C-439/01

OPINION OF MR ALBER — CASE C-439/01

OPINION OF ADVOCATE GENERAL ALBER delivered on 10 October 2002 1

1 — Introduction 'Article 2

1. The request for a preliminary ruling relates to the rest periods to be taken by lorry drivers and asks questions relating to both the interpretation and the validity of (1) This Regulation applies to carriage by Article 8 of Council Regulation (EEC) road,..., within the Community. No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport. On the one hand, the Court making the reference wishes to know how subparagraphs 1 and 2 of Article 8, which each provide for (2) The European Agreement concerning different rest periods, interrelate. At the the Work of Crews of Vehicles engaged in same time, however, it questions whether International Road Transport (AETR) shall these provisions are in fact invalid on the apply instead of the present rules to inter- ground that they fail to comply with the national road transport operations principles of legal certainty and precision.

— to and/or from third countries which I I — Legal framework are Contracting Parties to the Agree- ment, or in transit through such coun- tries for the whole of the journey where such operations are carried out by vehicles registered in a Member State A — Council Regulation (EEC) or in one of the said third countries; No 3820/85 on the harmonisation of certain social legislation relating to road transport2 ('Regulation No 3820/85')

2. The relevant rules of Regulation — to and/or from a third country which is No 3820/85 provide: not a Contracting Party to the Agree- ment in the case of any journey made within the Community where such 1 — Original language: German. operations are carried out by vehicles 2 — OJ 198J L 370, p. 1. registered in one of those countries.' I-748

4. On 24 October 2000 Libor Cipra and Vlastimil Kvasnicka were together driving (3) In the course of each week, one of the a heavy goods vehicle with Czech regis- rest periods referred to in paragraphs 1 and tration to the border point at Drasenhofen 2 shall be extended, by way of weekly rest, (Austria). Having checked the tachograph to a total of 45 consecutive hours. This rest record sheets of the two drivers for the period may be reduced to a minimum of 36 period from 22 to 24 October 2000, the consecutive hours if taken at the place police suspected that they had not complied where the vehicle is normally based or with the daily rest periods prescribed in where the driver is based, or to a minimum Article 8 of Regulation No 3820/85 and of 24 consecutive hours if taken elsewhere. collected a provisional security of ATS Each reduction shall be compensated by an 1 000 from each of them.

I-749

OPINION OF MR ALBER — CASE C-439/01

5. Analysis of the tachograph record sheets whilst Article 8(2) designates the addressee revealed that whilst both drivers, with a with the numeral 'two'. The preceding rules continuous rest period of 8 hours and 5 under Articles 6 and 7 preclude interpre- minutes over a period of 30 hours, had tation of 'the' in the sense of 'one' driver. complied with the requirements of All these provisions apply irrespective of Article 8(2) of Regulation No 3820/85, the actual number of crew on the vehicle. they had not complied with the require- ments of Article 8(1) of the Regulation.

6. By decisions of 9 January 2001, the 9. The referring court acknowledges, how- Bezirkshauptmannschaft Mistelbach ever, that if the spirit and purpose of declared the provisional security forfeited. Article 8(2) were to be to lessen the The drivers appealed to the Court making obligation in relation to rest periods where the reference, claiming that they had there is more than one driver, that could observed the statutory rest periods. lead to both subparagraphs being inter- preted in such a way that Article 8(2) is considered as a lex specialis in relation to Article 8(1).

12. The Commission also considers the AETR Agreement rather than Regulation (2) Where there are two drivers falling No 3820/85 to be applicable, although it within the scope of Council Regulation expresses the view that the reference is (EEC) No 3820/85 of 20 December admissible since the AETR Agreement is an 1985 on the harmonisation of certain international law agreement and can there- social legislation relating to road trans- fore be examined by the Court of Justice as port, is Article 8(1) of that regulation, an act of the institutions of the Community or are possibly Article 8(1) and (2), within the meaning of Article 234(b) EC. 3 inapplicable because of incompatibility According to Regulation No 3820/85 the with superior Community law?' subject-matter dealt with in the AETR falls within the scope of the regulation. The Commission therefore regards the Agree- ment as a constituent of Community law, interpretation of which falls within the jurisdiction of the Court of Justice.

V — Arguments of the parties

13. In the view of the Swedish Government it is the responsibility of the national court to determine the applicable law.

A — The admissibility of the request for a preliminary ruling

B — The first question 11. The Austrian Government considers the request for a preliminary ruling to be inadmissible. It submits that according to the documents at its disposal, the heavy 14. On the first question referred, it is the goods vehicle had been used in cross-border view of all the parties submitting observa- carriage between Austria and the Czech Republic. As a result this does not con- stitute 'carriage within the Community', so 3 — The Commission refers in tins context to the judgment or 26 October 1982 in Case 104/81 Kupferberg [1982] ECR that Regulation No 3820/85 is not appli- 3641. paragraph 14.

16. The Swedish Government also con- siders Article 8(2) to be a lex specialis in relation to Article 8(1). The inapplicability of Article 8(2) to a single driver follows 20. The Netherlands and Austrian Govern- from the wording of the subparagraph itself ments and the Commission further point to ('when a vehicle is manned by at least two the spirit and purpose of Article 8(2), drivers'). which is to permit shorter rest periods when a vehicle is manned by two drivers. It may be concluded that the two provisions cannot be applied cumulatively, since otherwise longer breaks would have to be taken when a vehicle is manned by two drivers than when it is manned by one 17. The Swedish Government and the driver. As a result the haulage contractor Commission further substantiate their view would have no further incentive to use its by pointing out that different periods are vehicles over a longer continuous period, specified during which rest periods are to by employing driver crews, in order to be taken, namely 24 hours and 30 hours transport goods more quickly. They point respectively, thereby excluding the possi- out that driver crews contribute to road

I-752

CIPRA AND KVASNICKA

safety, since the driver who is not driving at lands, Austrian and Swedish Governments any particular time is able to rest during the and the Commission see no cause for trip. Increasing road safety is a fundamen- concern that the provisions of Article 8(1) tal concern of the regulation. and (2) of the regulation fail to satisfy the requirements of legal certainty and legal clarity.

4 — COM (2001) 573 final of 12 October 2001, OJ 2002 C 51 E, p. 234. 5 — Case C-159/99 [2002] ECR I-4007, paragraph 32.

I - 753

OPINION OF MR ALBER — CASE C-439/01

of the provisions, so that the Council its decision as to whether the ordered considers Article 8(1) and (2) to be suffi- forfeiture of the security provisionally paid ciently precise. by the two plaintiffs in the original pro- ceedings is legal.

VI — Assessment 27. The Court may not decline to give a ruling on a question referred to it by a national court unless it is quite obvious that the interpretation of Community law sought by that court bears no relation to A — The admissibility of the request for a the actual facts of the main action or its preliminary ruling purpose or where the problem is hypo- thetical, or where the Court does not have before it the factual or legal material 25. It is settled case-law that, in the context necessary to give a useful answer to the of the cooperation between the Court of questions submitted to it. 7 Justice and the national courts required under Article 234 EC (formerly Article 177), it is solely for the national court before which the dispute has been brought, and which must assume responsi- bility for the subsequent judicial decision, to determine in the light of the particular 28. There may in fact be doubts in the case circumstances of the case both the need for in question with respect to the applicability a preliminary ruling in order to enable it to of Regulation No 3820/85 to the circum- deliver judgment and the relevance of the stances described by the referring court. It questions which it submits to the Court. is highly questionable whether the act for Consequently, where the questions sub- which the fine was imposed was under- mitted by the national court concern the taken within the context of 'carriage within interpretation of Community law, the the Community' within the meaning of Court of Justice is, in principle, bound to Article 2 of the regulation. give a ruling. 6

drivers who were en route to the border were applicable, due to the identical word- point between Austria and the Czech ing of the provisions in question. Republic at Drasenhofen in a heavy goods vehicle with Czech registration plates. The decision to make a reference does not however include any details of the depar- ture and destination points of the carriage operation. If therefore this was a carriage operation from or to the Czech Republic, as is suggested by the fact that the vehicle 31. The Court of Justice also has jurisdic- was checked at the border, then it is tion to interpret the provisions of the AETR doubtful, in view of the fact that the Czech Agreement, even though the Community Republic is not yet a Member State of the was not a signatory of the Agreement and Community, to what extent this can be the Commission's reference to the judg- considered to be 'carriage within the Com- ment in Kupferberg does not appear munity'. As the Swedish Government cor- capable of justifying the jurisdiction of the rectly points out, however, it is the duty of Court. That case concerned a free trade the referring court to clarify the question of agreement concluded by the Community. 8 the applicability of Regulation No 3820/85 to the circumstances on which it is required to give a judgment.

35. The previous paragraph demonstrates that since the adoption of Regulation No 543/69, under the terms of the EC Treaty the Community now discharges the 34. The Community implemented the powers formerly exercised by the Member AETR in Community law by Council States in those matters regulated under the Regulation (EEC) No 2829/77 of AETR Agreement, as a result of which the 12 December 1977. 11 As is evident from Court of Justice has jurisdiction under the fourth recital of that regulation, since the cited case-law to interpret the AETR the subject-matter of the AETR Agreement Agreement. falls within the scope of Regulation (EEC) No 543/69, 12 from the date of entry into force of that regulation the power to negotiate and conclude the Agreement has lain with the Community. The particular circumstances in which the AETR negoti- 36. The request for a preliminary ruling is ations took place warranted, by way of therefore admissible. exception, a procedure whereby the Member States of the Community individ- ually deposited the instruments of ratifica- tion or accession in a concerted action but none the less acted in the interest and on behalf of the Community. The negotiations in relation to the AETR were characterised by the fact that the timing of their insti- B — The first question gation and of a considerable proportion of the work involved by the United Nations Economic Commission for Europe was prior to the transfer of competence to the 37. By its first question, the referring court Community which was brought about by essentially asks whether the conditions concerning the rest periods to be complied with set out in Article 8(1) and (2) of 10 —Joined Cases 21/72, 22/72, 23/72 and 24/72 International Regulation No 3820/85 have to be satisfied Fruit Company and Others [1972] ECR 1219, paragraph 18; Case C-372/92 Peralta [1994] ECR I-3453, paragraph cumulatively in the event of carriage invol- 16. ving two drivers, or whether Article 8(2) 11 —Council Regulation (EEC) No 2829/77 of 12 December 1977 on the bringing into force of the European Agree- constitutes a lex specialis in relation to ment concerning the work of crews of vehicles engaged in Article 8(1). international road transport (AETR) (OJ 1977 L 334, p. 11). 12 — Council Regulation (EEC) No 543/69 of 25 March 1969 on the harmonisation of certain social legislation relating to road transport (OJ, English Special Edition 1969 (I), 13 — See the observations in Case 22/70 Commission v Council p. 170). [1971] ECR 263, paragraphs 81 to 90.

38. According to the wording of Article 8(2) in relation to that in Article 8( 1 ) Article 8(1) 'the driver' is obliged to adhere only makes sense if the provision under to a daily rest period of at least 11 hours. Article 8(1) is inapplicable where the Article 8(2) applies only where 'a vehicle is vehicle is manned by at least two drivers. manned by at least two drivers'. Viewed in For, if a rest period of at least 11 hours isolation and purely on the basis of its within a 24-hour period is taken, then logic wording, the wording of Article 8(2) does dictates that this period always includes a not exclude the possibility of applying the rest period of 8 hours within a 30-hour term 'the driver' in Article 8(1) to all period. drivers falling within the scope of Article 8(2). The different number of drivers indicates however that the two subparagraphs regulate different circum- stances and cannot therefore be applied cumulatively. Article 8(2) talks of the vehicle being manned by two drivers. The driver alternates in that case, so that only one of them can be driving whilst the other is a passenger and does not need to concentrate on the traffic as the driver 40. The Commission points out that the does. Article 8(1), however, applies to a reasoning behind this rule is the fact that single driver in the heavy goods vehicle, road safety is better guaranteed if a vehicle who accordingly remains the driver of the is manned by several drivers. The minimum vehicle at all times. rest period can be reduced accordingly. This benefits the haulage company in that it is able to offset the additional financial burden imposed through the use of several drivers by the fact that its vehicle can remain on the road for longer periods. The purpose of that provision in Article 8(2) would be thwarted if the legality of trans- port involving at least two drivers in the vehicle were to be made subject to com- 39. An analysis of the content of the rules pliance with the requirements of laid down in these subparagraphs supports Article 8(1). the view that the provisions should not be applied cumulatively. On the one hand the two subparagraphs are based on periods of differing lengths during which breaks are to be taken. Article 8(1) mentions a period of 24 hours, whilst Article 8(2) calculates the rest period within a 30-hour period. On the other hand, the length of the rest period in each case differs. Article 8(1) requires a rest period of 11 hours within a 24-hour period, whilst a rest period of 8 hours within a 41. The interpretation based on the word- 30-hour period suffices under Article 8(2). ing and spirit of the rules is confirmed by The ordering of the reduced rest period in the rule contained in Article 8(3), which

42. The answer to the first question must therefore be that within the scope of Council Regulation No 3820/85 of 20 December 1985 on the harmonisation 45. During examination of the first ques- of certain social legislation relating to road tion the relationship between the two rules transport, where a vehicle is manned by was clarified by applying traditional two drivers, the drivers are required only to methods of legal interpretation. The fact fulfil the requirements of Article 8(2), that Article 8(2) constitutes a lex specialis which takes precedence over Article 8(1) in relation to Article 8(1), and that only the as a lex specialis in relation to that requirements of Article 8(2) have to be provision. complied with where a vehicle is manned by two drivers, was derived from their wording, their schematic link with Article 8(3) and their spirit and purpose. The various methods of interpretation applied all led to the same conclusion. I cannot therefore conclude that this rule is of uncertain interpretation or insufficiently C — The second question precise.

43. In its second question, the referring court wishes to know whether the doubts relating to the interpretation of Article 8(1) 46. The answer to the second question and (2) result in the rules being void on the must therefore be that examination of ground that they fail to comply with the Article 8(1) and (2) of Regulation requirement of legal certainty and preci- No 3820/85 has disclosed no factors of sion. such a kind as to impair their validity.

14 — Case 169/80 Gondrand Frères and Garancni [1981] ECR 1931, paragraph 17; Case 70/83 Kloppenburg [1984] ECR 1075, paragraph 11; Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18; and Joined Cases T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR 11-53, paragraph 40. 44. According to case-law, the principle of 15 — Case T-115/94 Opel Austria v Council [1997] ECR II-39, legal certainty demands that every measure paragraph 124.

I- 759