6.

The logical conclusion from the foregoing considerations is that there can be no question of the undertaking engaged in the business of hiring labour being solely liable in the event of a breach of the said duty rather than the undertaking which employs the driver for its transport. Consideration must now be given to the question whether this also defeats the argument urged by the Commission that the provision in question applies to both undertakings. This contention is mainly based on the argument that, as a result Regulation No 543/69/EEC imposes an ‘obbligo di risultato’ (an obligation to produce a specific result) the two undertakings are bound to cooperate in order to achieve that result: they must take reciprocal action to ensure that one or other of them issues the control book to the driver. However, according to the Commission, the national legislature has the power to decide on which of the two undertakings the duty to issue the book is laid, and only in the absence of provisions under national law, or, again, an express contractual arrangement between the two undertakings are they to be considered jointly responsible. Finally, the word ‘undertaking’ within the meaning of Regulation No 543/69/EEC embraces both the undertaking using the hired driver and the undertaking which hires him out. Clearly, the Commission adopts this standpoint on the basis of practical considerations. In terms of law, however, the notion that there are two parties jointly bound to comply with Article 14 of the regulation is open to serious objections. In the first place I must say that it is not very clear whether the duty imposed on both the undertakings is the same as the duty provided for under Article 14 (7), in which case both ought to issue the individual book to the driver, or whether it is a kind of additional duty to make sure between them that the book is issued by one or the other of them, but there is no suggestion whatsoever in the regulation of an additional duty of this kind. Secondly, I must point out that I can find no Community rule on the basis of which the Member States could if necessary decide which of the two undertakings is bound. The power granted to the States to take measures which supplement those in Regulation No 543/69/EEC concerning the ‘issue and control of the books’ (Article 14 (9)) does not lend itself to such a wide interpretation as to permit the national legislature to change the number of those to whom Article 14 (7) applies (one imagines that in the case of hired labour they are two in number, if the Commission's main argument is accepted). In fact, as this is a question of determining the field of application ratione personae of Community rules, to entrust this task to individual Member States or even to leave it to the good sense of the parties concerned would in my view conflict with the need for uniformity in the Community legal system and the undertakings concerned would be liable to find themselves subject to treatment which differed according to nationality of locality, whereas the declared objective of Regulation No 543/69/EEC is the harmonization of social legislation relating to road transport. Finally it is impossible to ignore the point that to increase the number of those bound by the duty would be at the same time to enlarge the category of those liable to the penalties provided for under national criminal law and designed to ensure observance by individuals of the duties imposed upon them by Community legislation. It is hardly necessary to add that as criminal law may not be interpreted otherwise than strictly, the same principle must apply to Community laws which, while not being penal in themselves, nevertheless in the last resort have repercussions in criminal law in consequence of supplementary national legislation. In my opinion, while the connexion which exists between the various duties laid down by the regulations in question makes it impossible to divide responsibility for them among a number of undertakings (a possibility which not even the Commission has suggested), it serves to show that the only undertaking subject to the duty is that which employs the driver to effect the transport. In the system defined in the Community rules the duty to keep a register of individual books ranks equal with the duties to issue the books and subsequently to withdraw and keep completed books. This is clear from paragraph 6 of the Instructions to the Undertaking for the use of the individual control book, contained in the Annex to Regulation No 514/72/EEC, which requires the undertaking withdrawing the book to enter the date of the last daily sheet in the register and to hold the used books at the disposal of the authorized inspecting officers for not less than one year (this part of paragraph 6 corresponds to the duty imposed by Article 14 (8) of Regulation (EEC) No 543/69). As we have seen, these obligations can essentially be performed only by the undertaking which is in direct contact with the crew of the vehicle whether at the time when it is ordered to make a particular journey or when the journey ends. The same applies to paragraph 5 of the Instructions to the Undertaking (‘Examine the daily sheets and the weekly report every week or, if prevented from doing so, as soon thereafter as possible. Sign the weekly report’). And where the instructions to crew members (in the Annex to Regulation (EEC) No 514/72) refer to the ‘employer’, there is to my mind no possibility whatever that this was intended to indicate as bound by the duty any party other than that designated as ‘undertaking’ in the regulation: for example paragraph 6 of the Instructions to the Undertaking makes a passing reference to No 9, which is one of those which mentions the employer. Use of the word ‘employer’ instead of ‘undertaking’ is, as I have already stated, explained by the fact that the normal situation to which the regulation applies is that in which the undertaking carrying out the transport is the undertaking by which the driver is employed. The undertaking hiring out labour may in practice find it impossible to fulfil the main requirement which underlies the Community rules, which is to enable the national authorities to check whether the work time-tables and rest periods are being observed. It may well be, for example, that the hiring undertaking is situated in a different place from that in which the transport undertaking has its premises. It may also happen, as the Commission itself has recognized, that the hiring undertaking does not know in time that the driver supplied by it to a third party has been allocated by the latter to a type of work which requires the possession of the individual control book (the driving of a vehicle not assigned to a regular service). In view of this possibility it would be wrong to make it liable for failure to fulfil a duty which depends on circumstances of which it may not be aware. For all the foregoing reasons it seems to me that there can, in the light of the Community legislation in force, be no question of holding the undertaking hiring out labour as being partly or jointly subject to the duties which under Community legislation are placed exclusively on the shoulders of the transport undertaking. The objection has been raised that, since undertakings hiring out labour are not listed among those subject to the duty to issue and hold control books, this gives rise to a practical problem because it is difficult for the transport undertaking to keep a check on the observance of the maximum weekly driving period in the fairly frequent case of a worker hired to it for a period of less than one week. In such circumstances, however, there is nothing to prevent the transport undertaking from requiring that the driver be supplied with a statement from the undertaking for which he last worked containing details of the hours worked and of his rest periods. The hiring undertaking might itself be able to supply this information. Nor, moreover, can the possibility be ruled out of a driver's going from employment by one transport undertaking to another after a working period of less than one week. The regrettable difficulty in such circumstances may arise otherwise than in cases where labour is hired; this is because, under the terms of paragraph 7 of the Instructions for the Use of the Individual Control Book, a worker must, on leaving the transport undertaking by which he was employed, hand over his book to it, even if it has only been partly used.