C-97/78

In Case 97/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Oberlandesgericht (Higher Regional Court) Düsseldorf (Second Senate) for a preliminary ruling in the proceedings pending before that court concerning fines imposed on

Fritz Schumalla, residing at Emmerich-Elten,

on the validity of Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport (Official Journal, English Special Edition 1969 (I), p. 170),

1 — Language of the Case: German.

JUDGMENT OF 28. II. 1978 — CASE 97/78

The facts, the procedure and the written particular Article 7 (1) and (2) and observations submitted under Article 20 Article 11 (1) laying down the of the Protocol on the Statute of the maximum driving period and Court of Justice of the EEC may be minimum rest period respectively. summarized as follows:

The accused appealed against this I — Facts and written procedure judgment before the Oberlandesgericht Düsseldorf (Second Senate), contending 1. Fritz Schumalla, residing in the that Regulation (EEC) No 543/69 is not Federal Republic of Germany, covered authorized by the EEC Treaty and is long distances as the driver of a 38 tonne therefore invalid. He maintains in

The Commission of the European pointed out, the basic provisions of Communities, represented by its Legal Articles 2 and 3 of the Treaty are to be Adviser, Gerhard Bebr, and the Council interpreted as applying to the whole of the European Communities, complex of economic activities, and as represented by Raffaello Fornasier, such to the transport sector. According Director in the Legal Service, acting as to Article 3 (e), the activities of the Agent, assisted by Bernhard Schloh, Community shall include "the adoption Legal Adviser, submitted written obser of a common policy in the sphere of vations in accordance with Article 20 of transport". Article 74 refers to the the Protocol on the Statute of the Court objectives of the Treaty, which the of Justice of the EEC. Community is to pursue "within the framework of a common transport Upon hearing the report of the Judge-

The II — Written observations sub provisions applicable to transport must mitted under Article 20 of also be understood and interpreted in the the Protocol on the Statute light of the principles defined in the preamble, which affirms as "the essential of the Court of Justice of the EEC objective" of Community policy "the constant improvement of the living and working conditions of their peoples". A — In order to answer the question which has been asked the Commission Although transport is an essential considers it necessary instrument for the development and establishment of the Common Market — first of all to interpret the provisions and although it is subject to

As the Court itself has That decision emphasizes the need for

extensive powers and a broad margin of that the primary, fundamental objectives discretion in the exercise of those of the said regulation concern powers. competition, particularly competition in road transport. It would be absurd if the This is confirmed by Article 75 (1) (c) of Community could not adopt a regulation the Treaty, and that article is the legal exclusively concerning road transport for basis both of the Decision of 13 May the sole reason that the regulation might 1965 and of Regulation No 543/69. have positive effects on road safety. If such were the case, it would be (b) On the second point, the practically impossible to conduct an Commission points out that Regulation effective common transport policy. No 543/69 simultaneously pursues Finally, and in the alternative, it is several objectives directly concerning pointed out that according to the transport. While providing for harmon­ case-law of the Court a legal act remains ization of certain social legislation valid even if the Community has pursued applicable in that sphere, the regulation an objective other than that for which is intended primarily to reduce disparities the Treaty conferred a power on it, in transport conditions which cause sub­ provided that the objective primarily stantial distortion in competition. In pursued is legitimate. Thus, even if Regu­ particular it lays down uniform working lation No 543/69 is not confined to conditions for crews, the period of harmonizing certain social legislation continous driving, the total period of relating to road transport but also helps driving time and rest periods. These are promote road safety — which, in the social measures which have a Commission's submission, is an entirely considerable effect on road safety. All legitimate objective of the common these objectives are closely interlinked, transport policy — the said regulation and concern road transport exclusively. remains valid by virtue of its principal From this point of view, the harmon­ objective. ization of social legislation is a measure The Commission concludes by citing which essentially answers the needs and certain judgments of the Court of Justice requirements of road transport and which concern inter alia Regulation No which as such forms an integral part of 543/69 and which, it claims, confirm by the common transport policy. implication the validity of Regulation No It follows that the Community was 543/69 because they assume that the empowered under Article 75 (1) (c) of Community's external competence in the Treaty to adopt a regulation such as road transport is based on that regu­ lation. Regulation No 543/69, precisely intended to ensure such harmonization. The Commission also mentions opinions The broad terms in which that provision expressed by the other institutions of the is formulated clearly show that the Community and their consultative bodies Community has extensive discretion in on the legal basis of Regulation No this area. This power on the part of the 543/69, which are claimed to indicate Community is not excluded by the fact precisely that Article 75 of the Treaty is that such a regulation also helps promote the appropriate legal basis for that regu­ road safety: indeed the objective of road lation.

In conclusion, the Commission proposes . . . führen"). It is submitted that the that the answer to the national court first of these three passages in the should be that consideration of the preamble lays down the principle that question raised has disclosed no factor of the provisions of the regulation such a kind as to affect the validity of concerning "driving periods" should Regulation (EEC) No 543/69. be brought into operation "by stages"; the other two passages are B — The Council considers first of all intended to ensure continued whether and to what extent road safety observance of national rules and to is an objective of Regulation No 543/69, preserve the legislative power of the the validity of which is at issue in this Member States in the sphere case, and then whether such an objective concerned. comes within the common transport policy governed by the EEC Treaty. It follows from these considerations that road safety is not the primary objective (a) On the first point, the Council of Regulation No 543/69.

regulation. In the third recital that p. 23 et seq., 38 et seq. and 67); concept is designated by the words "Sicherheit im Straßenverkehr" — by the Economic and Social Committee, in its Opinion of 28 ("road safety" in the English March 1974 (Official Journal 1974, version), whilst in the eight recital the concept is evoked by reference to the No C 126, p. 26 et seq.); conditions under which drivers can — and by the Council, which following drive "with complete safety" ("sicher the aforementioned communications

2 It appears from the judgment making the reference that the appellant in the main action was convicted at first instance under Article 7 a (1) 1 (c) and (d) of the Fahrpersonalgesetz (Law on road haulage crews) for infringements of Article 7 (1) and (2) and Article 11 (1) of the aforesaid regulation, laying down the maximum driving period and the minimum rest period respectively, which he committed between 18 July 1976 and 8 September 1976 as a lorry driver in transporting goods over a long distance.

The appellant maintains that in so far as the aforesaid provisions of Regu­ lation No 543/69 are concerned with promoting road safety, that regulation covers matters which are not within the Council's powers under the Treaty in the sphere of transport.

SCHUMALLA

In order to clarify this issue, the national court asked the Court of Justice whether Regulation No 543/69 is authorized by the EEC Treaty and therefore valid.

3 As appears from the preamble to Regulation No 543/69 of the Council, the essential purpose of that regulation is to bring into operation the provisions of the Council Decision of 13 May 1965 on the harmonization of certain provisions affecting competition in transport by rail, road and inland waterway (Official Journal, English Special Edition 1965-1966, p. 67), in particular Section III thereof concerning "social provisions".

The fact that the preamble to the regulation at issue cites not only Article 75 but also the Treaty as a whole indicates that the harmonization of certain national legislation, which the regulation is to bring about in one of the sectors covered by the said decision, is one of the objectives of the Community defined in Article 3 of the Treaty.

JUDGMENT OF 28. 11. 1978 — CASE 97/78

Article 79 (2) of the Treaty also confirms that this power is conferred on the Council in a general way, in order inter alia to eliminate discrimination in transport affecting competition.

5 Referring primarily to the social matters which form the subject-matter of Section III of the Decision of 13 May 1965, Regulation No 543/69 is merely a partial implementation of Article 74 of the Treaty and of the aforesaid decision, which provides for the harmonization of national legislation in the realms of taxation and State intervention as well as in the realm of social legislation.

In these circumstances, and having regard to the extent of its powers for the adoption of a common transport policy, the Council did not exceed its powers by regulating matters which concern social policy and road safety at the same time in so far as they are interlinked.

6 Furthermore, since common provisions ensure an improvement of road safety as well as the social protection of the driver, they cannot but contribute to the elimination of disparities liable to cause substantial distortion in competition in the transport sector, and thus prove "appropriate" within the meaning of Article 75 (1) (c) of the Treaty for the purpose of establishing a common transport policy.

Moreover, safety of transport by rail, road and inland waterway fulfils not only the objectives of the common transport policy but also the requirements of the Common Market as laid down in Article 3 (f), because as a result of being subject to common rules it contributes to the observance of the conditions of competition in the sphere of transport.

THE COURT (First Chamber),

in answer to the question refered to it by the Oberlandesgericht Düsseldorf by an order of 6 March 1978, hereby rules:

Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport.

Mertens de Wilmars O'Keeffe Bosco

Delivered in open court in Luxembourg on 28 November 1978.

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber