CELEX: 61976CC0065
Language: en
Date: 1976-12-16
Title: Opinion of Mr Advocate General Mayras delivered on 16 December 1976. # Marcel Derycke. # Reference for a preliminary ruling: Rechtbank van eerste aanleg Oudenaarde - Belgium. # Social legislation relating to road transport. # Case 65-76.

OPINION OF MR ADVOCATE-GENERAL MAYRAS
      DELIVERED ON 16 DECEMBER 1976 (
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         Mr President,
      
         Members of the Court,
      In the context of criminal proceedings pending before it the Correctionele Rechtbank (Criminal Appeal Court), sitting at Oudenaarde (Belgium), has submitted a question for a preliminary ruling on the scope of Regulation No 543/69 of the Council on the harmonization of certain social legislation relating to road transport.
      Sections IV and V of that regulation (Articles 7 to 12) limit periods of continuous driving and daily driving periods and require the crews concerned with the carriage of goods or passengers to observe daily rest periods.
      Without its being necessary to go into details of these rules let me remind you that Article 14 of the regulation requires crew members of a vehicle not assigned to a regular service to carry an individual control book enabling observance of the provisions to be checked.
      Article 18 of the regulation provides that Member States shall lay down penalties to be imposed in case of breach. In Belgium the Royal Decree of 23 March 1970, based on the Law of 18 March 1969 on measures of implementation for international treaties and measures relating to road transport fulfils this requirement.
      On the basis of these provisions criminal proceedings were brought against Mr Derycke, a trader, for having driven on the public highway a goods vehicle having a permissible maximum weight exceeding 3.5 tonnes without being in possession of the individual control book required by Article 14 of the Community regulation.
      On being found guilty by the Politierechtbank (Police Court), Ronse, the defendant appealed to the Correctionele Rechtbank alleging that the provisions of the regulation did not apply to independent traders.
      That court therefore stayed the proceedings and is now asking you in substance whether the scope of Regulation No 543/69 of the Council ‘is applicable to any carriage of goods by a vehicle with a permissible maximum weight of 3.5 tonnes or over, irrespective of the status of the driver of that vehicle, so that those provisions are applicable to the carriage of the goods either by an employee or by an independent trader’ — or on the other hand whether they cover only carriage by an employee.
      Only the Commission of the European Communities has expressed its opinion on this question of interpretation. It takes the view that the provisions of Regulation No 543/69 are of general application and that, as regards the persons to whom it applies, no driver is exempt, with the result that the provisions of Article 14 apply both to independent drivers and to employees.
      I share this opinion, based on grounds which appear to me decisive.
      It is appropriate, in my opinion, to place the question of interpretation not only in the context of Articles 2 and 4 (2) of the regulation, which alone are mentioned in the question by the national court, but also in that of the general structure and above all of the objectives of the regulation.
      In this respect it is to be noted first of all that it refers not only to Article 75 of the Treaty empowering the Council to lay down the necessary rules to achieve a common transport policy but to the basic decision taken by the Council on 13 May 1965 on the harmonization of certain provisions affecting competition in transport by rail, road and inland waterway.
      The object of that decision is to eliminate disparities liable to cause substantial distortion in competition in the transport sector. Three spheres are thus referred to:
      
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               The system of taxation applicable to transport;
            
         
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               The effect of intervention by Member States on transport;
            
         
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               Finally the social systems applicable to employees with regard to approximating working conditions, the standardization of manning provisions, the harmonization of working and rest periods and the introduction of a record book intended to make it possible to check on an individual basis compliance with provisions concerning working periods.
            
         The objective of the regulation of 1969 is to implement this third class of general measures provided for by the basic decision. There is an obvious connexion between harmonizing, at Community level, the social provisions applicable to and working conditions of transport employees and the achievement of equality in competition. This link is particularly marked in the sphere of road transport where there were considerable disparities from State to State. To this extent there is no doubt that one of the objectives of Regulation No 543/69 is based directly on the objective referred to by the general decision of 1965.
      The second factor is referred to in the preamble to the regulation: it is that which relates to the improvement of road safety. Not only is it referred to in the third, eighth and ninth recitals in the statement of the reasons on which the regulation is based but it is behind all these provisions. Moreover the Court rightly referred to it in the grounds (No 7) of its judgment in Case 69/74, Auditeur du Travail v Cagnon and Taquet [1975] ECR at p. 175.
      The third objective is the social progress to be achieved by improving working conditions by limiting the duration of driving and ensuring that daily rest periods are observed.
      These then are the three considerations which are at the basis of the provisions of the regulation.
      It is not surprising to see them clearly and expressly referred to in a report presented recently — on 15 November 1976 — to the European Parliament by the Transport Committee (document 396/76, p. 26) which was drawn up as a result of a proposal by the Commission and intended to codify all the provisions already adopted or proposed in implementation of the basic decision of 13 May 1965.
      Does not consideration of these three objectives:
      
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               harmonization of competition,
            
         
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               increased road safety,
            
         
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               improvement in social conditions of transport employees,
            
         suffice to give the key to the interpretation which is requested of the Court?
      The first of these objectives could doubtless not be achieved if the Council had omitted from the field of application of the regulation all carriage, in particular of goods, by independent traders. It would be vain to try to eliminate the distortions in competition if small-scale carriers, operating on their own account and with their own equipment, were exempt from all the obligations imposed on employees or even if traders carrying their own goods were free to ignore any of these obligations.
      Road safety is even more obviously and directly relevant and the conditions in which it may be ensured obviously do not depend in any way on the socio-occupational status of the lorry drivers using the roads. How would it be possible to justify the exemption of independent carriers from the provisions applying to employers and their employees, more especially with regard to the limitation on driving periods and the requirement of rest periods?
      Finally, although the specifically social aspect of the problem mainly concerns employed drivers, it is nevertheless not without some importance for the protection of independent drivers even if only against themselves.
      In these circumstances to make it possible to deviate from the interpretation proposed by the Commission it would be necessary for the provisions of the regulation, contrary to the objectives on which it is based, absolutely to exempt independent traders.
      Not only is this not so, but an examination of the wording shows clear confirmation.
      If Article 2, which defines, strictly speaking, the field of application, is first considered, there is found a criterion of general application: that of ‘carriage by road in respect of any journey or part of a journey made within the Community by vehicles registered in a Member State or in a third country’.
      This criterion leaves no room for any restriction on the basis of the driver's socio-occupational position.
      In the second place Article 4 lists, obviously exhaustively, the categories of carriage to which the regulation does not apply. These exemptions are based either on considerations relating to the type of construction, the equipment or weight of the vehicles used for the said carriage or on their use, for example as ambulances, or lastly on their utilization by certain public services.
      None of these exemptions refers to vehicles driven by the self-employed.
      Finally the very definition of ‘driver’ contained in Article 1 (3) (a), namely ‘any person who drives the vehicle even for a short period, or who is carried in the vehicle in order to be available for driving if necessary’, in itself prevents any distinction between an employed and an independent driver.
      These are the reasons which lead me without the slightest hesitation to propose that the question referred to the Court by the Correctionele Rechtbank, sitting at Oudenaarde, should be answered as follows:
      The provisions of Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport and in particular those arising from Article 14 thereof on the introduction of the individual control book are applicable, with the sole exception of the categories of carriage referred to in Article 4, whether or not the vehicles used for such carriage are driven by employees or independent workers.
      (
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         )	Translated from the French.