C-326/88

'the phrase "shall have had . . . a . . . rest period" i n . . . Regulation (EEC) No 543/69 . . . must be interpreted as meaning 2. The national proceedings in this case are that the provisions on daily rest must criminal proceedings instituted against a be observed by crew members them- Danish undertaking, Hansen & Søn I/S. selves . . . and by the employer running a Hansen is the employer of a Danish driver road transport undertaking, who is required of a heavy goods vehicle who, as was estab- to take the necessary measures to permit the lished on the basis of a check carried out on crew members to have the daily rest period 1 March 1984 by the Dutch police, had not laid down' (paragraph 10). complied with the rest periods prescribed by 2 — With the exception of Article 15(1) of the tachograph * Original language: Dutch. regulation, which provides that 'all operators of regular 1 — Regulation No 543/69 of the Council of 25 March 1969 services shall draw up a service timetable and a duty on the harmonization of certain social legislation relating roster'. to road transport (OJ, English Special Edition 1969 (I), 3 — Judgment in Case 69/74 Auditeur du travad v Cagnon and p. 170). Taquet [1975] ECR 171.

I-2919

OPINION OF MR VAN GERVEN —CASE C-326/88

3. In the meantime, the employer's obli- '(1) Member States shall, in due time and gations have been made more explicit in after consulting the Commission, adopt Article 15 of Regulation (EEC) No such laws, regulations or administrative 3820/85 4 which repealed and replaced provisions as may be necessary for the Regulation No 543/69; that provision is as implementation of this regulation. follows :

However, that regulation had not yet entered into force at the time of the events which gave rise to Hansen's criminal liability. 5. So far as the penalties are concerned, Denmark opted 6for a system of so-called 'strict criminal liability' under which, in the 4. Section VII of the tachograph regulation event of the infringement of the regulation (Articles 14 to 18) contains a number of by one of his employees, an employer may rules concerning 'control procedures and be made liable to a fine (but not to a term penalties'. Those rules relate to the keeping of imprisonment) without any proof of an of what are known as 'control books', the intentional act or negligence on his part keeping of duty rosters, the fitting of being required. The only pre-condition for mechanical recording equipment to vehicles criminal liability on the part of the employer and the drawing up of a general report on is that the journey was undertaken primarily the implementation of the regulation by the in his interest. 7 The order for reference Commission. The dispute between the parties in the main proceedings revolves 6 — In the order for reference mention is made of a 1972 essentially around Article 18, the final enabling law and two implementing decrees issued (in 1981 and 1986) by the Danish Minister for Labour. provision in that section, which is worded as 7 — Drivers/employees who have infringed the provisions of follows : 5 the regulation may also be fined. At the hearing, Counsel for Hansen laid emphasis on the fact that drivers/ employees were not fined in practice, unless they were caught IM flagrante delicto, as was the case here. However, 4 — Council Regulation N o 3820/85 of 20 December 1985 on that assertion relates to the procedure for prosecuting the harmonization of certain social legislation relating to employees which is currently applied in Denmark, and thus road transport (OJ 1985 L 370, p. 1). falls outside the ambit of this case which concerns the 5 — The passage cited is now set out in Article 17 of Regu- Danish method of penalizing employers. I do not intend to lation (EEC) N o 3820/85. consider this point in further detail.

states that if the employer is an undertaking The point at issue and the observations (a company limited by shares, a cooperative submitted to the Court society or the like), the undertaking as such may be made liable to the fine (as was the case here). The national court also points out that strict criminal liability is generally the rule in Denmark in the field of environ- mental protection. 7. In the written observations submitted to the Court, considerable attention is paid to the question whether the Community has power to lay down rules of a criminal nature or whether the imposition of For the sake of clarity, I wish to distinguish (criminal) penalties in the event of the Danish system concerning the penalties infringement of Community law is a matter to be imposed on employers from what is (exclusively) for the Member States. At the known as the employer's 'civil liability', a hearing, the Danish Government and the system under which the employer is held United Kingdom, as well as the liable at civil law for payment of fines Commission, acknowledged that this pro- imposed on his employees, without, blem in itself was not relevant for the however, separate criminal proceedings purposes of the answer to the question being instituted against him. submitted by the national court. I share that view. A rule of criminal law of the kind whose validity is at issue in the main proceedings was adopted in performance of the obligation imposed on the Member 6. Hansen, who was ordered at first States by Article 18 of Regulation No instance to pay a fine of DKR 1 500 543/69 to lay down the penalties necessary (corresponding to approximately ECU 186 for the implementation of the regulation. at the current exchange rate), appealed Hence the issue in this case is not one of against that judgment to the Vestre power: in the circumstances, such power is Landsret. It is clear that Hansen can avoid indisputably vested in the Member States, conviction only if the Danish system of whether it is a power in its own right or a strict criminal liability is held by the Court delegated power. At issue is the narrower to be incompatible with Community law. question concerning the scope of the Member States' discretion in connection with the performance of their obligations under Article 18 of the tachograph regu- It is in the light of those facts that the lation. national court has asked the Court whether the tachograph regulation precludes the application of national legislation under which an employer may be prosecuted where one of his employees has infringed the provisions of that regulation concerning The United Kingdom and the Danish driving and rest periods, even though Government have argued essentially that the neither an intentional act nor negligence can approach taken in the Danish legislation be imputed to the employer. As will become with regard to strict criminal liability apparent in due course (see paragraph 11 constitutes an entirely permissible exercise below), I view the question in somewhat of the discretion conferred on the Member broader terms in the sense that it does not States. They are in favour of a broad inter- focus on the tachograph regulation alone. pretation of that discretion: the regulation

The Commission comes to the same conclusion on the basis of a somewhat narrower argument: the introduction of a system of strict criminal liability of the kind An 'effective' implementation of Community which exists in Denmark does not have the law effect of extending the obligations imposed on employers by the regulation, constitutes an effective method of ensuring compliance with those obligations and is also applied in cases involving infringement of similar 8. According to the principle of cooperation provisions of national law (for instance, on laid down in Article 5 of the EEC Treaty, the protection of the working environment). the Member States are to take 'all appro- priate measures, whether general or particular, to ensure fulfilment of the obli- gations . . . resulting from action taken by the institutions of the Community'. The Court adopted that wording in the 1977 Hansen, on the other hand, argued before Amsterdam Bulb judgment 9specifically with the national court and at the hearing that regard to the imposition of penalties for the the Danish method of penalization goes infringement of provisions of Community beyond the discretion left to the Member law. The Commission, the Danish States by Regulation No 543/69 in two Government and the United Kingdom were respects: (i) that method has the effect in right to point out that the Member States relation to an employer of broadening the are entitled to a broad discretion in that scope of the concept of a criminal offence regard. Of course, it is a qualified beyond that which can be deduced from the discretion, which must satisfy two Cagnon and Taquet judgment 8and the later (pre-)conditions. Regulation No 3820/85, and consequently 9 — Judgment in Case 50/76 Amsterdam Bulb v Produktichap 8 — Cited in footnote 3 above. voor Siergerwassen [1977] ECR 137, paragraph 32.

First the Member States must ensure that importance. 13 So far as the first the penalties are effective, proportionate pre-condition is concerned, it is undeniable and dissuasive.10 'Effective' means, amongst that to hold an employer, as it were, other things, that the Member States must 'automatically' liable in criminal law in the endeavour to attain and implement the event of infringement of a rule of objectives of the relevant provisions of Community law by one of his employees Community law. It is apparent from the constitutes a dissuasive measure which, background 11 and the preamble to Regu- moreover, may effectively prompt him to lation No 543/69 that the objectives verify on a regular basis compliance with pursued by that regulation are both social the provisions on driving and rest periods by (harmonization and improvement of his employees and to pursue an active policy for the prevention of infringements. working conditions, harmonization of Moreover, Hansen does not contest this.

In my view, however, Hansen's arguments are not persuasive. Let us briefly consider the Danish method of penalization in the light of those pre-conditions. So far as the second pre-condition is concerned, I shall be brief. There is no doubt that the penalties laid 9. With regard to Hansen's first argument, I down by the Danish legislation for fail to see how the Danish method of penal- infringement of the regulation correspond ization went beyond the limits (set by to the penalties for infringements of reference to the regulation) of the obli- national rules of the same kind and gations incumbent upon the employer.

21 to 28 11 — Set out in detail in A Butt Philip- The application of the 13 — The Danish Government has drawn attention to the fact EEC regulations on drivers' hours and tachographs in the that the system of strict criminal liability is also used in the road transport sector', in Making European policiei work legislation on the protection of the working environment. (Edited by H Siedentopf and J Ziller), London, 1988, p. According to the documentation available to the Court, 88 et seq there arc other instances of its application, such as the 12 — See the ludgmcnt in Case 68/88, already cited in footnote legislation on environmental protection, on nuclear power- stations and on customs matters 10, paragraph 24.

from the rules on driving and rest periods sanctions to be imposed on individuals for a (see the Cagnon and Taquet judgment), and failure to observe those rules, . . . to adopt (ii) must in practice carry out checks in such sanctions as appear to them to be compliance with the provisions of the regu- appropriate' (paragraph 33). lation: in my view, the control procedures provided for in Section VII of the regu- lation are intended not only to permit checks on the part of the authorities, but also to enable the employer to carry out preventive checks. 14 The Danish approach In any event, even if implementation by a does not extend the scope of those obli- Member State were to lead to an extension gations, but merely imposes strict(er) of the employer's actual obligations, such an penalties in connection therewith by auto- extension would still not necessarily be matically penalizing an employer whenever incompatible with the tachograph regu- one of his employees infringes the rules in lation.

Even if that is the case, it is exclusively a consequence of the method applied. The national legislature has a discretion in that regard : in the Amsterdam Bulb judgment 16 referred to earlier, the 10. As stated earlier, Hansen contends in its Court stated that where the Member States second argument that the application of a adopt measures in implementation of Article system of strict criminal liability leads to 5 of the Treaty in order to ensure distortions in the conditions of competition compliance with the rules of Community between Member States.

above). Hence the conclusions which I shall reach are equally valid with regard to the present version of that applicable rules (of conduct), but not as regulation. regards the checks and penalties provided 15 — Hansen deduces the scope of its obligations from Article for by those rules. Notwithstanding the 15 of the 1985 tachograph regulation (set out in paragraph 3 above). In its view, that regulation merely clarifies what Commission's insistence, no uniform rules was previously laid down by Regulation N o 543/69 according to the Cagnon and Taquet judgment. 16 — Cited in footnote 9 above. 17 — A. Butt Philip, loc cit., at p. 90.

were ever adopted ¡n that sector reportedly cantly from the practice in other Member on account of the express opposition of the States. 21 Even though it would seem, at Member States to relinquishing their powers least as regards the penalties attaching to in the field of criminal law. 18 As a direct the rules of the tachograph regulation, that result of that situation, the checks and Denmark is the only country which takes penalties prescribed by the rules of the regu- the approach involving strict criminal lation vary from one Member State to liability, in economic terms that approach another. does not lead to a result which differs from the (more widespread) system of making the employer liable at civil law for fines imposed Admittedly, the lack of harmonization of on his employees.

common market. 19 Unlike Hansen, however, I consider — although the final assessment is of course a matter for the 11. Even though I conclude on the basis of national court — that a system such as the the foregoing considerations that a system Danish one gives rise to no such distortions. of strict criminal liability of the kind A recent comparative survey of the impo- described above penalizes non-compliance sition of penalties for non-compliance with with the rules laid down by Regulation No the rules of the tachograph regulation in the 543/69 in a manner which is effective, that Member States shows that the penalties conclusion does not bring my investigation imposed by Denmark are not markedly to an end. That is foreshadowed in a more or less severe than those imposed in question which the Court asked at the the other Member States. 20 At the hearing hearing: does a system which permits a the Danish Government stated that the person to be convicted without any proof of usual fine for an infringement is approxi- fault or negligence on his part come into mately DKR 1 000 (approximately conflict with the principle nulla poena sine ECU 124 at the current rate of exchange), culpai and that in practice fines increase sharply only in the event of repeated infringements. Nor do the frequency of checks and the policy of bringing prosecutions for non-compliance in Denmark differ signifi- The Danish Government stated at the hearing that the introduction in Denmark of 18 — A Butt Philip, loc. cit., at p 105 strict criminal liability did not give rise to 19 _ The preamble to the Resolution (EEC) 85/C 348/01 of the any constitutional objections.

added). That resolution was adopted at the same time as Regulation (EEC) No 3820/85 20 — See the table in A. Butt Philip, loc. cit., at pp. 103 and 104. 21 — Ibid.

12. It was made clear at the hearing, in reply to questions put by the Court, that A preliminary remark I wish to make is that under the Danish system the employer can legislation such as Denmark's undoubtedly in no way escape being penalized once it is contains penalties of a criminal nature, established that one of his employees has being both deterrent and punitive, which are infringed the rules of the regulation and intended to penalize and prevent that the journey took place primarily in the infringements. 24 employer's interest. There is no need for

I - 2926

HANSEN

According to the documents available to the Court, there are four Member States in which employers or undertakings may, in specific areas such as environmental protection, protection of the working environment and consumer protection, be made liable in 14. The same qualified approach emerges criminal law for infringements committed by from the interpretation given by the their employees or appointees in the exercise European Court of Human Rights to Article of their duties, even though such 6(2) of the Convention. According to that

their employees or appointees. Although in some considerable time for the purpose of formal terms no criminal penalty is involved assessing the control procedures and penalty here (in some cases also because under the measures introduced by the Member States legal system concerned no such penalties in relation to one of the freedoms may be imposed on legal persons), a guaranteed by the Treaties. In that regard as practice of that kind produces substantially well, restrictions are permissible provided the same effects. On the basis of all those they go no further than what is strictly factors taken together, it is impossible, in 26 — See the judgment of 7 October 1988 in Salabiaku, 25 — My understanding of this legislation is that it is also based published in Series A, Vol 141-A, in particular on the conviction that the employer bears a special respon- paragraph 28. sibility for certain dangerous acts carried out by persons 27 — See the Wachatif judgment, already cited in footnote 22, at his request and in his (economic) interest. paragraph 18.

Conclusion

16. In the light of the foregoing considerations, I propose that the question submitted by the Vestre Landsret for a preliminary ruling should be a n s w e r e d as follows :

28 — See the judgments in Case 203/80 Casati [1981] ECR 2595, paragraph 27, in Case 118/75 Watson and Beimanti [1976] ECR 1185, paragraphs 17 and 18 and in Case 41/76 Donckerwolke v Procureur de la République [1976] ECR 1921, paragraphs 32 to 38. 29 — As regards Article 6 of the Convention, see most recently the judgments in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 30 and 31, and in Case 27/88 Solvay v Commission [1989] ECR 3355, paragraphs 27 and 28. See also the Opinion of Mr Advocate General Darmon in those cases, [1989] ECR 3301, paragraphs 135 to 137 and 145. As regards Article 8 of the Convention, see the judgment in Case 136/79 National Panasonic v Commission [1980] ECR 2033, paragraph 19.

I - 2928

HANSEN

'Neither Article 18 of Regulation No 543/69 on the harmonization of certain social legislation relating to road transport nor the general principles of Community law preclude the introduction by a Member State of a system of "strict criminal liability" under which an employer whose employees/drivers have infringed Articles 7(2) and 11 of the aforesaid regulation may be penalized by a fine, even though the infringement cannot be imputed to an intentional act or to negligence on the employer's part, where it is apparent that the Member State's interest in attaining the objectives of the regulation by those means takes precedence over the employer's interest in the existence of fault as a condition for the imposition of penalties.'