61977J0076

ROAD TRANSPORT - SOCIAL LEGISLATION - HARMONIZATION - INDIVIDUAL CONTROL BOOK - ISSUE - TRANSPORT UNDERTAKING - DUTY - UNDERTAKING PROVIDING TEMPORARY LABOUR - RESPONSIBILITY

( REGULATION ( EEC ) NO 543/69 , ARTICLE 14 ( 7 ) AND ( 8 ))

IT IS FOR THE TRANSPORT UNDERTAKING TO JUDGE WHETHER AN INDIVIDUAL CONTROL BOOK MUST BE ISSUED TO CREW MEMBERS AND IT IS ACCORDINGLY THE DUTY OF THAT UNDERTAKING TO ENSURE THAT THE PROVISIONS OF ARTICLE 14 ( 7 ) AND ( 8 ) OF REGULATION ( EEC ) NO 543/69 ARE OBSERVED . THE POSITION WOULD BE DIFFERENT ONLY IF NATIONAL LEGISLATION ADOPTED IN PURSUANCE OF ARTICLE 14 ( 9 ) OF THE REGULATION IN THE SPECIAL CASE OF THE HIRING OF LABOUR WERE TO IMPOSE THAT DUTY ON THE UNDERTAKING PROVIDING THE TEM- PORARY LABOUR .

IN CASE 76/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL CORRECTIONNEL , CHARLEROI , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

AUDITEUR DU TRAVAIL

AND

BERNARD DUFOUR , S.A . CREYF ' S INTERIM AND S.A . CREYF ' S INDUSTRIAL

ON THE INTERPRETATION TO BE PLACED ON THE WORD ' UNDERTAKING ' IN ARTICLE 14 ( 7 ) AND ( 8 ) OF REGULATION ( EEC ) NO 543/69 OF THE COUNCIL OF 25 MARCH 1969 ON THE HARMONIZATION OF CERTAIN SOCIAL LEGISLATION RELATING TO ROAD TRANSPORT ,

1 BY JUDGMENT OF 13 JUNE 1977 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 30 JUNE 1977 , THE TRIBUNAL CORRECTIONNEL DE L ' ARRONDISSEMENT DE CHARLEROI ASKED THE COURT , UNDER ARTICLE 177 OF THE EEC TREATY , WHAT INTERPRETATION TO PLACE ON THE WORD ' UNDERTAKING ' WHICH BOTH APPEARS IN THE PROVISIONS OF ARTICLE 14 ( 7 ) AND ( 8 ) OF REGULATION ( EEC ) NO 543/69 OF 25 MARCH 1969 ( OJ , ENGLISH SPECIAL EDITION 1969 ( I ) P . 170 ) ON THE HARMONIZATION OF CERTAIN SOCIAL LEGISLATION RELATING TO ROAD TRANSPORT AND IS REPEATED IN THE ANNEXES TO THE ARRETES ROYAUX OF 23 MARCH 1970 AND 7 MAY 1973 FOR IMPLEMENTING THE SAID REGULATION .

2 THIS QUESTION WAS SUBMITTED IN CONNEXION WITH CRIMINAL PROCEEDINGS AGAINST THE MANAGER OF A TEMPORARY LABOUR UNDERTAKING WHICH HAD PROVIDED A TRANSPORT UNDERTAKING WITH A ' TEMPORARY DRIVER ' WHO HAD BEEN CHECKED BY THE POLICE ON 30 JULY 1975 WHILE DRIVING A LORRY HAVING A MAXIMUM PERMISSIBLE WEIGHT OF MORE THAN 3.5 TONNES WITHOUT BEING IN POSSESSION OF THE INDIVIDUAL CONTROL BOOK REQUIRED BY ARTICLE 14 ( 1 ) OF REGULATION ( EEC ) NO 543/69 , AN OFFENCE WHICH IS PUNISHABLE UNDER ARTICLE 2 OF THE BELGIAN LAW OF 18 FEBRUARY 1969 .

3 THE NATIONAL COURT RAISES THE QUESTION WHETHER THE DUTY TO ISSUE THE INDIVIDUAL CONTROL BOOK TO CREW MEMBERS IS IMPOSED ON THE UNDERTAKING WHOSE BUSINESS ACTIVITY IS THE HIRING OUT OF LABOUR OR ON THE UNDERTAKING USING THE SERVICES OF THE DRIVER FOR ITS ROAD TRANSPORT , SINCE THE CONDITIONS SET OUT IN THE ANNEX EMPLOY THE CONCEPTS OF UNDERTAKINGS AND EMPLOYERS ALTHOUGH THEY ARE NOT DEFINED BY REGULATION ( EEC ) NO 543/69 .

4 THE NATIONAL COURT HAS SUBMITTED THE FOLLOWING QUESTIONS :

1 . DOES THE WORD ' UNDERTAKING ' REFER EXCLUSIVELY TO THE NATURAL OR LEGAL PERSON WHO , IN FACT , EITHER HIMSELF OR THROUGH SERVANTS , IS ENGAGED IN CARRIAGE BY ROAD , EVEN SUCH CARRIAGE CONSTITUTES ONLY A PART OF HIS BUSINESS ACTIVITIES?

2 . WHERE THE PERSON DESCRIBED ABOVE EMPLOYS HIRED LABOUR FOR THE PURPOSE OF DRIVING HIS VEHICLE OR VEHICLES , IS THAT PERSON RELEASED FROM THE DUTY TO ISSUE AN INDIVIDUAL CONTROL BOOK TO EVERY CREW MEMBER , AND IN THIS CASE DOES THE WORD ' UNDERTAKING ' REFER RO THE NATURAL OR LEGAL PERSON WHO HIRES OUT THE LABOUR?

3 . IS IT TO BE UNDERSTOOD THAT THE WORD ' UNDERTAKING ' MEANS ' EMPLOYER ' AND THAT IN THIS CASE THE RELATIONSHIP OF SUBORDINATION AS BETWEEN THE HIRER OF THE LABOUR AND THE WORKER CONTINUES TO EXIST , OR THAT SUCH A RELATIONSHIP COMES INTO EXISTENCE AS BETWEEN THE PERSON TO WHOM THE LABOUR HAS BEEN HIRED AND THE WORKER?

5 THESE QUESTIONS REQUIRE THE INTERPRETATION OF REGULATION ( EEC ) NO 543/69 IN VIEW OF THE EXISTENCE OF TEMPORARY EMPLOYMENT UNDERTAKINGS AND OF USER UNDERTAKINGS .

6 IN 1969 , WHEN THE COMMUNITY INSTITUTIONS HARMONIZED ROAD TRANSPORT CONDITIONS , TEMPORARY EMPLOYMENT UNDERTAKINGS WERE SMALL IN NUMBER , WHICH EXPLAINS WHY THE PROBLEMS WHICH THEY RAISE IN THIS PARTICULAR FIELD HAVE NOT BEEN RESOLVED .

7 UNDER ARTICLE 14 ( 9 ) OF REGULATION ( EEC ) NO 543/69 , THE RESPONSIBILITY FOR TAKING ' ALL NECESSARY MEASURES CONCERNING THE ISSUE AND CONTROL OF THE BOOKS ' WAS LEFT TO THE MEMBER STATES .

8 ARTICLE 14 ( 7 ) AND ( 8 ) OF REGULATION ( EEC ) NO 543/69 REQUIRE THAT ' ALL UNDERTAKINGS SHALL KEEP A REGISTER OF THE INDIVIDUAL BOOKS ' AND THAT ' ALL COMPLETED INDIVIDUAL BOOKS SHALL BE KEPT BY THE UNDERTAKING FOR AT LEAST ONE YEAR ' .

9 ONLY THE ITALIAN VERSION OF THE REGULATION DESCRIBED THE UNDERTAKING WHICH IS REQUIRED TO KEEP A REGISTER OF THE INDIVIDUAL BOOKS AND CONFINED THIS DUTY TO A ' TRANSPORT UNDERTAKING ' .

10 ON THE OTHER HAND THE WORD ' UNDERTAKING ' IS UNQUALIFIED IN THE VERSIONS IN THE OTHER OFFICIAL LANGUAGES OF THE COMMUNITY .

11 IN VIEW OF THESE DIFFERENT VERSIONS AND THE FACTS OF THE PRESENT CASE , THE INDIVIDUAL FIELD OF APPLICATION OF THE REGULATION IN RELATION TO THE UNDERTAKING RESPONSIBLE FOR ISSUING THE SAID BOOK MUST BE DETERMINED IN THE LIGHT OF THE SCHEME LAID DOWN BY THE REGULATION AND OF ITS OBJECTIVES .

12 THAT REGULATIONS PURSUES , AS PART OF THE HARMONIZATION OF NATIONAL LAWS , A GROUP OF OBJECTIVES WHICH ARE CONCERNED WITH THE SOCIAL PROTECTION OF THE DRIVER , ROAD SAFETY AND EQUALITY OF COMPETITION BETWEEN TRANSPORT UNDERTAKINGS .

13 IN ORDER TO ENSURE THAT THESE OBJECTIVES ARE COMPLIED WITH , THE REGULATION INTRODUCED INTER ALIA AN INDIVIDUAL BOOK CONTAINING DAILY SHEETS ON WHICH ARE ENTERED IN PARTICULAR THE DRIVING PERIODS , REST PERIODS AND A WEEKLY REPORT SHOWING THE TOTAL NUMBER OF HOURS OF OCCUPATIONAL ACTIVITIES DURING THE WEEK .

14 THE BOOK IS NOT COMPULSORY IN THE CASE OF CARRIAGE BY VEHICLES LISTED IN ARTICLE 4 OF REGULATION ( EEC ) NO 543/69 OR OUTSIDE THE COMMUNITY ( ARTICLE 2 ).

15 IN VIEW OF THE FACT THAT IT IS THE TRANSPORT UNDERTAKING WHICH DETERMINES THE VEHICLE TO BE DRIVEN , THE ROUTE TO BE FOLLOWED AND THE DESTINATION AS WELL AS THE DRIVING AND REST PERIODS , THE TRANSPORT UNDERTAKING IS IN A POSITION TO JUDGE WHETHER AN INDIVIDUAL CONTROL BOOK MUST BE ISSUED TO CREW MEMBERS AND IT IS IN CONSEQUENCE UPON THAT UNDERTAKING THAT THE DUTY TO COMPLY WITH THE PROVISIONS OF ARTICLE 14 ( 7 ) AND ( 8 ) IS IMPOSED .

16 THE POSITION WOULD BE DIFFERENT ONLY IF NATIONAL LEGISLATION ADOPTED IN PURSUANCE OF ARTICLE 14 ( 9 ) OF THE REGULATION IN THE SPECIAL CASE OF THE HIRING OF LABOUR WERE TO IMPOSE THAT DUTY ON THE UNDERTAKING PROVIDING THE TEMPORARY LABOUR .

17 IT MUST BE CONCLUDED FROM THE FOREGOING THAT , IN THE PRESENT STATE OF COMMUNITY RULES , IN THE LIGHT OF THE OBJECTIVES WHICH THEY PURSUE AND OF NATIONAL LAWS AND AS THE FACTS STAND , A GENERAL ANSWER TO THE EFFECT INDICATED BY THE FOREGOING CONSIDERATIONS MUST BE GIVEN TO THE THREE QUESTIONS SUBMITTED BY THE NATIONAL COURT .

COSTS

18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE GOVERNMENT OF THE NETHERLANDS , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

19 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS

THE COURT ,

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE TRIBUNAL CORRECTIONNEL DE L ' ARRONDISSEMENT DE CHARLEROI , BY JUDGMENT OF 13 JUNE 1977 , HEREBY RULES :

IT IS THE DUTY OF THE TRANSPORT UNDERTAKING TO ENSURE THAT THE PROVISIONS OF ARTICLE 14 ( 7 ) AND ( 8 ) OF REGULATION ( EEC ) NO 543/69 ARE OBSERVED .

THE POSITION WOULD BE DIFFERENT ONLY IF NATIONAL LEGISLATION ADOPTED IN PURSUANCE OF ARTICLE 14 ( 9 ) OF THE REGULATION IN THE SPECIAL CASE OF THE HIRING OF LABOUR WERE TO IMPOSE THAT DUTY ON THE UNDERTAKING PROVIDING THE TEMPORARY LABOUR .