Case C‑501/14

EL-EM-2001 Ltd

v

Nemzeti Adó- és Vámhivatal Dél-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága

(Request for a preliminary ruling

from the Szegedi közigazgatási és munkaügyi bíróság)

‛Reference for a preliminary ruling — Road transport — Regulation (EC) No 561/2006 — Article 10(3) — Articles 18 and 19 — Fine imposed on the driver — Measures necessary to the execution of the penalty taken against the transport company — Immobilisation of the vehicle’

Summary — Judgment of the Court (Fifth Chamber), 19 October 2016

Transport — Road transport — Social provisions — Regulation No 561/2006 — National rules providing for the immobilisation of a haulage vehicle, owned by an undertaking, until payment of a fine imposed on the driver for an offence — Undertaking not liable — Breach of principle of proportionality

(European Parliament and Council Regulation No 561/2006, Art. 19(1))

Regulation No 561/2006 on the harmonisation of certain social legislation relating to road transport must be interpreted as precluding national legislation which authorises, as a precautionary measure, the immobilisation of a vehicle owned by a transport undertaking in a situation where, firstly, the driver of that vehicle, employed by the undertaking, drove it in breach of the provisions of Regulation No 3821/85 on recording equipment in road transport and, secondly, the competent national authority did not establish the liability of that undertaking, since such a precautionary measure does not meet the requirements of the principle of proportionality.

Although the adoption of a precautionary measure such as the immobilisation of a vehicle affecting the transport undertaking following an infringement committed by its driver in order to ensure performance of a penalty issued as a result of that infringement is, in itself, compatible with EU law, nonetheless, Article 19(1) of Regulation No 561/2006 requires Member States to lay down rules on penalties applicable to infringements of that regulation and Regulation No 3821/85 which are effective, proportionate, dissuasive and non-discriminatory. Since Regulation No 561/2006 does not establish, in particular, any express criterion for the assessment of the proportionality of such penalties, Member States are empowered to choose the penalties which seem to them to be appropriate, while complying with EU law and its general principles, and, consequently, with the principle of proportionality. Other measures closely linked to the penalties which, such as the immobilisation of a vehicle, ensure their effectiveness, must also meet those requirements.

Although it is true that a precautionary measure such as the immobilisation of a vehicle, the sole aim of which is to guarantee the rapid payment of the fine imposed as a penalty, is, in principle, appropriate and effective to achieve the objectives of improving the working conditions of drivers and road safety, referred to in Regulation No 561/2006, the immobilisation of a vehicle belonging to a transport undertaking which has not been found liable in administrative proceedings goes beyond what is necessary to achieve those objectives. There are measures which are just as effective but less restrictive and less disproportionate, in the light of the right to property, which include, in particular, the withdrawal, suspension or restriction of the driver’s driving licence until the fine has been paid.

With regard to the requirement of effectiveness and deterrence of the measure at issue, which follow from Article 19(1) of Regulation No 561/2006, read in conjunction with Article 18 of that regulation, where a fine was imposed solely on the driver, given that the liability of the undertaking, which was not a party to the administrative proceedings, was neither established nor even at issue, and the precautionary measure affected only that undertaking, even though it had not committed any infringement, that precautionary measure is not truly deterrent or effective as regards the driver. A measure such as, inter alia, the withdrawal, suspension or restriction of that driver’s driving licence until payment of the fine would, however, be deterrent and effective and would meet the requirements of the principle of proportionality.

(see paras 34-38, 44-49, operative part)