C-128/78

2. Obligations of Member States — Unilateral action contrary to the Treaty — Failure in the duty of solidarity

1. It cannot be accepted that a Member 2. For a State unilaterally to break, State should apply in an incomplete according to its own conception of or selective manner provisions of a national interest, the equilibrium Community regulation so as to render between the advantages and abortive certain aspects of obligations flowing from its adherence to the Community brings into Community legislation which it has question the equality of Member opposed or which it considers States before Community law and contrary to its national interests. creates discrimination at the expense Practical difficulties which appear at of their nationals. This failure in the the stage when a Community measure duty of solidarity accepted by is put into effect cannot permit a Member States by the fact of their Member State unilaterally to opt out adherence to the Community strikes of fulfilling its obligations. at the very root of the Community legal order.

In Case 128/78

Commission of the European Communities, represented by its Legal Adviser, George Close, acting as Agent, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,

applicant,

1 — Language of the Case: English.

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

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the on the harmonization of certain social

the regulation were being observed crew Crew members of vehicles fitted with members of vehicles were required to tachographs conforming to the approved keep individual control books. specifications were exempted from the Article 16 of Regulation No 543/69 requirement to carry the individual provided that this individual control control book required by Regulation No book should be replaced by mechanical 543/69 (Article 5). recording equipment called a tacho- Other provisions of the regulation relate graph. to type-approval of tachographs (Articles On 20 July 1970 the Council adopted 6 to 13), installation and inspection Regulation (EEC) No 1463/70 on the (Article 14), the use of tachographs introduction of recording equipment in (Articles 15 to 18) and transitional road transport (Official Journal 1970, L provisions (Articles 19 and 20). Finally 164, p. 1) Article 21 (1) <apnote>1/apnote> provides that: Among the objectives of that regulation "Member States shall, in good time and is the effective enforcement of Regu- after consulting the Commission, adopt lation No 543/69 and in particular the such laws, regulations or administrative replacement so far as possible of the provisions as may be necessary for the individual control book by recording implementation of this regulation. apparatus, to contribute to road safety, to remove hindrances to the free circu- Such measures shall cover, inter alia, the lation of vehicles in the Community and reorganization of, procedure for, and to avoid distortions of competition means of carrying out, checks on arising from different rules in Member compliance and the penalties to be States (see in particular the first, sixth, imposed in case of breach." seventh and eleventh recitals in the The Act of Accession contains a preamble). provision relating to the entry into force To this end the regulation provides for of Regulation No 1463/70 in the United the installation and use of tachographs Kingdom. Article 133, read in on vehicles used for the carriage of pass- conjunction with Point 4 of Title III of engers or goods by road which were Annex VII provides that: registered in Member States, subject to "Provisions identical with those certain exceptions (Article 3). The instal- contained in Article 4 (1) shall apply in lation and use of the apparatus were respect of ... the United Kingdom from made compulsory with effect from 1 1 January 1976." January 1975 for: Thus the Act of Accession delayed by (a) vehicles registered for the first time one year the initial application of the after that date; provisions of the regulation with regard (b) vehicles used for the carriage of to the United Kingdom. dangerous goods, whatever the date On 25 June 1973 the Council adopted of registration, Regulation (EEC) No. 1787/73 at the time of their entry into service. amending Regulation (EEC) No With effect from 1 January 1978 the 1463/70. This deals with cases in which

2. In a letter of 30 January 1976 to the In its reply of 10 January 1978 the United Kingdom Permanent Represen- Government of the United Kingdom tation the Commission's Directorate expressed its intention not to implement General for Transport drew attention to the regulation fully for reasons based on the fact that Regulation No 1463/70 was economic, industrial and practical considerations. applicable in new Member States as from 1 January 1976 for newly registered vehicles and for those carrying dangerous goods whatever their date of registration. Moreover it asked to be informed as soon as possible of the action taken by the United Kingdom Government in accordance with Article

21 to implement the regulation. By letter dated 25 February 1976 the United Kingdom Representation sent the Commission a draft statutory instrument entitled "The Passenger and Goods Vehicles (Recording Equipment) Regu- lations 1976" designed to introduce a voluntary scheme covering both inter- national and national traffic.

COMMISSION UNITED KINGDOM

On 15 February 1978 the Commission achievement of the aims of the

General the Court decided to open the admits that these regulations are only oral procedure without any preparatory "initial" measures and that they are inquiry. intended to enable vehicles registered in the United Kingdom to comply with tachograph regulations whilst travelling II — Conclusions of the parties in other Community countries. However, the regulations do not require The Commission claims that the Court the compulsory installation of tacho- should: graphs even for international journeys. In (a) Declare that by failing to adopt in fact they provide only for a voluntary good time the measures which scheme applying to both national and remain to be taken to implement international traffic. It is only by reason Regulation (EEC) No 1463/70 on of rules applicable in other Member the introduction of recording States that operators are compelled to equipment in road transpon and by install tachographs for international failing to consult the Commission on journeys. the measures in question before The British regulations lack any adoption the United Kingdom has provision creating offences and laying failed to fulfil its obligations under down penalties for failure to install and the Treaty and in particular those use tachographs in accordance with imposed by Article 23 (1) of the said Community legislation. regulation, as amended; (b) Order the Government of the United Kingdom to pay the costs.

The Government of the United Kingdom contends that the Court should:

— Refrain from making a declaration pursuant to Article 169 of the Treaty if as in the present case to do so would not substantially promote the

relations and an increase in wage claims In its defence the United Kingdom in case of introduction of tachographs Government denies that it failed to and by claiming that the failure to consult the Commission before intro- comply with the regulation for national ducing the measures adopted in journeys will not affect significantly application of Regulation No 1463/70. conditions of competition, justify in law On 2 September 1975 the United the failure of the United Kingdom fully Kingdom submitted to the Commission a to implement the regulation in question. memorandum on the serious obstacles to The United Kingdom solemnly the compulsory introduction of tacho- undertook to abide by its Treaty graphs under Regulation No 1463/70 obligations, subject to the various and sought the Commission's views modifications which were incorporated thereon. in the Act of Accession and amending Moreover the Commission itself has regulations by which the special needs of stated in its application that the the United Kingdom were taken into account. Permanent Representative of the United Kingdom sent to the Commission on 25 The Community system would become February 1976 the measures proposed by unworkable if a Member State could the United Kingdom. The Commission reserve the right to decide not to apply gave its opinion thereon and asked the in whole or in part a binding Community United Kingdom to send it an amended measure which had been duly adopted draft of the measures proposed. according to Community procedure if in In concluding that in the United its opinion it was more advantageous not to do so. Kingdom the objectives of the Treaty and of Regulations Nos 543/69 and In accordance with Regulation No 1463/70 were more likely to be 1463/70, with the provisions of the furthered in the form proposed by the Treaty, in particular Articles 5 and 189, United Kingdom than in the form sought and with the Act of Accession, the by the Commission, the British United Kingdom is bound to adopt in Government appreciated that that good time all the necessary measures of decision was not acceptable to the application after consultation with the Commission. Commission. However, in these circumstances it The Commission feels that in many cannot accept that it came to that respects the Community legislature has decision without consultation with the taken into consideration the needs of the Commission. The practical consequences United Kingdom (in particular the of attempting to enforce compulsory provision made in Point 4 of Part Three measures when important sections of the of Annex VII to the Act of Accession). industry concerned are demonstrating a Moreover the United Kingdom had deep-seated resentment against the ample opportunity during the subsequent adoption of amending regulations to make clear its opposition by arguing that tachographs were unnecessary for domestic transport. The Community however has not accepted that case. In these circumstances, any practical difficulties of implementation of Regu- lation No 1463/70 by the United

The United Kingdom believes that there necessary for the implementation of the is a serious risk that labour would be regulation. withdrawn from a critical sector of the The Commission denies that the national economy and that the stability objectives of Regulation No 1463/70 can of the economy would or at least might be achieved by means other than those well be jeopardized. determined by the specific provisions of In fact some operators were forced to the regulation in question. remove a considerable number of tacho- Member States are not free to set aside graphs from their vehicles. Such circums- certain provisions of a regulation — tances would place the law-enforcement provisions which are binding in their agencies in an impossible position and entirety and directly applicable in all would lead inevitably to a situation in Member States (Article 189 of the EEC which respect for the law would be Treaty) — if they consider that domestic undermined. The far-reaching conse- difficulties are too great to permit of the quences would be out of all proportion application of the regulation (judgment to any advantage which might be gained of 11 April 1978, Case 100/77 by the implementation of the obligation. Commission v Italian Republic, paragraph 21, [1978] ECR 887). The general use of tachographs is more likely to be achieved without major dis- The Commission emphasizes that in ruption in the light of experience with giving an opinion on the measures of the equipment on a voluntary basis. application proposed it acted in accordance with Article 155 of the EEC The United Kingdom feels that in Treaty. practice the objectives of Regulation No 1463/70 have substantially been achieved It is no defence to a charge of not in relation to the United Kingdom, in having taken the necessary measures to particular for vehicles travelling between implement a regulation to claim that as a Member States. result of its non-application no particular prejudice has ensued to other Member In comparison with standards of road States or the Community. That would safety in the other Member States those amount to saying that Member States in the United Kingdom are more severe retain a residual discretion as to whether both for international and domestic to implement their obligations under the journeys. Treaty. According to the United Kingdom it is The Treaty contains no provision not easy to see in these circumstances making it possible to support a thesis of how other Member States or the this kind. Otherwise no Member State Community as a whole could be could rely on legal undertakings prejudiced by the fact that on certain solemnly arrived at, often with the domestic journeys the introduction of recording equipment is not compulsory. In its reply the Commission observes that it has never claimed that the United

on the request of the defendant that the opinion at the hearing on 18 January Court should refrain from making a 1979.

Decision

1 By application dated 7 June 1978 the Commission applied to the Court for a declaration under Article 169 of the Treaty that the United Kingdom had failed to fulfil its obligations under the Treaty by failing to adopt in good time the measures which remain to be taken to implement Regulation No 1463/70 of the Council of 20 July 1970 on the introduction of recording equipment in road transport (Official Journal, English Special Edition 1970 (II), p. 482), and by failing to consult previously with the Commission as provided for by the said regulation.

2 Regulation No 1463/70, as amended by Regulations No 1787/73 and 2828/77 of the Council of 25 June 1973 (Official Journal L 181, p. 1) and 12 December 1977 (Official Journal L 334, p. 5), is primarily intended to replace the individual control book by recording equipment, commonly called a tachograph, designed for road transport.

COMMISSION UNITED KINGDOM

According to the recitals in the preamble to the regulation the equipment is intended to record automatically driving periods and other parameters of the vehicle's journey, such as speed and distance covered. Its installation and use have been made compulsory in order to ensure uniform and effective control of the working time of crews and to improve road safety while avoiding obstacles to the free movement of vehicles within the Community or distortion of the conditions of competition. The regulation makes the instal- lation and use of the recording equipment compulsory at different dates for specific classes of vehicle, the most important provision being Article 4 which makes this compulsory with effect from 1 January 1975 as regards vehicles registered for the first time on or after that date and for vehicles used for the carriage of dangerous goods, whatever the date of their registration.

7 The defendant claims that this arrangement is sufficient to meet the objectives of promoting road safety, of social progress for workers and of the harmonization of conditions of competition. It maintains that the implementation of Regulation No 1463/70 on its territory is best achieved by the installation and use of the recording equipment on a voluntary basis, though this may be made compulsory at an appropriate time. It adds that implementation of the regulation involving compulsory measures would meet with active resistance from the sectors concerned, in particular the trade unions, which would result in strikes in the transport sector and would therefore seriously damage the whole economy of the country.

8 It contends that since, in the case of the United Kingdom, the objectives of the Community policy in this field can be achieved just as satisfactorily by the maintenance of the system of the individual control book as by the compulsory introduction of recording equipment, the alleged failure to fulfil an obligation is of a purely technical nature and, in view of the difficulties referred to, should not be taken into account. Moreover the installation and use of recording equipment is in practice already guaranteed in respect of intra-Community transport by the fact that the other Member States have made it compulsory.

9 Article 189 of the Treaty provides that a regulation shall be binding "in its entirety" in the Member States. As the Court has already stated in its judgment of 7 February 1973 (Case 39/72 Commission v Italian Republic [1973] ECR 101) it cannot therefore be accepted that a Member State should apply in an incomplete or selective manner provisions of a Community regu- lation so as to render abortive certain aspects of Community legislation which it has opposed or which it considers contrary to its national interests. In particular, as regards the putting into effect of a general rule intended to eliminate certain abuses to which workers are subject and which in addition involve a threat to road safety, a Member State which omits to take, within

13 It appears therefore that, in deliberately refusing to give effect on its territory to the provisions of Regulation No 1463/70, the United Kingdom has markedly failed to fulfil the obligation which it has assumed by virtue of its membership of the European Economic Community.

JUDGMENT OF 7. 2. 1979 — CASE 128/78

14 The Commission has also asked that there should be a separate finding of a failure by the United Kingdom to fulfil its obligation to consult it on the national measures to be introduced in accordance with the aforementioned Article 23.

15 In the present case the failure to consult the Commission is part of the failure to fulfil the obligations under Article 23 (1), since the United Kingdom Government informed the Commission on 1 January 1976 that it did not consider itself to be in a position to introduce the provisions required by that article. In these circumstances it is not necessary to make a separate declaration in respect of the failure to consult.

Costs

16 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

2. Orders the defendant to pay the costs.

Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 7 February 1979.

A. Van Houtte H. Kutscher

Registrar President