C-76/77

In Case 76/77

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal Correctionnel, Charleroi, for a preliminary ruling in the action pending before that court between

AUDITEUR DU TRAVAIL and

BERNARD DUFOUR, S.A. CREYF'S INTERIM AND S.A. CREYF'S INDUSTRIAL

on the interpretation to be placed on the word 'undertaking' in Article 14 (7) and (8) of Regulation (EEC) 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: French.

Facts and issues

The facts and the arguments advanced by driving licence and explained that S.A. the parties during the written and oral Creyf's possessed no vehicles. procedure may be summarized as fol­ lows: The Procureur du Roi brought pro­ ceedings against Bernard Dufour for contravention of the Arrêté Royal (Royal I — Facts and procedure Decree) of 23 March 1970, which was authorized by Article 2 of the Law of 18 It appears from the judgment making the February 1969, and against S.A. Creyf's reference that on 30 July 1975, as a interim as being civilly liable. result of a police check at Ronse, Belgium, a lorry used by Daniel The Tribunal Correctionnel, Charleroi, Construction Company International and thereupon found that the question which driven by Andre Gustin, driver, was arose was whether the duty to issue an found to be without the individual individual control book to crew members control book provided for under Article lay upon the undertaking whose sole 14 (1) of Regulation (EEC) No 543/69 of business activity is the hiring out of the Council and, moreover, that the labour, in this case a lorry driver, or with lorry was not carrying any recording the undertaking which had taken that equipment, which might have made labour on hire and used the services of the control book unnecessary. Daniel the said driver for its road transport Construction Company International ex­ business. plained that it had hired the services of Andre Gustin, the driver, from S.A. The Tribunal Correctionnel found: Creyf's Interim to drive one of its own — That Article 14 (1) of Regulation lorries. Bernard Dufour, the manager of (EEC) No 543/69 of the Council (OJ, the latter company, stated that he had English Special Edition (I) p. 170) hired to Daniel Construction Company requires crew members of a vehicle International a driver who held a valid not assigned to a regular service to

measures to be taken by the Member "undertaking" means "employer" and States themselves in due time and after that in this case the relationship of consulting the Commission; Article 18 subordination as between the hirer of lays down that such measures shall cover, the labour and the worker continues inter alia, the organization of, procedure to exist, or that such a relationship for and means of control and the comes into existence as between the penalties to be imposed in case of breach. person to whom the labour has been hired and the worker?' Having thus sought and studied the national provisions adopted by the The Commission of the European Belgian authorities for the implemen­ Communities and the Government of

tation of the Community regulation, No the Kingdom of the Netherlands 543/69, the Tribunal Correctionnel submitted written observations under considered the Arrêtés Royaux of 23 Article 20 of the Protocol on the Statute March 1970 and 7 May 1973 and came to of the Court of Justice. the conclusion that they went no further than the Community provision in Having heard the views of the Advocate- defining the concept of undertaking. Nor General, the Court decided to open the was there anything to be found in the oral procedure without a preparatory Belgian Cour de Cassation on the point inquiry. It did however request the court at issue. which submitted the questions to supply if possible: The Tribunal Correctionnel, Charleroi, — 'The contract for hire of services

thereupon decided to avail itself of the concluded between the "two under­ opportunity provided for in Article 177 takings" concerning the driver Andre of the EEC Treaty and to submit the Gustin; following questions for a preliminary — The correspondence exchanged bet­ ruling to the Court of Justice of the ween the undertakings in this con­ European Communities: nexion;

— The contract between the driver imposed on that person and that person Gustin and the undertaking hiring must be liable in criminal law for out his services; and the non-observance of any provision — A statement identifying the under­ applicable to the undertaking and, inter taking which pays Gustin's salary and alia, of the duty to issue the individual pays social insurance contributions control book. In the view of the on his account.' Netherlands Government, this is the most suitable answer if only because it is The Commission was also requested to fair that the person who is in the best state during the hearing who, in its view, position to see that the above-mentioned should 'normally' issue the control book: rules are complied with should be the owner of the lorry or the party which responsible in criminal law. has hired out the driver. The Commission recalls the facts of the case and the position under the rules and II — Summary of the obser­ emphasizes the importance of Regulation vations submitted under Ar­ (EEC) No 543/69, the three objectives of ticle 20 of the Statute of the which (social progress, harmonization of Court the conditions of competition and road safety) were referred to by the Court in Admissibility its judgment of 25 January 1977 in Case 65/76 [1977] ECR 29. The Commission states that it does not wish to make any comments as regards The question raised in this case is the the admissibility of the request from the meaning to be attributed to 'undertaking' Tribunal Correctionnel, Charleroi, 'to the within the meaning of the regulation, extent to which it relates to the especially in the specific case where the interpretation of provisions of services of the driver who drives the Community law'. vehicle of a transport undertaking are 'hired out' by an undertaking for hire of Legal considerations temporary labour (on the question of temporary labour in the Community, the The view of the Netherlands Commission refers to an article by Government concerning the first Professor G. Schnorr, CDE 1973, p. 131). question referred to the Court of Justice is that the concept of undertaking within It is clear from Regulation (EEC) No the meaning of Regulation (EEC) No 543/69 and from the Belgian 543/69 refers exclusively to any natural implementing provisions that a clear or legal person who either on his own or distinction is drawn between the

above. Moreover, the word 'undertaking' It is, of course, for the national court to must be understood in the widest sense ascertain to what extent such provisions and embrace not only the person in exist. But in the absence of such respect of whom the driver is an agent provisions, undertakings engaged, di under a contract of service but also the rectly or indirectly, occasionally or employer who pays the wages and bears permanently, in transport operations to the social charges. which the regulation applies must in every case ensure, in advance of the The difficulty in this case lies in the very crew's departure, that the members have fact that, through the intervention of an been issued with the individual book. undertaking hiring out temporary labour, the person for whom the driver is under The duty to issue the book is an a duty to work is not the person whom it unconditional obligation to produce a is his duty to obey; the driver is, specific result and is imposed on all to moreover, the subject of a double service whom the regulation applies and serves

that he is carrying the book; finally, the The Commission accordingly submits driver cannot start his journey without that the questions referred to the Court the book, which he must keep up to date of Justice for a preliminary ruling by the daily'. Tribunal Correctionnel, Charleroi, should be answered as follows: Accordingly, since there is an 'obligation de résultat' (an obligation to produce a — 'The word "undertaking" within the specific result) the Commission considers meaning of Regulation (EEC) No that 'in a case, therefore, where there are 543/69 means any natural or legal several "undertakings" involved, they are person engaged directly or indirectly, under a duty to arrange among occasionally or permanently, in a themselves that the control book is transport operation to which the issued by one or other of them so that regulation applies, such as when he the regulation may be fully applied'. uses the labour of an employee

members. been issued; (b) In the absence of such provisions, — If the undertakings have not assured contractual stipulations between the themselves that the book has been undertakings concerned should issued, they must be considered as establish which of them is under a being equally responsible for failure duty to issue the book. to issue it.'

2 This question was submitted in connexion with criminal proceedings against the manager of a temporary labour undertaking which had provided a transport undertaking with a 'temporary driver' who had been checked by the police on 30 July 1975 while driving a lorry having a maximum permissible weight of more than 3.5 tonnes without being in possession of the individual control book required by Article 14 (1) of Regulation (EEC) No 543/69, an offence which is punishable under Article 2 of the Belgian Law of 18 February 1969.

AUDITEUR DU TRAVAIL v DUFOUR

3 The national court raises the question whether the duty to issue the individual control book to crew members is imposed on the undertaking whose business activity is the hiring out of labour or on the undertaking using the services of the driver for its road transport, since the conditions set out in the annex employ the concepts of undertakings and employers although they are not defined by Regulation (EEC) No 543/69.

4 The national court has submitted the following questions:

1. Does the word 'undertaking' refer exclusively to the natural or legal person who, in fact, either himself or through servants, is engaged in carriage by road, even such carriage constitutes only a part of his business activities?

2. Where the person described above employs hired labour for the purpose of driving his vehicle or vehicles, is that person released from the duty to issue an individual control book to every crew member, and in this case does the word 'undertaking' refer ro the natural or legal person who hires out the labour?

9 Only the Italian version of the regulation described the undertaking which is required to keep a register of the individual books and confined this duty to a 'transport undertaking'.

10 On the other hand the word 'undertaking' is unqualified in the versions in the other official languages of the Community.

11 In view of these different versions and the facts of the present case, the individual field of application of the regulation in relation to the undertaking responsible for issuing the said book must be determined in the light of the scheme laid down by the regulation and of its objectives.

12 That regulations pursues, as part of the harmonization of national laws, a group of objectives which are concerned with the social protection of the driver, road safety and equality of competition between transport undertakings.

13 In order to ensure that these objectives are complied with, the regulation introduced inter alia an individual book containing daily sheets on which are entered in particular the driving periods, rest periods and a weekly report showing the total number of hours of occupational activities during the week.

14 The book is not compulsory in the case of carriage by vehicles listed in Article 4 of Regulation (EEC) No 543/69 or outside the Community (Article 2).

18 The costs incurred by the Commission of the European Communities and the Government of the Netherlands, which submitted observations to the Court, are not recoverable.

19 As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, costs are a matter for that court.

On those grounds

THE COURT,

in answer to the questions submitted to it by the Tribunal Correctionnel de l'Arrondissement de Charleroi, by judgment of 13 June 1977, hereby rules:

It is the duty of the transport undertaking to ensure that the provisions of Article 14 (7) and (8) of Regulation (EEC) No 543/69 are observed.

Registrar President

OPINION OF MR ADVOCATE-GENERAL CAPOTORTI DELIVERED ON 22 NOVEMBER 1977 <apnote>1</apnote>

Mr President, (1) provides as follows: 'Crew members of Members of the Court, a vehicle not assigned to a regular service shall carry an individual control book, 1. In this case a preliminary ruling is which shall conform to the model in the sought on the interpretation of Article 14 Annex to this regulation'. Article 14 (6) (7) and (8) of Regulation (EEC) No provides: 'Crew members shall produce 543/69 of the Council of 25 March 1969 the individual control book whenever on the harmonization of certain social required to do so by any authorized legislation relating to road transport, and inspecting officer'. Article 14 (7) imposes of the ancillary and amending provisions the obligation on 'all undertakings', contained in the Annex to the regulation which in the Italian version of the and in subsequent Regulations Nos regulation appears as 'ogni impresa di 514/72 and 515/72 of 28 February 1972. transporto' (all transport undertakings) to keep a register of the individual books, For reasons relating to both social welfare which must also be produced at the and road safety, Regulation (EEC) No request of any authorized inspecting 543/69 contains detailed provisions on officer; the register must show inter alia the composition of the crews of transport on what date and to whom an vehicles, the length of driving periods, undertaking has issued an individual and rest periods. To ensure that these book. Under Article 14 (8) all completed provisions are complied with, Article 14 individual books shall be kept by the