Pricoforest (Road transport - Exception for vehicles used by forestry undertakings for carrying goods - Opinion) [2022] EUECJ C-13/21

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(Request for a preliminary ruling from the Judecătoria Miercurea Ciuc (Court of First Instance, Miercurea-Ciuc, Romania))

(Reference for a preliminary ruling – Road transport – Regulation (EC) No 561/2006 – Article 13(1)(b) – Exception for vehicles used by forestry undertakings for carrying goods as part of their own entrepreneurial activity within a radius of up to 100 km from their base – Concept of ‘radius of up to 100 km’ – Application of that exception in the case of mixed-use vehicles)

1. The Judecătoria Miercurea Ciuc (Court of First Instance, Miercurea-Ciuc, Romania) has referred to the Court of Justice two questions on the interpretation of Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport. (2)

2. Those questions have been submitted in the context of a dispute between Pricoforest SRL, a forestry undertaking, and the Inspectoratul de Stat pentru Controlul în Transportul Rutier (State Inspectorate for Road Transport Control, Romania; ‘the ISCTR’) concerning a fine imposed by the latter on the former for allegedly breaching, in the course of several road transport operations, the rules on driving time, breaks and rest periods set out in Regulation No 561/2006.

3. The point of contention in the main proceedings is whether those transport operations were, as Pricoforest claims, in fact exempt from those rules, in accordance with Article 13(1)(b) of that regulation. Pursuant to that provision, Member States may grant such an exception on their territory for vehicles used, notably, by forestry undertakings for carrying goods as part of their own entrepreneurial activity within a radius of up to 100 km from their base. As Romania availed itself of that possibility, the referring court is requesting clarifications concerning the meaning and scope of that exception, which has not yet been interpreted by the Court.

4. More specifically, by its first question, the referring court asks whether the condition, set out in Article 13(1)(b) of that regulation, that the carriage of goods shall take place ‘within a radius of up to 100 km from the base of the undertaking’ is to be understood as meaning that the vehicle used must stay within an imaginary circle having such a radius, or that the distance actually travelled by that vehicle by road must not exceed 100 km. By its second question, that court asks whether, and, if so, to what extent, the exception is applicable in the case of mixed-use vehicles, that is to say vehicles that are routinely used both for transport operations that fall within the scope of Article 13(1)(b) and for transport operations that do not.

5. In this Opinion, I shall explain, first, why the concept of ‘radius’ within the meaning of Article 13(1)(b) of Regulation No 561/2006 refers to a geographical area delimited by an imaginary circle having a 100 km radius around the base of the undertaking, and not to the distance actually travelled by the vehicle by road. Secondly, I shall explain why mixed-use vehicles benefit from the exception set out in that provision while being used for transport operations which fulfil the conditions provided therein, but not while being used for other types of transport operations.

‘Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions from Articles 5 to 9 and make such exceptions subject to individual conditions on its own territory or, with the agreement of the States concerned, on the territory of another Member State, applicable to carriage by the following:

(b) vehicles used or hired, without a driver, by agricultural, horticultural, forestry, farming or fishery undertakings for carrying goods as part of their own entrepreneurial activity within a radius of up to 100 km from the base of the undertaking’.

7. Article 3 of Regulation (EU) No 165/2014 on tachographs in road transport, (3) entitled ‘Scope’, states, in paragraphs 1 and 2:

‘1. Tachographs shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers or goods by road and to which [Regulation No 561/2006] applies.

2. Member States may exempt from the application of this Regulation the vehicles mentioned in Article 13(1) and (3) of [Regulation No 561/2006].’

8. Article 2 of Ordonanța Guvernului nr. 37/2007 privind stabilirea cadrului de aplicare a regulilor privind perioadele de conducere, pauzele și perioadele de odihnă ale conducătorilor auto și utilizarea aparatelor de înregistrare a activității acestora (Government Decree No 37/2007 establishing the framework for application of the rules on driving times, breaks and rest periods for drivers and on the use of devices for recording drivers’ activities; ‘Government Decree No 37/2007’) states that ‘the road transport operations referred to in Article 13(1)(a) to (d), (f) to (h) and (j) to (p) of [Regulation No 561/2006] shall be exempt, on the territory of Romania, from application of the provisions of that regulation’.

9. On 2 September 2020, a motor vehicle towing a trailer, used by Pricoforest for carrying timber, was stopped by an inspection team of the ISCTR in the town of Bălan in Harghita County (Romania). That town is 130 km away from Pricoforest’s place of business, located in the municipality of Pipirig in Neamț County (Romania).

10. Following the checks carried out by the inspection team and the analysis of the data downloaded from the driver’s tachograph card, it was found that, between 5.15 on 17 August 2020 and 19.23 on 18 August 2020, that driver had driven for 15 hours and 56 minutes, thus exceeding, by almost 6 hours, the maximum daily driving time of 10 hours provided for in Article 6(1) of Regulation No 561/2006. As a result, Pricoforest was given a fine of 9 000 Romanian lei (RON). In addition, on 25 August 2020, between 00.54 and 4.24, the driver had completed a period of daily rest of 3 hours and 30 minutes only, instead of the minimum daily rest of 9 hours required by Article 8(2) of that regulation. For the second offence, Pricoforest was given a fine of RON 4 000.

11. On 25 September 2020, Pricoforest brought an action against the ISCTR before the Judecătoria Miercurea Ciuc (Court of First Instance, Miercurea-Ciuc), seeking the annulment of the report of an offence or, in the alternative, the replacement of the fines by a warning. Although it did not dispute the recordings on the tachograph, Pricoforest argued that those recordings relate to transport operations which were exempt from the rules on driving time, breaks and rest periods set out in Regulation No 561/2006, in accordance with the exception provided for in Article 13(1)(b) of that regulation, which is applicable in Romania pursuant to Article 2 of Government Decree No 37/2007. Indeed, it was carriage of goods by a forestry undertaking, as part of its own entrepreneurial activity, within a radius of 100 km from its base, as evidenced by several delivery notes for the transport of timber submitted by the applicant. (4)

12. The ISCTR lodged a defence in which it requested the claim to be dismissed, arguing that the report of an offence was lawful and well founded. It submitted that the exception under Article 13(1)(b) of Regulation No 561/2006 relates to transport operations carried out strictly within a radius of up to 100 km from the place where the forestry undertaking is based. In the present case, the vehicle at issue was stopped by the inspection team in Bălan, some 130 km away from Pricoforest’s place of business in Pipirig.

13. Pricoforest lodged a response in which it argued that the ISCTR wrongly equated the concept of ‘radius of up to 100 km from the base of the undertaking’, within the meaning of Article 13(1)(b) of that regulation, with the distance by road between the two towns in question.

14. Against that background, the Judecătoria Miercurea Ciuc (Court of First Instance, Miercurea-Ciuc) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the concept of “radius of up to 100 km” referred to in Article 13(1)(b) of Regulation No 561/2006 to be interpreted as meaning that a straight line drawn on the map between the base of the undertaking and the destination must be less than 100 km or as meaning that the distance actually travelled by the vehicle must be less than 100 km?

(2) Are the provisions of Article 13(1)(b) of Regulation No 561/2006 to be interpreted as meaning that the carrying out of transport operations within the scope of that provision, some of which remain within a radius of 100 km from the base of the undertaking and others of which exceed that radius, in a period of one month, in the context of the exemption of the situation referred to in Article 13(1)(b) of Regulation No 561/2006 from application of that regulation pursuant to a provision of national law, results in the exemption of all relevant transport operations from application of the regulation, or only those which [do not] … exceed the radius of 100 km or none of them?’

15. The request for a preliminary ruling, dated 10 November 2020, was received at the Court on 4 January 2021. The Polish Government and the European Commission have lodged written submissions before the Court. No hearing was held in the present case.

16. Regulation No 561/2006 (5) lays down common rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road. As a rule, driving time shall not exceed 10 hours per day (Article 6(1)) and 56 hours per week (Article 6(2)); drivers are to take an uninterrupted break of not less than 45 minutes after a driving period of 4½ hours (Article 7), and they shall have daily and weekly rest periods (Article 8). Furthermore, in order to monitor compliance with those rules, road transport vehicles must, pursuant to Regulation No 165/2014, be equipped with a tachograph, which records various data, such as the distance travelled by the vehicle, its position at certain times, the duration of its journey, the activity of the driver, and so on. (6) Those common rules and their enforcement measures pursue mainly three objectives: (i) the harmonisation of the conditions of competition between modes of inland transport, especially with regard to the road sector; (ii) the improvement of working conditions of drivers and crews of such vehicles; and (iii) the improvement of road safety. (7)

17. The scope of Regulation No 561/2006 is rather broad. Pursuant to its Article 2(1)(a), it notably applies to the ‘carriage by road … of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3[.]5 tonnes’. It is common ground that transport operations of timber such as the ones at issue in the main proceedings belong to that category. (8) Consequently, the rules on driving time, breaks and rest periods set out in that regulation had to, in principle, be followed during those operations, and a tachograph had to be installed and used in the vehicles concerned. However, while such a tachograph appears to have indeed been installed and used, at least some of those rules appear not to have been complied with. (9)

18. Nevertheless, pursuant to Article 13(1) of Regulation No 561/2006, Member States may grant exceptions from the general rules of that regulation on their territory, applicable to carriage by certain vehicles. The vehicles concerned may also be exempted from the obligation to be equipped with a tachograph. (10)

19. In particular, under Article 13(1)(b) of Regulation No 561/2006, such an exception may be granted to ‘carriage by … vehicles used or hired, without a driver, by agricultural, horticultural, forestry, farming or fishery undertakings for carrying goods as part of their own entrepreneurial activity within a radius of up to 100 km from the base of the undertaking’. It is apparent from the order for reference that Romania availed itself of that possibility. (11) Pricoforest now invokes that exception as a defence in the main proceedings.

20. According to that provision, three cumulative conditions should be met for the exception to be granted: (i) a carriage of goods must be undertaken on road, using a vehicle, by an agricultural, horticultural, forestry, farming or a fishery undertaking; (ii) that carriage of goods must be ‘part of [its] own entrepreneurial activity’; and (iii) it must take place ‘within a radius of up to 100 km from [its] base’.

21. The parties in the main proceedings do not dispute the fact that, in the present case, a carriage of ‘goods’ (timber) was undertaken, using ‘vehicles’, by a ‘forestry undertaking’ (Pricoforest) ‘as part of [its] own entrepreneurial activity’. The referring court also does not appear to doubt that. (12) By contrast, there is disagreement between those parties as regards the third condition, concerning the ‘radius’ in which the carriage operation must take place, and, as such, the two questions referred relate to that latter issue. I will examine them in turn in the next sections.

A. On the concept of ‘radius of up to 100 km’ within the meaning of Article 13(1)(b) (first question)

22. As the referring court indicates, on the basis of the submissions and evidence provided by Pricoforest, it is possible that, during the transport operations at issue, the distance actually travelled by the vehicles on road after leaving the base of that undertaking (13) was greater than 100 km, albeit those vehicles stayed within a geographical area delimited by a (imaginary) circle having a radius of 100 km around that base.

23. In that context, by its first question, the referring court asks whether the concept of ‘radius of up to 100 km from the base of the undertaking’ within the meaning of Article 13(1)(b) of Regulation No 561/2006 is to be interpreted as meaning that a straight line drawn on a map between the base of the undertaking and the destination of the vehicle must be less than 100 km, or that the distance actually travelled by the vehicle on road must be less than 100 km.

24. Together with the Polish Government and the Commission, I have no doubt that the correct answer is the first one.

25. Article 13(1)(b) of Regulation No 561/2006 makes no express reference to the law of the Member States for the purpose of determining its meaning and scope. Therefore, in application of the Court’s established case-law, the term ‘radius’ used in that provision must be given an autonomous and uniform interpretation throughout the European Union. According to that case-law, the meaning and scope of a concept used in an instrument of secondary law, which is not defined therein, must be determined in accordance with its usual meaning in everyday language. Where appropriate, (14) the context in which it occurs, the objectives pursued by that instrument and its origins must also be taken into account. (15)

26. The usual meaning of the term ‘radius’ in everyday language corresponds to the length of a straight line joining the centre of a circle to any point of its edge.

27. Therefore, the concept of ‘radius of up to 100 km from the base of the undertaking’ within the meaning of Article 13(1)(b) of Regulation No 561/2006 can only refer, not to the distance travelled by the vehicle by road, but to a 100 km straight line, drawn on the map from that base to any point along the edge an imaginary circle around it. In other words, it refers to a geographical area, (16) delimited by that circle, within which the carriage of goods has to be carried out.

28. If it were necessary to further confirm the clear meaning of the term ‘radius’, I would point out that Regulation No 561/2006 contains different concepts relating to distance – a fact that the referring court itself noted. In particular, while the concept of ‘radius’ is used in several provisions of that regulation, (17) other provisions centre, by contrast, on the ‘route length’ travelled by a vehicle during a certain transport operation. (18) That last term refers, in its usual meaning in everyday language, to the distance travelled or to be travelled by the road.

29. Therefore, when the EU legislature intended to refer to road distance, it made that clear in the wording of the provision in question. By using the concept of ‘radius’ in other provisions, such as Article 13(1)(b), it obviously intended to refer to something different, namely, as I indicated in point above, a geographical area, delimited by an imaginary circle around a given point.

30. Nonetheless, the referring court puts forward several arguments in support of the view that the concept of ‘radius of up to 100 km from the base of the undertaking’ within the meaning of Article 13(1)(b) of Regulation No 561/2006 ought to be understood, in the light of that regulation’s objectives to improve working conditions and road safety, and in spite of its usual meaning, as referring to the actual distance travelled by the vehicle by road. In its view, if that concept were interpreted literally as referring to a geographic area around the base of the undertaking, it would mean that the rules on driving time, breaks and rest periods set out in that regulation could be disregarded during transport operations which could, while taking place within that area, be carried out over long distances, well beyond 100 km, and for long durations. Those could endanger the health of the drivers concerned and road safety.

32. First, it is true that, as I indicated in point 25 above, generally speaking, the objectives pursued by an instrument of secondary law are relevant for establishing the meaning and scope of the concepts contained therein. Accordingly, the Court has ruled that the scope of the exceptions provided for in Regulation No 561/2006, such as the one set out in Article 13(1)(b), must, in general, be determined in the light of the aims pursued by the rules at issue. (19)

33. However, together with the Polish Government and the Commission, I am of the view that a purposive interpretation is excluded when it comes to the meaning of the concept of ‘radius’ used in Article 13(1)(b).

34. Indeed, a purposive interpretation is called for where the wording of a provision is insufficiently clear and precise: it is open to more than one interpretation, presenting some degree of textual ambiguity and vagueness. Divergences may also exist between the various language versions of the instrument in question. (20) In those situations, the purposive interpretation complements the textual one: it is necessary to resolve a drafting ambiguity. (21)

35. In the present case, however, Article 13(1)(b) of Regulation No 561/2006 is clear and precise when it comes to the answer to the first question asked by the referring court. The concept of ‘radius of up to 100 km from the base of the undertaking’ used in that provision is neither ambiguous nor vague. It is not open to more than one interpretation. Furthermore, it is used consistently in the other language versions of that regulation. (22)

36. In such a context, the Court simply cannot interpret the concept of ‘radius’ in the manner that is suggested by the referring court. Even if it were more in line with the objectives of Regulation No 561/2006, it is settled case-law that the Court may not, in the face of clear and precise wording of an EU legislative act, interpret the provision with the intention of correcting it. (23) That would amount to interpretation ‘contra legem’, which is the outer limit of any interpretative endeavour. (24)

37. There is a strong issue of separation of powers (or rather, in the EU context, the institutional balance) here. As I have indicated in points 28 and 29 above, the EU legislature chose to make the various exceptions provided for in Regulation No 561/2006 conditional on the fulfilment of different criteria: sometimes it referred to a ‘radius’, sometimes to ‘route length’. Substituting one for the other would, thus, be tantamount to overriding, by way of judicial interpretation, a choice made by the legislature in the text of the law. (25)

38. Secondly, and in any event, the legitimate concerns for working conditions and road safety expressed by the referring court are, in my view, addressed in another part of Article 13(1)(b). I recall that, under that provision, to benefit from the exception therein, a transport operation must not only be conducted within a ‘radius of up to 100 km from the base of the undertaking’, but must also be ‘part of [its] own entrepreneurial activity’. Here, the use of purposive interpretation is called for, as the meaning of that last condition is not immediately apparent from the wording of that provision.

39. Generally speaking, the exceptions provided for in Article 13(1) of Regulation No 561/2006 are limited to ‘certain national transport operations with special characteristics’, which the EU legislature thought ‘desirable’ (26) to exempt, at the discretion of each Member State, from the rules on driving time, breaks and rest periods set out in that regulation. On the one hand, each exception pursues a specific purpose (or, in other words, seeks to safeguard certain interests) which justified, in the legislature’s mind, its introduction. On the other hand, those transport operations have, in the view of the legislature, no impact, or a limited one, on the objectives pursued by that regulation: in general, they are not ‘subject to competitive pressures’ (27) and do not raise serious concerns in terms of the working conditions of the drivers and the crews involved or road safety.

40. When it comes, more specifically, to Article 13(1)(b), it follows from the condition that the carriage of goods shall be ‘part of the own entrepreneurial activity’ of agricultural, horticultural, forestry, farming or fishery undertakings, read in the light of the explanation above, that on the one hand, the specific purpose of that exception is to encourage the conduct of those activities, to which the carriage of goods itself is incidental. (28) As the Polish Government observes, it allows the undertakings concerned to conduct such activities with the flexibility they need, and that the strict requirements of Regulation No 561/2006 do not necessarily offer. (29)

41. On the other hand, the ancillary nature of such transport operations ensures, in the legislature’s view, that their exemption from the rules set out in Regulation No 561/2006 would not, in principle, (30) jeopardise the attainment of the objectives pursued therein. First, being ancillary, and thus inseparable from specific commercial activities, those transport operations are not, in themselves, ‘subject to competitive pressures’ (that is to say, they are usually not a service offered, for consideration, by hauliers). Secondly, they do not give rise, as a rule, to serious concerns in terms of working conditions or road safety. Those transport operations are linked to the usual needs of agricultural, forestry (and alike) undertakings. Those undertakings are generally not located upon the main public motorways, but rather in the countryside, and not far from their exploitation sites. The transport operations in question thus usually take place on local roads, over limited distances and for short periods of time. (31) On that last point, the condition related to the ‘radius of up to 100 km from the base of the undertaking’ ensures that the exception applies only in so far as the activity is conducted (and those ancillary transport operations take place) within a limited geographical area. (32)

42. It follows, in my view, that the exception under Article 13(1)(b) of Regulation No 561/2006 can only apply to such an ancillary carriage of goods. (33) Indeed, as an exception to the general rules set out in that regulation, that provision ‘may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure’. (34)

43. In that regard, together with the Commission, I am of the view that transport operations such as the ones at hand in the main proceedings (that is, it would seem, and subject to verification by the referring court, the transport by road of timber for consideration, from the base of the undertaking that produced it or the forest sites where it was so produced, to the clients that bought it, (35) which appears to be the main cause of concern for that court) cannot, in fact, be considered as ancillary to forestry activity.

44. Forestry, as an ‘entrepreneurial activity’, no doubt includes the commercial exploitation of woodlands. That activity covers, amongst other things, the harvesting and sale of timber (which is then used as firewood or processed industrially in sawmills, lumber yards, paper factories, and so on, and transformed into various wood-based products). (36) This is done, from my understanding, through ‘logging’: a process in which roundwood is produced in order to be sold. It involves the cutting down (or ‘felling’) of trees, processing on site and moving (or ‘skidding’), often by using forestry tractors (or ‘skidders’), the logs from the cutting site to a landing area on the roadside (or, at least, to a less remote location within the forest), where they are loaded onto logging trucks. The timber is then transported by road from the forest site to a processing site (such as a sawmill or a paper factory), or a harbour for export, and so on.

45. In that context, it is clear to me that, on the one hand, for instance, the movements of vehicles in order to transfer tools, equipment, and so on, used for such works, from the base of the undertaking to forest sites and to transfer them back to the base, are conducted ‘as part of’ forestry activity, within the meaning of Article 13(1)(b) of Regulation No 561/2006. Such movements are subsidiary to forestry, especially time-wise: it is likely to take place once at the beginning, and once at the end of the day, or a few times per day. Most of the time will be dedicated to forestry works as such. Similarly, the transport of logs within the forest (or ‘skidding’) is certainly covered by the exception set out in that provision, the vehicles concerned are directly used for those works. (37)

46. On the other hand, it is equally clear to me that the transport by road of timber, or ‘logging haulage’, after it has been sold, from the forest site where it was produced (or from the base of the undertaking that produced it) to a processing site or to a harbour for export (and so on) cannot be considered as ‘part of’ forestry activity. It is, in fact, a separate activity. (38) It plays a different function in the supply chain of timber than production itself.

47. Indeed, a quick internet search would allow anyone to see that logging haulage is but another type of freight transport operation by road, a service provided for consideration by hauliers (some being specialised in that type of haulage, others providing that service in the context of their general transport business). Therefore, it constitutes, in itself, a commercial activity ‘subject to competitive pressures’.

48. Admittedly, a single undertaking (such as, it would seem, Pricoforest) may carry out two activities. It could have both a forestry activity, producing roundwood with the necessary work force, tools and equipment, and a logging haulage activity, having its own fleet of trucks and drivers, in order to transport itself the logs it produces to its clients.

49. However, the exception under Article 13(1)(b) of Regulation No 561/2006 cannot apply to the last activity simply because a forestry undertaking chooses to take on that activity itself rather than sub-contracting it to a haulier. I recall that that exception depends on the nature of the activity as part of which the transport is conducted, not on the sole identity of the undertaking concerned. Otherwise, the same logging haulage operation would be subject to the general rules of that regulation when conducted by other hauliers, but not when conducted by forestry undertakings.

50. An interpretation of the exception set out in Article 13(1)(b) of Regulation No 561/2006 to the contrary would also be likely to jeopardise the objectives pursued by that regulation.

51. First, as the Commission observes, it could undermine the objective of eliminating disparities capable of distorting competition in the road transport sector. If forestry undertakings were exempt from the rules on driving times, breaks and rest periods set out in Regulation No 561/2006 (and from the corresponding obligation, set out in Regulation No 165/2014, to install and use a tachograph in the vehicles used for such transport operations) when they transport themselves the timber they produce to their clients, it would confer on those undertakings a competitive advantage over the other operators providing logging haulage services. Free from the constraints of those rules, forestry undertakings could maximise the use of the trucks and their drivers beyond what other hauliers are legally permitted to do. They would also save on the cost of installing and maintaining tachographs in their vehicles, which hauliers have to bear. (39)

52. Secondly, interpreting the exception under Article 13(1)(b) of Regulation No 561/2006 to the effect that logging haulage, when conducted by forestry undertakings, is exempt from the rules on driving time, breaks and rest periods set out in that regulation would entail the risk of encouraging those undertakings to take on that activity themselves and then overuse vehicles to transport, daily, in a repeated manner, for several hours and without interruption, timber to their clients. Such an interpretation would be seriously liable to affect the driver’s working conditions and endanger road safety. (40) One should also bear in mind that logging haulage operations by road are usually conducted with high-powered and (very) heavy trucks, potentially loaded with tonnes of timber. It is not difficult to imagine the disastrous consequences that may result from an accident involving such vehicles.

53. In respect of such logging haulage operations, the ‘radius’ condition set out in Article 13(1)(b) would not be enough to mitigate the risks that I have just described. As the referring court points out, trucks may be used back and forth, all day long, to deliver the timber produced to clients located within that radius.

54. Therefore, I am of the view that the exception under Article 13(1)(b) of Regulation No 561/2006 cannot apply to logging haulage by road, as such a transport operation cannot be considered as ‘part of the own entrepreneurial activity’ of forestry undertakings, within the meaning of that provision.

55. Having regard to the foregoing, the answer to the first question should, in my view, be that the concept of ‘radius of up to 100 km from the base of the undertaking’, within the meaning of Article 13(1)(b) of Regulation No 561/2006, refers to a geographical area, delimited by an imaginary circle of a 100 km radius around that base.

B. On the application of the exception set out in Article 13(1)(b) to ‘mixed-use vehicles’ (second question)

56. In the case in the main proceedings, it is possible that Pricoforest was conducting transport operations, using the same vehicles, both within and beyond a radius of 100 km from its base. (41)

57. In that context, by its second question, the referring court asks, in essence, whether Article 13(1)(b) of Regulation No 561/2006 is to be interpreted as meaning that, where a forestry undertaking routinely conducts, using the same vehicles, transport operations within a radius of 100 km from its base, and transport operations which range beyond that radius, (a) all those transport operations, (b) only those which do not exceed that radius, or (c) none of them are exempt, pursuant to that provision, from the application of the general rules set out in that regulation.

58. The referring court considers an answer to that question to be necessary in order to rule on Pricoforest’s liability. If all the transport operations conducted by that undertaking, using the vehicles in question, were exempt under Article 13(1)(b) of Regulation No 561/2006 from the rules on driving time, breaks and rest periods set out in that regulation, then it could not be liable for breaching those rules during the two transport operations at issue, whether or not they took place within a radius of 100 km from its base. Conversely, if none of the transport operations conducted by Pricoforest, using the same vehicle, could benefit from that exception, then it would be liable in any case.

59. I have explained, in my analysis of the first question, why, subject to verification by the referring court, I do not believe that transport operations such as the ones at hand in the main proceedings are covered by the exception under Article 13(1)(b) of Regulation No 561/2006, since they are not ‘part of the own entrepreneurial activity’ of a forestry undertaking. In this light, I am not sure an answer to the second question is still necessary. Nevertheless, I will analyse it in the alternative.

60. The assumption behind that second question is that of a so-called ‘mixed-use vehicle’. In the context of Article 13(1)(b) of Regulation No 561/2006, that term refers to a vehicle that is routinely used, for instance, by a forestry undertaking both for the carriage of goods ‘as part of [its] own entrepreneurial activity within a radius of up to 100 km from [its] base’, and for the carriage of goods that do not fulfil those conditions. For instance, a forestry undertaking could use the same vehicle to transport forestry equipment, as ancillary to its activity, to forest sites located within that radius, and to forest sites located beyond it. That undertaking could also use the same vehicle, sometimes to conduct such ancillary transport operations, and sometimes to transport roundwood to its clients in the context of its (separate) logging haulage activity.

61. The second question, thus, is about whether, and, if so, to what extent, the exception set out in Article 13(1)(b) of that regulation applies in the case of such ‘mixed-use vehicles’. In my view, this is a cross-cutting issue. Indeed, one could ask the same in respect of all the exceptions provided in that regulation. For the purposes of the present case, I will focus on that provision alone, even though my reasoning could apply, for the most part, to other exceptions.

62. In that regard, it is clear to me that, as the Commission submits, Article 13(1)(b) of Regulation No 561/2006 cannot possibly be interpreted as meaning that, where a vehicle is used both for transport operations that fulfil the conditions therein and for transport operations that do not, all those operations can be exempt from the general rules set out in that regulation (see option (a) above).

63. I would recall that, as an exception to those rules, Article 13(1)(b) ‘may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure’. (42) The interpretation described in the previous point would have precisely that result. It would mean that forestry undertakings could, simply by using the same vehicles for all types of transport operations, benefit from a general exemption from the same rules. It would go beyond the intent of the EU legislature to encourage forestry in itself. (43) It would also jeopardise the attainment of the objectives pursued by Regulation No 561/2006, for the reasons explained in points 51 and 52 above.

64. In contrast to the view of the Polish Government, (44) and apparently that of the ISCTR, (45) I do not believe either that, pursuant to Article 13(1)(b) of Regulation No 561/2006, none of the transport operations carried out with ‘mixed-use vehicles’ can be exempt from the rules of that regulation (see option (c) above).

65. In my view, such an interpretation would be too formalistic, overreaching and potentially burdensome for the undertakings concerned. Indeed, in order to benefit from the exception set out in Article 13(1)(b), they would, in practice, need to use two separate fleets of vehicles, one for transport operations fulfilling the conditions set out in that provision, and one for other types of transport operations.

66. In fact, I consider, along with the Commission, that the correct interpretation corresponds to option (b) above. Mixed-use vehicles can be exempt from the general rules on driving time, breaks and rest periods set out in Regulation No 561/2006, pursuant to the exception under Article 13(1)(b) of that regulation, while being used for a transport operation that fulfils the conditions therein. By contrast, when they are used for another type of transport operation, that exception cannot apply.

67. In practice, this means that the driver of the vehicle does not have to respect the rules on driving time, breaks and rest periods while he or she transports goods, as part of the entrepreneurial activity of the forestry undertaking concerned, within a radius of up to 100 km from the base of that undertaking. On the other hand, he or she must respect those rules when transporting goods beyond that radius, or where the transport is not ancillary to the forestry activity.

68. That interpretation is, in my view, supported by the wording, the overall logic and the objectives of Regulation No 561/2006, read in the light of the case-law of the Court.

69. First, Article 13(1) of Regulation No 561/2006 lists the potential exceptions ‘applicable to carriage’ by certain vehicles. As such, that provision grants the Member States the possibility to exclude from the rules of that regulation certain transport operations, but not vehicles per se. As I indicated in point 39 above, that provision relates to ‘national transport operations with specific characteristics’. (46)

70. Accordingly, what matters, for a given exception set out in Article 13(1) to apply, is whether, at a certain time, a vehicle is used for the purposes stated in the provision in question, and not how it is used the rest of the time. This appears to be in line with the Court’s own understanding of that article. In particular, in the judgment in Deutsche Post and Others, (47) it ruled that the exception set out in Article 13(1)(d) of Regulation No 561/2006, which relates notably to vehicles used to deliver ‘items as part of the universal service’, covers ‘only vehicles … that are used exclusively, during a particular transport operation, for the purpose of delivering items as part of the universal postal service’. (48) It follows from that line of reasoning, implicitly, that, in the eyes of the Court, the same vehicle could, at certain times, fall within the scope of that exception, and, at other times, be excluded from it, depending on the type of mail it is transporting. (49)

71. Furthermore, when it comes, more specifically, to the wording of Article 13(1)(c), nothing suggests that a given vehicle should be used for the type of transport operations envisaged in that provision only, or else the exception cannot apply. (50)

72. Secondly, that textual interpretation is, in my view, corroborated by the overall logic of Regulation No 561/2006. That regulation puts in place, in essence, a set of limits applicable to certain road transport operations, but not to others, depending on their objective characteristics. Those characteristics often relate to the vehicle itself, but also to the specific use to which it is put, such as the type/quantity of people/goods carried. Logically, a single vehicle can be used in different ways, some that are regulated transport operations, and some that are not. In fact, as the Commission points out, a provision of that regulation, namely Article 6(5), to which I shall shortly return, was precisely enacted to ‘[address] the difficulty of drivers working both within and outside the scope of the Regulation’. (51)

73. Thirdly, that interpretation is compatible with the objectives of Regulation No 561/2006. I recall that the EU legislature found it ‘desirable’ to provide the Member States with the possibility to exclude certain transport operations conducted, notably, by forestry undertakings, because those operations do not raise concerns vis-à-vis the distortion of competition, social conditions of the workers involved, or road safety. The fact that the vehicle used to conduct the transport operations in question happens to be used also for other types of transport operations is, in my view, irrelevant in that respect.

74. Nonetheless, the referring court expresses some concerns. In its view, if the rules of Regulation No 561/2006 were applied only to some transport operations carried out by a given vehicle, while others are exempted under Article 13(1)(b), how could the working conditions of the driver involved and road safety be preserved? (52)

75. Those concerns are, no doubt, legitimate. Driving affects a person’s state of tiredness – and that is evidently the case irrespective of whether the road transport operation in question falls within or outside the scope of Regulation No 561/2006. If the same driver, using the same vehicle, were to conduct, over the course of the same day or the same week, transport operations covered by that regulation, and exempted transport operations, he or she could, hypothetically, end up driving much more than the maximum 9 hours per day or the 56 hours per week envisaged by that regulation, endangering himself or herself and others in the process.

76. However, in my view, EU law contains relevant safeguards to ensure that scenario is avoided and that working conditions and road safety are preserved.

77. On the one hand, the working time of drivers of vehicles used for road transport is not limited by the rules set out in Regulation No 561/2006 only. In fact, those rules are complemented by the ones laid down in Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities. (53) That directive applies to mobile workers employed by undertakings established in a Member State, participating in road transport activities covered by that regulation. (54) It notably puts in place limitations on the average weekly working time of those persons. Pursuant to Article 4(a) of that directive, that average weekly working time may not exceed 48 hours. The maximum weekly working time may be extended to 60 hours only if, over four months, an average of 48 hours a week is not exceeded. (55) Article 5 of that directive also obliges Member States to take the measures necessary to ensure that those persons, under no circumstances, work for more than six consecutive hours without a break.

78. In that respect, I note that, under Article 3(a) of Directive 2002/15, ‘working time’ includes ‘the time devoted to all road transport activities’, in particular ‘driving’ – irrespective of whether a particular transport operation falls within the scope of Regulation No 561/2006, or is excluded from it. Hence, in my view, when a given driver, using the same vehicle, conducts, in the course of his or her work, transport operations covered by that regulation, and exempted transport operations, the time he or she spends driving in the course of the exempted operations must also be counted in his or her ‘working time’ for the application of the limits and compulsory breaks provided in that directive.

79. On the other hand, EU law provides the means for public authorities to monitor the preservation of working conditions and road safety in practice. First, in my view, when a vehicle is not used exclusively for transport operations falling outside the scope of Regulation No 561/2006, (56) but operates instead as a ‘mixed-use vehicle’, while it is exempted, at certain times, from the rules on driving time, breaks and rest periods set out in that regulation, it must be equipped with, and use, at all times, a tachograph, pursuant to Article 3(1) of Regulation No 165/2014. (57)

80. Secondly, as the Commission submits, pursuant to Article 6(5) of Regulation No 561/2006, which I mentioned briefly before, a driver must record any time spent driving a ‘mixed-use vehicle’ for transport operations that do not fall within the scope of that regulation under a specific tachograph entry (‘other work’). (58) That record, combined with the other data recorded by the tachograph and evidence submitted by the undertaking concerned, allows public authorities to check (59) that periods of driving during which the rules set out in Regulation No 561/2006 have not been respected effectively correspond to transport operations exempt from them, in accordance, for instance, with Article 13(1)(b). (60) It also allows them to check that the rules of Directive 2002/15 have been complied with.

81. Having regard to the foregoing, the answer to the second question should, in my view, be that, pursuant to Article 13(1)(b) of Regulation No 561/2006, where a vehicle is routinely used by a forestry undertaking both for carrying goods ‘as part of [its] own entrepreneurial activity within a radius of up to 100 km from [its] base’, as envisaged in that provision, and for transport operations that do not fulfil those conditions, only the first category of carriage operations can be exempted from the rules on driving time, breaks and rest periods set out in that regulation. Furthermore, in accordance with Article 3(1) of Regulation No 165/2014, a tachograph shall be installed and used at all times in such a vehicle, and the driver of that vehicle must record the time spent conducting exempted transport operations as ‘other work’, pursuant to Article 6(5) of Regulation No 561/2006.

82. In the light of all the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Judecătoria Miercurea Ciuc (Court of First Instance, Miercurea-Ciuc, Romania) as follows:

1. The concept of ‘radius of up to 100 km from the base of the undertaking’, within the meaning of Article 13(1)(b) 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, refers to a geographical area, delimited by an imaginary circle of a 100 km radius around that base.

2. Pursuant to Article 13(1)(b) of Regulation No 561/2006, where a vehicle is routinely used by a forestry undertaking both for carrying goods ‘as part of [its] own entrepreneurial activity within a radius of up to 100 km from [its] base’, as envisaged in that provision, and for transport operations that do not fulfil those conditions, only the first category of carriage operations can be exempted from the rules on driving time, breaks and rest periods set out in that regulation. Furthermore, in accordance with Article 3(1) of Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation No 561/2006, a tachograph shall be installed and used at all times in such a vehicle, and the driver of that vehicle must record the time spent conducting exempted transport operations as ‘other work’, pursuant to Article 6(5) of Regulation No 561/2006.

2 Regulation of the European Parliament and of the Council of 15 March 2006 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), as modified by Regulation (EU) 2020/1054 of the European Parliament and of the Council of 15 July 2020 (OJ 2020 L 249, p. 1) (‘Regulation No 561/2006’).

3 Regulation of the European Parliament and of the Council of 4 February 2014, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation No 561/2006 (OJ 2014 L 60, p. 1), as modified by Regulation 2020/1054 (‘Regulation No 165/2014’).

4 Pricoforest submitted as evidence before the referring court three delivery notes for the transport of timber: one dated 17 August 2020, for a delivery to Târgu Neamț (Romania) (30 km by road from its base); another, dated 25 May 2020, from the municipality of Pipirig in Neamț County to the city of Rădăuți in Suceava County (Romania) (approximately 120 km by road); the third, dated 2 September 2020, from the municipality of Sândominic in Harghita County to the municipality of Bogdănești in Suceava County (approximately 180 km by road).

5 I recall that Regulation No 561/2006 repealed and replaced 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), which itself repealed and replaced Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonisation of certain social legislation relating to road transport (OJ, English Special Edition 1969 (I), p. 170). According to the Court’s settled case-law, its interpretation of the provisions of the two former regulations is transposable to the equivalent provisions of Regulation No 561/2006 (see, to that effect, judgment of 13 March 2014, A. Karuse, C‑222/12, EU:C:2014:142, paragraphs 26 and 27). The provisions of Regulation No 561/2006 that are relevant for the present case have an equivalent in the former regulations. I shall therefore refer, as a rule, only to Regulation No 561/2006, while mentioning without distinction judgments and Opinions relating to the former regulations. I will nonetheless distinguish between those instruments where necessary.

7 See recital 17 and Article 1 of Regulation No 561/2006, and recital 24 of Regulation No 165/2014. Those three objectives are interrelated. By ensuring that driving times and rest periods alternate, the rules of Regulation No 561/2006 protect drivers and crews of vehicles used for road transport against the harmful effects of excessive and badly distributed driving periods. As fatigue and lack of rest on the part of the drivers of such vehicles are recognised causes of traffic accidents, those rules protect road safety at the same time. Finally, as working practices based on an improper exploitation of those drivers and crews distort competition in the transport sector, those rules ensure a level playing field in that respect. See judgments of 25 January 1977, Derycke (65/76, EU:C:1977:7, paragraphs 15 and 16); of 6 December 1979, Städtereinigung Nehlsen (47/79, EU:C:1979:281, paragraph 6); and of 18 January 2001, Skills Motor Coaches and Others (C‑297/99, EU:C:2001:37, paragraph 19).

8 Indeed, those operations were (i) ‘carriage by road’ (as defined in Article 4(a) of Regulation No 561/2006, namely ‘journey[s] made … on roads open to the public by [vehicles]’); (ii) of ‘goods’ (namely timber); and (iii) it is not disputed that the ‘maximum permissible mass’ of the combination of the motor vehicle and the trailer in question exceeded 3.5 tonnes.

12 However, the Commission doubts that those conditions were satisfied in the case in the main proceedings. I share its doubts, and will come back to that issue in points 38 to 54 below.

13 It is not disputed by the parties in the main proceedings, and the referring court also takes for granted, that Pricoforest’s place of business in Pipirig constitutes the ‘base of the undertaking’ within the meaning of Article 13(1)(b). I do not think either that it is necessary, for the purpose of the present case, to discuss that issue any further.

15 See, to that effect, notably, judgment of 9 July 2020, Constantin Film Verleih (C‑264/19, EU:C:2020:542, paragraphs 28 and 29 and the case-law cited).

16 See, by analogy, judgment of 7 February 2019, NK (C‑231/18, EU:C:2019:103, paragraph 22).

17 On top of Article 13(1)(b), see Article 3(aa) and (f), Article 5(2), Article 13(1)(c), (d), (f), (p), (q), and Article 13(3) of Regulation No 561/2006.

18 See Article 3(a) (‘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 [km]’) (emphasis added) and Article 16(1)(b) (‘regular international passenger services whose route terminals are located within a distance of 50 km as the crow flies from a border between two Member States and whose route length does not exceed 100 km’) (emphasis added).

19 See, notably, judgment of 7 February 2019, NK (C‑231/18, EU:C:2019:103, paragraph 21 and the case-law cited).

20 See, for instance, judgment of 22 March 2018, Anisimovienė and Others (C‑688/15 and C‑109/16, EU:C:2018:209, paragraph 78 and the case-law cited).

21 See, notably, judgments of 15 December 1993, Charlton and Others (C‑116/92, EU:C:1993:931, paragraph 14); of 7 April 2016, Marchon Germany (C‑315/14, EU:C:2016:211, paragraphs 28 and 29); and of 21 July 2016, Argos Supply Trading (C‑4/15, EU:C:2016:580, paragraphs 36 and 37); and Opinion of Advocate General Bobek in Commission v Germany (C‑220/15, EU:C:2016:534, points 32 to 50).

22 See, for instance, the German- (‘einem Umkreis von bis zu 100 km vom Standort des Unternehmens’), Greek- (‘σε ακτίνα έως 100 χιλιομέτρων από τη βάση της επιχείρησης·’), and French- (‘un rayon allant jusqu’à 100 km autour du lieu d’établissement de l’entreprise’) language versions of Article 13(1)(b) of Regulation No 561/2006. There is a slight divergence and ambiguity only in the Finnish-language version (‘enintään 100 kilometrin etäisyydellä yrityksen sijaintipaikasta’), which could be translated as ‘within 100 km of the place of business’, and which could mean either a radius or a distance by road. However, when one faces such an insignificant inconsistency concerning a single language version of an EU instrument, one should, in my view, take a pragmatic approach and disregard it as an unfortunate translation mishap.

23 See, to that effect, judgment of 15 July 2010, Commission v United Kingdom (C‑582/08, EU:C:2010:429, paragraph 51). See also, to that effect, judgment of 8 December 2005, ECB v Germany (C‑220/03, EU:C:2005:748, paragraphs 28 to 31).

24 See, notably, judgment of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraphs 24 and 25 and the case-law cited), and Opinion of Advocate General Bobek in Commission v Germany (C‑220/15, EU:C:2016:534, point 38).

25 See, to that effect, judgment of 23 March 2000, Met-Trans and Sagpol (C‑310/98 and C‑406/98, EU:C:2000:154, paragraph 32). Similarly, the fact that, as an exception to the general rules set out in Regulation No 561/2006, Article 13(1)(b) must be interpreted strictly (see point 42) does not mean that it should be construed in a manner that contradicts its clear and precise wording.

28 See, by analogy, judgment of 7 February 2019, NK (C‑231/18, EU:C:2019:103, paragraph 25 and the case-law cited).

29 The Polish Government points out that those activities are often seasonal. It may be necessary to work for long hours of the day during limited periods of the year. That may not be possible if the strict requirements of Regulation No 561/2006 were to be respected at all times.

30 As the Polish Government observes, that should be verified by every Member State in view of the possible peculiarities of its territory (geographical constraints, and so on) (see Article 13(1) (‘Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions …’)).

31 See, by analogy, judgments of 28 March 1985, Hackett and Others (91/84 and 92/84, EU:C:1985:153, paragraph 19), and of 21 March 1996, Goupil (C‑39/95, EU:C:1996:127, paragraph 11).

32 See, to that effect, judgment of 13 March 2014, A. Karuse (C‑222/12, EU:C:2014:142, paragraph 40). In addition, several Member States (namely Estonia, Spain, France and Slovenia) have used their power under Article 13(1) of Regulation No 561/2006 to introduce ‘individual conditions’ with regard to the exception set out in Article 13(1)(b) and reduced the ‘radius’ envisaged in that provision from 100 km to 50 km, in order to limit further the area in which the transport operations are exempt (see Commission Staff Working Document accompanying the Report from the Commission to the European Parliament and the Council on the implementation in 2017-2018 of [Regulation No 561/2006] and of Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities, 30.9.2021, SWD(2021) 278 final, p. 23).

33 An examination of the history of the exception set out in Article 13(1)(b) of Regulation No 561/2006 confirms that interpretation. That exception first appeared under Article 13(1)(c) of Regulation No 3820/85. That provision notably did not include the condition that the carriage of goods be ‘part of [the] own entrepreneurial activity’ of the undertaking concerned. During the legislative process which led to the adoption of Regulation No 561/2006, the European Parliament proposed to add that condition by way of an amendment, to specify that that exception only concerns the specific entrepreneurial activity of the branches concerned (see Report of 12 November 2002 on the proposal for a European Parliament and Council regulation on the harmonisation of certain social legislation relating to road transport (COM(2001) 573 – C5‑0485/2001 – 2001/0241(COD)), document A5-0388/2002, Amendment 53). Thereafter, in its amended proposal, the Commission accepted the amendment since ‘it clarifies the purpose of the derogation and excludes such vehicles from being used for other road transport activities’ (see Amended proposal of 11 August 2003 for a regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport and amending Council Regulation (EEC) 3821/85 on recording equipment in road transport (COM(2003) 490 final), p. 6).

34 See, notably, judgment of 9 September 2021, Ministère public (Extraterritorial penalties) (C‑906/19, EU:C:2021:715, paragraph 33 and the case-law cited).

36 As for what are generally considered to be forestry activities, see Annex to Council Directive 67/654/EEC of 24 October 1967 laying down detailed provisions for the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in forestry and logging (OJ, English Special Edition 1967 (I), p. 287). See also International Standard industrial Classification of All Economic Activities (ISIC), Statistical papers, Series M, No. 4, Rev.4, United Nations, Section A. (‘Agriculture, forestry and fishing’), entry 02 (‘Forestry and logging’).

37 See, by analogy, judgment of 13 March 2014, A. Karuse (C‑222/12, EU:C:2014:142, paragraph 36). In that respect, I note that Directive 67/654 listed under ‘harvesting, preparation for sale and sale of timber’, ‘hauling by means of … tractors’. Similarly, the ISIC includes ‘transport of logs within the forest’ into ‘logging service activities’ (see sub-entry 02.40 (‘Support services to forestry’)). The movement of such forestry tractors could also be exempt under the exception set out in Article 13(1)(c) of Regulation No 561/2006.

38 Directive 67/654 did not list logging haulage by road amongst forestry and logging activities. Similarly, logging haulage, when it is not carried out within the forest, as part of logging operations, is classified, in the ISIC, not under the entry related to ‘forestry and logging’, but in a separate section (see Section H (‘Transportation and Storage’), entry 49 (‘Land transport and transport via pipelines’), sub-entry 4923 (‘Freight transport by road’)).

39 See, by analogy, judgment of 21 November 2019, Deutsche Post and Others (C‑203/18 and C‑374/18, EU:C:2019:999, paragraphs 58 and 59 and the case-law cited).

40 See, by analogy, judgment of 7 February 2019, NK (C‑231/18, EU:C:2019:103, paragraphs 25, 26, 28 and 31 and the case-law cited). Which is, in my view, evidenced by the fact that, in the case in the main proceedings, the driver had carried timber consecutively for 15 hours and 56 minutes (see point 10 above).

41 See footnote 4 above. On the basis of the evidence submitted by Pricoforest before the referring court, it would seem that that undertaking delivered, using the vehicles in question, on different dates, timber to places located, respectively, 30 km, 120 km, and 180 km by road from its base. Moreover, the same vehicles were stopped and checked, I recall, 130 km from its base, in the course of a separate transport operation. At least one of those transport operations took place within a 100 km radius from its base, while, probably, at least another one extended beyond it, which is for the referring court to verify.

44 That government submits that, in order for the exception set out in Article 13(1)(b) of Regulation No 561/2006 to apply, the vehicle must never be used for transport operations ranging beyond a 100 km radius around the base of the undertaking.

45 Although the ISCTR has not lodged written submissions before the Court, I observe that, in essence, that administration considers that Pricoforest cannot avail itself of the exception under Article 13(1)(b) with respect to two transport operations carried out using vehicles in August 2020, since the same vehicles were stopped and checked, in the course of a separate transport operation, taking place in September 2020, 130 km away from its base. Evidently, therefore, the ISCTR considers that, since those vehicles were used at least once beyond the radius of 100 km from the base of the undertaking, the exception under Article 13(1)(b) cannot apply at all, even with respect to operations that may fulfil the conditions therein.

48 Judgment of 21 November 2019, Deutsche Post and Others (C‑203/18 and C‑374/18, EU:C:2019:999, paragraph 60) (emphasis added).

49 See, similarly, judgment of 13 March 2014, A. Karuse (C‑222/12, EU:C:2014:142, paragraph 35). The Court’s case-law contains other indications to suggest that what are excluded are not vehicles per se, but certain ‘movements’ of those vehicles, irrespective of the other purposes for which they may be used at other times. See, for instance, paragraph 47 of that judgement: ‘… the movement of vehicles when empty … and when preparing to carry out such transportation also falls within [the exception in question]’.

50 By contrast, I note that when the EU legislature wished to exclude the possibility for a vehicle to operate as a ‘mixed-use vehicle’, it used express terms to that effect (see, in particular, Article 13(1)(e) of Regulation No 561/2006: ‘vehicles operating exclusively on islands or regions isolated from the rest of the national territory …’ (emphasis added)). It is true that, as I explained in footnote 33 above, the Commission took once the view that the condition, proposed by the Parliament, that the transport operation shall be ‘part of [the] own entrepreneurial activity’ of the undertaking concerned, set out in Article 13(1)(b), ‘excludes such vehicles from being used for other road transport activities’. However, that is, in my view, merely an abuse of terms. Surely, what the Commission meant was that road transport activities carried out by forestry undertakings, which are not ‘part of their own entrepreneurial activity’, cannot benefit from the exception set out in that provision.

51 See Proposal for a Regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport (COM(2001) 573 final) (OJ 2002 C 51E, p. 234), explanatory memorandum, paragraph 31. It also stems from that memorandum that, during the preparation of that proposal, the Commission discussed the option of deleting all the exceptions to the general rules on driving time, breaks and rest periods, and the option of forbidding ‘mixed scope driving’ in the course of a day, and that both options were rejected.

52 In that respect, the referring court points out, in particular, that Article 8 of Regulation No 561/2006 not only obliges drivers to have daily rest periods, but also weekly rests periods. If, during a given week, the rules of that regulation were applicable to certain transport operations, but not to others, that would make it impossible, in the view of that court, to check whether the driver actually benefited from weekly rest periods during that week.

53 Directive of the European Parliament and of the Council of 11 March 2002 (OJ 2002 L 80, p. 35).

55 Accordingly, whereas, for the transport operations that fall within the scope of Regulation No 561/2006, Article 6(2) of that regulation provides, as I indicated before, that the weekly driving time shall not exceed 56 hours, it also specifies that, in any event, the maximum weekly working time laid down in Directive 2002/15 cannot be exceeded.

56 When it is used so exclusively, a vehicle can be exempted from the obligation to be equipped with a tachograph pursuant to Article 3(2) of Regulation No 165/2014.

57 See, to that effect, judgments of 25 June 1992, British Gas (C‑116/91, EU:C:1992:277, paragraph 21), and of 9 September 2021, Ministère public (Extraterritorial penalties) (C‑906/19, EU:C:2021:715, paragraphs 27 to 39). If only because compliance with the rules set out in Regulation No 561/2006 must be monitored for all the transport operations during which they do apply, and because the data collected by the tachograph is useful to determine whether a given transport operation is exempt (see point 80 below).

58 See, for the same obligation, Article 34(5)(b)(iii) of Regulation No 165/2014. See also, to that effect, judgment of 9 September 2021, Ministère public (Extraterritorial penalties) (C‑906/19, EU:C:2021:715, paragraphs 35 and 37 and the case-law cited).

59 It stems from Article 36 of Regulation No 165/2014 that a driver shall be able to produce, whenever an authorised control officer so requests, in the relevant form, evidence of his or her driving activity for the current day and the previous 28 days. That obligation needs to be respected also in the case of ‘mixed-use vehicle’ (see, to that effect, judgment of 9 September 2021, Ministère public (Extraterritorial penalties), C‑906/19, EU:C:2021:715, paragraph 39).

60 I observe that smart tachographs record not only the distance travelled by the vehicle during a given transport operation, but also, using a GPS, the position of the vehicle, notably at the starting place of the daily working period, every three hours of accumulated driving time, and at the ending place of the daily working period (see Article 8(1) of Regulation No 165/2014). Thus, it seems to me that, if a vehicle used by a forestry undertaking were to be stopped and checked outside the circle of 100 km radius around its base, and if that undertaking were to claim that driving periods that took place over the last 28 days, during which the rules of Regulation No 561/2006 had not been respected, in fact correspond to the transport of goods ancillary to its forestry activity carried out within that radius, enforcement authorities would be able to control, on the basis of those data, whether at least the last condition set out in Article 13(1)(b) of Regulation No 561/2006 is fulfilled.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Pricoforest (Road transport - Exception for vehicles used by forestry undertakings for carrying goods - Opinion) [2022] EUECJ C-13/21_O (10 March 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C1321_O.html Cite as: EU:C:2022:188, [2022] EUECJ C-13/21_O, ECLI:EU:C:2022:188

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