A. Karuse AS v Politsei- ja Piirivalveamet.
Date: 2014-03-13
28. The Court held in those judgments that, given that that provision of Regulation No 3820/85 lists certain categories of transport which are excluded from its scope and it is thus a derogation from the general scheme, it 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 derogations which it lays down must be determined in the light of the aims pursued by the regulation (see British Gas , paragraph 12; Mrozek and Jäger , paragraph 9; and Case C‑39/95 Goupil  [1996] ECR I‑1601, paragraph 8). The Court ruled in identical terms with regard to the derogations laid down in Articles 13(1)(d) and 3(h) of Regulation No 561/2006 (Case C‑128/04 Raemdonck and Raemdonck‑Janssens  [2005] ECR I‑2445, paragraph 19; Case C‑554/09 Seeger  [2011] ECR I‑7131, paragraph 33; and Case C‑317/12 Lundberg  [2013] ECR, paragraph 20).
29. In that regard, it must be borne in mind that the objective of Regulation No 561/2006, as follows in particular from recital 17 in the preamble thereto and Article 1 thereof, is to harmonise the conditions of competition with regard to the road sector and to improve working conditions for the employees in that sector and road safety, those objectives meaning in particular that, in principle, road transport vehicles must be equipped with an approved tachograph enabling compliance with driving times and drivers’ rest periods to be monitored ( Lundberg , paragraph 31 and the case-law cited).
30. With regard to the interests which Article 13(1)(h) of Regulation No 561/2006 seeks to safeguard, it must be noted that the derogations provided for in that provision are based on the nature of the services in connection with which the vehicles are used. It is apparent from the list in that article that the services envisaged by that provision are all general services performed in the public interest (see, to that effect, with regard to Article 4(6) of Regulation No 3820/85, British Gas , paragraph 13; Mrozek and Jäger , paragraph 10; and Goupil , paragraph 9).
31. Called upon to give a more specific interpretation of the concept of ‘vehicles used in connection with the gas service’ in Article 4(6) of Regulation No 3820/85, the Court found that the derogation laid down in that provision covered only vehicles which were used wholly and exclusively in connection with the production, transport or distribution of gas or the maintenance of the necessary installations for that purpose, so that the derogation does not apply to vehicles wholly or partly used for the transport of domestic gas appliances ( British Gas , paragraph 21).
32. Any other interpretation of that concept would undermine, in particular, the objective of eliminating disparities capable of distorting competition in the road transport sector. An undertaking which carried out its activities in the field of the production, transport and distribution of gas, but which also supplies domestic gas appliances, while exempted from the requirement to install and use a tachograph in vehicles used for the transport of such appliances would enjoy a competitive advantage over other undertakings which only supply such appliances, since it would save the cost of installing and maintaining tachographs in such vehicles which other undertakings supplying domestic gas appliances have to bear ( British Gas , paragraph 19).
33. With regard to the concept of ‘refuse collection’, set out in Article 4(6) of Regulation No 3820/85, the Court held that that covered the collection of refuse from where it has been deposited. It found that the vehicles used for such collection travelled over a limited distance and for a short period of time, and the transport of refuse remained ancillary to the collection. It follows that the transport of refuse which did not comply with those criteria did not fall within the exemption to compulsory use of the tachograph (see Mrozek and Jäger , paragraph 12).
35. Firstly, as regards whether the transport at issue in the main proceedings was exclusive, it is apparent from the file that, in the main proceedings, the gravel was intended solely for use in road maintenance works. It follows that that transport was carried out wholly and exclusively in connection with road maintenance, within the meaning of Article 13(1)(h) of Regulation No 561/2006 (see, to that effect, British Gas , paragraph 21).
36. Secondly, as regards whether the transport at issue was not ancillary to the road maintenance works, the view must be taken, for that to be the case, that the vehicle concerned must be used directly to spread the gravel on the damaged sections of the road (see, by analogy, Mrozek and Jäger , paragraph 12). However, the mere transport of gravel intended for use in road maintenance works cannot be regarded as being covered by the derogation laid down in Article 13(1)(h) of Regulation No 561/2006.
37. That interpretation is in conformity with the objective, set out in Article 1 of Regulation No 561/2006, of eliminating disparities capable of distorting competition in the road transport sector. The Court has held that the derogation set out in Article 13(1)(h) of Regulation No 561/2006 may benefit not only the public authorities but also private undertakings which provide a general service in the public interest under their control ( Mrozek and Jäger , paragraph 15). Accordingly the transport of material necessary to maintenance works may, as in the main proceedings, be carried out by a private service provider and thus constitute, as such, a commercial activity subject to competition.
38. In those circumstances, to exempt the vehicle of such a service provider, which carries out merely the transport of the gravel to the road maintenance works site, from the obligation of using a tachograph would confer on it a competitive advantage over other service providers in the same sector, since it would save the cost of installing and maintaining tachographs in such vehicles (see, to that effect, British Gas , paragraph 19).
39. In addition, although Regulation No 561/2006 does not provide that the vehicles used for road maintenance and monitoring must be used only near to the road maintenance works site in order to benefit from the derogation laid down in Article 13(1)(h) of that regulation, that is none the less a factor which must be taken into consideration for the purposes of assessing the ancillary nature of the transport as regards those works (see, by analogy, Mrozek and Jäger , paragraph 12).
41. However, an extension of the derogation provided for in Article 13(1)(h) of that regulation to vehicles which travel over a long distance would have the effect that the drivers of such vehicles may be induced to drive long hours without a rest, which would be likely to undermine those objectives (see, to that effect, Seeger , paragraph 36).
47. Moreover, it must be stated that, within the limits thus defined, the movement of vehicles when empty in connection with road maintenance and when preparing to carry out such transportation also falls within Article 13(1)(h) of Regulation No 561/2006 (see, to that effect, Mrozek and Jäger , paragraph 14).