C-65/76

In Case 65/76

Reference to the Court under Article 177 of the EEC Treaty by the Correctionele Rechtbank (Criminal Appeal Court), sitting at Oudenaarde (Belgium) for a preliminary ruling in the criminal proceedings pending by way of appeal in that court against

MARCEL DERYCKE, stallholder, residing at Ronse,

on the interpretation of Articles 2 and 4 (2) of Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport.

1 — Language of the Case: Dutch.

JUDGMENT OF 25. 1. 1977 -CASE 65/76

The facts, procedure and observations driving periods and other periods of submitted under Article 20 of the attendance at work. Protocol on the Statute of the Court of Justice of the EEC may be summarized Under Article 16 of Regulation No as follows: 543/69 the Council was required by 31 December 1969 to determine the technical characteristics of mechanical

I — Facts and written procedure recording equipment to replace, as far as possible, the individual control book. In Regulation No 543/69 of the Council of implementation of this provision the 25 March 1969 on the harmonization of Council adopted Regulation No 1463/70 certain social legislation relating to road of 20 July 1970 on the introduction of transport (OJ English Special Edition recording equipment in road transport 1969 (I), p. 170), as amended by (OJ English Special Edition 1970 (II), p. Regulations No 514/72 and No 515/72 482), in turn amended by Regulation No of the Council of 28 February 1972 (OJ 1787/73 of the Council of 25 June 1973 English Special Edition 1972 (I), pp. 124 (OJ L 181, p. 1). and 135), contains provisions on working Article 18 of Regulation No 543/69 conditions in road transport with regard provides that Member States shall, in due to the composition of crew, driving time and after consulting the periods and rest periods. Commission, adopt such laws, regulations or administrative provisions To make it possible to check that these as may be necessary for its provisions are observed Article 14 of the implementation. Such measures are to regulation provides that crew members of cover, inter alia, the organization of, a vehicle not assigned to a regular service procedure for and means of control and are to carry an individual control book. the penalties to be imposed in case of Members of the crew are to enter from breach. day to day in the daily sheets of the individual control book details of daily In accordance with this provision a Royal rest periods, certain breaks from work, Decree was issued in Belgium on 23

On 12 May 1976 the Politierechtbank In accordance with Article 20 of the (Police Court), Ronse, fined Mr Derycke Protocol on the Statute of the Court of FB 1 500 with time for payment. Justice of the EEC written observations were lodged on 15 September 1976 by Mr Derycke thereupon appealed to the the Commission of the European Correctionele Rechtbank (Criminal Communities. Appeal Court), sitting at Oudenaarde. On hearing the report of the In support of his appeal he maintains Judge-Rapporteur and the views of the that Regulation No 543/69 is not Advocate-General the Court decided to applicable to independent traders, but open the oral procedure without a only to lorry-drivers in the service of an preparatory inquiry. employer or undertaking. By order dated 19 October 1976, the By judgment dated 25 June 1976 the Court, applying Article 95 (1) of the Correctionele Rechtbank, sitting at Rules of Procedure, referred the case to Oudenaarde, decided, in application of the Second Chamber. Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the II — Written observations sub­ following question: mitted to the Court

'Is it to be understood from Articles 2 The Commission of the European and 4 (2) of Regulation (EEC) No 543/69 Communities takes the view that it of the Council of the European follows both from the actual wording of Communities of 25 March 1969 on the Regulation No 543/69 and from its scope harmonization of certain social that it is applicable, subject to the legislation relating to road transport that exemptions expressly provided for in that regulation is applicable to any Article 4, both to the carriage of goods in carriage of goods by a vehicle with a a vehicle driven by an independent

(a) With regard to the wording of the (c) With regard to the obligation regulation the combination of Article 2 imposed by Article 14 (1) of the with Article 1 (1) gives it a very wide regulation on crew members of a vehicle scope. not assigned to a regular service to carry an individual control book it may be Moreover the wording contains no observed that Article 1 (3) (a) under the convincing evidence that it applies only heading of 'crew member' defines the to carriage effected by employed persons. driver as 'any person who drives the Carriage effected by a self-employed vehicle even for a short period, or who is person is not included among the carried in the vehicle in order to be different types of transport to which, available for driving if necessary'. This according to Article 4, the regulation intentionally general terminology gives does not apply. as wide a meaning as possible to the definition of driver. The distinction made by the instructions relating to the keeping of the individual (d) It would therefore be appropriate to control book, the books themselves and answer the question raised by the the weekly reports between the Correctionele Rechtbank, sitting at undertaking and the crew member takes Oudenaarde, as follows: account of the greater complexity in cases in which the undertaking and the Regulation No 543/69 of the Council of crew member are different persons; its 25 March 1969 on the harmonization of objective is in no way to exclude certain social legislation relating to road independent persons from the scope of transport applies, subject to the the regulation. exceptions provided for in the regulation itself, to all carriage by road effected (b) With regard to the objectives it wholly or partially within the appears from the Council Decision of 13 Community in vehicles, whether or not May 1965 on the harmonization of such vehicles are driven by employed or certain provisions affecting competition self-employed persons. in transport by rail, road and inland waterway (OJ English Special Edition The provisions of the regulation 1965-1966, p. 67) that the first objective applicable to crew members apply of Regulation No 543/69 is to harmonize without distinction to employed and the conditions of competition between self-employed crew. Member States; this harmonization would be only partial if self-employed drivers were excluded. III — Oral procedure

4 The national court has doubts on the interpretation of the provisions determining, in this respect, the scope of the regulation having regard in particular to the fact that the regulation is of a 'social' nature and that certain of the provisions, particularly the instructions in the annex laying down the model of the control book itself, use the concepts of 'undertaking', 'employer' and 'worker'.

5 In order to settle this doubt the national court has referred the following question to the Court of Justice:

'Is it to be understood from Articles 2 and 4 (2) of Regulation (EEC) No 543/69 of the Council of the European Communities of 25 March 1969 on the harmonization of certain social legislation relating to road transport that that regulation is applicable to any carriage of goods by a vehicle with a permissible maximum weight of 3.5 tonnes or over, irrespective of the status of the driver of that vehicle, so that those provisions are applicable to the carriage of goods either by an employee or by an independent trader?

Or are the said articles of that Regulation (EEC) No 543/69 to be interpreted as meaning that the regulation applies, in respect of the carriage of goods by a

JUDGMENT OF 25. 1. 1977 -CASE 65/76

vehicle having a permissible maximum weight of 3.5 tonnes or over, only to the carriage of goods by road by an employee of an undertaking, so that those provisions should not be applicable to the carriage of goods by an independent trader on his own account?

12 Nor can a restrictive scope be given to the words 'certain social legislation' in the title to the regulation since this concept, far from being limited to relations between employers and employees, embraces in ordinary speech questions related to the well-being of the most diverse classes of the population.

DERYCKE

13 The use of this phrase in Regulation No 543/69 cannot therefore be understood to exclude independent workers from the scope of the rules which it lays down.

14 The evidence to be found in the wording and the structure of the regulation is completely in accord with its objectives.

15 The first objective of the regulation is of a social nature consisting in protecting drivers and the crews of vehicles used for trade purposes against the harmful effects of excessive and badly distributed driving periods.

i6 In addition, as shown by the second paragraph of the preamble, the objective of the regulation is to eliminate disparities liable to cause substantial distortion in competition in the transport sector by ending working practices based on an improper exploitation of the human factor.

status of the driver of the vehicle so that the provisions of the regulation are applicable to carriage effected both by an independent trader and by an employed driver.

Costs

22 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

23 As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Correctionele Rechtbank, sitting at Oudenaarde, costs are a matter for that court.

On those grounds,

THE COURT (Second Chamber)