C-7/90
ECLI:EU:C:1991:62
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V A N D E V E N N E AND OTHERS
O P I N I O N OF M R A D V O C A T E GENERAL VAN GERVEN delivered on 19 February 1991 *
Mr President, necessary for the implementation of the Members of the Court, regulation; such measures must cover inter alia the penalties to be imposed in case of breach. As appears from the order for reference, these penalties are laid down in Belgium in the Law of 18 February 19694 1. Like Case C-326/88, ' this case basically and, by Royal Decree of 13 May 1987,5 concerns the rights and obligations of the were declared applicable to the breaches Member States as regards penalties relating referred to in the regulation. to the provisions of Community law in the field of road transport.
Whereas Case C-326/88 concerned the interpretation of Regulation (EEC) 3. On 26 October 1988, Mr Vandevenne No 543/69, 2 this case concerns the regu- was subjected to a roadside check in the lation which replaced it, namely Council Netherlands whilst driving a lorry belonging Regulation (EEC) No 3820/85, 3 (here- to NV Wilms Transport. During the check inafter referred to as 'the regulation'). it was ascertained that he had not observed However, as regards the questions of inter- the rest periods required by Articles 6 and 8 pretation now referred to the Court, the of the regulation. The order for reference latter regulation contains no important states that Vandevenne 'did not seriously alterations, which means that the Court's deny these matters'. judgment in Case C-326/88, already cited, will to a large extent determine the answers to be given to those questions.
The facts These facts led the Belgian Openbaar Ministerie (Public Prosecutor's Office) to bring a prosecution against Vandevenne on which the court of reference, namely the Politierechtbank te Hasselt (Local Criminal 2. Article 17(1) of the regulation requires Court, Hasselt), is asked to give judgment. the Member States to adopt the provisions Mr Wilms, the managing director, and Mr Mesotten an employee, of Wilms * Original language: Dutch. Transport, were also prosecuted on a charge 1 — [1990] ECR 1-2911. of failing to take the necessary steps to 2 — Regulation (EEC) N o 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transpon (OJ, English Special Edition 4 — Law on provisions for the implementation of international 1969 (I), p. 170). conventions and decisions in connection with transport by road, rail and inland waterway (Moniteur belge of 4 April 3 — Council Regulation (EEC) N o 3820/85 of 20 December 1969). 1985 on the harmonization of certain social legislation relating to road transport (OJ 1985 L 370, p. 1). 5 — Moniteur beige oí 4 June 1987.
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ensure that Vandevenne observed the rest expression 'undertaking' appearing in periods required by Articles 6 to 8 of the Article 15 of the regulation, set out above. regulation. Wilms Transport was summoned as being the party responsible at civil law for any fines imposed on Wilms and Mesotten.
As regards the definition of the concept of 4. Apparently, the Openbaar Ministerie is 'undertaking' in general, the Commission charging Wilms and Mesotten with a breach and the German Government refer to the of Article 15 of the regulation, which reads definition given by the Court in the as follows: Klöckner-Werke and Hoesch6 and Mannesmann 7 judgments, namely 'a single organization of personal, tangible and intangible elements attached to an autonomous legal entity and pursuing a ' 1. The transport undertaking shall organize given long-term economic aim'. In a recent drivers' work in such a way that drivers are notice on the application of the regulation able to comply with the relevant provisions on the control of concentrations between of this Regulation and of Regulation (EEC) undertakings8 the Commission defined an No 3821/85. undertaking in very similar terms, namely: 'An organized assembly of human and material resources, intended to pursue a defined economic purpose on a long-term 2. The undertaking shall make periodic basis'.9 checks to ensure that the provisions of these two Regulations have been complied with. If breaches are found to have occurred, the undertaking shall take appropriate steps to prevent their repetition.' In defining the concept of 'undertaking' in accordance with the Court's case-law, the Commission and the German Government During the proceedings before the Politie- are working on the assumption that this rechtbank a discussion took place as to the concept is a matter of Community law, so nature of the offences alleged against Wilms that its content cannot depend on defi- and Mesotten. In that connection, the court nitions existing in the various Member of reference thought it appropriate to refer States. I agree. I can also accept the defi- three questions to the Court for a nition proposed. Although it is true that it preliminary ruling. was elaborated within the framework first of the ECSC system of equalization of ferrous scrap and secondly of the
6 — Joined Cases 17 'and 20/61 Klackner-Werke AG and The concept of 'undertaking' Hoesch AG v High Authority o/ the ECSC [1962] ECR 325. 7 — Case 19/61 Mannetmann AG v High Authority of the ECSC [1962] ECR 357. 8 — Notice regarding the concentrative and cooperative oper- ations under Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrauons 5. In the first place, the court of reference between undertakings (OJ 1990 C 203, p. 10). enquires as to the exact meaning of the 9 — See point 8 of the notice.
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application of the rules of competition to imposes a number of duties 1 3 is the joint undertakings, I nevertheless think that transport undertaking and not the there is no objection to using this (general) (temporary employment) undertaking which definition in the framework also of the puts crew members at the disposal of the regulation in question. It follows directly former, (although the latter undertaking that the legal form of an undertaking may, according to the applicable national (one-man business, company or institution) law, be regarded as the 'employer' of the is irrelevant. crew members). In fact, the Court took the view that it is the transport undertaking which determines the vehicle to be driven, the route to be followed and the desti- nation, as well as the driving and rest periods, M and I conclude that it therefore has the authority and consequently the responsibility to ensure that the
6. However, this definition, formulated in requirements laid down by Regulation general terms, should be focused on the N o 543/69 are met. ' 5 specific role of the concept of undertaking in the context of the regulation at issue and more particularly of Article 15. That provision aims at ensuring that the employer of a driver will enable and encourage him to comply with the rules of the regulation. That was accepted by the Court in the 1975 judgment in Cagnon and Taquet,,0 in which the Court stated that Regulation I therefore conclude that the addressee of No 543/69, which preceded Regulation the duties set out in Article 15 is the under- No 3820/85, requires 'the employer taking performing the transport operation running a road transport undertaking' to since it has the power to organize and take the necessary measures to permit the control the crew members' work.
T h e crew members to have the daily rest period nature of the legal relationship between that laid d o w n . " Article 15 of the regulation undertaking and the crew members plays no (which, as the Commission observes, part in that respect: it is irrelevant whether 'codifies' the Cagnon and Taquet judgment) the transport undertaking employs crew does not refer to 'the employer running a members who are its own employees or road transport undertaking', but uses the crew members made available to it by a broader concept of 'undertaking'. This is temporary employment undertaking or more than just a difference in vocabulary. In again independent crew members using my view, the concept of 'undertaking' in equipment belonging to the transport under- Article 15 means any person (natural or taking (or even their own equipment) legal) acting as employer of the driver, according to the instructions of the whether or not he is his employer within the transport undertaking. meaning of labour law.
The Dufour judgment of 1977 12 takes the same line. 13 — In the Dufour judgment it was a question of the obligation There the Court decided that the 'under- imposed by Anicie M of Regulation N o 543/69 to issue to crew members an 'individual control book' (the fore- taking' on which Regulation N o 543/69 runner of the present tachograph). 14 — Seethe Dufour judgment, paragraph 15. 10 — Case 69/74 Auditeur du Travail v Jean-Pierre Cagnon and 15 — As the Court stated in the Dufour judgment, that does not prevent the specific requirement at issue in that judgment, Jean-Paul Taquet [1975] ECR 171. to issue 'personal control books', from being by way of 11 — See paragraph 10 of the judgment. exception a matter for the temporary employment under- 12 — Case 76/77 Auditeurdu Travail v Bernard Dufour [1977] taking if national legislation expressly provides to that ECR 2485. effect (see paragraph 16 of the judgment).
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Strict criminal liability of legal persons conditions under Article 5 of the EEC Treaty: first they must ensure that the penalties are effective, proportionate and dissuasive; 17 secondly the Member States must penalize infringements of provisions of Community law in the same manner as infringements of national law of a similar 7. Although, as I have said, Article 15 nature and importance. ' 8 Community law imposes a number of obligations on the leaves the Member States free to choose the 'undertaking', and the Openbaar Ministerie means for achieving these aims. They may takes the view that in this case it is a choose between criminal, administrative or question of failure to fulfil these duties, the purely civil penalties. They may decide to prosecution was not against the under- impose these penalties always on the taking, Wilms Transport, but against Wilms 'undertaking', or in certain cases on the and Mesotten, managing director and representatives or members of staff of the employee respectively of the undertaking. undertaking who, with regard to the specific That is in accordance with the principle infringement, bear the actual responsibility corpora delinquere non possuni, which applies for the operations of the undertaking in Belgium. According to that principle, a concerned. As long as national rules on legal person cannot itself be subjected to penalties comply with the conditions criminal penalties; punishable acts which mentioned, neither Article 17 of the regu- may be charged to a legal person can be lation nor Article 5 of the EEC Treaty thus prosecuted only through the natural persons in any way requires the Member States to who, as regards these acts, bear the actual make the legal persons to whom an responsibility for the activity of the under- infringement of the obligations laid down by taking. In this connection, the court of Article 15 of the regulation may be ascribed reference asks whether the regulation has themselves criminally liable. the effect of introducing into Member States' national law the principle of criminal liability of legal persons, in other words whether it requires Member States always to impose on the 'undertaking', even where it is a legal person, the penalties adopted in implementation of Article 17 of the regu- Scope of the obligations imposed by lation. Article 15
9. Finally, the court of reference also asks 8. I agree with the Italian and United whether the obligations imposed by Article Kingdom Governments that the answer to 15 create a duty to use best endeavours or a that question was largely provided in the duty as to the result to be achieved. The judgment in Case C-326/88, 1 6 already expression 'duty as to the result to be cited. In that judgment the Court confirmed achieved' is used to mean that an under- that, as regards penalties for infringements taking could be penalized for the sole reason of the regulation, the Member States have a discretion which, it is true, is subject to two 17 — See paragraph 17 of the judgment, with its reference to the judgment in Case 68/88 Commission v Greece [1989] ECR 2965. 16 — See note 1. 18 — See paragraphs 17 and 18 of the judgment.
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that a driver infringes one of the provisions observance of the obligations imposed by of the regulation, in other words without the regulation may in practice be ensured. any need to prove any intention or negligence on the part of the undertaking. In the Member States which have opted for a criminal penalty for breach of the obli- gations laid down in Article 15, such an interpretation of the article would lead to a Thus it was stated in the judgment in Case system of strict criminal liability of an C-326/88 19 that a system of 'strict criminal undertaking. liability' applicable in Denmark (under which a penalty may be imposed on the employer of a driver who infringes the provisions with regard to driving and rest periods) does not in itself extend the field of The observations submitted to the Court are application of (the predecessor of) Regu- in agreement on this point: Article 15 does lation N o 3820/85 and that such a system not extend to imposing such a far-reaching of criminal liability is not incompatible with duty on an undertaking.
I agree. Article Article 15 of the regulation 2 0 or with the 15(1) requires the undertaking to organize general principles of Community law. 21 It its drivers' work in such a way that they are goes without saying that such a 'quasi- able to comply with the provisions of the automatic' criminal liability of the employer regulation and of Regulation No 3821/85. is an effective encouragement to him to Under paragraph (2) the undertaking is to ensure at all times that his employees make periodic checks to ensure that the observe the provisions of the regulation and provisions of the two regulations have been to pursue an active policy of preventing complied with; if breaches are found to infringements.
In a number of other have occurred, the undertaking is to take Member States, on the other hand, a appropriate steps to prevent their repetition. criminal, administrative or even civil penalty The wording of these provisions indicates may be imposed only on condition that that this is a duty to take all steps to avoid there is some indication at least of drivers committing infringements (in other negligence or that the infringement may be words, it is a 'duty to use best endeavours') attributed to the person to be penalized, or and not a duty which the undertaking is both.
The choice between the various deemed to have neglected as soon as a methods of imposing penalties is a matter driver is found to have infringed a provision for the Member States, since they have the of the regulation. power to adopt penalties for breach of the regulation. It is, of course, not impossible that such disparities between the national methods of imposing penalties for breach of the obligations imposed by Article 15 may in 10. In this connection, however, it is appro- practice mean that they are more strictly priate to bear in mind the distinction observed and enforced in some countries between, on the one hand, the obligation than in others. But that is an unavoidable imposed at Community level and, on the consequence of the lack of harmonization at other hand, the power of the Member States Community level of the penalties to be to impose a penalty to ensure that the obli- imposed in the event of infringement of the gation is discharged. That distinction is regulation. important in view of the fact that the Member States' powers as to the choice of 19 — Previously referred to in footnote 1. evidence and penalties may have a not 20 — See paragraphs 9 to 12 of the judgment. unimportant influence on the way in which 21 — See paragraphs 13 to 19 of the judgment.
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Conclusion
11. Having regard to the foregoing considerations, I suggest that the questions referred to the court by the Politierechtbank te Hasselt for a preliminary ruling should be answered as follows:
'1. The expression "undertaking" appearing in Article 15 of Regulation (EEC) No 3820/85 of 20 December 1985 refers to an autonomous natural or legal person, irrespective of legal form, regularly carrying on a transport business of the kind referred to in the regulation, using human and material resources and having the power to organize and control the work of drivers and crew members, whatever the nature of the legal relationship between the under- taking and the drivers or crew members.
2. Neither Article 17 of Regulation No 3820/85 nor Article 5 of the EEC Treaty requires a legal person which is required to comply with the obligations set out in Article 15 of Regulation No 3820/85 to be made itself criminally liable for the failure to discharge such obligations.
3. Regulation (EEC) No 3820/85 neither requires Member States to introduce a system of strict liability for the purpose of ensuring compliance with the obli- gations imposed on the undertaking by Article 15 of the regulation nor precludes their doing so.'
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