CELEX: 61977CC0076
Language: en
Date: 1977-11-22
Title: Opinion of Mr Advocate General Capotorti delivered on 22 November 1977. # Auditeur du travail v Bernard Dufour, SA Creyf's Interim and SA Creyf's Industrial. # Reference for a preliminary ruling: Tribunal correctionnel de Charleroi - Belgium. # Case 76-77.

OPINION OF MR ADVOCATE-GENERAL CAPOTORTI
      DELIVERED ON 22 NOVEMBER 1977 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      
               1. 
            
            
               In this case a preliminary ruling is sought on the interpretation of Article 14 (7) and (8) of Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport, and of the ancillary and amending provisions contained in the Annex to the regulation and in subsequent Regulations Nos 514/72 and 515/72 of 28 February 1972.
               For reasons relating to both social welfare and road safety, Regulation (EEC) No 543/69 contains detailed provisions on the composition of the crews of transport vehicles, the length of driving periods, and rest periods. To ensure that these provisions are complied with, Article 14 (1) provides as follows: ‘Crew members of a vehicle not assigned to a regular service shall carry an individual control book, which shall conform to the model in the Annex to this regulation’. Article 14 (6) provides: ‘Crew members shall produce the individual control book whenever required to do so by any authorized inspecting officer’. Article 14 (7) imposes the obligation on ‘all undertakings’, which in the Italian version of the regulation appears as ‘ogni impresa di transporto’(all transport undertakings) to keep a register of the individual books, which must also be produced at the request of any authorized inspecting officer; the register must show inter alia on what date and to whom an undertaking has issued an individual book. Under Article 14 (8) all completed individual books shall be kept by the undertaking for at least one year. Finally, Article 14 (9) requires Member States to take all necessary measures concerning the issue and control of the books. Belgium provided accordingly in the Royal Decree of 23 March 1970 as amended by the decree of 7 May 1973.
               In this case Regulation (EEC) No 543/69 calls for consideration in connexion with an appeal in criminal proceedings pending before the Tribunal Correctionnel, Charleroi, against the judgment of 19 January 1977 of the Tribunal de police, Charleroi, which had found the undertaking Creyf's Interim, Charleroi and its manager, Mr Bernard Dufour, guitly of contravening the duty to issue an individual book to a lorry driver.
               Creyf's Interim is a company engaged in the hire of temporary labour. On this basis it had provided the Daniel Construction International Company of Brussels with Mr Andre Gustin as a driver for the period from 16 July to 26 August 1975. Daniel Construction detailed Mr Gustin to drive one of its vehicles for the purpose of carriage of goods by road on its behalf. While carrying out this work Gustin was found during a police check to be without the individual book prescribed by the aforesaid Community provisions (and also without the substitute daily sheet provided for under Belgian legislation pursuant to Article 14 a (b) of Regulation (EEC) No 543/69, as amended by Regulation No 515/72, hence the aforesaid criminal proceedings pursuant to Article 3 of the Belgian Royal Decree of 23 March 1970.
               At the appeal hearing Mr Dufour stated that the only commitment which his undertaking had entered into with Daniel Construction was to supply a driver with a valid driving licence. Moreover, as Creyf's Interim owned no vehicles, it did not consider itself to be liable under criminal law for offences which one of its client undertakings committed while engaged in the transport business. According to the appellant, Daniel Construction must alone be considered guitly of being in breach of the duty laid down by Community rules.
               The Charleroi court raised the question whether, in circumstances such as those described, the undertaking bound by the duty to issue the control book to the members of the crew of a vehicle is to be identified mainly according to whether it is the employer (which in the case of a driver engaged by a labour hire undertaking and temporarily assigned to another undertaking must be recognized as being the hire undertaking alone) or, according to whether it is the party using the transport (which is the position of the undertaking for which the driver works, even if only temporarily).
               The view of the Tribunal Correctionnel is that Community Regulation (EEC) No 543/69 does not define the concept of undertaking, does not lay down the duty to issue crew members with individual control books or indicate upon whom this duty is placed. As criminal proceedings are involved and in view, therefore, of the need for a strict interpretation of the rules to be applied, the court dealing with the substance of the case considered it necessary to refer the following questions to the Court of Justice under Article 177 of the EEC Treaty:
               
                        ‘1.
                     
                     
                        Does the word “undertaking” refer exclusively to the natural or legal person who, in fact, either himself or through servants, is engaged in carriage by road, even if such carriage constitutes only a part of his business activities?
                     
                  
                        2.
                     
                     
                        Where the person described above employs hired labour for the purpose of driving his vehicle or vehicles, is that person released from the duty to issue an individual control book to every crew member, and in this case does the word “undertaking” refer to the natural or legal person who hires out the labour?
                     
                  
                        3.
                     
                     
                        It is be understood that the word “undertaking” means “employer” and that in this case the relationship of subordination as between the hirer of the labour and the worker continues to exist, or that such a relationship comes into existence as between the person to whom the labour has been hired and the worker’
                     
                  
         
               2. 
            
            
               In fact, to enable the court making the reference to decide who, under the Belgian implementing legislation, is to be held responsible in criminal law for breach of the requirements laid down in Regulation (EEC) No 543/69, it is not necessary to try to find a general definition of the meaning of ‘undertaking’ for the purposes of Article 14 of the regulation. The specific question to be determined is whether, in circumstances where an undertaking hires a driver to carry out a transport operation, the duty in question falls on that undertaking in so far as it uses the driver in the course of its business or on the undertaking by which the driver is employed and which supplies him on hire or possibly on both.
               The first point to note is that the dury to issue the individual control book to the driver arises, albeit indirectly, from Article 14 (7), referred to above, in which it is laid down that the register of the individual books, which is to be kept by all undertakings, shall show the names of everyone to whom a book is issued and shall contain their signatures as acknowledgement of receipt. In the section of the Annex to Regulation (EEC) No 543/69 containing ‘Instructions for the use of the individual control book … To the undertaking’there is a clearer provision that the book must be issued ‘to each crew member employed by you in the kinds of carriage to which the individual control book applies’. But a more concise formula is contained in the Annex to Regulation (EEC) No 514/72 which, under Article 6 of the regulation, was substituted for the previous annex. The annex requires the ‘Undertaking’ (no better defined here either) to issue a book ‘to each crew member employed by you, in conformity with the laws and regulations referred to in paragraph 1 above’. This last reference is to national laws implementing Community legislation which may, in particular, embody provisions supplementing those of the Community in respect of the lay-out, compilation and safe-keeping of the books (see Article 14 (9) of Regulation (EEC) No 543/69 and paragraphs 6 and 7 of the first part of the Annex to Regulation (EEC) No 514/72 containing the general provisions regarding the individual control book).
               Secondly, it must be emphasized that the Charleroi court has naturally worded its questions in the light of the French version of Article 14 (7) of Regulation (EEC) No 543/69, where the only word used is ‘entreprise’ (in common with the German and English versions where the words are respectively ‘Unternehmen’ and ‘undertakings’). However, in interpreting this article it is impossible to ignore the clear indication given by the Italian version, which, as I have said, uses the expression ‘impresa di trasporto’ (transport undertaking). Later, we shall find that this indication is in line with other deductions which may be made from the Community legislation at issue.
               Finally, in support of the contention that the duty in question falls on the driver's employer, reference may be made to the paragraphs of the instructions to crew members for the use of the individual control book (in the Annex to Regulation (EEC) No 514/72). These state inter alia:‘Hand it over to your employer when you leave the undertaking’ (paragraph 7); ‘Produce this control book to your employer every week …’ (paragraph 8) ‘… then hand it as soon as possible to your employer’ (paragraph 9). But all that can be read into all this is that those who drafted the Community legislation regarded it as normal to identify the undertaking obliged to issue the book with the employer of the crew members.
               In fact the Commission is right in stating that the case of a driver temporarily hired by the undertaking effecting the transport was not in any sense in the minds of the authors of the regulations concerned. In the circumstances, I believe it would be worthwhile to try to ascertain whether any help in answering the question can be obtained from the national law of the Member States or from the case-law of the Court of Justice, before going again, in depth, into the Community legislation and the conflicting conclusions which may be drawn from it.
            
         
               3. 
            
            
               It is clear from a reading of the national provisions for the protection of drivers of vehicles engaged in carriage by road that in all the Member States the undertaking using the driver for transport purposes is always considered to be liable if those provisions are not observed, whereas the position in this respect of an undertaking established solely for the business of hire of labour differs from one legal system to another. In some States it is considered to be liable primarily or at least jointly with the transport undertaking and this appears to be the situation in German law and in Irish law. In other States the obligations relating to the length of working hours, if nothing else, are the exclusive concern of the undertaking using the labour. This may be said to apply in the case of French law, in view of Law No 72-1 of 3 January 1972 on temporary labour (Journal Officiel of the French Republic of 5 January 1972, p. 141 Article 7), and in the case of Italian law in view of Article 1 of Law No 1369 of 23 October 1960, prohibiting agency and dealing in labour, under which workers employed in contravention of the prohibition are regarded as employed for all purposes by the undertaking which has actually used their services. In Danish law, too, it appears that, although the law is not expressed in such clear terms, the provisions relating to observance of hours of work and daily and weekly rest periods, embodied in paragraphs 50 and 53 of Law No 681 of 23 December 1975, obligations are regarded as arising only in the case of the undertaking which has work performed on its account and not the undertaking which hired the worker out as well.
               According to the Community Commission's study of temporary labour (Social Policy series 1976, No 25) in Luxembourg law, too, it is the undertaking which avails itself of the labour of a worker placed temporarily at its disposal which is responsible for observing the rules on safe working.
               In Belgian law, under Article 19 of the Law of 28 June 1976, which governs temporary labour (Moniteur of 7 August 1976), the person who uses the services of a worker is responsible for the application of the provisions relating to working conditions and safety which apply at the place of work; this applies particularly as regards the provisions relating to working hours and rest periods. As this is a Law which specifically covers the subject in relation to temporary labour, it may be assumed that such responsibility is exclusive. If this is so the Law referred to has changed the previous system as it was stated to be in the national case-law cited by the Auditeur du Travail before the court of first instance, which was to the effect that staff supplied by an employment agency to another undertaking were treated as being employed by the former although their connexion with it was not so close as that with the latter especially from the point of view of responsibility for organizing and supervising their work.
               Finally, in the Netherlands, the question does not appear yet to have been covered by any general provisions of national law but, in relation to the application of the Community requirements at issue in this case, Article 28 (2) of the ‘Rijtijdenbesluit’ 1971, as amended by the Decree of 5 June 1974 (Schuurman & Jordens No 130), provides that the individual control book shall be supplied to crew members by the head of the administration of the undertaking on whose behalf the worker is to carry out transport operations.
               Although, therefore, legislation in the countries concerned does not cover the position in a uniform or exhaustive manner, it may be stated that the general tendency is to place the responsibility on the undertaking under whose control the driver of the vehicle performs his duties, to the exclusion of the undertaking which merely supplies labour.
            
         
               4. 
            
            
               Nor does there appear to be any conflict between this tendency and the attitude adopted by the Court of Justice in the judgment delivered on 17 December 1970 in Case 35/70, Manpower v Caisse d'Assurance [1970] ECR 1251. On that occasion the Court was concerned with the case of a worker whom a labour hire undertaking had engaged not to employ him itself but, as in the present case, to post him to other undertakings in order to provide for temporary needs for qualified personnel. For this purpose the undertaking involved stipulated, with the personnel in question, a contract of employment providing reciprocal rights and obligations between the undertaking and the workers which it engaged for work to be done by the latter in the undertakings which were customers of their employer. The Court held that, although under the contract each temporary worker was required to comply with the working conditions and discipline laid down by the internal rules of the establishment to which he was sent, this did not affect the maintenance of the worker's relationship with the undertaking which had engaged him. This latter undertaking was at the centre of the different legal relationships, because it was at the same time a party to the contract with the worker and to the contract with the hiring undertaking. In the circumstances, the Court held that although the worker in question had been posted to an undertaking in a Member State other than that in which the undertaking which engaged him was established, the worker must nevertheless remain subject to the social legislation of the country in which the latter undertaking had its establishment. The Court reached this conclusion in the light of the provision in Article 13 (1) (a) of Regulation No 3 concerning social security for migrant workers, which, for the purposes of determining the social legislation to be applied, provided for the situation of a worker who, being in the service of an undertaking having an establishment in the territory of another Member State is posted by that undertaking to the territory of another Member State to perform work there for that undertaking.
               The Court took a decision to the effect indicated essentially on practical grounds and, in particular, to avoid the complications which would arise if it were necessary to register workers normally subject to the social legislation of the State where the employer was established and who had been posted abroad to perform work of short duration with the social security system of another Member State. For the worker this would have involved the grave disadvantage of less favourable social protection compared with that which he could enjoy by remaining subject to the legislation of his own State since, as the Court pointed out, national legislative systems more often than not short insurance periods from certain social benefits.
               But concern to avoid the difficulties which the worker's transfer from one State to another creates for him has no relevance to the present case. We are concerned here not with safeguarding the social security rights of a migrant worker but with identifying the undertaking which lies under a duty the purpose of which extends further than the social field (as the Court pointed out in the grounds for its judgment of 25 January 1977 in Case 65/76, Derycke [1977] ECR 29). Consequently, the test adopted in the Manpower judgment in interpreting a provision for the coordination of national laws in certain social security matters cannot constitute a valid precedent in a case which is not concerned either with the Community rules for the coordination for national social security laws or the movement of workers from one Member State to another.
            
         
               5. 
            
            
               Fresh consideration must now be given to the provisions of Community law to be interpreted. I have already pointed out that the wording of the Italian version of Article 14 (7) of Regulation (EEC) No 543/69 lends considerable weight to the contention that the duty to issue individual control books must be regarded as falling on the transport undertaking; I emphasized that the paragraph referred to is, as I have stated, the one from which the duty to issue the books may be deduced. Furthermore, the context of Article 14 and the instructions to undertakings in the Annexes to Regulations Nos 543/69 and 514/72 concerning individual control books not only confirm that it is the transport undertaking which is bound to issue the books but also clearly indicate that ‘impresa di trasporto’ (transport undertaking) must be taken as meaning any undertaking whatsoever which is engaged in the business of transport, even if only occasionally, and employs staff as drivers of transport vehicles.
               The instructions referred to above and, again, Article 14 (7) refer to the issue of the book to ‘crew members’. It seems clear to me that a driver supplied by an undertaking hiring labour does not acquire the status of a member of the crew until the undertaking which uses him for transport operations has actually assigned him to drive a particular vehicle. He is not a ‘crew member’vis-à-vis the undertaking which engaged him and which hires him out; he becomes a crew member only within the firm to which he has been hired on the basis of the arrangements which that firm has made for him. Nor, moreover, should it be forgotten, that (in paragraph 2, referred to earlier, of the Instructions to the Undertaking) the Annex to Regulation No 543/69/EEC refers to ‘each crew member employed by you in the kinds of carriage to which the individual control book applies’. Although he is employed by the hiring undertaking, the hired worker is ‘working’ for the undertaking which has hired him which, in the present case, is the undertaking engaged in transport. The upshot of these provisions is, by implication, also that the duty to issue a driver with a control book arises as soon as he forms part of the crew of a motor vehicle coming under the category described in Article 14 (1): ‘vehicle not assigned to a regular service’.
               Consequently there seems to me to be every justification for concluding, as I found in the case of the national social legislation which I rapidly reviewed earlier, that, in the system of Community regulations under consideration, it is once more the undertaking using the driver for its transport which is the party on which the duty to issue the individual control book is imposed.
            
         
               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.
            
         
               7. 
            
            
               Accordingly, I recommend that the Court should reply to the questions referred to it for a preliminary ruling by the Tribunal Correctionnel, Charleroi, by decision of 13 June 1977 by ruling that the duties relating to the issue and keeping of the individual control books and the keeping of the relevant registers referred to in Article 14 (7) and (8) of Regulation (EEC) No 543/69 of the Council of 25 March 1969 and in the Annex to Regulation (EEC) No 514/72 of the Council of 4 February 1972 are for performance exclusively by the undertaking which is engaged in transport operations and to which that regulation applies, even if it employs workers hired from an undertaking the purpose of which is to supply other undertakings with labour for use on a temporary basis.
            
         (
            1
         )	Translated from the Italian.