Contents
Judgment of the Court (Fourth Chamber)28 March 1985noteIn Joined Cases 91 and 92/84REFERENCE to the Court under Article 177 of the EEC Treaty by the Divisional Court, Queen's Bench Division of the High Court of Justice, for a preliminary ruling in the proceedings pending before that court betweenDirector of Public ProsecutionsandSidney Hackett Limited and Roy Thomas Weston (Case 91/84)Raymond C. TetlowandPerman George Dovey (Case 92/84)THE COURT (Fourth Chamber)composed of: Lord Mackenzie Stuart, President, G. Bosco (President of Chamber), P. Pescatore, T. Koopmans and K. Bahlmann, Judges,Advocate General: P. VerLoren van ThemaatRegistrar: H. A. Rühi, Principal Administratornotegives the following
Judgment
(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)
Decision
1By two orders dated 21 February 1984, drawn up in identical terms and received at the Court on 2 April 1984, the Divisional Court of the Queen's Bench Division of the High Court of Justice referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 14a of 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), as amended by Regulation No 515/72 of the Council of 28 February 1972 (Official Journal, English Special Edition 1972 (I), p. 515) and Council Regulation No 2827/77 of 12 December 1977 (Official Journal L 334, p. 1) and in particular on the interpretation of the expression ‘local market’ contained in that provision.
2That question was raised in the course of prosecutions brought against a farmer, a farming company and a driver for not using tachographs when transporting animals to or from the farms concerned.
3Case 91/84 concerns a company, Sidney Hackett Limited, which owns a farm at Radcliffe-on-Trent and an abattoir at Daybrook in Nottinghamshire and which buys sheep at various markets in the United Kingdom where it can find them in the numbers (300 to 400) and of the weight required. The animals are kept at the farm and after one or two days are taken to the abattoir.
4The nearest cattle-market to the farm is at Nottingham, which is about eight miles away, but since the number and quality of sheep which it needs are not available there the company obtains its supplies from Hexham market and Penrith market in the north of England which are about 150 miles from Nottingham.
5On the occasion of an accident involving a goods vehicle and trailer owned by the company and driven by Mr Weston in the County of Durham it was found that the lorry was loaded with sheep bought at Hexham market and the trailer with sheep bought at Penrith market. The vehicle was fitted with a tachograph but it had not been used for the transport operation in question. It emerged that the company had given instructions to the driver not to switch on the tachograph when the vehicle was being used for transporting animals from a market to the farm. However, the driver had a logbook which contained a written record of his journey on the day in question.
6The company and Mr Weston were prosecuted before the Magistrates' Court sitting at Bishop Auckland. They were acquitted, the Justices taking the view that the transport operation in question was from a ‘local market’ and as such was exempt from the requirement to use a tachograph. The Director of Public Prosecutions appealed against that decision to the Divisional Court.
7Case 92/84 concerns a farmer and pig-breeder, Mr Dovey, who has a farm at Sherfield English in the south of England and who at the material time owned a cattle transporter. Once a week he used to go to Banbury market, which is north of Oxford and about 95 miles from his farm, to sell his pigs. At the same time he also used to transport pigs for other farmers in the same locality. In the course of an inspection it was noted that, although his vehicle was fitted with a tachograph, no control card had been inserted. He had no alternative transport record.
8Mr Dovey was prosecuted before the Magistrates' Court sitting at Banbury. He agreed that there were pig markets nearer to his farm, for example at Winchester and Salisbury, but maintained that they were too small to handle the number of pigs which he wished to sell, namely some 3000 pigs a year or on average 60 pigs a week.
9The Justices acquitted Mr Dovey on two grounds: first, in their viewm only the nearest market at which particular goods could be sold at a profit could be regarded as a ‘local market’; secondly, the time needed to drive to Banbury market did not exceed the maximum period allowed by law. Mr Tetlow, acting on behalf of the Department of Transport, appealed against that decision to the Divisional Court.
10At the appellants' request, the Divisional Court referred a question to the Court, formulated in terms of five alternatives, for a preliminary ruling on the interpretation of the expression ‘local market’, contained in Article 14a of Regulation No 543/69 and incorporated into national legislation pursuant to an exemption provided for in subparagraph (2) (c) of Article 14. That question, which is identical in both cases, is worded as follows:Is a ‘local market’ within the meaning of Article 14a (2) (c) of Council Regulation (EEC) No 543/69, as amended by Council Regulation No 2827/77:(1) a market (regardless of type) reasonably close to the farm in question?or(2) a market (regardless of type) reasonably close to the farm, having regard to local geographical circumstances?or(3) a market reasonably close to the farm in question (and/or reasonably close having regard to local geographical circumstances) having regard to the class or breed of animal in question bought or sold thereat — and if so, at what point (if any) does such a market cease to be ‘local’?or(4) a market reasonably close to the farm in question (and/or reasonably close having regard to local geographical circumstances) at which the class or breed of animal in question can be bought or sold on commercially advantageous terms having regard to the quantity of animals involved and if so :(a) how is ‘advantageous’, in this context, to be interpreted?and(b) at what point (if any) does such a market cease to be ‘local’?or(5) a market within four hours' driving distance (or the maximum hours permissible without a rest by the legislation subsisting at the time) of the farm from which the animals have come?
Substance
11Sidney Hackett Limited and Mr Dovey take the view that ‘local market’ must be understood as meaning the nearest market at which a farmer can buy or sell, in accordance with his needs, on commercially profitable terms. In their view, the fact that there may be markets which are nearer geographically is irrelevant if they are too small to enable buying or selling, as the case may be, to be done on a regular, profitable basis. Both the company and Mr Dovey point to the inconvenience entailed in using the tachograph during the transport of animals owing to the obligation to observe rest periods and, particularly in the company's case, owing to the obligation to employ two drivers instead of one on the long journeys involved in collecting and delivering animals.
12The United Kingdom states that the expression ‘local market’ implies that the market must be reasonably close. However, it maintains that it is necessary to take account of the variation in geographical circumstances so as not to handicap agricultural communities in remote or outlying areas where it is necessary that it should be possible to regard even markets situated a considerable distance from farms as local markets. On the other hand, the determination of what constitutes a ‘local market’ should not depend on whether the transport operation is carried out by the farmer or by a third party. It also considers that commercial considerations, that is to say whether animals can be bought or sold on favourable terms having regard to the numbers involved, can have no role in determining what may be regarded as a local market. As regards the two cases under consideration, the United Kingdom considers that, in view of the distances travelled, it can no longer be said that there is a ‘local market’ within the meaning of the regulation.
13The Commission states that ‘local market’ must be understood as meaning a market which is reasonably close to the farm, which regularly deals in animals of the type in question and which has the necessary facilities for that purpose. In its view, the surest test, and the one which has the further advantage that it can be applied uniformly throughout the Community, is to apply by analogy the concept of ‘a radius of 50 kilometres from the place where the vehicle is based’, contained in Article 14a (1). The Commission agrees with the United Kingdom that commercial considerations are not decisive for the purpose of determining what constitutes a ‘local market’. Where, for commercial reasons, a farming business seeks a market further away than the geographically nearest market, the geographical limits inherent in trie concept of access to local markets are exceeded. In that case, the farmer or cattle-dealer must ensure that his vehicle is fitted with a tachograph and he must comply with the social provisions laid down by the relevant regulations. The Commission takes the view that both Sidney Hackett Limited and Mr Dovey fall into that category. The Community legislation does not in any way prevent them from seeking the most advantageous markets, but, if they do, then, like all other road-haulage operators, they should comply with the rules regarding the use of tachographs.
14The question raised by the Divisional Court must be resolved by taking into account both the aim of Regulation No 543/69 and the place occupied by Article 14a in the context of that regulation.
15As the Court pointed out in its judgment of 11 July 1984 in Case 133/83 Regina v Thomas Scott & Sons Bakers Limited and Brian Rimmer [1984] ECR 2863, Regulation No 543/69 pursues three objectives simultaneously, namely the social protection of drivers, the improvement of road safety and the elimination of disparities liable to distort competition in road transport. In order to attain those objectives Regulation No 543/69 generalized the use of tachographs which is meant to enable driving times, rest periods and the speed of the vehicles to be checked.
16Article 14a allows the Member States to exempt certain types of transport from the requirement to use the tachograph. Those types of transport are characterized either by the limited area in which services are provided or their discontinuous nature or by the special nature of the transport operations or of the vehicles used. For the most part they are very specific operations in which certain activities, whether of a commercial or noncommercial nature, are carried out to which the transportation itself is incidental. Some of the exemptions are precisely circumscribed whereas others, such as the exemption at issue in the cases referred to the Divisional Court, need to be specifically delimited by the courts.
17The provision in question in the present cases, namely Article 14a (2) (c), is worded as follows :‘Member States may, after consulting the Commission, grant exemptions from this regulation for the following national transport operations and uses :...(c) transport of live animals from farms to local markets and vice versa ... ’.
18In determining the scope of that derogation it should be borne in mind that the text of the regulation establishes a correlation between, on the one hand, local markets and, on the other hand, the farm, its production or, as the case may be, its needs. From this it follows that the scope of the concept of ‘local markets’ cannot be ascertained by interpreting that concept in isolation but must be determined on the basis of the type of transport envisaged by subparagraph (2) (c) of Article 14a inasmuch as it concerns the transport of live animals from the farm to the local market or from such a market to the farm.
19In the context of the exceptions provided for in Article 14a, that provision can only refer to transport operations involving short distances, carried out in the interests of individual farms and corresponding to the normal needs of such farms as regards the supply of livestock or the sale of their produce. It must be made clear that in this context farms can only be understood as meaning normal, average-sized farms, such as are typical of the area in question. Consequently, a local market, within the meaning of the regulation, must be regarded as being the nearest market, having regard to geographical circumstances, at which it is possible to buy or sell, as the case may be, according to the needs of the production units having the abovementioned characteristics.
20Contrary to the contention of the respondents in the main proceedings, the exception in paragraph (2) (c) of Article 14a cannot therefore be extended to transport operations which, either because of the unusual size of the farm concerned or because the production of several farms is pooled, necessitate the use of markets further away than the nearest market normally serving farms in the area.
21As regards the distances covered, the power of the vehicles used and the intensity of their use, the transport operations required by operations of that scale have precisely those characteristics which justified the generalization of the use of the tachograph, namely the risk that vehicles might be overused and drivers overworked, with all the undesirable consequences for the social protection of transport workers, road safety and the maintenance of proper conditions of competition in the sector in question.
22The answer to the question raised must therefore be that for the purposes of Article 14a (2) (c) of Regulation No 543/69 of the Council, as amended by Regulation No 515/72 of 28 February 1972 and Regulation No 2827/77 of 12 December 1977, ‘local market’ must be understood as meaning the market which, having regard to geographical circumstances, is the nearest to a particular farm and at which it is possible to buy or sell, as the case may be, according to the needs of normal average-sized farms which may be considered typical of the area in question.
Costs
23The costs incurred by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
Operative part
On those grounds,THE COURT (Fourth Chamber),in answer to the question submitted to it by the Divisional Court of the Queen's Bench Division of the High Court of Justice by orders of 21 February 1984, hereby rules: Article 14a (2) (c) of Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport, as amended by Regulation No 515/72 of the Council of 28 February 1972 and by Council Regulation No 2827/77 of 12 December 1977, must be interpreted to the effect that ‘local market’ must be understood as meaning the market which, having regard to geographical circumstances, is the nearest to a particular farm and at which it is possible to buy or sell, as the case may be, according to the needs of normal, average-sized farms which may be considered typical of the area in question.
Delivered in open court in Luxembourg on 28 March 1985.
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