JUDGMENT OF THE COURT (Second Chamber)

19 May 2011 ( )

(Directive 91/439/EEC – Mutual recognition of driving licences – Driving licence issued by a Member State in disregard of the residence condition – Refusal of recognition by the host Member State based solely on disregard of the residence condition)

In Case C‑184/10,

REFERENCE for a preliminary ruling under Article 267 TFEU, from the Bayerischer Verwaltungsgerichtshof (Germany), made by decision of 16 March 2010, received at the Court on 14 April 2010, in the proceedings

Mathilde Grasser

v

Freistaat Bayern,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues, President of the Chamber, A. Rosas (Rapporteur), U. Lõhmus, A. Ó Caoimh and P. Lindh, Judges,

Advocate General: Y. Bot,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 9 February 2011,

after considering the observations submitted on behalf of:

– Ms Grasser, by M. Wandt, Rechtsanwalt,

– Freistaat Bayern, by M. Niese, acting as Agent,

– the German Government, by N. Graf Vitzthum and T. Henze, acting as Agents,

– the European Commission, by G. Braun and N. Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 31 March 2011,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 1(2), 7(1)(b) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1), as amended by Commission Directive 2008/65/EC of 27 June 2008 (OJ 2008 L 168, p. 36) (‘Directive 91/439’).

2 The reference has been made in proceedings between Ms Grasser, a German national residing in Viereth-Trunstadt (Germany) who holds a driving licence issued in the Czech Republic, and the Freistaat Bayern (Free State of Bavaria), concerning a decision denying her the right to use her driving licence in Germany.

Legal context

European Union legislation

3 By virtue of the fourth recital in the preamble to Directive 91/439, it is necessary, on road safety grounds, for the minimum requirements for the issue of a driving licence to be laid down.

4 Article 1(1) and (2) of that directive is worded as follows:

‘1. Member States shall introduce a national driving licence based on the Community model described in Annex I or Ia, in accordance with the provisions of this Directive. …

2. Driving licences issued by Member States shall be mutually recognised.’

5 Under Article 7(1) of that directive:

‘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.’

6 In accordance with Article 7(5) of Directive 91/439, no person may hold more than one driving licence.

7 Article 8(2) and the first subparagraph of Article 8(4) of Directive 91/439 provide:

‘2. 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, exchange the licence for that purpose.

…

4. A Member State may refuse to recognise the validity of any driving licence issued by another Member State to a person who is, in the former State’s territory, the subject of one of the measures referred to in paragraph 2.’

8 The first paragraph of Article 9 of that directive provides:

‘For the purpose of this Directive, “normal” residence means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living.’

9 Article 12(3) of that directive states:

‘The Member States shall assist one another in the implementation of this Directive and shall, if need be, exchange information on the licences they have registered.’

National legislation

10 Paragraph 28(1) and (4) of the regulation on the authorisation of persons to drive on the highways (the regulation on driving licences) (Verordnung über die Zulassung von Personen zum Straßenverkehr (Fahrerlaubnis-Verordnung)) of 18 August 1998 (BGBl. 1998 I, p. 2214), as amended by the regulation of 7 January 2009 (BGBl. 2009 I, p. 29), is worded as follows:

‘(1) Holders of a valid [European Union] or [European Economic Area (EEA)] driving licence having their normal residence within the meaning of Paragraph 7(1) or (2) in Germany shall be authorised – subject to the restrictions laid down in subparagraphs (2) to (4) – to drive motor vehicles in that country within the limits authorised by their licence. ...

…

(4) The authorisation referred to in subparagraph 1 shall not apply to holders of a [European Union] or EEA driving licence:

…

(2) who, on the basis of entries appearing in the driving licence itself or of other incontestable information supplied by the issuing Member State, had, on the date of issue, their normal residence in the national territory, unless they obtained the licence during a stay of at least 6 months as scholars or students within the meaning of Paragraph 7(2),

(3) whose driving licence has, in Germany, been provisionally or finally withdrawn by a court, or has been withdrawn by an immediately enforceable or definitive decision of an administrative authority, who have been definitively refused a driving licence, or whose driving licence has not been withdrawn solely because they have surrendered it in the meantime,

…

In the cases covered by the first sentence above, subparagraphs (2) and (3), the authority may adopt a declaratory administrative measure to the effect that the licence-holder is not entitled to drive’.

The facts giving rise to the dispute in the main proceedings and the question referred for a preliminary ruling

11 Ms Grasser, born in 1955, who is of German nationality and is resident in Viereth-Trunstadt, in Germany, has never held a German driving licence.

12 On 31 May 2006, Ms Grasser obtained a driving licence issued by the municipal authority of Plzeň (Czech Republic) in which an entry indicates the licence-holder’s place of residence as ‘Viereth-Trunstadt, Spolková republika Německo’ (‘Viereth-Trunstadt, Federal Republic of Germany’).

13 In a letter of 3 April 2009, the German authority responsible for the issuing of driving licences (‘the authority’) asked Ms Grasser to present her driving licence in order that it could be noted on the licence that she was not entitled to drive in Germany, since the residence condition had not been observed when the licence was issued. The authority also heard the applicant in order to give a decision revoking her right to drive.

14 Ms Grasser asked the authority to grant her the right to use her Czech driving licence in Germany, since she had never committed a driving offence. Failing that, she asked to be issued with a German driving licence. Those requests were refused by the authority.

15 By decision of 3 June 2009, the authority banned Ms Grasser from using her Czech driving licence in Germany and required her to present that licence so that the fact that she is not entitled to drive could be entered on it. If she failed to do so, the licence would be confiscated.

16 On 1 July 2009, Ms Grasser brought an action for annulment in the Verwaltungsgericht Bayreuth (Bayreuth Administrative Court) against the decision of 3 June 2009. By a judgment of 22 September 2009, that court annulled the decision. The Verwaltungsgericht Bayreuth considered that disregard of the residence condition may not, in and of itself, constitute a reason for non-recognition of the right to drive in Germany. According to that court, in order to justify such a refusal of recognition, Ms Grasser, in addition to not observing that residence condition, would also have had to be the object of a measure withdrawing, suspending, cancelling or restricting a previous driving licence.

17 The Freistaat Bayern brought an appeal against that judgment before the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) which, in the circumstances, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are Articles 1(2) and 8(2) and (4) of Directive 91/439/EEC to be interpreted as meaning that a host Member State is entitled to refuse to recognise a driving licence issued by another Member State where entries appearing in the driving licence show that Article 7(1)(b) of that directive has been infringed, if the host Member State has not previously applied to the holder of the licence a measure under Article 8(2) of Directive 91/439/EEC?’

Consideration of the question referred

18 By its question the referring court asks, in essence, whether Articles 1(2), 7(1)(b) and 8(2) and (4) of Directive 91/439 must be interpreted as precluding a host Member State from refusing to recognise in its territory a driving licence issued by another Member State, where it is established, on the basis of entries appearing in that licence, that the normal residence condition, laid down in Article 7(1)(b) of that directive, has not been observed, but the host Member State has not applied any measure under Article 8(2) of that directive to the licence holder.

19 According to the Court’s settled case-law, Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on those Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it (Case C‑321/07 Schwarz [2009] ECR I‑1113, paragraph 75 and case-law cited).

20 It is for the Member State of issue to investigate whether the minimum requirements imposed by European Union law, particularly those relating to residence and fitness to drive, laid down in Article 7(1) of that directive, have been satisfied and, therefore, whether the issue of a driving licence is justified (Schwarz, paragraph 76 and case-law cited).

21 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 for issue laid down by that directive have been met. The possession of a driving licence issued by one Member State has to be regarded as constituting proof that, on the day that licence was issued, its holder fulfilled those conditions (Schwarz, paragraph 77 and case-law cited).

22 However, it is apparent from Joined Cases C‑329/06 and C‑343/06 Wiedemann and Funk [2008] ECR I‑4635 and Joined Cases C‑334/06 to C‑336/06 Zerche and Others [2008] ECR I‑4691 that Articles 1(2), 7(1) and 8(2) and (4) of Directive 91/439 must be interpreted as not always precluding a Member State from refusing to recognise in its territory the right to drive stemming from a driving licence issued subsequently to a licence being withdrawn by another Member State (see, to that effect, order of 9 July 2009 in Case C‑445/08 Wierer, paragraph 50).

23 A Member State may refuse to recognise in its territory the right to drive stemming from a driving licence issued subsequently to a licence being withdrawn 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 (see, to that effect, Wiedemann and Funk, paragraph 73, and Zerche and Others, paragraph 70).

24 Thus, in so far as the residence condition was manifestly not observed by the Member State of issue, the principle of mutual recognition of driving licences is not undermined.

25 In her written observations, Ms Grasser submitted that, in contrast to the holders of the driving licences in question in Wiedemann and Funk and Zerche and Others, who had been the object of a measure withdrawing a previous licence, she had never previously held a driving licence and had, therefore, not been the object of any such measure. For that reason, in her submission, the analysis carried out in those judgments is not transferable to her case and the disregard of the residence condition does not justify the non-recognition of her Czech driving licence.

26 In that regard, it should be noted that the European Union legislature has taken the view, in accordance with the fourth recital in the preamble to Directive 91/439, that it was necessary, on road safety grounds, for the minimum requirements for the issue of a driving licence to be laid down. Those minimum requirements include, under Article 7(1)(b) of that directive, that of residence, according to which the issue of a driving licence is subject to normal residence in the territory of the Member State issuing the licence, or to evidence of having been studying there for at least six months.

27 The Court has already held that the residence condition helps, inter alia, the fight against ‘driving-licence tourism’, in the absence of complete harmonisation of the laws of the Member States relating to the issuing of driving licences. Moreover, that condition is indispensable if observance of the condition of fitness to drive is to be monitored (Wiedemann and Funk, paragraph 69, and Zerche and Others, paragraph 66).

28 Furthermore, as a precondition making it possible to establish whether an applicant has observed the other conditions imposed by Directive 91/439, the residence condition, which determines the Member State of issue, assumes special importance in relation to the other conditions laid down by that directive (Wiedemann and Funk, paragraph 70, and Zerche and Others, paragraph 67).

29 As the Advocate General observed at point 33 of his Opinion, that directive makes no distinction, with regard to the residence condition of an applicant for a driving licence, between the first issue of a driving licence and the issue of a driving licence following the withdrawal of a previous licence. In both cases, the issue of the driving licence is subject to normal residence in the territory of the Member State issuing the licence, or to evidence of having been studying there for at least six months.

30 It should be noted that the residence condition also assumes special importance in the case of the first issue of a driving licence.

31 If that condition is not met in such a case, it is difficult, if not impossible, for the competent authorities of the Member State of issue to establish whether the other conditions imposed by Directive 91/439 have been met. In the absence of any such verification, it is possible that the holder of the licence thus issued does not possess, inter alia, the knowledge and skills required for driving and, therefore, constitutes a threat to road safety. Moreover, there is a risk that the principle according to which no person may hold more than one driving licence, as stated in Article 7(5) of that directive, would also be undermined.

32 The fact that the host Member State has not applied to the licence holder any measure under Article 8(2) of that directive is irrelevant in that regard.

33 Having regard to the foregoing, the answer to the question referred is that Articles 1(2), 7(1)(b) and 8(2) and (4) of Directive 91/439 must be interpreted as not precluding a host Member State from refusing to recognise in its territory a driving licence issued by another Member State, where it is established, on the basis of entries appearing in that licence, that the normal residence condition, laid down in Article 7(1)(b) of that directive, has not been observed. The fact that the host Member State has not applied any measure under Article 8(2) of that directive to the licence holder is irrelevant in that regard.

Costs

34 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

Articles 1(2), 7(1)(b) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Commission Directive 2008/65/EC of 27 June 2008, must be interpreted as not precluding a host Member State from refusing to recognise in its territory a driving licence issued by another Member State, where it is established, on the basis of entries appearing in that licence, that the normal residence condition, laid down in Article 7(1)(b) of that directive, has not been observed. The fact that the host Member State has not applied any measure under Article 8(2) of that directive to the licence holder is irrelevant in that regard.

[Signatures]