Criminal proceedings against Skills Motor Coaches Ltd and Others (Case C-297/99)

ECJ: President of Chamber La Pergola, Judges Wathelet, Edward, Jann and Sevón: 18 January 2001

The obligation on a driver of a vehicle subject to tachograph regulations to record on the tachograph "all other periods of work" extended (a) to time necessarily spent travelling to take over the vehicle at a place other than the driver's home or the employer's base, regardless of whether the employer gave instructions as to when and how to travel or whether that was left to the driver's choice, and (b) to time spent by the driver performing a transport service not subject to the regulations, before he took over the vehicle.
The Fifth Chamber of the Court of Justice of the European Communities so ruled on a reference by Nottingham Magistrates' Court.
Art 15(3) of Regulation 3821/85 on recording equipment on road transport requires drivers to record, inter alia, "(a) ... driving time" and "(b) ... all other periods of work."

The defendant coach operator from time to time required drivers employed by it to take over a coach at a place other than the driver's home or the company's base, but left it to the drivers to choose how to travel to that place. It and a number of drivers were charged under s 97 of the Transport Act 1968 with two groups of alleged offences of non-compliance with art 15 of Regulation 3821/85, in that drivers, on taking over a coach, failed to record on the tachograph, in one group, time spent travelling from their homes by car to take over the coach, and, in the other group, time spent earlier in the day doing driving duties on vehicles which were not subject to tachograph regulations. The question referred was whether there was an obligation to record those periods of time.

THE COURT said that, according to the prosecution, the periods of time in question should have been recorded, by virtue of art 15(3)(b) of the Regulation, but the defendants, relying on Criminal proceedings against Van Swieten BV (Case C-313/92) [1994] ECR I-2177 and Criminal proceedings against Michielsen (Case C-394/92) [1994] ECR I-2497, argued that periods before a tachograph vehicle was taken over should not have to be recorded. The prosecution's interpretation was correct. In Van Swieten and Michielsen the court held that working periods following a rest period began when the driver activated the tachograph, but that was in the factual context where the vehicle was driven immediately after a rest period, and the court was not intending to exclude from work periods periods of actual activity between the end of the rest period and the beginning of driving. Time spent by a driver travelling to take over a tachograph vehicle was apt to affect his state of tiredness, and accordingly, in view of the objective of road safety which underlay the Regulation, was to be regarded as part of "all other periods of work." Since the driver, in so going to take over a vehicle, was performing a task required by the employer, the question whether he had received precise instructions on the mode of travel was immaterial. Similarly, time spent performing a transport service falling outside the scope of the Regulation, before taking over the tachograph vehicle, was time when the driver was engaged in activities liable to have a bearing on driving, during which he did not freely dispose of his time.