Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 24 November 2022( )

Case C‑666/21

AI,

Åklagarmyndigheten

(Request for a preliminary ruling from the Hovrätten för Nedre Norrland (Court of Appeal, Southern Norrland, Sweden))

(Reference for a preliminary ruling – Transport – Harmonisation of certain social legislation relating to road transport – Regulation (EC) No 561/2006 – Scope of application – Article 2(1)(a) – Concept of ‘carriage by road of goods’ – Mixed-use vehicle – Vehicle containing both a temporary living space and storage area for the transport of snowmobiles – Transport of goods for non-commercial purposes – Tachographs – Obligation to have such tachographs inspected)





I. Introduction

1. AI – the applicant in the main proceedings – is a snowmobile aficionado who was stopped by the police in Sweden while travelling to a snowmobile competition. He was driving a vehicle weighing more than 17 tonnes, which had been adapted to provide a temporary living space for him and his family during their travels and which includes a storage space big enough to fit inside at least two snowmobiles.

2. The dispute before the Hovrätten för Nedre Norrland (Court of Appeal, Southern Norrland, Sweden) between AI and the Åklagarmyndigheten (Public Prosecutor’s Office, Sweden) centres on whether AI was under the obligation to have the tachograph ( ) that was fitted to his vehicle inspected in accordance with the requirements set out in Regulation (EU) No 165/2014. ( ) That question requires first to clarify whether AI’s vehicle falls within the scope of Regulation (EC) No 561/2006, ( ) given that the various obligations relating to tachographs laid down in Regulation No 165/2014, including the need to have such devices properly inspected, only apply to vehicles covered by the Regulation No 561/2006. ( )

3. Within that context, the referring court wonders whether AI’s vehicle is covered by Article 2(1)(a) of Regulation No 561/2006, which provides that that regulation applies, inter alia, to the ‘carriage by road of goods where the maximum permissible mass of the vehicle … exceeds 3.5 tonnes’. More specifically, the Court is called on to clarify, in essence, whether that provision covers vehicles which, like AI’s vehicle, are registered as ‘vehicles designed and constructed for the carriage of goods and having a maximum mass exceeding 12 tonnes’, but which are used both as a living space for the vehicle’s owner and his or her family, as well as to transport movables (here, snowmobiles) for non-commercial purposes.

4. In short, for the reasons that I will outline below, I am of the view that Article 2(1)(a) of Regulation No 561/2006 applies to such vehicles.

II. Legal framework

A. European Union law

1. Regulation No 561/2006

5. Recital 17 of Regulation No 561/2006 states:

‘This Regulation aims to improve social conditions for employees who are covered by it, as well as to improve general road safety. It does so mainly by means of the provisions pertaining to maximum driving times …’

6. Article 1 of Regulation No 561/2006 provides that the purpose of that regulation is to lay down ‘rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition … and to improve working conditions and road safety’, as well as ‘to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry’.

7. Pursuant to Article 2(1) of Regulation No 561/2006:

‘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.’

8. Article 3 of that regulation provides, in relevant part:

‘This Regulation shall not apply to carriage by road by:

…

(h) vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes used for the non-commercial carriage of goods;

…’

9. Article 4 of Regulation No 561/2006 provides:

‘For the purposes of this Regulation the following definitions shall apply:

(a) “carriage by road” means any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of passengers or goods;

…’

2. Regulation No 165/2014

10. Article 3(1) of Regulation No 165/2014 provides:

‘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.’

11. Pursuant to Article 23(1) of Regulation No 165/2014:

‘Tachographs shall be subject to regular inspection by approved workshops. Regular inspections shall be carried out at least every two years.’

B. National law

12. Pursuant to the non-binding legal guidance issued by the Transportstyrelsen (Swedish Transport Agency, Sweden), 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 is of the view that all motorhomes that are registered as a passenger car, a lorry or a bus, shall be subject to rules relating to driving times, breaks and rest periods laid down by Regulation No 561/2006, so long as their maximum permissible mass is over 7.5 tonnes, irrespective of whether the transport is ‘commercial’ or not.

III. Facts, national proceedings and the questions referred

13. On 4 April 2019, AI was stopped by the Swedish police on a public motorway for speeding. During the police check, it was found that the tachograph fitted to AI’s vehicle had not been inspected within the period prescribed by Article 23(1) of Regulation No 165/2014. Furthermore, it did not contain a tachograph disc. AI stated that he had two snowmobiles in the rear part of his vehicle and that he was traveling to a snowmobile competition.

14. According to the referring court, AI’s vehicle had been registered with the vägtrafikregistret (Road Traffic Register, Sweden) as a lorry in the EU vehicle category N3, ( ) which includes vehicles designed and constructed primarily for the carriage of goods and having a maximum mass exceeding 12 tonnes. The vehicle has space for six passengers. It is 3.6 metres high and 14.7 metres long and has a stated mass of 17.68 tonnes. Its external appearance is similar to that of a bus or coach. The front (interior) part of the vehicle consists of a living space for AI and his family (which they use when they are travelling), while the rear part is designed as storage space for the purposes of transporting snowmobiles.

15. By decision of 7 September 2020, AI was convicted of a speeding offence by the Sundsvalls tingsrätt (District Court, Sundsvall, Sweden). Nevertheless, he was later acquitted of the charge of infringing Paragraph 6 of Chapter 9 of the Förordning (2004:865) om kör – och vilotider samt färdskrivare, m.m. (Regulation (2004:865) concerning, inter alia, driving times, rest periods and monitoring tools). That provision provides for the imposition of a fine on drivers who intentionally or negligently use a tachograph that has not been inspected in accordance with Article 23(1) of Regulation No 165/2014.

16. Both AI and the Public Prosecutor’s Office brought an appeal against that decision before the Hovrätten för Nedre Norrland (Court of Appeal, Southern Norrland), that is, the referring court in the present case.

17. Before the referring court, the Public Prosecutor’s Office claims that AI is obliged to have a properly inspected tachograph fitted to his vehicle because his vehicle is used to carry ‘goods’ within the meaning of Article 2(1)(a) of Regulation No 561/2006. AI disputes that allegation and contends that he is under no such obligation because his vehicle is not used for the commercial transport of goods, but rather as a motor home for private use.

18. Within that context, the referring court enquires whether the fact that the main purpose of AI’s vehicle is to provide a temporary living space (for AI’s private use) should result in its exclusion from the scope of Regulation No 561/2006.

19. In that regard, that court notes that there is nothing in the text of Regulation No 561/2006 to suggest that the principal purpose or the actual use of vehicles has any direct impact on the interpretation of Article 2(1)(a) of that regulation, provided that the vehicle may be used for the ‘carriage by road of goods’. Furthermore, recital 6 of Regulation No 561/2006 would make clear that the scope of that regulation is defined by reference to ‘categories of vehicle’. Accordingly, it would seem that the category under which the vehicle is registered in the Road Traffic Register may be relevant in order to determine whether Article 2(1)(a) of Regulation No 561/2006 applies to a given vehicle.

20. The referring court nevertheless wonders whether the fact that such a vehicle has the ‘practical possibility of transporting goods’ is sufficient for that provision to apply. It explains that, if it were sufficient that a vehicle is capable of carrying ‘goods’ for Article 2(1)(a) of Regulation No 561/2006 to apply, then it would be difficult to interpret that provision as meaning anything other than, in practice, only the maximum permissible mass of the vehicle (that is, whether it exceeds 3.5 tonnes or not) is relevant in order to establish whether a vehicle comes within the scope of that regulation.

21. Furthermore, after noting that the term ‘goods’ is not defined in Regulation No 561/2006, that court points out that, in everyday language, private equipment would rarely be classified as ‘goods’. The expression ‘carriage by road of goods’, which is used in Article 2(1)(a) of Regulation No 561/2006, would thus appear to suggest that that regulation is primarily intended to cover commercial transport associated with the pursuit of an economic activity. That interpretation would be borne out by the stated purpose of that regulation, which is to harmonise the conditions of competition within the road sector and to improve working conditions and road safety.

22. The referring court points out, however, that Article 3(h) and (i) of Regulation No 561/2006 clearly shows that certain vehicles used for non-commercial transport may fall within the scope of that regulation. Thus, the expression ‘carriage by road of goods’ should be given a broad meaning. That interpretation would be reinforced, among other things, by the definition of the concept of ‘driver’ provided in Article 4(c) of Regulation No 561/2006, from which it can be understood that, in order to fall within the scope of that definition, a person need not be driving the vehicle as part of his or her duties.

23. In the light of those considerations, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) 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 [space] for private use?

(2) In such circumstances, is the vehicle’s cargo capacity or how the vehicle is registered in the national traffic register of relevance?’

24. The request for a preliminary ruling, dated 25 October 2021, was registered on 5 November 2021. The European Commission alone submitted written observations. No hearing has been held.

IV. Analysis

25. Regulation No 561/2006 establishes a number of rules relating to driving times, breaks and rest periods that must be complied with by drivers who engage in carriage by road of goods and people. As a means of ensuring compliance with those rules, Regulation No 165/2014 lays down a set of obligations concerning the approval, installation, inspection and use of recording devices, such as tachographs, which are used to record data pertaining, among other things, to the driver’s activity and the distance travelled.

26. The scope of Regulation No 561/2006, which is identical to that of Regulation No 165/2014, ( ) is defined in its Article 2(1), which provides that that regulation applies to the ‘carriage by road of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes’ (Article 2(1)(a)), and to the ‘carriage by road 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’ (Article 2(1)(b)). The present case concerns the first of those two categories.

27. By its two questions, which I will analyse together, the referring court wonders, in essence, whether a mixed-use vehicle such as the one at issue in the present case, which includes both a temporary living space for AI and his family and a storage space to transport snowmobiles for leisure purposes, is covered by Article 2(1)(a) of Regulation No 561/2006, so that the driver of such a vehicle must comply with the rules of that regulation and of Regulation No 165/2014 and that the vehicle must be fitted with a properly inspected tachograph in accordance with the latter regulation.

28. In the following sections, I will provide the reasons why that is indeed the case. First, I will explain that the fact that such a vehicle transports movables (here, snowmobiles) for non-commercial purposes cannot prevent it from being regarded as a vehicle carrying ‘goods’ within the meaning of Article 2(1)(a) of Regulation No 561/2006 and, therefore, from falling within the scope of that regulation (A). Second, I will specify that, provided certain criteria are met, the fact that such a vehicle is primarily used as a living accommodation space by its occupants does not prevent it from being covered by that provision and falling within the scope of Regulation No 561/2006 (B).

A. Can a vehicle transporting goods for non-commercial purposes fall within the scope of Regulation No 561/2006?

29. In order for a particular situation to fall within the scope of Regulation No 561/2006, two cumulative conditions must be met: first, the carriage at issue must be covered either by Article 2(1)(a) or Article 2(1)(b) of that regulation (the positive condition) and, second, it must not be covered by any of the exclusions listed in Article 3 of that regulation (the negative condition). ( ) That provision lists transport operations (‘carriage’), which, although they would otherwise be covered by Article 2(1)(a) or (b) of Regulation No 561/2006, are specifically excluded from the scope of the rules laid down in that regulation and in Regulation No 165/2014, because they are undertaken by vehicles which possess certain specific, permanent characteristics ( ) and/or are reserved for a use ( ) that cannot be said to threaten the objectives pursued by those regulations. ( )

30. The parties to the main proceedings do not dispute that AI is transporting snowmobiles for leisure purposes. Those parties do, however, disagree on whether the fact that such goods are transported for non-commercial purposes prevents AI’s transport operation from satisfying the positive condition to which I have referred in the previous point. In that regard, the referring court would like the Court to clarify whether the concept of ‘carriage by road of goods’ within the meaning of Article 2(1)(a) of that regulation must be interpreted as covering only movables or things that are transported for commercial purposes. If that were the case, then that provision would not apply to AI’s transport operation, which would be excluded from the scope of Regulation No 561/2006 due to its non-commercial nature.

31. In my view, such an interpretation of Article 2(1)(a) of Regulation No 561/2006 would be incorrect. Indeed, it is clear that that provision does not merely concern the ‘carriage of goods’ for commercial purposes, but may also apply to transport operations involving movables or things which are reserved for a private, non-commercial use (here, purely as part of AI’s hobby).

32. Several reasons lead me to that conclusion.

33. First, it is evident from the text of Article 2(1)(a) of Regulation No 561/2006 that that provision does not contain any reference to the need, for the carriage operations that are covered by that provision, to be of a professional or commercial character.

34. Second, such a requirement cannot be inferred from the term ‘goods’, which is used in that provision. It is true that Regulation No 561/2006 does not contain any definition of that term, ( ) and that, if one sought to ascertain its meaning and scope, in accordance with the settled case-law of the Court, ( ) by reference to its usual meaning in everyday language, one might find that ‘goods’ could be understood as ‘things’ that are made or produced to be sold as part of commercial transactions. ( )

35. However, that finding must be balanced against the fact that, pursuant to Article 13(1) of that regulation, Member States may grant (optional) exceptions for the carriage of ‘materials, equipment or machinery for the driver’s use in the course of his work’ (Article 13(1)(d), second indent) or of ‘circus and funfair equipment’ (Article 13(1)(j)). Such transport operations, which concern things that are used in the context of a professional activity but are not meant to be sold, are thus covered by Article 2(1)(a) of Regulation No 561/2006, unless they are specifically excluded by the national legislation of the Member States. In my view, therefore, it is clear that the term ‘goods’ in that provision is not limited to ‘things’ which are meant to be sold.

36. Nor does that term seem to me to be limited, more broadly, to ‘things’ which are connected to a commercial transaction. Indeed Regulation No 561/2006 uses the term ‘goods’ in at least two instances, without any connection to a commercial transaction, but rather with reference to ‘non-commercial carriage’. ( )

37. I further note that, in the context of another regulation in the field of road transport, namely Regulation 2018/858, the term ‘goods’ is defined ( ) as ‘primarily any movable things’. ( ) Furthermore, the Court has generally given a broad meaning to the concept of ‘goods’ in its case-law, ( ) particularly when interpreting provisions of the FEU Treaty relating to the free movement of goods. ( ) Within that context, it has clearly stated that whether goods are transported for the purposes of sale or for personal use or consumption is irrelevant. ( )

38. Third, a contextual interpretation of Article 2(1)(a) of Regulation No 561/2006, in the light of Article 3 and, in particular, Article 3(h), thereof, which provides in essence that that regulation does not apply to the non-commercial carriage of goods by vehicles under 7.5 tonnes, confirms, in my view, that the scope of the former provision is not limited to the ‘carriage of goods’ of a commercial character.

39. To be precise, in order for a vehicle to benefit from the exclusion contained in Article 3(h) of Regulation No 561/2006, two cumulative conditions must be fulfilled. First, the vehicle must be used for the ‘non-commercial carriage of goods’, ( ) and, second, its maximum permissible mass must not exceed 7.5 tonnes. Clearly, the fact that that second requirement exists can mean only one thing: Article 2(1)(a) of that regulation can actually apply to the carriage of ‘goods’ for non-commercial use if the maximum permissible mass of the vehicle in question exceeds that amount. ( )

40. Transport operations undertaken by vehicles used for the non-commercial carriage of goods may also benefit, as the referring court itself pointed out, from another exclusion, namely that provided under Article 3(i) of Regulation No 561/2006, which applies to ‘commercial vehicles, which have a historic status according to the legislation of the Member State in which they are being driven and which are used for the non-commercial carriage of passengers or goods’. ( ) Again, the limits of that exclusion are clear. The EU legislature appears, also in that case, to have considered the fact that the vehicle is carrying goods for non-commercial purposes to be insufficient for such transport to be excluded from the scope of that regulation and, therefore, to have proceeded on the basis that Article 2(1)(a) of that regulation may apply to the non-commercial carriage of goods.

41. Overall, the fact that Article 3 of Regulation No 561/2006 includes not only one, but two narrowly defined exclusions relating to specific instances involving the carriage of ‘goods’ for non-commercial purposes, is, in my view, testament to the fact that such carriage is not excluded entirely from the scope of that regulation.

42. To my mind, any other interpretation would be contra legem. Indeed, the Court has consistently held that Article 3 of that regulation may not be understood in such a way as to extend its effects beyond that which is necessary to safeguard the interests which it seeks to secure, and that the scope of the exclusions listed in that provision must be determined in the light of the aims pursued by that regulation. ( ) If the EU legislature had intended to create a general exclusion for all vehicles carrying goods of a non-commercial nature, Article 3(h) and (i) of that regulation would not have limited the exclusions which they establish to specific categories of goods transported, but would have simply referred to the carriage of goods for non-commercial purposes. ( )

43. It follows, in my view, that Article 2(1)(a) of Regulation No 561/2006, in principle, ( ) applies to the carriage of ‘goods’ irrespective of whether such carriage is commercial or non-commercial. However, where goods are carried for non-commercial purposes, only vehicles whose maximum permissible mass exceeds 7.5 tonnes are covered by that provision since vehicles below that amount are excluded under Article 3(h) of that regulation.

44. That interpretation of Article 2(1)(a) of Regulation No 561/2006 is corroborated by the objectives pursued by that regulation.

45. In that regard, I recall that Regulation No 561/2006 pursues three objectives: to harmonise the conditions of competition with regard to the road sector, to improve social conditions for employees who are covered by it, and to improve general road safety (for all vehicles). ( ) The Court has previously confirmed that the carriage of goods for non-commercial purposes does not affect competition in the road transport sector, nor does it hinder the achievement of the objective to improve working conditions in that industry. ( ) However, I agree with the Commission that the EU legislature appears to have taken the view that such transport operations may very well create a risk for road safety, particularly when the maximum permissible mass of the vehicles concerned is more than 7.5 tonnes (or, as is the case with AI’s vehicle, actually weighs more than 17 tonnes). In fact, the European Parliament emphasised, during its first reading ( ) of the Commission’s draft Proposal for the adoption of Regulation No 561/2006, ( ) that the ‘road safety aspect’ could not be confined, in its view, to the commercial sector and should apply also to the non-commercial carriage of goods.

46. It is also worth mentioning that the Court has insisted on the importance of the objective to improve general road safety in a host of judgments on the interpretation of the exclusions and exceptions provided in Regulation No 561/2006. ( )

47. I consider that, if all transport operations undertaken to carry goods for non-commercial purposes were to be excluded from the scope of Regulation No 561/2006, the objective of improving road safety, to which the EU legislature has sought to give effect when adopting Regulation No 561/2006, would be compromised. ( ) The fact that that type of carriage is less frequent than that which is undertaken as part of a commercial activity ( ) is, in my view, irrelevant: AI could very well wake up one morning and decide to drive his vehicle of more than 17 tonnes for 20 consecutive hours without taking any breaks, a possibility which could have significant negative effects on general road safety (not least because of the weight of such a vehicle).

48. I believe that that type of situation was at the forefront of the EU legislature’s mind when it decided to limit the exclusion laid down in Article 3(h) of Regulation No 561/2006 to the ‘non-commercial carriage of goods’ by vehicles whose maximum permissible mass not exceeding 7.5 tonnes. ( ) As such, I agree with the Commission that systematically excluding such transport operations from the scope of that regulation would be incompatible with the achievement of that objective.

49. Furthermore, I do not consider that the Court’s judgment in Lundberg ( ) provides any support in favour of a contrary interpretation. One could, at first glance, consider the dispute before the national courts in that case to resemble the one at issue in the main proceedings. Indeed, like AI, Mr Lundberg was the owner and driver of a vehicle that he used to transport another motor vehicle, namely a rally car (in a trailer attached to the first vehicle). He was an amateur rally driver who competed in car rallies, in his leisure time. However, unlike AI (whose vehicle weighs more than 17 tonnes), Mr Lundberg’s vehicle had a combined weight not exceeding that of 7.5 tonnes.

50. In my view, it was that specific element, and not the mere fact that Mr Lundberg was transporting his rally car for non-professional and non-commercial purposes, which led the Court to conclude that that transport operation fell squarely within the scope of the exclusion laid down in Article 3(h) of Regulation No 561/2006 and was, thus, excluded from the scope of that instrument. ( ) Furthermore, the Court was not called upon in that case to interpret the scope of Article 2(1)(a) of that regulation, but only the scope of the exclusion set out in Article 3(h) of Regulation No 561/2006.

51. As I see it, one therefore ought to resist the temptation of applying the judicial solution adopted by the Court in Lundberg to the set of facts at hand in the main proceedings on the sole ground that, here too, AI is transporting goods for his own leisure. ( ) In that regard, I recall that the parties to the main proceedings do not dispute the fact that the maximum permissible mass of AI’s vehicle is above 7.5 tonnes and, as such, that that vehicle is not caught by the exclusion laid down in Article 3(h) of Regulation No 561/2006.

52. In the light of the foregoing, it is clear to me that Article 2(1)(a) of Regulation No 561/2006 is not limited to the carriage of goods of a commercial nature. The definition in that provision also covers – and the rules of that regulation and of Regulation No 165/2014 thus apply to – transport operations undertaken by vehicles carrying goods for private, non-commercial purposes, for example, as part of a hobby, except where such operations fall within the scope of the express exclusion laid down in Article 3(h) of Regulation No 561/2006 (or any other exclusion or exception of that regulation).

B. The case of mixed-use vehicles serving both to carry ‘goods’ and as a temporary living space for their occupants

53. Having established that, in the circumstances of the main proceedings, the fact that AI’s vehicle transports goods (here, snowmobiles) for non-commercial purposes does not prevent it from being regarded as a vehicle carrying ‘goods’ within the meaning of Article 2(1)(a) of Regulation No 561/2006, I will now examine whether the fact that that vehicle is a mixed-use vehicle, which is used by AI and his family, not merely to transport goods, but also to provide temporary living accommodation for its occupants, excludes it from the scope of that regulation. I will explain that it does not.

54. As I recalled in point 26 above, Regulation No 561/2006 applies to (i) the ‘carriage by road of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes’ (Article 2(1)(a)), and (ii) the ‘carriage by road of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver, and [which] are intended for that purpose’ (Article 2(1)(b)). It logically follows from that provision that that regulation does not cover road transport operations undertaken (i) by vehicles carrying goods with a maximum permissible mass not exceeding 3.5 tonnes, or (ii) by vehicles carrying passengers, which are constructed or permanently adapted for carrying no more than nine persons (driver included).

55. Before the referring court, AI argues, in essence, that, besides those two categories of ‘carriage’, and those falling within the scope of the exclusions or exceptions expressly laid down in Regulation No 561/2006 (such as Article 3(h)), other transport operations may also evade the rules set out in that regulation. Such is the case, in AI’s view, of ‘carriage’ undertaken by vehicles that are constructed or permanently adapted primarily to provide a living space for their occupants, rather than merely to carry goods. AI contends that such transport operations are not covered by Article 2(1)(a) of Regulation No 561/2006. He considers that his vehicle should be excluded from the scope of that regulation (irrespective of the fact that it is used to ‘carry goods’ and has a maximum permissible mass above 7.5 tonnes), because it is used primarily as a temporary living space for him and his family.

56. The Commission, for its part, considers that there is nothing in Regulation No 561/2006 to indicate that the fact that a vehicle is being used not only to carry goods but, primarily, as a temporary living space prevents it from being regarded as carrying ‘goods’ within the meaning of Article 2(1)(a) of that regulation.

57. In that respect, I note, first, that whereas Article 2(1)(b) of Regulation No 561/2006 specifically requires an assessment as to how the vehicle is constructed or permanently adapted to be carried out (before it can be concluded that such a vehicle carries passengers for the purposes of that provision), that is not the case of Article 2(1)(a) of that regulation.

58. However, it is clear from the definition of ‘motor vehicle’, provided in the first indent of Article 4(b) of Regulation No 561/2006, that the rules contained in that regulation are meant to apply to ‘any self-propelled vehicle … normally used for carrying … goods’ whose transport operation comes within the scope of Article 2(1)(a) thereof. ( ) Furthermore, it is apparent from Article 4(a) of Regulation No 561/2006 that the vehicle does not have to be ‘laden’ (loaded).

59. It follows, in my view, that, in order for a transport operation to be covered by Article 2(1)(a) of Regulation No 561/2006 and be subject to the rules set out in that regulation, it is not a requirement that, at the given time, the vehicle in fact be carrying goods. Nor is it required, as AI submits before the referring court, that such a vehicle be primarily used to carry goods. In fact, it suffices that the vehicle is ‘normally used to carry goods’. ( ) From my understanding, the vehicle must therefore display permanent (and not merely temporary) features indicating that it is ‘normally used to carry goods’. Those elements must, in my view, be assessed in the light of the manner in which the vehicle is constructed or how it has been permanently adapted, by analogy with the requirement laid down in Article 2(1)(b) of that regulation. ( )

60. Second, it appears to me that the distinction which Article 2(1) of Regulation No 561/2006 draws between the ‘carriage … of goods’ (Article 2(1)(a)) and the ‘carriage … of passengers’ (Article 2(1)(b)) emulates (at least, to some extent) the distinction made in other EU instruments in the field of road transport and, in particular, in Regulation 2018/858 (which lays down the administrative provisions and technical requirements for the type-approval and placing on the market of all new vehicles). ( ) Indeed, pursuant to Article 4 of that regulation, motor vehicles that are ‘designed and constructed primarily for the carriage of passengers and their luggage’ ( ) fall under one category (Category M), whereas motor vehicles that are ‘designed and constructed primarily for the carriage of goods’ ( ) fall under another, distinct category (Category N).

61. ‘Motor caravans’ are defined, in point 5.1 of Part A of Annex I to Regulation 2018/858, ( ) as vehicles of Category M with living accommodation space. That space must contain, as a minimum, the following equipment: (a) seats and table; (b) sleeping accommodation which may be converted from the seats; (c) cooking facilities; (d) storage facilities. It follows from the fact that ‘motor caravans’ are included in Category M of Regulation 2018/858 that, within the context of that regulation, they are considered to be vehicles ‘designed and constructed primarily for the carriage of passengers and their luggage’, rather than goods. The fact that they contain storage facilities does not prevent them from falling within that category, so long as such storage facilities are integrated within the living accommodation space and rigidly fixed to it. ( )

62. In the light of those findings, I can readily accept that, for the purposes of Regulation No 561/2006, ‘motor caravans’ which display the characteristics listed in point 61 above must, in principle, just as is the case for the purposes of Regulation 2018/858, be regarded as being used for the carriage of passengers, rather than goods, and, thus, as falling within the scope of that instrument only when they meet the criteria laid down in Article 2(1)(b) (that is to say, only where they are constructed or permanently adapted for carrying more than nine persons, including the driver, and are intended for that purpose).

63. Having made that clarification, I would like to point out that the main proceedings concern a particular kind of vehicle: one whose external appearance is similar to that of a bus or coach, and which is a mixed-use vehicle given that it contains both a living accommodation space and a storage space big enough for AI to store at least two snowmobiles.

64. I gather from the case file, and the information provided by the referring court in its request for a preliminary ruling, that the storage space of AI’s vehicle is not integrated within its living accommodation space, but is separate. ( ) Furthermore, it does not appear to be designed to provide storage merely for ‘luggage’ of the vehicle’s passengers (unlike the luggage compartment of a bus or coach or the roof box of a motor caravan). Finally, it seems to me that such storage space is a permanent feature of AI’s vehicle. Unlike a bicycle rack or a roof box, it cannot easily be removed.

65. In such a situation, must it be considered that the vehicle is still carrying passengers and their luggage? I do not think so. ( ) Must it be regarded as ‘normally’ carrying ‘goods’ and, therefore, as falling within the scope of Article 2(1)(a) of Regulation No 561/2006? In my view, yes.

66. Indeed, I consider that a mixed-use vehicle such as AI’s vehicle, which contains both a living accommodation space and a storage space, must be regarded as a vehicle ‘normally’ carrying ‘goods’, for the purposes of Regulation No 561/2006, and as falling within the scope of that regulation, irrespective of whether it fulfils the requirements necessary to qualify as a ‘motor caravan’ within the meaning of Regulation 2018/858, where the storage space of such a vehicle (i) is separate or otherwise physically distinguishable from the living space (rather than integrated within it), (ii) does not reasonably appear to be designed to provide storage merely for the luggage of the vehicle’s occupants, and (iii) constitutes a permanent feature of the vehicle, in the sense that the vehicle is either constructed or permanently adapted to include such a space.

67. That three-part test, which it is for the national courts to apply in each given case, seems to me to provide desirable results in the vast majority of cases.

68. First, it ensures, at one end of the spectrum, that the professional driver of a lorry who has adapted the vehicle’s cabin permanently to include a lounge and sleeping space remains subject to the rules set out in Regulation No 561/2006 (either because the living space does not satisfy all the requirements laid down in Regulation 2018/858 for it to qualify as a ‘motor caravan’ or because, in any case, the storage space still fulfils the three requirements outlined above).

69. At the other end of the spectrum, it also leads to the conclusion that a motor caravan will not be regarded as a vehicle carrying ‘goods’, within the meaning of Article 2(1)(a) of Regulation No 506/2006, simply because the cupboards of its living accommodation space are filled with plates, cups and other utensils or objects that are typically expected to be found in a ‘home’, or because such a vehicle includes a trunk or storage space that appears to be designed to carry the luggage of passengers only, or has a removable bike rack or roof box attached to it.

70. Second, the test set out in point 66 above also provides a suitable solution (or at least avoids absurd results) in more complex, less clear-cut situations. To illustrate that point, I will rely on three (hypothetical) examples.

71. First example: take an amateur surfer who has a van of more than 7.5 tonnes, with the capacity to carry 50 surfboards both for his own use and that of his friends, and in which he also keeps a mattress on which he sleeps from time to time. Is the surfer carrying ‘goods’? Yes, because his vehicle does not display all the characteristics listed in Regulation 2018/858 to be labelled as a ‘motor caravan’ and, therefore, to be classified as a vehicle designed or constructed primarily for the carriage of ‘passengers and their luggage’ and because, in any event, it is constructed or permanently adapted to include a clearly identifiable storage space which does not appear to be designed only to carry his luggage. In other words, the amateur surfer is in a situation no different from that of the professional lorry driver described in point 68 above.

72. Second example: what if the surfer had a proper ‘motor caravan’ and carried his friends’ or his family’s surfboards in a storage space no bigger than a trunk designed to carry luggage? The surfer would not be carrying ‘goods’. He would be in the same situation as the ‘classic’ motor caravan in point 69 above.

73. Third example (this is where it gets more complicated): what if the same surfboards (or AI’s snowmobiles, for that matter) were placed in a very large ( ) trailer attached to the back of a motor caravan? Would the fact that the trailer can be removed from the motor caravan prevent the vehicle from being regarded as carrying goods? I do not think so. Indeed, for the purposes of Regulation No 561/2006, a ‘vehicle’ may consist of a combination of vehicles. ( ) A trailer coupled to a motor caravan would therefore be regarded as forming a single ‘vehicle’ unit. The trailer’s permanent features (such as the fact that it is constructed or permanently adapted as a storage space) could, in my view, be imparted to the ‘vehicle’ as a whole. ( )

74. As I have already stated in point 59 above, it is important to bear in mind that it is not necessary, in order for a transport operation to fall within the scope of Article 2(1)(a) of Regulation No 561/2006, for the vehicle undertaking that operation to be primarily used for the carriage of goods (as is required by Regulation 2018/858). It suffices that the vehicle be ‘normally’ ( ) used for carrying goods.

75. In my view, a mixed-use vehicle must be considered as being ‘normally’ used for carrying goods if it (i) is constructed or permanently adapted to contain a storage space which is (ii) clearly identifiable ( ) and (iii) reasonably appears to be designed not merely to carry the passengers’ luggage. Provided those characteristics are present, there is no need to evaluate whether the carriage of goods takes precedence over that of passengers.( ) The driver must, in my view, be subject to the rules relating to driving times, breaks and rest periods which are set out in Regulation No 561/2006, and the obligation to have a duly inspected tachograph, provided the maximum permissible mass of the vehicle exceeds 3.5 tonnes (for the commercial carriage of goods) or 7.5 tonnes (for the non-commercial carriage of goods). ( )

76. That approach seems to me to be consistent with the definition of the term ‘goods’ as covering any tangible thing, not merely goods that are meant to be sold or used for a commercial transaction, which I have suggested the Court adopt in the previous section. ( ) It is also consistent with the objective of improving general road safety to which the EU legislature has sought to give effect in Regulation No 561/2006. ( ) Indeed, it ensures that heavy vehicles that the EU legislature deemed to create a real risk for general road safety come within the ambit of that regulation and cannot evade the obligations contained therein, on the sole ground that they partly serve as a motor caravan.

77. At this juncture, I would like to add that the EU vehicle category under which the vehicle is registered in the national road traffic register is, in my view, indicative, but not decisive. One must still assess whether the vehicle is ‘normally’ used for the carriage of goods, that is, whether the criteria that I have set out above are fulfilled. The referring court specified, in its request for a preliminary ruling, that AI’s vehicle is registered under category N3 of Regulation 2018/858, which covers ‘motor vehicles designed and constructed primarily for the carriage of goods’ with a maximum mass exceeding 12 tonnes. In my view, the fact that the vehicle is registered in that category certainly tends to indicate that it is ‘normally’ used for the carriage of goods. ( ) However, it cannot play a decisive role in the national courts’ assessment. If such had been the EU legislature’s intention, then the latter would have simply referred to those categories in Regulation No 561/2006. ( )

78. I would like to conclude with a few words on the practical consequences of the solution that I have proposed. By no means does it imply that all mixed-use vehicles such as the one at issue in the present case, which contain both a living accommodation space and a storage space to carry goods for non-commercial purposes, must be equipped with a tachograph, or that their driver must comply with the rules relating to driving times, breaks and resting periods laid down in Regulation No 561/2006.

79. Indeed, as I indicated above, the drivers of such vehicles will only be covered by Article 2(1)(a) of Regulation No 561/2006 and be required to comply with the rules laid down in that regulation and in Regulation No 165/2014 (including the obligation to have a duly inspected tachograph), when their vehicle can be said to be ‘normally’ used for the carriage of goods and where the vehicle’s maximum permissible mass exceeds 7.5 tonnes. A significant number of mixed-use motorhomes, campervans and the like fall below that threshold. Their transport operations are, therefore, purely and simply, excluded from the scope of Regulation No 561/2006. ( )

V. Conclusion

80. In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Hovrätten för Nedre Norrland (Court of Appeal, Southern Norrland, Sweden) as follows:

(1) Article 2(1)(a) of Regulation 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, read in the light of the first indent of Article 4(b) and Article 3 of that regulation,

must be interpreted as requiring that a vehicle undertaking the transport operation be ‘normally’ used for carrying goods. The category in which a vehicle is registered in the national traffic register is not determinative in that regard. The fact that goods are carried for non-commercial, rather than commercial, purposes does not prevent the transport operation from being covered by that provision and from falling within the scope of that regulation.

(2) Article 2(1)(a) of Regulation No 561/2006, read in the light of the first indent of Article 4(b) thereof,

must be interpreted as meaning that a mixed-use vehicle including both a living accommodation space for its occupants and a storage space for the purposes of carrying goods will be regarded as ‘normally’ used for carrying goods and, therefore, will be covered by Article 2(1)(a) of Regulation No 561/2006, provided that the storage space (i) is separate or otherwise physically distinguishable from its living space (rather than integrated within it), (ii) does not reasonably appear to be designed to provide storage merely for the luggage of the vehicle’s occupants, and (iii) constitutes a permanent feature of the vehicle, in the sense that the vehicle is either constructed or permanently adapted to include that storage space.