Commission interpretative communication on Community driver licensing

(2002/C 77/03)

This interpretative communication aims at providing background information on the current stage of Community driving licence law. This information shall assist administrative authorities as well as citizens in assessing the scope, effects and implications of the current legal system of Community driver licensing rules.

In Part I, background information on the current stage of Community driver licensing is provided, outlining the legal framework and determining a comparative view of driver licensing related aspects, which have, so far, not been harmonised.

Part II of this document provides for legal guidelines established by interpreting the existing Community framework. These guidelines shall assist in a consistent application of driving licence rules throughout the Community.

Definitions

In this communication:

"EC" (in combination with the number of an Article): means the Treaty establishing the European Community as last amended by the Treaty of Amsterdam;

"EEA": means the European Economic Area;

"First Directive": means Council Directive 80/1263/EEC on the introduction of a Community driving licence(1);

"Second Directive": means Council Directive 91/439/EEC on driving licences(2);

"Group 1 licences": means licences of one of the following vehicle (sub-)categories: A, B, BE, A1 and B1, as defined by Directive 91/439/EEC (Annex III, point 1.1. thereof);

"Group 2 licences": means licences of one of the following vehicle (sub-)categories: C, CE, D, DE, C1, C1E, D1 and D1E, as defined by Directive 91/439/EEC (Annex III, point 1.2. thereof);

"Host Member State": means the Member State, in which a licence holder is normally resident, but which did not issue the initial driving licence (but may have exchanged/renewed the licence of the issuing Member State);

"Issuing Member State": means the Member State, which issued the first driving licence to the relevant licence holder (who does not necessarily have to be citizen of the issuing State);

"ECJ": means the European Court of Justice.

Part I

DESCRIPTIVE SUMMARY OF COMMUNITY DRIVER LICENSING

The legal framework of EC legislation, ECJ case-law and those aspects which have, so far, not been harmonised, will be outlined below.

A. LEGAL FRAMEWORK: EC LEGISLATION AND CASE-LAW

A.1. Council Directive 80/1263/EEC on the introduction of a Community driving licence(3)

This Directive has been fully repealed by Article 13 of Directive 91/439/EEC. Nevertheless, it applies to a variety of practical cases, which occurred during the regime of the First Directive, but which may still deploy effects at present due to their particular constellation (for description and interpretation of such cases, see Part II).

A.2. Directive 91/439/EEC on driving licences

The Second Directive on driving licences constitutes the core of the legal framework of Community driver licensing. It came into force on 1 July 1996. In very general terms, the Second Directive harmonises licence categories, introduces minimum ages as a prerequisite for the entitlement to drive vehicles, as well as a mandatory theory and practical driving examination. Furthermore, the Directive lays down the principle of mutual recognition of licences issued by a Member State and defines normal residence as a prerequisite for obtaining a licence. The Second Directive also contains detailed provisions on minimum health criteria and introduces a harmonised Community model driving licence. Additional provisions refer to the effect of cancellation, withdrawal and restriction of licences.

The Second Directive is only one point in the development of the field of Community driver licensing and contributes to stepwise and gradual harmonisation. Aspects which have not been harmonised by the Second Directive will be highlighted below (section B). The Second Directive has been amended firstly by Council Directive 94/72/EC(4), which amended Article 1(1) of Directive 91/439/EEC, granting a transitional period to Finland and Sweden until 31 December 1997, as regarded their plastic model driving licences.

Subsequent amendments have been carried out by Council Directive 96/47/EC(5), introducing a Community plastic card model as an alternative to the paper licence model. The amendment was inserted into the Second Directive as "Annex Ia".

Commission Decision 96/427/EEC(6) concerns a derogation from the provisions of Annex III of the Second Directive as to correcting glasses for eyesight deficiencies.

Council Directive 97/26/EC(7) introduced a Management Committee on driving licences, to which limited legislative power was transferred in the field of adaptations of the list of Community codes, Annexes II and III of the Second Directive to technical and scientific progress. It also specified further harmonised Community codes for driving restrictions and vehicle adaptations.

Commission Decision 2000/275/EC(8) established tables of equivalences for each valid driving licence model between categories of driving licences which have been issued before implementation of Directive 91/439/EEC and the harmonised categories as defined in Article 3 thereof. This Decision was adopted in accordance with the obligation laid down in Article 10 of the Directive.

Finally, Commission Directive 2000/56/EC(9) further specified the list of harmonised Community codes for driving restrictions and vehicle adapatations. The Directive also revised Annex II of Directive 91/439/EEC on theory and practical driving examinations, adapting this Annex thus to technological and scientific progress in the field.

A.3. Case-law

- ECJ Judgment 16/78 - Choquet

In this first Judgment referring directly to driver licensing, the Court highlighted the lack of harmonisation in the field at that time. This loophole rendered recognition of driving licences in other Member States virtually impossible and represented an obstacle to the free movement of persons. This Judgment was the major impetus for the first initiatives towards harmonisation in driver licensing on a Community level.

- ECJ Judgment C-193/94 - Skanavi

This Judgment referred to the situation before 1 July 1996. In addition, it interprets specific aspects of the legal situation after entry into force of the Second Directive. The Court referred to the obligation to exchange licences in accordance with the First Directive and the relation of this obligation to the scope of application of Article 43 EC. Moreover, the Court clarified the proportionality of national fines, the distinction between the right to drive and the licence document, the problems deriving from progressive harmonisation in driver licensing and the range of the principle of mutual recognition.

- ECJ Judgment C-230/97 - Awoyemi

This Judgment clarifies the situation for holders of licences issued in third countries and interprets the exchange requirement laid down in Directive 80/1263/EEC. Moreover, reference is made to the scope and the legal implications of the principle of mutual recognition.

B. COMPARATIVE VIEW OF ASPECTS WHICH HAVE NOT BEEN HARMONISED

This part aims at establishing a comparative view of all those aspects of driver licensing, which to date have not been harmonised at the Community level. For most of those aspects, harmonisation has been explicitly exempt by specific provisions of the Second Directive. Articles quoted in the titles are references to those exemptions.

As regards the majority of sections in this part, the Second Directive has already achieved a certain degree of harmonisation. Nonetheless, the Directive leaves room for manoeuvre for Member States as regards the subjects described in those sections, e.g. by prescribing minimum standards only or by providing for a choice between two options as it is the case for the Community model driving licence. Thus considerable practical and legal differences persist in those fields in the national licensing systems.

NB:

The comparative view is not entirely exhaustive, since the degree of cooperation from the side of the Member States differed. In some cases, the relevant information is not complete or not available.

B.1. Period of validity and periodicity of medical examinations

General exemption in Article 1(3)

Different periods of validity throughout the Member States are the result of the derogation from harmonisation laid down by Article 1(3) of the Second Directive. This provision exempts validity periods from harmonisation on a Community level by allowing Member States to impose national provisions. Some Member States do not impose any limits to validity periods of specific categories: unlimited periods of validity still apply for car and motorcycle licences in:

- Belgium,

- Germany,

- France,

- Austria.

Different intervals for medical examinations derive from provisions in Annex III of the Second Directive. Annex III, point 1 of the Second Directive introduces a classification of drivers into two distinct groups, which are defined as "Group 1" and "Group 2" licences (see definitions).

Annex III, point 3 lays down that applicants for Group 1 licences have to undergo a medical examination only in case substantial doubts with respect to the applicants' fitness to drive arise in the course of the application procedure. After a driving licence has been issued, no mandatory medical examination is prescribed for holders of Group 1 licences. For holders of Group 2 licences Annex III point 4 stipulates that they have to undergo a medical examination before first issue of such a licence. Thereafter, the Directive foresees the imposition of periodic examinations without specifying particular intervals.

The two issues described above are closely linked to each other: in most legal systems, the period of validity of a certain licence category coincides with the intervals of the imposition of a medical examination. This means that a licence holder has to undergo a medical examination at the same time he renews his expired licence.

Comparative view of national provisions as regards the validity of licences

The precise legal reference to national law is indicated in brackets for each Member State. Unless stated otherwise, the indication of a specific validity period implies the imposition of a medical examination upon renewal of the licence in question.

Belgium: (Article 21, Article 44, Arrêté Royal relatif au permis de conduire, 23.3.1998)

Group 1: unlimited validity;

Group 2: valid for five years up to the age of 50; when the driver is 48-50 years of age: valid up to the holder's 53rd birthday; valid for three years when the holder is older than 50.

Denmark: (Articles 45-46, Bekendtgorelse om korekort, 11.3.1997)

Group 1: valid up to the holder's 70th birthday;

valid for four years when the holder is 71, for three years when he is 72 and for two years when he is 73-79 years of age;

for one year when the holder is older than 80.

Group 2: valid up to the holder's 50th birthday;

for five years when the holder is 50-70;

for four years when he is 71, for three years when he is 72 and for two years when he is 73-79 years of age;

for one year when the holder is older than 80.

Germany: (§ 23 Fahrerlaubnisverordnung, 26.8.1998)

Group 1: unlimited validity;

C1, C1E: valid up to the holder's 50th birthday; thereafter for five years.

C, CE: valid for five years.

D1, D, D1E, DE: valid for five years; when the holder is 46-49: up to his 50th birthday; for five years when the holder is older than 50.

Greece: (Article 4, Presidential Decree 19/95, 31.1.1995)

Group 1: valid up to the holder's 65th birthday; thereafter for three years.

Group 2, B+E and B professional: valid for five years until the holder's 65th birthday; thereafter for three years.

Spain: (Article 16-17, RD 772/97 - Reglamento General de Conductores, 30.5.1997)

Group 1: valid for 10 years up to the holder's 45th birthday;

for five years when the holder is 45-70;

for two years when the holder is older than 70.

Group 2: valid for five years up to the holder's 45th birthday;

for three years when the holder is 45-60;

for two years when the holder is older than 60.

France:

Group 1: unlimited validity;

Group 2: valid for five years up to holder's 60th birthday;

for two years when the holder is 60-76;

for one year when the holder is older than 76.

Ireland:

Group 1: valid for three-10 years (optional) up to the holder's 60th birthday;

for three years when the holder is 60-69;

for one to three years (determined by medical check) when the holder is older than 70.

Group 2: valid for three-10 years (determined by medical check) up to the holder's 60th birthday;

for three years when the holder is 60-69;

for one to three years (determined by medical check) when the holder is older than 70.

Italy: (Article 126, Codice della Strada)

Group 1: valid for 10 years up to the holder's 50th birthday;

for five years when the holder is 51-70;

for three years when the holder is older than 70.

C, CE: valid for five years up to the holder's 65th birthday;

for two years when the holder is older than 65.

D, DE: valid for five years up to the holder's 60th birthday;

for one year when the holder is 60-65;

no renewal after the age of 65.

Luxembourg: (Règlement grand ducal, 11.8.1996)

Group 1: valid up to the holder's 50th birthday;

for 10 years when the holder is 51-70;

for three years when the holder is older than 70;

for one year when the holder is older than 80.

Group 2: valid for 10 years up to the holder's 50th birthday;

for five years when the holder is older than 50;

for three years when the holder is older than 70;

no renewal after the age of 75.

Netherlands: (Article 122 WVW 1994)

Validity:

Group 1: for 10 years up to the holder's 60th birthday;

up to the holders 70th birthday, when he is 60-65;

for 5 years when the holder is older than 64.

Group 2: for 10 years up to the holder's 60th birthday;

up to the holders 70th birthday, when he is 60-65;

for five years when the holder is older than 64.

Periodical medical examinations:

Group 1: at the age of 70; at five yearly intervals thereafter.

Group 2: at the age of 70; at 5 yearly intervals thereafter (under revision).

Austria: (Article 20-21 Führerscheingesetz 30.10.1997)

Group 1: unlimited validity (de facto: according to § 27(1)4. FSG the licence is valid for 100 years);

Group 2: valid for five years up to the holder's 60th birthday;

for two years when the holder is older than 60.

Portugal: (Article 7, Decreto Regulamentar 65/94, 18.11.1994)

Group 1: valid up to the holder's 65th birthday;

for five years when the holder is older than 65;

for two years when the holder is older than 70.

C, CE: valid up to the holder's 40th birthday;

for five years when the holder is older than 40;

for three years when the holder is older than 65;

for two years when the holder is older than 68.

D, DE: valid up to the holder's 40th birthday;

for five years when the holder is older than 40;

no renewal when the holder is older than 65.

Finland: (Article 33, Decree 5.1.1996)

Validity:

B: initial validity of two years; after the expiry of this period: valid up to the holder's 70th birthday;

for five years when the holder is older than 70.

A1, A, C1, C: valid up to the holder's 70th birthday;

for five years when the holder is older than 70.

C1E, CE, D1, D1E, D, DE: valid up to the holder's 70th birthday;

no renewal when the holder is older than 70.

Periodic medical examination:

Group 1: at the age of 45, 60, 70; at five yearly intervals thereafter.

Group 2: at the age of 45; at five yearly intervals thereafter.

Sweden:

Validity:

Group 1: for 10 years.

Group 2: for 10 years.

Periodical medical examination:

Group 1: at the age of 70.

Group 2: at the age of 45;

at five yearly intervals thereafter.

United Kingdom:

Validity:

Group 1: Paper licence: until the holder's 70th birthday; plastic card licence: 10 years;

for trhee years when the holder is older than 70.

Group 2: valid until the holder's 45th birthday;

for five years when the holder is older than 45;

for 1 year when the holder is older than 65.

Periodic medical examinations:

Group 1: at the age of 70; at three-yearly intervals thereafter

Group 2: at the age of 45;

at five-yearly intervals when the holder is older than 45;

every year when the holder is older than 65.

Norway:

Group 1: valid until the holder's 100th birthday.

Group 2: for 10 years up to the holder's 60th birthday;

for five years when the holder is older than 60;

for one year when the holder is older than 70.

Medical examinations of Group 1 drivers at first issue of the licence - Annex III

At present, only a minority of Member States imposes a medical examination at the moment of first issue of a Group 1 licence. In practice, the only requirement is to submit a medical certificate, which is considered sufficient confirmation of the applicant's fitness to drive.

B.2. Equivalences of vehicle categories - Article 10

Article 10 of the Second Directive lays down that Member States, after consulting the Commission, may establish equivalences between categories of driving licences which have been issued before transposition of the Second Directive, and those categories, which are defined in Article 3 thereof. Community law hence does not harmonise vehicle categories of those licences, which have been issued before entry into force of the Second Directive.

In practice, national categorising systems varied widely before the entry into force of Community legislation in this field. Differing standards of categorising vehicles in the past will continue to affect a considerable number of Community citizens. In particular, those effects will be noticeable as regards licences issued in Member States, which did not impose any limitations as to periods of validity, so that licences with unharmonised vehicle categories recorded on them will continue to be in circulation.

In accordance with Article 10 of the Second Directive tables of equivalences have recently been established and are contained in a Commission Decision on equivalences(10). The tables reveal that more than 80 different driving licence models are currently valid and in circulation throughout the European Economic Area, most of them issued before transposition of the Second Directive.

A solution to the present situation can be offered by one of the two following approaches:

- A general revocation of all licences which have been issued before entry into force of the Second Directive and which are still circulating. In exchange, driving licences in compliance with the requirements set out in the Second Directive, would be issued.

- Introduction of a harmonised validity period for all licence categories. Such an approach could eventually phase out old licence models.

B.3. Aspects relating to specific vehicle (sub)categories

- Introduction of subcategories - Article 3(2)

Article 3(2) of the Second Directive stipulates that for driving specific vehicles covered by vehicle categories A, B, B+E, C, C+E, D and D+E, some or all of the following subcategories may be introduced in a Member State(11):

A1: light motorcycles with a cylinder capacity of more than 50 cm³ or a maximum speed of more than 45 km/h and less than 125 cm³ and of a power not exceeding 11 kW;

B1: motor-powered tricycles and quadricycles with a cylinder capacity of more than 50 cm³ or more than 45 km/h and a mass not exceeding 550 kg (unladen);

C1: lorries of more 3,5 tonnes maximum authorised mass, but not exceeding 7,5 tonnes;

C1+E: combination of vehicles where the tractor vehicle is in subcategory C1, provided that the mass of the combination does not exceed 12 tonnes; the maximum authorised mass of the trailer may not exceed the unladen mass of the towing vehicle;

D1: buses with more than eight, but not more than 16 seats (the driver's seat not included);

D1+E: combinations of buses which fall within subcategory D1, with a trailer with more than 750 kg; the maximum authorised mass of the combination may not exceed 12 tonnes and the maximum authorised mass of the trailer may not exceed the unladen mass of the towing vehicle; the trailer may not be used for the carriage of persons;

The following subcategories have been introduced in the Member States:

Belgium: C1, D1, C1+E, D1+E;

Denmark: no subcategories;

Germany: A1, C1, D1, C1+E, D1+E;

Greece: A1;

Spain: A1, C1, D1, C1+E, D1+E;

France: A1, B1;

Ireland: A1, C1, D1, C1+E, D1+E;

Italy: A1;

Luxembourg: A1, C1, D1, C1+E;

Netherlands: no subcategories;

Austria: C1, C1+E;

Portugal: A1;

Finland: A1, C1, D1, C1+E, D1+E;

Sweden: A1;

United Kingdom: A1, B1, C1, D1, C1+E, D1+E.

- Additional criteria for category A1 - Article 3(5)

Article 3(5) provides that Member States may impose additional restrictive rules for subcategory A1. The following two Member States introduced additional restrictions:

Germany: Drivers of under 18 years of age are not entitled to drive motorcycles with a maximum speed exceeding 80 km/h. (Article 5 § 28 Fahrerlaubnisverordnung 18.8.1998)

Spain: Motorcycles driven under an A1 category may not have a power/weight ratio exceeding 0,11 kW/kg. (Article 5.1 Real Decreto 772/97).

No other Member State imposes any additional criteria for subcategory A1.

- Driving a vehicle of category B1 with an A1 or A licence - Article 5(3)(a)

For driving on national territory only, Member States may grant the entitlement to drive vehicles of category B1 with an A1 or A licence. The following list establishes an overview of the prerequisites for driving a B1 vehicle, when this category has been introduced in the respective Member State.

Belgium: B1 only with a B licence

Denmark: Tricycles may be driven with an A or B licence, quadricycles may only be driven with a B licence

Germany: B1 only with a B licence (§ 6 Fahrerlaubnisverordnung 18.8.1998)

Greece: B1 only with a B licence. (Article 4.7 of the Presidential Decree 19/95)

Spain: B1 with an A licence (Real Decreto 772/1997, Article 5)

France: B1 with an A or with A1 licence

Ireland: B1 only with a B licence

Italy: B1 with an A or A1 licence

Luxembourg: B1 only with a B licence

Netherlands: B1 only with a B licence

Austria: B1 vehicles with a maximum authorised mass not exceeding 400 kg may be driven with an A or B licence; B1 vehicles with a maximum authorised mass exceeding 400 kg may only be driven with a B licence (§ 2.1 Führerscheingesetz 30.10.1997)

Portugal: B1 with an A or A1 licence

Finland: B1 with an A licence

United Kingdom: B1 with an A licence (Regulation No 2824/1996, Article 6(8)

Norway: B1 only with a B licence.

- Driving a vehicle of category A1 with a B licence - Article 5(3)(b)

For driving on national territory only, Member States may grant the entitlement to drive light motorcycles (which would be included in subcategory A1) with a B licence. This entitlement, however, does not have to be recognised by any other Member State.

The following overview refers only to those Member States, which have introduced the above entitlement and describes the additional requirements.

Belgium: two years of practical experience with a B licence

Spain: two years of experience with a B licence and a theory test

France: two years of experience with a B licence. A voluntary training of six hours is currently under consideration. This training may become compulsory in the future

Italy: the entitlement has been introduced as such with no additional requirements

Austria: five years of experience with a B licence and six hours of compulsory practical driver training.

- Driving a vehicle of category C1 or D1 with a B licence - Article 5(4)

According to Article 5(4)(a), Member States may, after consulting the European Commission, authorise the driving on their territory of vehicles of category D1 by holders of 21 years of age with a driving licence of category B, which has been held for at least two years. Only non-commercial bodies may use those vehicles for social purposes and the driver must provide his services on a voluntary basis.

Only the United Kingdom has introduced this entitlement.

Article 5(4)(b) provides for the entitlement, under certain circumstances other than those described in Article 5(4)(a), to drive vehicles of category C with a B licence.

No Member State has introduced this entitlement.

- Direct access to heavy motorcycles - Article 6(1)(b)

The above Article stipulates that Member States may waive the requirement of two years of practical experience on motorcycles with lower specifications under an A licence, in case the candidate for a category A licence is at least 21 years old (direct access(12)).

The following Member States do not provide for direct access to heavy motorcycles at the age of 21:

Germany: direct access not possible before the age of 25

Ireland: direct access never possible, two years of practical experience is always required

Spain: direct access never possible, two years of practical experience is always required.

All other Member States allow direct access to heavy motorcycles for applicants of 21 years of age.

B.4. Aspects relating to minimum ages

- Lower age limit for driving category B - Article 6(2)

According to Article 6(2) Member States may derogate from the minimum age requirements laid down for categories A, B, and B+E (18 years) and issue such driving licences from the age of 17 years.

In the following Member States the minimum age is lower than 18 years:

Germany: 17 years in the framework of vocational training for C and D

Ireland: 17 years; no additional requirements

Austria: 17 years in the framework of "Vorgezogene Lenkberechtigung" (accompanied driving);

United Kingdom: 17 years; no additional requirements.

The age limit in all other Member States is 18 years.

- Recognition of B licences issued to holders of less than 17 years of age - Article 6(3)

Member States may refuse to recognise the validity in their territory of driving licences, issued in accordance with Article 6(2).

Germany, Austria, Ireland and the United Kingdom recognise licences issued in accordance with Articles 6(2) and 6(3).

Denmark and Luxembourg recognise such licences for tourists, but not for drivers who take up residence in their territory.

All other Member States do not recognise B licences of holders under 18 years of age and therefore do not permit them to drive on the territory before they reach the age of 18 years.

B.5. Licences issued in third countries - Article 8(6)

Member States do not have to recognise licences which have been issued in countries outside the EU. In accordance with Article 8(6), the right to refuse recognition also applies in case the licence which had been issued originally has already been exchanged to a Community model licence of another Member State in the meantime (but only in case the holder establishes his normal residence in another Member State).

B.6. Driving licence model - Annex I and Annex Ia

Directive 96/47/EC, amending the Second Directive, introduced a plastic card model driving licence as an alternative to the paper model in Annex I of the Directive. This plastic card model has been inserted into the Second Directive as "Annex Ia". Member States are free to choose which of the two models they wish to have.

The form of driving licences has not been completely harmonised yet. The reason is not only because of the above right to choose between the two models. Community law at present provides neither for a mandatory exchange of driving licence models which have been issued before entry into force of the First or Second Directives, nor for a harmonised limited validity period. Thus in practice more than 80 different models of driving licences are still valid and in circulation throughout the Member States of the European Economic Area.

This number will diminish gradually with time, as licences, which expire in application of provisions of national law, are exchanged for either of the two harmonised Community models in all Member States today. In those Member States with unlimited validity periods for specific vehicle categories, this development, however, will last for decades if no accompanying legislative measures are adopted.

The contents (i.e. entitlements) of licences issued prior to the implementation of Community law are treated in the section on the equivalences of vehicle categories.

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B.7. Provisional licences and certificates

In the United Kingdom and Ireland so-called "provisional licences" may be issued which, under certain circumstances, entitle to drive on national territory. According to national law those licences are considered part of practical driver training. However, they are issued without the obligation to pass a driving exam.

Article 1(2) of Directive 91/439/EEC lays down that driving licences issued by Member States have to be mutually recognised. The above provisional licences, however, are not full driving licences in the sense of the Directive. Article 7 of the Directive foresees that the issue of driving licences shall be subject to the passing of a test of skills and behaviour. Therefore provisional licences are a national document issued within the framework of driver training and do not entitle to drive outside the territory of the issuing Member State.

Furthermore, a variety of different certificates are issued throughout the Member States, e.g. test pass certificates, provisional certificates for lost or stolen licences, medical certificates etc. Those certificates are not driving licences and thus do not have to be recognised by other Member States. In case a licence is expired, lost or stolen the holder has to obtain a new licence document in order to benefit from the principle of mutual recognition.

B.8. Endorsements on licence documents

National provisions in the United Kingdom foresee that a driving licence consists of the licence document and a counterpart. On the latter traffic convictions in form of penalty points are recorded in a visual way. Since presently national systems of penalty points are not harmonised and traffic convictions can only be pursued according to bilateral agreements(13), such endorsements are not of relevance in other Member States.

As regards endorsements on licences issued in other Member States, point 4 of Annex I (for the paper model) and paragraph 3(a) of Annex Ia (for the plastic card model) apply: a host Member State may enter in the licence such information as is essential for administering it, provided that it also enters this type of information in the licences which it issues and provided that there remains enough space for the purpose.

C. OVERVIEW OF EXISTING DRIVING LICENCE CATEGORIES

Group 1

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Group 2

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Part II

LEGAL GUIDELINES FOR THE INTERPRETATION OF DIRECTIVE 91/439/EEC

This Part establishes a legal interpretation of specific provisions of Directive 91/439/EEC on driving licences in order to ensure a consistent practical application of this Directive in conformity with the principles of Community law. Practical experience shows that a concise descriptive summary of those situations which arise most frequently in practice, and the legally correct interpretation of existing Community law to be adopted, is indispensable for enforcement authorities, local administrations and citizens themselves.

The different interpretative sections follow an identical structure: the problem is outlined from a legal point of view, (a) practical example(s) further illustrate(s) the issue and at the end of each section a legal interpretation is given.

A. REQUIREMENT TO EXCHANGE LICENCES

A.1. Legal position

Article 8 of the First Directive stipulated that driving licences of holders who established their normal residence in another Member State were valid for one year. Within this period of time, the host Member State required the mandatory exchange of a licence issued in another Member State.

The wording of Article 8(1) was as follows: "The Member States shall provide that, if the holder of a valid national driving licence or valid Community model licence issued by a Member State takes up normal residence in another Member State his licence shall remain valid there for up to a maximum of a year following the taking up of residence. At the request of the holder within that period, and against surrender of his licence, the State in which he has taken up normal residence shall issue him with a driving licence (Community model) for the corresponding category or categories without subjecting him to the conditions laid down in Article 6 [...]."

However, Article 13 of the Second Directive repealed the First Directive as of 1 July 1996 and Article 1(2) of the Second Directive introduced the principle of mutual recognition of licences issued by Member States, thus removing the above obligation to exchange licences.

The ninth recital in the preamble of Directive 91/439/EEC states that the obligation to exchange licences itself constituted an obstacle to the free movement of persons and therefore is inadmissible in the light of progress made towards European integration.

Since the coming into force of Directive 91/439/EEC, an exchange of driving licences issued in Member States is in general purely voluntary, since Article 8(1) of this Directive stipulates the following: "Where the holder of a national driving licence has taken up normal residence in another Member State, he may request that his driving licence be exchanged for an equivalent licence;"

An exchange of licences, however, remains admissible in a very limited number of cases under the regime of the Second Directive:

(i) According to Article 8(2), a Member State may exchange a licence for the purpose of the application of national criminal and police laws. In view of the above general principle in Article 8(1), such a practice has to remain of a restrictive nature and shall be applied to severe traffic offences only.

(ii) For the purpose of the renewal of licences which expire outside the territory of the issuing State, an exchange of the document has to be carried out. This exchange, however, is rather the practical effect of the renewal than an exchange as such.

A.2. Practical situations

Example 1:

A licence holder establishes his/her normal residence in France after 1 July 1996. He/she fails to exchange his licence. In 1997, French authorities require him/her to exchange the licence. He/she claims recognition of his/her original licence according to Article 1(2) of Directive 91/439/EEC without any formalities(14); in addition, he/she claims that Article 1(2) is vested with direct effect(15).

Example 2:

The facts are identical with example 1, except that the licence holder establishes normal residence in the other Member State between 1 July 1995 and 1 july 1996.

Example 3:

The facts are identical with example 1, except that the licence holder establishes normal residence in the other Member State before 1 July 1995.

A.3. Interpretation by the ECJ in case C-193/94 (Skanavi)

Some of the provisions of Directive 80/1263/EEC were clarified by the ECJ in C-193/94 of 29 February 1996 (Skanavi). Despite the First Directive having been repealed by Directive 91/439/EEC, reference has to be made to the above judgment, since the effects of provisions of the First Directive on present cases can be identified.

In this judgment, the ECJ separates the right to drive a vehicle from the licence document. The right to drive was not affected if the holder failed to exchange the licence document within the period of one year, prescribed by Directive 80/1263/EEC. Article 8(1) of the First Directive, in force until 1 July 1996, stipulated that within the period of one year a Member State required the holder of a licence, which has been issued in another Member State, to exchange it (for the wording of this Article see above).

Furthermore, the Court stated that the issue of a licence in exchange does not constitute a new right to drive on the territory of the host Member State but is just evidence of the existence of such a right. This right has been conferred to the holder by another Member State and is expressed by the licence document issued in exchange. The ECJ pointed out that the original licence remained valid in the Member State which issued it and continued to be recognised by the other Member States, irrespective whether it was exchanged or not (paragraph 32).

Regarding the proportionality of fines for failure to exchange, the ECJ stated that Article 43 EC precludes driving by a person who did not make the exchange from being treated as driving without a licence (paragraph 39 of the judgment). This legal evaluation is of predominant importance for the assessment of the proportionality of fines.

A.4. Solution

In view of the existing principles of Community legislation, which have been further specified by the ECJ, the following shall be applied to the practical examples described above:

A.4.1. The holder changed his normal residence after 1 July 1996

The principle of mutual recognition in Article 1(2) of Directive 91/439/EEC is directly applicable as of coming into force of this Directive on 1 July 1996(16). Therefore, exchange cannot be required since that date and is of a purely voluntary nature, in accordance with Article 8(1) of the Second Directive. Thus in example 1 Member States cannot impose a mandatory exchange.

A.4.2. The holder changed his normal residence between 1 July 1995 and 1 July 1996

As described above, Article 8(1) of the First Directive required mandatory exchange of licences within one year. Directive 91/439/EEC, which came into force on 1 July 1996, introduced an exchange regime of a purely voluntary nature. The combination of the two differing provisions in the First and Second Directives led to a factual retroactive abolition of mandatory exchange as of 1 July 1995, one year before coming into force of the Second Directive. In example 2, therefore, a licence holder cannot be obliged to exchange his licence.

A.4.3. The holder changed his normal residence before 1 July 1995

In this case the licence holder was driving with a document which became invalid after the expiry of the period of one year, hence constituting an infraction of national administrative law. Nonetheless, the original licence normally remained valid in the Member State that issued it and continued to be recognised by all other Member States. For this reason, and because exchange became purely voluntary since the coming into force of Directive 91/439/EEC, a mandatory exchange of a licence after the commencement of the Directive has to be regarded as legal formality which constitutes an infringement of the rules governing free movement of persons(17).

In example 3 a licence holder can thus be obliged to exchange his licence only under very exceptional circumstances, notably if a national provision is being applied before 1 July 1996 to facts which occurred before that date. However, a Community citizen may appeal against the application of rules imposing mandatory exchange after 1 July 1996, since this application then is in contradiction with Community law even without the Second Directive being transposed in the applying Member State.

Example 3 is of a theoretical nature insofar as, to the knowledge of the European Commission, no such case is pending before a national court in any Member State.

A.4.4. The imposition of fines for failure to exchange a licence

As regards infringements committed before 1 july 1995 (example 3), the following derives from the principles established by the ECJ: the failure to exchange the licence within one year under the regime of the First Directive did not have any effect on the right to drive but rather represented a failure to comply with an administrative obligation. The Court therefore qualified the imposition of criminal penalties for non-compliance with the exchange requirement as generally disproportionate, even if the imposed penalties are only financial in nature (paragraph 37 of C-193/94 Skanavi).

Nonetheless, Member States may impose administrative sanctions. However, those sanctions must be appropriate and not disproportionate to the nature of the infringement. In particular, they may not be so severe as to become an obstacle to the free movement of persons. These restrictions to the imposition of sanctions were consistently held by ECJ case law(18). Furthermore, such an imposition of fines may only be applied subject to the condition that national law does not provide for the retroactive application of more favourable provisions of criminal law, which might have come into force while the relevant case was pending before a court. In addition, Community law does not prevent a national court from applying Articles 1(2) and 8(1) of the Second Directive, even when the offence occurred before 1 July 1995 (see ECJ case 230/97, point 2 of the operative part of the judgment).

In the case where a Community citizen changed his normal residence after 1 July 1995 (examples 1 and 2) and does not exchange his licence, the licence holder has not committed any infringement since exchange had become voluntary. In these cases the imposition of any sanction, either criminal or administrative, is precluded.

B. MUTUAL RECOGNITION OF LICENCES

B.1. Recognition of licences which were given reduced entitlements on the occasion of exchange

B.1.1. Legal position

Under the regime of the First Directive, the original licence remains valid in the issuing Member State. A driving licence issued in exchange only produces evidence of the right to drive, but does not determine the right, since the scope of the right to drive is defined by the issuing Member State(19). At the level of secondary Community law, following the coming into force of Directive 91/439/EEC, no distinction is made between the licence document and the right to drive. Since the Directive, among other aspects, harmonises licence categories, minimum ages and the conditions for issuing a licence, and licences thus reflect the entitlements conferred to the driver in a clear way, all entitlements recorded on a licence have to be recognised according to the principle of mutual recognition.

The extent of entitlements of licences which have been obtained before 1 July 1996 cannot be determined by the recordings on the document. To those licences, Article 10 of the Second Directive applies: tables of equivalences, which have been established in accordance with Article 10 of the Second Directive, determine the actual entitlement in terms of Article 3 of the Second Directive. Moreover, Article 8 of Directive 80/1263/EEC stipulated that the host Member State should issue a driving licence for the corresponding category or categories to the relevant licence holder. The restriction of entitlements which have been obtained in other Member States (which was widely practised before coming into force of Directive 91/439/EEC) can therefore only be justified if it is qualified as a restriction of the document, rather than of the initial right to drive.

Since the holder was obliged to obtain a different licence document in exchange, he could not produce evidence of his initial right with the (restricted) document. Hence he was not entitled to drive vehicles of categories other than those for which an entitlement was recorded on the licence.

Since a restriction which had been imposed by the host Member State under Directive 80/1263/EEC, applied only on national territory, other Member States were not bound to recognise the restriction whenever the licence holder changed his normal residence to another Member State. Therefore the entitlements of a licence holder, which were restricted in the host Member State, could have been both further restricted or extended in case of a subsequent change of residence to a third Member State.

In accordance with Article 8(1) (last sentence) of Directive 80/1263/EEC, the host Member State was entitled to refuse the exchange of a licence only in the case that its national provisions precluded the issue of a licence.

B.1.2. Practical situations

Example 4:

A German licence holder establishes normal residence in France before 1 July 1995. According to the exchange practice being applied at that time, he/she is granted a French category B licence, containing entitlements to drive vehicles of up to 3,5 tonnes, in exchange for his/her German "Klasse 3" licence, containing the right to drive vehicles of up to 7,5 tonnes (and even up to 18,25 tonnes with certain combinations) on German territory. Still being resident in France, he/she claims the full entitlement deriving from the initial German right to drive after 1 July 1996, with reference to the principle of mutual recognition.

Example 5:

As in example 4 the initial entitlement has been restricted. After 1 July 1996 the licence holder moves to a third Member State and claims full recognition of the initial right to drive there.

Example 6:

As in example 4 the initial entitlement has been restricted. After 1 July 1996 the licence holder moves back to the issuing State and claims the full initial entitlement there, according to the initial right to drive, which has been granted on the occasion of the issue of the original licence in the issuing State.

B.1.3. Solution

In paragraph 32 of case C-193/94, the ECJ clarified that the initial right to drive remained unchanged and valid in the issuing Member State. In addition, Directive 91/439/EEC does not refer to the distinction between the right to drive and the licence document and establishes the principle of mutual recognition of licences. The preservation or full recovery of the initial right to drive is the result of the continuous existence of the original right in the issuing State and independent from the introduction of the principle of mutual recognition.

The recovery of entitlements, which have been restricted, is thus based on different legal grounds than the preservation of extended entitlements (see below).

With respect to the claim for recognition of the initial right to drive after entry into force of Directive 91/439/EEC in either the host or a third Member State (examples 4 and 5), it follows from the above that a licence holder cannot demand his full initial entitlement. Member States are only bound to recognise the licence document. In the quoted examples, this document produces evidence of lesser entitlements than the initial right to drive. Since the initial right to drive remained unchanged only in the issuing Member State, a recovery of this right in other Member States cannot be based upon the principle of mutual recognition, since the full extent of the right is not expressly recorded on the document.

In the case that a licence holder claims full recognition of the initial right to drive in the issuing State (example 6), he is entitled to recover this right, as the initial right to drive remained unchanged there in accordance with the principles laid down by ECJ(20).

It is recommended that licence holders who are entitled to reclaim their previous entitlements be granted those more far-reaching entitlements on demand only and after surrendering the licence that has been issued in exchange. In this way all entitlements can be recorded on a licence, which will be newly issued by the issuing Member State.

B.2. Recognition of licences which were given additional entitlements on the occasion of exchange

B.2.1. Legal position

It derives from the first and ninth recital of Directive 91/439/EEC, as well as from Article 13 thereof, which fully repealed Directive 80/1263/EEC, that only full mutual recognition shall apply as of entry into force of the Second Directive. In cases where additional entitlements were granted in exchange, these entitlements do not derive from the initial right to drive but were conferred by virtue of application of national legislation in force in the host Member State. Hence a restriction of the extended entitlements in the case of a subsequent change of residence to another Member State or to the issuing State is admissible in case the second change of residence was carried out before entry into force of the Second Directive. This applies because the extended entitlement was conferred by virtue of national law of another Member State.

Only entitlements, which are actually recorded on the licence documents, have to be fully recognised since the entry into force of Directive 91/439/EEC. In the case of a subsequent change of residence of the licence holder after 1 July 1996 a restriction of such entitlements is generally precluded, since the possibilities of a restrictive application of national rules are limited in view of Article 1(3) of Directive 91/439/EEC.

B.2.2. Practical situations

Example 7:

A French B licence holder with the entitlement to drive vehicles of up to 3,5 tonnes established normal residence in Germany in 1990. There the usual "Klasse 3" entitlement was granted in exchange, containing entitlements to drive vehicles of up to 7,5 tonnes (and even 18,25 tonnes). Before 1 July 1996 he/she re-established normal residence in France, where he/she was obliged to change the German licence back to a French licence, restricting the German entitlement. After the coming into force of Directive 91/439/EEC, the holder claims full recognition of the German entitlements.

Example 8:

An Irish B licence holder established normal residence in the United Kingdom in 1993. There a car licence containing the additional entitlement to drive C1 and C1E vehicles, as well as D1 and D1E vehicles "not for hire and reward", was granted in exchange for the initial licence. As he/she re-established normal residence in Ireland after 1 July 1996, he/she refers to the principle of mutual recognition laid down in Article 1(2) of Directive 91/439/EEC and opposes any change of entitlements from the United Kingdom licence, which had been issued in exchange.

Example 9:

A French licence holder established normal residence in Germany before 1 July 1996, where his/her entitlement was extended to "Klasse 3". Before the entry into force of Directive 91/439/EEC he/she changed his normal residence from Germany to a third Member State, where he/she demands full recognition of the extended entitlement.

Example 10:

As in example 9, the initial entitlement is extended on the occasion of exchange. After the entry into force of Directive 91/439/EEC, the licence holder establishes normal residence in a third Member State and claims full recognition of the extended entitlement according to the principle of mutual recognition.

B.2.3. Solution

In the case where the licence was extended on the occasion of exchange, but restricted again due to a subsequent change of residence back to the issuing State before 1 July 1996 example 7), this restriction may be retained, even after the coming into force of Directive 91/439/EEC. A licence holder whose licence was extended for a certain period of time in the past, but has been restricted again before entry into force of the principle of mutual recognition, has no legal grounds whereupon he can base his claim for retention of the extension of entitlements. The document of such a holder, carrying the extended entitlements, has been exchanged and now contains the initial entitlement; the initial right to drive remained unchanged.

If the licence was extended on the occasion of exchange and the holder changed his normal residence back to the issuing State after 1 July 1996 (example 8), his extended entitlements have to be fully recognised in accordance with the principle of mutual recognition. The application of Article 1(2) precludes the subsequent restriction of these extended entitlements as well as any reference to the initial, lesser rights.

If the entitlements were extended and the holder moved to a third Member State before 1 July 1996 (example 9), a subsequent restriction of the extended entitlement remained legally permissible, since the third Member State may have had a more restrictive issuing policy than the Member State where the licence was extended. In addition, the third Member State had to recognise the initial right to drive conferred by the issuing Member State, but could restrict it on its national territory.

If the holder of the extended licence moved to a third Member State after 1 July 1996 (example 10), any third Member State is bound to recognise all entitlements, including those which may have been additionally conferred by a Second Member State, in accordance with the principle of mutual recognition (see example 8).

If a licence is stolen or lost in the case where additional entitlements had been granted (examples 8 and 10), the following applies: the issuing Member State is still in possession of the original licence. In case the licence holder is resident there (example 8), the relevant authorities have to launch inquiries in cooperation with the authorities which granted the additional entitlements and are bound to issue a new licence containing all entitlements. In example 10, the host Member State is competent to issue a new licence according to Article 8(5), containing all entitlements which had been obtained previously.

It shall be noted that the legal solutions suggested above cannot give rise to new "licence tourism"(21): as Directive 91/439/EEC has been transposed in all Member States, licence categories and the conditions for the issue of licences have been harmonised. Extended rights thus can no longer be obtained since the transposition of the Second Directive. Entitlements which extended those defined in Article 3 of the Directive (e.g. in accordance with Article 5(4)) are valid on national territory only and only the basic entitlement, as defined in Article 3, is recorded on the licence. Other Member States are not bound to recognise such extended entitlements, even though they are granted in accordance with the Second Directive.

B.2.4. Explanatory remark with respect to an alternative solution

A restriction of extended entitlements to the original entitlements in the issuing State after 1 July 1996 would be in contradiction with basic principles of Community law, notably the free movement of persons and the principle of non-discrimination. Every Community citizen may refer to rights, which are conferred to him by the Second Directive, even in relation to his own Member State. Such reference may be made without being subject to discrimination linked to the place of issue of the licence, which is the Member State where the licence holder is normally resident(22).

Moreover, such an approach would result in a restriction in the issuing State only. In the case where the holder of such an entitlement changes his normal residence to a third country within the EU (see example 10), his full entitlement has to be recognised in the third Member State, in accordance with Article 1(2) of Directive 91/439/EEC.

B.3. Failure to surrender the initial document

B.3.1. Legal position

If drivers hold more than one licence because they did not exchange the initial licence or wrongfully obtained a duplicate, it is obvious that Article 7(5) of Directive 91/439/EEC is violated. Being in possession of more than one licence is also in contradiction with the First Directive, since the latter prescribed mandatory exchange of licences within one year after establishing normal residence in another Member State.

Article 7(5) of Directive 91/439/EEC clearly and unambiguously provides that no person may hold a driving licence from more than one Member State. Should a licence holder, who holds more than one licence, refer to the principle of mutual recognition after 1 July 1996, such a reference is abusive.

Moreover, the ECJ has consistently held(23) that Member States may have legitimate interests in preventing certain of their nationals, by means of facilities created under the Treaty, from attempting to evade the application of their national legislation. Since the legal interest is identical, an analogous application of this rule to all residents on the territory, who may be nationals of other Member States, appears appropriate. In such cases Member States may take the appropriate measures to prevent citizens (and residents) referring to provisions of Community law in a fraudulent or abusive way.

B.3.2. Practical situations

Example 11:

An EC citizen established his normal residence in another Member State before 1 July 1995 and exchanged the licence there. The original licence was sent back to the issuing authority, but the licence holder (unlawfully) kept a duplicate of this original licence. After 1 July 1996 he/she claims his initial entitlements in the host Member State, linked to the original right to drive, of which he/she is still able to produce evidence by surrendering the duplicate.

Example 12:

A Community citizen established normal residence in Norway or Sweden before 1 January 1994. In these countries licence holders were not required to surrender their original licences to the authorities after the national licence was issued. (NB: It is likely that this also occurred in other Member States). After the entry into force of Directive 91/439/EEC and in accordance with the principle of mutual recognition in Article 1(2), such a licence holder claimed the original entitlement (without having changed place of residence) for which he/she is able to produce evidence with the original licence.

B.3.3. Solution

Member States should require an individual to surrender all licence documents to the competent authorities in the host Member State and issue a new licence document thereafter, as soon as they learn that such a holder is in possession of more than one licence. This approach shall be applicable to both examples 11 and 12.

With respect to the extent of entitlements, the situation which would have emerged if Community law had been fully respected in the first place has to be established. If a licence holder is in possession of two licences, one containing more far-reaching entitlements than the other licence, and the latter being the only document he would actually hold if he had complied with Community law in the first place, the additional entitlements may be restricted even after the coming into force of Directive 91/439/EEC. This solution shall apply to cases of fraud as shown in example 11.

In the case where the licence holder is a national of the Member State imposing the exchange, the legal basis for the procedure described above derives from relevant ECJ jurisdiction quoted above. Member States may prevent their nationals from referring to Community law (e.g.: the principle of mutual recognition) in an abusive or fraudulent way (example 11).

With respect to the imposition of administrative penalties in case of fraud (example 11), reference is made to the description of the imposition of fines in the context of the failure to exchange the licence (subsection B.4.4. above).

With respect to example 12, however, where the described situation is the result of national rules being in force in countries which have not been EEA Member States at that time and thus were not bound to apply the provisions of the First Directive, no fines whatsoever can be imposed upon holders of more than one licence. The same applies to Member States which put into force an identical practice despite their obligation to comply with Community law, since citizens who are residents in a Member State cannot be fined for legislative omissions or breaches of Community law of their host Member State. Those holders kept their documents lawfully in terms of national legislation in force at the relevant time. With reference to countries which initially were outside the scope of application of Community law, it has to be noted that a retroactive application of Community law when the relevant country has acceded to the EEA is precluded.

C. LICENCES ISSUED IN CONTRADICTION WITH COMMUNITY LAW

C.1. Non-respect of Article 7(1)(a)

C.1.1. Legal position

If licences were issued in contradiction with the provisions of Article 7(1)(a) of Directive 91/439/EEC, the authority competent for revoking licences has to be determined in those cases where the holder changed their normal residence within the EU.

In general terms, a Member State has to recognise licences issued in another Member State according to Article 1(2), even in the case where the issuing Member State does not comply with the rules laid down in Article 7(1)(a) of the Second Directive. Therefore, the host Member State is not entitled to refuse recognition of licences which have not been issued in accordance with provisions of the Directive.

Despite the obligation to recognise licences, the host Member State may apply certain national rules according to Article 1(3). Only in very specific cases, which are described explicitly in Directive 91/439/EEC(24), may the host Member State refuse recognition.

C.1.2. Practical situation

Example 13:

After the date of entry into force of Directive 91/439/EEC, licences are issued in Member State A according to rules of national law previously adopted, which conflict with the provisions of the Directive. Member State B refuses to recognise licences of holders who establish their normal residence in B.

C.1.3. Solution

- The issuing Member State did not transpose the Directive in time

In this case other Member States shall be bound to recognise the licences, which have been issued in contradiction with Community law, according to Article 1(2). The host Member State may only apply its national rules within the limits of Article 1(3). The European Commission engaged several infringement proceedings against Member States that did not transpose the Directive on 1 July 1996 and these Member States have since transposed it. However, millions of licences were issued between the date of coming into force of the Second Directive and the (often-delayed) dates of transposition. Those documents have to be recognised.

- Non-respect of Article 7(1)(a) in spite of transposition of the Second Directive

In this case, a specific procedure shall be applied, in accordance with provisions of the Second Directive and primary legislation.

Firstly, the host Member State shall request additional information from the issuing Member State, in accordance with Article 12(3) of the Directive. In comparison with Directive 80/1263/EEC, the Second Directive puts greater emphasis on mutual assistance between Member States (which derives from the new wording of Article 12(3) in comparison to Article 12(3) of Directive 80/1263/EEC). The Council of the European Communities and the European Commission clarified the scope of the above provision by stating the following in the course of the adoption procedure of Directive 91/439/EEC: "The Council and the Commission are of the opinion that the provisions of the Directive with respect to the full mutual recognition of licences require a closer cooperation between the competent authorities in the Member States. In this context, this means in particular to establish an actual exchange of information ...".

Should the issuing Member State provide only insufficient or unsatisfactory information the host Member State may appeal to the ECJ thereafter, in accordance with Article 227 EC, or may request the Commission to appeal to the Court in accordance with Article 226 EC.

The host Member State is generally not competent to decide upon the non-recognition of licences which might have been issued in contradiction with Community law, otherwise the principle of mutual recognition would be rendered ineffective. Only after the failure of the above procedure and in very exceptional cases(25), the refusal to recognise licences issued in another Member State is admissible.

This right of a Member State derives from an analogous application of rules established by an ECJ Judgment(26) and has to be applied in a very restrictive way. This Judgment also insists on the obvious nature of the inaccuracy. Further reference may be made to the ECJ Judgment C-212/97 (Centros Ltd), which allows Member States to take the appropriate measures in order to prevent certain of its nationals, as well as citizens of other Member States who are residents on the territory, to refer to provisions of Community law (e.g.: the principle of mutual recognition) in a fraudulent or abusive manner(27).

C.2. Non-respect of Article 7(1)(b)

C.2.1. Legal position

The host Member State is bound to recognise licences issued in another Member State according to Article 1(2), regardless of whether or not the licence was issued in conformity with Article 7(1)(b).

Upon application of Article 8(2) of the Second Directive, which has been primarily introduced to pursue severe traffic offences rather than infringements of Community law, the host Member State is competent to restrict the right to use a driving licence issued in another Member State on the territory of the host Member State in specific cases only. Article 8(2) has to be applied with due observation of the principle of territoriality of criminal and police laws.

In addition, the scope of application of Article 8(2) has been clarified by comments to the proposal for Directive 91/439/EEC: "National provisions with respect to the suspension or withdrawal of the right to make use of the driving licence will have to be applied to drivers who do not satisfy the required conditions for issue or renewal of licences as regards the knowledge, skills and behaviour linked to driving a power-driven vehicle, as well as with respect to the medical condition of the driver, [...]."

Hence the application of Article 8(2) to infringements of the residence requirement is generally precluded, since its wording structurally aims at the imposition of fines for the non-respect of factual conditions (notably health conditions and knowledge requirements), rather than for non-respect of the formal residence requirement.

C.2.2. Practical situation

Example 14:

A licence holder establishes normal residence in another Member State in 1980 and starts to work there. In 1997 he/she registers at the local administrative body in his/her country of origin where some of his/her relatives are registered, who actually are residents there. Six months later, and still working in the host Member State, this licence holder obtains a driving licence in his/her country of origin during his summer holidays. The licence is not recognised by the host Member State's authorities, which claim that the licence holder has been a permanent resident in the host Member State and not in the issuing State.

C.2.3. Solution(28)

In general terms, Member States are not entitled to refuse recognition of licences issued in other Member States, unless they meet the procedural prescriptions described before for general cases. This means that contacts between the relevant Member States have first to be established and that the Commission or Member State have to act thereafter by appealing to the ECJ in accordance with Articles 226 EC and 227 EC.

Member States themselves cannot decide upon the respect of the residence requirement in another Member State. Thus Member States generally are not competent to refuse the recognition of licences which were issued in other Member States, or to revoke the document without complying with the described procedure.

Only the authorities of the Member State where the holder is normally resident are competent to issue or renew licences. If the above procedure proves that the residence requirement had not been fulfilled, the authorities of the host Member State are competent to revoke the document and return it to the issuing State. In these cases the right to drive as well is forfeited, since the holder did not fulfil all the formal requirements to obtain a licence.

Given that a great many practical cases may be expected, the introduction of an alternative procedure shall be considered.

A formal written declaration on the honour could be demanded from each licence applicant (or at the occasion of renewal of the licence), stating that he is resident in the relevant country and that he is neither in possession of another driving licence, nor that another licence has been withdrawn. Non-compliance with the residence requirement would then be a fraudulent act of the individual and can be pursued directly against him in accordance with the provisions of national criminal law. In such a case the host Member State would revoke the licence (with effect on its territory only) after having applied the above procedure and would send the licence back to the issuing State, which then could revoke the licence with general effect because of a fraudulent act.

D. CALCULATION OF VALIDITY PERIODS

D.1. Legal position

According to Article 1(3) of Directive 91/439/EEC, the host Member State is entitled to apply its national rules on the period of validity of the licences issued in another Member State. The date of change of residence is decisive for calculating the period of validity which a host Member State intends to impose upon foreign licence holders when they take up their normal residence in that country.

D.2. Practical situations

Example 15:

A Dutch licence holder established normal residence in France in 2000. His/her Dutch B licence was valid for 10 years and expires in France in 2005. Despite the fact that in France B licences are generally issued for life without having to be exchanged or renewed, this licence holder will then have to renew his/her licence in order to drive with a valid document.

Example 16:

A French licence holder establishes normal residence in The Netherlands in 1995. His/her French B licence was valid for life. The Dutch authorities will apply Article 1(3) and impose their 10-year validity period in 2005.

In such cases the question of which Member State is competent for "renewal" of these expired licences arises and is based upon which legal grounds such a renewal can be carried out.

D.3. Solution

It derives from Article 1(3) that a Member State may only apply its own national rules on the period of validity.

In the case where a licence holder establishes his normal residence in a host Member State where the period of validity is longer than in the issuing State (or where licences are issued for life), licences issued in the original Member State cease to be valid upon the original expiry date (in 2005 in example 15). This is based on the fact that the initial (in the example: Dutch) right to drive is limited by time and that the licence document expires regardless whether the holder changes his normal residence or not. It is not permissible to drive with an expired licence. Therefore national rules on the period of validity of the host Member State have to be applied upon expiry of the initial licence document. In example 15, French authorities will issue a French licence, which will be valid for life.

In the case where a licence holder establishes his normal residence in a host Member State where the period of validity is shorter than in the issuing State, licences cease to be valid after expiry of the validity period which applies in the host Member State, calculated from the moment of taking up residence (e.g. 2005 in example 16).

Any other method of calculating the remaining period of validity in these cases, notably calculating it from the moment of the issue of the licence, would mean factual non-recognition of licences(29).

The different approach to examples 15 and 16 results from the fact that in one case the initial right to drive as such is limited in time and the licence document expires no matter where the licence holder is resident, whereas in the other case a further limitation of the period of validity is newly imposed.

In both cases only the host Member State is competent for the renewal of licences, a competence deriving directly from Article 1(3). If the licence holder failed to exchange the licence in the host Member State in time, the host Member State has to request information from the issuing State in analogous application of Article 8(5) of Directive 91/439/EEC. In accordance with Article 12(3) the requesting Member State is bound to issue a new licence upon receipt of information from the issuing State. This derives from the ECJ Judgment C-193/94, separating the right to drive from the licence document, which produces only evidence of the right. The right to drive exists even in case of expiry of the licence document. In this case, therefore, a new document shall be issued.

E. RENEWAL OF LICENCES

E.1. Cases for renewal

Article 1(2) of Directive 91/439/EEC provides for the principle of mutual recognition of driving licences issued by Member States. This principle applies in the same way to those licences which have been issued before entry into force of the Directive.

Under certain circumstances a driving licence may expire in another Member State whilst the licence holder is resident in that Member State:

- the driving licence is valid for a limited period of time or until the holder reaches a certain age, according to the validity rules applying in the issuing State. In case one of those requirements for expiry is fulfilled while the holder is normally resident in another Member State, the State, which is legally competent for renewal of the licence has to be determined;

- the holder of a valid driving licence changes his normal residence to a Member State where a shorter period of validity applies. In this case the application of the national validity rules in the Member State of normal residence obliges the holder to renew his licence after expiry of the shorter period, and again the competent Member State for renewal has to be determined.

The differing periods of validity and dates of expiry of licences are result of a lack of harmonisation as regards renewal intervals: according to Article 1(3) of the Directive, a Member State may apply its national rules on the period of validity.

E.2. Interpretation of the relevant provisions of the Second Directive

Article 7(1) of the Second Directive lays down: "Driving licences shall, moreover, be issued only to those applicants, who have their normal residence in the Member State issuing the licence."

The range of this provision can only be assessed in combination with other provisions of the Directive linked to normal residence. Article 7(1) in combination with the definition of normal residence in Article 9 clarifies, that licence documents shall only be issued to those applicants who live in the issuing Member State for a period exceeding 185 days.

Furthermore, Article 8(1) determines: "Where the holder of a national driving licence issued by a Member State has taken up normal residence in another Member State, he may request that his driving licence be exchanged for an equivalent licence."

This Article determines the competence of the Member State of normal residence for the exchange, an interpretation that is also supported by combined reading of Articles 7(1) and 9 of the Second Directive. A voluntary exchange of licences thus may only be carried out by the Member State in which the holder normally resides. This assessment is underlined by the subsequent paragraph of the Directive, Article 8(2): "[...] the Member States of normal residence may apply its national provisions [...] to the holder of a driving licence issued by another Member State and, if necessary, exchange the licence for that purpose."

For the purposes of determination of the legal competence for licence exchange, Directive 91/439/EEC does not distinguish between licence holders who exchange their licences voluntarily and those who are obliged to exchange because of the application of national rules (of criminal and "police" law) by the Member State of normal residence. Taking into consideration the structure of Article 8, Directive 91/439/EEC does not allow for a distinction to be made between holders who are obliged to exchange due to application of national criminal or "police" laws and those who have to exchange due to application of administrative laws (i.e. provisions on period of validity). It is thus sufficiently clear that in case of a voluntary exchange of a licence the Member State of normal residence is exclusively competent for the exchange.

Another provision of the Directive, Article 8(5), establishes the exclusive legal competence of the Member State of normal residence in another context: "A replacement of a driving licence, which has [...] been lost or stolen, may be obtained from the competent authorities of the State in which the holder has his normal residence."

Article 8(5) thus establishes the competence of the Member State of normal residence in a case that has to be regarded as a "renewal" of the document.

Furthermore, Articles 8(3) and 12(3) of the Directive establish a system of regular exchange of information between Member States, which aims at improving communication of host Member States competent for a variety of aspects of licences issued in other Member States, and the issuing Member States. This system would be rendered entirely ineffective if the competence of host Member States is reduced in the context of renewal of licences that expired or will expire.

E.3. Solution

Directive 91/439/EEC establishes exclusive legal competence of the Member State of normal residence in case of first issue of licences, in case of replacement of licences, in case of application of national provisions of criminal and police laws and in case of voluntary exchange of the licence. In addition, the Directive aims at establishing a mechanism of exchange of information between Member State of normal residence and issuing Member States.

Deriving from that, a competence of the issuing Member State in case of renewal of licences, which expire outside the issuing State, would be in contradiction with the system and the ends of the Directive, as well as with the logical structure of the provisions cited above.

Furthermore, an argumentum e contrario underlines the above conclusions: according to Article 1(3), Member States may apply their national rules on the period of validity of licences on all licence holders on their territory. If Member States were entitled to exchange licences of holders who are normally resident in another Member State, they would undermine the competence of the Member State of normal residence to apply its national rules. The provisions in Article 1(3) would be obsolete.

Therefore the Member State of normal residence has to be considered as exclusively competent for all aspects of renewal of licences, including licences which have expired and thus not been renewed when still being valid. With regard to this last aspect, expired licences that have originally been issued by another Member State should be renewed under the same conditions as expired licences issued by the Member State of normal residence. In case the host Member State issues licences which are valid for an unlimited period, renewal of licences issued by another Member State has to be unconditional.

E.4. Procedural aspect

In the context of renewal of licences it has to be underlined that the same administrative procedures for renewal have to be applied indiscriminately to all licence holders, regardless of whether the licence has been issued in the Member State carrying out the exchange or in another Member State. This refers to all aspects of the procedure, for example the imposition of administrative fees or the respect of time limits.

(1) OJ L 375, 31.12.1980, p. 1.

(2) OJ L 237, 24.8.1991, p. 1.

(3) OJ L 375, 31.12.1980, p. 1.

(4) OJ L 337, 24.12.1994, p. 86.

(5) OJ L 235, 17.9.1996, p. 1.

(6) OJ L 175, 13.7.1996, p. 34.

(7) OJ L 150, 7.6.1997, p. 41.

(8) OJ L 91, 12.4.2000, p. 1.

(9) OJ L 237, 21.9.2000, p. 45.

(10) Commission Decision 2000/275/EC of 21 March 2000 on equivalences between certain categories of driving licences (OJ L 91, 12.4.2000, p. 1).

(11) The precise wording of the definitions derives from a combined reading of Articles 3(2) and 3(3) of the Second Directive.

(12) Article 6(1)(b) in combination with Annex II, point 8.1.2. of the Second Directive provides for the following distinction between direct and progressive access to heavy motorcycles:

progressive access: access to the driving of motorcycles with a power exceeding 25 kW or a power/weight ratio exceeding 0,16 kW/kg shall be subject to a minimum of 2 years experience on a motorcycle with a lower specification under an A licence.

direct access: the requirement as to previous experience may be waived if the candidate is at least 21 years old, subject to the candidate's passing a specific test of skills and behaviour.

(13) A Convention drawn up on the basis of Article K.3 TEU (Article 31 EU) foresees multilateral recognition of driving disqualifications (Convention on driving disqualifications (OJ C 216, 10.7.1998, p. 2) and could thus improve this situation. To date, however, only one Member State has ratified this Convention.

(14) The ECJ pointed out in paragraph 26 of C-193/94 (Skanavi), that driving licences have to be recognised without any formalities.

(15) In paragraph 43 of the ECJ judgment C-230/97 (Awoyemi) it is stated explicitly, that Article 1(2) of the Second Directive is vested with direct effect.

(16) See ECJ in C-230/97, paragraph 43.

(17) In analogous application of rules established by the ECJ in case C-265/88 Messner (see in particular paragraph 8 thereof).

(18) See in particular cases C-265/88 Messner, paragraph 14, and C-24/97 Commission v Germany, paragraph 14.

(19) See paragraphs 31, 32 and 34 of the ECJ Judgment C-193/94 - Skanavi.

(20) If the principle of mutual recognition was applied in this case, the issuing Member State would only be obliged to recognise the restricted entitlement recorded on the document which had been exchanged before.

(21) "Licence tourism" is a practical phenomenon of the following kind: applicants for driving licences pass their driving exams in a country other than their country of residence. The reasons are either that driving licences can be obtained more easily than in the country of residence (e.g. mandatory driving lessons or theory tests are not required) or that total expenditure for obtaining a licence is less than in the country of residence.

(22) For a description of this type of discrimination see ECJ in C-19/92 Kraus and C-212/97 Centros.

(23) See in particular cases C-212/97 Centros Ltd of 9 March 1999, paragraph 24, and C-61/89 Bouchoucha, paragraph 14.

(24) For example in Articles 6(3) and 8(4).

(25) Namely in cases of manifest and systematic inaccuracies, for example: organised fraud.

(26) Case C-130/88 (Van de Bijl).

(27) See in particular paragraphs 24 (with further references to previous ECJ legislation) and 25 of the cited Judgment.

(28) NB:

The issue of licences in a Member State to holders who are not normally resident in that State, thus being in contradiction with Article 7(1)(b) of Directive 91/439/EEC, appears frequently in practice. Due to the large numbers of licence documents, which have to be issued in the Member States, national authorities will have to find a way to enforce this Article. Member States have to examine the fulfilment of the residence requirement for each applicant at the moment of issue of the documents.

(29) The following example shall illustrate this point: a French driver holds a licence for 12 years. Then he establishes his/her normal residence in The Netherlands. He/she would be obliged to exchange the licence immediately, despite the principle of mutual recognition and despite the fact that the First Directive already guaranteed that licence holders are entitled to drive for a period of one year in another Member State.