Opinion of Advocate General
Mr President,
Members of the Court,
1. In this case the Manchester Crown Court has asked the Court to give a preliminary ruling on the interpretation of, in particular, Article 7(1) and (2) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on lhe harmonization of certain social legisla tion relating to transport.
Factual and legal background
2. The main proceedings concern an appeal by three appellants, Mr Charlton, Mr Huyton and Mr Wilson, against their conviction by the Hcywood Magistrates for driving or allowing employees to drive for more than four-and-a-half hours without a break, con trary to Article 7(1) and (2) of Regulation No 3820/85 and the United Kingdom legislation implementing that provision. Since the appellants and the Crown Prosecution Service differed in their interpretation of Article 7(1) and (2), the Manchester Crown Court decided to refer a question on interpretation to the Court.
3. Regulation No 3820/85 contains harmonizing rules concerning the age of drivers engaged in the carriage of goods (Article 5), maximum driving periods (Article 6), the length and frequency of breaks and rest periods (Articles 7 and 8) and the prohibition of certain types of payment which constitute an inducement to infringe those rules (Article 10).
The preliminary questions
4. The Manchester Crown Court referred the following three questions to the Court:
5. The appellants had proposed that 10 further questions be referred to the Court, concerning in particular the interpretation of Articles 6 and 8 of Regulation No 3820/85. From the order for reference it appears that the national court considered that it was not necessary to refer those other questions to the Court, except for the following fourth question: Should the answer to the first question be interpreted in the context of the overall provisions of Articles 6 and 8 of the Regulation?
The interpretation of Articles 7(1) and (2)
6. Two possible interpretations. As already stated, the central question in this case is whether each four-and-a-half-hour driving period is to be considered in the context of Article 7 as a separate entity or whether it is to be considered as a rolling period. There is thus a choice between two possible interpretations of Article 7. According to one interpretation, the four-and-a-half-hour driving period should be seen as prohibiting continuous driving for longer than four-and-a-half hours within the daily driving period, which normally may not be more than 9 hours (see Article 6(1), cited at point 3 above). On this view the driving period is to be seen as a rolling period (the so-called rolling period interpretation), that is to say, as a period which can commence at any moment of the daily driving period and ends as soon as the driver has completed four-and-a-half hours' continuous driving.
7. The difference between the two interpretations may best be explained by an example taken from the observations of the United Kingdom Government. A driver begins driving at 08.00. At 08.15 he takes a 15-minute break and after a further 15 minutes' driving takes a 30 minutes break at 08.45. After re-commencing driving at 09.15 he drives continuously through to 17.45, whereupon he begins his daily rest period.
8. It is clear from the example that the choice between the two possible interpretations can make a considerable difference. The appellants in the main proceedings have argued in favour of the separate periods interpretation before both the national court and this Court. They rely on two forms of argument concerning, respectively, the principle that rules should be interpreted in favour of the defendant in criminal proceedings and the wording of Article 7 of Regulation No 3820/85. The French Government, which has submitted observations to the Court, also expressly supports that interpretation, putting forward an argument of a practical nature relating to the aims of the regulation.
9. The textual arguments are inconclusive. A first point to note concerning the interpretation of Article 7(1) and (2) of Regulation No 3820/85 is that the wording of those provisions is not clear in itself, or at least does not make it possible to choose between the two possible interpretations that I have set out above. That conclusion, which led the Manchester Crown Court to make the reference to the Court, seems to be shared at least implicitly by all the parties before the Court.
10. The legislative history supports the rolling period interpretation. Where the words of a Community provision are ambiguous, reference should be made to the context in which it occurs and the objects of the rules of which it is part. With reference to the observations of the Netherlands Government and above all those of the United Kingdom Government I shall begin by examining the legislative history of Regulation No 3820/85, in particular Article 7(1) and (2).
11. Let us examine the terms used in Regulation No 543/69 in the light of that continuity in the basic concepts. Article 7(1) of the Regulation provided that:
12. In its first proposal for Regulation No 3820/85 the Commission proposed various amendments concerning driving and rest periods. The proposed new text of Article 7(1) read as follows:
13. In its Resolution the European Parliament amended the proposed Article 7 by again replacing the word work by driving because of the absence of uniform rules on work and reliable methods of control. Moreover, the Parliament suggested that Article 8(1) should be reformulated as follows:
14. In response to the Parliament's Resolution the Commission amended its original proposal, seeking, on the one hand, to retain its proposal to include work other than driving in the driving period and, on the other, to accommodate the amendments proposed by the Parliament to Article 8. The result was that the provisions of Article 7(1) and Article 8 were combined in a new Article 7(1) and (2):
15. The aims of the Regulation also support the rolling period interpretation. Support for the interpretation whereby Article 7(1) and (2) of Regulation No 3820/85 lay down a prohibition on continuous driving for more than four-and-a-half hours is also to be found in the aims of the Regulation.
16. The concern to give precedence to interpretations which best serve the aim of improving road safety is clearly discernible in the case-law of the Court concerning the interpretation of Regulation No 3820/85 and its predecessor, Regulation No 543/69. This is apparent first of all from the judgment in Cagnon and Taquet in which the Court gave those reasons for choosing a particular interpretation of the rules concerning rest periods. That line was continued in later judgments, including the recent judgment of 25 June 1992 in British Gas.
17. Discussion of certain counterarguments. I shall consider briefly two arguments put forward by the French Government and the appellants in the main proceedings respectively in support of the separate periods interpretation of Article 7(1) and (2) of Regulation No 3820/85.
18. For their part the appellants in the main proceedings stress the importance of the principle of interpreting provisions in favour of the defendant in criminal proceedings. In his submissions before the Manchester Crown Court, which are reproduced in his observations for the Court, the Solicitor for the appellant states:
Replies to the preliminary questions
19. In the light of the foregoing I propose that the Court give the following replies to the Manchester Crown Court.
1 Original language: Dutch
2 OJ 1985 L. 370, p 1.
3 The Transport Act 1968, as amended, and the Drivers' Hours (Harmonization with Community Rules) Regulations 1986 (S 1 1986/1458) One of the three appellants. Mr Charlton, was also convicted of allowing an employee to exceed the maximum daily driving period as laid down in Article 6(1) of Regulation No 3820/85 and of allowing him to disregard the daily rest period laid down in Article 8(1).
4 As mentioned in footnote 2, one of the three applicants was also convicted of infringements concerning those articles
5 Case C 377/88 Safa [1990] KCR I 1, paragraph 20
6 In its observations the Commission refers to these interpre talions as the wipe the slate clean interpretation and the rolling period interpretation The United Kingdom Government, for its part, refers to the clean slate approach and the rolling period interpretation
7 For a systematic summary of the arguments of the parties I refer to the Report for the Hearing.
8 The national court also sent to the Court two decisions, one by the Wolverhampton Crown Court in 1985 (Peter Wright v West Midlands Police) and one by the High Court in 1989 (Lancashire Police v Mayfield Chicks Ltd) in which that interpretation was chosen. The United Kingdom states in its observations that hundreds of similar cases arc pending in the United Kingdom alone.
9 The appellants also seek to base an argument on the words in such a way as to comply with the provisions of paragraph 1 in paragraph 2. According to the appellants those words refer to the final words of paragraph 1, namely unless he begins a rest period. As the United Kingdom Government observes in its observations before the Court, that reading cannot be accepted since the final words of paragraph 1 do not lay down an obligation but merely provide that the obligation laid down in the preceding part of paragraph 1 need not strictly be respected if the break is subsumed within a (longer) rest period.
10 See inter alia the judgment in Case 292/82 Merck v Hautptzollamt Hamburg-Jonas [1983] ECR 3781, at paragraph 12.
11 OJ, English Special Edition 1969 (I), p. 170.
12 In 1979 a codified version of Regulation No 543/69 had already been published in OJ 1979 L 73, p. 1.
13 Document COM(84) 147 fin./2.
14 Proposal for a Council Regulation amending Regulation (EEC) No 543/69 on the harmonization of certain social legislation relating to road transport and Regulation (EEC) No 1463/70 on the introduction of recording equipment in road transport, COM(84) 147 dcf., OJ 1984 C 100, p. 3.
15 OJ 1985 C 122, p. 161.
16 Amended proposal for a Council Regulation (EEC) amending Regulation (EEC) No 543/69 on the harmonization of certain social legislation relating to road transport and Regulation (EEC) No 1463/70 on the introduction of recording equipment in road transport, COM(85) 458 def-, OJ 1985 C 223, p. 5.
17 Partly quoted above at point 10. with the omission ot the passage cited above
18 Case 69/74 Cagnon and Taquet [1975] ECR 171, para graphs 6 and 7
19 Case 65/76 Derycke [1977] ECR 29, paragraphs 13 to 15, Case 47/79 Neblsen [1979] ECR 3639, paragraphs 6 and 7; Case 133/83 Scott [1984] ECR 2863, paragraph 18.
20 Case C 116/91 British Gas [1991] ECR I 4071, paragraph 20.
21 Indications to that effect are to be found in the first, 15th, 16th, 18th and 19th recitals in the preamble to the Regulation.
22 This is also apparent from the example which I gave at point 7.
23 Article 11(2) of the Universal Declaration of Human Rights also provides that no-one is to be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law at the time when it was committed.
24 See inter alia the judgment in Case 4/73 Nold [1974] ECR 491, paragraph 13; Case C-260/89 ERT [1991] ECR I-2925, paragraph 41. In the judgments in Kirk and Fedesa the Court in fact expressly held that the principle that criminal provisions cannot have retroactive effect — that principle is a part of the principle nullum crimen sine lege embodied in Article 7 of the European Human Rights Convention — is among the general principles of law whose observance is ensured by the Court of Justice: Case 63/83 Kirk [1984] ECR 2689, paragraph 22; Case C-331/90 Fedesa [1990] ECR I-4023, paragraph 32. The Court has in my view accepted this, at least implicitly, also with respect to the principle nulla poena sine culpa: Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 29; Case 83/83 Estel v Commission [1984] ECR 2195, paragraphs 38 to 43.
25 Case C-7/90 Vandevenne [1991] ECR I-4371, parigraph 11. The Court set out the well-known conditions flowing from Article 5 of the EEC Treaty, namely that infringements of a Community regulation must be penalized under conditions, both procedural and substantive, which arc analogous to those applicable to infringements of national law of a similar nature and importance and that the penalties must in any event be effective, proportionate and dissuasive.
26 It appears from the judgment in Estel v Commission, cited in footnote 23 (paragraphs 41 and 43), that the Court also applies the criterion of the excusable mistake in examining whether the principle nulla poena sine culpa is infringed.