Opinion of Mr Advocate General Léger delivered on 16 December 1997. - Criminal proceedings against Anders Sjöberg. - Reference for a preliminary ruling: Svea hovrätt - Sweden. - Social legislation relating to road transport - Exception granted for vehicles used by public authorities to provide public services which are not in competition with professional road hauliers - Obligation on the driver to carry an extract from the duty roster. - Case C-387/96.



European Court reports 1998 Page I-01225



Opinion of the Advocate-General

1 Svea Hovrätt (the Svea Court of Appeal, (Sweden)) has requested the Court to rule on the scope of an exception which may be granted from the rules on driving periods and rest periods applying to road transport, and to specify the extent of the monitoring to ensure compliance with the relevant rules.

The relevant rules

2 These rules, as currently set out in Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (1) (`the regulation'), pursue three objectives: road safety, harmonisation of conditions of competition and social progress. (2)

3 To that end, Regulation No 3820/85 lays down driving and rest periods for those drivers engaged in road transport who come within its scope.

4 These extremely detailed rules can only be modified to a very limited extent.

5 In addition to the 13 categories of vehicles which are systematically exempted (Article 4) (3) and to derogations for national rules which are more restrictive (Article 11) or apply in exceptional circumstances (Article 13(2)), any Member State may, provided it informs the Commission accordingly, grant exceptions from the rules for domestic transport by means of 11 very specific categories of vehicle (Article 13(1)(a) to (k)).

6 Such national exceptions may be granted, under Article 13(1)(b), in respect of `vehicles used by public authorities to provide public services which are not in competition with professional road hauliers'.

The Kingdom of Sweden has used its right to grant exceptions for this category of vehicle. (4)

7 In order to ensure effective monitoring of the provisions concerning working periods, the Council adopted Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport. (5) The Court has ruled that the approved recording equipment known as a `tachograph' is `designed to record, automatically or semi-automatically, on approved record sheets, data relating, in particular, to driving and other working periods of drivers, and their daily and weekly periods of availability and rest'. (6)

8 As a rule it is compulsory to install and use a tachograph in vehicles registered in a Member State which are used for the carriage of passengers or goods by road. However, provided they inform the Commission accordingly, Member States may exempt, inter alia, vehicles mentioned in Article 13(1) of Regulation (EEC) No 3820/85 from this requirement (Article 3(2) of Regulation No 3821/85). A systematic exemption is in any case provided in respect of vehicles mentioned in Article 4 and Article 14(1) of Regulation No 3820/85 (Article 3(1) of Regulation No 3821/85).

9 As regards the latter, when used for regular passenger services (7) and not fitted with a tachograph, compliance with the rules is monitored by means of a duty roster. Article 14 of Regulation No 3820/85 provides:

`1. In the case of

- regular national passenger services, ... ....

which are subject to this regulation, a service timetable and a duty roster shall be drawn up by the undertaking.

2. The duty roster shall show, in respect of each driver, the name, place where based and the schedule laid down in advance for various periods of driving, other work and availability.

3. The duty roster shall include all the particulars specified in paragraph 2 for a minimum period covering both the current week and the weeks immediately preceding and following that week.

...

5. Each driver assigned to a service referred to in paragraph 1 shall carry an extract from the duty roster and a copy of the service timetable.

...'

10 The Swedish appeal court is seeking clarification as to the application of Article 13(1)(b) and Article 14(5) of Regulation No 3820/85 in order to resolve a case the features of which are as follows.

Facts and procedure

11 The details of how public road passenger services are organised at national and local level are given in the order for reference. In Sweden, a county council, which is called a landsting, is elected in each län (county), and this body is responsible inter alia for certain local and regional public road passenger services. In Stockholm Län, the Landsting has sole responsibility for such management. It performs this function through the company Aktiebolaget Storstockholms Lokaltrafik (`SL'), a limited company operating local services within Greater Stockholm, which is wholly owned by the Landsting. This company has nine subsidiaries operating the local network, including SL Buss AB. Since 1993 transport services have been put out to tender, with the subsidiaries, including SL Buss AB, competing with outside undertakings.

12 Having been selected following this procedure, SL Buss AB provides regular bus services in various areas within Stockholm Län under agreements which normally last three to five years but which can be extended to ten years.

13 Mr Sjöberg, the manager of SL Buss AB, has been found guilty of infringing the Swedish regulation relating to driving time and recording equipment in road transport, (8) and Article 14 of Regulation No 3820/85. The buses which were checked were not fitted with recording equipment and the drivers were not in possession of an extract from their duty rosters.

14 On appeal, he is seeking annulment of the prosecution, claiming that the vehicles operated by SL Buss AB are exempt from application of Regulation No 3820/85 under Article 13(1)(b) thereof, since they are `vehicles used by public authorities to provide public services which are not in competition with professional road hauliers'. In that regard he considers it irrelevant whether hauliers are private or public. He also challenges the charge that none of the drivers who were checked was carrying with him an extract from the duty roster as laid down in Article 14(5), since those drivers were in a position to show the duty roster extracts for the day in question.

15 However, the public prosecutor contends that SL Buss AB is a private undertaking and not a public authority and that it competes with other companies to provide regular passenger services in particular areas or on particular routes. The services provided by the company should not be entitled to benefit from the derogating provision relied upon. The duty roster extract referred to in Article 14(5), the public prosecutor considers, is designed to replace the tachograph for certain vehicles used for particular types of service. Its purpose is to enable spot checks to be carried out not only on what breaks and rest periods have been taken on a particular day but also on the rest periods taken by a driver during any 24-hour period. A duty roster extract which only covers one day is therefore not sufficient.

16 Being unsure whether the provisions relied on apply, Svea Hovrätt has referred the following questions to the Court :

`(1) Is the exception contained in Article 13(1)(b) of Council Regulation No 3820/85 applicable to the services run by Stockholm Landsting using SL Buss AB?

(2) According to Article 14(5) of that regulation, each driver assigned to a service referred to in paragraph 1 must carry an extract from the duty roster and a copy of the service timetable. Is it sufficient for the extract from the duty roster to cover only the journeys made on the day in question?'

The first question

17 The Swedish court asks the Court of Justice in its first question, which needs to be reworded, to specify the scope of the derogation from Regulation No 3820/85 which may be granted under Article 13(1)(b) in respect of `vehicles used by public authorities to provide public services which are not in competition with professional road hauliers'.

18 Although interpretation of this regulation and those which preceded it has already formed the subject of a considerable number of rulings, this is the first time the Court has been asked to rule on this particular provision.

19 Let me begin by saying that, being a derogation from the general scheme, Article 13 may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure. Furthermore, the scope of the exceptions for which it provides must be determined in the light of the aims pursued by the regulation. (9)

20 As I have already mentioned, the objectives of the regulation are the harmonisation of conditions of competition between hauliers, and the improvement of working conditions and road safety. It is also intended to make the provisions of Council Regulation (EEC) No 543/69 more flexible, without undermining its objectives. (10)

21 Those are the factors to be borne in mind when seeking to determine the scope of the exception at issue.

22 The wording of Article 13(1)(b) of Regulation No 3820/85 means that Member States may grant such exceptions only if five conditions are met concurrently: (1) the service must operate on the territory of the Member State granting the exception or, with the agreement of the State concerned, on the territory of another Member State; (2) the Commission must have been informed in advance by the Member State of its intention to grant the exception; (3) the vehicles concerned must be used to provide public services; (4) the vehicles must be used by public authorities; (5) the vehicles must not compete with professional road hauliers.

23 The first three conditions do not raise any particular difficulties in this case.

24 Firstly, the services at issue are only operating in Sweden, in the Stockholm region specifically.

25 Secondly, the Commission does not deny that the regulation mentioned in the order for reference, (11) which provides for the exception under Article 13(1)(b) in Sweden, was indeed brought to its notice.

26 Lastly, SL Buss AB was awarded the contract to operate a public bus service by the Landsting as part of the latter's local and regional responsibility for providing a regular public road passenger service.

The representative of the Swedish Government claimed at the hearing, however, that vehicles used for the public passenger services could not be regarded as `vehicles used for public services' within the meaning of the provision at issue. It is correct that this category of vehicle is already covered by other provisions of the regulation. However, I do not think one can use this as a reason to exclude this category of service from the scope of the exception which may be granted under Article 13. The other provisions of the regulation do not cover all the categories of public passenger services. For example, the services at issue are not for `the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres', the category covered by the general exemption under Article 4(3). (12) Nor does the number of passengers carried in this particular case qualify for the exception under Article 13(1)(a) in respect of `vehicles used for carrying passengers, which by virtue of their construction and equipment, are suitable for carrying not more than 17 persons, including the driver, and are intended for that purpose'.

Moreover, I feel that there is nothing in the letter of Article 13(1)(b), which contains a broad reference to `public services', that allows us to exclude public passenger services from that category.

27 However, the way in which I suggest the Court should interpret the other two conditions for applying the derogation contained in Article 13(1)(b) means that in my view companies like SL Buss AB cannot rely on that provision.

28 The appellant in the main proceedings and the Commission have suggested a broad interpretation of the requirement relating to use by public authorities, which would permit the use of vehicles by private undertakings providing a public transport service under the control of public authorities.

29 That approach cannot be accepted.

30 It must again be stressed that a strict interpretation of the exceptions permitted is particularly necessary where road safety is at stake. The wider the scope of the exceptions, the greater the number of vehicles not subject to the detailed rules on working time in this sector. The risks as regards road safety are clear for all to see.

31 The Court's case-law confirms this essential consideration.

32 In the Court's judgments in the Goupil and Mrozek and Jäger cases, cited above, when asked to give a detailed ruling on this point as regards the general exemptions provided for under Article 4(6) in respect of vehicles used for general services performed in the public interest, (13) the Court held that `the vehicles in question do not have to be used by the public authorities directly in order to benefit from the exemption ... the derogation may benefit not only the public authorities but also private undertakings which provide a general service in the public interest under their control'. The justification given by the Court was, however, that `Unlike the provision it replaces, namely Article 4(4) of Regulation No 543/69 ... Article 4(6) of Regulation No 3820/85 no longer refers to "vehicles which are used by other public authorities for public services". The result of that amendment in the wording is that the derogation may benefit not only the public authorities but also private undertakings which provide a general service in the public interest under their control'. (14)

However, Article 13(1)(b), which is under consideration in the present case, does in fact contain an express reference to `vehicles used by the public authorities to provide public services'. Thus it would conflict with the letter of the regulation if `vehicles used by the public authorities' were to include, in such a context, vehicles used by private undertakings operating public services under the control of the public authorities.

33 Similarly, in its judgment in the Nehlsen case, (15) the Court was specifically required to interpret the previous Article 4(4) of Regulation No 543/69, to which the two judgments cited above refer, which systematically exempted from the scope of the legislation a certain number of public service vehicles, and vehicles used by `other public authorities for public services which are not in competition with professional road hauliers'. The previous text was exactly the same as the present Article 13(1)(b). The Court held, in paragraph 8 of the judgment, that the exception extended only to `vehicles owned by or under the control of the public authority', and not to vehicles belonging to a private undertaking and used by it to perform a public service or a service in the public interest which it has undertaken to provide under a contract governed by private law.

34 I would add finally that on 18 April 1988 the Commission submitted to the Council a proposal for a regulation amending Regulation No 3820/85 and Regulation No 3821/85, (16) in the light of the fact that, since `... many public services are now performed by private undertakings, it is necessary to specify that only public authority vehicles or vehicles under contract to public authorities are excluded from the scope of these provisions'. (17) The Commission suggested replacing Article 4(6) by the following: `vehicles used by public authorities or under contract to public authorities ...'. (18) Unless I am mistaken, that proposal was not accepted by the Council. However, although intended to amend Article 4(6) and not Article 13(1)(b), it clearly indicates an intention to extend the scope of the exceptions which can be granted. It would appear that the legislature has not so far shared this view.

35 I shall conclude on this point that the national exception available under Article 13(1)(b) can be granted only in favour of public authorities and not of private undertakings providing a public service under the control of the public authorities.

36 On that ground alone SL Buss AB could not be allowed to claim the benefit of the derogating provisions of Article 13(1)(b) if it were to be regarded as a private undertaking. However, since it is a subsidiary of the company SL, which is wholly owned by the Landsting, it cannot be stated for certain that it does not meet the condition of having the status of a public authority. It is for the national court to rule on whether this criterion is indeed met. We shall see, however, that at all events the condition that it must not be in competition with professional road hauliers is not met in this particular case.

37 I shall begin by stressing once again that harmonisation of conditions of competition is one of the objectives pursued in this area. This demonstrates the importance, for the application of the contested regulation, of the criterion that the services on which the passengers are carried must not be in competition with professional hauliers.

38 The Commission considers that whether this factor - absence of competition - exists is only to be assessed at the time the contract is performed. Even if one were to follow that approach, it is not clear that the criterion thus understood would be met in this particular case. Indeed, although the defendant in the main proceedings claims to have exclusive rights on the routes operated, the public prosecutor in the national court disputes that view, claiming that other bus services are available to travellers on certain routes served by SL Buss AB. (19) It is for the national court to find what the actual position is on the basis of the facts.

39 More importantly, however, unlike the Commission, I take the view that the absence of competition with other professional road hauliers should also be assessed both when the exclusive right to provide a public service is granted and when renewal of the contract granting that right is being contemplated. As the French and United Kingdom Governments have pointed out, it would be quite artificial to claim that private operators are not in a competitive situation when they are awarded contracts to operate public services.

We must remember that, unlike the period prior to 1993, when SL Buss AB enjoyed a monopoly over public passenger services in certain areas, since that date it has been competing against other undertakings in tendering for contracts. Moreover, although if awarded a contract it would operate the service exclusively (the national court needs to ascertain this point), a private undertaking like SL Buss AV, which is subject to market forces and wishes to maximise its profits, cannot fail to think about whether its contract would be renewed at the end of the term for which it has been concluded, and indeed whether it might win further contracts for other areas.

Thus an undertaking which is awarded an initial contract and so during the term of its public service mandate does not have to comply with restrictive Community regulations, unlike other private hauliers, including those operating on different routes, will be in a position to put forward a more competitive bid at the time of the next tendering procedure. Such a consideration seems to me to be inevitable, since the undertaking's running costs, for example, could be reduced by employing the minimum number of drivers but making them work the maximum number of hours, and such a policy would not be subject to any checks, precisely because a derogation from the Community rules had been allowed.

40 Confirmation of this view is to be found in the judgment of the Court in Case C-116/91 British Gas, (20) in which the Court held that an undertaking transporting gas appliances sold to the public could not benefit from the general exemption under Article 4(6) of Regulation No 3820/85 where `that undertaking would enjoy a competitive advantage over [other] undertakings ... if it were exempted from the requirement to install and use a tachograph in vehicles used for the transport of such appliances. It would thus save the cost of installing and maintaining tachographs in such vehicles which other undertakings supplying domestic gas appliances have to bear'. (21)

41 It seems to me that the judgment in Nehlsen, cited above, follows the same reasoning. In that case the Court held that exemptions for `vehicles which are used by other public authorities for public services' only apply in `situations where no element of competition can exist'. (22) So, since there was no clear and explicit indication in the wording of the previous Article 4(4) the Court excluded it from applying to `carriage by vehicles belonging to private undertakings which have competed for a contract to provide a public service'. (23)

42 I consider therefore that the national exception available under Article 13(1)(b) only applies in situations where no element of competition can exist.

43 On those grounds, I think that the scope of the exception available under Article 13(1)(b) must be limited to vehicles used directly by public authorities, to the exclusion of vehicles used by private undertakings under the control of public authorities, for public services such as a public bus passenger service, where no element of competition with professional hauliers can exist.

The second question

44 Consideration of the second question referred to the Court will not take long. All the observations lodged agree that the extract from the duty roster which must be carried by a driver assigned to a regular national passenger service, (24) under Article 14(5), cannot be restricted to cover only the driving on the day in question.

45 This seems to me obvious if, in accordance with the case-law of the Court, (25) one looks at the aims of this regulation both to improve road safety and to ensure effective monitoring of working time, and at its purpose.

46 On this last aspect, I should like to point out that the extract from the duty roster, which every driver assigned to a regular national passenger service must carry under Article 14(5) of the regulation, is designed to take the place of the tachograph which must be installed in vehicles used for other types of service. This is clear both from the wording of Article 3(1) of Regulation No 3821/85, (26) and from the twenty-fifth recital in the preamble to Regulation No 3820/85, which states that: `... in the case of drivers of vehicles used for regular passenger services, a copy of the timetable and an extract from the undertaking's duty roster may replace the recording equipment ...'.

47 Thus, where an extract from the duty roster replaces the tachograph it must provide the same level of efficiency for monitoring purposes as the tachograph in order to meet the objectives sought.

48 In order to determine the scope of the obligation contained in Article 14(5) of the regulation, one can therefore usefully refer to the Court's case-law with regard to monitoring by tachograph.

49 In the judgment in the Nijs and Transport Vanschoonbeek-Matterne case, cited above, (27) in view in particular of the objective of road safety which the rules are intended to pursue, and the need for effective monitoring for this purpose, the Court held that a driver must be able to produce a record sheet for the last driving day of the last week in which he drove prior to the inspection, particularly in order that compliance with the compulsory weekly rest period can be checked.

50 Similarly, production of an extract from the duty roster in the case of a passenger service must, as with the use of a tachograph, provide a spot check on whether the driver has complied with the rules on driving time, rest time and breaks laid down in the legislation.

51 An extract from the duty roster may not therefore relate only to the day in question, if it is to serve any purpose.

Conclusion

52. In the light of the foregoing I propose that the Court give the following answers to Svea Hovrätt:

(1) The exception available under Article 13(1)(b) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport only applies to vehicles used directly by public authorities, to the exclusion of vehicles used by private undertakings under the control of public authorities, for public services such as a public bus passenger service, where no element of competition with professional hauliers can exist, whether at the time the activity is performed, at the time the contract for performance of the activity is being awarded or with a view to obtaining a renewal of that contract.

(2) The extract from the duty roster which a driver is required to carry under Article 14(5) of Regulation No 3820/85 may not cover only driving on the day in question.

(1) - OJ 1985 L 370, p.1. This regulation replaced Council Regulation (EEC) No 543/69 of 25 March 1969 on the harmonisation of certain social legislation relating to road transport (OJ, English Special Edition 1969 (I), p. 170), which it replaces and amends without undermining its objectives, to quote the first recital in the preamble to Regulation No 3820/85.

(2) - First recital in the preamble to the regulation.

(3) - Article 4(3) excludes from the scope of the regulation `vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres'.

(4) - The EFTA Surveillance Authority notified the Commission of the Swedish Regulation of 8 September 1994, No 1297, on 24 October 1994. When the Kingdom of Sweden acceded to the Union, that regulation was replaced by the new Regulation No 521 of 1995, Article 4(2) of which states that the legislation does not apply to carriage by road by means of `vehicles used by public authorities to provide public services which are not in competition with professional road hauliers'.

(5) - OJ 1985 L 370, p. 8.

(6) - Judgment in Case C-158/90 Nijs and Transport Vanschoonbeek-Matterne [1991] ECR I-6035, paragraph 11.

(7) - The concept of `regular passenger services' is defined in Article 1(7) of the regulation as meaning services as defined in Article 1 of Regulation No 117/66/EEC of the Council of 28 July 1966 on the introduction of common rules for the international carriage of passengers by coach and bus (OJ, English Special Edition 1965-1966, p. 177): `1. Regular services are services which provide for the carriage of passengers at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points'.

(8) - Förordningen (1993:184) om kör - 12och vilotider samt färdskrivare vid vägtransporter, enacted on 18 March 1993.

(9) - See, most recently, regarding the systematic exemptions under Article 4 of the regulation, the judgments in Case C-39/95 Goupil [1996] ECR I-1601, paragraph 8, and in Case C-335/94 Mrozek and Jäger [1996] ECR I-1573, paragraph 9.

(10) - Goupil judgment (paragraph 14), and Mrozek and Jäger judgment (paragraph 15), cited above.

(11) - The Swedish regulation cited above in footnote 4 of this Opinion.

(12) - It is clear from the facts of the case that these services operate over distances which in some cases exceed 100 km, and in all cases exceed 50 km.

(13) - This means `vehicles used in connection with the sewerage, flood protection, water, gas and electricity services, highway maintenance and control, refuse collection and disposal, telegraph and telephone services, carriage of postal articles, radio and television broadcasting and the detection of radio or television transmitters or receivers'.

(14) - Judgments in Case C-39/95 Goupil (paragraph 14) and Case C-335/94 Mrozek and Jäger (paragraph 15).

(15) - Case 47/79 [1979] ECR 3639.

(16) - 88/C 116/20 (OJ 1988 C 116, p. 15).

(17) - Sixth recital in the preamble.

(18) - Article 2, emphasis added.

(19) - The Swedish Government's representative confirmed at the hearing that the bus service may be provided either by the public authorities or by private undertakings, which may be competing among themselves or with other means of transport.

(20) - [1992] ECR I-4071.

(21) - Paragraph 19.

(22) - Paragraph 7.

(23) - Paragraph 8, emphasis added

(24) - It may be mentioned, although this point has not been discussed during the proceedings, that there seems to be no doubt that this particular case involves a `regular passenger service' within the meaning of the regulation, a definition of which is given in footnote 7 of this Opinion.

(25) - See, for example, the judgment in Case C-116/92 Charlton and Others [1993] ECR I-6755, paragraph 14.

(26) - That article reads: `1. Recording equipment shall be installed and used in vehicles ... which are used for the carriage of passengers ... by road, except the vehicles referred to in ... Article ... 14(1) of Regulation (EEC) No 3820/85'.

(27) - Paragraph 13.