C-193/99

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OPINION OF MR ALBER — CASE C-193/99

period. That break may be replaced by 9. The relevant provisions of the articles several breaks of at least 15 minutes each. referred to are in the following terms:

6. The daily rest period must consist of at 'Article 6 least 11 consecutive hours (Article 8(1), first subparagraph). It may be taken in the vehicle, provided that the vehicle is fitted with a bunk and is stationary (Article 8(7)). 1. (first subparagraph)...

A driver must, after no more than six daily driving periods, take a weekly rest period 7. After no more than six daily driving as defined in Article 8(3). periods, a driver must take a weekly rest period (Article 6(1), second subparagraph). This extends the daily rest period from 11 hours to 45 hours. That period may be reduced, provided that it is compensated by an equivalent rest taken en bloc (Arti- The weekly rest period may be postponed cle 8(3)). until the end of the sixth day if the total driving time over the six days does not exceed the maximum corresponding to six daily driving periods.

8. In the case of the international carriage of passengers, and provided that Member In the case of the international carriage of States so decide with respect to national passengers, other than on regular services, passenger services within their territory, the terms "six" and "sixth" in the second other than regular services, twelve daily and third subparagraphs shall be replaced driving periods may be worked, instead of by "twelve" and "twelfth" respectively. six, before the driver is required to take his weekly rest period (Article 6(1), fourth and fifth subparagraphs). In such cases, the weekly rest period may be postponed, under Article 8(5), to the next following week 'and added on to that second week's Member States may extend the application weekly rest'. of the previous subparagraph to national

4.... 1. In each period of 24 hours, the driver shall have a daily rest period of at least 11 consecutive hours, which may be reduced to a minimum of nine consecutive hours not more than three times in any one week, on condition that an equivalent period of rest be granted as compensation before the 5. In the case of the carriage of passengers end of the following week. to which Article 6(1), fourth or fifth sub- paragraph, applies, the weekly rest period may be postponed until the week following that in respect of which the rest is due and added on to that second week's weekly rest. On days when the rest is not reduced in accordance with the first subparagraph, it may be taken in two or three separate periods during the 24-hour period, one of which must be of at least eight consecutive hours. In this case the minimum length of the rest shall be increased to 12 hours. 6. Any rest taken as compensation for the reduction of the daily and/or weekly rest periods must be attached to another rest of at least eight hours and shall be granted, at the request of the person concerned, at the vehicle's parking place or driver's base. 2....

3. In the course of each week, one of the rest periods referred to in paragraphs 1 and 7....'

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OPINION OF MR ALBER — CASE C-193/99

10. As indicated in point 9 above, the — 'collegato al riposo' English language version of Article 8(5) reads:

— 'läggas samman'

HUME

III— Facts total driving time of 41 hours 45 minutes. He then commenced a rest period of 36 hours 30 minutes away from his base.

13. The facts of the case are set out in the 17. On 5 January 1996 an information was order for reference. This states that laid against Mr Hume in the following Mr Hume was employed as a coach driver. terms: The nature of his duties was such that the fourth and fifth subparagraphs of Arti- cle 6(1) and Article 8(5) of Regulation No 3820/85 were applicable to him. '[The Defendant] on 25 July 1995 at Ferry- hill in County Durham or elsewhere did drive a vehicle to which Council Regulation (EEC) No 3820/85 applies and failed after no more than twelve daily driving periods to take two weekly rest periods back to back as required by Article 6(1) as defined 14. During the period from 09.15 hours on by Article 8(3) of the said applicable Com- 16 July 1995 to 16.45 hours on 24 July munity rules, contrary to section 96(11 A) 1995 his total driving time was 38 hours 30 of the Transport Act 1968.' minutes. Between 24 July 1995 and 26 July 1995 Mr Hume took a rest period of 38 hours 30 minutes.

19. The prosecution states in the alterna- tive that, if the rest period in respect of the week commencing 17 July is regarded as having been postponed to 24 July, and even if Mr Hume was not obliged to take his rest period in that week together with the IV — The questions referred postponed rest period, he was not entitled further to postpone his rest period for the week commencing 24 July, but was obliged to take two weekly rest periods in that week. 22. The Sedgefield Magistrates' Court, United Kingdom, considers that an inter- pretation of Article 8 of the regulation is necessary in order to enable it to determine the case, and has consequently referred the following questions to the Court for a preliminary ruling: 20. In his defence, Mr Hume submitted that he had taken a sufficient weekly rest during the week commencing 10 July 1995, although that rest had been shortened and therefore needed to be supplemented by a compensatory rest pursuant to Article 8(6) of Regulation No 3820/85, which was (1) Where, pursuant to Article 8(5) of taken on 26 and 27 July. Accordingly, he Council Regulation (EEC) took an acceptable weekly rest in respect of No 3820/85, a driver who is entitled the week commencing 17 July on 24 and to do so elects to postpone his weekly 25 July, by way of postponement pursuant rest period until the week following to Article 8(5). He further took an accep- that in which it is due, must the driver table weekly rest in respect of the week take two weekly rest periods, consecu- commencing 24 July on 4 and 5 August, by tively and without break between way of postponement pursuant to Arti- them, in that following week? cle 8(5).

25. The French Government considers that 23. The United Kingdom Government the present case involves a problem of regards it as convenient to begin with the interpretation relating solely to the English second question, since unless Mr Hume language version of the regulation. The was entitled to postpone the rest due in French text of the provisions in issue raises the second week, he contravened the reg- no difficulties of interpretation or applica- ulation. It submits that Article 8(5) of the tion. It is apparent from the French word- regulation can only be interpreted as mean- ing of Article 8(5) that the postponed rest ing that the rest period in respect of the period and the rest period in respect of the second week, to which the rest period for second week must be taken together, that is the previous week is to be 'added', must to say, without interruption. also be taken in that second week. That interpretation is borne out by the wording and logic of the provision, which is designed to preclude the constant rolling- over of rest periods from one week to the 26. The aim of Regulation No 3820/85 is next. to harmonise conditions of competition and to improve working conditions and road safety. The lengthening of weekly rest periods is beneficial to social progress and to road safety. Consequently, Article 8(5) 24. If, in the present case, the answer to the can only be interpreted as meaning that, second question is as set out above, the first where two rest periods are to be taken in question need not be considered. In so far the same week, they may not be taken as such consideration is nevertheless neces- independently of each other. In view of that sary, the United Kingdom Government interpretation, the second question referred submits that where, on account of a weekly by the national court does not call for a rest period having been postponed to the reply. following week, two rest periods must be taken in that following week, it is not necessary in every case for the two rest periods to be taken consecutively; that will only be necessary in order to ensure that 27. The Portuguese Government submits two rest periods are taken in the second that the provisions concerning weekly rest week. The rationale for this is to be found periods contained in Article 8(5) constitute

28. In the Commission's view, the English language version of Article 8(5) clearly indicates that the two weekly rest periods are to be taken together, that is to say, without interruption. This is further con- 30. The first point to note is that Mr Hume firmed by the fact that the regulation is charged with having driven a vehicle on contains no provision dealing with the 25 July 1995 without having taken the question whether such weekly rest periods weekly rest periods prescribed. However, may be interrupted or postponed or, if that the national court states that, between is possible, with the consequential effects of 24 July and 26 July 1995, Mr Hume took such interruption or postponement. Such a rest period totalling 38 hours and 30 an interpretation is, moreover, borne out by minutes. Since (a) it is for the court making the other language versions of the regula- the reference to establish the facts and tion. chronology of the case before it and (b) the answers to the questions referred in that connection do not depend on whether Mr Hume drove a vehicle on 25 July 1995 or took a rest on that day, I do not 29. The spirit and purpose of the regulation propose to consider this point in any detail. include the promotion of social progress and road safety. The attainment of that objective is furthered, in particular, by the fixing of weekly rest periods, with the result that a broad interpretation cannot be applied to Article 8(5). Given the very precise and comprehensive terms in which the rules concerning the taking or post- 31. For the purposes of answering the first ponement of weekly rest periods are question, the decisive factor is the inter- framed, Article 8(5) can only be interpreted pretation to be applied to the wording of as meaning that the postponed weekly rest Article 8(5), in particular the phrase 'added period and the rest period in respect of the on to that second week's weekly rest'. 3 second week are to be taken together and without interruption. Since that is the answer to be given to the first question 3 — For the other language versions, see point 11 above.

33. That interpretation is supported not only by the wording in question but also by the very fact that that phrase is included in the provision. If it were possible to take the two rest periods separately, and had that been the intention of the legislature, it would have been enough to provide that 37. The 17th recital shows that the regula- the rest period in respect of the second tion was enacted in order to lay down, with week may be postponed. regard to rest periods, the minimum dura- tion of, and other conditions governing, the daily and weekly rest periods of crew members. In adopting the regulation, the Council took the view — according to the 34. Thus, the wording of Article 8(5) runs 19th recital — that 'it is beneficial to social counter to the view put forward by the progress and to road safety to lengthen defendant in the main proceedings, even weekly rest periods, while enabling these though the English language version is not periods to be shortened, provided that the so clear and precise as to remove all doubt driver can compensate for parts of his rest concerning its interpretation. period which have not been taken in a place of his choosing within a given time.'

35. The Court has consistently held that, where a provision is insufficiently clear and unequivocal, its scope must be determined in the light of the objectives of the act in which it is contained and with regard to the legal context in which it is situated. 4 38. Article 8(3) therefore provides that, in principle, a weekly rest period totalling 45 consecutive hours is to be taken. According 4 — See the judgments in Case 47/79 Nehlsen v Bremen [1979] to Article 8(3), that rest period may be ECR 3639, Case 133/83 Regina v Scott [1984] ECR 2863 and Case C-116/92 Charlton and Others [1993] reduced to a minimum of 36, alternatively ECR I-6755, and in Case C-6/98 ARD [1999] ECR I-7599. 24, consecutive hours. However, that

4 1 . However, Mr Hume's submission would result in a wide interpretation, and would run counter to the general objectives of the regulation. 44. Moreover, the attainment of the objec- tive of removing distortions of competition is dependent on the scrupulous fulfilment by all undertakings of all of the obligations imposed on them by the regulation. To 42. In the context of the regulation, road permit undertakings regularly to plan their safety is to be increased by imposing strict schedules in such a way as to exceed the limits on driving times and by laying down driving times prescribed would seriously the rest periods to be taken. Social progress jeopardise the attainment of the objective

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pursued, since this could undermine the rest periods consecutively and without entire system of limited driving times. interruption in that following week.

50. The costs incurred by the French, Portuguese and United Kingdom Govern- ments and by the Commission of the 47. Consequently, the answer to be given to European Communities, which have sub- the first question referred by the national mitted observations to the Court, are not court must be that where, pursuant to recoverable. Since these proceedings are, Article 8(5) of Regulation No 3820/85, a for the parties to the main action, a step in driver elects to postpone his weekly rest the proceedings pending before the national period until the week following that in court, the decision on costs is a matter for which it is due, he must take two weekly that court.

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VIII— Conclusion

51. On the basis of the foregoing, I propose that the answer to be given to the question referred should be as follows:

Where, pursuant to Article 8(5) of Regulation (EEC) No 3820/85, a driver elects to postpone his weekly rest period until the week following that in which it is due, he must take two weekly rest periods consecutively and without interruption in that following week.