AI -v-Åklagarmyndigheten C-666/21

Summary

This case, a reference for a preliminary ruling by the CJEU from a Swedish court, concerns whether a vehicle weighing over 7.5tonnes needed to have its tachograph calibrated every two years.

This is a rare occurrence where us transport lawyers are treated to decision of the CJEU relating to Regulation 561/2006.

In short, the judgment confirms that a vehicle, weighing over 7.5tonnes, however modified, is not exempt from Regulation 561/2006 if it is involved in the carriage of goods. That the carriage of the goods is not for commercial benefit is irrelevant to the determination. 

Facts

As set out in paragraphs [12] – [17] of the judgment, in April 2019, the defendant – AI – was stopped by police for a check in Sweden. The vehicle was described as being similar to a bus. Its front section was a living area and the rear was a cargo area. The mass of the vehicle was 17.68tonnes and it could carry 5.12tonnes of cargo and had an overall length of 14.7m.

AI had been prosecuted as a result of the traffic stop for speeding and for using a vehicle when its tachograph was out of calibration.

At the time of the stop, AI had two snowmobiles in the cargo area. The vehicle’s primary purpose, he said to the first-instance Swedish court, was as a temporary living area for when he and his family went snowmobiling.

At first-instance, AI had been convicted for speeding, but acquitted on the tachograph charge on the basis that the vehicle only had six seats and therefore did not come within Regulation 561/2006.

This decision was appealed. The Swedish appeal court then made a preliminary reference to the CJEU on the matter of whether the vehicle in question is caught by Regulation 561.

Issues

The Defendant, AI, submitted to the lower court that since his vehicle was not used for the commercial carriage by road of goods, it is not subject to Regulation 561 and, therefore, does not need to have a regularly-calibrated tachograph. Further, he submitted that as the vehicle was used primarily as a living area for his family, it is exempted from the Regulation.

The Public Prosecutor in Sweden had submitted that no such exemption could bite in this case due to the weight of the vehicle and that snowmobiles could be carried, non-commercially, in a cargo area of the vehicle.

Decision

Beginning at [23] of the judgment of the court was that the vehicle did indeed come under Regulation 561/2006 and therefore ought to have had a calibrated tachograph. The reasoning of the court was threefold:

1. Was the vehicle over 3.5t (Article 2(1)(a))? Yes.
2. Was the vehicle involved in the carriage by road of goods? (Article 2(1)(a))? Yes (although this is not explicitly stated).
3. Do any exemptions under Article 3 apply? No.

So what?

No new principle has been established by this case. The most significant aspect from a precedent perspective is that the designation of a vehicle on a national register has no bearing on its designation for the purposes of Regulation 561/2006; which is not unexpected.

Yet the case is interesting for its treatment of the issue of carriage of goods. AI had been moving his own snowmobiles. Can these be considered ‘goods’ for the purposes of Regulation 561/2006? The ‘cargo area’ of the vehicle was intended to store the snowmobiles.

However, would the decision of the CJEU be different if, instead of snowmobiles, AI had been carrying two surfboards? Or perhaps the cargo area had rails which stored a few pairs of hiking boats? Are runners ‘goods’? If not, where does the boundary lie?

If we get over the goods issue, the judgment makes perfect sense. Any vehicle under 3.5t, whether carrying goods commercially or not, does not come under Regulation 561 (think food delivery driver in a car). Vehicles weighing between 3.5t and 7.5t are generally caught by Regulation 561 unless one of the exemptions under Article 3 apply, such as the non-commercial carriage of goods (think transit van carrying scaffolding etc.). Any vehicle weighing over 7.5 carrying goods (commercial or otherwise) is generally caught by Regulation 561 (a few niche exemptions exist).

Another issue which is ripe for some discussion is [32]-[33]. Permitting AI’s vehicle to be exempt would, in the eyes of both the CJEU and the Advocate General, undermine and jeopardise the Regulation’s objective of improving road safety. The vehicle in question here is undoubtedly of considerable size and weight (17.86t with an ability to carry 5.12t), however, it is purely for personal use and is not, as far as we can tell, used in the course of a business. Although this is not the language or test used in Regulation 561, it is a useful distinction to draw. A glorified mobile home carrying sports and recreation equipment is considerably different to, for example, a passenger-carrying bus, operating as part of a business.

Similarly, there are many larger vehicles permitted to be used on public roads without a tachograph such as cranes and other specialist vehicles used for winching and drilling, as seen in the case of DPP -v- Ryan (1991) 155 JP 456 – where Regulation 561 never applies.

Binding on UK?

This decision, although not binding on UK courts, will be considered persuasive by them.