Opinion of Mr Advocate General Mischo delivered on 10 March 1987. - R. T. Hamilton v Joseph Stanley Wilson Whitelock. - Reference for a preliminary ruling: High Court of Justiciary (Scotland) - United Kingdom. - Specialized breakdown vehicle. - Case 79/86.



European Court reports 1987 Page 02363



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . This reference for a preliminary ruling made by the High Court of Justiciary, Edinburgh, is on the question whether a motor lorry that is adapted for use as a breakdown vehicle by virtue of being fitted with an electrically powered winch and having a demountable crane situated between two ramps at the front of it and a pully over the front of the body is exempted from the requirements of Article 3*(1 ) of Regulation No 1463/70 ( 1 ) on the installation and the use of recording equipment as being a specialized breakdown vehicle as referred to in Article 4*(9 ) of Regulation No 543/69 ( 2 ) while being used in the course of the owner' s business as a motor repairer for the purpose of transporting unroadworthy vehicles purchased by the owner from the place of purchase to his place of business with a view to their repair and sale .

2 . It is clear from the wording of the question and from all the facts of the case and the written observations submitted to the Court that it is not really contested that a vehicle of the type described is a breakdown vehicle .

3 . Moreover, it appears from the order for reference that the respondent in the main proceedings is on 24-hour "call-out" from the police in order to assist in towing away vehicles involved in accidents and that he possesses a certificate issued by the Department of Transport Goods Vehicle Testing Station certifying that his vehicle is a "recovery vehicle ".

4 . The wording of the question also suggests that the High Court of Justiciary is convinced that the particular use of the vehicle, described at the end of its question, is different from a true breakdown operation . I share that view .

5 . Like the United Kingdom, I consider that a "breakdown" service consists in removing a vehicle recently involved in an accident or having a mechanical fault from the public highway ( or from private property ). ( 3 ) The Commission, too, recognizes that the "characteristic function" of a breakdown vehicle is "carrying away a recently broken-down vehicle" ( page 6 of its observations ) even though, at the bottom of page 6, it states that "it could be maintained that the vehicle in question was actually being used as a breakdown vehicle, because it was being used to carry disabled cars, that is to say vehicles that had in effect broken down ".

6 . I should also like to point out that, in my view, the operation remains a breakdown operation even if the person performing it becomes the owner of the vehicle, provided that he buys it from the person who owned the vehicle when it broke down or was damaged in an accident .

7 . Moreover, there is no doubt that a vehicle such as that described in the question may be considered "specialized" in the technical sense of the word since it has the fitments needed for lifting or winching disabled vehicles on to it .

8 . So defined the main problem raised by this case is therefore whether a breakdown vehicle may still be regarded as a "specialized" vehicle within the meaning of the Community regulations on the use of recording equipment in road transport even if it is also used for purposes other than breakdown operations .

9 . In order to reply to that question reference should be made to the wording of Article 4*(9 ) of Regulation No 543/69 and to the aims and legal context of that regulation .

10 . Article 4 of the codified version of that regulation, published on 17 March 1979 ( Official Journal 1979, C*73, p . 1 ) states that : "This regulation shall not apply to carriage by :

...

9 . specialized breakdown vehicles ."

11 . That wording suggests that any kind of carriage whatsoever by a specialized breakdown vehicle is exempt .

12 . However, it seems to me that, if that had been its intention, the Council could very well have used a phrase such as "specialized vehicles providing breakdown services" or "specialized vehicles used in breakdown operations ". In that case, it would have clearly shown that it intended to exempt breakdown lorries only in so far as they were actually engaged in breakdown operations .

13 . In Article 4*(1 ) for example, the Council specifies that the regulation is not to apply to "vehicles which in construction and equipment are suitable for carrying not more than nine persons including the driver and are intended for that purpose ". In Article 4*(7 ) it refers to "tractors and other machines used exclusively for local agricultural and forestry work ".

14 . Since it did not in fact use such a form of words in the case now in question, it must therefore be concluded that the Council did intend to exempt certain vehicles on account of their particular characteristics .

15 . The Court recognized this in its judgment of 28 March 1985 in Joined Cases 91 and 92/84 Director of Public Prosecutions and Sidney Hackett Limited and Roy Thomas Weston v Raymond C . Tetlow and Perman George Dovey (( 1985 )) ECR 1139 ) in which the Court stated that :

"16 Article 14a allows the Member States to exempt certain types of transport from the requirement to use the tachograph . Those types of transport are characterized either by the limited area in which services are provided or their discontinuous nature or by the special nature of the transport operations or of the vehicles used ."

16 . Since Article 4 contains the same kinds of distinctions as Article 14a, the Court' s reasoning obviously applies to that article as well .

17 . If the Council has therefore exempted "specialized breakdown vehicles" as such, it is undoubtedly because it considered that such a derogation was not liable to jeopardize substantially the aims of Regulation No 543/69 .

18 . What are those aims? The Court stated them in paragraph 16 of its judgment of 11 July 1984 in Case 133/83 Regina v Scott (( 1984 )) ECR 2863, at p . 2877 . They are the social protection of drivers, the improvement of road safety and the elimination of disparities liable to cause distortion of competition in road transport .

19 . Amongst the means used by the Council in order to achieve those aims, the provisions restricting driving time are especially important .

20 . As Mr Advocate General Lenz stated in his Opinion delivered on 29 May 1984 in Case 133/83 which I have just cited, "the vehicles referred to ... should also be eligible for exemption from supervision by means of tachograph recording equipment where the vehicles' special characteristics alone rule out the risk of the prescribed driving period being exceeded" ( p . 2884 ).

21 . In my view, that was the reasoning followed by the Council with regard to specialized breakdown vehicles .

22 . In following that reasoning, however, the Council took a certain risk because it is not certain that the working hours of the driver of such a vehicle will never be excessive .

23 . The driver of a breakdown vehicle on 24-hour call at the height of the tourist season on a section of one of the main motorways to southern Europe or in another region with heavy tourist traffic may, on certain days, be required to work without interruption for 10 or 12 hours . A breakdown lorry which, in exceptional circumstances, has to transport to Scotland a vehicle which has been involved in an accident or has broken down in the south of the United Kingdom or vice versa may be on the road for more than eight hours .

24 . Finally, a specialized breakdown vehicle may, if required, as was the case with the breakdown vehicle belonging to the respondent in the main proceedings, be used for an operation which is not a breakdown operation in the strict sense, namely to transport one or more vehicles which did not break down on the same day, which are no longer on the public highway and which have been taken to a place situated several hours' drive away from the premises of the breakdown undertaking .

25 . One may therefore assume that the Council considered that such operations would be undertaken only on exceptional occasions and that the vehicles in question, precisely because of their construction or equipment, would be used primarily for breakdown operations properly so called, carried out at reasonable intervals within a limited geographical radius of the operator' s premises .

26 . That interpretation is also confirmed, in my view, by the judgment of the Court in the Regina v Scott case, cited above .

27 . In that case, the provision requiring interpretation, Article 14a of Regulation No 543/69, was worded as follows :

"Member States may, after authorization by the Commission, grant exemptions from this regulation for the following national transport operations and uses :

( a ) use of specialized vehicles ... for door-to-door selling ...".

28 . The question referred by the national court was as follows :

"Whether, upon the true interpretation of the exemption ..., the word 'specialized' is meant to apply to the characteristics of the particular vehicle alone, or to the activity of door-to-door selling alone, or to a combination of both : and if the latter interpretation is correct, what degree of interrelation is meant?"

29 . The fact that in Article 14a*(3 ) the emphasis is more on "transport operations and uses" and less on "vehicles", as in Article 4*(9 ), might have served as a basis for the Court to restrict the exemption solely to cases in which the vehicles in question are actually used for door-to-door selling .

30 . However, the Court referred instead to the characteristics of the vehicles and did not rule out occasional use for other purposes since the answer which it gave was as follows :

"The term 'specialized vehicle' for certain types of transport operations within the meaning of Article 14a*(3)*(a ) of Regulation No 543/69 ... is intended to cover exclusively vehicles whose construction, fitments or other permanent characteristics guarantee that they are used primarily for one of those operations, such as door-to-door selling ."

31 . The fact that a vehicle fitted with shelves for the sale of bread may possibly also be used by its owner for going to fetch sacks of flour from a mill did not therefore seem to the Court a sufficient reason for holding that such a vehicle was a specialized vehicle for door-to-door selling and for refusing the Member State the right to exempt it from the obligation to fit a tachograph .

32 . Similarly, a vehicle equipped for breakdown operations must, if required, be capable of fetching, in non-emergency situations, broken-down vehicles from a place other than that where they were involved in an accident or broke down .

33 . The same rule must apply a fortiori where the provision to be interpreted makes no reference to the vehicle' s use but only to its nature .

34 . However, in the case under examination, a particular problem arises inasmuch as a lorry fitted with a winch, a crane and ramps might be of such a size that there is no longer any guarantee that it will be used primarily for breakdown operations .

35 . Indeed, from the moment that such a vehicle is able to transport a number of vehicles together, the possibility that it may be used primarily to collect broken-down vehicles from various garage operators in order to transport them to scrap-yards, for example, increases considerably . That would then constitute a standard transport operation, which might involve long distances and long driving hours . Moreover, above a certain size, such vehicles would no longer be suitable for manoeuvring in the narrow streets of towns and for that reason too would lose their character of breakdown vehicles .

36 . The judgment delivered on 2 December 1983 by the Queen' s Bench Division of the High Court in England in the case of Universal Salvage Limited and Another v Boothby, a report of which is annexed to the observations submitted by the United Kingdom, provides an example of an extreme case of that type . The vehicle concerned was a vehicle of the type used to transport new motor cars from their place of manufacture to the distributors but was fitted with a winch and other equipment for loading broken-down motor cars ( seven in total ).

37 . It was not disputed that the vehicle concerned was used exclusively for collecting motor cars from certain collection points, usually garages, but never from the place of accident or breakdown .

38 . I do not think that anyone could disagree with the judgment of the Queen' s Bench Division which held that such a vehicle was not a specialized breakdown vehicle .

39 . That example shows that in the context of this case it is important to indicate the point at which lorries with equipment for lifting or winching disabled vehicles on to them can no longer be regarded as "specialized breakdown vehicles" within the meaning of Article 4*(9 ) of Regulation No 543/69 .

40 . Since that provision refers to the type of vehicle and not to its use, the indications which the Court might give in this regard also cannot, in my view, refer to the actual use of such vehicles, except to uses which may be inferred from their specialized nature . Instead, they should be based on objective criteria related to the characteristics of the vehicle .

41 . One conceivable solution in this regard would be to take into consideration the number of cars which could be transported by the same breakdown vehicle and to adopt as a criterion the capacity to carry a single large or medium-sized vehicle ( or alternatively two very small vehicles of the "Mini" type ).

42 . But what would happen in the case of an accident involving two large or medium-sized vehicles? If the garage-operator used a trailer in order to be able to remove the two vehicles from the public highway in a single operation, would that necessarily mean that the vehicle was no longer a specialized breakdown vehicle? To me that view would seem too strict .

43 . On reflection and having regard to the various situations which may occur, I would not wish to suggest that the Court should adopt a criterion based on the number of vehicles transported . It seems to me that the national court should be left to decide in each individual case whether or not the particular vehicle or vehicle/trailer combination ( if the owner also has a trailer ) may, having regard to its permanent characteristics and in particular to its size, be used primarily for breakdowns properly so called, that is to say the removal of accident-damaged or broken-down vehicles from the public highway .

44 . In other words, the solution I am advocating is to restate the ruling in Regina v Scott whilst emphasizing that, among the permanent characteristics of the vehicle, particular consideration must be given to its size or carrying capacity and defining what is meant by "breakdown ".

Conclusion

45 . I therefore propose that the Court' s reply to the question submitted by the High Court of Justiciary, Edinburgh, should be as follows :

46 . A motor lorry which is adapted for use as a breakdown vehicle must be regarded as a "specialized breakdown vehicle" within the meaning of Article 4*(9 ) of Council Regulation No 543/69 and therefore exempted from the requirements of Article 3*(1 ) of Council Regulation No 1463/70 even when used in the course of the owner' s business as a motor repairer to transport unroadworthy vehicles bought by the owner with a view to their repair and sale from the place of purchase to the owner' s place of business, provided that the vehicle' s construction, equipment, size and other permanent characteristics guarantee that it is used primarily for removing accident-damaged or broken-down vehicles from the public highway .

47 . Where the owner also has a trailer, it is for the national court to decide whether, having regard to the size of the vehicle/trailer combination, there is still a reasonable guarantee that the combination is used primarily for such operations .

(*) Translated from the French .

( 1 ) Regulation ( EEC ) No 1463/70 of the Council of 20 July 1970 on the introduction of recording equipment in road transport ( Official Journal, English Special Edition 1970 ( II ), p . 482 ), as amended by Council Regulation ( EEC ) No 2828/77 of 12 December 1977 ( Official Journal 1977, L*334, p . 5 ).

( 2 ) Regulation ( EEC ) No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport ( Official Journal, English Special Edition 1969 ( I ), p . 170 ), as amended by Council Regulation ( EEC ) No 2827/77 of 12 December 1977 ( Official Journal 1977, L*334, p . 1 ).

( 3 ) Breakdown operations consisting in restarting vehicles at the place where they broke down may be ignored in the present context .