In Case C-235/94,
REFERENCE to the Court under Article 177 of the EC Treaty by the Crown Court, Bolton, United Kingdom, for a preliminary ruling in the criminal proceedings before that court against
Alan Geoffrey Bird
on the interpretation of Article 12 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 (First Chamber),
composed of: D.A.O. Edward, President of the Chamber, P. Jann (Rapporteur) and L. Sevón, Judges,
Advocate General: P. Léger,
Registrar: L. Hewlett, Administrator,
after considering the written observations submitted on behalf of:
° Mr Bird, by J.A. Backhouse, Solicitor,
° the United Kingdom, by S. Braviner, of the Treasury Solicitor' s Department, acting as Agent, and D. Bethlehem, Barrister, and
° the Commission of the European Communities, by F.S. Benyon and G. Berardis, Legal Advisers, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mr Bird, the United Kingdom and the Commission at the hearing on 6 July 1995,
after hearing the Opinion of the Advocate General at the sitting on 14 September 1995,
gives the following
Judgment
1 By order of 10 June 1994, received at the Court on 19 August 1994, the Crown Court, Bolton, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 12 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 That question was raised in the context of criminal proceedings against Mr Bird, who was charged with two offences involving infringements of the Regulation.
3 The first subparagraph of Article 6(1) of the Regulation provides:
"The driving period between any two daily rest periods or between a daily rest period and a weekly rest period, hereinafter called 'daily driving period' , shall not exceed nine hours. It may be extended twice in any one week to 10 hours."
4 Article 7(1) reads as follows:
"After four-and-a-half hours' driving, the driver shall observe a break of at least 45 minutes, unless he begins a rest period."
5 A derogation from those provisions is contained in Article 12, which provides:
"Provided that road safety is not thereby jeopardized and to enable him to reach a suitable stopping place, the driver may depart from the provisions of this Regulation to the extent necessary to ensure the safety of persons, of the vehicle or of its load. The driver shall indicate the nature of and reason for his departure from those provisions on the record sheet of the recording equipment or in his duty roster."
6 On 21 April 1994 Rochdale Magistrates' Court convicted Mr Bird of offences involving infringements of Articles 6 and 7 of the Regulation. Mr Bird, who was employed by a haulage company, had driven his vehicle for over ten hours between two daily rest periods on 13 October 1992 and for more than four and a half hours without a break on 6 November 1992. In both cases, Mr Bird and his employer had already anticipated before the journey began that it would not be possible to comply with the provisions of Articles 6 and 7 of the Regulation. It is common ground that the goods were of high value and that road safety was not jeopardized.
7 Mr Bird appealed against both convictions to Bolton Crown Court. In his appeal he argued, inter alia, that Article 12 of the Regulation allowed planned derogations from the other provisions of the Regulation in order to ensure the safety of the load.
8 Being in doubt as to the proper interpretation of that provision, the Crown Court decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:
"Upon a proper interpretation of Article 12 of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of social legislation relating to road transport:
where in criminal proceedings alleging a departure from the restrictions upon driving time contained in Articles 6, 7 and 8 of these regulations, a driver has satisfied all the preconditions contained in Article 12 thereof and the court is satisfied that road safety is not thereby jeopardized, and bearing in mind the obligation placed upon a transport undertaking by Article 15,
is the driver entitled to the benefit of the flexibility provided by Article 12 if the need to depart from the provisions of Article 6, 7 or 8 was known before the journey in question was commenced?"
9 The essence of the question raised by the national court is whether Article 12 of the Regulation authorizes a driver to derogate from the provisions of Articles 6, 7 or 8 of the Regulation for reasons known before the journey was commenced.
10 It must be stressed that Article 12 of the Regulation forms part of Section VII, entitled "Exceptions", which follows a set of very detailed provisions regulating driving and rest periods. The Court has already held, with regard to social provisions in the field of road transport, that derogations are not to be interpreted in such a way as to extend their effects beyond what is necessary to safeguard the interests which they seek to secure (see Case 90/83 Paterson v Weddel [1984] ECR 1567, paragraph 16, and Case C-116/91 Licensing Authority South Eastern Traffic Area v British Gas [1992] ECR I-4071, paragraph 12). In the present case, the derogation provided for in Article 12 is intended to ensure the safety of persons, of the vehicle and of its load.
11 It is clear at the outset, from the wording of Article 12, that only the driver enjoys the possibility of derogating from the Regulation. That provision does not, therefore, extend to the driver' s employer ° as would be the case if the driver and his employer were able to agree before the journey commenced not to comply with the Regulation.
12 Again, under Article 12, it is for the driver to decide whether it is necessary to derogate from the Regulation, to choose a suitable stopping place and to indicate the nature of and reason for the derogation on the record sheet of the recording equipment or in his duty roster. It is clear from such details that only cases where it unexpectedly becomes impossible to comply with the Regulation during the course of the journey are envisaged.
13 Furthermore, Article 12 authorizes derogations only on condition that road safety must not be jeopardized. Before a journey commences, neither drivers nor employers are in a position to say whether that condition will be fulfilled. It is when an unforeseen event occurs capable of justifying a derogation from the Regulation that the driver must take into account the requirement of ensuring road safety.
14 It should be borne in mind that, as part of the overall context of Article 12, Article 15(1) of the Regulation requires transport undertakings to organize work in such a way that drivers are able to comply with the Regulation. Such a provision precludes an undertaking from planning a derogation before the driver leaves.
15 Finally, the Regulation seeks to improve road safety. It is clear from the 14th recital in the preamble that the improvement of road safety is the reason for the strict limitations of driving periods imposed by the Regulation. That aim would not be respected if drivers were allowed to derogate from the Regulation even before the journey commenced.
16 Whilst it is true, as the appellant in the main proceedings points out, that Regulation No 3820/85 seeks to give a degree of flexibility to the provisions of Regulation (EEC) 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), it is none the less clear from the first recital in its preamble that the legislature did not wish to undermine the objectives of the previous regulation.
17 The answer to the question referred must therefore be that Article 12 of the Regulation does not authorize a driver to derogate from the provisions of Articles 6, 7 or 8 of the Regulation for reasons known before the journey was commenced.
Costs
18 The costs incurred by the United Kingdom 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 (First Chamber),
in answer to the question referred to it by the Crown Court, Bolton, by order of 10 June 1994, hereby rules:
Article 12 of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport does not authorize a driver to derogate from the provisions of Articles 6, 7 or 8 of the Regulation for reasons known before the journey was commenced.
