C-79/86

HAMILTON v WHITELOCK

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 10 March 1987 *

Mr President, a vehicle of the type described is a Members of the Court, breakdown vehicle.

1. This reference for a preliminary ruling 3. Moreover, it appears from the order for made by the High Court of Justiciary, reference that the respondent in the main Edinburgh, is on the question whether a proceedings is on 24-hour 'call-out' from motor lorry that is adapted for use as a the police in order to assist in towing away breakdown vehicle by virtue of being fitted vehicles involved in accidents and that he with an electrically powered winch and possesses a certificate issued by the having a demountable crane situated Department of Transport Goods Vehicle between two ramps at the front of it and a Testing Station certifying that his vehicle is pully over the front of the body is exempted a 'recovery vehicle'. from the requirements of Article 3 (1) of Regulation No 1463/70 ' on the installation and the use of recording equipment as being a specialized breakdown vehicle as referred to in Article 4 (9) of Regulation No 543/69 2while being used in the course of 4. The wording of the question also the owner's business as a motor repairer for suggests that the High Court of Justiciary is the purpose of transporting unroadworthy convinced that the particular use of the vehicles purchased by the owner from the vehicle, described at the end of its question, place of purchase to his place of business is different from a true breakdown with a view to their repair and sale. operation. I share that view.

6. I should also like to point out that, in my view, the operation remains a breakdown 12. However, it seems to me that, if that operation even if the person performing it had been its intention, the Council could becomes the owner of the vehicle, provided very well have used a phrase such as that he buys it from the person who owned 'specialized vehicles providing breakdown the vehicle when it broke down or was services' or 'specialized vehicles used in damaged in an accident. breakdown operations'. In that case, it would have clearly shown that it intended to exempt breakdown lorries only in so far as they were actually engaged in breakdown 7. Moreover, there is no doubt that a operations. vehicle such as that described in the question may be considered 'specialized' in the technical sense of the word since it has 13. In Article 4 (1) for example, the the fitments needed for lifting or winching Council specifies that the regulation is not disabled vehicles on to it. to apply to 'vehicles which in construction and equipment are suitable for carrying not more than nine persons including the driver 8. So defined the main problem raised by and are intended for that purpose'. In Article this case is therefore whether a breakdown 4 (7) it refers to 'tractors and other vehicle may still be regarded as a machines used exclusively for local agri­ 'specialized' vehicle within the meaning of cultural and forestry work'. the Community regulations on the use of recording equipment in road transport even if it is also used for purposes other than 14. Since it did not in fact use such a form breakdown operations. of words in the case now in question, it must therefore be concluded that the 9. In order to reply to that question Council did intend to exempt certain reference should be made to the wording of vehicles on account of their particular Article 4 (9) of Regulation No 543/69 and characteristics. to the aims and legal context of that regu­ lation. 15. The Court recognized this in its judgment of 28 March 1985 in Joined Cases 91 and 92/84 Director of Public Prosecutions 10. Article 4 of the codified version of that and Sidney Hackett Limited and Roy Thomas regulation, published on 17 March 1979 Weston v Raymond C. Tetlow and Perman (Official Journal 1979, C 73, p. 1) states George Dovey [1985] ECR 1139, in which that: the Court stated that:

are provided or their discontinuous nature 22. In following that reasoning, however, or by the special nature of the transport the Council took a certain risk because it is operations or of the vehicles used.' not certain that the working hours of the driver of such a vehicle will never be excessive. 16. Since Article 4 contains the same kinds of distinctions as Anicie 14a, the Court's reasoning obviously applies to that article as well. 23. The driver of a breakdown vehicle on 24-hour call at the height of the tourist season on a section of one of the main 17. If the Council has therefore exempted motorways to southern Europe or in 'specialized breakdown vehicles' as such, it another region with heavy tourist traffic is undoubtedly because it considered that may, on certain days, be required to work such a derogation was not liable to without interruption for 10 or 12 hours. A jeopardize substantially the aims of Regu- breakdown lorry which, in exceptional lation No 543/69. circumstances, has to transport to Scotland a vehicle which has been involved in an accident or has broken down in the south of 18. What are those aims? The Court stated the United Kingdom or vice versa may be them in paragraph 16 of its judgment of 11 on the road for more than eight hours. July 1984 in Case 133/83 Regina v Scott [1984] ECR 2863, at p. 2877. They are the social protection of drivers, the improvement of road safety and the elimi­ 24. Finally, a specialized breakdown vehicle nation of disparities liable to cause may, if required, as was the case with the distortion of competition in road transport. breakdown vehicle belonging to the respondent in the main proceedings, be used for an operation which is not a breakdown 19. Amongst the means used by the Council operation in the strict sense, namely to in order to achieve those aims, the transport one or more vehicles which did provisions restricting driving time are not break down on the same day, which are especially important. no longer on the public highway and which have been taken to a place situated several hours' drive away from the premises of the 20. As Mr Advocate General Lenz stated in breakdown undertaking. his Opinion delivered on 29 May 1984 in Case 133/83 which I have just cited, 'the vehicles referred to ... should also be eligible for exemption from supervision by means of tachograph recording equipment 25. One may therefore assume that the where the vehicles' special characteristics aloneCouncil considered that such operations rule out the risk of the prescribed driving would be undertaken only on exceptional period being exceeded' (p. 2884). occasions and that the vehicles in question, precisely because of their construction or equipment, would be used primarily for breakdown operations properly so called, 21. In my view, that was the reasoning carried out at reasonable intervals within a followed by the Council with regard to limited geographical radius of the operator's specialized breakdown vehicles. premises.

31. The fact that a vehicle fitted with 'Member States may, after authorization by shelves for the sale of bread may possibly the Commission, grant exemptions from this also be used by its owner for going to fetch regulation for the following national sacks of flour from a mill did not therefore transport operations and uses: seem to the Court a sufficient reason for holding that such a vehicle was a specialized vehicle for door-to-door selling and for (a) use of specialized vehicles... for door- refusing the Member State the right to to-door selling ... '. exempt it from the obligation to fit a tachograph. 28. The question referred by the national court was as follows: 32. Similarly, a vehicle equipped for breakdown operations must, if required, be 'Whether, upon the true interpretation of capable of fetching, in non-emergency situ­ the exemption ..., the word "specialized" ations, broken-down vehicles from a place is meant to apply to the characteristics of other than that where they were involved in the particular vehicle alone, or to the activity an accident or broke down. of door-to-door selling alone, or to a combination of both: and if the latter interpretation is correct, what degree of 33. The same rule must apply a fortiori interrelation is meant?' where the provision to be interpreted makes no reference to the vehicle's use but only to its nature. 29. The fact that in Article 14a (3) the emphasis is more on 'transport operations and uses' and less on 'vehicles', as in Article 34. However, in the case under exam­ 4 (9), might have served as a basis for the ination, a particular problem arises Court to restrict the exemption solely to inasmuch as a lorry fitted with a winch, a cases in which the vehicles in question are crane and ramps might be of such a size actually used for door-to-door selling. that there is no longer any guarantee that it will be used primarily for breakdown oper­ ations. 30. However, the Court referred instead to the characteristics of the vehicles and did not rule out occasional use for other purposes since the answer which it gave was 35. Indeed, from the moment that such a as follows: vehicle is able to transport a number of vehicles together, the possibility that it may be used primarily to collect broken-down 'The term "specialized vehicle" for certain vehicles from various garage operators in types of transport operations within the order to transport them to scrap-yards, for

40. Since that provision refers to the type of vehicle and not to its use, the indications which the Court might give in this regard 36. The judgment delivered on 2 December also cannot, in my view, refer to the actual 1983 by the Queen's Bench Division of the use of such vehicles, except to uses which High Court in England in the case of may be inferred from their specialized Universal Salvage Limited and Another v nature. Instead, they should be based on Boothby, a report of which is annexed to the objective criteria related to the charac­ observations submitted by the United teristics of the vehicle. Kingdom, provides an example of an extreme case of that type. The vehicle concerned was a vehicle of the type used to transport new motor cars from their place of manufacture to the distributors but was 41. One conceivable solution in this regard fitted with a winch and other equipment for would be to take into consideration the loading broken-down motor cars (seven in number of cars which could be transported total). by the same breakdown vehicle and to adopt as a criterion the capacity to carry a single large or medium-sized vehicle (or alternatively two very small vehicles of the 'Mini' type). 37. It was not disputed that the vehicle concerned was used exclusively for collecting motor cars from certain collection points, usually garages, but never from the place of accident or breakdown. 42. But what would happen in the case of an accident involving two large or medium-sized vehicles? If the garage- operator used a trailer in order to be able to remove the two vehicles from the public 38. I do not think that anyone could highway in a single operation, would that disagree with the judgment of the Queen's necessarily mean that the vehicle was no Bench Division which held that such a longer a specialized breakdown vehicle? To vehicle was not a specialized breakdown me that view would seem too strict. vehicle.

47. Where the owner also has a trailer, it is for the national court to decide whether, having regard to the size of the vehicle/trailer combination, there is still a reasonable guarantee that the combination is used primarily for such operations.'