Case C‑245/15

SC Casa Noastră SA

v

Ministerul Transporturilor — Inspectoratul de Stat pentru Controlul în Transportul Rutier (ISCTR)

(Request for a preliminary ruling

from the Judecătoria Balş — Judeţul Olt)

(Reference for a preliminary ruling — Road transport — Social provisions — Exceptions — Regulation (EC) No 561/2006 — Article 3(a) — Regulation (EC) No 1073/2009 — Article 2(3) — Regular services providing for the carriage of passengers — Concept — Carriage free of charge organised by an economic operator for its employees, to and from work, in vehicles belonging to it and driven by one of its employees)

Summary — Judgment of the Court (Tenth Chamber), 2 March 2017

Transport — Road transport — Social provisions — Exceptions — Regular services providing for the carriage of passengers — Concept — Special regular services — Service of carriage by road between home and work, organised by the employer, with a route not exceeding 50 km — Included

(European Parliament and Council Regulations No 561/2006, Art. 3(a) and 4(n) and No 1073/2009, Art. 2, points 3 to 5 ; Council Regulation No 684/92, Art. 2, points 1 and 4)

Article 3(a) 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 and Article 2(3) of Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006, must be interpreted as meaning that the service of the carriage by road of workers between home and work, organised by their employer, where the route covered does not exceed 50 km, falls within the scope of the derogation laid down in Article 3(a) of Regulation No 561/2006, according to which that regulation does not apply to such a service.

In view of the structure of Regulation No 684/92 and the definition of the concept of ‘special regular services’, it is apparent that the intention of the EU legislature was to exclude from the scope of Regulation No 561/2006 both regular and special regular services, provided that the route covered does not exceed 50 km.

Under Article 4(n) of that regulation, ‘regular passenger services’ means national and international services as defined in Article 2(1) of Regulation No 684/92.

In that regard, the Court has pointed out that Article 2(1) provides for two categories of such services by distinguishing between regular and special regular services. The former are open to all and provide for the carriage of passengers at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points. The latter are provided under the same conditions, but only for specified categories of passengers (judgment of 30 April 1998, Clarke & Sons and Ferne, C‑47/97, EU:C:1998:185, paragraph 16), namely for the carriage of ‘workers between home and work’, carriage ‘to and from the educational institution’ for school pupils and students, and the carriage of soldiers and their families ‘between their state of origin and the area of their barracks’.

In the second place, Article 2(5) of Regulation No 1073/2009, like Article 2(4) of Regulation No 684/1992, contains a definition of ‘own-account transport operations’, which are operations carried out for non-commercial and non-profit-making purposes by a natural or legal person, provided, first, that the transport activity is only an ancillary activity for that natural or legal person. Second, that definition provides that the vehicles must be the property of that person, have been obtained by that person on deferred terms or have been the subject of a long-term leasing contract and are driven by a member of the staff of the natural or legal person or by the natural person himself or by personnel employed by, or put at the disposal of, the undertaking under a contractual obligation.

It must be observed that the category of regular services, which includes special regular services, and the category of own-account transport operations, are not mutually exclusive. Own-account transport operations may take the form of special regular services or occasional services, the latter being defined in Article 2(4) of Regulation No 1073/2009 as services which do not fall within the definition of regular services, including special regular services, and the main characteristic of which is the carriage of groups of passengers constituted on the initiative of the customer or the carrier himself.

The only difference between a special regular service for third parties and the same service carried out in the context of own-account transport operations is, consequently, the nature of the organiser of the service. That difference cannot justify the exclusion of special regular services carried out in the context of own-account transport operations from the scope of the derogation provided for in Article 3(a) of Regulation No 561/2006.

(see paras 30, 31, 33, 37, 43, 49, 51, operative part)