C-133/83

JUDGMENT OF THE COURT (FOURTH CHAMBER) 11 JULY 1984 1

Regina v Thomas Scott & Sons Bakers Limited and Brian Rimmer (reference for a preliminary ruling from the House of Lords)

(Social legislation relating to r o a d transport — Specialized vehicles for d o o r - t o - d o o r selling)

Case 133/83

Transport — Road transport — Social legislation — Derogations — Specialized vehicles for door-to-door selling — Concepts of "specialized vehicle" and "door-to-door selling" (Regulation No 543/69 of the Council, Art. 14a (3) (a), as amended by Regulations Nos 515/72 and 2827/77)

1. The term "specialized vehicle" for 2. The activity of "door-to door selling" certain types of transport operations within the. meaning of the afore- within the meaning of Article 14a (3) mentioned Article 14a (3) (a) may (a) of Regulation No 543/69 of the consist of calls on potential wholesale Council on the harmonization of customers, such as shops, works certain social legislation relating to canteens, old-people's homes or road transport as amended by Regu- supermarkets provided that the lations Nos 515/72 and 2827/77, is activity of selling is characterized by intended to cover exclusively vehicles frequent stops by the specialized whose construction, fitments or other vehicle. permanent characteristics guarantee that they are used primarily for one of those operations, such as door-to- door selling.

THOMAS SCOTT & SONS BAKERS LIMITED AND BRIAN RIMMER

or, the interpretation of Article 14a (3) (a) of Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonization of certain socia legislation relating to road transport (Official J o u r n a l English Special Edition 1969 (I), p. 170), as amended by Council Regulation (EEC) N o 2827/77 of 12 December 1977 (Official Journal 1977 L 334, p. 1),

T H E C O U R T (Fourth Chamber)

composed of: T. Koopmans, President of Chamber, K. Bahlmann, P. Pescatore, A. O'Keeffe and G. Bosco, Judges,

Advocate General: C. O. Lenz Registrar: J. A. Pompe, Deputy Registrar

gives the following

harmonization of certain social legis- Commission, to grant certain exemptions lation relating to road transport contains from the provisions of that regulation. provisions concerning the manning of certain vehicles of more than 3.5 tonnes engaged in the carriage of goods by Regulation No 543/69 was amended road, limiting driving periods and once more by Council Regulation (EEC) specifying daily and weekly rest periods No 2827/77 of 12 December 1977 which for crew members. The regulation has a added further paragraphs to the afore- number of objectives including in mentioned Article 14a, paragraph 3 of particular the social protection of drivers, which provides as follows: road safety and the harmonization of the conditions of competition between road hauliers. "Member States may, after authorization by the Commission, grant exemptions from this regulation for the following In order to ensure compliance with those national transport operations and uses: provisions, monitoring procedures are provided for; the procedures differ according to whether or not the vehicle (a) use of specialized vehicles at local is assigned to a regular service. In the markets, for door-to-door selling, case of a vehicle not assigned to a for mobile banking, exchange or regular service, Article 14 provides that savings transactions, for purposes of crew members are to carry an individual worship, for the lending of books, control book containing daily sheets records or cassettes, for cultural giving details in particular of driving events or mobile exhibitions; periods and rest periods. (b) transport of milk from the farm to The individual control book has the dairy and vice versa. progressively been replaced by a mechanical monitoring device known as ,, a "tachograph", which automatically records the periods during which the vehicle is travelling or stationary, together with the speed of travel. The Article 14a (5) of Regulation No 543/69, installation of tachographs in certain as inserted by Regulation No 2827/77, vehicles of more than 3.5 tonnes engaged provides: in the transportation of passengers or goods was made obligatory by Regu- "Where an exemption from this regu- lation (EEC) No 1463/70 of the Council lation is granted, Member States shall of 20 July 1970 on the introduction of take appropriate measures at the same recording equipment in road transport time to keep an effective check on such (Official Journal, English Special Edition transport so as to ensure that standards 1970 (II), p. 482). of social protection and road safety are not impaired." Regulation No 543/69 was amended by Regulation (EEC) No 512/72 of the Regulation No 1463/70 was amended by Council of 28 February 1972 (Official Council Regulation (EEC) No 2828/77 Journal, English Special Edition 1972 (I), of 12 December 1977 (Official Journal p. 134) which inserted into the former 1977, L 334, p. 5), which inter alia added regulation a new Article 14a enabling the to Article 3 of the former regulation, Member States, after consulting the paragraph 3 according to which

The United Kingdom availed itself of the Before the court of first instance the possibility of derogating from the parties were agreed that the issue was aforementioned Community regulations whether or not the van in question and when it introduced the Community Road its use on the occasion in question fell Transport Rules (Exemptions) Regu- within the exemption laid down by the lations 1978, as amended by the Com- aforementioned national legislation for munity Road Traffic Rules (Exemption) transport involving the use of specialized (Amendment) Regulations 1980, of vehicles for door-to-door selling. which Regulation No 4 provides in particular that the provisions of Regu- lations Nos 543/69 and 1463/70 are not to apply to national transport operations Having regard to the order of the House involving: of Lords, the way in which the van was fitted out and the manner in which it was used may be summarized as follows :

"the use of specialized vehicles . . . for door-to-door selling". In the rear of the van there was a large quantity of bread and cakes which the driver was hoping to sell to his employer's customers. He was employed Outline of the facts by them as a driver/salesman and was paid on a commission basis. His round covered several miles and consisted in On 26 September 1981 Brian Rimmer, general of 10 calls to supermarkets, who is employed by Thomas Scott & shops, works canteens and an old- Sons Bakers Limited (hereinafter people's home. However, on the day in referred to as "Thomas Scott"), was question, which was a Saturday, his stopped by police on a motorway while round consisted of only five calls since driving a van belonging to his employers the works canteens were closed. His

method of work was to order his stock 14a (3) (a) of Regulation No on a weekly basis, one week in advance, 543/69 of the Council, the word based on his experience of his normal 'specialized' is meant to apply to order. He hoped to sell his entire stock the characteristics of the particular but that depended upon the customers' vehicle alone, or to the activity of requirements when he called. He was door-to-door selling alone, or to a paid in cash by the small shops but the combination of both: and if the supermarkets, works canteens and old- latter interpretation is correct, what people's home paid through an office degree of interrelation is meant; account. Nothing turns on the method of payment since it is accepted that the fact that no cash was collected from account customers did not prevent the transaction (2) Whether upon the true interpret- from being one of sale. ation of the same exemption provisions, the activity of door-to- door selling is meant to apply only The bread and cakes were carried in to a methodical calling at one plastic baskets or trays, specially house after another for the purpose designed for stacking one on top of the of selling to the ultimate consumer; other so that they interlock when so or whether it applies to a number stacked. In order that those trays were of calls to potential wholesale held firmly in the vehicle there were clips customers, such as shops,, canteens, which moved up and down metal rods old-people's homes, or super- fitted to the vehicle's sides. Those clips markets for the purpose of selling, were designed to fit over the topmost and where the driver spends a tray, thus holding the entire stack against significant amount of time selling the sides of the van. As a further method or whether it may apply to a of ensuring the stability of the stacks, the combination of both and if the centre of the floor had been raised so latter interpretation is correct, what that the tray at the bottom of the stack degree of interrelation is meant; butted up against the raised part of the floor. Beading had been fixed on the floor to facilitate pushing trays in and out of the van and the sides of the (3) What is the proper construction to vehicle were sealed to prevent the ac- be put upon the word 'specialized' cumulation of crumbs and dust. in the context of Article 14a (3) (a) of the regulation."

R. Gray, barristers-at-law, of London, The defendants in the main action go on instructed by McKenna & Co., solicitors; to note that if the Community legislature by the United Kingdom, represented for had meant "specialized" to qualify the the purpose of these proceedings by vehicle's use, that could readily have G. Dagtoglou, Treasury Solicitor's been done by providing, for example, Department, acting as Agent; by the that the exemption in question applied to Government of the French Republic, "the use of vehicles specialized (or represented by the Secretary General of specially made or adapted) for door-žo- the Interministerial Committee for door selling". Moreover, if the adjective European Economic Cooperation, in the "specialized" had been meant to qualify person of J.-P. Costes; and by the both the vehicle and the use to which it Commission of the European Com­ is put, it would have been possible to use munities, represented by its Principal words such as "the use of vehicles Legal Adviser, G. Close, acting as Agent. specialized (or specially made or adapted) for their particular operation and for door-to-door selling". Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court decided to It follows that when applying the open the oral procedure without any relevant text to a particular case it is preparatory inquiry. By order of 18 necessary to consider first the type of January 1984 the Court assigned the case national transport operation in question to the Fourth Chamber pursuant to (in the present case: the transportation of Article 95 (1) of the Rules of Procedure bakery products) and whether the vehicle of the Court. is specialized for that type of transport. Only after those questions have been considered is it necessary to check whether the specialized vehicle was used for door-to-door selling. That is a I I — Written observations sub­ completely separate question; the mitted to the C o u r t provision in question is in fact based upon a clear distinction between the nature of the vehicle and the use to With regard to the first question Thomas which it is put. Scott and Brian Rimmer maintain that the word "specialized" in Article 14a (3) (a) of Regulation No 543/69 ("specialized With regard to the second question vehicles . . . for door-to-door selling") relating to the meaning of the term relates to the characteristics of the "door-to-door selling", various factors vehicle and not to the use to which it is point to that term being given a wide put. interpretation.

interpreted as involving "multipe stops at not jeopardize the ojectives of the shops or households where the driver relevant regulations in any way. spends a significant amount of time selling". Such an interpretation does not necessarily limit the concept of door-to- door selling to calls made methodically at one house after another for the purpose of selling to the ultimate Finally, with regard to the third question customer. Next the defendants in the concerning the proper interpretation of main action note that the exemptions the word "specialized" within the from the Community regulations were meaning of Article 14a, the defendants in introduced in part to provide a degree of the main action repeat their submissions flexibility in the application thereof that the word qualifies only the vehicle without jeopardizing their objectives. But in question. They add that the charac- if the concept of door-to-door selling is teristics of any particular vehicle must limited to operations which consist solely relate to its being specially constructed of methodical calls from one customer to or adapted for the operation or business another, the exemption in question will concerned. In this case they are, for seldom apply to any transport operation example, the spaced racks and clips within the Member States since vehicles which enable the trays of bread and of less than 3.5 tonnes, to which Regu- cakes to be stowed and secured. lations Nos 543/69 and 1463/70 do not Moreover, it is not necessary to require apply, are almost always used for such that the specialization be of such a methodical selling to domestic customers. nature that the vehicle could only be used for the operation in question and no other; it is sufficient that the specialized vehicle can be distinguished from a general-purpose goods vehicle.

The United Kingdom adds that the The United Kingdom also notes that the quality or degree of specialization sale does not necessarily have to be to required need not be very great. In its members of the public and points out opinion any vehicle which has been that there are roundsmen in the towns constructed, converted, adapted or and cities of the United Kingdom who modified for door-to-door selling should are employed by large bakeries or be exempt provided that it is being used wholesale distributors of bread or similar solely in that manner. perishable goods. They have no contact with members of the public and do not effect retail sales. Instead, in the course of their "rounds" they call at a large With regard to the second question, the number of usually small shops and other United Kingdom notes that all the outlets supplying whatever their various activities listed in the exemption customers need from the stocks in their in question other than door-to-door vehicle. According to the United selling appear to have two features in Kingdom, such a roundsman typically common, namely: "sells" inasmuch as he often seeks to persuade the customer to increase his order or to add a new product to it. In 1. The vehicle is left immobile for long addition, a roundsman is always on the periods or for a frequent number of lookout for fresh customers to add to his short periods, which in either case round even though very often the order may well exceed those during which it is not received in advance but is only travels; placed by the customer when the roundsman calls. The United Kingdom considers that the exemption in question should also cover such persons. 2. Members of the public attend at or approach the vehicle.

The Government of the French Republic that the exemptions set out in Article 14a maintains with regard to the first and (3) (a) of Regulation No 543/69 third questions that the adjective envisage certain kinds of highly "specialized", in the sense in which it is specialized national transport operations used in the regulation in question, relates which do not, by their very nature, enter to the whole of the transport operation, into competition with other means of that is to say, to both the equipment and inland transport. Moreover the nature of the use of the vehicle. The vehicle's the operations is such that there is little equipment must, moreover, be perma- danger of the driver being at the wheel nent so that the vehicle cannot be used for long continuous periods. For those for any transport operation not falling reasons it is neither necessary nor appro- within the exemption; in this case the priate to to apply the Community regu- equipment of the vehicle in question lations to them. Having regard to the (baskets, clips) is not permanent. In purpose of Article 14a (3) (a) as stated addition, the equipment must be adapted above, it is a simple matter to interpret to the use in respect of which the that provision. exemption is granted. In that respect the French Government states that a vehicle is specialized for door-to-door selling if its interior is fitted out as a shop with, for example, shelving appropriate to the goods, scales, refrigerated units, counters The Commission submits that the and the like. Finally it should be noted exemption at issue in this case must be that if a vehicle which is specially given a strict interpretation and it refers equipped is used for the transportation to the approach adopted by the Court in of goods falling outside the exemption, Case 47/79 (Nehlsen v Bremen [1979] the exemption will cease to apply since ECR 3639), which was concerned with the vehicle then becomes an ordinary another exemption from the general transport vehicle. rules in Regulation No 543/69. In that case the Court determined the scope of the exemption in question "with regard to the objectives of that regulation and to the legal context in which it is situated". The Court also refused to give With regard to the second question the the exemption the wide interpretation French Governmant submits that the sought by the defendant in the main Court should adopt the definition that action on the ground that the provision door-to-door selling refers to itinerant at issue was insufficiently clear and retail sales to individuals at their home precise to support such an interpretation. and characterized by very frequent stops The Commission concludes that the in the course of a round. If the Court exemptions from Regulation N o 543/69 were to give a wider definition of the may be given a wide definition only if concept of "door-to-door selling", it their wording is sufficiently clear and would then be easy to camouflage precise. operations involving only transportation as door-to-door selling and thus to evade the duty to install recording equipment.

the vehicle and must be related to the wholesale operations where relatively purpose of the exemption. It admits that large consignments of goods are most of the language versions of Article delivered to delivery points which are 14 a (3) (a) of Regulation No 543/69 more widely spread. Furthermore, do not establish explicitly such a wholesale trading will probably involve relationship. Only the Dutch wording is delivery upon orders which hardly clear in that respect, referring, literally corresponds to the definition of door-to- translated, to "the use of vehicles which door selling. The Commission also are specially equipped for sale to the argues that the wording of the text in house". According to the Commission question is not sufficiently clear and that is the interpretation which must be precise for it to be extended to wholesale given to Article 14a (3) (a). In fact it operations. For those reasons it submits would be very difficult to check that the exemption contained in Article transport operations to verify whether 14a (3) (a) should be limited to sales they are limited to the types envisaged by directly to members of the public. the aforemetioned provisions. In the Commission's view, the degree of inter- relationship is very difficult to define in abstract terms, but must be sufficient to identify the vehicle as being specially suitable for the purposes of the exemption. In this case a van that is Finally the Commission proposes that the simply modified for the carrying of bread questions referred to the Court of Justice and cakes does not show the necessary by the House of Lords should be degree of specialization so as to make it answered as follows: suitable for door-to-door selling. Fur- thermore, as was stated in the judgment of the High Court, the van was not equipped with a specialized engine such as that normally used on a milk float; such engines are necessary in view of the fact door-to-dorr selling involves 1. In the exemption provided by Article constant stopping and starting. 14a (3) (a) with respect to the use of specialized vehicles . . . for door- to-door selling, the adjective "specialized" relates to the charac- teristics of the vehicle and the vehicle as "specialized" must be for the purposes of the exemption. As to the With regard to the second question the degree of interrelation between the Commmission contends that the concept specialized characteristics of the of door-to-door selling relates solely to vehicle and the purposes of the sales made directly to members of the exemption, the degree of special- public. That interpretation is once again ization required must be sufficient to confirmed by the Dutch language identify the vehicle as being especially version, which refers to "sale to the suited for the purpose of the house",and by general considerations. In exemption. More particularly the fact fact, only selling from house to house is that a van had been modified to make characterized by frequent stops with it suitable for carrying bread and selling rather than driving occupying the cakes would not make it a specialized greater part of the driver's working time. vehicle for the purposes of door-to- That is not necessarily the case with door selling.

1 By o r d e r of 23 J u n e 1983, which was received at the C o u r t on 11 July 1983, the H o u s e of Lords referred to the C o u r t for a preliminary ruling p u r s u a n t to Article 177 of the E E C T r e a t y several questions relating to the interpret- ation of Article 14a (3) (a) of Regulation ( E E C ) N o 5 4 3 / 6 9 of the Council of 25 M a r c h 1969 on the h a r m o n i z a t i o n of certain social legislation relating to r o a d transport (Official J o u r n a l , English Special Edition 1969 (I), p. 170), as a m e n d e d by Regulation (EEC) N o 5 1 5 / 7 2 of the Council of 28 February 1972 (Official J o u r n a l , English Special Edition 1969 (I), p. 170), as a m e n d e d by Regulation (EEC) N o 5 1 5 / 7 2 of the Council of 28 February 1972 (Official J o u r n a l , English Special Edition 1972 (I), p. 134) and by Council Regulation (EEC) N o 2 8 2 7 / 7 7 of 12 D e c e m b e r 1977 (Official J o u r n a l 1977 L 334, p. 1).

2 T h e questions arose in criminal proceedings against T h o m a s Scott & Sons Bakers Limited, a bakery undertaking which owns and operates several bread delivery vans, and against one of its employees, Brian Rimmer, w h o w e r e charged with using a vehicle having a permissible maximum weight exceeding 3.5 tonnes in which tachograph recording equipment had not been installed. M r . Rimmer, w h o was driving the vehicle in question for the purpose of selling his employer's bakery products, was also charged with m a k i n g false entries in the individual control book.

3 In connection with the h a r m o n i z a t i o n of social legislation relating to r o a d transport, Regulation N o 5 4 3 / 6 9 contains provisions concerning the m a n n i n g of certain vehicles of m o r e than 3.5 tonnes used in the carriage of

(b) transport of milk from the farm to the dairy and vice versa.

s)

6 Regulation No 1463/70 was amended by Council Regulation (EEC) N o 2828/77 of 12 December 1977 (Official Journal 1977 L 334, p.. 5), which inter alia added to Article 3 of the former regulation a third paragraph according to which "Member States may, after authorization from the Commission, exempt from the application of this regulation vehicles mentioned in Article 14a (3) (a) of Regulation (EEC) No 543/69".

REGINA v SCOTT

7 The United Kingdom availed itself of the possibility of providing for such derogation when it introduced the Community Road Transport Rules (Exemptions) Regulations 1978, of which Regulation No 4 provides inter alia that Regulations Nos 543/69 and 1463/70 are not to apply to national transport operations involving "the use of specialized vehicles . . . for door- to-door selling".

s The defendants contended before the national court that the equipment of the vehicle in question was specially adapted for the transportation of bakery products and that whilst the driver did not call on customers methodically at their homes, he did call, for the purpose of selling his products, within a relatively small locality on a number of wholesale and retail customers such as supermarkets, works canteens, private houses and an old-people's home. Having regard to its special fittings and the use to which it was put in this case, the vehicle came within the exemption provided for by the aforementioned national legislation and the relevant Community rules.

io Since both the first and third questions are concerned with the interpretation of the word "specialized" in Article 14a (3) (a) of Regulation No 543/69, they may be considered together.

n The two questions raise the issue whether the specialization referred to by that exemption relates to the characteristics of the vehicle, or to the use to which it is put or to a combination of both factors.

i2 The defendants in the main proceedings, relying in particular on the English- language version of the provision at issue, maintain that in order to qualify for exemption a vehicle must be specialized with regard to a given type of transport operation, for example the transportation of bakery products, and that there is no necessity for the requirement of specialization to be linked to the use to which the vehicle in question is put. The question whether or not a vehicle that is specialized in such a manner is actually used for the purpose in respect of which exemption was granted is a completely separate question which must be considered on its own merits.

1 3 In that connection the United Kingdom, the Government of the French Republic and the Commission contend that the specialization of a vehicle must be linked to the use in respect of which the exemption in question is granted, that is to say in this case to door-to-door selling.

H With regard to the degree of specialization, the United Kingdom expresses the opinion that any vehicle which has been constructed or adapted in some way in order to be used in an exempt manner qualifies for exemption provided that it is in fact used in that manner. The Government of the French Republic and the Commission, for their part, point out that the vehicle's fitments must be permanent so that the vehicle cannot be used for a transport operation not falling within the exemption. Otherwise it would be difficult to verify whether transport operations are limited to the types envisaged by Article 14a (3) (a) of Regulation No 543/69. Consequently, they argue that a vehicle which, as in this case, is merely modified, in a manner that is not permanent, for the carrying of bakery products does not

is It follows from the aforementioned context and objectives of Regulation No 543/69 that Article 14a (3) (3) thereof is intended to exempt from the system for checking that the provisions on working hours are complied with vehicles whose permissible maximum weight exceeds 3.5 tonnes and whose special- ization is such that the purpose of the provisions is not likely to be jeopardized.

JUDGMENT OF 11. 7. 1984 — CASE 133/83

i9 Consequently the construction, fitments or other permanent characteristics of the vehicle must ensure that it is used primarily for a transport operation falling within the exceptions laid down by the regulation. That applies both to vehicles specialized for door-to-door selling and to those specialized for mobile banking or for the lending of books or records, which are also referred to in the provision at issue.

20 To accept that, as the defendants in the main proceedings maintain, the transport operations set out in that provision may be exempted from the Community rules when they are carried out by vehicles which have merely been modified for the carriage of certain goods, would open the way for practices liable to frustrate the objectives of those rules.

2i The answer to the first and third questions should therefore be that the term "specialized vehicle" for certain types of transport operations, within the meaning of Article 14a (3) (a) of Regulation No 543/69, is intended to cover exclusively vehicles whose construction, fitments or other permanent charac- teristics guarantee that'they are used primarily for one of those operations, such as door-to-door selling.

26 It is not necessary to give the concept of door-to-door selling a strict in- terpretation in order to ensure the effective checking of compliance with the Community rules. It follows from the foregoing considerations that the basic guarantee of compliance with the provisions of Regulation N o 543/69 is the fact that the vehicle has permanent characteristics ensuring that it will not be used other than for door-to-door selling. In such circumstances it does not matter whether such door-to-door selling is to individuals, to wholesalers or to other customers provided that the activity of selling is characterized by frequent stops.

27 T h e answer t o the second question should therefore be that the activity of " d o o r - t o - d o o r selling" within the meaning of Article 14a (3) (a) of R e g u - lation N o 5 4 3 / 6 9 m a y consist of calls o n potential wholesale customers, such as shops, w o r k s canteens, old-people's homes or supermarkets provided that the activity of selling is characterized by-frequent stops by the specialized vehicle.

Costs

28 The costs incurred by the Government of the French Republic, by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main, proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

JUDGMENT OF 11. 7. 1984 — CASE 133/83

On those grounds,

Delivered in open court in Luxembourg on 11 July 1984.

P. Heim T. Koopmans Registrar President of the Fourth Chamber