C-297/99

1. By order received on 6 August 1999, the operate transport services within a Member Nottingham Magistrates' Court referred to State', and, under paragraph 1(c) of that the Court of Justice for a preliminary article, 'any other appropriate provisions'. ruling — in proceedings brought by the That wording allowed the Council to bring Vehicle Inspectorate, an executive agency into being provisions of a social nature or of the United Kingdom Ministry of Trans- in any event relating to public safety in the port, against a passenger road transport transport sector, in order to pursue the company and a number of drivers objectives of the EEC Treaty — set out in employed by it — a complex question the same Article 75 — in accordance with concerning the interpretation of certain principles of a general character which can provisions of Council Regulation (EEC) be inferred, inter alia, from what was then No 3821/85 of 20 December 1985 on Article 118 of the EEC Treaty (which recording equipment in road transport. 2 became, after the entry into force of the Treaty on European Union, Article 118 of the EC Treaty and then, after the entry into force of the Treaty of Amsterdam, was moved to the section comprising Arti- cles 136 EC to 143 EC). That possibility, already inherent in the system, was The relevant Community legislation expressly recognised in the wording given to Article 75(1)(c) of the EC Treaty by the Treaty on European Union, which provided that the Council could adopt 'measures to 2. According to the original wording of improve transport safety'. Article 75 of the EEC Treaty, before the entry into force of the Single European Act, the Treaty on European Union and the Treaty of Amsterdam (pursuant to which it has become Article 71 EC), the Council was entitled to adopt — on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament — measures con- 3. On the basis of the original wording of cerning 'common rules applicable to inter- Article 75 of the EEC Treaty, various national transport' and 'the conditions regulations were adopted as from the end under which non-resident carriers may of the 1960s containing provisions of a social or protective nature in the field of transport, which were subsequently 1 — Original language: Italian. brought together in a single text by Council 2 — OJ 1985 L 370, p. 8. R e g u l a t i o n (EEC) N o 3 8 2 0 / 8 5 of

20 December 1985 on the harmonisation minutes, during which drivers may not of certain social legislation relating to road carry out any other work. It should be transport. 3 That regulation, which is noted, however, that under paragraph 4 of applicable to the carriage by road of that article, waiting time and time not passengers and of goods, 4purports both devoted to driving spent in a vehicle in to ensure adequate social protection of motion, a ferry, or a train, is not to be drivers and to guarantee a high level of regarded as 'other work'. road safety, 5 but without adversely affect- ing the management of transport under- takings. 6 The attainment in practice of the two objectives just mentioned — which are particularly important in passenger transport — is entrusted by the regulation in question to a set of provisions relating to, among other things, driving periods, 5. Article 1(5) of Regulation No 3820/85 breaks and rest periods for drivers (Arti- defines rest as 'any uninterrupted period of cles 6 to 9 of Regulation No 3820/85). at least one hour during which the driver may freely dispose of his time'. Under Article 8 of the same regulation, the daily rest period must as a rule last for at least 11 consecutive hours in each period of 24 hours, whilst the weekly rest period must normally last for at least 45 consecutive hours in each working week. Daily rest may be interrupted, within the limits and under the conditions laid down in Article 9 of the regulation, where a driver accom- panies a vehicle which is transported by a 4 . U n d e r A r t i c l e 6 of R e g u l a t i o n ferryboat or train. No 3820/85, the daily driving period — defined as the total driving period between two rest periods — must not, as a rule, exceed 9 hours, and, over a period of two consecutive weeks, the total driving period should never exceed 90 hours. Article 7 goes on to provide that the daily driving period must be interrupted by a break — 6. In order to ensure due compliance with not forming part of any daily rest period — the above social provisions, the Commu- which, as a rule, must last at least 45 nity legislation provides, as a rule, for the use of special recording equipment for road transport, at present covered by Regulation No 3821/85, which brought together in a 3 — OJ 1985 L 370, p. 1. 4 — This can be easily inferred from Article 1(1) according to single measure all the earlier provisions in which 'carriage by road' includes 'any journey made on that field. The equipment in question roads open to the public of a vehicle, whether laden or not, used for the carnage of passengers or goods'. (commonly known as a 'tachograph') 5 — That twofold objective, which is not set out expressly in the must — pursuant to Article 3 of Regula- wording of Regulation No 3820/85, is clear enough from a reading of the 14th, 19th, 21st and 22nd recitals in its tion No 3821/85 — be installed and oper- preamble, where there are references to 'social protection' ated in all vehicles used for the carriage of and 'road safety'. 6 — See, to that effect, the 15th recital. passengers or goods by road which are

Drivers must keep on board the vehicle — and produce to any inspecting officer — the record sheets for the current working 7. Articles 13 to 16 of Regulation week, after which the sheets are to be given No 3821/85 govern use of the recording to the employer, who must keep them in equipment. According to Article 13, 'The good order for at least a year after their use, employer and drivers shall be responsible producing them at the request of any for seeing that the equipment functions authorised inspecting officer (Articles 14(2) correctly'. To that end, Articles 14 and 15 and 15(7) of Regulation No 3821/85). thereof provide that the employer is to issue to drivers record sheets which are to be used in the equipment installed in the vehicle and that drivers are to use those sheets 'every day on which they are driving, starting from the moment they take over the vehicle', without withdrawing them 8. Article 17(1) of Regulation No 3820/85 'before the end of the daily working period' and A r t i c l e 19(1) of R e g u l a t i o n (Article 15(2)). For the purposes of this No 3821/85 provide that the Member case, it is relevant to note that the second States are to adopt the provisions necessary indent of Article 15(3) of Regulation to give effect to the two regulations, No 3821/85 provides that drivers are under imposing penalties in the event of non- an obligation to record 'separately and compliance. In the case of the United distinctly' on the appropriate sheets, using Kingdom — the Member State in which the equipment or manually, the following this case arose — the provisions in ques- periods of time: 7 tion are contained in section 97 of the Transport Act 1968, which deals with the penalties to be applied for non-observance of the conditions applicable to the use of the recording equipment covered by Arti- cles 13 to 16 of Regulation No 3821/85. (a) 'driving time'; 8 — 'Periods of availability' include: waiting time, namely the time when drivers are required to stay at their place of work; time spent beside a driver whilst the vehicle is in 7 — Defined in Regulation No 3820/85. motion; time spent on a bunk while the vehicle is in motion.

9. The English company Skills Motor Coa- ches Ltd (hereinafter 'Skills'), established in Nottingham, is a passenger coach operator providing regular services and charter ser- 11. Skills's record sheets and duty rosters vices. For that purpose, it uses drivers who were subjected to a comparative examina- live in various parts of the United Kingdom tion by the Vehicle Inspectorate, an execu- and asks them to take over coaches at tive agency of the United Kingdom Depart- places other than where they live and other ment of Transport, which noted therein a than the headquarters of the company, in number of irregularities in relation to the order to relieve drivers who have comple- drivers B.J. Farmer, C.J. Burley and B. Den- ted their daily or weekly driving periods. To man in September and December 1997. that end, Skills specifies the place where Those irregularities may be divided into each driver's driving duties are to com- two groups: the first involves Messrs mence and the place where they are to Farmer and Burley and relates to the finish, and drivers may freely choose how commencement of their working time, they reach the place where they take over whilst the second involves Mr Denman the coach: if a driver lives near the pick-up and relates to the classification assigned to point he may use a vehicle owned by Skills the work done by him. for the night or day before, or alternatively use his own car, possibly coming to an arrangement with the driver he is relieving, or spend the night at the pick-up point under arrangements made by his employer with a hotel. In general, Skills drivers choose how they are to reach the pick-up point according to their social and family 12. The first group of irregularities ('Cate- requirements and depending on how far the gory A') discovered by the Vehicle Inspec- locations in question are from where they torate involves discrepancies between the live. Their only obligation is to be physi- information on the record sheets and that cally able to pick up the coach at the place in the duty rosters regarding the actual and time specified by Skills. commencement of work by Messrs Farmer and Burley, discovered during a check to verify compliance with the provisions of Regulation No 3820/85 concerning the maximum working time for drivers. In particular, on the tachograph record sheets for 9, 11, 12 and 14 September 1997 and 12 December 1997 there was no men- tion — under the heading 'other periods 10. Skills's coaches are fitted with the of work' — of periods spent by the two recording equipment prescribed by Regula- drivers in question in travelling from where

14. After discovering those irregularities, the Vehicle Inspectorate prosecuted Skills and the three abovementioned drivers in the Nottingham Magistrates' Court for infringement of the relevant provisions of Regulations Nos 3820/85 and 3821/85, and section 97 of the Transport Act 1968. 13. The second group of irregularities In its defence, Skills submitted that, as ('Category B') discovered by the Vehicle Community law stands, the drivers and Inspectorate relates to the precise terms in their employers were not under any obliga- which the work done by Mr Denham on tion to record, as driving time and other 18 December 1997 was described. On that periods of work, periods of time spent by date, he was assigned to perform, between drivers in travelling from their homes to the 07.15 and 09.45, a regular service — point where they were to take over the comprising the transfer of disabled children tachograph coach and in carrying out and adults over a specific route not exceed- regular services not subject to the Commu- ing 50 km — which was not subject to the nity rules.

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OPINION OF MR SAGGIO — CASE C-297/99

The question referred to the Court the employee travels at a time and in a manner of his own choosing;

15. In the course of the abovementioned proceedings, Nottingham Magistrates' Court decided to refer the following ques- (ii) a period of time spent performing tion to the Court of Justice for a prelimin- driving or other duties which are ary ruling: exempt from the requirement to instai and use vehicle recording equipment in the circumstances set out in Category B above.'

The first part of the question

18. In the light of what has been said so far, it is possible to give an immediate answer to the first part of the question, which is 17. In the light of those aims, the working concerned with the driver's obligation to times and rest periods referred to by both record 'all other periods of work' within the regulations in question are not in fact the meaning of Article 15(2) and (3) of relevant as far as remuneration is con- Regulation No 3821/85, to the effect that cerned, in that they are not classifiable as a that obligation extends to periods of time limit linked to the payment of wages or which the driver needs to spend in travel- wage increases. 12 On the contrary, they ling to take over a vehicle which is subject serve, in a manner consistent with the to the requirement to use vehicle recording requirement of guaranteeing safety for equipment and is located at a point other drivers, passengers and road traffic in than where he lives or where his employer general, to spread working time within has his operating centre. drivers' working days and weeks, without the possibility of financial concerns encouraging drivers (or their employers) to drive vehicles beyond reasonable limits of human endurance. Moreover, in the order for reference the national court made it clear that all the Skills's drivers 'are paid 19. It must first be observed that neither by reference to a fixed weekly/daily rate Articles 6 to 9 of Regulation No 3820/85 nor Article 15 of Regulation No 3821/85 define the expression 'all other periods of 10 — Van Swieten, paragraph 22. work' included by the latter regulation 11 — Ibid-, paragraph 23. among the periods of time covered by the 12 — This interpretation is confirmed by Article 10 of Regula- tion No 3820/85, according to which 'Payments to wage- earning drivers, even in the form of bonuses or wage supplements, related to distances travelled and/or the amount of goods carried shall be prohibited'. 13 — Order for reference, paragraph 8.

21. Clarification in that regard has been provided by the judgment in Michielsen and GTS, 15in which the Court, in response to a question from a Belgian court con- cerning the meaning and temporal limits of 20. In Van Swieten, cited above, the Court the term 'daily working period' used in interpreted the expression 'each period of Article 15(2) of Regulation No 3821/85, 24 hours' in Article 8(1) of Regulation made it clear that that expression cannot be No 3820/85 ('in each period of 24 hours, regarded as a synonym of 'other periods of the driver shall have a daily rest period of at work', the term used in paragraph 3 of that least 11 consecutive hours...') as meaning article. The first term 'refers to the entire 'any period of 24 hours commencing at the working day in the sense of an uninter- time when the driver activates the tacho- rupted span of time, whereas the latter only graph following a weekly or daily rest covers the time at which the driver is period'. 14 Now, since, according to Arti- actually engaged in activities which may cle 15(2) of Regulation No 3821/85, dri- have an impact on his driving, including the vers are required to use record sheets (in driving time'. 16 Therefore, the term 'daily other words, activate the tachograph) from working period' embodies within it the the moment when they take over the more limited concept of 'all other periods vehicle and to withdraw them at the end of work', in addition to 'driving time' and of the daily working period, it would seem 'periods of availability', as well as breaks in that the Court's pronouncement embodies work and daily rest periods. 17 In order to the principle that, between periods of rest determine the starting point and the end of and periods of work, there can be no the daily working period, thus defined, the intermediate period that may be described in other terms, such as that used by the 15 — Case C-394/92 [1994] ECR I-2497. 16 — Michielsen and GTS, paragraph 14. 17 — Provided that they do not exceed one hour: ibid., 14 — Van Swieten, paragraph 27. paragraphs 21 to 23.

Court refers to the criteria expounded in point for a tachograph vehicle certainly Van Swieten: that period commences at the cannot be brought within the scope of the time when, following a weekly or daily rest term 'rest period' used in Article 8 of period, the driver activates the tachograph Regulation N o 3820/85 and Arti- and ends when a new daily rest period cle 15(3)(d) of Regulation No 3821/85. In begins. 18 that connection, the general definition of 'rest' contained in Article 1(5) of Regula- tion No 3820/85 must be regarded as applicable also in the context of Regulation No 3821/85 by virtue of the reference in Article 2 of the latter to the definitions given in the former. According to that definition, 'rest' means 'any uninterrupted 22. On the basis of a comparison of the period of at least one hour, during which two judgments mentioned, I believe that the driver may freely dispose of his time'. four criteria can be propounded, in the Now, in the context of the provisions just following terms: (a) the expression 'other considered, the journey from home to work periods of work' is positive in character does not appear to allow the driver freely to and covers all periods when the driver is dispose of his time. On the contrary, that actually active, which may influence his journey represents a period of time during driving; (b) that term falls within the wider which 'the driver is obliged to account to concept of 'daily working period', which the company for the use of his time', 19 an refers to the driver's entire working day as a obligation which clearly relates to the result continuous span of time; (c) the latter to be achieved, consisting in ensuring that period commences when the driver acti- he is present at the pick-up point previously vates the tachograph, after a rest period; (d) specified by the employer. The journey in the daily working period is normally pre- question clearly has an impact on the ceded and followed by rest periods. Those driver's state of tiredness, subjecting him are the criteria which must be applied in to stress which inevitably has an adverse considering the problem of how to describe impact on his physical and mental effec- periods of time spent by a driver prepara- tiveness at the time when he takes over the tory to taking over a vehicle fitted with tachograph vehicle. 20 That is immediately a tachograph, located at a place remote clear where the driver uses his own vehi- from his home or his employer's operating cle — as in the case of Mr Burley in the centre. main proceedings — in order to reach the

24. Classification as rest having been ruled out, the period of time spent by a driver in reaching the pick-up point for the tacho- graph vehicle can easily be brought into the general category of 'daily working period', as defined in Micbielsen and GTS. Having 26. The first criticism is based on a reading regard to the various components of the of Article 7(4) of Regulation No 3820/85. latter, only the term 'other periods of work' That provision, after establishing the prin- is appropriate to describe the journey from ciple that the driver may not carry out 'any home to work at issue here, since the other other work' during breaks from driving, terms used in Article 15(3) of Regulation states that 'For the purposes of this article, No 3821/85 ('driving period', 'period of the waiting time and time not devoted to availability', 'break in work', 'rest period') driving spent in a vehicle in motion, a ferry manifestly relate to other situations. More- or a train shall not be regarded as "other over, in the abovementioned judgment the work"'. Can it be concluded that that Court gave a definition of 'other periods of provision lays down a general principle 21 work' which can without difficulty be whereby a driver who is travelling in a applied to the journey at issue here: that moving vehicle, but not driving it, is as a definition — as pointed out earlier — in rule not working? I am inclined to say that fact covers the 'periods when the driver is it cannot. As worded, the provision in actually active, which may influence his question relates solely and exclusively to driving'. The driver's journey from home to breaks in driving, and is inspired by a work, in a vehicle driven by him or by others, falls, in my opinion, within that broad definition if it is borne in mind that 21 — A principle which can also be deduced from Article 9 of such a journey will inevitably have reper- Regulation No 3820/85, according to which a driver's cussions — in practice, merging with it — daily rest may, under certain conditions, be interrupted if he is accompanying a vehicle on a ferryboat or train, on the driving time spent by that driver in provided that the daily rest thus interrupted is increased by two hours. Interruptions on board a vessel or train the tachograph vehicle. therefore form part of 'daily rest'.

27. The second criticism concerns the dif- ficulty of distinguishing between a driver's 28. The third criticism concerns the Court's journey from home to work and his daily position regarding commencement of the and weekly rest periods. The interpretation daily work period. It has been submitted I have suggested is based on the view that that the Van Swieten and Michielsen and the driver leaves his home and goes to the GTS judgments presuppose that any period pick-up point taking the most logical route, of work of a driver — whether driving thereby minimising travel time by using time or other work time — must com- appropriate means of transport, but what is mence when the driver activates the tacho- the legal position if the driver intentionally graph, and that before that time there can extends the normal distance or leaves his only be a (weekly or daily) rest period, with home before the specified time or, worse the result that the time spent by the driver still, goes direct to the pick up point from a in travelling from his home to the pick-up place — not his home — where he was point cannot constitute working time, and spending holidays? I do not deny that that there is therefore no obligation to enter treating as working time the time taken it on the tachograph record sheets. That for a driver to travel from home to work interpretation of the two judgments in may involve practical difficulties. However, question seems to me to be unreasonably overriding importance must be attached to reductive. The Court, in my opinion, had in the public interest in ensuring that the mind the normal case of a driver who lives driver spends his driving time in an opti- near his workplace and therefore, in defin- mum state of fitness, so as to ensure that ing commencement of the work period, it

used a formula based on ordinary experi- observes in that connection 25 that a dis- ence and the course of events, rather than tinction must be drawn between a case in seeking to place an insuperable barrier to which a driver has received such instruc- the inclusion within daily working time of tions from the employer and a case in other periods of activity, not classifiable as which there are no instructions at all and rest, spent by the' driver before taking over infers that only in the first case — that is the vehicle. In its observations, 22 the Com- to say, where instructions are given — can mission correctly interpreted Article 15(2) the journey from home to work be of Regulation No 3821/85 as not excluding described as falling within 'other periods the possibility of recording periods of time of work' and therefore be recorded on the occurring before takeover of the vehicle. tachograph, whereas in the second case — That interpretation — which I endorse — that is to say, where there are no instruc- is also favoured, in their observations, by tions — that journey should be treated in the United Kingdom 2 3 and Switzerland. 2 4 the same way as daily rest periods. The Accordingly, the third criticism must also Commission's view is based essentially on be rejected. Article 1(5) of Regulation No 3820/85, which describes 'rest' as any period during which the driver 'may freely dispose of his time' and on the a contrario interpretation of that provision to the effect that 'a working period should be considered to be that in which a driver is obliged to account to the company for the use of his time'. 26 Although that view is ingenious, I do not think I can go along with it, in so far as it neglects the social aims of Regulations Nos 3820/85 and 3821/85. If those aims are borne in mind, it becomes entirely unimportant whether a driver, in travelling from his home to the place where he picks up the vehicle, follows instructions given to him by his employer or acts freely: what really counts is the fact that the driver should not become tired before starting a period of driving and should not put at risk the safety of himself and of his passengers 29. The fourth — and last — criticism concerns the importance of any instructions which the employer may give the driver concerning the route to be followed and the timetable and procedures to be observed in reaching the point where the tachograph vehicle is to be picked up. The Commission

32. It seems to me inevitable that the question should be answered in the affir- mative. Even if he is carrying out a 30. I therefore consider that Article 15(2) transport service not subject to the require- and (3) of Regulation No 3821/85 must be ment of installing and using a tachograph, interpreted as meaning that a driver's it is undeniable that a driver driving a obligation to record 'all other periods of vehicle providing a regular service is work- work' also covers periods of time spent by ing, engaging in a driving activity which him in travelling to take over a vehicle in appears entirely similar to that of driving a which recording equipment must be used tachograph vehicle. 2 7 Such driving activity and which is located at a place other than should therefore be recorded as 'other his home or his employer's operating cen- periods of work' and must be added, for tre, both where the employer has given instructions in that connection and where the choice of timetable and method of 27 — Indeed, the vehicle used may be the same, since activation of the tachograph depends on the type of service being travel have been left to the driver. performed.

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OPINION OF MR SAGGIO — CASE C-297/99

34. I therefore consider that the driver's obligation to record 'all other periods of work' extends also to periods of time spent performing transport services which are 28 — Van Swieten, paragraph 21. exempt from the requirement of using 29 — Ibid., paragraph 17. vehicle recording equipment.

I - 588

SKILLS MOTOR COACHES AND OTHERS

Conclusion

35. In view of the foregoing considerations, I suggest that the Court give the following answer to the question from the national court:

Article 15(2) and (3) of Council Regulation (EEC) N o 3821/85 of 20 December 1985 on recording equipment in road transport must be interpreted as meaning that the driver's obligation to record 'all other periods of work' also includes: