C-47/97

JUDGMENT OF 30. 4. 1998 — CASE C-47/97

J U D G M E N T O F T H E C O U R T (First Chamber) 30 April 1998 *

In Case C-47/97,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by Richmond Magistrates' Court (United Kingdom) for a preliminary ruling in the criminal pro- ceedings before that court against

E. Clarke & Sons (Coaches) Ltd and D . J. Ferne

on the interpretation of Article 2 of Council Regulation (EEC) N o 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (OJ 1992 L 74, p. 1), and of Article 4(3) of Council Regulation (EEC) N o 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p . 1),

after considering the written observations submitted on behalf of:

— E. Clarke & Sons (Coaches) Ltd and D. J. Ferne, by Christopher Hough, Bar- rister, instructed by Wedlake Saint, Solicitors,

— the United Kingdom Government, by John E. Collins, Assistant Treasury Solicitor, acting as Agent, assisted by Sara Masters, Barrister,

— the Commission of the European Communities, by Frank Benyon, Principal Legal Adviser, and Laura Pignataro, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of E. Clarke & Sons (Coaches) Ltd and D. J. Ferne, the United Kingdom Government and the Commission at the hearing on 4 December 1997,

(EEC) N o 684/92 of 16 March 1992 on common rules for the international car- riage of passengers by coach and bus (OJ 1992 L 74, p. 1), and of Article 4(3) of Council Regulation (EEC) N o 3820/85 of 20 December 1985 on the harmonisa- tion of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).

2 Those questions were raised in criminal proceedings brought against E. Clarke & Sons (Coaches) Ltd (hereinafter 'Clarke') and Mr D. J. Ferne for infringement of the obligation to use recording equipment, as provided in Article 3(1) of Council Regulation (EEC) N o 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p . 8), which provides:

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

3 Article 14(2) of Regulation N o 3821/85 provides:

'The undertaking shall keep the record sheets in good order for at least a year after their use and shall give copies to the drivers concerned who request them. The sheets shall be produced or handed over at the request of any authorised inspecting officer.'

4 Article 15(7) of that regulation provides:

6 Article 4 of that regulation provides, inter alia:

'This Regulation shall not apply to carriage by:

3. vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres;

...'

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JUDGMENT OF 30. 4. 1998 — CASE C-47/97

1.2. Services, by whomsoever organised, which provide for the carriage of speci- fied categories of passengers to the exclusion of other passengers, in so far as such services are operated under the conditions specified in 1.1., shall be deemed to be regular services. Such services are hereinafter called "special regular services".

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Special regular services shall include:

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

(b) carriage to and from the educational institution for school pupils and students,

JUDGMENT OF 30. 4. 1998 — CASE C-47/97

Outside the areas of departure and destination, groups may be picked up and set d o w n respectively at up to three different places.

The area of departure and destination and the additional picking-up and setting- d o w n points may be within the territory of one or more Member States.

2.3. For the purposes of point 2, a group assembled in advance is a group for which a body or person responsible in accordance with the rules of the State of establishment has taken charge of conclusion of the contract or collective payment of the services or has received all reservations and payments before departure.

3. Occasional services

3.1. Occasional services are services falling neither within the definition of a regu- lar service nor within the definition of a shuttle service.

— which also cover, in those cases where there is a stay at the place of destina- tion, accommodation or other tourist services not ancillary to carriage o r accommodation;

...'

9 Mr Ferne was employed as a coach driver by Clarke, established in Sydenham, near London, whose main business is the operation of tourist coaches. In January 1995 Clarke was chosen by a tour operator to convey tourists between airports, stations, hotels and tourist attractions.

10 O n 9 July 1995 Mr Ferne was driving a coach belonging to Clarke on his way to collect a group of tourists at a London hotel and to convey them to the airport. At the airport he took up another group of tourists whom he conveyed to another London hotel via Hampton Court, a tourist attraction. Each component part of the journey was less than 50 km, but the aggregate of those parts was more than 50 km.

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(b) the same or similar journey is repeated on a number of occasions pursuant to a block reservation made by a tour operator;

(c) the precise route to be taken is not pre-determined;

is a "special regular service" within the meaning of that Article?

3. If the answer to Question 2 is yes, is Article 4(3) of Council Regulation (EEC) N o 3820/85 to be construed so that the distance of "the route covered by the ser- vice in question" is to be calculated by reference to:

JUDGMENT OF 30. 4. 1998 — CASE C-47/97

occasions, at a tourist attraction, where the precise route to be taken is not prede- termined, constitutes a regular service within the meaning of Article 4(3) of Regu- lation N o 3820/85.

15 For the definition of regular services, reference must be made, by virtue of Article 1(7) of Regulation N o 3820/85 and Article 21(2) of Regulation N o 684/92, to Article 2(1) of the latter regulation.

16 That provision distinguishes between regular services and special regular services. The former are open to all and provide for the carriage of passengers at specified intervals along specified routes, passengers being taken up and set down at prede- termined stopping points. Special regular services are provided under the same conditions, but only for specified categories of passengers. It must therefore be considered whether a transport service such as that at issue in the main proceed- ings satisfies those conditions.

17 First, the condition as to the provision of the service 'at specified intervals', in the sense contemplated by Regulation No 684/92, requires the frequency of the service to be specified with precision and to be characterised by a degree of regularity. The existence of a timetable which is available to potential users of the service is indica- tive of a specified frequency.

18 In the present case it is clear from the order for reference that the transport service at issue in the main proceedings is organised in accordance with the needs of tour operators. The frequency of the service is therefore not regular in nature and is not predetermined by the transport undertaking but is dependent on reservations made by customers.

22 It is not sufficient, on the other hand, for there merely to be a group of passengers assembled in advance. Such a group may form the subject of a shuttle service, as defined in Article 2(2) of Regulation N o 684/92.

23 In the case in the main proceedings, the transport service is on each occasion car- ried out for a different group of passengers, the only common element being that they all made reservations for a journey with the same tour operator. Such passen- gers do not therefore belong to a single specified category.

24 In light of the foregoing, the reply to the first and second questions must therefore be that a passenger transport service, supplied on a number of occasions pursuant to a block reservation made by a tour operator and providing for a single journey from an airport to a hotel with a stop, on occasions, at a tourist attraction, where the precise route to be taken is not predetermined, does not constitute a regular service within the meaning of Article 4(3) of Regulation N o 3820/85.

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The third question

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O n those grounds,

T H E C O U R T (First Chamber),

in answer to the questions referred to it by Richmond Magistrates' Court by order of 3 September 1996, hereby rules:

A passenger transport service, supplied on a number of occasions pursuant to a block reservation made by a tour operator and providing for a single journey from an airport to a hotel with a stop, on occasions, at a tourist attraction, where the precise route to be taken is not predetermined, does not constitute a regular service within the meaning of Article 4(3) of Regulation N o 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating t o road transport.