On 11 May 2023, the Court of Justice handed down its judgment in Case C‑155/22, RE v Bezirkshauptmannschaft Lilienfeld, on the interpretation of Article 6(1) and Article 22 of Regulation (EC) No 1071/2009. The request has been made in proceedings between RE and Bezirkshauptmannschaft Lilienfeld (administrative authority of the district of Lilienfeld) concerning several penalties imposed on RE for infringements of European law rules relating, inter alia, to the driving time and rest periods of drivers.

On 11 January 2019, the administrative authority imposed on RE, in his capacity of the responsible agent of H.Z. GmbH, several fines for not having planned the working time of S.R., a driver employed by the company, in such a way as to enable him to comply with the daily driving time laid down by Regulation No 561/2006 as well as with the obligations relating to the use of the tachograph laid down by Regulation No 165/2014. By a judgment of 29 May 2020, however, the Landesverwaltungsgericht Niederösterreich (Lower Austria Regional Administrative Court; the “referring court”) annulled the decision of the administrative authority considering that the national provisions of the Verwaltungsstrafgesetz (Law on administrative penalties) at issue could not serve as a legal basis for the penalties imposed on RE, since, under the administrative procedure at the end of which those penalties were imposed it was not possible for a check to be carried out on the good repute of H.Z. and, therefore, to impose a penalty against it. 

Since the Verwaltungsgerichtshof (Supreme Administrative Court) set aside the judgment of the referring court the latter, giving a ruling on the criminal administrative procedure at issue, decided to stay it and to ask to the Court of Justice whether Article 22 of Regulation No 1071/2009, read in conjunction with Article 6(1) of that regulation, must be interpreted as precluding a national law pursuant to which a person that incurs criminal responsibility for infringements committed within a road transport undertaking and whose conduct is taken into account for the purpose of assessing the good repute of that undertaking may designate a person as having the capacity of the agent responsible for compliance with the provisions of European law concerning the driving time and rest periods of drivers, thereby transferring to that latter person the criminal responsibility for infringements of those provisions of European law, where the national law does not permit the infringements imputed to that agent to be taken into account for the purpose of assessing whether that transport undertaking meets the requirement of good repute.

According to the Court, the law on administrative penalties permits a road transport undertaking to designate a person as the responsible agent for compliance with the rules of European law, referred to in Article 6(1), third subparagraph, point (b) of Regulation 1071/2009, entailing the transfer of criminal responsibility for the infringements of those European law rules committed in the exercise of those road transport activities by that undertaking, which precludes the conduct of the person who is designated in that way from being taken into account in order to assess whether that undertaking meets the requirement of good repute provided for in Article 3(1)(b) of that Regulation. Therefore, this law such precludes, contrary to Article 22(1) of Regulation 1071/2009, the calling into question of the good repute of road transport undertakings and the imposition of penalties against them, whilst the persons who must be regarded, in relation to those undertakings, as being the “relevant persons”, within the meaning of the second subparagraph of Article 6(1) of that regulation, have committed serious infringements of the rules of European law referred to in Article 6(1), third subparagraph, point (b).

Marco Stillo