C-228/01

BOURRASSE AND PERCHICOT

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 4 July 2002 1

1. The Cour d'Appel de Pau (Court of 2. the contract relates solely to the hiring Appeal, Pau (France) ('the Court of of a vehicle without a driver and is not Appeal')) and the Tribunal de Grande accompanied by a service contract Instance de Dax (Regional Court, Dax concluded with the same undertaking (France) ('the Regional Court')) referred covering driving or accompanying per- certain questions of a similar nature to the sonnel; Court of Justice for a preliminary ruling on the interpretation of Council Directive 84/647/EEC of 19 December 1984 on the use of vehicles hired without drivers for the carriage of goods by road 2('the Directive'), in particular Article 2 thereof. 3. the hired vehicle is at the sole disposal of the undertaking using it during the period of the hire contract;

The Community provisions

2. Article 2 of the Directive provides as 4. the hired vehicle is driven by personnel follows: of the undertaking using it;

'Each Member State shall allow the use within its territory, for the purposes of ...' traffic between Member States, of vehicles hired by undertakings established on the territory of another Member State provided that:

'Without prejudice to Articles 2 and 3, this Directive shall not affect the application of the rules concerning: 7. Article 5 of Regulation No 881/92 pro- vides that:

— the organization of the market for the carriage of goods by road for hire or reward and own account and in par- '1. The Community authorisation referred ticular access to the market and, in to in Article 3 shall be issued by the particular, concerning quota restric- competent authorities of the Member State tions on road capacities, of establishment.

...' 2. The Member States shall issue the holder with the original of the Community auth- orisation, which shall be kept by the haul- age undertaking, and the number of certi- fied true copies corresponding to the 5. International carriage of goods by road number of vehicles at the disposal of the is governed essentially, as regards access to holder of the Community authorisation, the market, by Council Regulation (EEC) whether wholly owned or, for example, No 881/92 of 26 March 1992 on access to under hire purchase, hire or leasing the market in the carriage of goods by road contracts. within the Community to or from the territory of a Member State or passing across the territory of one or more Member States3 ('Regulation No 881/92').

3 — OJ 1992 L 95, p. 1.

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BOURRASSE AND PERCHICOT

8. Lastly, it should be noted that the 9. In Case C-228/01 the question arose in Council adopted Regulation (EEC) the course of proceedings pending before No 3821/85 of 20 December 1985 on the Court of Appeal initiated by the recording equipment in road transport 4 Ministère public against the owner of a ('Regulation No 3821/85'), Article 14 of French undertaking engaged in the carriage which provides as follows: of goods by road, who is charged with a series of offences under French criminal law. The alleged facts, relating to the period from the end of 1994 to June 1996, concern a process of relocation of business activity, consisting in a French undertaking '1. The employer shall issue a sufficient belonging to the accused ('the lessor under- number of record sheets to drivers, bearing taking' or 'the lessor') making available in mind the fact that these sheets are vehicles without drivers to a Portuguese personal in character, the length of the transport undertaking ('the lessee under- period of service and the possible obli- taking' or 'the lessee'), also owned by the gation to replace sheets which are dam- accused undertaking. The vehicles in ques- aged, or have been taken by an authorised tion are registered in France. In carrying inspecting officer. The employer shall issue out its own business of international haul- to drivers only sheets of an approved model age the lessee uses the same workers who, suitable for use in the equipment installed before the vehicles were leased, were in the vehicle. employed by the lessor undertaking; more- over, the lessee uses the carriage auth- orisations obtained by the lessor. Fur- thermore, the lessor, and not the lessee, appears to be in possession of the tacho- graph discs used by the drivers in the 2. The undertaking shall keep the record recording equipment in the vehicles made sheets in good order for at least a year after available to the lessee. 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.' 10. Mr Bourrasse is charged with engaging in the concealed employment of those 4 — OJ 1985 L 370, p. 8. workers, who drove lorry-and-trailer com-

13. Case C-289/01 arises from criminal proceedings pending before the Regional Court concerning a factual and legal situ- ation substantially similar to that in Case '1. Can "the hiring of a vehicle without a C-228/01, save that in this case the relo- driver" as envisaged by Article 2 of cation arises between a French transport Council Directive 84/647/EEC be inter- undertaking, Perchicot France, and an

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undertaking governed by Spanish law spe- 15. By order of the President of the Court cifically set up and controlled by the of Justice of 23 January 2002 the two cases former, Perchicot Spain. The alleged facts were joined on the ground that they are concern the period from the end of 1999 to related cases. the beginning of 2000.

16. The Commission, the French Govern- ment, the Union régionale syndical des 14. Also considering that the determination petits et moyens transporteurs du sud ouest of the dispute depends on the interpretation ('UNOSTRA Aquitaine'), which intervenes of a provision of Community law, by order in the criminal proceedings against Mr of 2 July 2001, the Regional Court referred Bourrasse, and the Inspection du travail the following question to the Court of des transports, Bayonne subdivision, ('the Justice of the European Communities for a employment inspectorate'), which inter- preliminary ruling: venes in the proceedings against Mr Perchi- cot, lodged written observations in the proceedings before the Court of Justice. Mr Bourrasse presented further sub- missions at the hearing.

'Where a vehicle is hired without a driver as provided for by Article 2 of Council Direc- tive 84/647/EEC is the lessor, a French road haulage company, permitted:

84/647, but rather under Articles 3 and 5 to assess whether the fact that the lessor of Regulation No 881/92 concerning access allows the lessee to use the former's own to the market in the international carriage Community carriage licences and itself of goods by road, and Article 14 of Regu- manages the tachograph discs implies that lation No 3821/85 on recording equip- the transport is not carried out 'by person- ment. In that legal context the Court nel of the undertaking using it', as required should reply that the said provisions do by Article 2(4) of the Directive. not permit a transport company governed by French law which leases motor vehicles to a company of another Member State to transfer its own Community carriage auth- orisations to the lessee, or to continue to manage the tachograph discs of the leased vehicles. 20. The Commission, for its part, shares in large part the French Government's legal analysis in relation to its primary sub- mission and proposes that the Court should find that the Directive does not govern expressly the use of the carriage authori- sations and tachograph discs, but refers to Regulation No 881/92, pursuant to which the Community authorisation is registered in the name of the person who in fact operates as a haulier and may not be transferred to any third party. 19. If, instead, the Court wishes to leave aside any express reference to those regu- lations on access to the market and tacho- graph recording equipment on the basis that the referring court has not mentioned them, the French Government considers, in the alternative, and in common with UNOSTRA Aquitaine, that the answer to the question in common should be sought 21. In support of its own submissions the in Article 2(4) of the Directive. As has been Commission hastens to point out, citing the seen that provision makes the permissibility Centros judgment, that even though the of the hire subject to the condition that 'the freedom of establishment recognised by the hired vehicle is driven by personnel of the Treaty includes the right of Community undertaking using it'. According to the citizens 'to carry on their business in Court's case-law5, even though 'personnel another Member State through an agency, of the undertaking' is a Community law branch or subsidiary', that does not alter concept, it should nonetheless be defined in the fact that 'a Member State is entitled to the light of each Member State's legislation. take measures designed to prevent certain It follows that it is for the State concerned of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from 5 —Case 327/82 Ekro [1984] ECR 107 and Case 105/84 Damnols [1985] ECR 2639. improperly or fraudulently taking advan-

tage of provisions of Community law' 6. It 24. I begin by stating that, even supposing follows from this that in the circumstances that to be the case, that would not preclude of the present case, neither Mr Bourrasse the possibility of replying to the question in nor Mr Perchicot can rely on the liberali- this case given that, as the Community sation of cross-border leases laid down by case-law makes clear, '[i]n order to provide the Directive. a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question' 7 . 22. The employment inspectorate also tends to the same conclusion, stressing in particular that, besides depriving employees of the wages to which they would be entitled pursuant to the employ- ment contract and of the protection of the applicable collective rules if they were formally employed by the French transport undertaking, the fictitious relocation imple- mented by the accused in the main proceed- 25. Having said that, I note that the ings would circumvent the French rules on argument of the French Government and social security and staff representation. of the Commission seems to me to be well founded given that the Directive does not in fact contain provisions relating to record- ing equipment and tachograph discs. Those matters are governed instead by Regulation No 3821/85, which brings together in a single text the various provisions previously adopted on the subject, laying down, in particular under Chapter IV, provisions Assessment relating to the use and management of the equipment and of the relevant record sheets. On the other hand, not only does the Directive not address access to the market in the road haulage sector, but it is 23. As has been seen, the real issue raised expressly subject to the other Community by the question under consideration is the provisions in force on the subject, namely identification of the relevant rules given Regulation No 881/92 for international that, as emerges from the positions of the carnage and Regulation No 3118/93 8 for parties, the applicable provisions of Com- cabotage. Since the present case is indis- munity law in the present case appear to putably concerned with carriage between differ from those mentioned by the refer- ring court. 7 — Case 35/85 Tissier (1986] ECR 1207, paragraph 9; Case C-315/88 Bagli Pemiacchiotti [19901 ECR I-1323, para- graph 10; Case C-107/98 Teckal (1999] ECR I-8121, 6 — Case 212/97 Centros [1999) ECR I-1459, paragraph 20 et paragraph 39. seq. 8 — Council Regulation (EEC) No 3118/93 of 25 October

27. To remove all remaining doubt, how- 30. Having thus identified the factors ever, it may again be stressed that, pursuant necessary to reply to the question under to Article 5(4), that authorisation 'shall be consideration, I do not consider it necessary made out in the haulier's name, he may not to have to take a position on the question transfer it to any third party'; that clearly raised by the French Government in the applies to the case in which vehicles alternative on the interpretation of 'person- originally used by one party holding a nel of the undertaking' in Article 2(4) of Community carriage authorisation are then the Directive. I only note in passing that, as leased or transferred to another party. the Commission pointed out at the hearing, the cases of Ekro and Danmols 9 , on which the French Government relies in support of its proposed solution to that question, are not relevant. Those cases are in fact con- cerned, respectively, with the interpretation of terms contained in a regulation on 28. It may therefore be concluded from this export refunds for beef and veal and in a that Articles 3 and 5 of Regulation No 881/92 do not allow a French haulage company which hires out vehicles without 9 — Cited above.

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directive on the harmonisation of national 33. For my part I cannot but agree in measures on the safeguarding of employees' principle with the intervening parties in rights on the transfer of undertakings. The that it also seems to me to be beyond doubt present case is concerned instead with the that Article 2 only applies where the hired interpretation of a concept which deter- vehicles are registered in the Member State mines the scope of application of a directive in which the lessee transport undertaking is on liberalisation, the extent of which established. cannot therefore be entirely left to the unilateral choice of individual Member States.

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OPINION OF MR TIZZANO — JOINED CASES C-228701 AND C-289/01

Conclusion

36. In the light of the foregoing I propose that the Court reply to the questions referred for a preliminary ruling in the following terms:

(1) Articles 3 and 5 of Council Regulation (EEC) No 881/92 of 26 March 1992 on access to the market in the carriage of goods by road within the Community to or from the territory of a Member State or passing across the territory of one or more Member States, and Article 14 of Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport do not permit a company governed by French law which hires out vehicles without drivers for the carriage of goods by road to a haulage company of another Member State to transfer its own Community carriage authorisation to the lessee or to continue to manage the tachograph discs of the hired motor vehicles.

(2) Article 2(1) of Council Directive 84/647/EEC of 19 December 1984 on the use of vehicles hired without drivers for the carriage of goods by road should be interpreted as meaning that, subject to the possible application of Article 4 of that directive, hired vehicles must be registered in the Member State in which the lessee haulage undertaking is established, in this case Portugal.