OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 2 February 2017(1)
Case C‑102/16
Vaditrans BVBA
v
Belgische Staat
(Request for a preliminary ruling from the Raad van State (Council of State, Belgium))
(Reference for a preliminary ruling — Road transport — Regulation (EC) No 561/2006 — Driver’s rest periods — Article 8(6) — Article 8(8) — Article 19 — Circumstances in which rest period may be taken inside the vehicle — Charter of Fundamental Rights of the European Union — Article 49)
1.        The main issue raised by this reference for a preliminary ruling, submitted to the Court by the Raad van State (Council of State, Belgium), concerns whether Article 8(6) and (8) of Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport (‘Regulation No 561/2006’) (2) precludes drivers from taking regular weekly rest periods provided for in that Regulation inside the vehicle. The referring court also wishes to know whether certain provisions of Regulation No 561/2006 violate the principle of legality of criminal offences and penalties as enshrined in Article 49 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2.        It should not be assumed that this case is concerned with mere technical points of EU road transport policy. It entails consideration of complex social issues that are highly relevant to the daily lives of Union citizens and the Member States, such as keeping the roads of Europe safe and protecting workers.
I.      Legal framework
A.      EU law
3.        Article 8(6) and (8) of Regulation No 561/2006 provides:
‘6.      In any two consecutive weeks a driver shall take at least:
–        two regular weekly rest periods, or
–        one regular weekly rest period and one reduced weekly rest period of at least 24 hours. However, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question.
A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period.
…
8.      Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.’
4.        Article 19(1) of Regulation No 561/2006 provides:
‘1.      Member States shall lay down rules on penalties applicable to infringements of this Regulation and Regulation (EEC) No 3821/85 and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive and non-discriminatory. ...’
B.      National law
5.        The relevant provisions of national law are laid down in the Royal Decree of 19 April 2014 ‘amending the Royal Decree of 19 July 2000 on the levying and lodging of a sum of money upon the finding of certain offences in the transport of persons and goods by road’(3) (‘the contested decree’). (4)
6.        Article 2 of the contested decree provides:
‘In Appendix I of Annex 1 to [the Royal Decree of 19 July 2000], subparagraph (c) Driving times and rest periods is supplemented with a point 8, which reads:
“8.
The regular weekly rest period, which is mandatory at the time of inspection, is taken on board the vehicle.
- Regulation (EC) No 561/2006, Article 8(6) and 8(8)
- ERTA, Article 8
EUR 1 800’”
II.    The main proceedings and the questions referred
7.        Vaditrans BVBA (‘the applicant’) is a Belgian road transport company.
8.        On 8 August 2014, the applicant lodged an action before the Raad van State (Council of State, Belgium) in which it sought the annulment of the contested decree. Article 2 of the contested decree imposes a fine of EUR 1 800 for non-compliance with the prohibition on drivers taking their regular weekly rest period on board the vehicle.
9.        In support of its action, the applicant disputes the interpretation of Article 8(6) and (8) of Regulation No 561/2016 that is implicit in Article 2 of the contested decree. That provision of the contested decree is based on the assumption that, pursuant to Regulation No 561/2006, the taking of a regular weekly rest period cannot occur in the vehicle. The applicant asserts that such an interpretation is based on a contrario reasoning that breaches the principle of legality in criminal proceedings.
10.      The Belgian State (‘the defendant’) contends that Article 8(6) and (8) of Regulation No 561/2016 precludes the taking of a regular weekly rest period provided for in that Regulation in the vehicle and that Article 2 of the contested decree does not breach the principle of legality in criminal proceedings.
11.      It was in these circumstances that the Raad van State referred the following questions to the Court of Justice for a preliminary ruling:
‘1.      Must Article 8(6) and (8) of 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 be interpreted as meaning that the regular weekly rest periods referred to in Article 8(6) of the same regulation may not be spent inside the vehicle?
2.      If the answer to the first question is in the affirmative, does Article 8(6) and (8) of Regulation No 561/2006, read in conjunction with Article 19 of the same regulation, then breach the principle of legality in criminal proceedings as expressed in Article 49 of the Charter of Fundamental Rights of the European Union in so far as the abovementioned provisions of Regulation No 561/2006 do not expressly provide for the prohibition on spending the regular weekly rest periods referred to in Article 8(6) of the same regulation inside the vehicle?
3.      If the answer to the first question is in the negative, does Regulation No 561/2006 then permit Member States to lay down a prohibition in their national law on spending the regular weekly rest periods referred to in Article 8(6) of the same regulation inside a vehicle?’
12.      Written observations were submitted to the Court by the applicant, the Austrian, Belgian, Estonian, French, German and Spanish Governments, the European Parliament, the Council and the Commission.
III. Assessment
13.      I have come to the conclusion that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that drivers may not take their weekly rest periods provided for in that Regulation inside the vehicle. I have also come to the conclusion that Article 8(6) and (8), read in conjunction with Article 19, of Regulation No 561/2006 does not violate the principle of legality of criminal offences and penalties as enshrined in Article 49 of the Charter. Following from these conclusions, my answer to the third question will only become relevant if the Court disagrees with my answer to the first question. My reasoning will be detailed below, but I will first address certain preliminary issues on admissibility that have been raised by the Council and the applicant.
A.      Admissibility
14.      The Council queries the admissibility of the second question on the grounds that the referring court does not, in accordance with Article 94(c) of the Rules of Procedure of the Court of Justice, explain why it has doubts as to the validity of the relevant provisions of Regulation No 561/2006 or why a preliminary ruling on the validity of those provisions would resolve the dispute in the main proceedings. In addition to this, the applicant questions the relevance of the third question.
15.      In my view, the questions referred are admissible for the following reasons.
16.      It is well-established under the Court’s case-law that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (5)
17.      Moreover, it is appropriate to recall that under the Court’s case-law, and as reflected in Article 94(c) of the Rules of Procedure of the Court of Justice, (6) it follows from the spirit of cooperation underlying the preliminary ruling procedure that it is essential that the national court sets out in its order for reference the precise reasons why it considers a reply to the questions concerning the interpretation or validity of certain provisions of EU law to be necessary to enable it to give judgment. It is therefore important that the national court should set out, in particular, the precise reasons which led it to question the validity of certain provisions of EU law and the grounds of invalidity which appear to it capable of being upheld. (7)
18.      In the present case, the referring court states that it needs an interpretation of the relevant provisions of Regulation No 561/2006 in order to adjudicate one of the pleas put forward by the applicant.
19.      In doing so, the referring court takes note of the third paragraph of Article 267 TFEU, which obliges a national court or tribunal against whose decisions there is no remedy under national law, such as the Raad van State, to refer questions concerning the interpretation and validity of EU law to the Court of Justice where it considers that a decision on the question is necessary for it to give judgment.
20.      The referring court states that, depending on the Court’s ruling on the interpretation of the relevant provisions of Regulation No 561/2006, ‘the question arises’ as to whether those provisions breach the principle of legality in criminal proceedings as recognised in Article 49 of the Charter, in so far as they do not expressly provide for the prohibition on spending the regular weekly rest periods inside the vehicle.
21.      Accordingly, the referring court has set out in sufficient detail the reasons which led it to raise the question of the validity of the relevant provisions of Regulation No 561/2006 (8) and the grounds of invalidity which appear to it to be capable of being upheld, so as to enable the Court to provide a useful answer.
22.      Furthermore, the Belgian, French, German and Spanish Governments and the European Parliament, the Council and the Commission were able to state their views effectively on the question of validity submitted to the Court.
23.      Finally, there is no suggestion in the order for reference that the questions bear no relation to the actual facts of the main action or its purpose or relate to a purely hypothetical problem. Consequently, there are insufficient grounds to rebut the presumption of relevance of the reference.
24.      In view of the foregoing considerations, I conclude that the questions referred by the Raad van State in this case are admissible.
B.      Question 1
25.      The Court has yet to squarely address the question whether Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that the regular weekly rest periods for drivers referred to in Article 8(6) may be spent inside the vehicle. (9)
26.      The Austrian, Belgian, French and German Governments and the Commission argue that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that a driver may not spend regular weekly rest periods inside the vehicle, (10) whereas the applicant and the Estonian and Spanish Governments take the opposite view.
27.      According to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also its context and the aims pursued by the rules of which it is part. (11) The origins of a provision of EU law may also provide information relevant to its interpretation. (12)
28.      It is on this basis that I have reached the conclusion that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that drivers may not spend their regular weekly rest periods inside the vehicle. My reasons for so concluding are as follows.
1.      Wording
29.      As can be seen from paragraph 3 above, the first paragraph of Article 8(6) of Regulation No 561/2006 lays down the rule that in any two consecutive weeks, a driver must take at least two regular weekly rest periods or one regular weekly rest period and one reduced weekly rest period, in which case certain requirements must be satisfied. The second paragraph of Article 8(6) of Regulation No 561/2006 further stipulates: ‘A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period.’
30.      Article 8(8) of Regulation No 561/2006 provides: ‘Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.’
31.      Article 8(6) and (8) of Regulation No 561/2006 should be read in the light of Article 4 of this Regulation, which sets out the definitions of the terms used therein.
32.      Article 4(f) of Regulation No 561/2006 defines ‘rest’ as ‘any uninterrupted period during which a driver may freely dispose of his time’.
33.      Article 4(g) of Regulation No 561/2006 defines the term ‘daily rest period’ as ‘the daily period during which a driver may freely dispose of his time’ and states that it covers a ‘regular daily rest period’ and a ‘reduced daily rest period’, for which specific definitions are laid down therein.
34.      Article 4(h) of Regulation No 561/2006 defines the ‘weekly rest period’ as ‘the weekly period during which a driver may freely dispose of his time’ and states that it covers a ‘regular weekly rest period’ and a ‘reduced weekly rest period’. Specifically, a ‘regular weekly rest period’ means ‘any period of rest of at least 45 hours’, whereas a ‘reduced weekly rest period’ means ‘any period of rest of less than 45 hours, which may, subject to the conditions laid down in Article 8(6), be shortened to a minimum of 24 consecutive hours’.
35.      Article 4(g) and (h) of Regulation No 561/2006 therefore sets forth a distinction in respect of the use of the terms regular and reduced daily and weekly rest periods in this Regulation.
36.      This is evident in Article 8(6) of Regulation No 561/2006, which refers to both regular and reduced weekly rest periods in the first paragraph. In contrast, the second paragraph of Article 8(6) of Regulation No 561/2006 refers to a ‘weekly rest period’, thereby encompassing both.
37.      This is also evident in Article 8(8) of Regulation No 561/2006. By virtue of the reference to ‘daily rest periods’ in Article 8(8), which covers both regular and reduced daily rest periods, alongside ‘reduced weekly rest periods’, the wording of this provision strongly suggests that regular weekly rest periods are excluded from its scope. It would seem that if the Union legislature intended to cover regular weekly rest periods as well as reduced weekly rest periods in Article 8(8), it would have used the term ‘weekly rest period’ to encapsulate both.
38.      To interpret Article 8(8) of Regulation No 561/2006 as covering a regular weekly rest period would therefore make the wording of Article 8(8) illogical and superfluous. It would also be illogical to interpret Article 8(6) and (8) of Regulation No 561/2006 as allowing a driver to spend regular weekly rest periods inside the vehicle under less stringent conditions than those that must be satisfied in the case of daily rest periods and reduced weekly rest periods.
39.      Contrary to the applicant’s arguments, an interpretation of Article 8(8) of Regulation No 561/2006 to the effect that a driver may not take regular weekly rest periods inside the vehicle does not contravene the definition of ‘rest’ set forth in Article 4(f) of this Regulation by limiting the means by which the driver may freely dispose of his time. That language is also found in the definitions of daily and weekly rest periods in paragraphs (g) and (h) of that same Article, which is carried through in the rules set forth in Article 8(6) and (8) of Regulation No 561/2006.
40.      Accordingly, it may be inferred that by only providing for daily rest periods and reduced weekly rest periods in the text of Article 8(8) of Regulation No 561/2006, Article 8(6) and (8) of this Regulation should be interpreted as meaning that a driver may not take regular weekly rest periods referred to in Article 8(6) inside the vehicle.
41.      Put another way, since Article 8(8) of Regulation No 561/2006 expressly provides for daily rest periods and reduced weekly rest periods, this implies a contrario that a driver may not take regular weekly rest periods inside the vehicle.
42.      Such a contrario reasoning is not without precedent in the Court’s case-law concerning Regulation No 561/2006. For example, in Eurospeed, (13)the Court considered that since the first sentence of Article 19(2) of Regulation No 561/2006 expressly provides that the possibility of the competent national authorities imposing a penalty on an undertaking and/or a driver for an infringement of this Regulation exists ‘even where that infringement has been committed on the territory of another Member State or of a third country,’ that implies a contrario that a Member State is in any event entitled to impose a penalty either on an undertaking or on a driver or on both for an infringement committed on its territory.
2.      Origins
43.      According to the Court’s case-law, the origins of an EU measure or a provision thereof are helpful for discerning the Union legislature’s intent underlying the measure or particular provision and thus for confirming the interpretation reached. (14) This is so, particularly where there has been a change made to the provision of EU law in question during the decision-making process from which the Union legislature’s intent may be inferred. (15)
44.      In the present case, the origins of Article 8(8) of Regulation No 561/2006 provide strong evidence of the Union legislature’s intent to exclude regular weekly rest periods from the scope of this provision.
45.      The Commission’s initial proposal culminating in Regulation No 561/2006 (16) provided: ‘Daily and weekly rest periods may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.’ (17)
46.      In its first reading, the European Parliament deleted the reference to weekly rest periods in the text of that provision. (18) The justification was: ‘Daily rest periods, but not weekly rest periods, may be spent in a stationary vehicle. To allow weekly rest periods to be so spent would represent a deterioration compared to the current regulation and would be inadequate regarding drivers’ hygiene and well-being.’ (19)
47.      In its amended proposal, the Commission adopted the ‘compromise solution’ of proposing that only reduced weekly rest taken away from base could be spent in the vehicle. (20)
48.      In its common position, the Council took up this approach, indicating: ‘as a compromise, Council adopted a provision stating that only reduced weekly rest periods may be taken in a vehicle’. (21)
49.      In its second reading, the Parliament again changed the provision to refer only to daily rest periods, indicating: ‘The possibility of the driver taking reduced weekly rest periods in the vehicle has been deleted’. (22)
50.      In its opinion on those amendments, the Commission continued ‘to consider that a reduced weekly rest period may be taken in a suitably equipped vehicle, as vehicle design has improved considerably over the past 20 years’. (23)
51.      In the joint text approved by the Conciliation Committee, the wording of what is now Article 8(8) of Regulation No 561/2006 was taken up. (24)
52.      It may be inferred from the rejection of the Commission’s initial proposal and the agreement to include only daily rest periods and reduced weekly rest periods away from base that the Union legislature intended to exclude regular weekly rest periods from the scope of Article 8(8) of Regulation No 561/2006.
3.      General scheme and context
53.      As discussed in my Opinion in Pinckernelle, (25) the general scheme and context of a provision of EU law includes, inter alia, the examination of the context of the provision at issue in relation to other provisions of the same EU measure and of other EU measures that are related or linked in some substantive way to the EU measure in question.
54.      First, the examination of other paragraphs of Article 8 of Regulation No 561/2006 (26) and certain recitals in the Preamble (27) to this Regulation evidence the Union legislature’s intention to distinguish between the terms ‘regular weekly rest period’ and ‘reduced weekly rest period’ and the general term ‘weekly rest period’.
55.      Second, with respect to related measures, the Estonian Government contends that the interpretation of Article 8(6) and (8) of Regulation No 561/2006 to the effect that a driver may be allowed to take regular weekly rest periods inside the vehicle is supported by Directive 2006/22/EC (‘Directive 2006/22’) (28) and certain measures adopted by the Commission pursuant to this Directive. This is so, it is argued, because the annexes to those measures do not refer to an infringement of Article 8(6) and (8) of Regulation No 561/2006 on the grounds that a driver takes regular weekly rest periods inside the vehicle.
56.      Regulation No 561/2006 is one of four interrelated EU legislative measures establishing social rules in road transport and their enforcement. (29) Directive 2002/15/EC (30) sets forth complementary provisions on the organisation of the working time of persons performing mobile road transport activities; Regulation (EU) No 165/2014 (‘Regulation No 165/2014’) (31) concerns tachographs (recording equipment) in road transport; and Directive 2006/22 (32) determines minimum conditions for the enforcement of these rules.
57.      Directive 2006/22 contained an Annex III with a ‘non-exhaustive’ list of what was to be regarded as an infringement of what are now Regulation No 561/2006 and Regulation No 165/2014. This Annex III was subsequently replaced by a new Annex in Commission Directive 2009/5/EC (33), which set forth ‘guidelines on a common range of infringements’ against these two Regulations, which were divided into categories according to their gravity. (34) Commission Regulation (EU) 2016/403 (35) further amends Annex III to Directive 2006/22 by changing the level of seriousness of certain infringements. (36)
58.      It follows that neither Directive 2006/22 nor subsequent measures adopted so far on the basis of that Directive aim to lay down in a comprehensive or exhaustive fashion all possible infringements of Regulation No 561/2006. Therefore, in my view, an argument based on the absence of a reference to an infringement of Article 8(6) and (8) of Regulation No 561/2006 in these measures on the grounds that a driver may not take regular weekly rest periods inside the vehicle is not convincing.
4.      Purpose
59.      According to recital 17 and Article 1, Regulation No 561/2006 aims to improve the working conditions of employees in the road transport sector, to improve general road safety and to harmonise the conditions of competition in road transport. (37)
60.      As indicated in the submissions of the Belgian, French and German Governments and the Commission, the interpretation of Article 8(6) and (8) of Regulation No 561/2006 as excluding a driver from taking regular weekly rest periods inside the vehicle contributes to the achievement of this Regulation’s aims to improve drivers’ working conditions and road safety. This is illustrated by the Parliament’s justification for deleting weekly rest periods in the initial proposal so as not to lead to a deterioration of working conditions. (38)
61.      The applicant and the Estonian Government assert that the result of such an interpretation of Article 8(6) and (8) of Regulation No 561/2006 is that a driver may suffer worse conditions than would be the case if he were able to spend regular rest periods inside the vehicle and that such a requirement is difficult to prove.
62.      Regulation No 561/2006 does not expressly lay down rules regarding how a driver may spend regular weekly rest periods. Issues such as those alleged above may be addressed by the Member States or in the context of the EU decision-making process as the case may be. However, they do not provide grounds for failing to comply with the rules governing drivers’ rest periods in Regulation No 561/2006.
63.      In fact, the present issue before the Court was aired as part of the public consultation on the enhancement of EU social legislation in road transport, launched by the Commission from 5 September 2016 to 11 December 2016. (39)
64.      A study on the ex-post evaluation of EU social legislation in road transport and its enforcement (40) assessed the Member States’ application of Article 8(8) of Regulation No 561/2006. (41) In an Annex (42), this study indicated that of 24 Member States surveyed (43), in 19 Member States, drivers are not allowed to spend their regular weekly rest inside the vehicle, (44) whereas in 8 Member States, drivers are allowed to do so (45) (yet, in 3 Member States, both answers apply). (46)
65.      This comparative survey illustrates that an interpretation of Article 8(6) and (8) of Regulation No 561/2006 as meaning that a driver may not take regular weekly rest periods inside the vehicle corresponds to the approach taken in a majority of the Member States.
66.      In view of all of the foregoing considerations, I conclude that Article 8(6) and (8) of Regulation No 561/2006 should be interpreted as meaning that a driver may not take regular weekly rest periods referred to in Article 8(6) inside the vehicle.
C.      Question 2
67.      If the Court answers the first question to the effect that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that a driver may not take regular weekly rest periods inside the vehicle, the second question submitted by the referring court essentially asks whether Article 8(6) and (8), read in conjunction with Article 19, of Regulation No 561/2006 are invalid for violating the principle of legality of criminal offences and penalties as reflected in Article 49 of the Charter, in so far as those provisions do not expressly provide that a driver may not spend regular weekly rest periods inside the vehicle.
68.      The applicant and the Spanish Government contend that the second question should be answered in the affirmative. In particular, the applicant submits that, in the absence of explicit rules to that effect, an interpretation of Regulation No 561/2006 precluding a driver from taking regular weekly rest periods inside the vehicle amounts to an a contrario interpretation that is prohibited by the principle of legality.
69.      The Belgian, French and German Governments, the European Parliament, the Council and the Commission submit that the aforementioned provisions are not invalid on this ground because it is for the Member States to establish the relevant penalties for infringements of Regulation No 561/2006. Therefore, this is a matter of national, not EU, law.
70.      I consider that the arguments challenging the validity of Article 8(6) and (8), read in conjunction with Article 19, of Regulation No 561/2006 with regard to the principle of legality of criminal offences and penalties as enshrined in Article 49 of the Charter should be rejected. My reasoning is as follows.
71.      The first sentence of Article 49(1) of the Charter provides: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed.’ (47)
72.      Under the Court’s case-law, the principle of legality of criminal offences and penalties (nullum crimen, nulla poena sine lege), which is guaranteed by Article 49 of the Charter and is a specific expression of the general principle of legal certainty, requires that EU rules must clearly define offences and the penalties which they attract. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. (48)
73.      The principle that offences and penalties must be defined by law cannot therefore be interpreted as precluding the gradual, case-by-case clarification of the rules on criminal liability by judicial interpretation, provided that the result was reasonably foreseeable at the time the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time. (49) I consider that an interpretation of Article 8(6) and (8) of Regulation No 561/2006 to the effect that a driver may not take regular weekly rest periods inside the vehicle meets these parameters.
74.      Having said that, in any event I take the view that clarity is required with respect to the measure that is being challenged and the consequences which flow from this with respect to the application of the Charter.
75.      In the present case, Regulation No 561/2006 does not compel the Member States to impose criminal sanctions in the event of its breach. Rather, the Member States are afforded the option of punishing infringements of Regulation No 561/2006 by reference to a criminal penalty. (50)
76.      That being so, on the facts at hand Article 49 of the Charter cannot be called in aid to challenge the validity of Article 8(6) and (8), read in conjunction with Article 19, of Regulation No 561/2006. (51) However, in circumstances in which a Member State has elected to implement Regulation No 561/2006 with criminal sanctions, Article 51(1) of the Charter necessarily obliges the Member State concerned to comply with all provisions of the Charter, including Article 49 and the principle of legality of criminal offences and penalties enshrined therein.
77.      The referring court did not raise the question of the compatibility of Article 2 of the contested decree with the principle of legality of criminal offences and penalties as reflected in Article 49 of the Charter. This issue therefore falls outside the ambit of the order for reference in the present case. Whether the pertinent national laws comply with the principle of legality of criminal offences and penalties is for the referring court to determine. That court is of course able to make a further reference under Article 267 TFEU.
D.      Question 3
78.      If the Court answers the first question to the effect that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that a driver may take regular weekly rest periods inside the vehicle, the third question submitted by the referring court essentially asks whether Regulation No 561/2006 permits national rules, such as Article 2 of the contested decree, which prohibit a driver from doing so.
79.      In section III.B of my Opinion, I have reached the conclusion that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that a driver may not take regular weekly rest periods inside the vehicle. If the Court answers the first question in this way, it follows that there is no need for the Court to provide an answer to this question.
80.      Nevertheless, I will give my view on the third question in the alternative.
81.      The applicant, the Estonian and Spanish Governments and the Commission submit that this question should be answered in the negative. The Spanish Government considers that it lies with the Union legislature to lay down such a prohibition and that the Member States may not do so autonomously. The Estonian Government and Commission underline, in particular, that such a prohibition does not fall within the limited possibilities afforded to the Member States under Regulation No 561/2006 and to allow each Member State to adopt particular rules on the matter would contravene the Regulation’s aim to harmonise the conditions of competition in road transport.
82.      The Belgian and German Governments contend that this question should be answered in the affirmative. In particular, the Belgian Government emphasises that it remains competent to lay down such a prohibition, which is justified on the grounds that it serves the important interests of protecting workers, for example as a measure against social dumping, and ensuring road safety. The German Government points out that the Member States have the competence to adopt rules to prevent dangerous or abusive situations, such as those involving rest areas or parking facilities for drivers, and that such a prohibition constitutes a useful complement to achieve the Regulation’s aims of protecting drivers and improving road safety.
83.      I take the view that, if Article 8(6) and (8) of Regulation No 561/2006 is interpreted as meaning that where a driver chooses to do so, he may take weekly (as well as daily) rest periods inside the vehicle, the Member States are not permitted to lay down in their national law a prohibition against a driver taking regular weekly rest periods inside the vehicle. Under these circumstances, such a prohibition would be in direct contravention of that rule as interpreted by the Court, namely by precluding a driver from doing something that is allowed by virtue of the rules set down in Article 8(6) and (8) of Regulation No 561/2006. (52)
84.      Accordingly, I conclude that if the Court decides that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that a driver may take regular weekly rest periods inside the vehicle, national rules prohibiting a driver from doing so, such as Article 2 of the contested decree, are precluded by Regulation No 561/2006.
IV.    Conclusion
85.      In light of the foregoing considerations, I propose that the Court should answer the questions referred by the Raad van State (Council of State, Belgium) as follows:
1.      Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that a driver may not take regular weekly rest periods referred to in Article 8(6) of this Regulation inside the vehicle.
2.      The examination of the second question has disclosed no factor of such a kind as to affect the validity of Article 8(6) and (8), read in conjunction with Article 19, of Regulation No 561/2006, in the light of the principle of legality of criminal offences and penalties as expressed in Article 49 of the Charter.
3.      There is no need to answer the third question.
In the alternative, on the basis that Article 8(6) and (8) of Regulation No 561/2006 is to be interpreted as meaning that a driver may take regular weekly rest periods inside the vehicle, Regulation No 561/2006 precludes national rules, such as Article 2 of the contested decree, prohibiting a driver from taking regular weekly rest periods referred to in Article 8(6) of this Regulation inside the vehicle.
1      Original language: English.
2      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 (OJ 2006 L 102, p. 1) (‘Regulation No 561/2006’).
3      Belgisch Staatsblad, 11 June 2014, p. 44159.
4      According to the ‘Report to the King’ annexed thereto, the contested decree is part of an action plan which the Belgian Council of Ministers adopted on 28 November 2013 to counter the fraudulent posting of EU workers in Belgium, which may be referred to as social dumping.
5      See, for example, judgment of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 25).
6      Article 94(c) of the Rules of Procedure of the Court of Justice provides that in addition to the text of the questions referred to the Court for a preliminary ruling, the request must contain, inter alia, ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings.’ See also Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2016 C 439, p. 1), points 7 and 15.
7      See, for example, judgment of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraphs 24-25).
8      See judgment of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452, paragraphs 12-20).
9      By order of 18 February 2016, Ś. and Others (C‑325/15, EU:C:2016:107, paragraphs 22-37), the Court held that a similar question was manifestly inadmissible on the grounds that no sufficient explanation of the reasons for that question had been provided.
10      In particular, the Belgian Government refers to the Commission’s response to a 2007 parliamentary question, stating: ‘When the driver takes regular weekly rest away from base, this time may not be spent in the vehicle.’ (Parliamentary question E-4333/2007, 3 October 2007, second paragraph.) Since then, the Commission has answered many questions on the present issue, several of which contain similar statements (see, for example, Parliamentary questions E‑005884/2014, 9 September 2014, point 1, second paragraph; E-006597/2014 and E-007161/14, 23 October 2014, first paragraph; E-000351/2015, 3 March 2015, first paragraph), whereas in a recent answer, the Commission indicates that this issue is not clear (Parliamentary question E-010601/2015, 17 September 2015, second paragraph).
11      See, for example, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 35); judgment of 13 October 2016, Mikołajczyk (C‑294/15, EU:C:2016:772, paragraph 26).
12      See, for example, judgment of 27 October 2016, Commission v Germany (C‑220/15, EU:C:2016:815, paragraph 39).
13      Judgment of 9 June 2016, Eurospeed (C‑287/14, EU:C:2016:420, paragraph 33).
14      See, for example, judgment of 11 September 2014, Commission v Germany (C‑525/12, EU:C:2014:2202, paragraph 47); judgment of 16 November 2016, DHL Express (Austria) (C‑2/15, EU:C:2016:880, paragraph 26).
15      See, for example, judgment of 16 April 2015, Angerer (C‑477/13, EU:C:2015:239, paragraph 33); Opinion of Advocate General Wathelet in Karen Millen Fashions (C‑345/13, EU:C:2014:206, points 79-82).
16      Originally, Article 11(5) of Council Regulation (EEC) No 543/69 of 25 March 1969 on the harmonisation of certain social legislation relating to road transport (OJ, English Special Edition, Series I, 1969 (I), p. 170) (‘Regulation No 543/69’) provided: ‘The daily rest period shall be taken outside the vehicle. However, if the vehicle has a bunk the rest period may be taken on that bunk provided that the vehicle is stationary.’ Thereafter, Article 8(7) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1), which repealed Regulation No 543/69, provided: ‘The daily rest period may be taken in a vehicle, as long as it is fitted with a bunk and is stationary.’
17      COM(2001) 573 final, 12.10.2001. In point 3.14 of its Opinion on this proposal (OJ 2002 C 221, p. 19), the Economic and Social Committee stated that it was ‘preferable for the weekly rest period to be taken outside the vehicle’.
18      European Parliament legislative resolution, 14 January 2003 (OJ 2004 C 38 E, p. 152).
19      European Parliament Report, 12 November 2002, A5-0388/2002 Final, Opinion of the Committee on Employment and Social Affairs, 29 May 2002, Amendment 22.
20      Explanatory Memorandum, COM(2003) 490 final, 11.8.2003, point 26.
21      Council Common Position, Doc 11337/2/04 REV 2, 9 December 2004, p. 19; Doc 11337/2/04 REV 2 ADD 1, 9 December 2004, p. 5.
22      European Parliament legislative resolution, 13 April 2005 (OJ 2006 C 33 E, p. 424); European Parliament Report, 23 March 2005, A6-0076/2005 Final, Amendment 31.
23      COM(2005) 0301 final, 27.6.2005, point 4.2.2, first paragraph.
24      Joint text approved by the Conciliation Committee, Doc PE-CONS 3671/3/05 REV 3, 31 January 2006; European Parliament legislative resolution, 2 February 2006; Doc 7580/06, 21 March 2006.
25      Opinion of Advocate General Tanchev in Pinckernelle (C‑535/15, EU:C:2016:996, point 40 and citations therein).
26      See, for example, Article 8(3) and 8(6a) of Regulation No 561/2006.
27      See, for example, recital 34 of Regulation No 561/2006.
28      Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (OJ 2006 L 102, p. 35) (‘Directive 2006/22’).
29      See the Commission’s most recent report on the implementation of Regulation No 561/2006, COM(2014) 709 final, 21.11.2014, p. 2.
30      Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35).
31      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 (OJ 2014 L 60, p. 1) (‘Regulation No 165/2014’).
32      See above point 28.
33      Commission Directive 2009/5/EC of 30 January 2009 amending Annex III to Directive 2006/22/EC of the European Parliament and of the Council on minimum conditions for the implementation of Council Regulations (EEC) Nos 3820/85 and 3821/85 concerning social legislation relating to road transport activities (OJ 2009 L 29, p. 45).
34      See Commission Report, COM(2009) 225 final, 15.5.2009, p. 2.
35      Commission Regulation (EU) 2016/403 of 18 March 2016 supplementing Regulation (EC) No 1071/2009 of the European Parliament and of the Council with regard to the classification of serious infringements of the Union rules, which may lead to the loss of good repute by the road transport operator, and amending Annex III of Directive 2006/22/EC of the European Parliament and of the Council (OJ 2016 L 74, p. 8) (‘Commission Regulation 2016/403’).
36      Commission Regulation 2016/403, recital 11 and Article 2.
37      See, in this respect, judgment of 9 February 2012, Urbán (C‑210/10, EU:C:2012:64, paragraph 25); judgment of 9 June 2016, Eurospeed (C‑287/14, EU:C:2016:420, paragraphs 38-39 and citations therein); judgment of 19 October 2016, EL-EM-2001 (C‑501/14, EU:C:2016:777, paragraph 21). Article 1 of Regulation No 561/2006 further specifies: ‘This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry.’
38      See above point 46.
39      Available at https://ec.europa.eu/transport/modes/road/consultations/2016-social-legislation-road_en. Two questionnaires were circulated to stakeholders, which contained questions concerning this issue. See general questionnaire, questions 14 and 20; specialised questionnaire, questions 13 and 21.
40      European Commission, Ex-post evaluation of social legislation in road transport and its enforcement, Final report, Study contract no. MOVE/D3/2014-256, June 2016, available at http://ec.europa.eu/transport/sites/transport/files/facts-fundings/evaluations/doc/2016-ex-post-eval-road-transport-social-legislation-final-report.pdf (‘Study’).
41      See, in particular, Study, pp. 28, 63-65, 71, 134-135.
42      Study, Annex A, Section 9.1.1, pp. 209-210.
43      Of a total of 26 States, including Norway and Switzerland. Ireland, Italy, Malta and Spain are not listed.
44      Austria, Belgium, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Sweden and the United Kingdom.
45      Bulgaria, Croatia, Germany, Latvia, Lithuania, Luxembourg, Poland and Slovakia.
46      Croatia, Poland and Slovakia.
47      Article 49(1), with the exception of the last sentence, and (2) of the Charter corresponds to Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. See Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), Explanations on Article 49 and on Article 52, point 1, twelfth indent.
48      See, for example, judgment of 3 June 2008, Intertanko and Others (C‑308/06, EU:C:2008:312, paragraphs 70-71 and citations therein); judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission (C‑352/09 P, EU:C:2011:191, paragraph 80); Opinion of Advocate General Kokott in Taricco and Others (C‑105/14, EU:C:2015:293, point 113). See also, for example, ECtHR, 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009, §§ 77-80 and citations therein; 20 October 2015, Vasiliauskas v. Lithuania, CE:ECHR:2015:1020JUD003534305, § 154 and citations therein.
49      See, for example, judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717, paragraph 41 and citations therein). See also, for example, ECtHR, 20 October 2015, Vasiliauskas v. Lithuania, CE:ECHR:2015:1020JUD003534305, § 155 and citations therein.
50      According to recital 26, Article 18 and Article 19(1) and (4) of Regulation No 561/2006, the Member States are responsible for laying down rules on penalties applicable to infringements of this Regulation and ensuring that they are implemented; those penalties must be effective, proportionate, dissuasive and non-discriminatory, and may include financial penalties. Moreover, under recital 27 of Regulation No 561/2006, the liability of transport undertakings and drivers for infringements of this Regulation ‘may result in penal, civil or administrative penalties as may be the case in the Member States.’ On the basis of some of these provisions, the Court has held that the aim of Regulation No 561/2006 is not the harmonisation of penalties, since this Regulation leaves the Member States free to choose the measures to adopt and the penalties necessary to their application. It is also clear unequivocally from the wording of recital 27 of this Regulation that the Member States have a broad discretion regarding the nature of the applicable penalties. Judgment of 19 October 2016, EL-EM-2001 (C-501/14, EU:C:2016:777, paragraphs 25 and 29 and citations therein).
51      In other words, the present case is not akin to a dispute which turns on the review, by way of preliminary ruling proceedings, of the validity of an EU measure for breach of fundamental rights as enshrined in the Charter, rather than implementation of EU law by a Member State. See, for example, judgment of 8 April 2014, Digital Rights Ireland and Others (C-293/12 and C‑594/12, EU:C:2014:238); judgment of 4 May 2016, Pillbox 38 (C-477/14, EU:C:2016:324, paragraphs 152-165).
52      See, in this respect, judgment of 15 July 1964, Costa (6/64, EU:C:1964:66, p. 585, in particular pp. 593-594); judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 59 and citations therein).