C-235/94

3. Regulation No 3820/85 contains, essen- tially, very detailed provisions concerning driving and rest periods (Sections IV and V) — which apply to carriage by road falling 2. That regulation, adopted pursuant to within its scope (Section II), carried out by Article 75 of the EEC Treaty, pursues, in the drivers having the minimum age required field of road transport, the common policy (Section III), in respect of whom certain initiated in 1969 with Regulation (EEC) No types of payment is prohibited (Section VI) 543/69 2 ('the 1969 regulation'), which it — to which there can be exceptions only in replaces and amends without, however, certain limited instances (Section VII), sub- ject to the control procedures and penalties set up (Section VIII). * Original language: French. 1 — OJ 1985 L 370, p. 1. 2 — Regulation (EEC) N o 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relat- 3 — See the first recital in the preamble to Regulation N o ing to road transport (OJ, English Special Edition 1969 (I), p. 3820/85. In so far as both regulations relate to the same field 170). That regulation was amended by Regulations (EEC) and pursue the same objectives, I shall refer in the arguments N o 514/72 (OJ, English Special Edition 1972 (I), p. 124), below to the case-law of the Court concerning both the (EEC) N o 515/72 (OJ, English Special Edition 1972 (I), p. 1969 regulation and Regulation N o 3820/85. 134), (EEC) N o 2827/77 (OJ 1977 L 334, p. 1) and (EEC) 4 — See the first recital in the preamble to Regulation N o N o 2829/77 (OJ 1977 L 334, p. 11). 3820/85.

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8. The national court has asked the Court to that the driving period had not been interpret that provision in the context of an exceeded purely by chance, but, on the con- action in which the facts and procedural trary, had been consciously planned before background are as follows. the journeys began.

Factual and legal background

12. The nature of the load on both journeys was similar and consisted, according to the appellant in the main proceedings, of goods with a high customs value.

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the Court for a preliminary ruling the fol- not comply with the other provisions of that lowing question: regulation.

'Upon a proper interpretation of Article 12 of Council Regulation (EEC) N o 16. I would emphasize the practical impor- 3820/85 on the harmonization of certain tance of the reply to be given: it concerns the social legislation relating to road transport: extension or, conversely, the restriction of the leeway available to drivers and transport undertakings in organizing their journeys.

where in criminal proceedings alleging a departure from the restrictions upon driving time contained in Articles 6, 7 and 8 of that 17. Article 12 may be read in two different regulation, a driver has satisfied all the pre- conditions contained in Article 12 thereof ways. and the court is satisfied that road safety is not thereby jeopardized, and bearing in mind the obligation placed upon a transport undertaking by Article 15;

18. Under a broad interpretation, put for- ward by the appellant in the main proceed- ings, that derogating provision is freely avail- able, so to speak, to transport undertakings is the driver entitled to the benefit of the which thus enjoy greater latitude when orga- flexibility provided by Article 12 if the need nizing their journeys, recourse thereto being to depart from the provisions of Articles 6, 7 limited only by the requirement that road or 8 was known before the journey in ques- safety must not be jeopardized. That inter- tion was commenced?' pretation is in keeping, he claims, with the objective, pursued by the 1985 amendment, of making the previous rules more flexible. 9

21. I would observe that Article 12 is pre- sented as a provision derogating from the general scheme established by Regulation No 3820/85. It appears in Section VII, enti- tled 'Exceptions'. Moreover, a number of factors underscore the exceptional nature of that provision. Thus, although the concern 23. In that respect, I believe an examination of the legislature was to provide a very strict of the history of that article is enlightening. and systematic framework for driving and rest periods (continuous, daily and two- weekly driving periods), Article 12 allows a departure from those restrictive provisions. Furthermore, the exceptional nature of the measure is emphasized by the strict condi- tions to which its implementation is subject

24. Originally, there is no trace in Regu- 10 — See, for example, Case 47/79 Nebben [1979] ECR 3639, paragraph 4; Case 133/83 Scott[1984] ECR 2863, paragraph lation No 543/69 of a derogating provision 15; Case C-116/91 British Gas [1992] ECR I-4071, para- of the type provided for by Article 12 of graph 12; and Case C-116/92 Charlton and Others [1993] ECR I-6755, paragraph 14. Regulation No 3820/85. Under the excep-

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tions provided for by Section VI of the down, and to the extent necessary to ensure former regulation there appeared a single the safety of persons, of the vehicle or of its article, Article 13, which enabled the Mem- load, and to enable him to reach a suitable ber States to provide for more restrictive stopping place or, according to circum- provisions within their territory (essentially stances, the end of his journey, depart from the present Article 11). the provisions of Articles 6, 7(2) and (4), and 11. The driver shall indicate the nature and reasons for such departure in the individual control book, or on the record sheet of the recording equipment.'

11 — That amendment was introduced with the purpose of elim- inating certain disparities which existed between the 12 — Proposal for a Council Regulation amending Regulation 1969 regulation ana the European Agreement concerning (EEC) N o 543/69 on the harmonization of certain social the Work of Crews of Vehicles Engaged in International legislation relating to road transport and Regulation (EEC) Road Transport (ERTA), done at Geneva on 1 July N o 1463/70 on the introduction of recording equipment in 1970 under the auspices of the Economic Commission for road transport, submitted to the Council on 20 March Europe, as regards carriage from or to a third country by 1984 (OJ 1984 C 100, p. 3). See also the amended proposal, any vehicle registered in a third country which is a party to unchanged as regards the text which concerns this Opinion, that agreement, in order to permit the agreement to be con- submitted by the Commission to the Council on 13 August cluded. 1985 (OJ 1985 C 223, p. 5).

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amended 1969 regulation. Article 1(14) of suitable stopping place, the driver may that preparatory act proposes the following: depart from the provisions of the regulation to the extent necessary to ensure the safety of persons, of the vehicle or of its load. The driver shall indicate the nature of and reason for his departure from those provisions on the record sheet of the recording equipment 'Article 13a becomes Article 13 and is or in his duty roster.' replaced by the following text:

14 — See the opinion of the Parliament (OJ 1985 C 122, p. 168) 13 — Emphasis added. The remainder of the article remains and the opinion of the Economic and Social Committee unchanged by comparison with the formcr Article 13a. (OJ 1985 C 10t, p. 4 and OJ 1985 C 303, p. 29).

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derogating from the provisions of the regu- mal difficulties, independent of the will of lation only ‘... in case of danger, in circum- the person concerned and apparently inevita- stances outside [the driver's] control, to ren- ble, even if all due care is taken.’ 17 der assistance or as a result of a breakdown ...'. More generally, it is a question of taking into consideration the practical difficulties likely to affect the course of a journey, in order not to render the implementation of the regulation too onerous or unrealistic. 15 32. Article 12 of Regulation N o 3820/85 is therefore intended to enable the driver, with- out running the risk of infringing the regu- lation, to deal with events (such as break- down, accident etc.) which are by nature unforeseeable, external to the driver and unpreventable by him. Such events may, by definition, only occur unexpectedly during a journey, and may not be 'anticipated'.

31. That measure was, in short, designed to enable drivers to deal with cases of force majeure. 16 It coincides with the definition that the Court has consistently given of that last-mentioned concept: 33. N o w that the purpose of Article 12 of Regulation 3820/85 has been clarified, the legal context in which the provision appears must be considered.

ing the earlier provisions more flexible. 18 In 36. Such an interpretation is, first of all, dif- my view, the removal from the present Arti- ficult to reconcile with the actual wording of cle 12 of the reference to '... in case of dan- Article 12, recourse to which is reserved ger, in circumstances outside [the driver's] solely to the driver: 'Provided that ... the control, to render assistance or as a result of driver may depart from the provisions of the a breakdown ...' should be viewed precisely regulation ...' If the contention of the appel- in the light of that consideration. By remov- lant in the main proceedings were accepted, ing that list which might have appeared it would be the employer, alone or in agree- exhaustive, the new wording seeks to be ment with the driver, who would make use more flexible. The cases in which recourse of the exception provided for. The planning may be had to the exception provided for in of the journey is the responsibility solely of Article 12 are more open and it may be the undertaking. It is difficult to imagine that thought that they now cover cases of force each driver plans in his own way the itiner- majeure which had not been envisaged ini- ary and the driving periods for the journey tially, such as bad weather, a herd of animals to be carried out without the supervision of straying onto the road out of control or — the employer on whose behalf he carries it why not? — a spontaneous and perhaps dis- out. Article 15(1) of Regulation No 3820/85, orderly demonstration. More generally, it moreover, serves but to emphasize that fact, must be acknowledged that Article providing that: 12 applies to any event which could not rea- sonably have been foreseen and which forces the driver to extend the driving period.

amble to Regulation N o 3820/85 points out break governed by Article 7(1) and (2). If an that it is precisely in view of that aim in par- extension of the driving periods were ticular that strict limits on driving time were accepted on the basis of the interpretation of laid down. To accept that exceptions to those Article 12 advocated by the appellant in the limits could be planned from the very com- main proceedings, there would be nothing in mencement of a journey would run counter the regulation to guarantee compensation for to that objective. Even if in the present case the drivers. Conversely, if it is considered the national court assures us that road safety that that provision permits exceptions only was not jeopardized, it cannot generally be in the case of force majeure, the instances considered that Article 12 permits 'planned' would be sufficiently rare not to jeopardize derogations from the regulation. It cannot be the objective of social progress. left solely to the driver's or his employer's discretion that a few more hours' driving would not jeopardize road safety. In any event, the strictness of the limits provided for in that regulation makes it clear that any driving time extended beyond the authorized limits constitutes, potentially and of itself, a danger to road safety. 40. Lastly, if the objective of eliminating dis- tortions of competition is to be achieved, that assumes that all undertakings scrupulously respect all the obligations imposed upon them by the regulation. To accept that those concerned about the safety of loads or of persons may regularly plan to exceed driving time would seriously damage the objective pursued by jeopardizing the whole system of limiting driving time.

43. Lastly, in agreement with the United Kingdom, 24 I would make one more obser- vation. The interpretation which I advocate will not be difficult for transport undertak- ings and their drivers to apply. They will still have the freedom to plan long journeys, 42. Finally, I would observe that, in accord- ensuring optimum safety conditions, in com- ance with the case-law of the Court, a provi- pliance with Community rules. Thus, for sion providing for an exception to the gen- such journeys, it may be imagined that there eral scheme set up by Regulation No should be two drivers in the vehicle to 3820/85, such as Article 12, '... cannot be relieve each other and thereby reduce the interpreted in such a way as to extend its number of breaks in the journey. I would effects beyond what is necessary in order to also note that a certain degree of planned ensure the safeguarding of the interests it is flexibility is authorized by some of the pro- intended to guarantee ...' and that '... the visions of the regulation and could be used possibility of derogating from Community to advantage by the employer: the first para- rules cannot undermine the objectives pur- graph of Article 6(1) allows, for example, the sued in that field'. 23 The possibility of mak- daily driving period to be extended from ing use of the exception provided for by nine to ten hours twice in any week; Article Article 12 should therefore be restricted to 8(1) authorizes the reduction of the daily rest cases of force majeure, without allowing it to period to nine consecutive hours three times be extended to cases of 'planned derogations' in any one week, instead of the 11 hours if the raison d'être of that provision is not to provided for in principle; Article 8(7) autho- rizes, subject to certain conditions, the daily rest period to be taken in a vehicle, etc. 22 — Sec for example, concerning Article 4(4) of Regulation N o 543/69, the judgment in Nchlsen, cited above paragraph 9; concerning Article 4(6) of Regulation N o 3820/85, the judgment m British Gas, cited above paragraph 21. 23 — British Gas, cited above, paragraph 12. 24 — Paragraph 41 of its observations.