RE v Bezirkshauptmannschaft Lilienfeld.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:394
• Date: 11 May 2023
• Docket Number: C-155/22
• Celex Number: 62022CJ0155
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Second Chamber)

11 May 2023 (*)

(Reference for a preliminary ruling – Road transport – Common rules concerning the conditions to be complied with to pursue the occupation of road transport operator – Regulation (EC) No 1071/2009 – Articles 6 and 22 – National legislation permitting the transfer of criminal responsibility for serious infringements regarding the driving time and rest periods of drivers – Failure to take into account the penalties imposed for infringements when assessing the good repute of a road transport undertaking)

In Case C‑155/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landesverwaltungsgericht Niederösterreich (Lower Austria Regional Administrative Court, Austria), made by decision of 3 March 2022, received at the Court on 3 March 2022, in the proceedings

RE

v

Bezirkshauptmannschaft Lilienfeld,

intervening party:

Arbeitsinspektorat NÖ Wald- und Mostviertel,

THE COURT (Second Chamber),

composed of A. Prechal, President of the Chamber, M.L. Arastey Sahún (Rapporteur), F. Biltgen, N. Wahl and J. Passer, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– RE, by A. Bajraktarevic and D. Schärmer, Rechtsanwälte,

– the Austrian Government, by C. Leeb, A. Posch and J. Schmoll, acting as Agents,

– the European Commission, by P. Messina and G. Wilms, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 22 of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (OJ 2009 L 300, p.51), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 (OJ 2013 L 158, p.1) (‘Regulation No 1071/2009’).

2 The request has been made in proceedings between RE and Bezirkshauptmannschaft Lilienfeld (administrative authority of the district of Lilienfeld, Austria) (‘the administrative authority’) concerning several penalties imposed by that authority on RE for infringements of EU law rules relating, inter alia, to the driving time and rest periods of drivers.

Legal context

European Union law

3 Recitals 1, 2 and 4 of Regulation No 1071/2009 state:

‘(1) The completion of an internal market in road transport with fair conditions of competition requires the uniform application of common rules on admission to the occupation of road haulage operator or road passenger transport operator (the occupation of road transport operator). Such common rules will contribute to the achievement of a higher level of professional qualification for road transport operators, the rationalisation of the market and an improved quality of service, in the interests of road transport operators, their customers and the economy as a whole, together with improvements in road safety …

(2) Council Directive 96/26/EC of 29 April 1996 on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations [(OJ 1996 L 124, p.1)] lays down minimum conditions governing admission to the occupation of road transport operator and the mutual recognition of the documents required in this connection. However, experience, an impact assessment and various studies show that that Directive is being applied inconsistently by Member States. Such disparities have several adverse consequences, in particular a distortion of competition and a lack of market transparency and of uniform monitoring, as well as the risk that undertakings employing staff with a low level of professional qualification may be negligent in respect of, or less compliant with, the rules on road safety and social welfare, which may harm the image of the sector.

…

(4) It is therefore appropriate to modernise the existing rules on admission to the occupation of road transport operator in order to ensure that those rules are applied more uniformly and effectively. …’

4 Article 1(1) of that regulation provides:

‘This Regulation governs admission to, and the pursuit of, the occupation of road transport operator.’

5 Article 2(5) of the regulation defines ‘transport manager’ as meaning ‘a natural person employed by an undertaking or, if that undertaking is a natural person, that person or, where provided for, another natural person designated by that undertaking by means of a contract, who effectively and continuously manages the transport activities of that undertaking’.

6 Article 3 of the same regulation, entitled ‘Requirements for engagement in the occupation of road transport operator’, provides in paragraph 1(b) that undertakings engaged in the occupation of road transport operator must be of ‘good repute’.

7 Article 6 of Regulation No 1071/2009, entitled ‘Conditions relating to the requirement of good repute’, provides:

‘1. Subject to paragraph 2 of this Article, Member States shall determine the conditions to be met by undertakings and transport managers in order to satisfy the requirement of good repute laid down in Article 3(1)(b).

In determining whether an undertaking has satisfied that requirement, Member States shall consider the conduct of the undertaking, its transport managers and any other relevant person as may be determined by the Member State. Any reference in this Article to convictions, penalties or infringements shall include convictions, penalties or infringements of the undertaking itself, its transport managers and any other relevant person as may be determined by the Member State.

The conditions referred to in the first subparagraph shall include at least the following:

…

(b) that the transport manager or the transport undertaking have not in one or more Member States been convicted of a serious criminal offence or incurred a penalty for a serious infringement of Community rules relating in particular to:

(i) The driving time and rest periods of drivers, working time and the installation and use of recording equipment;

…

2. For the purposes of point (b) of the third subparagraph of paragraph 1:

(a) where the transport manager or the transport undertaking has in one or more Member States been convicted of a serious criminal offence or incurred a penalty for one of the most serious infringements of Community rules as set out in Annex IV, the competent authority of the Member State of establishment shall carry out in an appropriate and timely manner a duly completed administrative procedure, which shall include, if appropriate, a check at the premises of the undertaking concerned.

The procedure shall determine whether, due to specific circumstances, the loss of good repute would constitute a disproportionate response in the individual case. Any such finding shall be duly reasoned and justified.

If the competent authority finds that the loss of good repute would constitute a disproportionate response, it may decide that good repute is unaffected. In such case, the reasons shall be recorded in the national register. The number of such decisions shall be indicated in the report referred to in Article 26(1).

If the competent authority does not find that the loss of good repute would constitute a disproportionate response, the conviction or penalty shall lead to the loss of good repute;

…’

8 Article 12 of that regulation, under the heading ‘Checks’, provides in paragraph 1:

‘Competent authorities shall monitor whether undertakings which they have authorised to engage in the occupation of road transport operator continue to fulfil the requirements laid down in Article 3. …’

9 In accordance with Article 13(3) of that regulation:

‘If the competent authority establishes that the undertaking no longer satisfies one or more of the requirements laid down in Article 3, it shall suspend or withdraw the authorisation to engage in the occupation of road transport operator within the time limits referred to in paragraph 1 of this Article.’

10 Article 22 of that regulation provides:

‘1. Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation, and shall take all the measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify those provisions to the [European] Commission by 4 December 2011 at the latest and shall notify it without delay of any subsequent amendment affecting them. Member States shall ensure that all such measures are applied without discrimination as to the nationality or place of establishment of the undertaking.

2. The penalties referred to in paragraph 1 shall include, in particular, suspension of the authorisation to engage in the occupation of road transport operator, withdrawal of such authorisation and a declaration of unfitness of the transport manager.’

11 Annex IV of Regulation No 1071/2009 lists the ‘most serious infringements for the purposes of Article 6(2)(a)’ of that regulation.

Austrian law

12 Pursuant to the last sentence of Paragraph 9(2) of the Verwaltungsstrafgesetz (Law on administrative penalties), of 31 January 1991 (BGBl. 52/1991), in the version applicable to the facts in the main proceedings, (‘the VStG’), persons authorised to represent a company vis-à-vis third parties may designate, as the agent responsible, one or several persons who are not amongst the class of persons authorised to represent it vis-à-vis third parties, who are...