61992J0116

++++

Transport ° Road transport ° Social provisions ° Prohibition on driving continuously for more than four-and-a-half hours ° Calculation of the duration of breaks

(Council Regulation No 3820/85, Art. 7(1) and (2))

Article 7(1) and (2) of Regulation No 3820/85 on the harmonization of certain social legislation relating to road transport is to be interpreted as prohibiting drivers to which it applies from driving continuously for more than four-and-a-half hours. However, where a driver has taken 45 minutes' break, either as a single break or as several breaks of at least 15 minutes during or at the end of a four-and-a-half hour period, the calculation provided for by Article 7(1) of the regulation should begin afresh, without taking into account the driving time and breaks previously completed by the driver.

The calculation provided for by Article 7(1) of Regulation No 3820/85 begins at the moment when the driver sets in motion the recording equipment provided for by Regulation No 3821/85 and begins driving.

In Case C-116/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Manchester Crown Court for a preliminary ruling in the criminal proceedings before that court against

Kevin Albert Charlton,

James Huyton,

Raymond Edward William Wilson,

on the interpretation of Article 7(1) and (2) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport (OJ 1985 L 370, p. 1),

THE COURT (Sixth Chamber),

composed of: M. Diez de Velasco, President of the Fourth Chamber, acting for the President of the Chamber, F.A. Schockweiler, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: W. Van Gerven,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

° Kevin Albert Charlton, James Huyton and Raymond Edward William Wilson, by J. Anderson Backhouse, Solicitor,

° the French Government, by E. Belliard, Deputy Director in the Directorate for Legal Affairs in the Ministry of Foreign Affairs, acting as Agent,

° the Netherlands Government, by Dr B.R. Bot, Secretary-General in the Ministry of Foreign Affairs, acting as Agent,

° the United Kingdom Government, by S. Lucinda Hudson, of the Treasury Solicitor' s Department, acting as Agent, assisted by Daniel Bethlehem, Barrister,

° the Commission of the European Communities, by Xavier Lewis and Vittorio Di Bucci, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of K.A. Charlton and Others, the United Kingdom Government and the Commission of the European Communities at the hearing on 1 July 1993,

after hearing the Opinion of the Advocate General at the sitting on 15 September 1993,

gives the following

Judgment

1 By order of 7 April 1992, received at the Court on 13 April 1992, the Manchester Crown Court referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Article 7(1) and (2) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport (OJ 1985 L 370, p. 1, hereinafter "the Regulation").

2 The Manchester Crown Court (hereinafter "the national court") is hearing appeals against convictions by the Heywood Magistrates' Court. The latter convicted Mr Charlton, Mr Huyton and Mr Wilson for various infringements of Articles 6(1), 7(1) and (2) and 8(1) of the Regulation and of the provisions of the Transport Act 1968, as amended, and the Drivers' Hours (Harmonization with Community Rules) Regulations 1986.

3 In the course of those proceedings the national court decided to refer the following questions to the Court for a preliminary ruling:

"1. Upon a proper interpretation of Article 7(1) and (2): Does the Regulation create separate periods of four-and-a-half hours' driving in the aggregate after or during which breaks totalling 45 minutes or more must be taken if the driver does not immediately commence a daily rest period or a weekly rest period?

2. In relation to a daily driving period: at what point does the calculation of four-and-a-half hours commence?

3. Does it end and a fresh four-and-a-half hour period commence:

(a) upon completion of the aggregate of 45 minutes' rest

or

(b) at the end of four-and-a-half hours' aggregated driving

or

(c) on a rolling basis at any time when the driver has been driving for four-and-a-half hours in the aggregate and has not during that period taken at least 45 minutes' break?"

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Questions 1 and 3

5 Since Questions 1 and 3 are concerned with the same issue, it is appropriate to examine them together.

6 According to the United Kingdom, the central issue underlying the national court' s questions is how the four-and-a-half hour period referred to in Article 7(1) of the Regulation is to be interpreted and what the relationship is between that period and the daily driving period referred to in Article 6(1) of the Regulation.

7 Article 7, whose interpretation is requested by the national court, provides as follows:

"1. After four-and-a-half hours' driving, the driver shall observe a break of at least 45 minutes, unless he begins a rest period.

2. This break may be replaced by breaks of at least 15 minutes each distributed over the driving period or immediately after this period in such a way as to comply with the provisions of paragraph 1."

8 The Regulation seeks to harmonize certain social provisions in the sphere of road transport. It repeals and replaces Council Regulation (EEC) No 543/69 of 25 March 1969 on the harmonization of certain social legislation relating to road transport (OJ, English Special Edition 1969 (I), p. 170). As is apparent from the first recital in its preamble, the Regulation is intended to safeguard progress made in this sphere, but to make the relevant provisions more flexible without undermining their objectives. Its aims are threefold, namely the elimination of disparities which distort competition, preserving road safety and improving the living and working conditions of drivers. It replaces the flexible week by a fixed week (Article 1(4)).

9 As regards driving periods, the Regulation continues to limit the period of continuous driving (Article 7(1)) and the daily driving period (Article 6(1)), but lengthens those periods by comparison with Regulation No 543/69. At the same time the breaks from driving are adjusted to take account of the longer daily driving period. Article 11 of the Regulation in any event authorizes Member States to apply stricter rules with respect to driving periods. To enable him to reach a suitable stopping place, Article 12 allows a driver to depart from the provisions of the Regulation to the extent necessary to ensure the safety of persons, of the vehicle or of its load, provided that road safety is not thereby jeopardized.

10 The accused in the main proceedings, pointing to the ambiguous nature of those provisions, suggest that the Court should adopt the least restrictive interpretation in accordance with the general principles of law, in particular the principles requiring the interpretation that is most favourable to the accused in criminal proceedings and the interpretation which gives the greatest freedom to the individual to conduct his affairs as he sees fit. They conclude therefore that the daily driving period comprises two four-and-a-half hour periods, within or at the end of which the driver must take a break of 45 minutes or several breaks of at least 15 minutes totalling 45 minutes. Since the break relating to the second four-and-a-half hour period may be taken at the end of that period, the Regulation permits the driver to drive for nine hours each day, stopping for only 45 minutes at any moment within or at the end of the first four-and-a-half hour period (the "wipe the slate clean" interpretation).

11 The United Kingdom takes the opposite view. In its opinion, the interpretation proposed by the accused would allow a driver who concentrates his breaks relating to the first four-and-a-half hour period at the beginning of the day to drive continuously almost all day. Such a solution would run counter to the Regulation, which in no circumstances permits driving for more than four-and-a-half hours without taking one or more breaks totalling 45 minutes. Consequently, in the United Kingdom' s view, within the maximum daily driving period of nine hours the driver must, in order to comply with Article 7 of the Regulation, take account at all times not only of the period during which he intends to drive but also of the period which he has already spent at the wheel without taking one or more breaks totalling 45 minutes, so that at the end of the daily driving period of nine hours there is no period within which the period of driving exceeds four-and-a-half hours (the "rolling period" interpretation).

12 Finally, the French Republic proposes an intermediate solution. According to its interpretation of Article 7 of the Regulation, after 45 minutes' break comprising all the breaks of at least 15 minutes within a four-and-a-half hour driving period, the calculation provided for by Article 7(1) of the Regulation begins afresh without taking into account all the previous period.

13 According to the views put forward by the United Kingdom and the French Republic, the daily driving period provided for by Article 6(1) of the Regulation does not, as the accused claim, consist of two four-and-a-half hour periods. According to the United Kingdom' s interpretation, Article 7(1) of the Regulation solely lays down an obligation to take breaks at any time within the daily driving period. The French Republic' s view does not preclude the possibility that the calculation of the four-and-a-half hours provided for by Article 7(1) of the Regulation may recommence several times within a daily driving period.

14 As the Court has held on several occasions (Case 47/79 Nehlsen [1979] ECR 3639 and Case 133/83 Scott [1984] ECR 2863), where a provision is insufficiently clear and explicit, its scope should be determined by examining its objectives and the legal context in which it is situated.

15 The 14th recital in the preamble to the Regulation shows that the limits set on driving times are intended to serve the interests of road safety. That is confirmed by Article 12 of the Regulation, which allows a driver to depart from the provisions of the Regulation, including Article 7, in order to enable him to reach a suitable stopping place, provided that road safety is not thereby jeopardized.

16 It follows from the foregoing that Article 7(1) and (2) of Regulation No 3820/85 cannot be interpreted as authorizing drivers to drive continuously for a period of more than four-and-half hours.

17 The interpretation advocated by the accused in the main proceedings must therefore be rejected, since it does not conform to the objectives of road safety pursued by the Regulation.

18 It should be noted further that, in accordance with the first recital in the preamble, the Regulation made more flexible the provisions of Regulation No 543/69, including the weekly and daily limits on driving periods and the rest periods (Case C-8/90 Kennes and Verkooyen [1991] ECR I-4391, paragraph 3).

19 Accordingly, it lengthened the driving periods provided for by Articles 6(1) and 7(1) but at the same time lengthened the break provided for by Article 7(1) and (2).

20 In that context any stricter limit on driving time must be seen as an exception to the general objective pursued by the Regulation of making the provisions more flexible and must therefore be interpreted narrowly.

21 The interpretation advocated by the UK is contrary to the objective, set out in the first recital of the preamble to the Regulation, of making the provisions of Regulation No 543/69 more flexible. The calculation which it proposes to determine the breaks would end only on the expiry of the daily driving period or when the driver had taken a break of at least 45 minutes. This would lead in fact to the same driving period being counted twice where a driver divided the compulsory break. Moreover, it is not consistent with the actual wording of Article 7(2), which provides expressly that the 45-minute break which must be taken after four-and-a-half hours' driving under paragraph 1 may be "replaced" by breaks of at least 15 minutes each distributed over the driving period or immediately after that period.

22 Consequently, it must be concluded that, where a driver has taken 45 minutes' break either as a single break or as several breaks of at least 15 minutes during or at the end of a four-and-a-half hour period, the calculation provided for by Article 7(1) of the Regulation should begin afresh, without taking account of the driving time and breaks previously completed by the driver.

Question 2

23 As regards the question as to the moment when the driving period begins, it should be noted that, according to the fifth recital in the preamble to Regulation No 3820/85, one of the objectives pursued by that regulation in replacing Regulation No 543/69 was to improve control of drivers' work.

24 The system to guarantee the effectiveness of such control was set up by Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8). The third recital in the preamble to that regulation states that the only effective control of driving time and breaks provided for by Article 7(1) and (2) of Regulation No 3820/85 is that achieved by means of the recording equipment provided for by Regulation No 3821/85.

25 Consequently, the reply to the second question must be that the calculation provided for by Article 7(1) of Regulation No 3820/85 begins at the moment when the driver sets in motion the recording equipment provided for by Regulation No 3821/85 and begins driving.

Costs

26 The costs incurred by United Kingdom, the French Republic, the Kingdom of the Netherlands and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Manchester Crown Court, by order of 7 April 1992, hereby rules:

1. Article 7(1) and (2) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport is to be interpreted as prohibiting drivers to which it applies from driving continuously for more than four-and-a-half hours. But where a driver has taken 45 minutes' break either as a single break or as several breaks of at least 15 minutes during or at the end of a four-and-a-half hour period, the calculation provided for by Article 7(1) of the Regulation should begin afresh, without taking into account the driving time and breaks previously completed by the driver.

2. The calculation provided for by Article 7(1) of Regulation No 3820/85 begins at the moment when the driver sets in motion the recording equipment provided for by Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport and begins driving.