JUDGMENT OF 18. 2. 1975 — CASE 69/74 AUDITEUR DE TRAVAIL v CAGNON AND TAQUET

In Case 69/74 Reference to the Court under Article 177 of the EEC Treaty by the Tribunal de Police de Mons for a preliminary ruling in the criminal proceedings pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Presidents of Chambers. A. M. Donner, R. Monaco (Rapporteur), P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and written procedure

II — Written observations submitted under Article 20 of the Protocol

Observations submitted by the Commission of the European Communities.

III — Oral procedure

Law

Costs

I —. Facts and written procedure

1. Article 11 (2), first paragraph, of Regulation No 543/69 of the Council of 25 March 1969 (OJ L 77, 1969, p. 53) on the harmonization of certain social legislation relating to road transport provides:

2. The present proceedings result from an action pending before the Tribunal de Police de Mons in which the Auditeur du Travail (at the Tribunal du Travail de Mons) is prosecuting Jean-Pierre Cagnon, coach driver, as the defendant and Jean-Paul Taquet, his employer who is civilly and jointly liable. In the summons the defendant is charged with not having complied with the provisions of the first paragraph of Article 11 (2) of the aforementioned Regulation No 543/69 of the Council of 25 March 1969 and of Article 2 of the Belgian Royal Decree of 23 March 1970 implementing the said Regulation by reason of the fact that during a trip to Germany,

3. The Tribunal de Police de Mons found first of all that since the defence raised by the employer, according to which Mr Cagnon had been instructed to spend the night at Dortmund, the destination of the vehicle driven by the defendant, had not been challenged, there was no misconduct on the part of Mr Taquet. It then stated that the defence related to the interpretation of the first paragraph of Article 11 (2) of Regulation No 543/69 since it was a question of whether the driver must have had the possibility of taking the rest laid down by the legislation or whether, on the other hand, he is required to respect the Regulation, that is to say, to have in fact rested.

4. The order of reference was filed at the Court on 18 September 1974.

II —. Written observations submitted under Article 20 of the Protocol

III —. Oral procedure

1. By judgment dated 6 September 1974, filed at the Registry of the Court on 18 September 1974, the Tribunal de Police de Mons requested a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of the first paragraph of Article 11 (2) of Regulation No 543/69 of the Council of 25 March 1969 (OJ L 177, 1969) on the harmonization of certain social legislation relating to road transport.

2. The question arose in police proceedings in which a coach driver was charged with not having taken, as a crew member engaged in the carriage of passengers, the daily rest referred to in the aforementioned first paragraph of Article 11 (2).

3. The defendant challenged the validity of the proceedings on the ground that only employers had to observe the requirement for daily rest and not crew members of road vehicles.

4. The Court is requested for this purpose to rule as to the meaning which must be given to the words shall have had … a … rest period.

5. The first paragraph of Article 11 (2) of Regulation No 543/69 provides every crew member engaged in the carriage of passengers shall have had, during the twenty-four-hour period preceding any time he is performing any activity covered by Article 14 (2) (c) or (d): a daily rest period of not less than ten consecutive hours, which shall not be reduced during the week ….

6. Article 14 (2) (c) and (d) refers to driving periods and other periods of attendance at work.

7. The third and tenth recitals of Regulation No 543/69 show that the Regulation has among other objectives to improve road safety for which purpose it is desirable to lay down the minimum duration of and other conditions governing the daily and weekly rest periods of crew members.

8. Such an objective would not be achieved if the provisions enacted in relation to daily and weekly rest applied only to the employer running the road transport service, and did not likewise apply to crew members by requiring them to have in fact rested for the prescribed minimum period.

9. For the precise purpose of ensuring that this requirement is observed, Article 14 of the said regulation provides that crew members shall carry an individual control book.

10. As a result the phrase shall have had … a … rest period in the first paragraph of Article 11 (2) of Regulation (EEC) No 543/69 of 25 March 1969 must be interpreted as meaning that the provisions on daily rest must be observed both by crew members themselves, who are required to stop all activities referred to in Article 14 of the Regulation for the minimum period laid down, and by the employer running a road transport undertaking, who is required to take the necessary measures to permit the crew members to have the daily rest period laid down.

11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

12. Since the proceedings are, in so far as the parties to the main action are concerned, a step in the action before the national court, costs are a matter for that court.

On those grounds, THE COURT in answer to the question referred to it by the Tribunal de Police de Mons by judgment of 6 September 1974, hereby rules: