C-335/94

* Original language: French. 1 — OJ 1985 L 370, p. 1. This regulation replaces and amends Council Regulation (EEC) N o 543/69 of 25 March 1969 on the harmonization of certain social legislation relating to road transport (OJ, English Special Edition 1969 (1), p. 170), which haa already been amended several times by Council Regulations (EEC) Nos 514/72 of 28 February 1972 (OJ, 3. Article 4 of Regulation No English Special Edition 1972 (I), p. 124), 515/72 of 28 Feb- ruary 1972 (OJ, English Special Edition 1972 (I), p. 134), 3820/85 excludes from its scope 13 categories 2827/77 of 12 December 1977 (OJ 1977 L 334, p. 1) and 2829/77 of 12 December 1977 (OJ 1977 L 334, p. 11). Since the two regulations concern the same matter and pursue the same objectives, I refer in my Opinion to the case-law of the Court relating both to the regulation of 1969 and to the 3 — Council Regulation (EEC) N o 3821/85 of 20 December regulation of 1985. 1985 on recording equipment in road transport (OJ 1985 L 2 — First recital. 370, p. 8).

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of vehicle. In particular, Article 4(6) pro- managerial capacity by Rethmann Entsor- vides: gungswirtschaft GmbH&Co. KG (hereinaf- ter 'Rethmann'), and are responsible for allo- cating shifts to the company's drivers.

'[This regulation shall not apply to carriage by:]

6. Rethmann's activities include the agree- ment of long-term waste-disposal contracts (6) vehicles used in connection with the with local authorities. Under those contracts, sewerage, flood protection, water, gas it is entrusted with the collection and trans- and electricity services, highway mainte- portation of, on the one hand, industrial nance and control, refuse collection and waste and, on the other, special household disposal, telegraph and telephone ser- waste (such as dry-cell batteries and chemi- vices, carriage of postal articles, radio cals) deposited by residents in containers and television broadcasting and the specially placed by Rethmann in towns for detection of radio or television transmit- that purpose. ters or receivers'. 4

(bb) Does the exception apply only in respect of short journeys within a local authority area, 10. The Amtsgericht Recklinghausen con- in particular door-to-door siders that the determination of the dispute transport, or are longer jour- depends upon the interpretation of the rele- neys, such as transport to a vant Community law provisions, and has more distant waste dump, also therefore referred the following questions to covered? the Court of Justice for a preliminary ruling:

(cc) Is the transportation of such refuse entitled to the benefit of Article 4(6) of the regulation even where the refuse is col- '(1) How is the term "refuse collection and lected and disposed of by pri- disposal" in Article 4(6) of Regulation vate undertakings on behalf of (EEC) No 3820/85 to be defined? the local authority?

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(c) If the transportation of commercial (2) What is the relationship between the waste is also covered: derogating rule contained in Article 4(6) of Regulation (EEC) N o 3820/85 and national rules on driving periods?

(aa) Is the transportation of every kind of commercial waste cov- ered? (a) If a journey comes within the dero- gating rule contained in Article 4(6) of the regulation, can a restriction on driving periods still be imposed under national rules?

waste from undertakings and transports it to whether such undertakings are covered by a tip or incineration plant. the exemption in Article 4(6) of Regulation No 3820/85, the following question must be referred to the Court of Justice:

12. On an inspection of one of the compa- ny's drivers when carrying two waste skips by road, the vehicle's tachograph discs were 'Does Article 4 of Regulation (EEC) No found to show that the driving time laid 3820/85 exempt from the scope of Regu- down by Regulation No 3820/85 had been lation (EEC) No 3821/85 vehicles belonging exceeded. Mr Goupil was then prosecuted to private companies engaged in the collec- for infringement of Regulation No tion and treatment of waste which transport 3821/85 and of a French Decree. waste skips or industrial waste, including cases where such transport is effected over long distances?'

13. At the hearing before the national court, The replies to the questions Mr Goupil argued that he was not a carrier, but a provider of services concerning indus- trial and commercial waste without market value, and that he was not therefore obliged to comply with the requirements of Regula- tions Nos 3820/85 and 3821/85.

15. I will consider first the question com- mon to both cases, concerning the scope of the derogation in Article 4(6) of the regu- lation for 'vehicles used in connection with ... refuse collection and disposal', while at the same time making the various clarifications 14. The Tribunal de Police de la Rochelle requested by the Amtsgericht Reckling- states that '... many companies with objects hausen in its first question, before going on identical to those of the company now being to answer the second question in Case prosecuted have been prosecuted before local C-335/94, as to whether national law may criminal courts in France' and that 'having impose limits on driving hours outside the regard to divergences in the case-law' as to scope of the regulation.

18. In order to achieve uniform application, 7 — See, for example, concerning the exemption from the the scope of the authorized exemptions must tachograph obligation provided for by Article 14a(3)(a) of be strictly construed. Regulation N o 543/69 as amended by Regulations Nos 515/72 and 2827/77, Case 133/83 Reginu v Scott [1984] ECR 2863; and, concerning Article 12 of Regulation N o 3820/85, which authorizes departure from the provisions of the regu­ lation under certain conditions, Case C-235/94 Regina v Bird [1995] ECR I-3933. 5 — 'Carriage by road' is defined in Article 1(1) of the regulation 8 — See the judgment in Regina v Bird, cited above, paragraph as 'any journey made on roads open to the public of a vehi­ 10, and the judgments cited by the Court therein: Case cle, whether laden or not, used for the carriage of passengers 90/83 Paterson v Weddel [1984] ECR 1567, paragraph 16, or goods'. and Case C-116/91 Licensing Authority South Eastern Traffic 6 — See the third recital in the preamble to Regulation N o Area v British Gas [1992] ECR I-4071, paragraph 12. 543/69. 9 — Paragraph 7 of the judgment.

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22. In Case 79/86 Hamilton ν Whitelock 10 road safety, the harmonization of the condi­ the Court interpreted the words 'specialized tions of competition and social progress: 'it breakdown vehicle' in Article 4(9) of Regu­ is evident from the first recital in the pream­ lation No 543/69, as amended by Article 1(1) ble to that regulation that the possibility of of Regulation N o 2827/77, 1 1as referring derogating from the Community rules must only to vehicles adapted or suited generally not undermine the objectives pursued in that only for the removal of vehicles recently area'. 1 4 involved in an accident, to the exclusion of vehicles simply used to transport other vehi­ cles.

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27. In that respect, the choice of words used, finally removing an object from a place namely 'services', 'collection and disposal' where it has been deposited, and requires and 'refuse' seems to me to be significant. movement over a limited distance and a short period of time. By contrast, 'carriage' or 'transport' may be effected over a longer distance and an extended period of time. It is in that sense that the expressions 'carriage by road' and 'road transport' are used. In my view, the legislature intended to make a clear 28. First, it is revealing that the Community distinction between the two concepts and to legislature used the expression 'collection reserve the benefit of the derogation for and disposal' ('enlèvement' in the French vehicles used in connection with collection version, and 'Abfuhr' in German) rather than and disposal. the words 'carriage' or 'transport'.

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possible to ensure that abuses prejudicial 36. Nor, finally, does it matter in principle both to road safety and to the social protec- whether, having collected the refuse, the tion of drivers were not committed? The vehicle takes its load to the treatment centre only solution is to apply the Community only, or continues to the final disposal sites, rules to 'carriage' and 'transport'. the only determining factor being that of proximity. The aims pursued will not be compromised so long as the derogation is restricted to vehicles used for transportation in the strict sense only as an ancillary to the essential activity of collection and disposal.

33. Conversely, restricting the exemption to 'collection and disposal' vehicles only does not have the same adverse effects. Those If, on the other hand, as is often the case, the vehicles move very slowly, within a limited final disposal sites are a long way from area, and make frequent stops at places built-up areas, then transportation to those where refuse is deposited. sites, which requires longer driving times, is no longer covered by the exemption.

It is for the national court to determine in 34. So far as the aims of the regulation are any event whether the vehicle's journey to concerned, the method of collection and dis- those sites is sufficiently subsidiary to collec- posal, which may vary from one authority to tion proper for the aims pursued, especially another, is immaterial. Collection may be by road safety and social progress, not to be the traditional door-to-door method, or be compromised. selective, from containers placed specially for public use, as tends to be the case now.

38. To conclude, the derogation does not extend to vehicles whose essential activity is the transport of refuse. It applies only to vehicles used to collect refuse and take it to 42. The definition should not be extended sorting, treatment or disposal sites, in so far too far, however, since too wide an interpre- as the transport aspect of their activity tation might be difficult to reconcile with remains subsidiary to the collection. other Community provisions. For example, Article 13(1)(d) of the regulation already authorizes Member States to grant excep- tions for vehicles used to carry animal waste. The term ‘refuse’ cannot therefore include animal waste without causing duplication between Article 4(6) and Article 13(1)(d). Nor, for example, can the term cover danger- ous goods, the transport of which is subject to restrictions under other Community legis- 39. Having thus explained the meaning of lation. 19 ‘collection and disposal’, I turn now to the word ‘refuse’ (‘immondices’ in French, and ‘Müll’ in German).

43. The term ‘refuse’ must therefore be understood in its widest accepted sense, which covers both household refuse and 40. Unlike the words ‘collection and dispos- waste produced by industry, commerce and al’, the choice of the word ‘refuse’ does not seem to me to reveal an intention by the leg- islature to limit the type of waste which may be collected and disposed of by vehicles 19 — Council Directive 95/50/EC of 6 October 1995 on uniform procedures for checks on the transport of dangerous goods exempted under Article 4(6). by road (OJ 1995 L 249, p. 35).

46. That public service, which is required 49. However, although the references to ser- whenever any human community is formed, vices in Article 4(6) are to public services, the generally takes the form of either a door-to- article does not make a distinction between door or a selective collection of waste. services performed directly by the public authorities and services entrusted by them to a private undertaking. In my view the

20 — In A r t i c l e1(3) of both Council Directive 89/369/EEC of 47. The definition of the word 'refuse', as 8 June 1989 (OJ 1989 L 163. p. 32) nnd Council Directive 89/429/EEC of 21 June 1989 (OJ 1989 L 203, p. 50). which used in the rules, is therefore restricted by concern the prevention and reduction of air pollution from new and existing municipal waste incineration plants, the fact that only waste or residue habitually 'municipal waste' is defined, for example, as 'domestic refuse, as well as commercial or trade refuse and other produced by the normal activity of a human waste which, because of its nature or composition, is similar community is included. The type of waste is to domestic refuse'.

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distinction is therefore not a criterion for which case they all benefit equally from the applying the exemption. derogating provision.

51. Allowing the derogation to benefit pri- vate undertakings does not have the effect of conferring a competitive advantage upon one undertaking as against another. As the Com- mission has pointed out, 22 either the public refuse collection and disposal service is entrusted by the authorities to a single undertaking, in which case the benefit of the exemption cannot be granted to any other 54. The derogation in Article 4(6) covers undertaking, or several undertakings are vehicles used for the collection of waste of invited to perform the service together, in all kinds which is not subject to more spe- cific rules and for the transportation of such waste over short distances, within the con- text of a general service in the public interest 21 — On the interpretation of that provision, see the judgment in provided directly by the public authorities or Nehlsen, cited above. 22 — Paragraph 13 of its observations in Case C-335/94. by private undertakings under their control.

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The limitation of driving time by national kind of rules concerning the transport in legislation question, nor does it have that effect.

58. Moreover, the third recital reserves gen- erally the right to impose more stringent 55. In Question 2 in Case C-335/94, the rules at national level in accordance with the national court asks in effect whether national aims pursued: rules on driving periods may apply in areas which are excluded from the scope of the Community rules, such as those referred to in Article 4(6) of Regulation No 3820/85.

'Whereas the provisions of this regulation dealing with working conditions cannot be allowed to prejudice the right of the two sides of industry to lay down, by collective bargaining or otherwise, provisions more favourable to workers; whereas, in order not only to promote social progress but also to 56. The eleventh recital in the preamble to improve road safety, each Member State the regulation 23 shows that the harmoniza- must retain the right to adopt certain appro- tion pursued at Community level in the area priate measures'. of road transport is only partial and leaves outside its scope a number of situations, such as those referred to in Article 4(6).

In Cases C-335/94 and C-39/95:

The words 'vehicles used in connection with ... refuse collection and disposal' in Article 4(6) of Council Regulation (EEC) N o 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport must be inter- preted as covering vehicles used for the collection of waste of all kinds which is not subject to more specific rules and, subsidiary to such collection, for the transporta- tion of such waste over short distances, within the context of a general service in the public interest provided directly by the public authorities or by private undertak- ings under their control.

In Case C-335/94:

The exemptions provided for by Article 4(6) of the regulation cited above does not preclude Member States from enacting national rules on driving time for the vehi- cles referred to in that provision.

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