OPINION OF ADVOCATE GENERAL

LÉGER

delivered on 12 May 2005 ( )

Case C-372/03

Commission of the European Communities

v

Federal Republic of Germany

(Failure of a Member State to fulfil obligations – Directive 91/439/EEC – Driving licences – Minimum age requirement to drive certain vehicles – Possibility of driving vehicles in a category other than the one for which a driving licence has been issued – Compulsory registration and exchange of driving licences)

1. In this action, the Commission of the European Communities seeks a declaration from the Court that the Federal Republic of Germany has failed to comply with its obligations under Council Directive 91/439/EEC of 29 July 1991 on driving licences. ( )

2. In support of its action, the Commission relies on a series of complaints. These relate to the minimum age requirement to drive certain vehicles, the possibility of driving vehicles other than those for which a driving licence ( ) has been obtained and the procedure for the registration and exchange of licences issued by other Member States.

I – Legal context

A – Community legislation

3. Harmonisation of the issue and use of driving licences began with the adoption of First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence. ( ) This directive served both to contribute to an improvement in road safety and to assist the movement of people either settling in a Member State other than the one in which they passed their driving test, or moving within the European Economic Community.

4. To this end, Directive 80/1263 approximated certain national rules relating, in particular, to the issue of driving licences, and to the conditions of their validity. The directive set out a Community model driving licence and introduced the principle of mutual recognition for such licences and their exchange when holders transfer their residence or place of work from one Member State to another.

5. Directive 80/1263 was repealed by Directive 91/439. This Directive marked a new stage in the harmonisation of national provisions, particularly in relation to requirements for the issue of driving licences, and the scope of the principle of mutual recognition relating to them.

6. The issue of driving licences, in particular, is made subject to some minimum age requirements. These requirements vary depending on the classification of the vehicle, under the Directive, intended to be driven.

7. For vehicles falling under category A, ( ) the first clause in the first indent of Article 6(1)(b) of the Directive sets out the principle that the minimum age requirement for the issue of a licence for this type of vehicles is 18 years. It adds: ‘however, access to the driving of motorcycles with a power exceeding 25 kW or a power/weight ratio exceeding 0.16 kW/kg (or motorcycles with sidecars with a power/weight ratio exceeding 0.16 kW/kg) shall be subject to a minimum of two years’ experience on motorcycles with lower specifications under an A licence’.

8. The last clause in the first indent of Article 6(1)(b) specifies: ‘this 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’. Article 6(2) of the Directive states that although Member States may derogate from the minimum age requirements laid down for certain categories of vehicle (A, B and B + E), and may therefore issue licences corresponding to these categories to persons from the age of 17 years, they may not derogate from the minimum age requirement laid down in the last clause in the first indent of Article 6(1)(b).

9. As regards vehicles falling under subcategories C1 ( ) and C1 + E (or C1E), ( ) the third indent of Article 6(1)(b) of the Directive stipulates that the minimum age requirement for the issue of the corresponding licence is 18 years, without prejudice to the provisions for the driving of such vehicles in Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport. ( )

10. Once a driving licence has been issued, its validity is not automatically confined to the driving of vehicles for which it was obtained. So, for example, Article 5(2)(b) of the Directive states that licences granted for category C + E (or CE) ( ) are to be valid for category D + E (or DE) ( ) as long as their holders are entitled to drive vehicles in category D. ( )

11. Moreover, once a licence has been issued in a Member State, it is to be recognised in other Member States. This principle of mutual recognition is laid down in Article 1(2) of the Directive in the following general terms: ‘Driving licences issued by Member States shall be mutually recognised.’

12. However, where the holder of a licence takes up normal residence in a Member State other than that which issued the licence, the Directive allows the host Member State to apply, to the holder of the licence in question, certain of its national rules.

13. It may thus apply, under Article 1(3) of the Directive, its national rules on tax arrangements, the period of validity of the licence, and medical tests. When applying those rules, the host Member State may enter on the licence issued by another Member State any information indispensable for administration. Annex I(4) to the Directive specifies that the host Member State may indicate on the licence information such as that relating to serious offences committed in its territory, provided that it also enters this type of information on the licences which it issues, and that there is space available for that purpose. ( )

14. Similarly, Article 8(2) of the Directive states: ‘Subject to observance of the principle of territoriality of criminal and police laws, the Member State of normal residence may apply its national provisions on the restriction, suspension, withdrawal or cancellation of the right to drive to the holder of a driving licence issued by another Member State and, if necessary, may exchange the licence for that purpose.’

B – National legislation

15. The German legislation relevant to the present proceedings may be found in the Regulation relating to the entitlement of persons to drive on the highway (Verordnung über die Zulassung von Personen zum Strassenverkehr) of 18 August 1998, also known as the ‘Fahrerlaubnis-Verordnung’. ( )

16. Paragraph 6(2), second sentence, of the FeV stipulates a minimum age of 25 years for direct access to the driving of heavy motorcycles in category A. For vehicles falling under subcategory C1 or C1E, under Paragraph 10(2), first sentence, of the FeV, it is possible to drive such vehicles from the age of 17 years, provided that such driving forms part of vocational driving training (and is limited to journeys forming part of such training).

17. In addition, under point 6 of Paragraph 6(3) of the FeV, holders of C1E and D licences are authorised to drive vehicles in category DE. Similarly, Paragraph 6(4) provides that holders of C1, C1E, C or CE licences are authorised to drive buses (that is, vehicles in category D) for journeys without passengers, within Germany, aimed solely at testing the vehicles’ technical condition, or at transferring the vehicles to another location.

18. Furthermore, under Paragraph 29(1) and (2) of the FeV, holders of a licence issued by a Member State other than the Federal Republic of Germany are required, on pain of a fine, to have their licence registered with the German administrative authorities if they have established their normal residence in Germany, and have held their licence for less than two years.

19. Finally, Paragraphs 29(3) and 47(2) of the FeV require holders of a licence issued by another Member State, who have established their normal residence in Germany, to exchange their licence for a German licence in order that there may be entered on it certain statements relating, in particular, to the period of validity of the licence in Germany, where that period is shorter than that in force in the Member State which issued it.

II – Pre-litigation procedure

20. Following an exchange of correspondence between the Federal Republic of Germany and the Commission, the latter, considering that that Member State had failed to fulfil its obligations under Directive 91/439, sent it a letter of formal notice on 18 July 2001, asking it to submit its observations.

21. Since it was not satisfied by the observations submitted by the Federal Republic of Germany, by letter of 21 March 2002 the Commission delivered a reasoned opinion, asking it to take the necessary steps to comply with its obligations under the Directive within two months of the date of notification of the opinion.

22. Following a delay in the passage of legislation which was supposed to bring to an end part of the alleged infringement, the Commission decided to bring the present action, by application lodged at the Court Registry on 2 September 2003.

III – The action

23. In support of its action, the Commission relies on six complaints, only two of which are disputed by the German Government. These two complaints, which relate to the minimum age requirement to drive certain vehicles, will be considered first. The other, non-disputed, complaints will be briefly considered thereafter. These relate to the possibility of driving vehicles other than those for which a licence was obtained, and to the procedure for registration and exchange of driving licences issued by other Member States.

A – The complaints relating to the minimum age requirement for driving certain vehicles

24. These complaints relate, on the one hand, to heavy motorcycles under category A ( ) and, on the other, to vehicles in subcategories C1 and C1E. Each of these complaints will be considered in turn.

1. The complaint as to the minimum age requirement for driving heavy motorcycles in category A

a) Arguments of the parties

25. In this complaint, the Commission alleges that the Federal Republic of Germany has infringed the last clause in the first indent of Article 6(1)(b) of the Directive, by stipulating 25 years as the minimum age requirement for direct access to the driving of heavy motorcycles in category A, in other words, without having acquired previous experience driving less powerful motorcycles. The applicant claims that, under those provisions in the Directive, only a minimum age of 21 years may be prescribed by a Member State’s legislation. In support of this complaint, the Commission contends that the Directive’s provisions are aimed at a complete harmonisation of direct access to the driving of heavy motorcycles in category A, by stipulating a uniform minimum age, so that Member States are not entitled unilaterally to provide for a different minimum age, whether it be higher or lower.

26. The German Government disputes that interpretation of the last clause in the first indent of Article 6(1)(b) of the Directive. It argues that those provisions do not initiate complete harmonisation of direct access to the driving of the type of vehicles in question. Not only do they allow Member States either to disallow or to allow such direct access, but they also leave Member States the possibility, if they allow such direct access, to stipulate a minimum age higher than 21 years, in accordance with the Directive’s objective of road safety. In that connection, the German Government points out that the Commission has recently proposed, in the course of recasting the Directive, to raise the minimum age in question to 24 years, instead of 21 years, in order to respond more effectively to the demands of road safety.

b) Assessment

27. I consider that this complaint is not justified.

28. In my view, in stipulating 21 years as the minimum age requirement for possible direct access to the driving of heavy motorcycles in category A, the last clause in the first indent of Article 6(1)(b) of the Directive simply excludes persons under 21 years from benefiting from the right to drive that type of vehicle. Those provisions do not preclude the existence of national legislation requiring a minimum age higher than that stipulated in the Directive, such as 25 years. Several factors point to such an interpretation.

29. First, in allowing Member States to derogate from the minimum age requirements stipulated for certain categories of vehicle (other than heavy motorcycles in category A), and thus to issue licences to persons from the age of 17 years, that is to say, an age below that stipulated by the Directive for these categories of vehicle, Article 6(2) of the Directive suggests that the purpose of the minimum age requirements stipulated, taken as a whole, is to impose a ‘lower limit’ (and not an ‘upper limit’) below which, in principle, it is prohibited to issue a driving licence, other than by way of derogation expressly permitted by the article.

30. The fact that the derogations provided for in this article exclusively concern a minimum age lower than that stipulated by the Directive for the relevant categories of vehicle rather than a minimum age higher than that stipulated does not, I believe, mean that Member States are automatically prohibited from providing for higher minimum age requirements. On the contrary, the Directive’s silence in Article 6(2) as to such higher minimum age requirements can, no doubt, be explained by the fact that its rules concerning minimum age requirements are not intended to preclude the adoption, by Member States, of stricter rules in this area, such that it was not necessary to provide for such derogations on this point in order to allow Member States to do so.

31. The Directive’s aim in stipulating minimum age requirements confirms this analysis.

32. As the fourth recital in the preamble to the Directive emphasises, it is on road safety grounds that the minimum requirements for the issue of a licence should be laid down. I would add that the minimum age requirements in Article 6(1) of the Directive are among the minimum requirements designed to fulfil this aim.

33. However, if the stipulation of minimum age requirements is clearly a response to road safety requirements, in that it prohibits the issue of a licence to persons who have not yet reached the minimum age in question, the same cannot be said of a case where the minimum age requirements set by the Directive also amount to prohibiting Member States from declining to issue a licence to persons who have already reached the minimum age. On the contrary, it is precisely the concern to reinforce road safety protection that generally motivates Member States to stipulate minimum age requirements higher than those set by the Directive. Moreover, as the German Government indicated, the Commission has recently expressed its intention, in respect of access to more powerful motorcycles, to raise the minimum age to 24 years, instead of 21 years, in order to contribute to improving road safety. ( )

34. I consider that it follows from these different factors that the last clause in the first indent of Article 6(1)(b) of the Directive does not preclude the existence of national legislation providing for a minimum age requirement higher than that stipulated by the article, such as that provided for in the German legislation at issue. As a result, I take the view that the complaint concerning the minimum age requirement for direct access to the driving of heavy motorcycles in category A, based on the alleged infringement of the above article of the Directive, is unfounded.

2. The complaint relating to the minimum age requirement for direct access to the driving of vehicles in subcategories C1 and C1E

a) Arguments of the parties

35. In this complaint, the Commission alleges that the Federal Republic of Germany has infringed the third indent of Article 6(1)(b) of the Directive, read in conjunction with the second indent of Article 5(1)(b) of Regulation No 3820/85, in allowing vehicles in subcategory C1 or C1E to be driven by persons from the age of 17 years when such driving forms part of vocational driver training. It argues that those provisions in the Directive, and those in the regulation to which they refer, preclude persons under 18 years from benefiting from the right to drive vehicles of this type.

36. This complaint is disputed by the German Government. It states that, in its domestic law, obtaining a category C1 licence is made subject to obtaining a category B licence.

37. Furthermore, it argues that obtaining a certificate of professional competence, following a recognised training course for drivers of vehicles intended for the carriage of goods by road, which, under the second indent of Article 5(1)(b) of Regulation No 3820/85, justifies the grant to holders of such a certificate the right to drive vehicles intended for the carriage of goods by road weighing more than 7.5 tonnes – provided that they are at least 18 years old – implies that the training in question may start before the persons concerned have reached the age of 18, and that the training includes some driving experience. It follows that, in reserving to persons of 17 years the right to drive vehicles in subcategory C1 or C1E for vocational training purposes, the national legislation at issue falls directly under the second indent of Article 5(1)(b) of the regulation, to which the third indent of Article 6(1)(b) of the Directive refers. To hold otherwise would be to penalise the existence of vocational road transport driver training, which is sufficiently lengthy to be complete, at the expense of the interest of road safety.

38. Finally, the German Government seeks to play down the scope of the anticipated right to drive vehicles in subcategories C1 and C1E, which is provided for by the national legislation. Such a right is only granted to persons following a vocational road transport driver training course who have passed prior medical and psychological tests. In addition, authorisation to drive such types of vehicles is valid only as part of such vocational training, and only on national territory.

b) Assessment

39. In my view, this complaint is well founded, both in relation to vehicles in subcategory C1 and in relation to vehicles in subcategory C1E.

40. With regard to vehicles in subcategory C1, the third indent of Article 6(1)(b) of the Directive and Article 5(1)(a) of Regulation No 3820/85 (to which that article of the Directive refers) provide that they may be driven only by persons who have reached the minimum age of 18 years. In allowing such vehicles to be driven by persons as young as 17, the national rules at issue disregard the Directive’s provisions which are the same as those of the regulation referred to above. That conclusion is inevitable even if, as the German Government contends, the scope of the anticipated driving entitlement is limited.

41. Similarly, it matters little that, as the German Government contends, obtaining a C1 licence (authorising the driving of vehicles in subcategory C1) is conditional on obtaining a B licence (permitting the driving of vehicles in category B). In effect, although Article 6(2) of the Directive allows Member States to derogate from the minimum age requirements laid down by it for certain categories of vehicle, such as those in category B, and thus to issue licences corresponding to that type of vehicle to persons from the age of 17 years, the fact remains that that is not true for vehicles in subcategory C1. Since Article 6(2) is exhaustive in nature, the fact of obtaining a category B licence at the age of 17 years cannot, under that article, justify obtaining a C1 licence under the same age conditions.

42. With regard to vehicles in subcategory C1E, I would point out that Regulation No 3820/85 (to which the third indent of Article 6(1)(b) of the Directive refers) sets out, in the first indent of Article 5(1)(b), the principle that the minimum age requirement for driving such vehicles is to be 21 years. It is only by way of derogation from that principle that the second indent of Article 5(1)(b) of the regulation lowers that minimum age to 18 years provided, it will be recalled, that ‘the person concerned holds a certificate of professional competence recognised by one of the Member States confirming that he has completed a training course for drivers of vehicles intended for the carriage of goods by road, in conformity with Community rules on the minimum level of training for road transport drivers’.

43. It follows from those provisions of Regulation No 3820/85 that access to the driving of vehicles in subcategory C1E from the age of 18 years is made subject to obtaining a certain type of vocational training for road transport drivers attested to by a certificate of competence issued at the end of such training.

44. Consequently, although such vocational training may start before the person concerned has reached the age of 18 and include, under the same age conditions, experience of accompanied driving under the supervision of an instructor, such a person cannot be given any sort of licence to drive vehicles in subcategory C1E if he has not reached the age of 18 and is still undertaking vocational training, thus without having obtained a certificate of competence which is only issued at the end of such training.

45. However, this is what the German legislation at issue provides, since it allows persons of only 17 years to drive, in the course of a vocational road transport training course, vehicles in subcategory C1E on the national public road network, without requiring such driving to be under the constant supervision of an instructor. In relation to that type of vehicle, the national legislation therefore disregards Article 5(1)(b) of Regulation No 3820/85. It also disregards the third indent of Article 6(1)(b) of the Directive, in so far as that article refers to the application of the regulation, including Article 5(1)(b) thereof.

46. I conclude that the complaint relating to the minimum age requirement for direct access to the driving of vehicles in subcategories C1 and C1E, based on the infringement of the third indent of Article 6(1)(b) of the Directive, is well founded.

B – The complaints relating to the possibility of driving vehicles other than those for which a driving licence has been obtained

47. Two complaints deal with the possibility of driving vehicles other than those for which a licence has been obtained. One concerns access to the driving of vehicles in category DE; the other concerns access to the driving of vehicles in category D. Each of these two complaints, which are not disputed by the German Government, will be briefly considered.

1. The complaint concerning access to the driving of vehicles in category DE

48. In this complaint, the Commission alleges that the Federal Republic of Germany has disregarded Article 5(2)(b) of the Directive, by providing that the holders of C1E and D licences are authorised to drive vehicles in category DE. I consider that this complaint is well founded.

49. Article 5(2)(b) provides that ‘licences granted for category C + E shall be valid for category D + E as long as their holders are entitled to drive vehicles in category D’. It follows from those provisions that only the holder of a licence for category CE, not for C1E, is authorised to drive vehicles in category DE, provided he is authorised to drive vehicles in category D. The holder of a C1E licence is not therefore entitled to rely on such a licence for the purpose of driving a vehicle in category DE.

2. The complaint concerning access to the driving of vehicles in category D

50. In this complaint, the Commission alleges that the Federal Republic of Germany has disregarded Article 3 of the Directive in authorising holders of a C1, C1E, C or CE licence to drive vehicles in category D for journeys without passengers, inside the country, aimed solely at checking the technical condition of the vehicles or transferring them to another location. I consider this complaint to be well founded.

51. It follows from the fifth indent of Article 3(1) of the Directive that vehicles in category C are to be distinguished from those in category D, so that a category C licence cannot authorise the driving of vehicles in category D. The same is true for types of vehicles related to category C, namely vehicles in category CE and in subcategories C1 and C1E (as defined in the sixth indent of Article 3(1) and the third and fourth indents of Article 3(2) of the Directive).

52. As the Commission has emphasised, this distinction between, on the one hand, vehicles in category and subcategories C, CE, C1 and C1E (that is, lorries) and, on the other hand, vehicles in category D (that is, buses), and between the corresponding licences, arises because the driving of those types of vehicle is in fact not comparable, and each requires its own specific training, so that a C, CE, C1 or C1E licence (obtained following a certain type of training) cannot authorise the driving of vehicles in category D (which requires a different course of training).

53. I conclude that the complaint concerning access to the driving of vehicles in category D, based on infringement of Article 3 of the Directive, is well founded.

C – The complaints concerning the registration and exchange procedure for licences issued by other Member States

54. I shall examine in turn the complaint concerning the procedure for registering licences issued by other Member States and that concerning the procedure for exchanging such licences; it is pointed out that those complaints are not disputed by the German Government.

1. The complaint concerning the procedure for registering licences issued by other Member States

55. In this complaint, the Commission alleges that the Federal Republic of Germany has infringed the principle of mutual recognition of licences laid down by Article 1(2) of the Directive by requiring, on pain of a fine, the compulsory and systematic registration of licences issued by other Member States, when the holders of such licences have taken up normal residence in Germany and have not held their licence for more than two years.

56. I consider that this complaint is well founded. In this regard, it suffices to refer to Commission v Netherlands, ( ) and Commission v Spain. ( ) In those judgments, the Court held that compulsory or systematic registration of driving licences constitutes a formality contrary to the principle of mutual recognition laid down by Article 1(2) of the Directive which can be justified neither by Article 1(3) nor by Article 8(2) of the Directive. ( )

2. The complaint concerning the procedure for exchanging licences issued by other Member States

57. In this complaint, the Commission alleges that the Federal Republic of Germany disregarded several provisions of the Directive, in particular Article 1(2), by requiring holders of licences issued by another Member State who have taken up normal residence in Germany to exchange their licence for a German licence, so that the relevant national authorities may enter certain information relating, in particular, to the period of validity of the licence in that State, when that period is shorter than that in force in the Member State which issued it. I consider this complaint to be well founded.

58. As the Court emphasised in paragraph 72 of the judgment in Commission v Netherlands, cited above, it is apparent from the ninth recital in the preamble to the Directive that the Directive expressly intended to abolish systems for the exchange of licences. That fact was recalled in the order of 29 January 2004 in Krüger. ( )

59. In the Krüger order, cited above, the Court essentially relied on that argument in holding that ‘Article 1(2) of Directive 91/439 must be interpreted as precluding legislation of a Member State which requires, under certain circumstances, holders of driving licences issued by another Member State who are established in its territory to exchange that licence for a national driving licence on the ground that a driving licence issued by another Member State which does not comply with provisions on the period of validity which apply in the host Member State cannot be entered in its register of driving licences’. ( )

60. That which applied to the exchange procedure at issue in the Krüger case, cited above, must also apply to the exchange procedure in this case.

61. I conclude that the complaint concerning the procedure for exchanging licences issued by other Member States, based on infringement of Article 1(2) of the Directive, is well founded.

IV – Conclusion

62. In conclusion, I propose that the Court:

(1) hold that:

– by adopting legislation which provides that it is possible to drive vehicles in subcategory C1 or C1 + E (or C1E) from the age of 17 years, if such driving forms part of vocational road transport driver training, the Federal Republic of Germany has failed to fulfil its obligations under the third indent of Article 6(1)(b) of Council Directive 91/439/EEC of 29 July 1991 on driving licences;

– by adopting legislation which provides that holders of C1E and D licences are authorised to drive vehicles in category D + E (or DE), the Federal Republic of Germany has failed to fulfil its obligations under Article 5(2)(b) of Directive 91/439;

– by adopting legislation which provides that holders of C1, C1E, C or C + E (or CE) licences are authorised to drive vehicles in category D for journeys without passengers, within the country, aimed solely at checking the technical condition of the vehicles or transferring them to another location, the Federal Republic of Germany has failed to fulfil its obligations under Article 3 of Directive 91/439;

– by adopting legislation which requires, on pain of a fine, the compulsory and systematic registration of driving licences issued by other Member States, when the holders of such licences have taken up normal residence in Germany and have not held their driving licence for more than two years, the Federal Republic of Germany has failed to fulfil its obligations under Article 1(2) of Directive 91/439;

– by adopting legislation which requires holders of driving licences issued by other Member States who have taken up normal residence in Germany to exchange their driving licence for a German driving licence, so that the relevant national authorities may enter certain relevant information, relating, in particular, to the period of validity of the licence in that State, when that period is shorter than that in force in the Member State which issued it, the Federal Republic of Germany has failed to fulfil its obligations under Article 1(2) of Directive 91/439.

(2) dismiss the remainder of the application;

(3) order the Federal Republic of Germany to pay its own costs and those incurred by the Commission of the European Communities.