Opinion of Advocate General Van Gerven delivered on 15 September 1993

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.