61978J0128

1 . MEASURES ADOPTED BY AN INSTITUTION - REGULATION - APPLICATION - OBLIGATION OF MEMBER STATES

( EEC TREATY , ARTICLE 189 )

2 . OBLIGATIONS OF MEMBER STATES - UNILATERAL ACTION CONTRARY TO THE TREATY - FAILURE IN THE DUTY OF SOLIDARITY

1 . IT CANNOT BE ACCEPTED THAT A MEMBER STATE SHOULD APPLY IN AN INCOMPLETE OR SELECTIVE MANNER PROVISIONS OF A COMMUNITY REGULATION SO AS TO RENDER ABORTIVE CERTAIN ASPECTS OF COMMUNITY LEGISLATION WHICH IT HAS OPPOSED OR WHICH IT CONSIDERS CONTRARY TO ITS NATIONAL INTERESTS . PRACTICAL DIFFICULTIES WHICH APPEAR AT THE STAGE WHEN A COMMUNITY MEASURE IS PUT INTO EFFECT CANNOT PERMIT A MEMBER STATE UNILATERALLY TO OPT OUT OF FULFILLING ITS OBLIGATIONS .

2 . FOR A STATE UNILATERALLY TO BREAK , ACCORDING TO ITS OWN CONCEPTION OF NATIONAL INTEREST , THE EQUILIBRIUM BETWEEN THE ADVANTAGES AND OBLIGATIONS FLOWING FROM ITS ADHERENCE TO THE COMMUNITY BRINGS INTO QUESTION THE EQUALITY OF MEMBER STATES BEFORE COMMUNITY LAW AND CREATES DISCRIMINATION AT THE EXPENSE OF THEIR NATIONALS . THIS FAILURE IN THE DUTY OF SOLIDARITY ACCEPTED BY MEMBER STATES BY THE FACT OF THEIR ADHERENCE TO THE COMMUNITY STRIKES AT THE VERY ROOT OF THE COMMUNITY LEGAL ORDER .

IN CASE 128/78

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , GEORGE CLOSE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

UNITED KINGDOM , REPRESENTED BY R . D . MUNROW , ASSISTANT TREASURY SOLICITOR , ACTING AS AGENT , ASSISTED BY PETER SCOTT , Q . C ., OF THE MIDDLE TEMPLE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE UNITED KINGDOM ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY AND UNDER REGULATION ( EEC ) NO 1463/70 OF THE COUNCIL OF 20 JULY 1970 ON THE INTRODUCTION OF RECORDING EQUIPMENT IN ROAD TRANSPORT ( OFFICIAL JOURNAL L 164 , P . 1 ),

1BY APPLICATION DATED 7 JUNE 1978 THE COMMISSION APPLIED TO THE COURT FOR A DECLARATION UNDER ARTICLE 169 OF THE TREATY THAT THE UNITED KINGDOM HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY BY FAILING TO ADOPT IN GOOD TIME THE MEASURES WHICH REMAIN TO BE TAKEN TO IMPLEMENT REGULATION NO 1463/70 OF THE COUNCIL OF 20 JULY 1970 ON THE INTRODUCTION OF RECORDING EQUIPMENT IN ROAD TRANSPORT ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( II ), P . 482 ), AND BY FAILING TO CONSULT PREVIOUSLY WITH THE COMMISSION AS PROVIDED FOR BY THE SAID REGULATION .

2REGULATION NO 1463/70 , AS AMENDED BY REGULATIONS NO 1787/73 AND 2828/77 OF THE COUNCIL OF 25 JUNE 1973 ( OFFICIAL JOURNAL L 181 , P . 1 ) AND 12 DECEMBER 1977 ( OFFICIAL JOURNAL L 334 , P . 5 ), IS PRIMARILY INTENDED TO REPLACE THE INDIVIDUAL CONTROL BOOK BY RECORDING EQUIPMENT , COMMONLY CALLED A TACHOGRAPH , DESIGNED FOR ROAD TRANSPORT .

3ACCORDING TO THE RECITALS IN THE PREAMBLE TO THE REGULATION THE EQUIPMENT IS INTENDED TO RECORD AUTOMATICALLY DRIVING PERIODS AND OTHER PARAMETERS OF THE VEHICLE ' S JOURNEY , SUCH AS SPEED AND DISTANCE COVERED . ITS INSTALLATION AND USE HAVE BEEN MADE COMPULSORY IN ORDER TO ENSURE UNIFORM AND EFFECTIVE CONTROL OF THE WORKING TIME OF CREWS AND TO IMPROVE ROAD SAFETY WHILE AVOIDING OBSTACLES TO THE FREE MOVEMENT OF VEHICLES WITHIN THE COMMUNITY OR DISTORTION OF THE CONDITIONS OF COMPETITION . THE REGULATION MAKES THE INSTALLATION AND USE OF THE RECORDING EQUIPMENT COMPULSORY AT DIFFERENT DATES FOR SPECIFIC CLASSES OF VEHICLE , THE MOST IMPORTANT PROVISION BEING ARTICLE 4 WHICH MAKES THIS COMPULSORY WITH EFFECT FROM 1 JANUARY 1975 AS REGARDS VEHICLES REGISTERED FOR THE FIRST TIME ON OR AFTER THAT DATE AND FOR VEHICLES USED FOR THE CARRIAGE OF DANGEROUS GOODS , WHATEVER THE DATE OF THEIR REGISTRATION .

4IN ORDER TO ENSURE COMPLIANCE WITH THOSE OBLIGATIONS ARTICLE 23 ( 1 ) OF THE REGULATION PROVIDES :

' ' MEMBER STATES SHALL , IN GOOD TIME AND AFTER CONSULTING THE COMMISSION , ADOPT SUCH LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS AS MAY BE NECESSARY FOR THE IMPLEMENTATION OF THIS REGULATION .

SUCH MEASURES SHALL COVER , INTER ALIA , THE RE-ORGANIZATION OF , PROCEDURE FOR , AND MEANS OF CARRYING OUT , CHECKS ON COMPLIANCE AND THE PENALTIES TO BE IMPOSED IN CASE OF BREACH . ' '

5POINT 4 OF TITLE III ( TRANSPORT ) OF ANNEX VII TO THE ACT OF ACCESSION PROVIDES THAT PROVISIONS IDENTICAL WITH THOSE CONTAINED IN ARTICLE 4 ( 1 ) OF REGULATION NO 1463/70 SHALL APPLY IN RESPECT OF DENMARK , OF IRELAND AND OF THE UNITED KINGDOM FROM 1 JANUARY 1976 .

6IT IS NOT DENIED THAT PROVISION FOR THE INSTALLATION AND USE OF THE RECORDING EQUIPMENT HAS BEEN MADE BY THE BRITISH LEGISLATION ONLY ON AN OPTIONAL AND VOLUNTARY BASIS AS REGARDS BOTH VEHICLES ENGAGED IN INTRA-COMMUNITY TRANSPORT AND THOSE ENGAGED IN NATIONAL TRANSPORT . ON THE OTHER HAND , THE BRITISH LEGISLATION HAS MAINTAINED IN FORCE THE OBLIGATIONS RELATING TO THE KEEPING OF AN INDIVIDUAL CONTROL BOOK WHICH WERE ABOLISHED BY THE SAID REGULATION .

7THE DEFENDANT CLAIMS THAT THIS ARRANGEMENT IS SUFFICIENT TO MEET THE OBJECTIVES OF PROMOTING ROAD SAFETY , OF SOCIAL PROGRESS FOR WORKERS AND OF THE HARMONIZATION OF CONDITIONS OF COMPETITION . IT MAINTAINS THAT THE IMPLEMENTATION OF REGULATION NO 1463/70 ON ITS TERRITORY IS BEST ACHIEVED BY THE INSTALLATION AND USE OF THE RECORDING EQUIPMENT ON A VOLUNTARY BASIS , THOUGH THIS MAY BE MADE COMPULSORY AT AN APPROPRIATE TIME . IT ADDS THAT IMPLEMENTATION OF THE REGULATION INVOLVING COMPULSORY MEASURES WOULD MEET WITH ACTIVE RESISTANCE FROM THE SECTORS CONCERNED , IN PARTICULAR THE TRADE UNIONS , WHICH WOULD RESULT IN STRIKES IN THE TRANSPORT SECTOR AND WOULD THEREFORE SERIOUSLY DAMAGE THE WHOLE ECONOMY OF THE COUNTRY .

8IT CONTENDS THAT SINCE , IN THE CASE OF THE UNITED KINGDOM , THE OBJECTIVES OF THE COMMUNITY POLICY IN THIS FIELD CAN BE ACHIEVED JUST AS SATISFACTORILY BY THE MAINTENANCE OF THE SYSTEM OF THE INDIVIDUAL CONTROL BOOK AS BY THE COMPULSORY INTRODUCTION OF RECORDING EQUIPMENT , THE ALLEGED FAILURE TO FULFIL AN OBLIGATION IS OF A PURELY TECHNICAL NATURE AND , IN VIEW OF THE DIFFICULTIES REFERRED TO , SHOULD NOT BE TAKEN INTO ACCOUNT . MOREOVER THE INSTALLATION AND USE OF RECORDING EQUIPMENT IS IN PRACTICE ALREADY GUARANTEED IN RESPECT OF INTRA-COMMUNITY TRANSPORT BY THE FACT THAT THE OTHER MEMBER STATES HAVE MADE IT COMPULSORY .

9ARTICLE 189 OF THE TREATY PROVIDES THAT A REGULATION SHALL BE BINDING ' ' IN ITS ENTIRETY ' ' IN THE MEMBER STATES . AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 7 FEBRUARY 1973 ( CASE 39/72 COMMISSION V ITALIAN REPUBLIC ( 1973 ) ECR 101 ) IT CANNOT THEREFORE BE ACCEPTED THAT A MEMBER STATE SHOULD APPLY IN AN INCOMPLETE OR SELECTIVE MANNER PROVISIONS OF A COMMUNITY REGULATION SO AS TO RENDER ABORTIVE CERTAIN ASPECTS OF COMMUNITY LEGISLATION WHICH IT HAS OPPOSED OR WHICH IT CONSIDERS CONTRARY TO ITS NATIONAL INTERESTS . IN PARTICULAR , AS REGARDS THE PUTTING INTO EFFECT OF A GENERAL RULE INTENDED TO ELIMINATE CERTAIN ABUSES TO WHICH WORKERS ARE SUBJECT AND WHICH IN ADDITION INVOLVE A THREAT TO ROAD SAFETY , A MEMBER STATE WHICH OMITS TO TAKE , WITHIN THE REQUISITE PERIOD AND SIMULTANEOUSLY WITH THE OTHER MEMBER STATES , THE MEASURES WHICH IT OUGHT TO TAKE , UNDERMINES COMMUNITY SOLIDARITY BY IMPOSING , IN PARTICULAR AS REGARDS INTRA-COMMUNITY TRANSPORT , ON THE OTHER MEMBER STATES THE NECESSITY OF REMEDYING THE EFFECTS OF ITS OWN OMISSIONS , WHILE AT THE SAME TIME TAKING AN UNDUE ADVANTAGE TO THE DETRIMENT OF ITS PARTNERS .

10AS THE COURT SAID IN THE SAME JUDGMENT , PRACTICAL DIFFICULTIES WHICH APPEAR AT THE STAGE WHEN A COMMUNITY MEASURE IS PUT INTO EFFECT CANNOT PERMIT A MEMBER STATE UNILATERALLY TO OPT OUT OF FULFILLING ITS OBLIGATIONS . THE COMMUNITY INSTITUTIONAL SYSTEM PROVIDES THE MEMBER STATE CONCERNED WITH THE NECESSARY MEANS TO ENSURE THAT ITS DIFFICULTIES BE GIVEN DUE CONSIDERATION , SUBJECT TO COMPLIANCE WITH THE PRINCIPLES OF THE COMMON MARKET AND THE LEGITIMATE INTERESTS OF THE OTHER MEMBER STATES .

11IN THESE CIRCUMSTANCES , THE POSSIBLE DIFFICULTIES OF IMPLEMENTATION ALLEGED BY THE DEFENDANT CANNOT BE ACCEPTED AS A JUSTIFICATION .

12FURTHER , AS THE COURT SAID IN THE CASE MENTIONED ABOVE , IN PERMITTING MEMBER STATES TO PROFIT FROM THE ADVANTAGES OF THE COMMUNITY , THE TREATY IMPOSES ON THEM ALSO THE OBLIGATION TO RESPECT ITS RULES . FOR A STATE UNILATERALLY TO BREAK , ACCORDING TO ITS OWN CONCEPTION OF NATIONAL INTEREST , THE EQUILIBRIUM BETWEEN THE ADVANTAGES AND OBLIGATIONS FLOWING FROM ITS ADHERENCE TO THE COMMUNITY BRINGS INTO QUESTION THE EQUALITY OF MEMBER STATES BEFORE COMMUNITY LAW AND CREATES DISCRIMINATION AT THE EXPENSE OF THEIR NATIONALS . THIS FAILURE IN THE DUTY OF SOLIDARITY ACCEPTED BY MEMBER STATES BY THE FACT OF THEIR ADHERENCE TO THE COMMUNITY STRIKES AT THE VERY ROOT OF THE COMMUNITY LEGAL ORDER .

13IT APPEARS THEREFORE THAT , IN DELIBERATELY REFUSING TO GIVE EFFECT ON ITS TERRITORY TO THE PROVISIONS OF REGULATION NO 1463/70 , THE UNITED KINGDOM HAS MARKEDLY FAILED TO FULFIL THE OBLIGATION WHICH IT HAS ASSUMED BY VIRTUE OF ITS MEMBERSHIP OF THE EUROPEAN ECONOMIC COMMUNITY .

14THE COMMISSION HAS ALSO ASKED THAT THERE SHOULD BE A SEPARATE FINDING OF A FAILURE BY THE UNITED KINGDOM TO FULFIL ITS OBLIGATION TO CONSULT IT ON THE NATIONAL MEASURES TO BE INTRODUCED IN ACCORDANCE WITH THE AFOREMENTIONED ARTICLE 23 .

15IN THE PRESENT CASE THE FAILURE TO CONSULT THE COMMISSION IS PART OF THE FAILURE TO FULFIL THE OBLIGATIONS UNDER ARTICLE 23 ( 1 ), SINCE THE UNITED KINGDOM GOVERNMENT INFORMED THE COMMISSION ON 1 JANUARY 1976 THAT IT DID NOT CONSIDER ITSELF TO BE IN A POSITION TO INTRODUCE THE PROVISIONS REQUIRED BY THAT ARTICLE . IN THESE CIRCUMSTANCES IT IS NOT NECESSARY TO MAKE A SEPARATE DECLARATION IN RESPECT OF THE FAILURE TO CONSULT .

COSTS

16UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

17THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS AND MUST THEREFORE BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT BY FAILING TO ADOPT IN GOOD TIME THE MEASURES WHICH REMAIN TO BE TAKEN TO IMPLEMENT REGULATION NO 1463/70 OF THE COUNCIL OF 20 JULY 1970 ON THE INTRODUCTION OF RECORDING EQUIPMENT IN ROAD TRANSPORT , THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .