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URL: http://www.bailii.org/eu/cases/EUECJ/1977/R6576.html
Cite as: [1977] EUECJ R-65/76

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61976J0065
Judgment of the Court (Second Chamber) of 25 January 1977.
Marcel Derycke.
Reference for a preliminary ruling: Rechtbank van eerste aanleg Oudenaarde - Belgium.
Social legislation relating to road transport.
Case 65-76.
European Court reports 1977 Page 00029
Greek special edition 1977 Page 00021
Portuguese special edition 1977 Page 00021

TRANSPORT - SOCIAL LEGISLATION - HARMONIZATION - DAILY REST PERIOD - INDIVIDUAL CONTROL BOOK - OBLIGATION - SCOPE - DRIVER OF VEHICLE - INDEPENDENT TRADER

ARTICLES 1 , 2 AND 4 OF REGULATION NO 543/69 OF THE COUNCIL OF 25 MARCH 1969 ON THE HARMONIZATION OF CERTAIN SOCIAL LEGISLATION RELATING TO ROAD TRANSPORT MUST BE INTERPRETED AS COVERING ANY CARRIAGE COMING WITHIN THE SCOPE OF THE REGULATION IRRESPECTIVE OF THE STATUS OF THE DRIVER OF THE VEHICLE SO THAT THE PROVISIONS OF THE REGULATION ARE APPLICABLE TO CARRIAGE EFFECTED BOTH BY AN INDEPENDENT TRADER AND BY AN EMPLOYED DRIVER .

IN CASE 65/76
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORRECTIONELE RECHTBANK ( CRIMINAL APPEAL COURT ), SITTING AT OUDENAARDE ( BELGIUM ) FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BY WAY OF APPEAL IN THAT COURT AGAINST
MARCEL DERYCKE , STALLHOLDER , RESIDING AT RONSE ,

ON THE INTERPRETATION OF ARTICLES 2 AND 4 ( 2 ) OF REGULATION NO 543/69 OF THE COUNCIL OF 25 MARCH 1969 ON THE HARMONIZATION OF CERTAIN SOCIAL LEGISLATION RELATING TO ROAD TRANSPORT .

1 BY JUDGMENT DATED 25 JUNE 1976 , RECEIVED AT THE COURT REGISTRY ON 13 JULY 1976 , THE CORRECTIONELE RECHTBANK , SITTING AT OUDENAARDE , REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF CERTAIN PROVISIONS ON THE SCOPE OF REGULATION NO 543/69 OF THE COUNCIL OF 25 MARCH 1969 ON THE HARMONIZATION OF CERTAIN SOCIAL LEGISLATION RELATING TO ROAD TRANSPORT ( OJ ENGLISH SPECIAL EDITION 1969 ( I ), P . 170 ).

2 IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT THE APPELLANT IN THE MAIN ACTION WAS FOUND GUILTY AT FIRST INSTANCE OF HAVING DRIVEN A LORRY COMING WITHIN THE PROVISIONS OF REGULATION NO 543/69 WITHOUT BEING IN POSSESSION OF THE INDIVIDUAL CONTROL BOOK REQUIRED BY THE PROVISIONS OF THE SAME REGULATION .

3 THE APPELLANT , WHO IS A STALLHOLDER , MAINTAINS THAT THAT REGULATION IS NOT APPLICABLE TO INDEPENDENT TRADERS , BUT ONLY TO DRIVERS WHO ARE WORKING FOR A PRIVATE EMPLOYER OR UNDERTAKING .

4 THE NATIONAL COURT HAS DOUBTS ON THE INTERPRETATION OF THE PROVISIONS DETERMINING , IN THIS RESPECT , THE SCOPE OF THE REGULATION HAVING REGARD IN PARTICULAR TO THE FACT THAT THE REGULATION IS OF A ' SOCIAL ' NATURE AND THAT CERTAIN OF THE PROVISIONS , PARTICULARLY THE INSTRUCTIONS IN THE ANNEX LAYING DOWN THE MODEL OF THE CONTROL BOOK ITSELF , USE THE CONCEPTS OF ' UNDERTAKING ' , ' EMPLOYER ' AND ' WORKER ' .

5 IN ORDER TO SETTLE THIS DOUBT THE NATIONAL COURT HAS REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :
' IS IT TO BE UNDERSTOOD FROM ARTICLES 2 AND 4 ( 2 ) OF REGULATION ( EEC ) NO 543/69 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 25 MARCH 1969 ON THE HARMONIZATION OF CERTAIN SOCIAL LEGISLATION RELATING TO ROAD TRANSPORT THAT THAT REGULATION IS APPLICABLE TO ANY CARRIAGE OF GOODS BY A VEHICLE WITH A PERMISSIBLE MAXIMUM WEIGHT OF 3.5 TONNES OR OVER , IRRESPECTIVE OF THE STATUS OF THE DRIVER OF THAT VEHICLE , SO THAT THOSE PROVISIONS ARE APPLICABLE TO THE CARRIAGE OF GOODS EITHER BY AN EMPLOYEE OR BY AN INDEPENDENT TRADER?

OR ARE THE SAID ARTICLES OF THAT REGULATION ( EEC ) NO 543/69 TO BE INTERPRETED AS MEANING THAT THE REGULATION APPLIES , IN RESPECT OF THE CARRIAGE OF GOODS BY A VEHICLE HAVING A PERMISSIBLE MAXIMUM WEIGHT OF 3.5 TONNES OR OVER , ONLY TO THE CARRIAGE OF GOODS BY ROAD BY AN EMPLOYEE OF AN UNDERTAKING , SO THAT THOSE PROVISIONS SHOULD NOT BE APPLICABLE TO THE CARRIAGE OF GOODS BY AN INDEPENDENT TRADER ON HIS OWN ACCOUNT?

6 THE SCOPE OF REGULATION NO 543/69 ITSELF MUST BE DETERMINED BY THE WORDING OF THE PROVISIONS RELEVANT TO THE CASE , THE STRUCTURE OF THE REGULATION AND ITS OBJECTIVES .

7 ARTICLE 2 , COMING UNDER SECTION II HEADED ' SCOPE ' , STATES : ' THIS REGULATION SHALL APPLY TO CARRIAGE BY ROAD ' AND ARTICLE 1 ( 1 ) PROVIDES THAT ' CARRIAGE BY ROAD ' MEANS ' ANY JOURNEY BY ROAD OF A VEHICLE . . . USED FOR THE CARRIAGE OF PASSENGERS OR GOODS ' SAVE FOR VEHICLES EXPRESSLY MENTIONED IN ARTICLE 4 .
8 IT APPEARS FROM THIS PROVISION THAT THE SCOPE OF THE REGULATION IS FUNDAMENTALLY DETERMINED IN TERMS OF A PARTICULAR TYPE OF CARRIAGE AND NOT BY REASON OF THE STATUS OF THE DRIVER .

9 THE SAME CONCLUSION MAY BE REACHED FROM ARTICLE 1 ( 3 ) WHICH DEFINES THE CONCEPT OF ' CREW MEMBER ' AS THE DRIVER , DRIVER ' S MATE AND THE CONDUCTOR , AND THE DRIVER IS TO BE UNDERSTOOD AS ' ANY PERSON ' WHO DRIVES THE VEHICLE .

10 IT IS IN THIS GENERIC SENSE THAT THE EXPRESSIONS ' CREW MEMBER ' AND ' DRIVER ' ARE NORMALLY USED THROUGHOUT THE REGULATION .

11 THE CONCEPTS ' UNDERTAKING ' AND ' EMPLOYER ' USED IN THE WORDING OF THE CONTROL BOOK TO COVER THE MOST FREQUENT PRACTICAL NEEDS CANNOT BE UNDERSTOOD AS MAKING ANY CHANGE IN THE GENERAL STRUCTURE OF THE REGULATION OR PLACING A LIMITATION ON ITS SCOPE .

12 NOR CAN A RESTRICTIVE SCOPE BE GIVEN TO THE WORDS ' CERTAIN SOCIAL LEGISLATION ' IN THE TITLE TO THE REGULATION SINCE THIS CONCEPT , FAR FROM BEING LIMITED TO RELATIONS BETWEEN EMPLOYERS AND EMPLOYEES , EMBRACES IN ORDINARY SPEECH QUESTIONS RELATED TO THE WELL-BEING OF THE MOST DIVERSE CLASSES OF THE POPULATION .

13 THE USE OF THIS PHRASE IN REGULATION NO 543/69 CANNOT THEREFORE BE UNDERSTOOD TO EXCLUDE INDEPENDENT WORKERS FROM THE SCOPE OF THE RULES WHICH IT LAYS DOWN .

14 THE EVIDENCE TO BE FOUND IN THE WORDING AND THE STRUCTURE OF THE REGULATION IS COMPLETELY IN ACCORD WITH ITS OBJECTIVES .

15 THE FIRST OBJECTIVE OF THE REGULATION IS OF A SOCIAL NATURE CONSISTING IN PROTECTING DRIVERS AND THE CREWS OF VEHICLES USED FOR TRADE PURPOSES AGAINST THE HARMFUL EFFECTS OF EXCESSIVE AND BADLY DISTRIBUTED DRIVING PERIODS .

16 IN ADDITION , AS SHOWN BY THE SECOND PARAGRAPH OF THE PREAMBLE , THE OBJECTIVE OF THE REGULATION IS TO ELIMINATE DISPARITIES LIABLE TO CAUSE SUBSTANTIAL DISTORTION IN COMPETITION IN THE TRANSPORT SECTOR BY ENDING WORKING PRACTICES BASED ON AN IMPROPER EXPLOITATION OF THE HUMAN FACTOR .

17 FINALLY , AS APPEARS FROM VARIOUS REFERENCES IN THE PREAMBLE AND FROM SEVERAL OF THE PROVISIONS OF THE REGULATION , THE LATTER IS ALSO INTENDED TO CONTRIBUTE TO ROAD SAFETY ON THE PUBLIC HIGHWAY .

18 ALL THESE CONSIDERATIONS APPLY , FOR THE SAME REASONS , TO ALL DRIVERS OF VEHICLES WHETHER THEY BE EMPLOYED OR INDEPENDENT .

19 THE EXEMPTION OF INDEPENDENT DRIVERS FROM THE SCOPE OF THE REGULATION WOULD HAVE REPERCUSSIONS WHICH WOULD BE ALL THE MORE SERIOUS IN VIEW OF THE FACT THAT IT WOULD LIKEWISE INVOLVE THE EXEMPTION OF A LARGE NUMBER OF FAMILY-TYPE OR COOPERATIVE UNDERTAKINGS RUN BY PERSONS NOT BOUND BY THE TYPICAL LINKS BETWEEN EMPLOYERS AND EMPLOYEES .

20 THE EFFECT OF SUCH AN EXEMPTION WOULD THEREFORE BE TO OPEN A CONSIDERABLE BREACH IN THE EFFECTIVENESS OF THE PROVISIONS OF THE REGULATION .

21 FOR ALL THESE REASONS IT IS APPROPRIATE TO REPLY TO THE QUESTION RAISED THAT ARTICLES 1 , 2 AND 4 OF REGULATION NO 543/69 MUST BE INTERPRETED AS COVERING ANY CARRIAGE COMING WITHIN THE SCOPE OF THE REGULATION IRRESPECTIVE OF THE STATUS OF THE DRIVER OF THE VEHICLE SO THAT THE PROVISIONS OF THE REGULATION ARE APPLICABLE TO CARRIAGE EFFECTED BOTH BY AN INDEPENDENT TRADER AND BY AN EMPLOYED DRIVER .

COSTS
22 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

23 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE CORRECTIONELE RECHTBANK , SITTING AT OUDENAARDE , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CORRECTIONELE RECHTBANK , SITTING AT OUDENAARDE , BY JUDGMENT OF 25 JUNE 1976 , HEREBY RULES :
ARTICLES 1 , 2 AND 4 OF REGULATION NO 543/69 OF THE COUNCIL OF 25 MARCH 1969 ON THE HARMONIZATION OF CERTAIN SOCIAL LEGISLATION RELATING TO ROAD TRANSPORT MUST BE INTERPRETED AS COVERING ANY CARRIAGE COMING WITHIN THE SCOPE OF THE REGULATION IRRESPECTIVE OF THE STATUS OF THE DRIVER OF THE VEHICLE SO THAT THE PROVISIONS OF THE REGULATION ARE APPLICABLE TO CARRIAGE EFFECTED BOTH BY AN INDEPENDENT TRADER AND BY AN EMPLOYED DRIVER .