Opinion of the Advocate General — ECLI:EU:C:2008:610
Date: 2008-11-06
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the facts. 49. It is apparent from the file that Mr Schwarz obtained an Austrian driving licence in 1964. Later, in 1968, after he transferred his residence to Germany, and at Mr Schwarz’s request, the competent German authorities issued a German licence to him, on the basis of his Austrian licence. Having surrendered his German licence to the competent authorities in 1988, Mr Schwarz obtained a new German licence in 1994. In 1968, as in 1994, the German authorities did not require Mr Schwarz to surrender his Austrian licence. He was therefore in possession of two driving licences until his German licence was withdrawn in 1997 for drunk driving. Mr Schwarz is now relying on his Austrian licence. 50. In the light of those facts, I am of the opinion that a distinction should be drawn between the situation in which the facts occurred before the entry into force of Directive 80/1263 and the situation in which the facts antedate the entry into force of Directive 91/439. 51. When the first German licence was issued in 1968, Austria was not a Member of the Union. Moreover, at that date, there were no Community rules on driving licences and, in particular, on the exchange of driving licences issued by a non-member country for a driving licence issued by a Member State. The Federal Republic of Germany could therefore validly issue a German driving licence to Mr Schwarz without requiring him to surrender his Austrian licence. 52. In 1994, when the second German driving licence was issued, Directive 91/439 was not yet applicable. Pursuant to Article 12(1) of that directive, Member States were to adopt the laws, regulations or administrative provisions necessary to comply with the directive as of 1 July 1996. 53. On the other hand, Directive 80/1263, which was applicable, provided that a driving licence issued by a non-member country and exchanged for a Community model driving licence must be surrendered to the competent authorities of the Member State which carried out the exchange. 54. However, it is apparent from the dispute in the main proceedings that the issue of the German licence on 3 May 1994 did not take place in the context of an exchange with the Austrian licence but as a result of an ordinary application for a driving licence in Germany. 55. At the time, since Community law contained no rule preventing a Member State from issuing a driving licence to a person who already held another licence and since the Federal Republic of Germany did not have the physical means of verifying whether Mr Schwarz already held a driving licence, (11) he was legitimately able to obtain a second driving licence. 56. It is true that Article 1(2) of Directive 91/439 requires Member States to recognise driving licences issued before the accession to the Union of the issuing Member State. (12) However, I note that Article 7(5) of the directive is not retroactive and does not therefore require a choice to be made in such circumstances between the automatic loss of the first driving licence and the nullity of the second. 57. On the other hand, with effect from the entry into force of Directive 91/439 on 1 July 1996, I think that, in order for Article 7(5) of the directive to be effective, persons must not hold more than one driving licence. 58. To that end, it seems logical to me that a driving licence issued after that date when the holder already had a driving licence recognised in Community territory should be regarded as void. 59. In the light of the foregoing factors, I consider that, in the circumstances of the main proceedings, Mr Schwarz could hold two valid driving licences, which the national court and the Commission of the European Communities seem to accept. (13) 60. However, the fact that Mr Schwarz can, in those special circumstances, hold two valid driving licences must not permit him to evade the withdrawal of his licence by the German authorities in 1997 and the obligation to undergo a test of his fitness to drive, including the submission of a medical-psychological report. C – The second question 61. The question which now arises is whether the withdrawal of the licence by the German authorities, which affects the German driving licence, also affects the validity of the Austrian driving licence and thereby prevents Mr Schwarz from relying on that licence. 62. The Commission seems to accept that the withdrawal has no effect on the latter licence. It considers that if the Austrian licence had been issued while the withdrawal of the other licence was still in effect, the Federal Republic of Germany could, under Article 8(2) and (4) of Directive 91/439, have refused to recognise the Austrian licence. However, the Commission notes that at the time when the Austrian licence was issued, no other driving licence issued to the holder had been withdrawn. It therefore considers that the Austrian licence must be recognised by the German authorities, notwithstanding the withdrawal of the German licence. 63. I am not of that opinion for the following reasons. 64. Certainly, the Court has consistently held that driving licences must be mutually recognised without any formality and that Member States have no discretion as to the measures to be adopted in order to comply with that obligation. (14) 65. On the other hand, Article 8(2) and (4) of Directive 91/439 clearly provide an exception to that principle. They provide that a Member State may refuse to recognise the validity of any driving licence issued by another Member State to a person who is, in the former State’s territory, the subject of a restriction, suspension, withdrawal or cancellation of the right to drive. 66. As I already pointed out in point 58 of my Opinions in Wiedemann and Funk and Zerche and Others, (15) that provision allows a Member State to ensure that persons whom it considers, as a result of legal proceedings and in accordance with Community rules, to be unfit to drive, because dangerous, are unable to rely on a licence issued by another Member State. 67. However, the Court has decided that a Member State may not refuse to recognise the validity of any driving licence issued by another Member State to a person whose driving licence has been withdrawn in that Member State where the licence was issued after the period in which the person was banned from obtaining a new licence with which the measure in question was coupled had expired. (16) The same is true where the withdrawal was not coupled with a measure prohibiting the holder from obtaining a new licence for a given period and the new licence was issued following that withdrawal. (17) 68. In Kapper and Kremer, the holders of the driving licences whose validity was challenged had obtained their licences after the withdrawal or after the expiry of the period in which they were banned from applying for a new licence. However, the competent authorities were able to ascertain, in accordance with Article 7(1)(a) of Directive 91/439, whether those persons were again fit to drive and whether their dangerous condition had disappeared. 69. The situation is different in the main proceedings. Mr Schwarz obtained his Austrian driving licence 43 years before committing the offence which led to his German licence being withdrawn. In addition, on 2 April 2001, the Ordnungsamt Mannheim refused to issue him a new licence on the ground that he had not submitted the required medical-psychological report and he had not therefore proved that he was again fit to drive. 70. Thus, after the withdrawal of his German licence and the six-month ban on applying for a new licence, no authority was able to carry out a verification of his capacity to drive. In my opinion, the mere fact of holding a driving licence obtained years before the commission of the offence is also not enough to ensure that Mr Schwarz fulfils the medical conditions required by Article 7(1)(a) of Directive 91/439. 71. I would point out in that regard that it is apparent from points 14.1 and 15 of Annex III to the directive that a driving licence is not to be issued to, or renewed for, a person who is dependent on alcohol or drugs or who is not dependent on such substances but regularly consumes or abuses them. 72. The medical-psychological report required by the German authorities for the issue of a new licence in application of those points makes it possible, precisely, to verify the capacities of the person whose driving licence has been withdrawn for drunk driving. 73. Accepting that Mr Schwarz could rely on his Austrian driving licence when he has undergone no test proving his fitness to drive would amount to evading the safety rules laid down in Directive 91/439 and would run counter to the directive’s objective of improving road safety. 74. I would point out that it is precisely for that reason that the directive provides that a person may hold only one driving licence. The holding of two driving licences in a very special case, such as the one in the main proceedings, must not endanger the double purpose of Directive 91/439, namely, free movement of persons through the principle of mutual recognition of driving licences and improvement of road safety. 75. In other words, although Mr Schwarz can hold two driving licences, he none the less has only one right to drive. 76. It would not be in accordance with Directive 91/439 to permit a person who has committed a serious traffic offence to rely on a second driving licence when it is not even established that the person is again fit to drive. 77. In the light of the foregoing, I think that a Member State may, under Article 8(2) and (4) of Directive 91/439, refuse to recognise the validity of a driving licence issued by another Member State at an earlier date to a person whose driving licence has been withdrawn in its territory. 78. In the light of all those considerations, I consider that Article 7(5) of Directive 91/439 must be interpreted as not preventing a person holding two driving licences where the first licence was issued by a non-member country before the entry into force of Directive 80/1263 and where, before the entry into force of Directive 91/439, that person, who already held a driving licence recognised in the territory of the Community, undergoes the test of skills required for the issue of a driving licence. However, I consider that Article 8(2) and (4) of the latter directive must be interpreted as meaning that, in the circumstances of the main proceedings, a Member State is not prevented from refusing to recognise the validity of a driving licence issued earlier by another Member State. 79. Before concluding, I think it would be useful to outline the general scheme of the application of the principle of mutual recognition of driving licences and the exceptions thereto, as results from Directive 91/439 and the case-law of the Court. 80. Pursuant to Directive 91/439: – a European citizen may hold only one driving licence issued by a Member State; – a Member State cannot issue a driving licence to a person who has been resident in its territory for less than six months or to a person who is dependent on alcohol or drugs; – a driving licence issued by a Member State is recognised in the other Member States; – however, under certain circumstances, a Member State may apply to the driving licence its national provisions on the restriction, suspension, withdrawal or cancellation of the right to drive, and – the Member States have a duty to cooperate with each other in good faith. 81. According to the Court’s case-law: – the Court held in Awoyemi, cited above, that driving licences must be mutually recognised without any formality and that Member States have no discretion as to the measures to be adopted in order to comply with that obligation, (18) – it stated in Kapper, cited above and in the orders in Halbritter (19) and Kremer, cited above, that when the period in which the person was banned from obtaining a new licence has expired in the territory of the host Member State or where the withdrawal was not coupled with such a ban, that Member State may not refuse to recognise the validity of a driving licence issued later by another Member State; – in WiedemannandFunk, cited above, it laid down an exception to the principle of mutual recognition. It decided that a Member State may refuse to recognise a new licence issued to a person who has been the subject, in its territory, of a measure withdrawing his driving licence and prohibiting any application for a new licence for a given period by another Member State during the period of that prohibition, (20) and – the Court has decided that a person whose right to drive has been restricted must not be able to obtain a driving licence in disregard of the residence condition. The Court has decided that that condition helps, inter alia, the fight against ‘driving-licence-tourism’, in the absence of complete harmonisation of the laws of the Member States relating to the issuing of driving licences. Moreover, since the condition is a precondition making it possible to establish that the other conditions imposed by Directive 91/439 have been observed, the condition of residence assumes special importance. (21) Here, the Court has emphasised the imperatives of road safety. 82. In the light of the foregoing, it is clear to me that the consistent case-law of the Court, as I understand it, reflects the desire to combine the exercise of free movement with the need to ensure that all those who avail themselves of that right enjoy the essential conditions of safety. 83. It seems appropriate to point out that freedom of movement can be a concrete reality only if the citizens who exercise it are not thereby exposed to unjustified dangers. In my view, a person who, although he has been found to be unfit by a judicial or administrative decision, none the less continues to drive without fulfilling the conditions required by the directive in force creates such a danger. 84. For that reason, I consider it right to say that, in the present state of the Community rules, the case-law will not be sufficient to prevent situations of that kind. 85. Even if the Court accepts my proposal, the present case unquestionably shows that Directive 91/439 has left a legal void in this regard. If it is decided, as I will propose, that the Federal Republic of Germany was justified in its refusal to recognise the validity of Mr Schwarz’s Austrian licence, he could drive without difficulty on the basis of that licence in the other Member States of the Union, where he would create the same danger as in Germany. 86. For those reasons, I think it would be useful if the Community legislature were to address this problem and provide an appropriate solution to it. V – Conclusion 87. In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred to it by the Landgericht Mannheim: Article 7(5) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, must be interpreted as not preventing a person holding two driving licences where the first licence was issued by a non-member country before the entry into force of Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence and where, before the entry into force of Directive 91/439, that person, who already held a driving licence recognised in the territory of the Community, undergoes the test of skills required for the issue of a driving licence. In addition, Article 8(2) and (4) of Directive 91/439, as amended by Regulation No 1882/2003, must be interpreted as meaning that, in the circumstances of the main proceedings, a Member State is not prevented from refusing to recognise the validity of a driving licence issued earlier by another Member State. 1 – Original language: French. 2 – OJ 1980 L 375, p. 1. This Directive entered into force on 1 January 1983. 3 – OJ 1991 L 237, p. 1. Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 (OJ 2003 L 284, p: 1, hereinafter ‘Directive 91/439’). 4 – OJ 2002 L 91, p. 1. 5 – See Article 1(2). 6 – See the first paragraph of Article 10 of Directive 91/439 and the third recital in Decision 2000/275. 7 – See Article 2 of Decision 2000/275. 8 – See the first recital. 9 – See Article 8(3) of the directive. 10 – See the second subparagraph of Article 8(6) of the directive. 11 – The cases on driving licences previously before the Court show that even when Directive 91/439 entered into force and, with it, the obligation not to hold more than one driving licence, it is, in practice, difficult to verify whether the person already holds a driving licence issued by another Member State. It is certain that the competent authorities in the Member State issuing the licence will continue to have difficulties until such time as a network containing the files on driving licences is operational within the Union. In that regard, Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ 2006 L 403, p. 18), which is intended to replace Directive 91/439 and will enter into force on 19 January 2013, expressly provides in Article 7(5)(b), (c) and (d) that the Member States are to refuse to issue a licence where it establishes that the applicant already holds a driving licence. It is provided that where there are reasonable grounds to suspect that the applicant is already the holder of another driving licence, the Member States are to verify that fact with other Member States. In order to facilitate that requirement, Member States are to use the EU driving licence network once it is operational. 12 – See point 1 of the statement of the reasons for Decision 2000/275. I would also point out that driving licences issued in Austria between 1 January 1956 and 1 November 1997 are recognised as equivalent to the Community model. 13 – See point 11 of the order for reference and points 22 to 26 of the Commission’s observations. 14 – See, in particular, Case C‑230/97 Awoyemi [1998] ECR I‑6781, paragraphs 41 and 42. 15 – Joined Cases C‑329/06 and C‑343/06 [2008] ECR I‑0000 and Joined Cases C‑334/06 to C‑336/06 [2008] ECR I‑0000 respectively. 16 – See the judgment in Case C‑476/01 Kapper [2004] ECR I‑5205, paragraph 76. 17 – Order in Case C‑340/05 Kremer [2006] ECR I‑98, paragraphs 34 and 35. 18 – Paragraphs 41 and 42. 19 – Case C‑227/05 [2006] ECR I‑49. 20 – See Wiedemann and Funk, cited above, paragraph 65. 21 – Ibidem (paragraphs 68 to 71). See also Zerche and Others, cited above (paragraphs 65 to 68).