OPINION OF ADVOCATE GENERAL

BOT

delivered on 30 June 2011 ( )

Case C‑224/10

Staatsanwaltschaft Baden-Baden

v

Leo Apelt

(Reference for a preliminary ruling from the Landgericht Baden-Baden (Germany))

(Directive 91/439/EEC – Mutual recognition of driving licences – Withdrawal of the national driving licence and issue of a driving licence for vehicles in categories B and D by another Member State – Refusal of recognition by the Member State of residence – Obligation to hold a valid licence for vehicles in category B at the time of issue of the licence for vehicles in category D)





1. Once again the Court is called upon to interpret the provisions of Council Directive 91/439/EEC of 29 July 1991 on driving licences, ( ) as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, ( ) (‘Directive 91/439’).

2. In particular, the Landgericht (Regional Court) Baden-Baden (Germany) asks the Court to interpret Article 5(1)(a) of Directive 91/439, which provides that driving licences for category D (‘D licences’) may be issued only to drivers who are already entitled to drive vehicles in category B.

3. In the present case, a driving licence for category B (‘B licence’) was issued to the defendant in the main proceedings by the Czech authorities, even though the B licence was, in Germany, the subject of a procedure for verification of his fitness to drive as a result of a road traffic offence committed before that licence was issued. After his German driving licence had been confiscated and after the order prohibiting him from applying for a new driving licence had expired, the defendant in the main proceedings obtained a D licence from the same Czech authorities.

4. The question asked by the Landgericht Baden-Baden is therefore, in essence, whether, in view of the provisions of Directive 91/439 and, in particular, the principle of mutual recognition of driving licences, the German authorities are obliged to recognise the B and D licences issued in those circumstances as being valid.

5. The present case provides the Court with an opportunity to give a ruling on the interaction between B and D licences and, in particular, to rule on whether the non-recognition of a B licence entails the non-recognition of a D licence.

6. In the present Opinion I shall explain the reasons for my view that a Member State may refuse to recognise the validity of a driving licence issued by another Member State for categories B and D in the case where the holder was disqualified from driving in the territory of the first Member State after the B licence was issued, but in respect of an offence established before that licence was issued. The fact that the D licence was issued after the expiry of the ban on applying for a new licence, which was imposed at the same time as the disqualification, is irrelevant in that connection.

I – The legal context

A – European Union law

1. Directive 91/439

7. With the aim of facilitating the movement of persons within the European Community or their establishment in a Member State other than that in which they obtained their driving licence, Directive 91/439 established the principle of mutual recognition of driving licences. ( )

8. The laying down, in that directive, of minimum requirements for the issue of a driving licence also has the objective of improving road safety in the European Union. ( )

9. Article 5(1)(a) of Directive 91/439 is thus worded as follows:

‘The issue of driving licences shall be subject to the following conditions:

(a) licences for categories C and D shall be issued only to drivers already entitled to drive vehicles in category B’.

10. In addition, Article 7(1)(b) of Directive 91/439 provides as follows:

‘Driving licences shall, moreover, be issued only to those applicants:

…

(b) who have their normal residence in the territory of the Member State issuing the licence, or can produce evidence that they have been studying there for at least six months. [( )]’

11. Article 7(5) of Directive 91/439 provides that no person may hold more than one driving licence.

12. Article 8(2) of the Directive provides that 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.

13. Under the first subparagraph of Article 8(4) of the Directive, a Member State may also refuse to recognise the validity of a driving licence issued by another Member State to a person who is, in the former State’s territory, the subject of one of the abovementioned measures.

2. Directive 2006/126/EC

14. Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences ( ) recasts Directive 91/439 after it had undergone numerous amendments. ( )

15. The second subparagraph of Article 11(4) of Directive 2006/126 provides that a Member State must refuse to recognise the validity of any driving licence issued by another Member State to a person whose driving licence is restricted, suspended or withdrawn in the former State’s territory.

16. By virtue of the first paragraph of Article 17 of Directive 2006/126, Directive 91/439 is to be repealed with effect from 19 January 2013.

17. The second paragraph of Article 18 of Directive 2006/126 provides that Article 11(4) thereof is to apply from 19 January 2009.

B – National law

18. The Regulation on the authorisation of persons to drive on the highways (Verordnung über die Zulassung von Personen zum Straßenverkehr), provides in Paragraph 28(1), first sentence, that holders of a valid European Union (‘EU’) or European Economic Area (‘EEA’) driving licence having their normal residence, within the meaning of Paragraph 7(1) or (2) of that regulation, in Germany are to be authorised – subject to the restrictions laid down in subparagraphs (2) to (4) of Paragraph 28 – to drive motor vehicles in Germany within the limits of their entitlement to do so.

19. Paragraph 28(4) of that regulation provides that the authorisation referred to in Paragraph 28(1) is not to apply to holders of an EU or EEA driving licence who have, in Germany, been disqualified provisionally or definitively by a court or by an immediately enforceable or definitive decision of an administrative authority.

20. Under Paragraph 21(1), point 1, of the Law on road traffic (Straßenverkehrsgesetz), any person who drives a vehicle when not in possession of the licence required for that purpose or who has been banned from driving pursuant to Paragraph 25 of that Law or Paragraph 44 of the German Criminal Code is to be sentenced to a term of imprisonment of up to one year or to payment of a fine.

II – The facts of the case in the main proceedings

21. On 14 December 1998 Mr Apelt, a German national, obtained a German driving licence for classes 1a, 1b, 3, 4 and 5. ( )

22. On 23 January 2006 the German authorities established, in the course of a roadside check, that Mr Apelt was driving under the influence of alcohol. His licence was confiscated the following day, 24 January 2006.

23. By a summary penalty order dated 31 May 2006, which became final on 2 June 2006, the Amtsgericht (Local Court) Osterholz-Scharmbeck imposed a fine on Mr Apelt for drunken driving. He was also disqualified from driving and was prohibited from applying for a new driving licence until 29 November 2006.

24. Even before the disqualification decision had been handed down, the Czech authorities issued Mr Apelt, on 1 March 2006, with a B licence indicating an address of residence in Germany.

25. On 30 April 2007 the Czech authorities issued Mr Apelt with a D licence indicating a place of residence in the Czech Republic and bearing the date of issue of the B licence.

26. In the course of a roadside check on 11 July 2009, Mr Apelt, who at that time was driving a coach in Germany, presented to the authorities his D licence issued by the Czech authorities. As a result of that check, the Staatsanwaltschaft (Public Prosecutor’s Office) in Baden-Baden requested the Amtsgericht (Local Court) Achern to find Mr Apelt guilty of deliberately driving without the right to do so.

27. By decision of 30 December 2009, the Amtsgericht Achern refused that application on the ground that the licence which had been issued in the Czech Republic for category D vehicles was also valid in Germany. The Amtsgericht stated, inter alia, that the German authorities had no right to check compliance with the conditions of issue set out in Directive 91/439. The Amtsgericht also noted that the D licence had been issued to Mr Apelt after expiry of the period of the ban on applying for a new licence. Therefore, in the view of that court, the D licence was valid.

28. The Staatsanwaltschaft Baden-Baden appealed against that decision to the Landgericht Baden-Baden.

III – The questions referred

29. The Landgericht Baden-Baden, being uncertain as to the interpretation of certain provisions of Directive 91/439, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. With due regard for Article 5(1)(a) of Directive 91/439 …, which provides for licences for category D to be issued only to drivers already entitled to drive vehicles in category B, may a Member State refuse, in accordance with Article 1 and Article 8(2) and (4) of that directive, to recognise the validity of a driving licence issued by another Member State for categories B and D – particularly with respect to category D – if the holder of that driving licence was granted the right to drive vehicles in category B before the right to drive was withdrawn by a court in the first Member State, whereas the right to drive vehicles in category D was not granted until after that withdrawal and after the expiry of the period simultaneously set before a new licence might be issued?

2. If the first question is answered in the negative:

May the first Member State refuse to recognise the aforementioned driving licence – particularly with respect to the right to drive vehicles in category D – in application of Article 11(4) of Directive 2006/126 …, according to which a Member State is required to refuse to recognise the validity of a driving licence issued by another Member State to a person whose driving licence has been withdrawn in the territory of the former Member State, if the right to drive vehicles in category B was granted on 1 March 2006 and the right to drive vehicles in category D was granted on 30 April 2007 and the driving licence was issued on the latter date?’

IV – Assessment

30. Before examining the questions from the referring court, it is, in my view, necessary to consider the system set up by the EU legislature for the issue of driving licences.

A – The system set up by Directive 91/439

31. Directive 91/439 has as its objective to harmonise the conditions for the issue of driving licences in order to improve road traffic safety, as well as to facilitate the movement of persons settling in a Member State other than that in which they have passed a driving test. ( )

32. For that purpose, the EU legislature established categories and sub-categories of driving licences. For example, a B licence authorises the driving of motor vehicles with not more than eight seats in addition to the driver’s seat, while a D licence authorises the driving of motor vehicles used for the carriage of persons and having more than eight seats in addition to the driver’s seat. ( )

33. This division into categories and sub-categories makes it possible to adapt, for each of them, the minimum conditions subject to which driving licences must be issued.

34. Thus, under Article 5(1)(a) of Directive 91/439, the issue of a D licence is subject to the condition that the driver is already entitled to drive vehicles in category B. A person wishing to obtain a D licence must therefore first prove that he is entitled to drive vehicles in category B, that is to say, that he has been found fit to drive such vehicles. In my view, such proof can be provided only by the fact of having obtained a B licence, which alone guarantees compliance with the minimum requirements.

35. There are also minimum age requirements for the issue of a driving licence. That age varies according to the licence category. Thus, for category D, the minimum age required is 21 years. ( )

36. In addition, under Article 7(1)(a) of the Directive, applicants must pass a test of skills and behaviour and a theoretical test, and must also meet certain medical standards.

37. In accordance with Annexes II and III to the Directive, there is a common basis for all categories of driving licences. ( ) The issue of any driving licence is subject to compliance with the minimum requirements of that common basis. For example, drivers must have sufficient command of their vehicle so as not to create dangerous situations and to react appropriately should such situations arise. ( ) Drivers must also have an understanding of the safe distances between vehicles, braking distances and roadholding of the vehicle concerned. ( )

38. In addition to those minimum requirements, there are specific tests for each category, in particular category D. ( ) The tests and medical standards vary according to the licence category, the minimum conditions for categories such as D being more stringent than those for the issue of a B licence.

39. These differences can be easily explained. A coach is not driven in the same way as a car or motorcycle. Manoeuvring a coach or bus is more difficult and the roadholding is very different. Likewise, the driver of a coach has a greater responsibility in view of the number of passengers.

40. Consequently, if a person applying for a D licence has in principle already demonstrated that he fulfils the minimum requirements of the common basis, since he must hold a B licence, he must also pass those specific tests before he can be issued with a D licence.

41. It must be borne in mind, in this connection, that Directive 91/439 provides that any applicant for a licence in one category who already holds a licence in a different category may be exempt from the common provisions of points 2 to 4 of Annex II to that directive. ( ). In my view, the EU legislature started from the principle that, once the common basis has been acquired, it is not necessary to undergo a new examination relating to that basis.

42. Finally, under Article 7(1)(b) of Directive 91/439, acquisition of a driving licence is also subject to the condition of normal residence in the territory of the issuing Member State.

B – The questions referred

43. The first question referred by the Landgericht Baden-Baden asks, essentially, whether Articles 1(2) and 8(2) and (4) of Directive 91/439, read in conjunction with Article 5(1)(a) thereof, must be interpreted as meaning that a Member State is entitled to refuse to recognise the validity of a driving licence issued by another Member State for categories B and D in the case where, after the B licence was issued, the licence-holder was disqualified in the first Member State for an offence established before that licence was issued, and the D licence was issued after the expiry of the period, set at the time of disqualification, prohibiting any application for a new licence.

44. In reality, that question calls for the successive examination of the following two points. First, it is necessary to ascertain whether, having regard to the provisions of Directive 91/439, the German authorities are entitled to refuse to recognise the B driving licence issued by the Czech authorities. If so, secondly, it will be necessary to determine what effect that non-recognition may have on the validity of the D licence, in the light of the wording of Article 5(1)(a) of that directive.

45. Like the referring court, ( ) I take the view that the German authorities are entitled to refuse to recognise the B licence issued by the Czech authorities.

46. It appears from the information provided by the referring court that on 23 January 2006 Mr Apelt committed a road safety offence in Germany. His German driving licence was confiscated by the police authorities the following day. On 31 May 2006 the Amtsgericht Osterholz-Scharmbeck disqualified him from driving and prohibited him from applying for a new licence until 29 November 2006. Those measures became final on 2 June 2006.

47. While Mr Apelt’s German licence had been temporarily withdrawn and the abovementioned measures had not yet been ordered, the Czech authorities issued him with a B licence on 1 March 2006.

48. According to the Court’s case-law, Directive 91/439 cannot, in such a situation, be regarded as imposing on the German authorities an obligation to recognise the validity of the driving licence issued by the Czech authorities. ( )

49. In such a situation, the right of the competent authorities and courts of a Member State to refuse to recognise the validity of a driving licence obtained in another Member State by a person whose driving licence has been temporarily suspended in the first Member State must be recognised absolutely and definitively on the basis of the provisions of Directive 91/439, in particular Article 8(4) thereof, in the case where the temporary suspension is followed by the withdrawal of the right to drive on the basis of the same facts. The fact that withdrawal of the right to drive is ordered after the date of issue of the new driving licence is irrelevant in that regard, since the grounds for that measure existed at that date. ( )

50. In the present case, therefore, I take the view that the German authorities are entitled to refuse to recognise the B licence issued to Mr Apelt by the Czech authorities.

51. That said, the question now is whether the German authorities are also entitled to refuse to recognise the D licence issued by the Czech authorities after expiry of the period of the prohibition on applying for a new licence, in so far as Article 5(1)(a) of Directive 91/439 provides that D licences may be issued only to drivers who are already entitled to drive vehicles in category B.

52. In other words, can the non-recognition of the B licence affect the validity of the D licence issued by the Czech authorities, thereby preventing Mr Apelt from relying on that D licence?

53. The European Commission expresses the view that the D licence issued by the Czech authorities must be recognised by the German authorities on the ground that, unlike the B licence, the D licence was issued after the expiry of the period of the prohibition on applying for a new licence and indicates residence in the Czech Republic.

54. Furthermore, the Commission considers that, although it is true that a D licence can be issued only to drivers who hold a category B licence, Mr Apelt was, from the viewpoint of Czech law alone, entitled to drive vehicles in category B at the time when he obtained the D licence.

55. I understand the Commission’s argument as being that, even through the issue of the B licence was irregular and a Member State may refuse to recognise it, the D licence must be recognised because the holder had passed the theoretical test and the skills and behaviour tests which are, in any event, at least as demanding as those required for the B licence, and therefore all the necessary checks were carried out. Non-recognition of the B licence, it is submitted, does not therefore affect recognition of the D licence.

56. I do not share that view, for the following reasons.

57. I have shown that the issue of a D licence is subject to, inter alia, the conditions that the driver is already authorised to drive category B vehicles, that he has passed the theoretical, skills and behaviour tests, that he meets certain medical criteria and that he is normally resident in the Member State issuing the licence.

58. According to the Court’s settled case-law, Article 1(2) of Directive 91/439 provides for the mutual recognition, without any formality, of driving licences issued by Member States. ( ) Thus, once the authorities of one Member State have issued a driving licence in accordance with Article 1(1) of Directive 91/439, the other Member States are not entitled to investigate whether the conditions of issue laid down by that directive have been met, as the possession of a driving licence issued by one Member State has to be regarded as constituting proof that on the day on which that licence was issued its holder fulfilled those conditions. ( )

59. However, this principle of mutual recognition has been made subject to qualification. In Wiedemann and Funk ( ) and also in Zerche and Others, ( ) the Court held that a Member State is entitled to refuse to recognise in its territory the right to drive stemming from a driving licence subsequently issued by another Member State if it is established, on the basis of entries appearing in the driving licence itself or of other incontestable information supplied by the Member State of issue, that when that licence was issued its holder, who had been the object, in the territory of the first Member State, of a measure withdrawing an earlier licence, was not normally resident in the territory of the Member State of issue. ( )

60. In those judgments the Court took the view that the residence condition assumes special importance because it is indispensable if observance of the condition of fitness to drive is to be monitored and it is a precondition making it possible to establish whether a particular candidate has observed the other conditions imposed by Directive 91/439. ( ) Thus, in so far as the residence condition was not met at the date of issue, the principle of mutual recognition of driving licences is not undermined. ( )

61. I think that the condition under Article 5(1)(a) of Directive 91/439, like the residence requirement, has a particular importance and that, if it is shown that it has not been fulfilled, a Member State is entitled to refuse to recognise a D licence issued by another Member State.

62. I have shown that obtaining a B licence is the first of the minimum conditions which must be met for the purpose of obtaining a D licence. In my view, the EU legislature proceeds from the principle that a B licence constitutes an indispensable prior basis for obtaining a D licence. ( )

63. In that connection, it appears perfectly consistent to require a person to master the driving of vehicles in smaller categories before he can claim to be able to drive a vehicle in the category of coaches. The D licence is, in a way, an extension of the B licence, giving access to the driving of vehicles in a higher category.

64. The obtaining of a B licence is therefore here a basis which guarantees compliance with the minimum conditions imposed by Directive 91/439 on the Member State issuing the licence, and thus guarantees that the licence-holder is fit to drive and does not represent a danger.

65. In the present case, however, the basis constituted by the B licence is vitiated by a number of irregularities. As already noted, the B licence was issued by the Czech authorities even though that licence indicates that the residence requirement was not complied with and even though the holder’s first licence had been temporarily confiscated by reason of hazardous driving. I would point out, in this regard, that residence is of particular importance because it makes it possible to check that the applicant fulfils the other conditions laid down by Directive 91/439.

66. Consequently, it is perfectly reasonable to think that, when the Czech authorities issued the B licence, they were not in a position to verify whether Mr Apelt, who had been disqualified from driving in Germany, possessed the skills and knowledge necessary for driving and whether or not he constituted a danger to other road users in view of his record.

67. The Commission submits that, as the D licence was issued after the expiry of the period of prohibition on applying for a new licence and as the requirements for obtaining a D licence are more stringent than those for a B licence, the holder was all the more entitled in relation to category B. According to the Commission, therefore, the necessary conditions were fulfilled.

68. However, we have seen that the EU legislature has provided that any applicant for a licence in one category who already holds a licence in a different category may be exempt from the common provisions of points 2 to 4 of Annex II to Directive 91/439. ( ) In the present case, that amounts to not requiring an applicant for a D licence to take the tests which are common with the B licence because it is presumed that those tests were already passed when the B licence was issued.

69. It is thus all the more important that the B licence should have been issued in strict compliance with the minimum requirements.

70. Therefore, once again, if, as we have seen, the conditions for obtaining a B licence have not been fulfilled, there is no guarantee that the minimum conditions which are common to both categories of licence have been fulfilled. ( )

71. It would therefore be inconsistent with the objective of road safety to compel a Member State to recognise a D licence issued in those circumstances, even though it has not been established that the issuing Member State was in a position to satisfy itself that the licence-holder satisfied the minimum conditions required.

72. Therefore, once a Member State is entitled, on the basis of Article 8(4) of Directive 91/439, to refuse to recognise the validity of a B licence issued by the authorities of another Member State, I consider that it is also entitled to refuse to recognise the validity of a D licence issued on the basis of the first licence.

73. It would make no sense to accept that a disqualification applies, in that case, only to the B licence and not to driving coaches or buses, even though the non-recognition of that B licence arises from dangerous conduct on the part of the licence-holder, who, let it be remembered, was driving while drunk.

74. Consequently, in view of all of the foregoing, I take the view that Articles 1(2) and 8(2) and (4) of Directive 91/439, read in conjunction with Article 5(1)(a) thereof, must be interpreted as meaning that a Member State is entitled to refuse to recognise the validity of a driving licence issued by another Member State for categories B and D, in the case where the licence-holder was disqualified from driving in the first Member State after the B licence was issued, but in respect of an offence established before it was issued. The fact that the D licence was issued after the expiry of the period of prohibition on applying for a new licence, which accompanied that disqualification, is irrelevant in that connection.

75. In so far as I propose that the reply to the first question from the referring court should be in the affirmative, it is unnecessary to reply to the second question.

76. In any case, I am of the view that the Court has no jurisdiction to give a ruling on that second question.

77. We have seen that Article 11(4) of Directive 2006/126 has been applicable since 19 January 2009. ( )

78. The facts of the case in the main proceedings, however, relate to events which took place in 2006, with Mr Apelt’s disqualification in Germany and the issue of his Czech B licence, and in 2007, with the issue of his Czech D licence.

79. Therefore, as the material events predate the application of Article 11(4) of Directive 2006/126, I consider that the Court has no jurisdiction to give a ruling on the second question referred.

V – Conclusion

80. In view of all of the foregoing considerations, I propose that the Court give the following reply to the questions referred by the Landgericht Baden-Baden:

Articles 1(2) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, read in conjunction with Article 5(1)(a) of Directive 91/439, as amended, must be interpreted as meaning that a Member State is entitled to refuse to recognise the validity of a driving licence issued by another Member State for categories B and D, in the case where the licence-holder was disqualified from driving in the first Member State after the licence for category B was issued, but in respect of an offence established before it was issued.

The fact that the licence for category D was issued after the expiry of the period of prohibition on applying for a new licence, which accompanied that disqualification, is irrelevant in that connection.