C-8/90

1. The reference from the Belgian Hof van 3. The penalties for breaches of Regulation Cassatie which is before us today concerns N o 543/69 were laid down in Belgium by a in itself only a regulation of a somewhat Royal Decree of 23 March 1970, 5 in which technical nature, Council Regulation the substance of the breaches to which the No 3820/85 on the harmonization of penalties related was described compre- certain social legislation relating to road hensively by the words 'en cas d'infraction transport, ' but on closer examination it aux dispositions du règlement précité'. 6 proves to relate to important questions of a That Royal Decree was later replaced by general nature on the relationship between the Royal Decree of 13 May 1987, 7 which secondary Community legislation and laid down, for breaches of Regulation national law. N o 3820/85, provisions identical to those of the Royal Decree of 23 March 1970; 8 it had no retroactive effect. From a comparison of these facts it may be seen that at the time of the alleged breaches (3 and 4 November 1986), when Regu- 2. The factual background is quite simple. lation No 3820/85 had already replaced The defendant in the main proceedings, a Regulation No 543/69, the wording of the motor vehicle driver, is charged with Belgian penal provisions related only to breaching the provisions of Community law Regulation No 543/69, which had been on driving and rest periods. The breaches in repealed, and not to the new Regulation question are alleged to have taken place on N o 3820/85 which had allegedly been 3 and 4 November 1986. At that time the infringed. regulation applicable, already mentioned, was Regulation N o 3820/85, Articles 18(1) 2 — Of the Council of 25 March 1969 (OJ, English Special and 19 of which replaced as from Edition 1969 (1), p. 170). 29 September 1986 — apart from certain 3 — Second subparagraph of Article 18(1). 4 — Second subparagraph of Article 17(1). temporary exceptions — Regulation (EEC) 5 — Moniteur bellt of 1 April 1970, p. 3136; see Article 3(1) N o 543/69 on the harmonization of certain of that decree. 6 — This reference relates to Regulation N o 543/69. * Original language: German. 7 — Moniteur beige ol 4 June 1987, p. 8640; sec Article 6(1) i s regards the repeal of the Royal Decree of 23 March 1970. 1 — Of 20 December 1985 (OJ 1985 L 370, p. 1). 8 — See Article 3(1).

7. 1. T o begin with, I think the Commission is right in stating that there are two possible approaches to the interpretation requested in this case. The first of these is based on the fact that regulations are directly applicable in national law. Under this 'References to the Regulation repealed approach Article 18(2) of Regulation under paragraph ( l ) 9 shall be construed as N o 3820/85 should be applied not only to references to this Regulation.' Community law but to national law as well. The second approach relates to the purpose of the provision, which is to govern the interpretation of references in Community law to Regulation N o 543/69, so that it does not concern the provisions of national law. The Commission thinks that the second approach should be followed here. That can 5. In these circumstances the Hof van be accepted subject to the reservation that it Cassatie referred the following question to is not a question of two different the Court for a preliminary ruling: 'approaches'. The real question is, what is the subject of the relevant provision of the regulation and to whom is it addressed. Of course, regulations, as may be seen from the second paragraph of Article 189 of the EEC Treaty, may contain provisions about legal relationships directly involving Community citizens — as the persons to whom they are 'Is Article 18(2) of Council Regulation addressed — and in this way in particular (EEC) N o 3820/85 of 20 December 1985 grant them rights and impose on them on the harmonization of certain social legis- duties , 0 (in this case the duty to submit to lation relating to road transport to be inter- certain penalties). However, there is no preted as meaning that references, in principle under which, in the event of provisions of national law adopting doubts whether a provision of a regulation implementing measures, to Regulation governs a given legal relationship directly N o 543/69 are also to be construed as involving the Community citizen, there is a references within the meaning of the said presumption in favour of such a rule. Article 18(2)?' 10 — Sec the judgment in Case 43/71 Potiti v Italy [1971] 9 — That is, Regulation No 543/69. ECR 1039, paragraph 9.

12. It is therefore apparent in this case on 10. (aa) A first indication of this results the one hand that an amendment of from the function of the provision in the Community law pre-supposed no inter­ regulation in question. In Community legis­ ference with national law and on the other lation introducing fresh provisions on hand that the amendment of national law, subjects already covered by regulations, were Article 18(2) to be applied also to the final provisions such as Article 18 have the provisions thereof, would nevertheless be purpose of making such amendments to incomplete. That militates against inter- Community law as arise from the intro­ duction of the new provisions. That involves 12 — It is true that under Article 4 of Regulation (EEC) two aspects. On the one hand, the No 1463/70 of the Council (OJ English Special Edition 1970 (II), p. 482) the installation of recording equipment has, since 1 January 1978, been compulsory for all 11 — Thus, for example, within Regulation No 3820/85, Article vehicles to which the regulation applies, and vehicles fitted 5(5), the fifth subparagraph of Article 6(1), the first with such equipment have been exempted by Article 5 sentence of Article 11(1) and Articles 13 and 17 are thereof from the application of Article 14 of Regulaūon directly addressed only to the Member States, whereas No 543/69. The latter provision was, however, formally Article 16 is addressed to the Community institutions and repealed only by Regulation No 3820/85 (first sentence of the Member States. Article 18(1)).

preting Article 18(2) as a provision affecting 14. In view of this legal situation, an inter- national law. pretation of Article 18(2) which included references in national law would introduce an inconsistency into Regulation No 3820/85, because with such an interpre- tation Article 18(2) would be interfering in that very sphere which, under Article 17, the Member States were to be left free to arrange — apart from the limits already mentioned. And it would not then be altogether clear why the Community legis- lature should have incorporated this 13. (bb) I agree with the Commission and restriction of the Member States' freedom the United Kingdom that the context of of action in Article 18 (paragraph (1) of Regulation No 3820/85 provides a second which, as I have said, is concerned only to argument along these lines. As I have amend Community law) rather than in already said, there is a series of provisions Article 17 (or in the other provisions envi- allowing or requiring the Member States to saging supplementary measures by the adopt certain supplementary measures, Member States). All this militates against the amongst them Article 17 of Regulation interpretation suggested. No 3820/85, which I mentioned at the beginning and which is identical with Article 18 of Regulation No 543/69. According to the first subparagraph of paragraph (1) of both articles, the laws, regulations and administrative provisions necessary for the implementation of each regulation cover 'the penalties to be imposed in case of breach'. It may therefore be concluded, in 15. (b) A second group of arguments which accordance with the terms of the judgment might also be quoted in favour of this result in Hansen,13 that it is left to the Member is based on the reflection that the legislature States to determine the nature and severity will not unnecessarily draw up provisions of the penalties to be imposed in case of whose compatibility with Community law is breach. According to the Court's case- doubtful. law, M which it confirmed in the said judgment15 in relation to Article 18 of Regulation No 543/69, Community law sets only certain limits to the discretion thus left to the Member States: infringements of Community law must be penalized under conditions, both procedural and substantive, which are analogous to those applicable to 16. (aa) In this connection, first, the United infringements of national law of a similar Kingdom has made an apposite observation nature and importance and which, in any based on the legal nature of the national event, make the penalty effective, rules in question. Since in any event the proportionate and dissuasive. Belgian penal provisions enacted under Article 18 of Regulation No 543/69 16 are, 13 — Case C-326/88 Anklagemyndigheden v Hanin 6 Søn in accordance also with the regulation [1990] ECR 1-2911, at end of paragraph 14. 14 — Case 68/88 Commisiion v Greece [1989] ECR 2969, paragraph 24 of the judgment. 16 — See Article 2 of the Belgian Law of 18 February 1969, 15 — Loc. cil-, paragraph 17. Moniteur belge of 4 April 1969, p. 2988.

itself,17 a matter of criminal law, Anicie they should follow such a course, it cannot 18(2) of Regulation N o 3820/85 as a rule be assumed that that was their intention. of interpretation in relation to provisions referring to domestic criminal law is to that extent itself to be regarded as a matter of criminal law. It is true that Article 75 of the EEC Treaty, which is cited as the legal basis for Regulation No 3820/85, provides that the Council may lay down 'any other 18. (bb) Furthermore, if the provision were appropriate provisions', which might also to be interpreted in the manner I regard as cover penal provisions. In any event, the incorrect, it would not be possible to Court, in its judgment in Casati,18 decided exclude such doubts from the outset in view that 'in principle criminal legislation and the of Article 189 of the EEC Treaty, which rules of criminal procedure are matters for envisages two possible ways in which the which the Member States are still Community legislature may affect national responsible'. 19 In his Opinion in Drexl,20 law. One is to call upon the national legis- M r Advocate General Darmon stated, with lature to adopt provisions in a given sense. regard to the provisions of Community law Such a requirement may take the legal form in the field of taxation, that Community law of a decision or a directive but may also, as affects criminal law (only) in so far as, Article 17 of Regulation N o 3820/85 where a rule imposing a prohibition is shows, be contained in a regulation. The incompatible with Community law, the legal other possibility for the Community is to basis for the offence is removed and, with adopt measures itself — namely in the form regard to penalties, Community law lays of the provisions of a regulation — which down limits to prevent their severity from then, as we know, takes precedence over constituting an obstacle to the exercise of divergent national law. It is hard to see how the freedoms enshrined in the EEC Treaty. a provision on the interpretation of given rules of national law, if Article 18(2) is interpreted in that sense, could fit into this system. N o r is there any indication here either that the legislature intended to encumber the provision with such legal doubts.

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