C-394/92

MICHIELSEN AND GTS

OPINION OF ADVOCATE GENERAL TESAURO delivered on 20 January 1994 *

Mr President, period in which the driver must answer Members of the Court, to the transport company for the use of his time (logically the concept of 'end of the working period', which is the subject of the national court's third question, should in that case refer to the time when the driver regains the right freely to dis­ pose of his time); 1. In criminal proceedings pending before it, the Politierechtbank, Hasselt (Local Crimi­ nal Court, Hasselt, Belgium) requested the Court of Justice to give a preliminary ruling on the interpretation of the terms 'working period', 'day', 'daily' and 'end of the work­ ing period' contained in Council Regulations (EEC) No 3820/85 of 20 December 1985 on (b) the term 'day' should refer to the the harmonization of certain social legisla­ 24-hour period between 00.00 hours and tion relating to road transport, 1 and 24.00 hours, or, on the other hand start No 3821/85 on recording equipment in road to run from the time when a given driver transport. 2 first takes over a vehicle to which the regulation applies.

More particularly, the national court asks whether, in the absence of an express defini­ tion of those terms in the aforementioned regulations:

2. Although no reference is made in the national court's order to any specific provi­ sions of the regulations in question, the facts of the case enable the scope of the question (a) the expression 'working period' may be of interpretation to be circumscribed. Since, interpreted by reference a contrario to therefore, Mr Michielsen and his employer the concept of rest, that is to say as the (the latter as the party liable at civil law) were summoned to appear for having failed to comply with the prescribed rest and driv­ ing periods, and for having used, on the day * Original language: Italian. of the control, more than one record sheet in 1 — OJ 1985 L 370, p. 1. 2 — OJ 1985 L 370, p. 8. the vehicle tachograph, it is essentially Art-

icle 15(2) of Regulation No 3821/85 which is interpret concepts which, like those at issue relevant here. in the present case, are not defined in the regulations. Whilst that opinion is generally speaking acceptable, I consider that Commu­ nity legislation — as the United Kingdom points out — provides all the criteria needed to define the expression 'daily working period' which may be applied uniformly in the territory of the Community. That article forms part of the chapter setting out the provisions for use of the tachograph, that is, the instrument the installation of which is intended to enable compliance with the rules relating to driver's driving and rest periods laid down in Regulation No 3820/85 to be checked. The provision in question requires drivers, in particular, to use a record sheet each day on which they drive, starting 4. In that connection, it is important to note from the time when they take over the the definition of rest contained in Article vehicle, and not to withdraw the sheet before 1(5) of Regulation No 3820/85, which the end of the daily working period unless also applies for the purposes of Regulation its withdrawal is otherwise authorized. No 3821/85 by virtue of the general refer­ ence made in Article 2 of that regulation to the definitions set out in Regulation No 3820/85. Rest should therefore be taken as meaning 'any uninterrupted period of at least one hour during which the driver may freely dispose of his time'. It would seem correct, however, to state a contrario — as, moreover, has been suggested by the national 3. Therefore, so far as the first question is court — that a working period should be concerned (and the third, which is closely considered to be that in which the driver is related), the dispute in the main proceedings obliged to account to the company for the essentially turns on whether the driver is use of his time. authorized to use a second record sheet on the same day — which he could do only if the daily working period could be consid­ ered to have ended — and it is on the expres­ sions 'working period' and 'end of the work­ ing period' that attention should be concentrated. In this regard, the Commission and the Belgian Government argue that the aim of Regulations Nos 3820/85 and 3821/85 Although it is true that such a definition is not to draw up common social rules in the could give rise to doubts as to the possibility road transport sector, but merely to harmo­ of including in the working period some nize some aspects of national legislation in periods during which the driver is doing order to improve social protection for driv­ work other than driving, other provisions of ers and road safety; they further submit that the regulations in question dispel any uncer­ the Member States retain the power to tainties which might arise.

5. I would refer, in the first place, to Art­ of the break (whether or not it is for less icles 7(5) and 8(7) of Regulation No 3820/85, than an hour) and the overall organization of 3 the driver's day (rest taken in one or more which provide that the breaks from driving and the time spent on a bunk in the vehicle if periods) which will determine whether a par­ it is in motion cannot be regarded as part of ticular period forms part of a working period the daily rest period. Those periods, there­ (as a mere break in driving) or of the daily fore, form part of the working period. It rest. should be noted, however, that if the rest period laid down in Article 8(2) is taken in two or three separate breaks within a 24- hour period, a break from driving of at least one hour may be considered a rest within the meaning of Article 1(5). Information relevant to the interpretation requested by the national court is also to be found in Art­ icle 15(3) of Regulation No 3821/85, which provides that drivers must record separately on the tachograph: (a) driving time, (b) all 6. The outcome is the same if we apply to other periods of work, (c) other periods of the various categories of activity listed in availability, namely the periods during which Article 15(3) the general definition of work­ drivers need to remain at their posts only for ing period inferred from the concept of rest: the purpose of answering any calls to start or in none of the cases listed is the driver able resume driving or to carry out other work, to dispose freely of his time. This confirms time spent beside the driver or on a bunk that the proposed definition is appropriate. while the vehicle is in motion and (d) breaks in work and daily rest periods. Since under Article 15(4) the Member States may permit, for vehicles registered on their territory, the periods referred to under (b) and (c) to be recorded together, and some of the periods included under the heading 'availability' can­ not be considered 'rest' under Article 8(7) of Regulation No 3820/85, it is clear from the structure of the provision that all the activi­ ties described under letters (a), (b) and (c) form part of the working period. The provi­ 7. The expression 'end of the daily working sion for combined recording of breaks in period'should, therefore, as a logical conse­ driving and daily rest periods does not con­ quence of what has been said, be interpreted tradict what is stated above: it is the duration as referring to the point in time when the driver is once again able to dispose freely of his time, which coincides with the start of a daily or weekly rest period. Where the rest is taken in two or three separate periods in accordance with the second paragraph of 3 — Article 7(5) merely confirms what is already clear from the definition of rest in Article 1; since the breaks from driving Article 8(1) of Regulation No 3820/85 it will, required by Article 7(1) and 7(2) must be of 45 minutes however, be necessary to take account of the duration and may in certain cases be replaced by breaks of at least 15 minutes each, distributed over the driving period or time at which the final part of the rest period immediately after this period, they are not normally of a duration equivalent to the minimum rest period. of the day in question begins.

A textral, systematic and teleological inter­ 10. It is therefore in the light of those aims pretation of the provisions in question sug­ that all the provisions which fix the maxi­ gests that 'day' is to be understood as mean­ mum driving periods (and, more generally, ing a 24-hour period which does not have a working periods), the minimum duration of predetermined beginning but starts at the breaks from driving and rest periods should end of the preceding (daily or weekly) rest period (flexible start).

Conclusion

12. I therefore propose that the questions referred to the Court be answered as fol­ lows:

(1) the expression 'working period' in Article 15(2) of Council Regulation (EEC) No 3821/85 is to be interpreted as referring to each period in which the driver is unable to dispose freely of his time, including breaks taken from driving in compliance with Article 7 of Council Regulation (EEC) No 3820/85;

(2) the 'end of the daily working period' within the meaning of Article 15(2) of Council Regulation (EEC) No 3821/85 is to be interpreted as meaning the time at which the driver begins his daily or weekly rest period or, where the daily rest is taken in separate periods, the time at which the final part of the rest relating to the day in question begins;

(3) the term 'day' in Article 15(2) of Council Regulation (EEC) No 3821/85 is to be interpreted as a 24-hour period starting from the end of the preceding daily or weekly rest period.

6 See Advocate General Van Gerven's Opinion in Case C-116/92, currently before the Court, in which he considers the interpretation of Articles 7(1) and (2) of Regulation No 3820/85 relating to maximum periods of driving and to breaks in driving.