Opinion of Mr Advocate General Tesauro delivered on 20 January 1994. - Criminal proceedings against Van Swieten BV. - Reference for a preliminary ruling: Arrondissementsrechtbank Amsterdam - Netherlands. - Road transport - Social provisions: applicability to transport operations in which part of the route passes through a State not a party to the ERTA - "Period of 24 hours" and "day". - Case C-313/92.



European Court reports 1994 Page I-02177



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The national court, the Arrondissementsrechtbank, Amsterdam, has submitted two questions for a preliminary ruling on the interpretation of Council Regulation (EEC) No 3820/85 of 20 December 1985. (1)

The first question concerns the interpretation of Article 2 of the regulation, which defines the scope of the legislation. Essentially, the question is whether a transport operation:

- by a vehicle registered in a Member State,

- which takes place partly within the Community and partly in the territory of a non-member country which is not a signatory to the European agreement concerning the work of crews of vehicles engaged in international road transport (AETR), (2)

is subject, for the part of the journey within the Community, to the regulation or to the national legislation of the Member State of registration.

The second question concerns the interpretation of Article 8(1) of the regulation and in particular of the term "period of 24 hours" used in that provision for the purpose of calculating the "minimum daily rest period".

The facts

The two questions were submitted in relation to criminal proceedings brought in the Netherlands against the transport undertaking Van Swieten BV. Following checks carried out by the national administration, it appeared that, for some journeys taking place partly outside the Community, drivers had not observed the prescribed rest period.

After a guilty verdict at first instance, the appeal court took the view that doubts existed concerning the applicability of Council Regulation No 3820/85 and the meaning of Article 8(1) of that regulation and, specifically, the method of calculating the minimum daily rest period to be observed by each driver. The court therefore stayed the proceedings and asked the Court of Justice to give a preliminary ruling on the two points mentioned above.

The scope of Regulation No 3820/85

2. The present case, as mentioned, is concerned with a transport operation by a vehicle registered in the Netherlands, which took place partly in Switzerland. Switzerland is not one of the signatories to the AETR. The issue is whether such a transport operation, taking place in part outside the Community, comes within the scope of Regulation No 3820/85, as defined by Article 2 thereof.

3. The provision contemplates three hypotheses:

(a) transport operations "within the Community" (Article 2(1)): in this case, the provisions of the regulation apply;

(b) international transport operations to and/or from non-Member countries which are contracting parties to the AETR (first indent of Article 2(2)): in this case, the AETR applies for the whole of the journey, provided that the vehicle is registered in a Member State or in one of the non-Member countries referred to in that indent;

(c) international transport operations to and/or from or in transit through non-Member countries which are not parties to the AETR (second indent of Article 2(2)): in this case the agreement also applies, but only to the part of the journey made within the Community and provided that the vehicle is registered in one of the non-member countries referred to in that indent.

4. It is common ground that the situation involved in these proceedings does not fall within cases (b) or (c): not in case (b), since Switzerland is not a party to the AETR; and likewise not in case (c), since the vehicle in question is registered in a Member State. It follows that the AETR is inapplicable in any event.

5. Can it be concluded that the present case falls within the scope of case (a) and that, therefore, it is subject to the provisions of the regulation, or must it be concluded that it falls wholly outside the regulation and consequently is governed solely by the legislation of the Member State of registration?

6. The answer to that question obviously depends on the way in which Article 2(1) of the regulation is interpreted, and more precisely the expression "within the Community" used in it.

7. The provision has been read in two different ways.

According to a first - and restrictive - interpretation, Article 2(1), by using the expression in question, is intended to limit the application of the regulation solely to transport operations taking place entirely within the Community.

According to another interpretation, on the other hand, the provision covers any transport operation taking place wholly or in part within the Community (provided, of course, that the operation is not covered by one of the two specific provisions of Article 2(2)).

8. In my view, the second interpretation must be upheld, on the basis of reasoning of a teleological and systematic nature.

It must first be pointed out in that connection that the regulation is intended to harmonize certain conditions concerning transport operations, in particular a number of requirements of a social nature intended to ensure road safety and safeguard the health of drivers. In other words, the regulation, which in fact replaces rules already laid down in an earlier regulation of 1969, (3) establishes within the Community a uniform system which takes the place of the various national regulations.

Against that background, with a view to attaining the objectives set by it, the regulation is clearly intended to govern any transport operation taking place within the EEC, that is to say any intra-Community journey, it being immaterial whether or not that journey is part of longer itinerary passing also through non-Member countries.

Any other interpretation would undermine the usefulness of the regulation in so far as it would remove from the Community system and subject to differing national provisions transport operations taking place in the Community which, as such, should be subject to uniform social provisions in order to ensure equal conditions of competition between transport undertakings.

9. That the interpretation advocated here is the only one consistent with the logic of the regulation is also confirmed by the fact that in the earlier regulation of 1969 there was no doubt that the Community legislation was to apply to transport operations part of whose itinerary was outside the Community. According to Article 2 of Regulation No 543/69, it applied to "any journey or part of a journey made within the Community". The various amendments made to Article 2 over the years have been designed simply to coordinate the application of the Community regulation with the provisions of the AETR, but they certainly were not intended, in the absence, moreover, of an explicit indication to that effect, to narrow the sphere of application of the Community system in relation to cases which do not in any event fall within the scope of the AETR.

The daily rest period referred to in Article 8(1) of Regulation No 3820/85

10. Article 8(1) of the regulation provides that "in each period of 24 hours" the driver is to have a "daily rest period of at least 11 consecutive hours" (which may be reduced in specified circumstances).

11. The question of interpretation in this case is relatively simple. Once again, two readings are possible. According to the first, each "period of 24 hours" referred to in Article 8(1) has a predetermined time of commencement (fixed start) and constitutes a period in itself. The first such period begins at the end of the weekly rest; at the end of the "first period of 24 hours", a second period commences, then a third and so on until the next weekly rest. That interpretation centres on the fact that the daily rest period of 11 hours must take place within each "period of 24 hours" considered separately. In other words, when a new period commences no account must be taken of what occurred during the previous period (the clean slate criterion).

One of the possible practical consequences of the fixed-start criterion is that the driver is allowed to have two consecutive "driving periods", (4) one at the end of a "period of 24 hours" and the other at the beginning of the next "period of 24 hours". That would not constitute an infringement of Article 8, since, within each "period of 24 hours" considered separately, the driver satisfies the requirement of a daily rest. Nevertheless, if, by virtue of the clean slate principle, no account is taken of what occurred during the immediately preceding period, it may happen that, by straddling two "periods of 24 hours", the driver remains at the wheel of a vehicle for a much longer period of time.

12. An example, taken from the observations of the United Kingdom, illustrates more clearly what I have just said. Take the case of a period of 24 hours which commences at 8 a.m. on Monday, after the end of the weekly rest period. If, after driving for half an hour, the driver commences his daily rest period of 11 hours (from 8.30 a.m. to 7.30 p.m. on Monday), it may be considered that he has fulfilled (for the first period of 24 hours) the requirement of a daily rest laid down by Article 8(1). At this point, the driver (observing the conditions concerning driving time and breaks laid down in Articles 6(1) and 7 of the regulation) may drive for 10 hours, from 7.30 p.m. on Monday until 7 o' clock the following morning (10 hours driving plus a break of one-and-a-half hours). At 8 a.m. on Tuesday the second period of 24 hours commences. If the clean slate criterion is applied, the driver may drive for a further period of 10 hours, with the prescribed breaks, before commencing, at 7.30 p.m. on Tuesday, the second 11 hour rest period.

13. In such circumstances, the condition laid down by Article 8(1) would be formally satisfied, since, in the second period of 24 hours, between 8 a.m. on Tuesday and 8 a.m. on Wednesday, the driver would in any event have observed a daily rest period of 11 hours. Nevertheless, the clean slate criterion produces a perverse effect, in that it allows the driver, as appears from the example given, to drive for a 24 hour stretch, from 7.30 p.m. on Monday to 7.30 p.m. on Tuesday, without any rest period being required; moreover, in the same example, the driver would actually be driving a vehicle for a period of 20 hours, with intermittent breaks of four hours.

14. According to the other interpretation, on the other hand, the periods of 24 hours within which there must be an 11 hour rest do not start at a predetermined time but rather at the end of the previous (daily or weekly) rest period (flexible start). Returning to the example given earlier, it is easy to show that the application of the flexible start criterion gives rise to consequences very different from those resulting from the fixed start criterion. In practice, a driver who has driven from 7.30 p.m. on Monday to 7 a.m. on Tuesday will not be able to undertake a further period of driving until 7.30 p.m. on Tuesday. In accordance with the flexible start criterion, the "period of 24 hours" referred to in Article 8(1) starts to run from the end of the previous rest period (that is to say, from 7.30 p.m. on Monday); it follows that, after having driven until 7 a.m. on Tuesday, the driver must necessarily stop driving and take a further rest period of 11 hours in order to comply with the provisions of Article 8(1); otherwise, he would have spent a full period of 24 hours (from 7.30 p.m. on Monday to 7.30 p.m. on Tuesday) driving, which is specifically prohibited by Article 8(1).

15. Of the two interpretations, the second seems to me clearly preferable, having regard both to the aim of the provision and to the scheme of the regulation.

Article 8(1), and more generally the regulation in which it appears, are intended inter alia to ensure road safety and to improve the working conditions of drivers. That being so, Article 8(1) provides that, within the space of 24 hours, at least 11 hours are to be spent resting. The provision is thereby intended to ensure that driving and rest alternate daily so as to ensure that the driver does not find himself at the wheel of the vehicle in a state of physical and mental tiredness and therefore liable to endanger his own safety and that of others.

That provision therefore pursues the same aim as Articles 6 and 7 of the regulation, which concern, respectively, the duration of the driving period between two daily rest periods and breaks during the driving periods.

16. As correctly observed by the Commission and the United Kingdom, the fixed start criterion appears to conflict with the aim pursued by Article 8, in that, as is apparent from the example given earlier, that criterion may enable a driver to remain at the wheel (subject to the prescribed breaks) for 24 hours at a stretch, without any period of daily rest. The result therefore would be merely formal compliance with the provision and that would manifestly run counter to the aim pursued since the driver could quite well fail to alternate properly between driving and resting in accordance with the main objective of Article 8(1).

17. A further point must be considered. The fixed start criterion, allowing a driver to undertake two consecutive driving periods (in the example, from 7.30 p.m. on Monday to 7 a.m. on Tuesday and from 7 a.m. on Tuesday to 7.30 p.m. on the same day), would also give rise automatically to an infringement of Article 6 of the regulation, which provides that the daily driving period between two rest periods must never exceed 10 hours.

18. I consider, therefore, that the flexible start criterion must be upheld, which, by making the "period of 24 hours" commence not from a fixed time but rather from the end of the previous rest period, ensures that, over 24 hours, there is a proper balance between driving and resting and that that rhythm is then observed throughout the working week.

19. A final observation is called for which, by contrast with the views put forward in some of the submissions made to the Court, seems more pertinent to the answer to the second question.

20. The question was asked whether, in calculating driving hours in order to check whether or not the driver has complied with Article 8(1), account must be taken of time spent driving in non-Member countries.

21. I think that question must be answered in the affirmative. Indeed, it must be taken for granted that the Community rules contained in the regulation apply to infringements committed (and ascertained) within the Community, which is the case where it is established by the supervisory authority that a driver has not observed the daily rest period required by Article 8(1).

In those circumstances, it is irrelevant that part of the conduct constituting the infringement occurred outside the Community; what is important is the fact that the conduct (the excessive duration of the driving period) contemplated and penalized by the regulation was completed in the Community.

Furthermore, any other solution would be absolutely illogical. Article 8(1) lays down a precise and uniform limit in order to ensure that, within the Community, goods vehicles are not driven by drivers who are tired as a result of failing to take sufficient rest; and, from that point of view, it is immaterial that part of the driving was not performed within the Community: a driver is certainly not made less tired by driving for part of the day in Switzerland rather than in Germany.

Conclusion

22. In the light of the foregoing considerations, I suggest that the Court give the following answers to the national court:

(1) pursuant to Article 2(1) of Regulation No 3820/85, that regulation applies to carriage by road using vehicles registered in a Member State as regards the part of the journey made within the Community even where the transport operation in question took place partly outside the Community;

(2) the expression "period of 24 hours" in Article 8(1) of Regulation No 3820/85 must be taken to mean a period of time, comprising 24 hours, commencing at the end of the previous daily or weekly rest period;

in order to verify whether, within a "period of 24 hours", a driver has complied with the requirement of a daily rest laid down in Article 8(1) of Regulation No 3820/85, account must also be taken of time spent driving in non-Member countries.

(*) Original language: Italian.

(1) - Council Regulation (EEC) No 3820/85 on the harmonization of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).

(2) - The agreement was signed in Geneva on 1 July 1970 under the auspices of the United Nations Economic Commission for Europe.

(3) - Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport (OJ, English Special Edition 1969 (I), p. 170).

(4) - Pursuant to Article 6 of Regulation No 3820/85, the driving period taking place between two daily rest periods (or between the daily rest period and a weekly rest period) should not, in principle, exceed nine hours.