CJEU: the immobilisation of a vehicle is possible only if it respects the principle of proportionality
“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 […] must be interpreted as precluding national legislation which authorises, as a precautionary measure, the immobilisation of a vehicle owned by a transport undertaking in a situation where, firstly, the driver of that vehicle, employed by the undertaking, drove it in breach of the provisions of Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport and, secondly, the competent national authority did not establish the liability of that undertaking, since such a precautionary measure does not meet the requirements of the principle of proportionality.”.
– Court of Justice, Fifth Chamber, judgment 19 October 2016, in case C-501/14 –
The case at hand
This case concerns an Hungarian transport undertaking registered in Bulgaria (hereinafter, the “Transport company”). During a transport carried out in Hungary, one of the employees of that undertaking, who was driving a heavy goods vehicle owned and operated by the undertaking, was the subject of a traffic control. The competent authorities found that there was an infringement of the provisions of Paragraph 15(7)(a)8 of Regulation No 3821/85.
On 25 February 2014, the authority imposed an administrative fine on the driver. In addition, that authority decided to take a precautionary measure, in order to guarantee the obligation to pay that fine and, on that basis, ordered the immobilisation of that vehicle until the fine had been paid. In proceedings brought by the Transport company, a second administrative authority confirmed the decision ordering that precautionary measure. The Transport company brought an action seeking the annulment of that decision before the Administrative and Labour Court which decided to stay the proceedings and referred questions to the Court of Justice for a preliminary ruling.
The question referred
The referring court asks, in essence, whether Regulation No 561/20069 precludes national rules authorising, as a precautionary measure, the immobilisation of a vehicle owned by a transport undertaking in a situation where, firstly, the driver, employed by that undertaking, drove that vehicle in breach of the provisions of Regulation No 3821/85 and, secondly, the national authority has not found the undertaking liable. In that regard, it must be borne in mind that, in accordance with recital 17 and Article 1 of Regulation No 561/2006,10 that regulation seeks, inter alia, to improve the working conditions of drivers to whom those regulations apply and to improve road safety in general.
The aim pursued by Regulation No 561/2006 is not harmonisation of penalties for infringement, since, on the contrary, that regulation leaves the Member States free to choose the measures to adopt and the penalties necessary to ensure their application.
In so far as, first, the Member States are required pursuant to Article 19(1) of Regulation No 561/2006 to lay down rules on penalties for infringements of that regulation in such a way that those penalties are effective, proportionate, dissuasive and non-discriminatory, and, second, the regulation does not exclude the liability of drivers, it follows that the Member States can lay down provisions allowing penalties to be imposed, exclusively or otherwise, on drivers.
Furthermore, the Court has held that a system of strict liability may prompt the employer to organise the work of its employees in such a way as to ensure compliance with Regulation No 561/2006 and that road safety, which is one of the objectives of that regulation, is a matter of public interest which may justify the imposition of a fine on the employer for infringements committed by his employees and a system of strict criminal liability.
The judgment of the CJEU: the fundamental principle of proportionality regarding the assessment of fines
Having regard to the aim pursued, which is to ensure compliance by both drivers and transport undertakings with their obligations under Regulations Nos 3821/85 and 561/2006, the adoption of a precautionary measure such as the immobilisation of a vehicle affecting the transport undertaking following an infringement committed by its driver in order to ensure performance of a penalty issued as a result of that infringement is, in itself, compatible with EU law.
Nonetheless, it must be borne in mind that Article 19(1) of Regulation No 561/2006 requires Member States to lay down rules on penalties applicable to infringements of that regulation and Regulation No 3821/85 which are “effective, proportionate, dissuasive and non-discriminatory”.
Thus, in the present case, the precautionary measures permitted under national legislation at issue in the main proceedings must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.
In that context, the Court has held that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality.
Furthermore, the Court has held that Member States are required to comply with the principle of proportionality not only as regards the determination of factors constituting an infringement and the determination of the rules concerning the severity of fines, but also as regards the assessment of the factors which may be taken into account in the fixing of a fine.
Given that the sole aim pursued by the immobilisation of a vehicle is to guarantee the rapid payment of the fine imposed as a penalty, the immobilisation of a vehicle belonging to a transport undertaking which has not been found liable in administrative proceedings goes beyond what is necessary to achieve those objectives.
There are measures which are just as effective but less restrictive and less disproportionate, in the light of the right to property, which include, in particular, the withdrawal, suspension or restriction of the driver’s driving licence until the fine has been paid. That measure would enable the transport undertaking to designate another driver able to drive the vehicle concerned, independent of the payment of the fine.
In conclusion, with the judgment in question the Court wanted to mark a borderline beyond which the fines in the field of transport would not be considered lawful. This borderline is marked by the principle of proportionality which needs for the legal professionals to recognize the pertinence or the injustice of a fine.