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

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

2 March 2017 (*)

(Reference for a preliminary ruling — Road transport — Social provisions — Exceptions — Regulation (EC) No 561/2006 — Article 3(a) — Regulation (EC) No 1073/2009 — Article 2(3) — Regular services providing for the carriage of passengers — Concept — Carriage free of charge organised by an economic operator for its employees, to and from work, in vehicles belonging to it and driven by one of its employees)

In Case C‑245/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Judecătoria Balş — Judeţul Olt (Court of First Instance, Balş — Area of Olt, Romania), made by decision of 30 April 2015, received at the Court on 28 May 2015, in the proceedings

SC Casa Noastră SA

v

Ministerul Transporturilor — Inspectoratul de Stat pentru Controlul în Transportul Rutier (ISCTR)

THE COURT (Tenth Chamber),

composed of M. Berger (Rapporteur), President of the Chamber, A. Borg Barthet and F. Biltgen, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the Ministerul Transporturilor — Inspectoratul de Stat pentru Controlul în Transportul Rutier (ISCTR), by D. Ştefan, acting as Agent,

–        the Romanian Government, by M. Chicu and E. Gane and R.H. Radu, acting as Agents,

–        the Austrian Government, by G. Eberhard, acting as Agent,

–        the European Commission, by J. Hottiaux and L. Nicolae, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 3(a) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1), and of Article 2(3) of Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006 (OJ 2009 L 300, p. 88, and correction, OJ 2015 L 272, p. 15).

2        The request has been made in proceedings between SC Casa Noastră SA (‘Casa Noastră’) and Ministerul Transporturilor — Inspectoratul de Stat pentru Controlul în Transportul Rutier (ISCTR) (Ministry of Transport — State Inspectorate for Control of Transport — ISCTR, Romania) (‘the ISCTR’) concerning a fine imposed by the ISCTR on one of the employees of Casa Noastră for failure to observe the rules concerning driving breaks.

 Legal context

 EU law

 Regulation No 561/2006

3        Article 2(1)(b) of Regulation No 561/2006 provides:

‘This Regulation shall apply to the carriage by road:

...

(b)       of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver, and are intended for that purpose.’

4        Article 3(a) of that regulation provides:

‘This Regulation shall not apply to carriage by road by:

(a)       vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres.’

5        Article 4(n) of that regulation states:

‘For the purposes of this Regulation:

...

(n) “regular passenger services” means national and international services as defined in Article 2 of Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus [(OJ 1992, L 74, p. 1)].’

 Regulation No 684/92

6        Article 2(1) of Regulation No 684/92, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) (‘Regulation No 684/92’), states:

‘1.       Regular services

‘1.1.      Regular services are services which provide for the carriage of passengers at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points. Regular services shall be open to all subject, where appropriate, to compulsory reservation.

The regular nature of the service is not affected by any adaptation of the conditions under which the service is operated.

1.2.       Services, by whomsoever organised, which provide for the carriage of specified categories of passengers to the exclusion of other passengers, in so far as such services are operated under the conditions specified in 1.1., are to be deemed to be regular services. Such services are hereinafter called “special regular services”.

Special regular services shall include:

(a) the carriage of workers between home and work;

(b) carriage to and from the educational institution for school pupils and students,

(c) the carriage of soldiers and their families between their state of origin and the area of their barracks,

The fact that a special service may be varied according to the needs of users shall not affect its classification as a regular service.

...’

 Regulation No 1073/2009

7        Regulation No 684/92 was repealed by Article 30 of Regulation No 1073/2009. Under that article, references to the repealed Regulation are to be construed as references to Regulation No 1073/2009 and are to be read in accordance with the correlation table in Annex III thereto. As a result of that repeal, Article 2(1.1) of Regulation No 684/92 corresponds to Article 2(2) and Article 5(1) of Regulation No 1073/2009, and Article 2(1.2) of Regulation No 684/92 corresponds to Article 2(3) and Article 5(2) of Regulation No 1073/2009.

8        Article 2 of Regulation No 1073/2009 contains the following definitions:

‘...

2.      “regular services” means services which provide for the carriage of passengers at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points;

3.      “special regular services” means regular services, by whomsoever organised, which provide for the carriage of specified categories of passengers to the exclusion of other passengers;

...

5.      “own-account transport operations” means operations carried out for non-commercial and non-profit-making purposes by a natural or legal person, whereby:

-      the transport activity is only an ancillary activity for that natural or legal person, and

-      the vehicles used are the property of that natural or legal person or have been obtained by that person on deferred terms or have been the subject of a long-term leasing contract and are driven by a member of the staff of the natural or legal person or by the natural person himself or by personnel employed by, or put at the disposal of, the undertaking under a contractual obligation;

…’

9        Article 3 of that regulation, headed ‘Freedom to provide services’, states:

‘1. Any carrier for hire or reward referred to in Article 1 shall be permitted in accordance with this Regulation to carry out regular services, including special regular services and occasional services by coach and bus, without discrimination on grounds of nationality or place of establishment if he:

(a)       is authorised in the Member State of establishment to undertake carriage by means of regular services, including special regular services, or occasional services by coach and bus, in accordance with the market access conditions laid down by national legislation;

...

2. Any own-account carrier referred to in Article 1 shall be permitted to carry out the transport services pursuant to Article 5(5) without discrimination on grounds of nationality or place of establishment if he:

(a)       is authorised in the Member State of establishment to undertake carriage by coach and bus in accordance with the market-access conditions laid down in national legislation,

...’

10      Article 5 of that regulation, headed ‘Access to the market’, provides:

‘1.      Regular services shall be open to all subject, where appropriate, to compulsory reservation.

Such services shall be subject to authorisation in accordance with the provisions of Chapter III.

Regular services from a Member State to a third country and vice versa shall be subject to authorisation in accordance with the bilateral agreement between the Member State and the third country and, where appropriate, the transited Member State, as long as the necessary agreement between the Community and the third country concerned has not been concluded.

The regular nature of the service is not affected by any adaptation of the conditions under which the service is operated.

The organisation of parallel or temporary services, serving the same public as existing regular services, the non-serving of certain stops and the serving of additional stops on existing regular services shall be governed by the same rules as those applicable to existing regular services.

2.      Special regular services shall include:

(a)      the carriage of workers between home and work;

(b)      carriage of school pupils and students to and from the educational institution.

The fact that a special service may be varied according to the needs of users shall not affect its classification as a regular service.

Special regular services shall not be subject to authorisation in accordance with Chapter III where they are covered by a contract concluded between the organiser and the carrier.

...      

5.       Own-account transport operations shall be exempt from any system of authorisation but shall be subject to a system of certificates.

The certificates shall be issued by the competent authorities of the Member State in which the vehicle is registered and shall be valid for the entire journey including transit.

...’

 Romanian Law

11      Article 3 of the Ordonanţa Guvernului nr. 27/2011 privind transporturile rutiere (Government Ordinance No 27/2011 on road transport), in the version in force on the date of the facts at issue in the main proceedings, provides that ‘own-account road transport of persons is road transport carried out for non-profit-making and non-commercial purposes, by a natural or legal person, subject to the conditions laid down in Article 2(5) of Regulation No 1073/2009.’

12      Article 4, Part I, (2) of Ordinance No 27/2011 provides, as regards the classification of road transport:

‘(2) classification according to the commercial nature of the activity:

(a) road transport for consideration;

(b) own-account road transport.’

13      Article 52 of the annex of Ordinul Ministrului Transporturilor nr. 980/2011 pentru aprobarea Normelor metodologice privind aplicarea prevederilor referitoare la organizarea şi efectuarea transporturilor rutiere şi a activităţilor conexe acestora stabilite prin Ordonanţa Guvernului nr. 27/2011 privind transporturile rutiere (Ordinance No 980/2011 of the Minister of Transport adopting the methodological rules concerning the application of the provisions on the organisation and execution of road transport and activities related to those established by Government Ordinance No 27/2011 on road transport), in the version in force on the date of the facts at issue in the main proceedings, provides that regular services, special regular services and occasional services are carried out for consideration.

14      Article 54(1) and (2) of the Annex to Order No 980/2011 provides:

‘(1) Interdepartmental road transport of persons for consideration by regular services may be carried out by a road transport operator only if it has a valid operating route license for the journey in question, such as is provided for in the transport programme.

(2) An operating journey license is valid only if accompanied by the traffic schedule for the entire duration of the journey and only if the departure of the journey has been made on the day and time laid down in the traffic schedule.’

15      Article 80 of that Annex provides:

‘(1) Road transport of persons for their own account shall be carried out by road transport undertakings, for their own account, solely with buses on board of which, for the entire duration of the carriage, a certified copy of the certificate of transport for their own account as well as the transport document shall be available.

(2) For the purposes of paragraph 1, “transport document” means a table containing the names of the persons transported, signed and stamped by the legal representative of the undertaking.’

16      Article 81(a) of that Annex provides:

‘In addition to the transport document, in the case of road transport of persons for their own account, the following documents must be available on board the bus:

(a) valid driver’s service card showing that he is employed by the road transport undertaking for its own account.’

17      Article 8(1) of the Ordonanţa Guvernului nr. 37/2007 privind stabilirea cadrului de aplicare a regulilor privind perioadele de conducere, pauzele şi perioadele de odihnă ale conducătorilor auto şi utilizarea aparatelor de înregistrare a activităţii acestora (Government Ordinance No 37/2007 laying down the framework for the application of the rules relating to driving, break and rest periods for drivers of motor vehicles and the use of recording equipment for their activities), in the version in force on the date of the facts at issue in the main proceedings (‘Government Ordinance No 37/2007’) provides:

‘1. The following acts constitute very serious breaches of the provisions of Regulation (EC) No 561/2006 of the European Parliament and of the Council and of Regulation (EC) No 3821/85 and, where appropriate, of the agreement [European agreement concerning the work of crews of vehicles engaged in international road transport (AETR)], and they are regarded as administrative offences when they are not regarded as offences under criminal law:

(1)       Exceeding the daily driving time or the maximum daily driving time by more than two hours;

...

(6)       Failure to observe the reduced minimum daily rest period, where the difference exceeds two hours.’

18      Article 9 of Government Decree No 37/2007 provides:

‘1.       The offences defined in Article 8 shall be subject to the following penalties:

...

(c) a fine of RON 4 000 to 8 000 (Romanian lei) — applicable to the driver of the vehicle for acts covered by paragraph 1, subparagraphs 15, 16, 18 to 20, 22 to 26, 28 to 30, 36 and 38, and applicable to the road transport undertaking/operator for acts covered by paragraph 1, subparagraphs 1 to 11, 31 and 32.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

19      Casa Noastră is an undertaking that produces and markets PVC joinery and whose production facilities are located in Pieleşti (Romania), about 13 km from Craiova (Romania).

20      That undertaking transports its employees to and from their workplace by means of three 44-seat coaches and two 20-seat minibuses which it owns. It employs five drivers permanently for that purpose.

21      The employees of Casa Noastră work in rotation of three teams, so that their transport is carried out each working day at the rate of three return journeys. One of the routes covered by those journeys is the round trip between Pieleşti and Braneţ (Romania), the distance between those two locations being 21 km.

22      On 26 November 2014, one of Casa Noastră’s vehicles, driven by one of the undertakings’ drivers on that route, was inspected by an ISCTR inspector. During that inspection, the driver had to present his tachograph record, which revealed a failure to respect the rest and driving times. Casa Noastră was therefore ordered to pay an administrative fine, under Article 8(1)(1) and (6) of Governmental Order No 37/2007, for exceeding the daily driving time, and more specifically, the maximum daily driving time, as well as for failure to observe the minimum daily rest period.

23      Casa Noastră disputed that fine by maintaining, inter alia, that, at the time of that inspection, it was carrying out road transport for persons falling within the category of ‘special regular services’ for the transport of workers between their home and work, for a journey of less than 50 km, and that the derogation provided for in Article 3(a) of Regulation No 561/2006 applied.

24      The ISCTR contended that Casa Noastră was carrying out the carriage by road of passengers for its own account, as that carriage was carried out for non-profit making and non-commercial purposes, whereas the carriage by road of passengers in the context of special regular services is subject to payment and entails the observance of other conditions laid down by national legislation. Consequently, in its view, that carriage did not fall within the derogation provided for in Article 3(a) of Regulation No 561/2006.

25      The referring court is of the view that the Court of Justice will have to examine whether it is lawful, for economic operators, to organise transport services for their own workers to and from work and to consider the extent to which a worker is, for the duration of the carriage, a passenger using a special regular service, taking account of the fact that Casa Noastră does not receive any remuneration for transport service concerned.

26      Against that background, the Judecătoria Balş — Judeţul Olt (Court of First Instance of Balş — Region of Olt, Romania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) To what extent may the expression “by whomsoever organised” used in Article 2(3) of Regulation No 1073/2009 be interpreted as meaning that a regular transport service can be organised by an economic operator for the purpose of carrying its own employees to and from work?

(2) To what extent may the expression “carriage of passengers on regular services where the route covered does not exceed 50 kilometres”, used in Article 3(a) of Regulation No 561/2006 be interpreted as meaning that it applies to workers in connection with their travel to and from the workplace?’

 Consideration of the questions referred

27      By its two questions, which it is appropriate to examine jointly, the referring court asks, in essence, whether the service of carriage by road of workers between home and work, organised by their employer, where the route covered does not exceed 50 km, falls within the scope of the derogation laid down in Article 3(a) of Regulation No 561/2006, according to which that regulation does not apply to such a service.

28      In that regard it is necessary to bear in mind that, according to recital 17 and Article 1 of Regulation No 561/2006, that regulation seeks to harmonise the conditions of competition between inland transport modes, especially with regard to the road sector, and to improve the working conditions of employees in that sector and road safety, those objectives meaning in particular that, in principle, road transport vehicles must be equipped with an approved tachograph enabling compliance with driving times and drivers’ rest periods to be monitored (see, inter alia, Lundberg, C‑317/12, EU:C:2013:631, paragraph 31 and the case-law cited, and of 19 October 2016, EL-EM-2001, C‑501/14, EU:C:2016:777, paragraph 21).

29      According to Article 3(a) of Regulation No 561/2006, that regulation does not apply to the carriage by road by vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres.

30      Under Article 4(n) of that regulation, ‘regular passenger services’ means national and international services as defined in Article 2(1) of Regulation No 684/92.

31      In that regard, the Court has pointed out that Article 2(1) provides for two categories of such services by distinguishing between regular and special regular services. The former are open to all and provide for the carriage of passengers at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points. The latter are provided under the same conditions, but only for specified categories of passengers (judgment of 30 April 1998, Clarke & Sons and Ferne, C‑47/97, EU:C:1998:185, paragraph 16), namely for the carriage of ‘workers between home and work’, carriage ‘to and from the educational institution’ for school pupils and students, and the carriage of soldiers and their families ‘between their state of origin and the area of their barracks’.

32      It follows that special regular services constitute a specific category of regular services, the only difference between these two categories being that special regular services are intended for the transport of specific groups of passengers, to the exclusion of others, whereas regular services are accessible to all passengers without restriction. Having regard to the objectives pursued by Regulation No 561/2006, referred to in paragraph 28 of the present judgment, the nature of the persons carried cannot constitute a decisive criterion for the application or non-application of that regulation.

33      In view of the structure of Regulation No 684/92 and the definition of the concept of ‘special regular services’, it is apparent that the intention of the EU legislature was to exclude from the scope of Regulation No 561/2006 both regular and special regular services, provided that the route covered does not exceed 50 km.

34      That finding is not called into question by the fact that Regulation No 684/92 was replaced by Regulation No 1073/2009, which makes a distinction between ‘regular services’ and ‘special regular services’. Indeed, the definitions of those concepts remain essentially unchanged, so that special regular services are always defined as constituting a particular category of regular services.

35      In addition, carriage of workers between home and work is specifically governed by Article 5(2)(a) of Regulation No 1073/2009 in so far as it constitutes one of the forms of special regular services. The reasoning underlying the interpretation of Regulation No 684/92 therefore applies mutatis mutandis to Regulation No 1073/2009.

36      It follows that the scope of the derogation provided for in Article 3(a) of Regulation No 561/2006 was not amended by Regulation No 1073/2009, that derogation applying to both regular services and special regular services, provided that the route covered does not exceed 50 km.

37      In the second place, Article 2(5) of Regulation No 1073/2009, like Article 2(4) of Regulation No 684/1992, contains a definition of ‘own-account transport operations’, which are operations carried out for non-commercial and non-profit-making purposes by a natural or legal person, provided, first, that the transport activity is only an ancillary activity for that natural or legal person. Second, that definition provides that the vehicles must be the property of that person, have been obtained by that person on deferred terms or have been the subject of a long-term leasing contract and are driven by a member of the staff of the natural or legal person or by the natural person himself or by personnel employed by, or put at the disposal of, the undertaking under a contractual obligation.

38      In the present case, it must be noted that the carriage at issue in the main proceedings appears to fulfil the conditions required to qualify as a ‘special regular service’.

39      That carriage is carried out every working day by three return journeys, which corresponds to three shifts each day at Casa Noastră. Since, according to the information available to the Court, transport between home and the work of the employees of that undertaking is carried out between the localities of Pieleşti and Braneţ, the journey concerned is ‘specified’, within the meaning of Article 2(2) of Regulation No 1073/2009, the workers being taken up and set down at predetermined stopping points. Moreover, the service at issue in the main proceedings is directed only at a specific category of passenger, in the present case the employees of that undertaking, to the exclusion of other passengers.

40      Moreover, the carriage at issue in the main proceedings also satisfies the requirements laid down in Article 2(5) of Regulation No 1073/2009 relating to ‘own-account transport operations’.

41      According to the same factors, the transport services concerned are provided to the employees of Casa Noastră neither for profit nor for commercial purposes. Indeed, the referring court points out that no remuneration is received for the service provided. Furthermore, the main activity of that company is not the carriage of passengers, but the production and marketing of PVC joinery, the carriage of workers representing only an accessory activity for it. Finally, Casa Noastră owns the vehicles used, which are, moreover, driven by its employees.

42      As was stated in paragraph 36 of the present judgment, the derogation provided for in Article 3(a) of Regulation No 561/2006 applies to regular services, including special regular services. Consequently, that derogation does not, on the face of it, concern own-account transport operations.

43      It must be observed that the category of regular services, which includes special regular services, and the category of own-account transport operations, are not mutually exclusive. Own-account transport operations may take the form of special regular services or occasional services, the latter being defined in Article 2(4) of Regulation No 1073/2009 as services which do not fall within the definition of regular services, including special regular services, and the main characteristic of which is the carriage of groups of passengers constituted on the initiative of the customer or the carrier himself.

44      In that regard, it should be noted that nothing in the wording of Regulations No 561/2006 and No 1073/2009 precludes that interpretation. In principle, as the European Commission maintained in its written observations, transport services may be classified in two categories: services provided to third parties, on the one hand, and own-account transport services, on the other.

45      The first of those two categories may take several forms, namely regular services, special regular services and occasional services.

46      Own-account services may also take the form of special regular services or occasional services if they satisfy the conditions laid down in Regulation No 1073/2009. In contrast, regular services are excluded, which are, by definition, accessible to all passengers.

47      That interpretation is supported by the fact that both Regulation No 684/92 and Regulation No 1073/2009 include within the scope of the special regular services, as has already been found in paragraph 35 of the present judgment, carriage of workers between home and work. Furthermore, the definition in Article 2(1.2) of Regulation No 684/92 states that those services provide for the carriage of specified categories of passengers ‘by whomsoever organised’.

48      In addition, such an interpretation is also confirmed by the fact that own-account transport operations are, in Regulation No 1073/2009, which lays down common rules for access to the international market for coach and bus services, subject to rules which are generally less stringent than those applicable to regular services, including special regular services. Special regular services can be carried out only on authorisation, whereas own-account transport operations are subject solely to a certification system and are exempt from authorisation. Consequently, it is not necessary to obtain a certificate on the basis of the conditions for the exercise of the transport service, as the certificate relating to own-account transport operations covers all the conditions for the exercise of the service, without the need to specifically categorise the transport service concerned.

49      The only difference between a special regular service for third parties and the same service carried out in the context of own-account transport operations is, consequently, the nature of the organiser of the service. That difference cannot justify the exclusion of special regular services carried out in the context of own-account transport operations from the scope of the derogation provided for in Article 3(a) of Regulation No 561/2006.

50      Nor does that interpretation undermine the objectives pursued by Regulation No 561/2006. That regulation seeks, as mentioned in paragraph 28 of the present judgment, to harmonise the conditions of competition between ground transport modes, in particular road transport, and to improve the working conditions of personnel in that sector as well as road safety. Own-account special regular services do not represent unfair competition to the detriment of other types of transport offered to third parties since only the employees of the undertaking which offers those services may use them. Indeed, as regards the improvement of working conditions and road safety, there is no justification for distinguishing between a driver who provides special regular services for third parties on distances less than 50 km and a driver who provides regular services in the context of own-account transport operations over the same distances.

51      It follows from all the foregoing considerations that Article 3(a) of Regulation No 561/2006 and Article 2(3) of Regulation No 1073/2009 must be interpreted as meaning that the service of the carriage by road of workers between home and work, organised by their employer, where the route covered does not exceed 50 km, falls within the scope of the derogation laid down in Article 3(a) of Regulation No 561/2006, according to which that regulation does not apply to such a service.

 Costs

52      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Article 3(a) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 and Article 2(3) of Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006, must be interpreted as meaning that the service of the carriage by road of workers between home and work, organised by their employer, where the route covered does not exceed 50 km, falls within the scope of the derogation laid down in Article 3(a) of Regulation No 561/2006, according to which that regulation does not apply to such a service.

[Signatures]

*      Language of the case: Romanian.

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