Opinion of the Advocate General — ECLI:EU:C:1998:382
Date: 1998-07-16
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Transport
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment
1. Freedom of movement for persons — Freedom of establishment — Driving licence — National
of a non-member country holding a Community model driving licence — Failure to comply
with the obligation to exchange the driving licence issued by the Member State of origin for
a licence of the host Member State — Treated as equivalent to driving without a licence —
Criminal penalties — Whether permissible
(EC Treaty, Arts 48 and 52; Council Directive 80/1263, Art. 8(1),firstsubpara.)
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SUMMARY — CASE C-230/97
2. Freedom of movement for persons — Freedom of establishment — Driving licence— National
of a non-member country holding a Community model driving licence — Failure to comply
with the obligation to exchange licences provided for by Directive 80/1263 — Criminal penal­
ties — Directive 91/439 — Direct effect of Articles 1(2) and 8(1) — Scope — National legal
principle of the retroactive effect of the more favourable provisions of criminal law — Effect
(Council Directive 80/1263, Art. 8(1), first subpara., and Directive 91/439, Arts 1(2) and 8(1))
1. Although Member States may not, in the
event of breach of the obligation to
exchange driving licences laid down in the
first subparagraph of Article 8(1) of Direc­
tive 80/1263 on the introduction of a Com­
munity driving licence, impose a criminal
penalty so disproportionate to the gravity
of the infringement as to become an
obstacle to the free movement of persons,
in view of the effect which the right to
drive a motor vehicle has on the actual
exercise of a trade or profession by an
employed or self-employed person, par­
ticularly with regard to access to certain
activities or certain offices, the justification
for the restriction imposed on the power
of the Member States to provide for crim­
inal penalties in this area is the free move­
ment of persons established by the Treaty.
A national of a non-member country may
not effectively rely on the rules governing
the free movement of persons which apply
only to a national of a Member State of
the Community who seeks to establish
himself in the territory of another Member
State or to a national of the Member State
in question who finds himself in a situa­
tion which is connected with any of the
situations contemplated by Community
law.
Accordingly, neither the provisions of
Directive 80/1263 nor those of the Treaty
preclude the driving of a motor vehicle by
a national of a non-member country who
holds a Community model driving licence
issued by one Member State and who,
having transferred his residence to another
Member State, could have obtained a
licence issued by the host State in exchange,
but did not complete that formality within
the prescribed period of one year, from
being treated by the latter State as driving
without a licence and thus rendered pun­
ishable by imprisonment or a fine.
2. Articles 1(2) and 8(1) of Directive 91/439
on driving licences impose on Member
States clear and precise obligations which
consist in the mutual recognition of Com­
munity model driving licences and in the
prohibition on requiring the exchange of
driving licences issued by another Member
State, regardless of the nationality of the
holder, since the States concerned have no
discretion as to the measures to be adopted
in order to comply with those require­
ments. It may be inferred from the direct
effect which should therefore be attrib­
uted to those provisions that individuals
are entitled to rely on them in proceedings
before the national courts.
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AWOYEMI
It follows that a national of a non-member
country who holds a valid Community
model driving licence issued by one
Member State, who has taken up normal
residence in another Member State, but
who has not exchanged his driving licence
within the one-year period prescribed by
the first subparagraph of Article 8(1) of
Directive 80/1263, is entitled to rely
direcdy on Articles 1(2) and 8(1) of Direc­
tive 91/439 in order to challenge the impo­
sition, in the Member State in which he
has established his new residence, of a term
of imprisonment or a fine for driving
without a licence. Community law does
not prevent a court of such a Member
State, by reason of the principle that forms
part of national law in certain Member
States of the retroactive effect of more
favourable provisions of criminal law, from
applying the aforesaid provisions of Direc­
tive 91/439 even where the offence took
place before the date set for compliance
with that directive.
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