61978C0128
OPINION OF MR ADVOCATE GENERAL MAYRAS
DELIVERED ON 18 JANUARY 1979 (
1
)
Mr President,
Members of the Court,
Regulation No 543/69 of the Council, which was adopted under Article 75 of the EEC Treaty, was intended to harmonize certain social legislation relating to road transport, in particular as regards the conditions of work of crews and to improve road safety.
It made it compulsory for crew members to keep an individual control book intended to ensure compliance with the daily and weekly driving and rest periods.
However, when the regulation was adopted it was already known that the individual control book would soon be replaced by automatic recording equipment, the tachograph.
This is why on a proposal from the Commission the Council adopted on 20 July 1970 Regulation No 1463/70 making it compulsory, subject to certain exceptions, to install and use duly-approved tachographs in vehicles used for the carriage of passengers or goods by road and registered in a Member State.
This became compulsory with effect from 1 January 1975 for vehicles registered for the first time on or after that date and for any vehicle used for the carriage of dangerous goods, whatever the date of its registration.
It was only with effect from 1 January 1978 that all other vehicles had to be provided with such recording equipment.
Article 21 (1) of the regulation provides:
‘Member States shall, in good time and after consulting the Commission, adopt such laws, regulations or administrative provisions as may be necessary for the implementation of this regulation.
Such measures shall cover, inter alia, the reorganization of, procedure for and means of carrying out, checks on compliance and the penalties to be imposed in case of breach.’
The provisions of Regulation No 1463/70 were first modified to a certain extent by a subsequent Regulation No 1787/73 in order to take account of the fact that tachographs complying with certain national laws had already been in use before 1 January 1975.
As regards the new Member States, and in particular the United Kingdom, the Act of Accession (Article 133 in conjunction with point 4 of Title III of Annex VII) postponed for one year the implementation of Regulation No 1463/70, which was thus to enter into force on 1 January 1976.
The Commission takes the view that the United Kingdom has not completely fulfilled its obligations under the Community rules on the use of tachographs in that, on the one hand, it has not complied with the consultation procedure provided for by Article 21 of the regulation and, on the other hand, it has introduced only a voluntary scheme for the use of the recording equipment, both as regards national and international transport.
This is why, after an exchange of correspondence between the Commission's Directorate General for Transport and the United Kingdom Permanent Representation on 30 January and 21 February 1976, the Commission confirmed on the following 25 June to the Secretary of State for Foreign and Commonwealth Affairs that a ‘voluntary’ scheme in the matter at issue was insufficient for the proper application of Regulation No 1463/70.
It therefore requested the United Kingdom Government to modify the draft statutory instrument to make it comply with the applicable Community law.
That initiative did not obtain the desired result for the British Government clearly confirmed its intention not to conform fully to the Community provisions for practical, economic and social reasons.
In these circumstances by a reasoned opinion dated 15 February 1978 the Commission invited the United Kingdom to take all the measures necessary to comply with Regulation No 1463/70. When the British Government replied on the following 14 April that it did not intend to take the measures required by the Commission within the period laid down, the Commission brought the present application before the Court of Justice under Article 169 of the Treaty for failure by the United Kingdom to fulfil its obligations.
The United Kingdom's defence is centred on two issues.
In the first place it refuses to admit that it has not consulted the Commission in the circumstances laid down in Article 21 of the regulation of the Council in question. In this respect it refers to the fact that as early as 2 September 1975, that is to say even before the compulsory introduction of tachographs, it sent a memorandum to the Commission in which it listed the ‘serious obstacles’ to the compulsory introduction of tachographs at a national level and states that in its letter of 25 February 1976 its Permanent Representative informed the Commission's Directorate General for Transport of all the measures proposed by the Government and drew the Commission's attention to the fact that the national regulations were designed to introduce a voluntary scheme covering both international and national traffic and capable of allowing the use for tachographs in place of the control books previously provided for.
Detailed rules were adopted for the supply, use, inspection and preservation of tachograph charts for the purposes of drivers' hours enforcement together with appropriate penalties.
In the same way detailed arrangements were made for the installation, calibration and sealing of the equipment.
The regulation so drafted obviously did not comply with the mandatory requirements of Regulation No 1463/70; accordingly the Commission could not help but reject it, whilst joining to its reply observations which would have enabled the United Kingdom Government, had it been so minded, to make new proposals, this time in accordance with Article 21 of the regulation of the Council.
The defendant itself admits that not only has it done nothing of the sort but that it is of the opinion that in the present case the ‘objectives’ determined by the Council would be more easily achieved in the United Kingdom by the provisions adopted by the British authorities.
In my opinion this argument is untenable. The Commission does not maintain that the United Kingdom has completely failed to consult it on the implementation of Regulation No 1463/70, but it does rightly take the view that there was not due consultation within the meaning of Article 21, since such consultation as there was never related to the full application of the regulation but only to partial measures involving crucial omissions. This observation moreover is clearly based on the fact that the defendant Government, as it recognizes, has deliberately refused fully to implement the regulation.
I come therefore to the conclusion that the first complaint made by the Commission is established and that the United Kingdom has failed, under this head alone, partially at least, to fulfil the obligations which were legally imposed on it by Community provisions which are binding in their entirety and directly applicable in all Member States according to Article 189 of the Treaty.
As regards the failure to fulfil the obligations actually to implement the provisions of Regulation No 1463/70 on 1 January 1976 at the latest the United Kingdom, while recalling that it supported the objectives of the common policy on road transport, especially as regards the improvement of road safety and the promotion of social progress of workers, mentions a number of considerations relating to the practical consequences which in its opinion the obligation to install tachographs would not have failed to entail.
The defendant first of all considers that having regard to the declared opposition of sections of the industry and in particular the crews it was not possible to discount a serious risk of strikes in an important and critical sector of the economy.
It adds that the cost of the operation (£ 100 million for the installation of the recording apparatus and approximately £ 40 million per annum for maintenance) appears to be prohibitive in relation to the advantages which might ensue.
In the third place, the British Government states that in fact since vehicles engaged in international transport have to be equipped with tachographs the other Member States of the Community are in no way prejudiced by the fact that the installation of such recording equipment is not compulsory under domestic legislation in respect of transport over national territory.
None of these arguments appears to me to be valid.
It is appropriate to recall once again that the case has arisen in the context of the application of a regulation, which is binding as regards all its provisions and applicable on a specific date (1 January 1976) to the United Kingdom, at least as regards certain classes of vehicles.
Difficulties of a domestic nature, whether political, economic, financial or social, cannot validly be relied upon for not implementing such a regulation.
This has been the established ruling of the Court and has recently been reaffirmed in the judgment of 11 April 1978 in Case 100/77, Commission v Italian Republic [1978] ECR 879, where it was stated that ‘the defendant, who does not deny the failure to fulfil obligations under the Treaty of which it is accused, cannot rely upon domestic difficulties or provisions of its national legal system… for the purpose of justifying a failure to comply with obligations and periods resulting from Community directives.’
This reasoning applies, a fortiori, to the application of a regulation.
In maintaining that its conduct has in no way adversely affected the other Member States and the Community itself the United Kingdom's case implies that a Member State has the power, even as regards a regulation, to assess the extent to which it must fulfil the obligations incumbent upon it under the Treaty and that it may be released from those obligations when its attitude involves no adverse effect upon its partners or the Community.
Article 189 of the Treaty however obviously prevents such an interpretation, which would jeopardize the whole system of the compulsory application of regulations which applies to all Member States.
In addition, there is nothing less evident than the absence, alleged by the United Kingdom, of any adverse effect. The conditions of competition between road hauliers of the different Member States are necessarily affected if in one of those States the domestic rules allow hauliers to escape the costs of installing and using tachographs, even if only in respect of domestic transport.
Let me add that it is apparent from the reply to the question put by the Court that the trade organizations of the six original Member States of the Community were not opposed in principle to the substitution of the tachograph for the individual control book originally provided for by Regulation No 543/69. At the most they were concerned that the dates on which the use of such equipment was to be required should be postponed as regards certain categories of vehicles and that other categories should quite simply be exempted.
Those requests have finally been partially satisfied by the moderating amendments which the Council has most recently made to Regulation No 1463/70 by Regulation No 2828/77.
As regards Denmark the Commission feels able to point out that no serious difficulty has arisen, albeit that the government of that country actively supported the introduction of Regulation No 2828/77.
In Ireland, on the other hand, opposition from hauliers and their employees led the government to postpone adoption of the measures necessary to apply Regulation No 1463/70 to domestic transport. However, following the intervention of the Commission the Irish Government has finally accepted the position and stated itself to be disposed to take the necessary measures and a programme for the implementation of the provisions has been agreed with the Commission.
Finally, only the United Kingdom has taken and maintained a negative decision by refusing to make the use of tachographs compulsory. It has not only made its position clearly known to the Commission but has also published it and unambiguously indicated to the trade unions concerned its intention not to adopt the measures, and in particular the legislation, necessary for this end, at least as regards domestic transport.
The same position has been adopted before Parliament and on television.
We are thus faced with an obvious refusal, publicly expressed and confirmed, by a Member State to fulfil, at least partially, the obligations which have been legally imposed upon it.
As from the time when the Commission, as it was entitled to do, brought an application under Article 169 of the Treaty for failure to fulfil obligations, I take the view, contrary to that of the Government of the United Kingdom, that the Treaty does not allow the Court to exempt that Member State from all or part of the said obligations, even for reasons appertaining to natural justice.
Such exemption would be contrary to the very principle of equality of treatment between Member States.
Further, the submissions made in the statement of defence put forward by the defendant Government do not show that the United Kingdom has made a serious effort to fulfil its obligations.
My opinion, therefore, is that the Court should hold that by refusing to adopt, within the period which was prescribed for it, the laws, regulations or administrative provisions required for the purpose of applying Regulation No 1463/70. of the Council on the introduction of recording equipment in road transport, including national transport, and by failing to consult the Commission on the measures in question, the United Kingdom has failed to fulfil the obligations incumbent upon it under the Treaty and more particularly those incumbent upon it under Article 23 (1) of the said regulation as amended.
It is also my opinion that the Government of the United Kingdom should be ordered to pay the costs.
(
1
)	Translated from the French