C-69/74

(Regulation No 543/69 of the Council, Article 11 (2), first paragraph)

The phrase 'shall have had ... a ... rest activities referred to in Article 14 of the period' in the first paragraph of Article Regulation for the minimum period laid 11 (2) of Regulation (EEC) No 543/69 of down, and by the employer running a 25 March 1969 must be interpreted as road transport undertaking, who is meaning that the provisions on daily rest required to take the necessary measures must be observed both by crew members to permit the crew members to have the themselves, who. are required to stop all daily rest period laid down.

In Case 69/74

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal de Police de Mons for a preliminary ruling in the criminal proceedings pending before that court between

AUDITEUR DU TRAVAIL at the Tribunal de Mons

v

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Presidents of Chambers. A. M. Donner, R. Monaco (Rapporteur), P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

had, during the twenty-four-hour the EEC, written observations were period preceding any time when he is submitted on behalf of the Commission performing an activity covered by of the European Communities by its Article 14 (2) (c) of Regulation No legal adviser, Marc Sohier, acting as 543/69, a daily rest period of not less agent. than ten consecutive hours. On hearing the report of the Judge- During the main proceedings the Rapporteur and the opinion of the Advocate-General the Court decided to defendant did not dispute the facts with which he was charged, but objected that open the oral procedure without a the Community provision in question preparatory inquiry. did not involve any obligation on his part in that it was only employers who were bound to respect the daily rest II — Written observations period and not crew members of road vehicles. submitted under Article 20 of the 3. The Tribunal de Police de Mons Protocol found first of all that since the defence raised by the employer, according to On the Statute of the Court of Justice which Mr Cagnon had been instructed to spend the night at Dortmund, the Observations submitted by the Commis- destination of the vehicle driven by the sion of the European Communities. defendant, had not been challenged, The Commission makes the following there was no misconduct on the part of points: Mr Taquet. It then stated that the — Since Regulation No 543/69 is defence related to the interpretation of binding in its entirety and directly the first paragraph of Article 11 (2) of applicable in all Member States, Regulation No 543/69 since it was a Article 11 (2) applies to every subject question of whether 'the driver must including both the transport have had the possibility of taking the undertakings referred to by the rest laid down by the legislation or provision as employers as well as the whether, on the other hand, he is crew members of the road vehicles. required to respect the Regulation, that — The wording of the provision in is to say, to have in fact rested'. question expresses in a clear and Following a suggestion by the authoritative manner that every crew prosecutor to request the Court of member engaged in the carriage of Justice to give a ruling on the question passengers 'is required' to have 'in of interpretation thus raised, the fact' rested for the minimum period Tribunal de Police de Mons by judgment laid down under the system of daily of 6 September 1974 stayed the rest to which he is subject during the proceedings and referred to the Court of current week. Justice under Article 177 of the EEC — The requirement of daily rest is laid Treaty the question: down by the provision referred to as 'What is the meaning of the words 'shall distinct from the other activities

and any kind of presence at work by crew members of road vehicles properly speaking. engaged in the carriage of passengers, in respect of whom it involves an — If the rules of Regulation No 543/69, obligation to comply with the system of in particular those relating to the daily rest by stopping, for the minimum minimum duration of daily and period laid down, any of the activities weekly rest, were only optional on referred to in Article 14 (2) (c) and (d), the part of crew members and did and by employers, in respect of whom it not require them to have in fact involves the obligation of taking the rested, none of the three objectives of necessary measures to permit the crew the Regulation would be achieved. It would mean: members to have the system of daily rest laid down.' — there would be no harmonization of the provisions affecting competition in transport (cf. the second citation in the Regula- III — Oral procedure tion); — social progress would be stultified Oral observations were made at the (cf. third recital of the hearing on 23 January 1975 by Regulation); Jean-Pierre Cagnon and Jean-Paul — the objective of road safety would Taquet, represented by Maître Detaeye, be totally disregarded (cf. third, and the Commission of the European eighth and ninth recitals of the Communities, represented by its Legal Regulation). Adviser, Marc Sohier, acting as agent. In view of these opservations the Both accused agreed with the statement Commission proposes the following of facts and the interpretation proposed reply to the question raised: by the Commission and made 'The provision of Article 11 (2) of submissions relying on the Court's discretion. Regulation (EEC) No 543/69 of 25 March 1969 must be interpreted as The Advocate-General delivered his meaning that it must be observed both opinion on 30 January 1975.

5 The first paragraph of Article 11 (2) of Regulation No 543/69 provides 'every crew member engaged in the carriage of passengers shall have had, during the twenty-four-hour period preceding any time he is performing any activity covered by Article 14 (2) (c) or (d): a daily rest period of not less than ten consecutive hours, which shall not be reduced during the week ...'.

6 Article 14 (2) (c) and (d) refers to 'driving periods' and 'other periods of attendance at work'.

7 The third and tenth recitals of Regulation No 543/69 show that the Regulation has among other objectives 'to improve road safety' for which purpose it is desirable 'to lay down the minimum duration of and other conditions governing the daily and weekly rest periods of crew members'.

8 Such an objective would not be achieved if the provisions enacted in relation to daily and weekly rest applied only to the employer running the road transport service, and did not likewise apply to crew members by requiring them to have in fact rested for the prescribed minimum period.

9 For the precise purpose of ensuring that this requirement is observed, Article 14 of the said regulation provides that crew members shall carry an individual control book.

10 As a result the phrase 'shall have had ... a ... rest period' in the first paragraph of Article 11 (2) of Regulation (EEC) No 543/69 of 25 March 1969 must be interpreted as meaning that the provisions on daily rest must be observed both by crew members themselves, who are required to stop all activities referred to in Article 14 of the Regulation for the minimum period

THE COURT

in answer to the question referred to it by the Tribunal de Police de Mons by judgment of 6 September 1974, hereby rules:

the phrase 'shall have had ... a ... rest period' in the first paragraph of Article 11 (2) of Regulation (EEC) No 543/69 of 25 March 1969 must be interpreted as meaning that the provisions on daily rest must be observed both by crew members themselves, who are required to stop all activities referred to in Article 14 of the Regulation for the minimum period laid down, and by the employer running a road transport undertaking, who is required to take the necessary measure to permit the crew members to have the daily rest period laid down.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O'Keeffe

Delivered in open court in Luxembourg on 18 February 1975.