C-235/94

T H E COURT (First Chamber),

composed of: D. A. O. Edward, President of the Chamber, P. Jann (Rapporteur) and L. Sevón, Judges,

Advocate General: P. Léger, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Mr Bird, by J. A. Backhouse, Solicitor,

* Language of the case: English.

after hearing the Opinion of the Advocate General at the sitting on 14 September 1995,

gives the following

Judgment

1 By order of 10 June 1994, received at the Court on 19 August 1994, the Crown Court, Bolton, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 12 of Council Regulation (EEC) N o 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport (OJ 1985 L 370, p. 1, hereinafter 'the Regu- lation').

2 That question was raised in the context of criminal proceedings against Mr Bird, who was charged with two offences involving infringements of the Regulation.

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'Provided that road safety is not thereby jeopardized and to enable him to reach a suitable stopping place, the driver may depart from the provisions of this Regu- lation 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 or in his duty ros- ter.'

6 On 21 April 1994 Rochdale Magistrates' Court convicted Mr Bird of offences involving infringements of Articles 6 and 7 of the Regulation. Mr Bird, who was employed by a haulage company, had driven his vehicle for over ten hours between two daily rest periods on 13 October 1992 and for more than four and a

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JUDGMENT OF 9. 11. 1995 — CASE C-235/94

half hours without a break on 6 November 1992. In both cases, Mr Bird and his employer had already anticipated before the journey began that it would not be possible to comply with the provisions of Articles 6 and 7 of the Regulation. It is common ground that the goods were of high value and that road safety was not jeopardized.

7 Mr Bird appealed against both convictions to Bolton Crown Court. In his appeal he argued, inter alia, that Article 12 of the Regulation allowed planned derogations from the other provisions of the Regulation in order to ensure the safety of the load.

9 The essence of the question raised by the national court is whether Article 12 of the Regulation authorizes a driver to derogate from the provisions of Articles 6, 7 or 8 of the Regulation for reasons known before the journey was commenced.

10 It must be stressed that Article 12 of the Regulation forms part of Section VII, entitled 'Exceptions', which follows a set of very detailed provisions regulating driving and rest periods. The Court has already held, with regard to social provi­ sions in the field of road transport, that derogations are not to be interpreted in such a way as to extend their effects beyond what is necessary to safeguard the interests which they seek to secure (see Case 90/83 Paterson ν Weddel [1984] ECR 1567, paragraph 16, and Case C-l 16/91 Licensing Authority South Eastern Traffic Area ν British Gas [1992] ECR 1-4071, paragraph 12). In the present case, the der­ ogation provided for in Article 12 is intended to ensure the safety of persons, of the vehicle and of its load.

1 1 It is clear at the outset, from the wording of Article 12, that only the driver enjoys the possibility of derogating from the Regulation. That provision does not, there­ fore, extend to the driver's employer — as would be the case if the driver and his employer were able to agree before the journey commenced not to comply with the Regulation.

12 Again, under Article 12, it is for the driver to decide whether it is necessary to der­ ogate from the Regulation, to choose a suitable stopping place and to indicate the nature of and reason for the derogation on the record sheet of the recording equip­ ment or in his duty roster. It is clear from such details that only cases where it unexpectedly becomes impossible to comply with the Regulation during the course of the journey are envisaged.

16 Whilst it is true, as the appellant in the main proceedings points out, that Regu- lation N o 3820/85 seeks to give a degree of flexibility to the provisions of Regu- lation (EEC) N o 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport (OJ, English Special Edition 1969(1), p. 170), it is none the less clear from the first recital in its preamble that the legislature did not wish to undermine the objectives of the previous regulation.

17 The answer to the question referred must therefore be that Article 12 of the Regu- lation does not authorize a driver to derogate from the provisions of Articles 6, 7 or 8 of the Regulation for reasons known before the journey was commenced.

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BIRD

Costs

18 The costs incurred by the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recover- able. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

R. Grass D. A. O. Edward

Registrar President of the First Chamber

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