Anklagemyndigheden v Hansen & Soen I/S.
Date: 1990-07-10
9 In the first place, it argues that, by introducing strict criminal liability, the Danish Government sought to extend the scope of Regulation No 543/69 and imposed on employers an obligation which is not provided for therein . In support of that assertion it refers to the Court' s judgment in Case 69/74 Auditeur de travail v Cagnon and Taquet [1975] ECR 171, paragraph 10, in which the Court stated that the obligation imposed on the employer by Article 11 of that regulation was limited to taking the necessary measures to permit his employees to have the daily rest period laid down .
14 It should be noted, in that regard, that although Regulation No 543/69 is designed to harmonize certain provisions which affect competition in the field of road transport, it leaves a broad discretion to the Member States with regard to the implementation of those provisions . In the first place, Article 13 authorizes the Member States to apply stricter measures to drivers of vehicles registered within their territory, and secondly Article 18 leaves it to the Member States to determine the nature and the severity of the penalties to be imposed in case of breach .
15 It should be further observed that the economic consequences of an infringement of Regulation No 543/69 vary not only according to the system of criminal liability introduced by the Member State in question but also according to the level of the fine imposed and the degree of effectiveness of the checks carried out . Accordingly, the introduction of a system of strict criminal liability does not in itself involve a distortion of the conditions of competition .
16 Regulation No 543/69 must therefore be regarded as not precluding the application of national provisions penalizing an employer whose drivers have infringed Articles 7(2 ) and 11 of the regulation, even though that infringement cannot be imputed to an intentional wrongful act or to negligence on the employer' s part .
17 Furthermore, it should be borne in mind that, according to the consistent case-law of the Court, as confirmed by its judgment in Case 68/88 Commission v Greece [1989] ECR 2965, where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the EEC Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law . For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive .
18 It is apparent from the order for reference that the introduction of strict criminal liability corresponds to the system generally applicable in Denmark for the protection of the working environment .
19 Furthermore, it is necessary to bear in mind, in the first place, that a system of strict liability may prompt the employer to organize the work of his employees in such a way as to ensure compliance with the regulation and, secondly, that road safety, which, according to the third and ninth recitals in the preamble to Regulation No 543/69, is one of the objectives of that regulation, is a matter of public interest which may justify the imposition of a fine on the employer for infringements committed by his employees and a system of strict criminal liability . Hence the imposition of a fine, which is consistent with the duty of cooperation referred to in Article 5 of the EEC Treaty, is not disproportionate to the objective pursued . The application of the principle of proportionality to the amount of the fine has not been called in question in this case .