JUDGMENT OF 28. 11. 1978 — CASE 97/78 SCHUMALLA

In Case 97/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Oberlandesgericht (Higher Regional Court) Düsseldorf (Second Senate) for a preliminary ruling in the proceedings pending before that court concerning fines imposed on

THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President, A. O'Keeffe and G. Bosco, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Fritz Schumalla, residing in the Federal Republic of Germany, covered long distances as the driver of a 38 tonne articulated lorry.

2. A copy of the order making the reference was received at the Court Registry on 24 April 1978.

II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. In order to answer the question which has been asked the Commission considers it necessary

B —. The Council considers first of all whether and to what extent road safety is an objective of Regulation No 543/69, the validity of which is at issue in this case, and then whether such an objective comes within the common transport policy governed by the EEC Treaty.

III —. Oral procedure

1. By an order of 6 March 1978 which was received at the Court Registry on 24 April 1978, the Oberlandesgericht (Higher Regional Court) Düsseldorf referred to the Court under Article 177 of the EEC Treaty the question whether Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport (Official Journal, English Special Edition 1969 (I), p. 170), is valid, in so far as it is concerned with promoting road safety.

2. It appears from the judgment making the reference that the appellant in the main action was convicted at first instance under Article 7 a (1) 1 (c) and (d) of the Fahrpersonalgesetz (Law on road haulage crews) for infringements of Article 7 (1) and (2) and Article 11 (1) of the aforesaid regulation, laying down the maximum driving period and the minimum rest period respectively, which he committed between 18 July 1976 and 8 September 1976 as a lorry driver in transporting goods over a long distance.

3. As appears from the preamble to Regulation No 543/69 of the Council, the essential purpose of that regulation is to bring into operation the provisions of the Council Decision of 13 May 1965 on the harmonization of certain provisions affecting competition in transport by rail, road and inland waterway (Official Journal, English Special Edition 1965-1966, p. 67), in particular Section III thereof concerning social provisions.

4. Implying the adoption of common rules within the meaning of Article 75 (1) (a) of the Treaty, such harmonization is an essential part of the common transport policy, which is required to be adopted by Article 3 (e) of the Treaty and is one of the foundations of the Community.

5. Referring primarily to the social matters which form the subject-matter of Section III of the Decision of 13 May 1965, Regulation No 543/69 is merely a partial implementation of Article 74 of the Treaty and of the aforesaid decision, which provides for the harmonization of national legislation in the realms of taxation and State intervention as well as in the realm of social legislation.

6. Furthermore, since common provisions ensure an improvement of road safety as well as the social protection of the driver, they cannot but contribute to the elimination of disparities liable to cause substantial distortion in competition in the transport sector, and thus prove appropriate within the meaning of Article 75 (1) (c) of the Treaty for the purpose of establishing a common transport policy.

7. For these reasons it is to be concluded that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Regulation No 543/69.

8. The costs incurred by the Council and the Commission of the European Communities, which submitted observations to the Court, are not recoverable.

On those grounds, THE COURT (First Chamber), in answer to the question refered to it by the Oberlandesgericht Düsseldorf by an order of 6 March 1978, hereby rules: