C-47/97

CLARKE & SONS A N D FERNE

OPINION OF ADVOCATE GENERAL ALBER delivered o n 29 J a n u a r y 1998 *

A — Introduction 3. Tour operators may make group bookings with the company for the transport of tour- ists from airports and railway stations to hotels and tourist attractions.

1. This reference for a preliminary ruling concerns the interpretation of the terms 'spe- cial regular services' and Occasional services' in Article 2 of Regulation (EEC) N o 684/92 1 and of the term 'the route covered by the service in question' in Article 4(3) of 4. O n 9 July 1995 Mr Ferne was driving a Regulation N o 3820/85. 2 coach belonging to E. Clarke & Sons (Coaches) Ltd to pick up a group of tourists from a hotel in London and transport them to the airport. At the airport another group was to be picked up and driven via tourist attractions to a hotel in South-West London. O n the occasion of a vehicle inspection dur- ing the course of the second journey the defendant, according to the order for refer- ence, was unable to produce tachograph 2. Richmond Magistrates Court, United record sheets pursuant to Articles 13 to 15 of Kingdom, has requested the Court of Justice Regulation N o 3821/85. 3 The company and for a preliminary ruling based on the facts the driver relied on the exemption contained set out below. The defendants in the national in Article 4(3) of Regulation N o 3820/85 criminal proceedings are E. Clarke & Sons under which it is not mandatory to operate a (Coaches) Ltd, a coach operator based in tachograph on regular services. The pros- Sydenham, London, and D. J. Ferne, a coach ecuting authority in the main proceedings driver employed by that company. (Vehicle Inspectorate) disputes that the defendants operate regular services and o n that ground considers the exemption to be inapplicable. * Original language: German. 1 — Council Regulation (EEC) N o 684/92 of 16 March 1992 on common rules for the international carriage of passengers by bus ana coach (OJ 1992 L 74, p. 1). 2 — Council Regulation (EEC) N o 3820/85 of 20 December 1985 3 — Council Regulation (EEC) N o 3821/85 of 20 December 1985 on the harmonisation of certain social legislation relating to on recording equipment in road transport (OJ 1985 L 370, road transport (OJ 1985 L 370, p. 1). p. 8).

'Recording equipment shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers 'In the case of or goods by road, except the vehicles referred to in Articles 4 and 14(1) of Regu- lation (EEC) N o 3820/85.'

— regular national passenger services

O n the exemption from this obligation (regular services and special regular services):

which are subject to this Regulation, a ser- — Article 4 of Regulation N o 3820/85 pro- vice timetable and a duty roster shall be vides: drawn up by the undertaking.'

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Special regular services shall include: Occasional services, as defined in Article 2(3) of Regulation N o 684/92, are not exempt from the obligation to operate a tachograph.

(a) the carriage of workers between home and work,

'3.1. Occasional services are services falling neither within the definition of a regular ser- vice nor within the definition of a shutde (b) carriage to and from the educational service. institution for school pupils and stu- dents,

(c) the carriage of soldiers and their families They include: between their state of origin and the area of their barracks,

7. The national court therefore referred the following questions to the Court for a pre- liminary ruling: (c) ...

(d) services mentioned in the Annex to this ' 1 . Are groups of passengers carried on a regulation, single journey between an airport and a hotel via, on occasions, a tourist attraction "speci- fied categories of passengers" for the pur- poses of the application of Article 2(1.2) of Council Regulation (EEC) N o 684/92?

(e) services which do not meet the criteria in (a), (b), (c) and (d), i. e residual services.

2. If the answer to Question 1 is yes, is Article 2(1.2) to be construed so that the car- riage of such passengers on that journey where:

(a) each group is picked up at one point of 3.3 The services referred to in point 3 shall departure and set down at one point of not cease to be occasional services solely destination (including, on occasions, a because they are provided at certain inter- visit to a tourist attraction as part of that vals.' journey);

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10. In accordance with the recitals in the preamble to Regulation N o 3821/85, the obligation to operate a tachograph serves, inter alia, to contribute considerably to road (b) the aggregate of such component parts? safety and to ensure supervision of work and

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13. Thus, the criteria to be fulfilled by a spe- 16. With regard to the criterion of a 'speci- cial regular service are regular carriage of fied category of passengers', the United passengers, a specified route, predetermined Kingdom Government and the Commission stopping points and a specified category of submit that the examples given in Article passengers. 2(1.2) of Regulation N o 684/92 indeed do not constitute an exhaustive list. However, the services provided do not fall within the terms of this provision. The United King- dom Government submits on this point that the examples given in the provision are of journeys repeatedly carried out. The defen- 14. As regards regularity of carriage of pas- dant undertaking, however, provides services sengers, the United Kingdom Government for a given set of passengers only once. The and the Commission take the view that this Commission also points to the fact that pas- condition is met only if there are clearly sengers are carried only on a single journey. defined and definitively laid down travel The factor bringing the defendants' passen- times. There must be a timetable giving pre- gers together as a category, namely the exist- cise indications of journeys. According to ence of a single booking, does not confer the facts of the main proceedings, there are permanent status, as in the examples given in no precise journey times. Journeys are Article 2(1.2) of Regulation no 684/92. dependent on the arrival of an airplane or Those concern workers, school pupils and train; in some cases the driver may have to students and soldiers who retain this status wait for the passengers to arrive. In the case over a considerable period of time. It follows of a block reservation, as in the present case, from all these points, it is submitted, that the departure and arrival times are governed b y defendants cannot claim to be providing a criteria which cannot be determined in special regular service within the meaning of advance. There is thus no possibility of pre- Article 2(1.2) of Regulation N o 684/92. determining the regularity of the transport service.

mentioned in Article 4 and Article 14(1) of (b) the carriage of school pupils and stu- Regulation N o 3820/85 are stated to be dents between home and educational exempt from that obligation. In accordance institution; with Article 4(3) of Regulation N o 3820/85, the exemption applies to vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres. (c) the carriage of soldiers and their families Under Article 14(1) of Regulation N o between their state of origin and the area 3820/85 vehicles used on regular services for of their barracks. the carriage of passengers are exempted in the case of regular national services. Regular passenger services are to be understood as the national carriage of persons as mentioned in Regulation N o 117/66. That Regulation was repealed by Regulation 684/92. Refer- ences to the repealed Regulation are, under Such special regular services may be varied Article 21(2) of Regulation 684/92, to be according to the needs of users. taken as references to the latter Regulation. Article 2(1.1) defines regular services as ser- vices which provide for the carriage of pas- sengers at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points. 19. The criteria for services to be deemed t o Regular services are to be open to all, sub- be special regular services are therefore as ject, where appropriate, to compulsory reser- follows: vation.

— carriage of passengers at specified inter- vals

These criteria must be examined one by one. with the passengers which runs counter to the meaning of the concept of 'carriage of passengers at specified intervals'. In the case of carriage of passengers at specified intervals passengers are guided by the predetermined (a) Carriage of passengers at specified inter- timetable. Such a timetable then retains vals validity for a considerable period of time. In the present case, however, timings may alter from journey to journey since the trips are made from different points of departure to different destinations. Also the stopping 20. Carriage of passengers at specified inter- points may alter according to the reservation. vals can only mean that, on the basis of a Thus, the timings cannot be determined nor more or less binding plan, services are pro- the frequency of the repetition of the jour- vided at repeated intervals. It is apparent neys undertaken by E. Clarke & Sons from the wording itself that the times of the (Coaches) Ltd. services must be governed by specific rules. Likewise it is apparent that the services must be repeated. The meaning and purpose of regular service is precisely that various points are served at specified intervals. Regu- larity also presupposes that a timetable is established in advance and made available t o (b) Specified routes the persons concerned. A further characteris- tic enabling it to be assumed that services are regular is the fact that the timetable must also be adhered to. Regular bus services in town are a typical example of this. The bus drivers must keep to the mandatory travel 22. There may be said to be a specified route plans. It is true that slight delays may occur; only if the route to be covered is clear to all none the less the attempt is made to keep t o passengers before the journey. That is neces- this travel plan. In accordance with the sitated by the fact that there can be carriage explanations of the national court, this is not of passengers at specified intervals only if the the situation in the present case. A kind of routes are also specified. In the case of regu- timetable is indeed produced by the coach lar services it must be clear to the passenger company but it is subject to alteration in a before the start of the journey which route given situation. As the Commission has the bus is to take. In that connection it is not already contended in its observations, the sufficient only to determine the points of bus driver may under certain circumstances departure and destination and possible stop- have to wait a considerable period of time ping points. N o r is it sufficient for the driver, for the arrival of the passengers. prior to the journey, to define the principal route by naming the more important roads. As the defendants themselves have said, it is entirely possible for the driver to use a com- pletely new route where traffic jams or other 21. The driver may then, depending on the similar problems occur. It is true that regular situation, alter at short notice the predeter- services in the ordinary sense may also be mined timetable. In that way the driver forced to alter specified routes on account of enters into a kind of 'dependent' relationship road works or road closures; however such

24. The provision in Article 2(2) of Regu- lation N o 684/92 also militates in favour of the requirement that several stopping points must be stopped at during a journey. This governs shuttle services where passengers are carried by means of repeated outward and (c) Predetermined stopping points return journeys from a single area of depar- ture to a single area of destination. In that connection there is in fact no requirement for intermediate stopping points. The defen- dant coach undertaking points to the interim stops in order to visit tourist attractions. It may be true that certain tourist attractions are frequently stopped at and that passengers are also aware of this programme but they probably do not know precisely where the 23. N o r in regard to the requirement of pre- stopping places are since they are not specifi- determined stopping points may the submis- cally indicated. Since, in the defendants' sub- sions on behalf of E. Clarke & Sons be mission, the route may also be altered o n upheld. Whilst it is true that Article 2(1.1) account of delays, it is entirely possible for merely requires that there be predetermined the notified stops to be effected elsewhere stopping points at which passengers may be than originally planned. But it is a require- picked up or set down, that cannot mean ment of regular services that specific stop- that those stopping points can be airports, ping points are regularly stopped at. If, how- hotels or railway stations, depending on ever, the passenger transport companies which tour party has made a reservation. The determine their stopping points on the basis concept of predetermined stopping points must also be seen in conjunction with car- of agreements made with the tour operators riage of passengers at specified intervals on and they have the possibility of altering specified routes. The stopping points must those stopping points, the service which be determined in advance and must be they provide cannot be said to be a regular stopped at regularly. This is also clear from service.

28. The defendant coach undertaking is of the view that this point does not need to be examined. Since the transport services pro- 26. As is already demonstrated by the word- vided by it are to be regarded as a special ing of Article 2(1.2) ('special regular services regular service, those services cannot at the shall include ...'), the examples given do not same time be regarded also as occasional. constitute an exhaustive list. O n closer examination, however, of the list of examples, it appears, as the Commission has rightly stated, that a characteristic is attrib- uted to the categories mentioned, (workers, students and soldiers) which distinguishes 29. Both the United Kingdom Government them from other passengers over a consider- and the Commission come to the conclusion able period of time. In the case of tourists in their submissions that the services pro- w h o in a single journey are brought from an vided amount to occasional services within airport to a hotel that characteristic is only the meaning of Regulation N o 684/92. The fleetingly present. The categories listed by United Kingdom Government considers that way of example in that article are driven by a service is being provided as defined under the coach undertakings between the prede- Article 2(3.1(b)) of Regulation N o 684/92 termined points repeatedly and regularly and refers, in regard to the notion of a group owing to the characteristic inherent in them. assembled in advance, to the definition con- It is true that under this provision regular tained at paragraph 3.2 of that Article. In the services may be varied according to the Commission's submission, it could possibly needs of users. But that cannot mean that a be such a service but it might also be a ser- different pattern is fixed for each journey in vice coming within Article 2(3.1 (d) or (e)). In the case of a regular service. The rule govern- any event these are occasional services for ing carriage of passengers would be non- the purposes of the Regulation. Both the existent if each journey comprised different United Kingdom Government and the journey times, a different route and different Commission go on to point out that a cer- passengers. tain frequency with which those journeys are

32. The replies to Questions 1, 2 and 4 raised by the national court should then be as follows: 31. It is stated in the findings of the national court that block bookings are made with the defendant undertaking. These block book- ings include picking up the tour parties either from the hotel and bringing them to the airport or picking them up from airports Question 1. and railway stations in order to bring them to their hotels. The tourists are to be set down at the place of destination and are not to be brought back to the point of departure in the context of the same journey. However, it may be inferred from the findings of the national court that the defendant coach undertaking provided tourist services in the Groups of passengers who are conveyed on a form of visits to tourist attractions, entirely single journey between an airport and, occa- within the context of such journeys. In such sionally via a tourist attraction, to a hotel, do a case the application of Article 2(3.1 (b)) not constitute 'specified categories of passen- would be precluded. In that case it would gers' within the meaning of Article 2(1.2) of then be conceivable to apply Article 2(3.1(d)) Regulation N o 684/92.

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Question 2. However, it remains a matter for the national court to determine whether these matters of fact subsist.

Article 2(1.2) of Regulation N o 684/92 is to be construed as meaning that the carriage of passengers on such a journey whereby II. Third question

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36. The Commission and the United King- to be seen in the overall context of the Regu- dom Government first point out that this lation and were provided for because the question from the national court need not be safety aspects associated with the Regulation answered. Since this exemption provision in the examples listed were achievable by applies only to carriage on regular services other means. Since exemptions are to be con- and the journeys undertaken by the defen- strued restrictively, they could not be applied dants may not be subsumed under that con- in the present case. cept, this provision is not applicable in this connection. Therefore, the reply to this question is not relevant to the outcome of the dispute in the main proceedings.

37. In the United Kingdom's submission, it 39. In its settled case-law, the Court of Jus- is moreover undisputed that there is no obli- tice has reiterated that, in interpreting a pro- gation to operate a tachograph in the case of vision of Community law, it is necessary to a 'special regular service', irrespective of consider not only its wording but also the whether the route covered is more or less context in which it occurs and the objects of than 50 km. Therefore, in the present case no the rules of which it is part. 5 question on the interpretation of Article 4(3) arises.

41. The objective pursued by Regulation N o analogous is therefore not possible. Since it is 3820/85, according to the first recital in the the declared objective of the Regulation to preamble thereto, is, in addition to harmon- ensure road safety and to improve working ising the conditions of competition, espe- conditions, an exceptional circumstance may cially improvement of working conditions be presumed to exist only when the precon- and road safety. To this end the Regulation ditions of Article 4 are satisfied. provides for driving and rest periods (Sec- tions IV and V) for drivers who have attained the requisite minimum age (Section III) who are engaged in the carriage of goods by road coming within the scope of the Regulation (Section II). The Regulation pro- 44. Since, however, as has been shown, the hibits payment related to distance travelled carriage of passengers by the defendant and/or the amount of goods carried where coach undertaking does not take place in the such payments endanger road safety (Section framework of a regular service, the undertak- VI). Exceptions are allowed only to a limited ing cannot rely on the exemption provided extent (Section VII) and, for the purposes of for in Article 4 of Regulation N o 3820/85. implementation, the Regulation contains provisions on control procedures and penal- ties (Section VIII).

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C — Conclusion

47. I therefore propose that the questions referred for a preliminary ruling should be answered as follows:

(1) Groups of passengers who are conveyed on a single journey between an air- port and, occasionally via a tourist attraction, to a hotel, do not constitute 'specified categories of passengers' within the meaning of Article 2(1.2) of Regulation (EEC) N o 684/92.

(2) Article 2(1.2) of Regulation N o 684/92 is to be construed as meaning that the carriage of passengers on such a journey whereby

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