Kingdom of Spain (C-184/02) and Republic of Finland (C-223/02) v European Parliament and Council of the European Union.
Date: 2004-09-09
28. It is apparent from Article 71(1) EC that, for the purpose of implementing a common transport policy, and taking into account the distinctive features of transport, the Council, acting in accordance with the co-decision procedure referred to in Article 251 EC, is competent to lay down inter alia ‘measures to improve transport safety’ (indent (c)) and ‘any other appropriate provisions’ (indent (d)).
29. According to settled case-law, in giving the Council the task of adopting a common transport policy, the Treaty confers wide legislative powers on it as regards the adoption of appropriate common rules (Case 97/78 Schumalla  [1978] ECR 2311, paragraph 4, and Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf  [1997] ECR I-4475, paragraph 23).
30. It is also apparent from the clear wording of Article 71(1)(c) EC and from the explanations given by the Court on the concept of ‘other appropriate measures’ in Article 71(1)(d) EC ( Schumalla ¸ paragraph 6) that, on the basis of Article 71 EC, the Community legislature is entitled, as the Republic of Finland moreover acknowledges, to adopt common provisions to improve road safety and eliminate national disparities liable to cause substantial distortion to conditions of competition in the transport sector.
34. The measures set out in the preceding paragraph aim to confine within reasonable limits the weekly rhythm of work of a self-employed driver, as regards activities that may have a bearing on his driving because of their effect on his state of tiredness, and to impose on him minimum periods of rest. They thus undeniably aim to improve road safety, which, contrary to the assertions of the Republic of Finland, is liable to be jeopardised not only by periods of driving which are too long but also by an excessive accumulation of activities other than driving, such as those listed in points (ii) to (v) of the first indent of Article 3(a)(1) of the contested directive, which are directly linked to a road transport operation (see, to that effect, Case C-394/92 Michielsen and GTS  [1994] ECR I-2497, paragraph 14, and Case C-297/99 Skills Motor Coaches and Others  [2001] ECR I‑573, paragraphs 24 and 25).
40. Moreover, it has been held that common provisions which, like those set out in paragraphs 33 and 35 above, aim to improve road safety cannot but contribute to the elimination of disparities liable to cause substantial distortion to conditions of competition in the transport sector and thus prove ‘appropriate’ within the meaning of Article 71(1)(d) EC for establishing a common transport policy (see Schumalla , paragraph 6).
44. In those circumstances, there is no need to rule on whether Article 137(2) EC also provides an appropriate legal basis for the measures envisaged by the contested directive as regards self-employed drivers (see also Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I-11453, paragraph 98, and, a contrario , Case C-300/89 Commission  v Council  ( ‘Titanium dioxide’ ) [1991] ECR I‑2867, paragraphs 18 to 21).
51. Freedom to pursue an occupation is one of the general principles of Community law (Case C-177/90 Kühn  [1992] ECR I-35, paragraph 16; Case C-280/93 Germany  v Council  [1994] ECR I‑4973, paragraph 78; and SAM Schiffahrt and Stapf , paragraph 72). The same is true of freedom to conduct a business, which coincides with freedom to pursue an occupation (Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest  [1991] ECR I‑415, paragraphs 72 to 77).
52. Those freedoms are not absolute rights, however, but must be considered in relation to their social function. Consequently, restrictions may be imposed on their exercise, provided that the restrictions correspond to objectives of general interest and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see inter alia Case C-200/96 Metronome Musik  [1998] ECR I‑1953, paragraph 21).
53. In the present case, the regulation of the working time of self-employed drivers envisaged by the contested directive is intended to improve road safety (see paragraphs 33 to 36 above) and consequently corresponds to an objective of general interest (see Case C-55/93 Van Schaik  [1994] ECR I‑4837, paragraph 19, and Case C-314/98 Snellers  [2000] ECR I‑8633, paragraph 55).
57. As to the principle of proportionality, it is settled case-law that that principle, which is one of the general principles of Community law, requires that the measures concerned should not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question, and that where there is a choice between several appropriate measures recourse must be had to the least onerous (see inter alia Case C-101/98 UDL  [1999] ECR I-8841, paragraph 30, and Joined Cases C-27/00 and C-122/00 Omega Air and Others  [2002] ECR I-2569, paragraph 62).
64. It is settled case-law that the principle of non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified (see inter alia Omega Air and Others , paragraph 79, and Case C-137/00 Milk Marque and National Farmers’ Union  [2003] ECR I-0000, paragraph 126).
72. While acknowledging that the provisions of the contested directive relating to self-employed drivers, the only ones challenged in the present case, are based on Article 137(2) EC as well as on Article 71 EC, it must be pointed out that the provision of the EC Treaty referred to in the preceding paragraph indeed means that the particular economic interests of small and medium-sized undertakings are to be taken into account when measures falling under Article 137(1)(a) EC are adopted, but does not preclude those undertakings from being the subject of binding measures (see, with respect to the second subparagraph of Article 118(2) of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), Case C-84/94 United Kingdom  v Council  [1996] ECR I-5755, paragraph 44).
79. It must be pointed out, however, that the considerations concerning the gaps in the existing legislation, set out in the first and second recitals in the preamble to the contested directive, and the general objectives of road safety and harmonisation of conditions of competition, identified in the fourth, tenth and eleventh recitals in that preamble, also concern self-employed drivers and are therefore sufficient from the point of view of the requirements defined in the case-law for measures of general application (see Case C-150/94 United Kingdom  v Council  [1998] ECR I-7235, paragraphs 25 and 26, and Case C-168/98 Luxembourg  v Parliament and Council  [2000] ECR I-9131, paragraphs 62 and 66) to justify the possible future application of the directive to that class of persons performing mobile transport activities.
80. Moreover, as the Parliament and the Commission rightly observe, the Kingdom of Spain and the Republic of Finland were, by taking part in the work of the Council, directly involved in the process of drawing up the contested directive, and are therefore aware of the reasons which formed the basis of the provisions of that directive relating to self-employed drivers (see, to that effect, Case C-54/91 Germany  v Commission  [1993] ECR I-3399, paragraph 11).