Opinion of Mr Advocate General Van Gerven delivered on 5 December 1989

1 Original language: Dutch.

2 Regulation 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).

3 With the exception of Article 15(1) of the tachograph regulation, which provides that all operators of regular services shall draw up a service timetable and a duty roster.

4 Judgment in Case 69/74 Auditeur du travad v Cagnon and Taquet [1975] ECR 171.

5 Council Regulation No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).

6 The passage cited is now set out in Article 17 of Regulation (EEC) No 3820/85.

7 In the order for reference mention is made of a 1972 enabling law and two implementing decrees issued (in 1981 and 1986) by the Danish Minister for Labour.

8 Drivers/employees who have infringed the provisions of the regulation may also be fined. At the hearing, Counsel for Hansen laid emphasis on the fact that drivers/employees were not fined in practice, unless they were caught im flagrante delicto, as was the case here. However, that assertion relates to the procedure for prosecuting employees which is currently applied in Denmark, and thus falls outside the ambit of this case which concerns the Danish method of penalizing employers. I do not intend to consider this point in further detail.

9 Cited in footnote 3 above.

10 Judgment in Case 50/76 Amsterdam Bulb v Produktichap voor Siergerwassen [1977] ECR 137, paragraph 32.

11 Sec the judgments in Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 24, in Case 14/83 Van Colion and Kamann v Land Nordrhern-Westfalen [1984] ECR 1891, paragraph 15 and in Case 79/8) Harz v Deliache Tradax [1984] ECR 1921, in particular paragraphs 21 to 28

12 Set out in detail in A Butt Philip- The application of the EEC regulations on drivers' hours and tachographs in the road transport sector, in Making European policiei work (Edited by H Siedentopf and J Ziller), London, 1988, p. 88 et seq

13 See the ludgmcnt in Case 68/88, already cited in footnote 10, paragraph 24.

14 The Danish Government has drawn attention to the fact that the system of strict criminal liability is also used in the legislation on the protection of the working environment. According to the documentation available to the Court, there arc other instances of its application, such as the legislation on environmental protection, on nuclear power-stations and on customs matters

15 Both obligations are now expressly incorporated in the new version of the tachograph regulation (see paragraph 3 above). Hence the conclusions which I shall reach are equally valid with regard to the present version of that regulation.

16 Hansen deduces the scope of its obligations from Article 15 of the 1985 tachograph regulation (set out in paragraph 3 above). In its view, that regulation merely clarifies what was previously laid down by Regulation No 543/69 according to the Cagnon and Taquet judgment.

17 Cited in footnote 9 above.

18 A. Butt Philip, loc cit., at p. 90.

19 A Butt Philip, loc. cit., at p 105

20 The preamble to the Resolution (EEC) 85/C 348/01 of the Council and the Representatives of the Governments of the Member Sutes, meeting within the Council, of 20 December 1985 (OJ 1985 C 348, p. 1) expressly slates, after all, that it is necessary lo ensure homogenous and effective implementation of the regulations in question by Member States, in particular in order to avoid distortions of the conditions of competition between transport undertakings (sec the last recital in the preamble; emphasis added). That resolution was adopted at the same time as Regulation (EEC) No 3820/85

21 See the table in A. Butt Philip, loc. cit., at pp. 103 and 104.

22 Ibid.

23 Support for this view can be found in the recent case-law of the Court. See the judgment in Case 12/86 Demirel v Stadt Schivätisi) Gmünd [1987] ECR 3747, paragraph 28, in which the Court refused to examine the compatibility of national rules with Article 8 of the European Convention on Human Rights since they did not have to implement a provision of Community law. See also the judgment in Case 5/88 Wachauf v Germany [1989] ECR 2609, paragraph 19, in which the Court stated that the requirements resulting from the aforesaid Convention are also binding on the Member States when they implement Community rules...; see further the Opinion of Mr Advocate General Jacobs in that case, who finds it self-evident that when acting in pursuance of powers granted under Community law, Member States must be subject to the same constraints ... as the Community legislator (p. 14 of the typed version). For further references, see K. Lenaerts: Le jnge et la Constitution aux États-Unis d'Amérique et dans l'ordre juridique européen, 1988, p. 580 et seq.

24 See, for instance, the recent judgment in Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, and the Wachauf judgment, already cited in footnote 22, paragraph 18, with reference to the judgment in Case 44/89 Hauer v Land Rheinland-Pfalz [1979] ECR 3727.

25 See the criteria adopted by the European Court of Human Rights in its judgment of 21 February 1984 in Özturk, Publications of the European Court of Human Rights, Series A, Vol. 73, and its judgment of 25 August 1987 in Lutz, ibid, Vol. 123-A.

26 My understanding of this legislation is that it is also based on the conviction that the employer bears a special responsibility for certain dangerous acts carried out by persons at his request and in his (economic) interest.

27 See the judgment of 7 October 1988 in Salabiaku, published in Series A, Vol 141-A, in particular paragraph 28.

28 See the Wachatif judgment, already cited in footnote 22, paragraph 18.

29 See the judgments in Case 203/80 Casati [1981] ECR 2595, paragraph 27, in Case 118/75 Watson and Beimanti [1976] ECR 1185, paragraphs 17 and 18 and in Case 41/76 Donckerwolke v Procureur de la République [1976] ECR 1921, paragraphs 32 to 38.

30 As regards Article 6 of the Convention, see most recently the judgments in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 30 and 31, and in Case 27/88 Solvay v Commission [1989] ECR 3355, paragraphs 27 and 28. See also the Opinion of Mr Advocate General Darmon in those cases, [1989] ECR 3301, paragraphs 135 to 137 and 145. As regards Article 8 of the Convention, see the judgment in Case 136/79 National Panasonic v Commission [1980] ECR 2033, paragraph 19.