were to refer to transport operations carried out within a circle having a 
radius of 100 km and the undertaking’s base at the centre of that circle, because 
that would in practice allow transport operations to be carried out over a much 
greater distance by road, without leaving the circle, depending on the journey 
taken. 
17 The confusing nature of the rules is exacerbated by the other references to 
distance in the regulation: 
– Recital 24 uses [the expression] where the route covered does not exceed 50 
km; in this instance the EU legislature’s intention is clear, because it refers to 
the distance by road; 
– Article 3(a) concerns vehicles used for the carriage of passengers on regular 
services where the route covered by the service in question does not exceed 
50 kilometres; 
– Article 3(f) relates to specialised breakdown vehicles operating within a 
100 km radius of their base; 
– Article 5(2)(a) [provides that] the carriage by road is carried out within one 
Member State within a 50 kilometre radius of the place where the vehicle is 
based, including local administrative areas the centre of which is situated 
within that radius; 
– Article 16(1)(b) refers to regular international passenger services whose route 
terminals are located within a distance of 50 km as the crow flies from a border 
between two Member States and whose route length does not exceed 100 km. 
18 Thus, the legislature has made clear references in recital 24 and in Article 3(a) [...] 
to the journey (that is to say, to the distance by road actually travelled by the 
vehicle) and in Article 16(1)(b) [...] to the fact that the two route terminals in 
question must be within a distance of 50 km as the crow flies, as well as to the fact 
that the route must not exceed 100 km. By contrast, in other cases, the legislature 
refers to the concept of ‘radius’, which, interpreted literally, would mean that the 
provisions of the regulation would not be applicable regardless of the distance a 
driver travels and the time taken to cover that distance. That, in the view of the 
referring court, would not be consistent with the purpose of the rules. 
19 The dispute between the parties depends on the resolution of that question of law, 
since it is possible that the transport operations which the applicant maintains it 
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carried out, on the basis of the documents lodged, did not [OR 5] go outside a 
circle having a radius of 100 km and its centre at the applicant’s base, albeit the 
distance actually travelled by the vehicle could in some cases be greater than 100 
km. 
20 As regards the second question, that is justified by the fact that Regulation 
No 561/2006 contains provisions not only on daily rest but also weekly rest. In the 
context of the exemption of the situation referred to in Article 13(1)(b) of 
Regulation No 561/2006 from application of the regulation, by means of a 
provision of national law, and where transport operations are carried out within 
the scope of that provision, some of which remain within the radius of 100 km 
from the undertaking’s base and others of which exceed that radius, the question 
arises as to whether the regulation may be applied only in relation to the 
operations exceeding that radius. In particular, it is not inconceivable that the 
regulation should apply only in part, in respect of those days on which such 
transport operations are carried out, having regard to daily rest times. However, 
such partial application would make it impossible to check weekly rest times. 
Therefore, the exception under Article 13(1)(b) of Regulation No 561/2006 should 
instead be interpreted either as meaning that an undertaking that usually carries 
out transport activities without going beyond the radius of 100 km is exempt from 
application of the regulation even in respect of transport operations that do exceed 
that radius, or alternatively as meaning that the fact of carrying out at least some 
transport operations beyond that radius causes the regulation to apply 
automatically in relation to all transport operations carried out by the undertaking 
in question. 
21 In the present case, although the offences under consideration concern a failure to 
observe daily driving times and daily rest periods, the answer to the question 
referred will affect the outcome of the dispute, since the total exclusion from 
application of the regulation of all the transport operations carried out in this case, 
including those beyond the radius of 100 km, would lead to a finding that the 
applicant has no liability.