Road transports. Advocate General Bobek rules on the drivers’ obligations in case of mixed-use vehicles

On 4 March 2021, Advocate General Bobek held its judgment in Case C‑906/19, FO v Ministère public, on the interpretation of Regulation (EC) No 561/2006 and Regulation (EEC) no 3821/85 in order to determine whether drivers’ obligations arising from the latter apply in the context of vehicles used both for regular services of less than 50 kilometres as well as for longer journeys, and if the unlawful acts in question could be criminally prosecuted in France although committed in Germany. The request has been made in proceedings between Fo and the Cour d’appel de Versailles (Versailles Court of Appeal) on the decision to fine him EUR 10125 for infringing the legislation concerning working conditions in the road transport sector. 

Following a roadside check performed in Versailles on 2 April 2013, officers of the division for preventing and penalising road traffic offences found out that, from 5 to 9 March, and then from 14 to 16 March, a coach operated by a company whose registered office is in Segenthal (Germany) had been used without the driver card having been inserted in the tachograph. Consequently, the Tribunal correctionnel de Versailles (Criminal Court of Versailles) fined Fo, the managing director of the above-mentioned company, EUR 10 125, a decision later confirmed also by the Court of Appeal of Versailles. Fo, therefore, appealed the Cour de cassation (Court of Cassation; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask the Court of Justice two preliminary questions.

By the second question, the referring court asked whether Article 3(a) of Regulation (EC) No 561/2006 should be interpreted as permitting a driver to derogate from the provisions of Article 15(2) and (7) of Regulation No 3821/85. According to the Advocate General, if a vehicle is not used exclusively for the carriage of passengers on regular services whose route does not exceed 50 kilometres pursuant to Article 3(a) of Regulation no. 561/2006, but is used in a mixed way, such a vehicle fully falls within the scope of this regulation, so that each driver must fulfil the obligations arising, in particular, from Article 15 of Regulation no. 3821/85, even where the vehicle in question is casually used for routes not exceeding 50 kilometres. Article 3(a)’s derogation, indeed, cannot be interpreted as including the casual use of certain vehicles for regular services whose route is shorter than 50 kilometres, concerning rather vehicles used exclusively for the carriage of passengers on regular services whose route does not exceed such a distance.

By the first question, the referring court asked whether Article 19(2) of Regulation (EC) No 561/2006 applies only to the infringements of its provisions or also to those of Regulation (EEC) No 3821/85. According to the Advocate General, Article 19(2) of Regulation no. 561/2006 does not allow a Member State’s authorities to impose a penalty on a company’s managing directorand/or the driver of a vehicle falling within its scope for an infringement of Regulation no. 3821/85 that has not been committed on its territory and that has no other connection with the Member State concerned.

Marco Stillo