NK (C-231/18) · GlobalLawDB

Contents

Judgment of the Court (Eighth Chamber)7 February 2019^note(Reference for a preliminary ruling — Transport — Road transport — Regulation (EC) No 561/2006 — Regulation (EU) No 165/2014 — Obligation to use a tachograph — Exception for vehicles used for the carriage of live animals from farms to local markets and vice versa or from markets to local slaughterhouses)In Case C‑231/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Oldenburg (Higher Regional Court, Oldenburg, Germany), made by decision of 5 March 2018, received at the Court on 3 April 2018, in the proceedings againstTHE COURT (Eighth Chamber),composed of F. Biltgen, President of the Chamber, C.G. Fernlund and L.S. Rossi (Rapporteur), Judges,Advocate General: N. Wahl,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Norwegian Government, by E. Sawkins Eikeland, K.H. Aarvik and C. Anker, acting as Agents,– the European Commission, by B. Eggers and J. Hottiaux, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 13(1)(p) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1), as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 (OJ 2014 L 60, p. 1) (‘Regulation No 561/2006’).

2The request been made in proceedings brought against NK, a livestock wholesaler established in Lower Saxony (Germany), for authorising one of his drivers to transport livestock from a farm directly to a slaughterhouse, without a driver card.

Legal context

EU law

3Article 1 of Regulation No 561/2006 provides:‘This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety. …’

4Article 2(1)(a) of that regulation reads:‘This Regulation shall apply to the carriage by road:(a) of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes …’

5Article 13(1) of that regulation states:‘Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions from Articles 5 to 9 and make such exceptions subject to individual conditions on its own territory …, applicable to carriage by the following:…(p) vehicles used for the carriage of live animals from farms to local markets and vice versa or from markets to local slaughterhouses within a radius of up to 100 km.’

6Regulation No 165/2014 establishes inter alia the obligations and requirements applicable to the construction, installation, use, testing and checking of tachographs used in the field of road transport.

7Recital 3 of that regulation states:‘Certain vehicles are subject to an exemption from the provisions of Regulation … No 561/2006 … In order to ensure coherence, it should also be possible to exempt such vehicles from the scope of this Regulation.’

8Article 2(2) of Regulation No 165/2014 provides:‘In addition to the definitions referred to in paragraph 1, for the purposes of this Regulation the following definitions shall apply:(a) “tachograph” or “recording equipment” means the equipment intended for installation in road vehicles to display, record, print, store and output automatically or semi-automatically details of the movement, including the speed, of such vehicles, in accordance with Article 4(3), and details of certain periods of activity of their drivers;…(d) “tachograph card” means a smart card, intended for use with the tachograph, which allows identification by the tachograph of the role of the cardholder and allows data transfer and storage;…(f) “driver card” means a tachograph card, issued by the authorities of a Member State to a particular driver, which identifies the driver and allows for the storage of driver activity data;…’

9Article 3(2) of that regulation states:‘Member States may exempt from the application of this Regulation the vehicles mentioned in Article 13(1) and (3) of Regulation … No 561/2006.’

German law

10Paragraph 8 of the Fahrpersonalgesetz (Law on driving crews), states:(1)An offence is committed by any person who, intentionally or negligently:1. as an entrepreneur,…(b) infringes a provision … of Regulation … No 165/2014 …(2) The offence may be punished in the cases of subparagraph 1(1) and (3) by a fine of up to EUR 30000 …’

11Paragraph 18(1)(16) of the Fahrpersonalverordnung (Regulation on driving crews) provides:(1)Under Article 13(1) of Regulation … No 561/2006 and Article 3(2) of Regulation … No 165/2014, the following categories of vehicle are excluded … from the application of Articles 5 to 9 of Regulation … No 561/2006 and the application of Regulation … No 165/2014:…16. Vehicles used for the carriage of live animals from farms to local markets and vice versa or from markets to local slaughterhouses within a radius of up to 100 km from the location of the undertaking.’

12Paragraph 23(1)(2) of the Regulation on driving crews specifies:(1)An offence is committed within the meaning of Paragraph 8(1)(1)(b) of the Law on driving crews where a person, as an entrepreneur, infringes Regulation … No 165/2014 … by intentionally or negligently…2. failing to ensure the proper functioning of the tachograph or the correct use of the tachograph or driver card or record sheet …’

The dispute in the main proceedings and the question referred for a preliminary ruling

13NK is a livestock wholesaler, established in Lower Saxony, who purchases animals from farmers and transports them to slaughterhouses, to which he sells the animals.

14In November 2016, NK purchased fatted pigs from a farmer in the district of Cloppenburg in Lower Saxony, and had them transported in one of his livestock vehicles from the farm to the slaughterhouse. During a roadside check, it was noted that the driver had not inserted his driver card. In accordance with the law and the regulation on driving crews, NK was fined EUR 750 for permitting and arranging a trip without a driver card, and that fine was upheld by a decision of the Amtsgericht Oldenburg (Local Court, Oldenburg, Germany).

15NK appealed against that decision to the Oberlandesgericht Oldenburg (Higher Regional Court, Oldenburg, Germany), seeking the application of the exception in Article 13(1)(p) of Regulation No 561/2006, referred to in Article 3(2) of Regulation No 165/2014 and transposed into German law by Paragraph 18(1)(16) of the Regulation on driving crews.

16Taking the view that the interpretation of the concept of ‘market’ for the purposes of Regulation No 561/2006 was not obvious, the Oberlandesgericht Oldenburg (Higher Regional Court, Oldenburg) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Can a livestock wholesaler who purchases live animals from a farmer and transports them within a distance of up to 100 km to a slaughterhouse, to which he sells the animals, rely on the exception provided in Article 13(1)(p) of Regulation … No 561/2006 … — “vehicles used for the carriage of live animals from farms to local markets and vice versa or from markets to local slaughterhouses within a radius of up to 100 km” — because the purchase from the farmer is a “market” within the meaning of that provision or the livestock trade undertaking is itself to be regarded as a market?If there is no “market” within the meaning of that provision:Can a livestock wholesaler who purchases live animals from a farmer and transports them within a radius of up to 100 km to a slaughterhouse, to which he sells the animals, rely on that exception by applying the aforesaid rule by analogy?’

Consideration of the question referred

17By its question, the referring court asks, in essence, whether the term ‘market’ in Article 13(1)(p) of Regulation No 561/2006 must be interpreted as referring either to the transaction between a livestock wholesaler and a farmer or to the livestock wholesaler himself, or whether it is possible to extend the exception provided for in that provision to include vehicles transporting live animals from farms to local slaughterhouses.

18As a preliminary point, it must be noted that, in accordance inter alia with Article 1 thereof, Regulation No 561/2006 aims to harmonise the conditions of competition with regard to the road sector and to improve working conditions and road safety, those objectives meaning in particular that, in principle, road transport vehicles must be equipped with an approved tachograph enabling compliance with driving times and drivers’ rest periods to be monitored (judgment of 13 March 2014, A. Karuse, C‑222/12, EU:C:2014:142, paragraph 29 and the case-law cited).

19Pursuant in particular to Article 3(2) of Regulation No 165/2014, Member States are nonetheless authorised to exempt from the installation and/or use of tachographs the vehicles mentioned in Article 13(1) of Regulation No 561/2006, including those mentioned in Article 13(1)(p), namely ‘vehicles used for the carriage of live animals from farms to local markets and vice versa or from markets to local slaughterhouses within a radius of up to 100 km’.

20Since the Federal Republic of Germany has exercised the option granted in Article 3(2) of Regulation No 165/2014, the scope of the exception in Article 13(1)(p) of Regulation No 561/2006 must therefore be established.

21In that regard, it must be noted that, as an exception to Articles 5 to 9 of Regulation No 561/2006, the conditions under which Article 13(1)(p) of that regulation applies are to be interpreted strictly (see, by analogy, regarding Article 13(1)(d) of that regulation, judgment of 28 July 2011, Seeger, C‑554/09, EU:C:2011:523, paragraph 33). Moreover, the scope of that exception must be determined in the light of the aims pursued by the rules at issue (see, to that effect, judgment of 13 March 2014, A. Karuse, C‑222/12, EU:C:2014:142, paragraph 28 and the case-law cited).

22As regards the wording of Article 13(1)(p) of Regulation No 561/2006, it should be observed that that provision does not concern the generic term ‘markets’ but the more specific term ‘local markets’. That term leaves no room for doubt that the exception set out in that provision is circumscribed according to the places of departure and destination of transports of live animals, as farms are not the same as ‘local markets’ selling cattle. Similarly, the adjective ‘local’ necessarily implies that the ‘markets’ concerned designate not the actual carrying out of transactions relating to the transportation of live animals, regardless of where those transactions take place, but rather precisely determined locations, distinct from, on one hand, farms or agricultural holdings and, on the other hand, local slaughterhouses, in the geographical area referred to in Article 13(1)(p) of Regulation No 561/2006.

23Consequently, contrary to what the Norwegian Government argues in its written observations, it follows from the wording of Article 13(1)(p) of Regulation No 561/2006 that a ‘local market’ cannot be the same as the place of establishment of a farm or agricultural holding, which precludes the possibility of live animals being directly transported by a livestock wholesaler from that farm or agricultural establishment to the local slaughterhouse.

24Interpreting the exception set out in Article 13(1)(p) of Regulation No 561/2006 to the contrary would also run counter to the aims of that provision and that regulation.

25In that regard, it must be noted that, as the Court has previously held concerning the exception to the obligation to use tachographs provided for in Article 14a(2)(c) of Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonisation of certain social legislation relating to road transport (OJ, English Special Edition 1969(I), p. 170), as amended by Council Regulation (EEC) No 2827/77 of 12 December 1977 (OJ 1977 L 334, p. 1) (‘Regulation No 543/69’), which is worded in terms substantially similar to those of the exception in Article 13(1)(p) of Regulation No 561/2006, that exception aims to encourage commercial activities to which the transport itself is incidental, and can apply solely 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 (judgment of 28 March 1985, Hackett and Others, 91/84 and 92/84, EU:C:1985:153, paragraphs 16 and 19).

26It is in the light of that aim that the Court of Justice precluded transports which, as regards the distances covered, the power of the vehicles used and the intensity of their use, have precisely those characteristics which justified the generalisation of the use of tachographs, namely the risk that vehicles may 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, from being covered by the exception set out in Article 14a(2)(c) of Regulation No 543/69 (judgment of 28 March 1985, Hackett and Others, 91/84 and 92/84, EU:C:1985:153, paragraph 21).

27It is true that the exception set out in Article 13(1)(p) of Regulation No 561/2006 contains, contrary to that which was set out in Article 14a(2)(c) of Regulation No 543/69, an additional condition relating to the geographical radius in which it applies.

28The fact remains that interpreting that exception broadly so that it allows vehicles transporting live animals directly from the farm to local slaughterhouses to be exempt from the use of tachographs would entail the risk of encouraging economic operators such as livestock wholesalers to overuse high-powered vehicles to transport, daily, for several hours and without interruption, live animals from different farms to local slaughterhouses, with no regard for the objectives of social protection of drivers and road safety pursued by Regulation No 561/2006. As the European Commission pointed out in its written observations, the materialisation of such a risk is all the more probable where the region concerned is characterised, as in the case in the main proceedings, by a high density of livestock holdings and animal product processing centres.

29That interpretation cannot be invalidated by the arguments made by the Norwegian Government, referring, first, to the fact that the number of local cattle markets in the Member States is regularly decreasing, which requires the adoption of more a flexible reading of the exception referred to in Article 13(1)(p) of Regulation No 561/2006, and, second, to respect for animal health and welfare, which would be better ensured if the animals could be transported directly from farms to local slaughterhouses.

30As regards the first point, even if it were established that the number of local cattle markets has, even significantly, decreased in the Member States, it is sufficient to note, as the Commission does, that the EU legislature nevertheless expressly rejected a Commission proposition aiming to render the scope of the exception set out in Article 13(1)(p) of Regulation No 561/2006 more flexible. Subsequently, moreover, by adopting Regulation No 165/2014, the EU legislature limited itself to increasing the geographical radius from 50 km to 100 km, hence without deleting the term ‘local markets’.

31As regards the second point, although the requirement to respect animal health and welfare is not among the objectives pursued by Regulation No 561/2006, it is in any event not ruled out, contrary to what is suggested by the Norwegian Government, that such a requirement may be reconciled with those objectives. The overexploitation of vehicles transporting live animals, daily and without interruption, directly between several agricultural holdings and one or more local slaughterhouses is not only liable to affect the drivers’ working conditions and to endanger road safety, which justify that such vehicles should use tachographs, but may also have a negative effect on those animals’ health and welfare.

32It follows that the answer to the question referred is that the term ‘local markets’ in Article 13(1)(p) of Regulation No 561/2006 must be interpreted as referring neither to the transaction between a livestock wholesaler and a farmer nor to the livestock wholesaler himself, so that the exception provided for in that provision cannot be extended to include vehicles transporting live animals directly from farms to local slaughterhouses.

Costs

33Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Eighth Chamber) hereby rules: The term ‘local markets’ in Article 13(1)(p) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014, must be interpreted as referring neither to the transaction carried out between a livestock wholesaler and a farmer nor to the livestock wholesaler himself, so that the exception provided for in that provision cannot be extended to include vehicles transporting live animals directly from farms to local slaughterhouses.