C-387/96

3. To that end, Regulation N o 3820/85 lays down driving and rest periods for those driv- ers engaged in road transport who come 6. Such national exceptions may be granted, within its scope. under Article 13(1)(b), in respect of 'vehicles used by public authorities to provide public services which are not in competition with * Original language: French. professional road hauliers'. 1 — OJ 1985 L 370, p.1. This regulation replaced Council Regu- lation (EEC) N o 543/69 of 25 March 1969 on the harmoni- sation of certain social legislation relating to road transport (OJ, English Special Edition 1969 (I), p. 170), which it replaces and amends without undermining its objectives, to 3 — Article 4(3) excludes from the scope of the regulation quote the first recital in the preamble to Regulation N o 'vehicles used for the carriage of passengers on regular ser- 3820/85. vices where the route covered by the service in question does 2 — First recital in the preamble to the regulation. not exceed 50 kilometres'.

I - 1227

O P I N I O N OF MR LÉGER — CASE C-387/96

The Kingdom of Sweden has used its right to requirement (Article 3(2) of Regulation grant exceptions for this category of N o 3821/85). A systematic exemption is vehicle. 4 in any case provided in respect of vehicles mentioned in Article 4 and Article 14(1) of Regulation N o 3820/85 (Article 3(1) of Regulation N o 3821/85).

7. In order to ensure effective monitoring of 9. As regards the latter, when used for regu- the provisions concerning working periods, lar passenger services 7 and not fitted with a the Council adopted Regulation (EEC) N o tachograph, compliance with the rules is 3821/85 of 20 December 1985 on recording monitored by means of a duty roster. Article equipment in road transport. 5 The Court 14 of Regulation N o 3820/85 provides: has ruled that the approved recording equip- ment known as a 'tachograph' is 'designed to record, automatically or semi-automatically, on approved record sheets, data relating, in particular, to driving and other working peri- ods of drivers, and their daily and weekly ' 1 . In the case of periods of availability and rest'. 6

4 — The EFTA Surveillance Authority notified the Commission of the Swedish Regulation of 8 September 1994, N o 1297, on 24 October 1994. When the Kingdom of Sweden acceded to the Union, that regulation was replaced by the new Regu- 7 — The concept of 'regular passenger services' is defined in lation N o 521 of 1995, Article 4(2) of which states that the Article 1(7) of the regulation as meaning services as defined legislation does not apply to carriage by road by means of in Article 1 of Regulation N o 117/66/EEC of the Council of 'vehicles used by public authorities to provide public services 28 July 1966 on the introduction of common rules for the which are not in competition with professional road international carriage of passengers by coach and bus (OJ, hauliers'. English Special Edition 1965-1966, p. 177): '1. Regular ser- vices arc services which provide for the carriage or passen- 5 — OJ 1985 L 370, p. 8. gers at specified intervals along specified routes, passengers 6 — Judgment in Case C-158/90 Nijs and Transport being taken up and set down at predetermined stopping Vanschoonbeek-Matterne [1991] ECR 1-6035, paragraph 11. points'.

I - 1228

SJÖBERG

2. The duty roster shall show, in respect of Facts and procedure each driver, the name, place where based and the schedule laid down in advance for vari- ous periods of driving, other work and avail- ability.

I - 1229

OPINION OF MR LÉGER — CASE C-387/96

and recording equipment in road transport, 8 to in Article 14(5), the public prosecutor and Article 14 of Regulation N o 3820/85. considers, is designed to replace the The buses which were checked were not fit- tachograph for certain vehicles used for par- ted with recording equipment and the driv- ticular types of service. Its purpose is to ers were not in possession of an extract from enable spot checks to be carried out not only their duty rosters. on •what breaks and rest periods have been taken on a particular day but also on the rest periods taken by a driver during any 24-hour period. A duty roster extract which only covers one day is therefore not sufficient.

I - 1230

SJÖBERG

The first question 20. As I have already mentioned, the objec- tives of the regulation are the harmonisation of conditions of competition between hauliers, and the improvement of working conditions and road safety. It is also intended to make the provisions of Council Regu- lation (EEC) N o 543/69 more flexible, with- 17. The Swedish court asks the Court of out undermining its objectives. 10 Justice in its first question, which needs to be reworded, to specify the scope of the deroga- tion from Regulation N o 3820/85 which may be granted under Article 13(1)(b) in respect of 'vehicles used by public authori- ties to provide public services which are not in competition with professional road hauliers'.

21. Those are the factors to be borne in mind when seeking to determine the scope of the exception at issue.

18. Although interpretation of this regu- lation and those which preceded it has already formed the subject of a considerable number of rulings, this is the first time the Court has been asked to rule on this particu- lar provision.

23. The first three conditions do not raise provisions of the regulation. However, I do any particular difficulties in this case. not think one can use this as a reason to exclude this category of service from the scope of the exception which may be granted under Article 13. The other provisions of the regulation do not cover all the categories of public passenger services. For example, the services at issue are not for 'the carriage of 24. Firsdy, the services at issue are only passengers on regular services where the operating in Sweden, in the Stockholm route covered by the service in question does region specifically. not exceed 50 kilometres', the category cov- ered by the general exemption under Article 4(3). 12 N o r does the number of passengers carried in this particular case qualify for the exception under Article 13(1 )(a) in respect of 'vehicles used for carrying passengers, which 25. Secondly, the Commission does not by virtue of their construction and equip- deny that the regulation mentioned in the ment, are suitable for carrying not more than order for reference, 1 1which provides for the 17 persons, including the driver, and are exception under Article 13(1)(b) in Sweden, intended for that purpose'. was indeed brought to its notice.

26. Lastly, SL Buss AB was awarded the contract to operate a public bus service by Moreover, I feel that there is nothing in the the Landsting as part of the latter's local and letter of Article 13(1)(b), which contains a regional responsibility for providing a regu- broad reference to 'public services', that lar public road passenger service. allows us to exclude public passenger ser- vices from that category.

companies like SL Buss AB cannot rely on when asked to give a detailed ruling on this that provision. point as regards the general exemptions pro- vided for under Article 4(6) in respect of vehicles used for general services performed in the public interest, 1 3the Court held that 'the vehicles in question do not have to be used by the public authorities directly in 28. The appellant in the main proceedings order to benefit from the exemption ... the and the Commission have suggested a broad derogation may benefit not only the public interpretation of the requirement relating to authorities but also private undertakings use by public authorities, which would per- which provide a general service in the public mit the use of vehicles by private undertak- interest under their control'. The justification ings providing a public transport service given by the Court was, however, that under the control of public authorities. 'Unlike the provision it replaces, namely Article 4(4) of Regulation N o 543/69 ... Article 4(6) of Regulation N o 3820/85 no longer refers to "vehicles which are used by other public authorities for public services". The result of that amendment in the wording is that the derogation may benefit not only 29. That approach cannot be accepted. the public authorities but also private under- takings which provide a general service in the public interest under their control'. 14

30. It must again be stressed that a strict interpretation of the exceptions permitted is particularly necessary where road safety is at stake. The wider the scope of the exceptions, the greater the number of vehicles not sub- ject to the detailed rules on working time in this sector. The risks as regards road safety are clear for all to see. However, Article 13(1)(b), which is under consideration in the present case, does in fact contain an express reference to 'vehicles used by the public authorities to provide public services'. Thus it would conflict with the letter of the regulation if 'vehicles used by 31. The Court's case-law confirms this the public authorities' were to include, in essential consideration.

such a context, vehicles used by private specify that only public authority vehicles or undertakings operating public services under vehicles under contract to public authorities the control of the public authorities. are excluded from the scope of these provi- sions'. 17 The Commission suggested replac- ing Article 4(6) by the following: 'vehicles used by public authorities or under contract to public authorities ...'. 18 Unless I am mis- taken, that proposal was not accepted by the Council. However, although intended to amend Article 4(6) and not Article 13(1)(b), 33. Similarly, in its judgment in the Nehlsen it clearly indicates an intention to extend the case, 15 the Court was specifically required to scope of the exceptions which can be interpret the previous Article 4(4) of Regu- granted. It would appear that the legislature lation N o 543/69, to which the two judg- has not so far shared this view. ments cited above refer, which systematically exempted from the scope of the legislation a certain number of public service vehicles, and vehicles used by 'other public authorities for public services which are not in compe- tition with professional road hauliers'. The previous text was exactly the same as the present Article 13(1)(b). The Court held, in paragraph 8 of the judgment, that the excep- 35. I shall conclude on this point that the tion extended only to 'vehicles owned by or national exception available under Article under the control of the public authority', 13(1)(b) can be granted only in favour of and not to vehicles belonging to a private public authorities and not of private under- undertaking and used by it to perform a takings providing a public service under the public service or a service in the public inter- control of the public authorities. est which it has undertaken to provide under a contract governed by private law.

37. I shall begin by stressing once again that harmonisation of conditions of competition is one of the objectives pursued in this area. This demonstrates the importance, for the application of the contested regulation, of the criterion that the services on which the We must remember that, unlike the period passengers are carried must not be in compe- prior to 1993, when SL Buss AB enjoyed a tition with professional hauliers. monopoly over public passenger services in certain areas, since that date it has been com- peting against other undertakings in tender- ing for contracts. Moreover, although if awarded a contract it would operate the ser- vice exclusively (the national court needs to ascertain this point), a private undertaking like SL Buss AV, which is subject to market 38. The Commission considers that whether forces and wishes to maximise its profits, this factor — absence of competition — cannot fail to think about whether its con- exists is only to be assessed at the time the tract would be renewed at the end of the contract is performed. Even if one were to term for which it has been concluded, and follow that approach, it is not clear that the indeed whether it might win further con- criterion thus understood would be met in tracts for other areas. this particular case. Indeed, although the defendant in the main proceedings claims to have exclusive rights on the routes operated, the public prosecutor in the national court disputes that view, claiming that other bus services are available to travellers on certain routes served by SL Buss AB. 19It is for the national court to find what the actual pos- Thus an undertaking which is awarded an ition is on the basis of the facts. initial contract and so during the term of its public service mandate does not have to comply with restrictive Community regula- tions, unlike other private hauliers, including 19 — The Swedish Government's representative confirmed it the those operating on different routes, will be hearing that the bus service may be provided either by the public authorities or by private undertakings, which may be in a position to put forward a more competi- competing among themselves or with other means of trans- port. tive bid at the time of the next tendering

20 — [1992] ECR I-4071. 22 — Paragraph 7. 21 — Paragraph 19. 23 — Paragraph 8, emphasis added

I - 1236

SJÖBERG

The second question N o 3821/85, 26 and from the twenty-fifth recital in the preamble to Regulation N o 3820/85, which states that: '... in the case of drivers of vehicles used for regular passenger services, a copy of the timetable and an extract from the undertaking's duty roster may replace the recording equipment ...'. 44. Consideration of the second question referred to the Court will not take long. All the observations lodged agree that the extract from the duty roster which must be carried by a driver assigned to a regular national passenger service, 24 under Article 14(5), can- not be restricted to cover only the driving on 47. Thus, where an extract from the duty the day in question. roster replaces the tachograph it must pro- vide the same level of efficiency for monitor- ing purposes as the tachograph in order to meet the objectives sought.

45. This seems to me obvious if, in accord- ance with the case-law of the Court, 25 one looks at the aims of this regulation both to improve road safety and to ensure effective monitoring of working time, and at its pur- 48. In order to determine the scope of the pose. obligation contained in Article 14(5) of the regulation, one can therefore usefully refer to the Court's case-law with regard to monitor- ing by tachograph.

46. O n this last aspect, I should like to point out that the extract from the duty roster, which every driver assigned to a regular national passenger service must carry under 49. In the judgment in the Nijs and Trans- Article 14(5) of the regulation, is designed to port Vanschoonbeek-Matterne case, cited take the place of the tachograph which must above, 27 in view in particular of the objec- be installed in vehicles used for other types tive of road safety which the rules are of service. This is clear both from the intended to pursue, and the need for effective wording of Article 3(1) of Regulation monitoring for this purpose, the Court held that a driver must be able to produce a

52. In the light of the foregoing I propose that the Court give the following answers to Svea Hovrätt:

(1) The exception available under Article 13(1)(b) of Council Regulation (EEC) N o 3820/85 of 20 December 1985 on the harmonisation of certain social leg- islation relating to road transport only applies to vehicles used directly by public authorities, to the exclusion of vehicles used by private undertakings under the control of public authorities, for public services such as a public bus passenger service, where no element of competition with professional hauliers can exist, whether at the time the activity is performed, at the time the contract for performance of the activity is being awarded or with a view to obtaining a renewal of that contract.

(2) The extract from the duty roster which a driver is required to carry under Article 14(5) of Regulation N o 3820/85 may not cover only driving on the day in question.

I - 1238