Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fifth Chamber)

17 March 1998 (1)

(Social legislation relating to road transport - Exception granted for vehicles used by public authorities to provide public services which are not in competition with professional road hauliers - Obligation on the driver to carry an extract from the duty roster)

In Case C-387/96,

REFERENCE to the Court under Article 177 of the EC Treaty by Svea Hovrätt (Sweden) for a preliminary ruling in the criminal proceedings before that court against

Anders Sjöberg

on the interpretation of Articles 13 and 14 of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1),

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet, J.C. Moitinho de Almeida, P. Jann (Rapporteur) and L. Sevón, Judges,

Advocate General: P. Léger,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- the French Government, by Catherine de Salins, Head of Subdirectorate in the Legal Directorate of the Ministry of Foreign Affairs, and Anne de Bourgoing, Chargé de Mission in the same directorate, acting as Agents,

- the United Kingdom Government, by John E. Collins, Assistant Treasury Solicitor, acting as Agent,

- the Commission of the European Communities, by Karin Oldfelt, Principal Legal Adviser, and Laura Pignataro, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Sjöberg, represented by Olle Jansson, of the Stockholm Bar; the Swedish Government, represented by L. Nordling, Rättschef in the Department of Foreign Trade of the Ministry of Foreign Affairs, and Kristina Svahn-Starrsjö, Hovrättsassessor in the same Department, acting as Agents; the French Government, represented by Anne de Bourgoing; the United Kingdom Government, represented by John E. Collins and Sara Masters, Barrister; and the Commission, represented by Karin Oldfelt and Laura Pignataro, at the hearing on 23 October 1997,

after hearing the Opinion of the Advocate General at the sitting on 16 December 1997,

gives the following

Judgment

1. By order of 22 November 1996, which was received at the Court on 27 November 1996, Svea Hovrätt (the Svea Court of Appeal) referred to the Court for a preliminary ruling pursuant to Article 177 of the EC Treaty two questions concerning the interpretation of Articles 13 and 14 of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).

2. The questions were raised in the course of criminal proceedings brought against Mr Sjöberg for infringement of the second subparagraph of Article 27(1) and Article 27(2) of Förordningen (1993:184) om kör- och vilotider samt färdskrivare vid vägtransporter (Regulation on driving and rest periods and recording equipment

   in road transport, hereinafter 'the Swedish Regulation'), and Article 14 of Regulation No 3820/85.

3. Article 13 of Regulation No 3820/85 provides in particular:

   '1. Each Member State may grant exceptions on its own territories or, with the agreement of the States concerned, on the territory of another Member State from any provision of this Regulation applicable to carriage by means of a vehicle belonging to one or more of the following categories:

   ...

   (b) vehicles used by public authorities to provide public services which are not in competition with professional road hauliers;

   ...

Member States shall inform the Commission of the exceptions granted under this paragraph.'

4. Article 14 provides:

   '1. In the case of

   - regular national passenger services,

   ...

   which are subject to this Regulation, a service timetable and a duty roster shall be drawn up by the undertaking.

   2. The duty roster shall show, in respect of each driver, the name, place where based and the schedule laid down in advance for various periods of driving, other work and availability.

   3. The duty roster shall include all the particulars specified in paragraph 2 for a minimum period covering both the current week and the weeks immediately preceding and following that week.

   4. ...

   5. Each driver assigned to a service referred to in paragraph 1 shall carry an extract from the duty roster and a copy of the service timetable.'

5. The provisions of Regulation No 3820/85 were in substance reproduced by the Swedish Regulation.

6. In each Swedish län (county) the landsting (county council) is responsible for the management of public road passenger services at local and regional level. The Stockholm Landsting manages the service exclusively through the company Aktiebolaget Storstockholms Lokaltrafik (hereinafter 'SL'), which is wholly owned by the Landsting and is the parent company of nine local network operating companies, including SL Buss AB.

7. Since 1993 transport services have been put out to tender. Thus SL Buss AB obtained the exclusive right to operate certain lines in various zones on the basis of contracts that were to run for three to five years with a possibility of an extension to ten years.

8. By judgment of 8 May 1996 Norrtälje Tingsrätt (the Norrtälje District Court) imposed a fine of SKR 1 500 on Mr Sjöberg, the manager of SL Buss AB, for having infringed Article 14 of Regulation No 3820/85 and the corresponding provision of the Swedish Regulation.

9. Mr Sjöberg appealed against that judgment to Svea Hovrätt. He contended in particular that SL Buss AB's vehicles should be regarded as covered by Article 13(1)(b) of Regulation No 3820/85 and accordingly were entitled to exemption. He also maintained that the drivers of two of the vehicles involved were carrying an extract from the duty roster which satisfied the criteria laid down in Article 14(5) of that regulation.

10. The Public Prosecutor, however, took the view that SL Buss AB was a private undertaking rather than a public authority, so that it was subject to the rules on competition. Moreover, he considered that an extract from the duty roster limited to one single day did not satisfy the conditions laid down in Article 14 of Regulation No 3820/85.

11. In the circumstances Svea Hovrätt decided to stay proceedings and refer to the Court for a preliminary ruling the following questions:

    '1. Is the exception contained in Article 13(1)(b) of Council Regulation (EEC) No 3820/85 applicable to the services run by Stockholm Landsting using SL Buss AB?

    2. According to Article 14(5) of that regulation, each driver assigned to a service referred to in paragraph 1 must carry an extract from the duty roster and a copy of the service timetable. Is it sufficient for the extract from the duty roster to cover only the journeys made on the day in question?'

    The first question

12. It should be recalled first of all that, according to consistent case-law, in proceedings brought under Article 177 of the Treaty the Court has no jurisdiction to apply the rules of Community law to a specific case (see, in particular, Case 20/67 Kunstmühle Tivoli v Hauptzollamt Würzburg [1968] ECR 199, and Case 204/87 Bekaert [1988] ECR 2029, paragraph 5).

13. Having regard to the information in the case-file in the main proceedings, therefore, the first question must be understood as asking whether the exception in respect of vehicles used by public authorities to provide public services which are not in competition with professional road hauliers, provided for in Article 13(1)(b) of Regulation No 3820/85, applies to vehicles belonging to an undertaking which is wholly owned by a public authority and which operates a public passenger service under a contract granting it an exclusive right for a specified period.

14. Article 13 of Regulation No 3820/85 lists certain categories of transport in respect of which the Member States may grant exceptions on their own territories from any provision of that regulation. Being thus a derogation from the general scheme, Article 13 may not be interpreted broadly. Furthermore, the scope of the exceptions which it lays down must be determined in the light of the aims pursued by the regulation (see Case C-335/94 Mrozek and Jäger [1996] ECR I-1573, paragraph 9, and Case C-39/95 Goupil [1996] ECR I-1601, paragraph 8).

15. The purpose of Article 13(1)(b) of Regulation No 3820/85 is to allow the public authorities of the Member States to be freed from the strict requirements of the regulation when providing transport in connection with public services.

16. That exemption must not, however, compromise attainment of the objectives of Regulation No 3820/85 which, as is made clear in the first recital in its preamble, consist in harmonising conditions of competition and improving working conditions and road safety. Furthermore, according to the twenty-second recital in the preamble, in the event of exceptions Member States are to ensure that the standard of social protection and road safety is not jeopardised.

17. Those considerations must be taken into account when interpreting the conditions laid down in Article 13(1)(b) of Regulation No 3820/85, according to which the vehicles must be used by public authorities to provide public services and must not be in competition with professional road hauliers. That latter condition must be examined first.

18. The Commission submits that the essential consideration is the absence of competition during the performance of the contract. A company such as SL Buss AB, which has obtained an exclusive right for a period of three to five years, would thus not be in competition with professional road hauliers during that period.

19. However, the point of the requirement that there must be no competition with professional road hauliers is both to provide a better guarantee of road safety and to prevent disruption to competition caused by a single haulier being exempted from compliance with the provisions of Regulation No 3820/85.

20. In the light of that twofold objective, the absence of competition with professional

    hauliers must be assessed both at the time when the exclusive right to operate a public service is granted and during the performance of the contract. It is common ground that until the contract is concluded an undertaking wishing to acquire the operation of a public service must engage in competitive conduct. Nor, once the contract has been signed, is that undertaking immune from competition, since it will operate the service in such a way as to ensure that the contract will be renewed when it comes to an end.

21. In the case in point, it is not disputed that the service was put out to tender. Accordingly there was competition between various professional road hauliers who also wished to be awarded the contract. That competition will quite clearly endure, since there will be a further call for tenders when the contract, which has been concluded for a specified period only, comes to an end.

22. It must therefore be held that vehicles used by an undertaking which has obtained the exclusive right to operate a transport service for a specified period following a tendering procedure are in competition with professional road hauliers, since that undertaking is bound to engage in competitive conduct if it is to obtain renewal of the contract when it comes to an end.

23. Since the condition relating to the absence of competition with professional road hauliers is not satisfied, there is no need to examine whether the other conditions are met.

24. Accordingly the answer to the first question must be that the exception in respect of vehicles used by public authorities to provide public services which are not in competition with professional road hauliers, provided for in Article 13(1)(b) of Regulation No 3820/85, does not apply to vehicles belonging to an undertaking which is wholly owned by a public authority and which operates a public passenger service under a contract granting it an exclusive right for a specified period following a call for competing tenders.

    The second question

25. The first point to be borne in mind here is that the purpose of requiring drivers to carry an extract from the duty roster is to ensure effective monitoring of compliance with the provisions of Regulation No 3820/85.

26. This is clear from the twenty-fifth recital in the preamble to the regulation, which states that in the case of drivers of vehicles used for regular passenger services, a copy of the timetable and an extract from the undertaking's duty roster may replace the recording equipment. Installation of such recording equipment is provided for in Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).

27. Article 15(7) of Regulation No 3821/85 provides that, whenever requested by an authorised inspecting officer to do so, the driver must be able to produce record sheets for the current week, and in any case for the last day of the previous week on which he drove. The purpose of that provision, as the Court held in Case C-158/90 Nijs and Transport Vanschoonbeek-Matterne [1991] ECR I-6035, at paragraph 13, is to ensure that compliance with the compulsory weekly rest period can be checked.

28. Since, in the case of regular passenger services, an extract from the duty roster and a copy of the service timetable replace the recording equipment, that extract and that copy must provide an equally effective means of monitoring compliance by the driver with the provisions concerning driving times and rest periods.

29. Consequently, the answer to the second question must be that the requirement in Article 14(5) of Regulation No 3820/85, that each driver assigned to a service referred to in Article 14(1) must carry an extract from the duty roster and a copy of the service timetable, is not satisfied where the extract from the duty roster relates only to the day on which it is checked.

    Costs

30. The costs incurred by the Swedish, French and United Kingdom Governments and by 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 (Fifth Chamber),

in answer to the questions referred to it by Svea Hovrätt by order of 22 November 1996, hereby rules:

1. The exception in respect of vehicles used by public authorities to provide public services which are not in competition with professional road

hauliers, provided for in Article 13(1)(b) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport, does not apply to vehicles belonging to an undertaking which is wholly owned by a public authority and which operates a public passenger service under a contract granting it an exclusive right for a specified period following a call for competing tenders.

2. The requirement in Article 14(5) of Regulation No 3820/85, that each driver assigned to a service referred to in Article 14(1) must carry an extract from the duty roster and a copy of the service timetable, is not satisfied where the extract from the duty roster relates only to the day on which it is checked.

GulmannWathelet Moitinho de Almeida JannSevón

Delivered in open court in Luxembourg on 17 March 1998.

R. Grass C. Gulmann

Registrar President of the Fifth Chamber

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1: Language of the case: Swedish.