C-313/92

— which takes place partly within the Com­ munity and partly in the territory of a The two questions were submitted in rela­ non-member country which is not a sig­ tion to criminal proceedings brought in the natory to the European agreement con­ Netherlands against the transport undertak­ ing Van Swieten BV. Following checks car-

* Original language: Italian. 1 — Council Regulation (EEC) No 3820/85 on the harmoniza­ 2 — The agreement was signed in Geneva on 1 July 1970 under tion of certain social legislation relating to road transport the auspices of the United Nations Economic Commission (OJ 1985 L 370, p. 1). for Europe.

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OPINION OF MR TESAURO — CASE C-313/92

ried out by the national administration, it 3. The provision contemplates three hypo­ appeared that, for some journeys taking theses: place partly outside the Community, drivers had not observed the prescribed rest period.

(a) transport operations 'within the Com- munity' (Article 2(1)): in this case, the provisions of the regulation apply;

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likewise not in case (c), since the vehicle in According to another interpretation, on the question is registered in a Member State. It other hand, the provision covers any trans­ follows that the AETR is inapplicable in any port operation taking place wholly or in part event. within the Community (provided, of course, that the operation is not covered by one of the two specific provisions of Article 2(2)).

5. Can it be concluded that the present case falls within the scope of case (a) and that, 8. In my view, the second interpretation therefore, it is subject to the provisions of must be upheld, on the basis of reasoning of the regulation, or must it be concluded that a teleological and systematic nature. it falls wholly outside the regulation and consequently is governed solely by the legis­ lation of the Member State of registration?

It must first be pointed out in that connec­ tion that the regulation is intended to har­ monize certain conditions concerning trans­ port operations, in particular a number of 6. The answer to that question obviously requirements of a social nature intended to depends on the way in which Article 2(1) of ensure road safety and safeguard the health the regulation is interpreted, and more pre­ of drivers. In other words, the regulation, cisely the expression 'within the Commu­ which in fact replaces rules already laid nity' used in it. down in an earlier regulation of 1969, 3

establishes within the Community a uniform system which takes the place of the various national regulations.

9. That the interpretation advocated here is the only one consistent with the logic of the regulation is also confirmed by the fact that 11. The question of interpretation in this in the earlier regulation of 1969 there was no case is relatively simple. Once again, two doubt that the Community legislation was to readings are possible. According to the first, apply to transport operations part of whose each 'period of 24 hours' referred to in Art­ itinerary was outside the Community. icle 8(1) has a predetermined time of com­ According to Article 2 of Regulation mencement (fixed start) and constitutes a No 543/69, it applied to 'any journey or part period in itself. The first such period begins of a journey made within the Community'. at the end of the weekly rest; at the end of The various amendments made to Article 2 the 'first period of 24 hours', a second period over the years have been designed simply to commences, then a third and so on until the coordinate the application of the Commu­ next weekly rest. That interpretation centres nity regulation with the provisions of the on the fact that the daily rest period of 11 AETR, but they certainly were not intended, hours must take place within each 'period in the absence, moreover, of an explicit indi­ of 24 hours' considered separately. In other cation to that effect, to narrow the sphere of words, when a new period commences no application of the Community system in account must be taken of what occurred dur­ relation to cases which do not in any event ing the previous period (the clean slate crite­ fall within the scope of the AETR. rion).

One of the possible practical consequences slate criterion is applied, the driver may drive of the fixed-start criterion is that the driver is for a further period of 10 hours, with the allowed to have two consecutive 'driving prescribed breaks, before commencing, at periods', 4one at the end of a 'period of 24 7.30 p. m. on Tuesday, the second 11 hour hours' and the other at the beginning of the rest period. next 'period of 24 hours'. That would not constitute an infringement of Article 8, since, within each 'period of 24 hours' considered separately, the driver satisfies the require­ ment of a daily rest. Nevertheless, if, by vir­ tue of the clean slate principle, no account is taken of what occurred during the immedi­ ately preceding period, it may happen that, by straddling two 'periods of 24 hours', the 13. In such circumstances, the condition laid driver remains at the wheel of a vehicle for a down by Article 8(1) would be formally sat­ much longer period of time. isfied, since, in the second period of 24 hours, between 8 a. m. on Tuesday and 8 a. m. on Wednesday, the driver would in any event have observed a daily rest period of 11 hours. Nevertheless, the clean slate criterion produces a perverse effect, in that it allows the driver, as appears from the example given, to drive for a 24 hour stretch, from 12. An example, taken from the observations 7.30 p. m. on Monday to 7.30 p. m. on Tues­ of the United Kingdom, illustrates more day, without any rest period being required; clearly what I have just said. Take the case of moreover, in the same example, the driver a period of 24 hours which commences at 8 would actually be driving a vehicle for a a. m. on Monday, after the end of the weekly period of 20 hours, with intermittent breaks rest period. If, after driving for half an hour, of four hours. the driver commences his daily rest period of 11 hours (from 8.30 a. m. to 7.30 p. m. on Monday), it may be considered that he has fulfilled (for the first period of 24 hours) the requirement of a daily rest laid down by Article 8(1). At this point, the driver (observing the conditions concerning driving time and breaks laid down in Articles 6(1) and 7 of the regulation) may drive for 10 14. According to the other interpretation, on hours, from 7.30 p. m. on Monday until 7 the other hand, the periods of 24 hours o'clock the following morning (10 hours within which there must be an 11 hour rest driving plus a break of one-and-a-half do not start at a predetermined time but hours). At 8 a. m. on Tuesday the second rather at the end of the previous (daily or period of 24 hours commences. If the clean weekly) rest period (flexible start). Return­ ing to the example given earlier, it is easy to show that the application of the flexible start criterion gives rise to consequences very dif­ 4 — Pursuant to Article 6 of Regulation No 3820/85, the 'driving period' taking place between two 'daily rest periods' (or ferent from those resulting from the fixed between the daily rest period and a weekly rest period) should not, in principle, exceed nine hours. start criterion. In practice, a driver who has

16. As correctly observed by the Commis­ sion and the United Kingdom, the fixed start criterion appears to conflict with the aim 15. Of the two interpretations, the second pursued by Article 8, in that, as is apparent seems to me clearly preferable, having regard from the example given earlier, that criterion both to the aim of the provision and to the scheme of the regulation. may enable a driver to remain at the wheel (subject to the prescribed breaks) for 24 hours at a stretch, without any period of daily rest. The result therefore would be merely formal compliance with the provision and that would manifestly run counter to the aim pursued since the driver could quite well fail to alternate properly between driving and resting in accordance with the main objective of Article 8(1). Article 8(1), and more generally the regula­ tion in which it appears, are intended inter alia to ensure road safety and to improve the working conditions of drivers. That being so, Article 8(1) provides that, within the space of 24 hours, at least 11 hours are to be spent resting. The provision is thereby intended to ensure that driving and rest alternate daily 17. A further point must be considered. The so as to ensure that the driver does not find fixed start criterion, allowing a driver to himself at the wheel of the vehicle in a state undertake two consecutive driving periods of physical and mental tiredness and there­ (in the example, from 7.30 p. m. on Monday

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to 7 a. m. on Tuesday and from 7 a. m. on 21. I think that question must be answered Tuesday to 7.30 p. m. on the same day), in the affirmative. Indeed, it must be taken would also give rise automatically to an for granted that the Community rules con­ infringement of Article 6 of the regulation, tained in the regulation apply to infringe­ which provides that the daily driving period ments committed (and ascertained) within between two rest periods must never the Community, which is the case where it is exceed 10 hours. established by the supervisory authority that a driver has not observed the daily rest period required by Article 8(1).

Conclusion

22. In the light of the foregoing considerations, I suggest that the Court give the following answers to the national court:

(1) pursuant to Article 2(1) of Regulation No 3820/85, that regulation applies to carriage by road using vehicles registered in a Member State as regards the part of the journey made within the Community even where the transport opera­ tion in question took place partly outside the Community;

(2) the expression 'period of 24 hours' in Article 8(1) of Regulation No 3820/85 must be taken to mean a period of time, comprising 24 hours, commencing at the end of the previous daily or weekly rest period;

in order to verify whether, within a 'period of 24 hours', a driver has complied with the requirement of a daily rest laid down in Article 8(1) of Regulation No 3820/85, account must also be taken of time spent driving in non-Member countries.

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