Opinion of Mr Advocate General Léger delivered on 16 July 1998. - Criminal proceedings against Ibiyinka Awoyemi. - Reference for a preliminary ruling: Hof van Cassatie - Belgium. - Driving licence - Interpretation of Directive 80/1263/EEC - Failure to comply with the obligation to exchange a licence issued by one Member State to a national of a non-member country for a licence from another Member State in which that person is now resident - Criminal penalties - Effect of Directive 91/439/EEC. - Case C-230/97.



European Court reports 1998 Page I-06781



Opinion of the Advocate-General

1 Should the First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence (1) be construed as precluding a Member State from requiring a national of a non-member country settling in its territory from exchanging the driving licence issued to him by another Member State for a driving licence of the State in which he has settled within a period of one year, on penalty of punishment by imprisonment or a fine for the offence of driving without a licence?

2 In essence, that is the question which the Belgian Hof van Cassatie (Court of Cassation), with which Mr Awoyemi had lodged an appeal in cassation against a decision given on 4 January 1995 by the Correctionele Rechtbank te Brugge (Bruges Criminal Court), is referring to the Court for a preliminary ruling.

3 The Court has already had occasion to rule on a related question in its judgment in Case C-193/94 (2) on the criminal penalties imposed on a Community national in a similar context.

The directives on driving licences

4 As stated in the first recital in its preamble, Directive 80/1263, which is only the first step in the harmonisation of driving licences, seeks to contribute to improving road traffic safety and to assist the movement of persons settling in a Member State other than that in which they have passed a driving test, or moving within the Community.

5 To that end, the directive harmonised the relevant national rules, particularly as regards national systems governing the issue of driving licences, vehicle categories and conditions of licence validity. It also established a Community model licence and introduced a system of mutual recognition of licences by Member States as well as the exchange of licences when holders transfer their residence or place of work from one Member State to another.

6 Under Article 6 of that directive, the issue of a driving licence is subject, first, to passing a practical and theoretical test and meeting medical standards, and second, to having a normal residence in the territory of the Member State issuing the licence if the legislation of the Member State concerned so requires.

7 Article 8(1) of the directive provides 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 is to 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 the surrender of his licence, the State in which he has taken up normal residence is to issue him with a Community model driving licence for the corresponding category or categories without requiring him, inter alia, to pass a practical and theoretical test or to meet medical standards. However, that Member State may refuse to exchange the licence if its national regulations, including medical standards, preclude the issue of the licence.

8 Council Directive 91/439/EEC of 29 July 1991 on driving licences (3) represented the next stage in the harmonisation of national provisions, with particular reference to the conditions governing the issue of licences and to vehicle categories. It abolishes the obligation to exchange licences on taking up normal residence in another Member State (4) and replaces that obligation (5) with the mutual recognition of driving licences (Article 1(2)). The exchange of a valid driving licence issued by a Member State to a holder who has taken up normal residence in another Member State is thus merely discretionary (Article 8(1)).

9 Article 12 of Directive 91/439 requires Member States, after consulting the Commission, to adopt before 1 July 1994 the laws, regulations or administrative provisions necessary to comply with the directive as of 1 July 1996. Article 13 repeals Directive 80/1263 as of the same date.

Relevant national legislation

10 In Belgium, Article 2 of the Royal Decree of 6 May 1988 provides as follows:

`1. A Belgian driving licence may be issued to persons who:

1º are registered in the population register or in the aliens' register of a Belgian municipality and possess the following documents issued in Belgium:

(a) a Belgian national's or alien's identity card;

(b) proof of registration in the aliens' register;

(c) a residence permit of a national of a Member State of the European Economic Community;

(d) a vehicle registration certificate;

2º possess one of the following documents issued in Belgium:

(a) a diplomatic identity card;

(b) a consular identity card;

(c) a special residence permit.

2. The persons referred to in Article 1(1º) may drive a motor vehicle only while covered by a Belgian driving licence. For a period of one year calculated from the date of their entry in the population register or the aliens' register of a Belgian municipality, they may, however, drive under a valid foreign national driving licence issued by one of the Member States of the European Economic Community. Other drivers of motor vehicles must hold and carry a Belgian driving licence or a foreign national or international driving licence, subject to the conditions laid down by the provisions applicable to international road traffic.'

Facts and procedure before the national court

11 Mr Awoyemi, a Nigerian national, has been resident in Belgium since 17 December 1990 where he is in paid employment. He was stopped by the police while driving a motor vehicle at Ostend on 27 July 1993 and could only produce a driving licence issued by the United Kingdom authorities valid from 11 April 1990 to 26 January 2003.

12 On 4 January 1995, the Correctionele Rechbank te Brugge found him guilty on appeal and fined him BFR 2 000 for having, at Ostend, driven a motor vehicle on a public highway without being in possession of a valid driving licence pursuant to Article 2 of the Royal Decree of 6 May 1988.

13 Mr Awoyemi lodged an appeal in cassation against that decision, relying on his valid Community model driving licence issued in the United Kingdom and on the judgment in Skanavi and Chryssanthakopoulos.

14 It is clear from the grounds of the order for reference that the Belgian Hof van Cassatie considered that the Royal Decree of 6 May 1988 had been adopted in particular to transpose into national law the first subparagraph of Article 8(1) of Directive 80/1263, which expressly states that if the holder of a driving licence issued by a Member State takes up normal residence in another Member State, his licence is only valid there for up to a year following the taking up of residence. However, it noted that Directive 91/439 repealed that provision and that as of 1 July 1996 the exchange of driving licences was no longer an obligation. It was uncertain whether Directive 91/439 could govern past situations. Lastly, it wished to ascertain whether the approach taken by the Court in Skanavi and Chryssanthakopoulos could be applied to the particular facts of the present case, in relation to a non-Community national who holds a driving licence issued by a Member State. Hence the national court's decision to make a reference to the Court for an interpretation of those provisions of Community law and seek a preliminary ruling on the following questions:

`(1) Do the provisions of the First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence, in particular Article 8 thereof, preclude the driving of a motor vehicle by a person who is not a citizen of the European Union but who holds a national driving licence or a Community model driving licence issued by a Member State and who could have obtained a licence from the host State in exchange for it, but did not do so within the prescribed period, from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine?

(2) Do Article 1(2) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, providing for mutual recognition for driving licences issued by the Member States, and the right provided for in Article 8(1) of that directive to exchange licences mean that a person who is not a citizen of the European Union, but who holds a national driving licence or a Community model driving licence issued by a Member State and has his normal residence in the territory of another Member State, has the right, even where there are no national rules in this regard, to rely on the application of those provisions in court proceedings as from 1 July 1996?

(3) If the answer to Question 2 is in the affirmative, do Articles 1(2) and 8(1) of Council Directive 91/439/EEC of 29 July 1991 on driving licences have retroactive effect in the sense that they preclude the driving of a motor vehicle by a person who is not a citizen of the European Union but who holds a national driving licence or a Community model driving licence issued by a Member State and who could have obtained a licence from the host State in exchange for that licence, but on 27 July 1993 had not made that exchange within the prescribed period, from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine?'

Answers to the questions submitted

Question 1

15 The first question amounts to determining whether the approach taken by the Court in Skanavi and Chryssanthakopoulos can be applied to the particular facts of the present case.

16 The Court held in that judgment that although the obligation to exchange driving licences imposed by Article 8 of Directive 80/1263 was an obstacle to the free movement of persons, it was not contrary to Article 52 of the Treaty, (6) as `in view of the complexity of the matter and the differences between the legislation of the Member States, the Council was empowered to achieve the necessary harmonisation progressively'. (7)

17 The Court also stated that, in the absence of Community rules laying down penalties to be imposed for failure to comply with the obligation to exchange licences, the Member States remain, in principle, competent to legislate. `However, it follows from settled case-law concerning non-compliance with formalities for establishing the right of residence of an individual enjoying the protection of Community law that Member States may not impose a penalty so disproportionate to the gravity of the infringement that this becomes an obstacle to the free movement of persons; this would be especially so if the penalty consisted of imprisonment (see, in particular, Case C-265/88 Messner [1989] ECR 4209, paragraph 14). In view of the effect which the right to drive a motor vehicle has on the actual exercise of the rights relating to the free movement of persons, the same considerations must apply with regard to breach of the obligation to exchange driving licences.' (8)

18 The Court accordingly held that: `In view of the resultant consequences, such as may arise under the national legal system in question, Article 52 of the Treaty precludes the driving of a motor vehicle by a person who could have obtained a licence from the host State in exchange for the licence issued by another Member State but who did not make that exchange within the prescribed period from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine.' (9)

19 The Court therefore took the view, in accordance with settled case-law, that it was only because of the adverse impact on the right of freedom of movement and of establishment guaranteed to Community workers under Articles 48 and 52 of the EC Treaty that the infringements laid down and punished by national provisions might be incompatible with Community law.

20 It is not disputed that Mr Awoyemi is the holder of a driving licence issued by the competent authorities in the United Kingdom, which was valid at the material time.

21 Directive 80/1263 applies to holders of Community model driving licences issued by Member States in accordance with the provisions of that directive, irrespective of their nationality. (10)

22 Consequently, Mr Awoyemi clearly falls within the scope ratione personae of Directive 80/1263.

23 However, it is also undisputed that he is not a Community national. Accordingly, he cannot validly rely on the right to freedom of movement conferred on Community workers by the Treaty, in particular Articles 48 or 52 thereof.

24 Therefore, the legal position of a non-Community national with regard to the penalties that may be imposed on him in the event of non-compliance with the obligations laid down by Article 8(1) of Directive 80/1263 does not fall within the scope of Community law, but solely within that of national law.

25 I therefore suggest that the Court's answer to the first question should be that neither Directive 80/1263 nor the provisions of the Treaty preclude, in a case such as this, the offence with which the party concerned is charged from being the one provided for by the national legislation in question, namely driving without a licence, which is punishable by imprisonment or a fine.

Questions 2 and 3

26 Questions 2 and 3 will be answered together because they are inextricably linked. By those questions, the national court is asking the Court whether, where they have not been transposed into its domestic legal system, Articles 1(2) and 8 of Directive 91/439 can be directly relied upon by a non-Community national holding a Community model driving licence issued by a Member State, who has taken up normal residence in a Member State other than that in which the licence was issued, but who has not exchanged his driving licence within the period prescribed by Directive 80/1263, to challenge the imposition of a term of imprisonment or a fine for the offence of driving without a licence committed under Directive 80/1263.

27 As stated previously, Article 12 of Directive 91/439 provided that the laws, regulations and administrative provisions necessary to comply with that directive as of 1 July 1996 were to be adopted by Member States before 1 July 1994. Further, Article 13 of that directive provided that Directive 80/1263 would only be repealed as of 1 July 1996.

28 Consequently, the obligation to exchange driving licences laid down by Article 8 of Directive 80/1263 was mandatory until 1 July 1996. Therefore, individuals cannot directly rely in court proceedings on any rights that might be conferred on them by Articles 1(2) and 8 of Directive 91/439 prior to that date. In other words, these provisions have no retroactive effect.

29 In view of the particular facts of the present case, the Commission and the United Kingdom are unsure whether the question concerning the interpretation of Directive 91/439 is relevant for the purpose of deciding the case. They point out that the offence that Mr Awoyemi was alleged to have committed in the main proceedings occurred on 27 July 1993 and that the case was judged by the Correctionele Rechtbank te Brugge on 4 January 1995, at a time when Directive 91/439 was not yet in force.

30 In my view, the national court is uncertain how to construe Articles 1(2) and 8 of Directive 91/439, as it considers that it has to apply the principle that exists in its domestic law of the retroactivity of the more lenient provisions of criminal law. This principle, which exists in some national legal systems, requires domestic criminal courts to apply immediately any new criminal provisions that are more lenient to offences awaiting final judgment that were committed before such provisions came into force. As a consequence, the national court believes that it may be obliged to disregard the provisions of its domestic law if contrary to the provisions of Directive 91/439.

31 In similar circumstances, (11) the Court has consistently held (12) that `it is for the national court to determine both the need for a preliminary ruling in order to enable it to give judgment and the relevance of the questions that it submits to the Court'. (13)

32 Although the Court has clearly stated that in Community law there is no principle equivalent to that of immediate application of the more lenient criminal provisions (14) and that, in the absence of rules to harmonise penalties for breach of Community law, it is for the domestic legal system of each Member State to determine them, the Court none the less considers that the Community-law principle of equivalence does not preclude breaches of Community law from being penalised under substantive and procedural conditions analogous to those applicable to infringements of national law of a similar nature and importance. (15)

33 The answer to this question, referred by the national court, on the interpretation of Articles 1(2) and 8 of Directive 91/439 and on the obligation to attribute direct effect to them, may therefore prove useful to the national criminal court which is required, under the domestic-law principle of the retroactive effect of the more lenient criminal provisions, to apply the provisions of Directive 91/439, which may be more favourable to a licence holder who has not exchanged his licence, for an offence committed while Directive 80/1263 was in force. The question should therefore be answered.

34 It is settled case-law (16) that individuals have a right to rely on a directive in proceedings against a Member State only when the State has failed to take the required implementing measures or has adopted measures that are incompatible with the directive.

35 Consequently, in the context of the problem raised - retroactive application of a more lenient criminal provision - the national court is required to check whether the relevant provisions of Directive 91/439 have been transposed into its domestic legal system. In the wording of its second question, the national court implies that transposition was not carried out within the prescribed period. I therefore take it to have been established that Articles 1(2) and 8 of the aforementioned directive were not transposed and did not enter into force in the domestic legal system on 1 July 1996.

36 On the principle of direct applicability, the Court has consistently held that only provisions that `appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State'. (17)

37 It can hardly be doubted that Articles 1(2) and 8 of Directive 91/439, as far as the definition of the right which they confer on individuals is concerned, are sufficiently precise and unconditional.

38 It will be recalled that those provisions very clearly state that driving licences issued by Member States are mutually recognised and that the holder of such a driving licence is no longer required to exchange his licence when taking up normal residence in a Member State other than that which issued it. The negative obligation thus imposed on Member States leaves them no discretion as to the measures to be adopted.

39 Moreover, that prohibition on requiring the exchange of Community model driving licences is clearly set forth in the first recital in the preamble to Directive 91/439, which states that there should be a `Community model national driving licence mutually recognised by the Member States without any obligation to exchange licences'. (18) That measure fully reflects the dual aim of that second harmonisation directive which, as we have seen, is to contribute to improving road safety and to facilitate the movement of persons settling in a Member State other than that in which they have passed a driving test.

40 The fact that the holder of a driving licence issued by a Member State is not a Community national is irrelevant inasmuch as Directive 91/439 harmonises once and for all the conditions for issuing driving licences and requires the mutual recognition by Member States of driving licences issued by another Member State, regardless of the holder's nationality.

41 Moreover, the Court has already implicitly held in paragraph 26 of the judgment in Skanavi and Chryssanthakopoulos that those provisions had direct effect and had to be construed as meaning that, as from 1 July 1996, driving licences issued by a Member State would be mutually recognised by the other Member States without the need for any formalities.

42 I therefore suggest that the Court's answer to the second question should be that, where they have not been transposed into the domestic legal system, and in view of the principle that exists in the domestic law of some Member States of immediate application of the more lenient criminal provisions, Articles 1(2) and 8(1) of Directive 91/439 preclude the driving of a motor vehicle, at a time when Directive 80/1263 was still in force, by the holder of a Community model driving licence who is not a national of a Member State and who has not exchanged his licence for a licence from the Member State in which he has settled within the prescribed period, from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine.

Conclusion

43 In the light of those considerations, I therefore suggest that the Court give the following answers to the questions referred by the Belgian Hof van Cassatie:

(1) Neither the provisions of the First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence, in particular Article 8 thereof, nor the provisions of the EC Treaty preclude the driving of a motor vehicle by a person who is not a European Union citizen but who holds a national driving licence or a Community model licence issued by a Member State, and who in exchange for his licence could have obtained a licence of the State in which he has settled but has not made that exchange within the prescribed period, from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine.

(2) Where they have not been transposed into the domestic legal system, and in view of the principle that exists in the domestic law of some Member States of immediate application of the more lenient criminal provisions, Articles 1(2) and 8(1) of Council Directive 91/439/EEC of 29 July 1991 on driving licences preclude the driving of a motor vehicle, at a time when Directive 80/1263 was still in force, by the holder of a Community model driving licence who is not a national of a Member State and who has not exchanged his licence for a licence from the Member State in which he has settled within the prescribed period, from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine.

(1) - OJ 1980 L 375, p. 1.

(2) - Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929.

(3) - OJ 1991 L 237, p.1.

(4) - First recital in the preamble.

(5) - Which, according to the ninth recital in the preamble to that directive, constitutes an obstacle to the free movement of persons and is inadmissible in the light of the progress made towards European integration.

(6) - Paragraph 28.

(7) - Ibidem, paragraph 27.

(8) - Ibidem, paragraph 36.

(9) - Ibidem, paragraph 39.

(10) - See, in particular, Articles 1 and 8(1) thereof.

(11) - See, in particular, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361 and Case C-341/94 Allain [1996] ECR I-4631, paragraph 12.

(12) - See Bordessa, paragraph 10, and Allain, paragraph 13.

(13) - See Skanavi and Chryssanthakopoulos, paragraph 18.

(14) - See, in particular, Case 234/83 Gesamthochschule Duisburg v Hauptzollamt München-Mitte [1985] ECR 327, paragraph 20.

(15) - See, in particular, Allain, paragraph 29.

(16) - See, in particular, Case 148/78 Ratti [1979] ECR 1629, Case 102/79 Commission v Belgium [1980] ECR 1473 and Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 11.

(17) - Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53, paragraph 25 (emphasis added).

(18) - Emphasis added.