Commission interpretative communication on Community driver licensing
Date: 2002-03-28
Institutions: European Commission
Subjects: European driving licence, driving licence, harmonisation of standards, mutual recognition principle, third country

28.3.2002

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COMMISSION INTERPRETATIVE COMMUNICATION ON COMMUNITY DRIVER LICENSING

(2002/C 77/03)

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

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

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

In this communication:

Definitions

(in combination with the number of an Article): means the Treaty establishing the European

‘EC’
Community as last amended by the Treaty of Amsterdam;

‘EEA’: means the European Economic Area;

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

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

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

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

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

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

‘ECJ’: means the European Court of Justice.

(1) OJ L 375, 31.12.1980, p. 1.
(2) OJ L 237, 24.8.1991, p. 1.

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Part I

DESCRIPTIVE

SUMMARY

OF

COMMUNITY

DRIVER

LICENSING

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

A. LEGAL FRAMEWORK: EC LEGISLATION AND CASE-LAW

A.1. Council Directive 80/1263/EEC on the introduction

of a Community driving licence (3)

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

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

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

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

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

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

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

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

list of harmonised Community

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

adapatations. The Directive

and vehicle

codes

A.3. Case-law

— ECJ Judgment 16/78 — Choquet

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

Judgment was

impetus

for

— ECJ Judgment C-193/94 — Skanavi

it

interprets

specific aspects of

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

(3) OJ L 375, 31.12.1980, p. 1.
(4) OJ L 337, 24.12.1994, p. 86.
(5) OJ L 235, 17.9.1996, p. 1.

(6) OJ L 175, 13.7.1996, p. 34.
(7) OJ L 150, 7.6.1997, p. 41.
(8) OJ L 91, 12.4.2000, p. 1.
(9) OJ L 237, 21.9.2000, p. 45.

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— ECJ Judgment C-230/97 — Awoyemi

drivers into two distinct groups, which are defined as ‘Group 1’
and ‘Group 2’ licences (see definitions).

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

down

laid

B. COMPARATIVE VIEW OF ASPECTS WHICH HAVE NOT BEEN

HARMONISED

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

the Community level. For most of

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

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

the relevant

B.1. Period of validity and periodicity of medical exam-

inations

General exemption in Article 1(3)

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

— Belgium,

— Germany,

— France,

— Austria.

intervals

Different
for medical examinations derive from
provisions in Annex III of the Second Directive. Annex III,
point 1 of the Second Directive introduces a classification of

Annex III, point 3 lays down that applicants for Group 1
licences have to undergo a medical examination only in case
substantial doubts with respect to the applicants' fitness to
drive arise in the course of the application procedure. After a
driving licence has been issued, no mandatory medical exam-
ination is prescribed for holders of Group 1 licences. For
holders of Group 2 licences Annex III point 4 stipulates that
they have to undergo a medical examination before first issue
the
of
imposition of periodic
specifying
particular intervals.

such a licence. Thereafter,

the Directive foresees

examinations without

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

Comparative view of national provisions as regards the validity
of licences

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

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

Group 1:

unlimited validity;

Group 2:

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

Denmark:
11.3.1997)

(Articles

45-46,

Bekendtgorelse

om korekort,

Group 1:

valid up to the holder's 70th birthday;

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

for one year when the holder is older than
80.

Group 2:

valid up to the holder's 50th birthday;

for five years when the holder is 50-70;

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

for one year when the holder is older than
80.

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Germany: (§ 23 Fahrerlaubnisverordnung, 26.8.1998)

Group 1:

unlimited validity;

C1, C1E:

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

for three years when the holder is 60-69;

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

C, CE:

valid for five years.

Italy: (Article 126, Codice della Strada)

D1, D, D1E, DE: valid for five years; when the holder is
for five

46-49: up to his 50th birthday;
years when the holder is older than 50.

Group 1:

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

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

Group 1:

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

C, CE:

Group 2, B+E
and B
professional:

valid for five years until the holder's 65th
birthday; thereafter for three years.

(Article 16-17, RD 772/97 — Reglamento General de

Spain:
Conductores, 30.5.1997)

Group 1:

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

for five years when the holder is 45-70;

for two years when the holder is older than
70.

Group 2:

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

for three years when the holder is 45-60;

for two years when the holder is older than
60.

for five years when the holder is 51-70;

for three years when the holder is older
than 70.

valid for five years up to the holder's 65th
birthday;

for two years when the holder is older than
65.

D, DE:

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

for one year when the holder is 60-65;

no renewal after the age of 65.

Luxembourg: (Règlement grand ducal, 11.8.1996)

Group 1:

valid up to the holder's 50th birthday;

for 10 years when the holder is 51-70;

for three years when the holder is older
than 70;

for one year when the holder is older than
80.

Group 2:

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

for five years when the holder is older than
50;

for three years when the holder is older
than 70;

no renewal after the age of 75.

unlimited validity;

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

for two years when the holder is 60-76;

Netherlands: (Article 122 WVW 1994)

for one year when the holder is older than
76.

Validity:

Group 1:

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

for three years when the holder is 60-69;

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

three-10 years

valid for
(determined by
medical check) up to the holder's 60th
birthday;

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

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

for 5 years when the holder is older than
64.

Group 2:

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

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

for five years when the holder is older than
64.

France:

Group 1:

Group 2:

Ireland:

Group 1:

Group 2:

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Periodical medical examinations:

Periodic medical examination:

Group 1:

Group 2:

at the age of 70; at five yearly intervals
thereafter.

the age of 70; at 5 yearly intervals

at
thereafter (under revision).

Austria: (Article 20-21 Führerscheingesetz 30.10.1997)

Group 1:

Group 2:

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

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

for two years when the holder is older than
60.

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

at the age of 45; at five yearly intervals
thereafter.

Group 1:

Group 2:

Sweden:

Validity:

Group 1:

for 10 years.

Group 2:

for 10 years.

Periodical medical examination:

Group 1:

at the age of 70.

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

Group 1:

valid up to the holder's 65th birthday;

Group 2:

at the age of 45;
at five yearly intervals thereafter.

for five years when the holder is older than
65;

United Kingdom:

for two years when the holder is older than
70.

Validity:

Group 1:

C, CE:

valid up to the holder's 40th birthday;

licence: until

Paper
birthday; plastic card licence: 10 years;

the holder's 70th

for five years when the holder is older than
40;

for three years when the holder is older
than 65;

for two years when the holder is older than
68.

D, DE:

valid up to the holder's 40th birthday;

for trhee years when the holder is older
than 70.

Group 2:

valid until the holder's 45th birthday;

for five years when the holder is older than
45;

for 1 year when the holder is older than 65.

for five years when the holder is older than
40;

no renewal when the holder is older than
65.

Periodic medical examinations:

Group 1:

at the age of 70; at three-yearly intervals
thereafter

Group 2:

at the age of 45;

Finland: (Article 33, Decree 5.1.1996)

Validity:

B:

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

for five years when the holder is older than
70.

A1, A, C1, C:

valid up to the holder's 70th birthday;

C1E, CE, D1,
D1E, D, DE:

for five years when the holder is older than
70.

valid up to the holder's 70th birthday;

no renewal when the holder is older than
70.

Norway:

Group 1:

Group 2:

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

every year when the holder is older than
65.

valid until the holder's 100th birthday.

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

for five years when the holder is older than
60;

for one year when the holder is older than
70.

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

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

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

— Introduction of subcategories — Article 3(2)

the Second Directive stipulates that

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

B.2. Equivalences of vehicle categories — Article 10

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

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

In particular,

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

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

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

In exchange, driving licences

still circulating.

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

A1:

B1:

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

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

C1:

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

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

D1:

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

D1+E: combinations

of

buses which

the maximum authorised mass of

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

The following subcategories have been introduced in the
Member States:

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

Denmark: no subcategories;

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

Greece: A1;

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

France: A1, B1;

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

Italy: A1;

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

(11) The precise wording of the definitions derives from a combined

reading of Articles 3(2) and 3(3) of the Second Directive.

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

Netherlands: no subcategories;

Austria: C1, C1+E;

Portugal: A1;

Spain:

France:

Ireland:

Italy:

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

B1 with an A or with A1 licence

B1 only with a B licence

B1 with an A or A1 licence

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

Luxembourg:

B1 only with a B licence

Sweden: A1;

Netherlands:

B1 only with a B licence

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

Austria:

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

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

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

restrictive
two Member

for
States

rules

Germany:

Spain:

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

under

driven

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

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

— Driving a vehicle of category B1 with an A1 or A licence —

Article 5(3)(a)

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

Belgium:

B1 only with a B licence

Denmark:

Germany:

Greece:

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

B1 only with a B licence (§ 6 Fahrer-
laubnisverordnung 18.8.1998)

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

Portugal:

B1 with an A or A1 licence

Finland:

B1 with an A licence

United
Kingdom:

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

Norway:

B1 only with a B licence.

— Driving a vehicle of category A1 with a B licence — Article

5(3)(b)

the entitlement

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

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

Belgium:

Spain:

France:

Italy:

Austria:

two years of practical experience with a
B licence

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

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

the entitlement has been introduced as
such with no additional requirements

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

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— Driving a vehicle of category C1 or D1 with a B licence —

B.4. Aspects relating to minimum ages

Article 5(4)

the European Commission,

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

authorise

Only the United Kingdom has introduced this entitlement.

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

No Member State has introduced this entitlement.

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

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

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

Germany:

direct access not possible before the age
of 25

Ireland:

Spain:

direct access never possible, two years
of
always
experience
required

practical

is

direct access never possible, two years
of
always
experience
required.

practical

is

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

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

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

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

Germany:

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

Ireland:

17 years; no additional requirements

Austria:

United
Kingdom:

17 years in the framework of ‘Vorge-
zogene Lenkberechtigung’ (accompanied
driving);

17 years; no additional requirements.

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

— Recognition of B licences issued to holders of less than 17 years

of age — Article 6(3)

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

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

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

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

(12) Article 6(1)(b) in combination with Annex II, point 8.1.2. of the
Second Directive provides for the following distinction between
direct and progressive access to heavy motorcycles:
progressive access: access to the driving of motorcycles with a power
exceeding 25 kW or a power/weight ratio exceeding 0,16 kW/kg
shall be subject
to a minimum of 2 years experience on a
motorcycle with a lower specification under an A licence.
direct access: the requirement as to previous experience may be
waived if the candidate is at least 21 years old, subject to the
candidate's passing a specific test of skills and behaviour.

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

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

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

B.7. Provisional licences and certificates

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

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

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

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

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

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

Paper model (Annex I)

Plastic card model (Annex Ia)

Belgium

Greece

Spain
(plastic card in preparation)

France

Ireland

Luxembourg

Netherlands

Austria

Liechtenstein
(plastic card in preparation)

Denmark

Germany

Italy

Portugal

Finland

Sweden

United Kingdom

Norway

Iceland

the Member States, e.g.

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

B.8. Endorsements on licence documents

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

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

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

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C. OVERVIEW OF EXISTING DRIVING LICENCE CATEGORIES

Group 1

Category A

Category B

Category B+E

Motorcycles: a cubic capacity exceeding
125 cm3
exceeding
and a power
11 kW;

Heavy motorcycles: a power exceeding
ratio
25 kW or
power/weight
a
exceeding 0,16 kW/kg (access:
either
21 years of
age or 2 years of
experience on a ‘light’ A)

Motor vehicles with a maximum
authorised mass
exceeding
3 500 kg and less than nine seats;
they may be
combined with a
trailer not exceeding 750 kg;

not

Combination of vehicles consisting
of a tractor vehicle in category B
and a trailer, where the combi-
nation does not
come within
category B

not

a maximum
combinations: with
authorised mass
exceeding
3 500 kg; the maximum authorised
mass of the trailer shall not exceed
the tractor
the unladen mass of
vehicle

Subcategory A1

Subcategory B1

Light motorcycles: a cubic capacity not
exceeding 125 m3 and a power not
exceeding 11 kW

Mopeds with a max. speed of less than
45 km/h or a cubic capacity of less
than 50 cm3 are not covered by the
Directive

and four-wheeled vehicles
Three-
with a maximum design speed of
over 45 km/h or a cubic capacity
of more than 50 cm3; the unladen
mass shall not exceed 550 kg

Group 2

Category C

Category C+E

Category D

Category D+E

Motor vehicles other than
those in category D, whose
maximum authorised mass
is over 3 500 kg; may be
trailer
combined with a
not exceeding 750 kg

Combinations of vehicles
where the tractor vehicle
is in category C and its
trailer has a maximum
authorised mass of over
750 kg

Motor vehicles used for
the carriage of persons
than
and having more
nine
be
seats; may
combined with a trailer
having a maximum auth-
orised mass not exceeding
750 kg

Combinations of vehicles
where the tractor vehicle is
in category D and its trailer
has a maximum authorised
mass of over 750 kg

Subcategory C1

Subcategory C1+E

Subcategory D1

Subcategory D1+E

Motor vehicles other than
in category D and whose
maximum authorised mass
is over 3 500 kg but not
more than 7 500 kg; they
may be combined with a
trailer having a maximum
authorised
not
exceeding 750 kg

mass

Combinations: the tractor
vehicle is in subcategory
C1 and its trailer has a
maximum
authorised
mass of over 750 kg;
the maximum authorised
mass of the combination
exceed
shall
not
and
12 000 kg
the
maximum
authorised
mass of
the trailer shall
not exceed the unladen
mass
tractor
vehicle

the

of

Motor vehicles used for
the carriage of passengers
and having more
than
nine seats but not more
than 17 seats; they may
a
combined with
be
a
trailer
maximum
authorised
mass which does not
exceed 750 kg

having

with

trailer

tractor
Combinations:
vehicle of subcategory D1
and
a
maximum authorised mass
of over 750 kg;
the total
maximum authorised mass
shall
exceed
not
12 000 kg and the trailer
maximum authorised mass
the
shall
the
unladen mass
the trailer
tractor vehicle;
shall
for
used
be
not
transport of persons

exceed
of

not

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Part II

LEGAL GUIDELINES

INTERPRETATION OF

FOR THE
DIRECTIVE 91/439/EEC

application of

consistent practical

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

this Directive

interpretative

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

sections

A. REQUIREMENT TO EXCHANGE LICENCES

A.1. Legal position

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

the host Member State

The wording of Article 8(1) was as follows:

if

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

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

Since the coming into force of Directive 91/439/EEC, an
exchange of driving licences issued in Member States is in
general purely voluntary, since Article 8(1) of this Directive
stipulates the following:

‘Where the holder of a national driving licence has taken up normal
residence in another Member State, he may request that his driving
licence be exchanged for an equivalent licence;’

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

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

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

A.2. Practical situations

Example 1:

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

Example 2:

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

Example 3:

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

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

(14) The ECJ pointed out in paragraph 26 of C-193/94 (Skanavi), that
driving licences have to be recognised without any formalities.
(15) In paragraph 43 of the ECJ judgment C-230/97 (Awoyemi) it is
stated explicitly, that Article 1(2) of the Second Directive is vested
with direct effect.

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

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

1995 and 1 July 1996

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

reference has

to be made

to the

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

the First Directive,

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

fines

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

failure

for

A.4. Solution

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

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

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

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

the Second Directive.

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

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

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

Example 3 is of a theoretical nature insofar as,
knowledge of
pending before a national court in any Member State.

to the
the European Commission, no such case is

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

regards

infringements

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

imposed penalties

criminal penalties

even if

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

(17) In analogous application of rules established by the ECJ in case

C-265/88 Messner (see in particular paragraph 8 thereof).

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such an imposition of

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

case

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

categories to the relevant licence holder. The restriction of
entitlements which have been obtained in other Member
States (which was widely practised before coming into force
of Directive 91/439/EEC) can therefore only be justified if it is
qualified as a restriction of the document, rather than of the
initial right to drive.

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

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

B. MUTUAL RECOGNITION OF LICENCES

B.1. Recognition of licences which were given reduced

entitlements on the occasion of exchange

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

B.1.1. Legal position

B.1.2. Practical situations

the level of secondary Community law,

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

Example 4:

that

in exchange

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

for his/her German ‘Klasse 3’

The extent of entitlements of
licences which have been
obtained before 1 July 1996 cannot be determined by the
recordings on the document. To those licences, Article 10 of
the Second Directive applies: tables of equivalences, which have
been established in accordance with Article 10 of the Second
Directive, determine the actual entitlement in terms of Article 3
of
the Second Directive. Moreover, Article 8 of Directive
80/1263/EEC stipulated that the host Member State should
category or
issue a driving licence for the corresponding

(18) See in particular cases C-265/88 Messner, paragraph 14, and

C-24/97 Commission v Germany, paragraph 14.

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

Skanavi.

Example 5:

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

Example 6:

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

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B.1.3. Solution

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

additional

repealed Directive 80/1263/EEC, that only full mutual recog-
nition shall apply as of entry into force of the Second Directive.
In cases where
entitlements were granted in
exchange,
these entitlements do not derive from the initial
right to drive but were conferred by virtue of application of
national legislation in force in the host Member State. Hence a
restriction of
the extended entitlements in the case of a
subsequent change of residence to another Member State or
to the issuing State is admissible in case the second change of
residence was carried out before entry into force of the Second
Directive. This applies because the extended entitlement was
conferred by virtue of national law of another Member State.

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

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

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

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

B.2. Recognition of licences which were given additional

entitlements on the occasion of exchange

B.2.1. Legal position

It derives
from the first and ninth recital of Directive
91/439/EEC, as well as from Article 13 thereof, which fully

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

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

B.2.2. Practical situations

Example 7:

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

Example 8:

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

Example 9:

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

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Example 10:

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

granted the additional entitlements and are bound to issue a
new licence containing all entitlements. In example 10, the
host Member State is competent
to issue a new licence
according to Article 8(5), containing all entitlements which
had been obtained previously.

B.2.3. Solution

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

entitlement;

to drive

right

the

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

restriction of

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

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

in the case where additional
If a licence is stolen or
lost
entitlements had been granted (examples 8 and 10),
the
following applies:
in
still
possession of the original licence. In case the licence holder
is resident there (example 8), the relevant authorities have to
launch inquiries in cooperation with the authorities which

issuing Member State

the

is

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

is

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

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

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

B.3. Failure to surrender the initial document

B.3.1. Legal position

If drivers hold more than one licence because they did not
exchange the initial licence or wrongfully obtained a duplicate,

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

(22) For a description of this type of discrimination see ECJ in C-19/92

Kraus and C-212/97 Centros.

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is obvious that Article 7(5) of Directive 91/439/EEC is
it
violated. Being in possession of more than one licence is also
in contradiction with the First Directive,
since the latter
prescribed mandatory exchange of licences within one year
after establishing normal residence in another Member State.

Member State and issue a new licence document thereafter, as
soon as they learn that such a holder is in possession of more
than one licence. This approach shall be applicable to both
examples 11 and 12.

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

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

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

to prevent citizens

(and residents)

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

to Community

from referring

B.3.2. Practical situations

Example 11:

residence

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

Example 12:

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

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

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

C. LICENCES ISSUED IN CONTRADICTION WITH COMMUNITY

LAW

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

B.3.3. Solution

C.1.1. Legal position

Member States should require an individual to surrender all
licence documents to the competent authorities in the host

(23) See in particular cases C-212/97 Centros Ltd of 9 March 1999,

paragraph 24, and C-61/89 Bouchoucha, paragraph 14.

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

the

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

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

C.1.2. Practical situation

Example 13:

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

of holders who

of
licences

provision by stating the following in the course of the
adoption procedure of Directive 91/439/EEC:

‘The Council and the Commission are of the opinion that the
provisions of the Directive with respect to the full mutual recog-
cooperation between the
nition of
competent authorities in the Member States.
In this context,
this means in particular
to establish an actual exchange of
information . . .’.

require a closer

licences

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

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

the refusal

failure of

C.1.3. Solution

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

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

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

Second Directive

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

Firstly,
the host Member State shall request additional
information from the issuing Member State, in accordance
with Article 12(3) of the Directive.
In comparison with
Directive 80/1263/EEC, the Second Directive puts greater
emphasis on mutual assistance between Member States
(which derives from the new wording of Article 12(3) in
comparison to Article 12(3) of Directive 80/1263/EEC).
the European Communities and the
The Council of
the above
European Commission clarified the scope of

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

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

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

C.2.1. Legal position

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

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

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

organised fraud.

(26) Case C-130/88 (Van de Bijl).
(27) See in particular paragraphs 24 (with further references to previous

ECJ legislation) and 25 of the cited Judgment.

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In addition, the scope of application of Article 8(2) has been
clarified
for Directive
by
91/439/EEC:

to the proposal

comments

‘National provisions with respect to the suspension or withdrawal of
the right to make use of the driving licence will have to be applied to
drivers who do not satisfy the required conditions for issue or renewal
of licences as regards the knowledge, skills and behaviour linked to
driving a power-driven vehicle, as well as with respect to the medical
condition of the driver, [. . .].’

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

than for non-respect of

C.2.2. Practical situation

Example 14:

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

country of origin during his

C.2.3. Solution (28)

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

to be established and that

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

Only the authorities of the Member State where the holder is
normally resident are competent to issue or renew licences. If
the above procedure proves that the residence requirement had
not been fulfilled, the authorities of the host Member State are
competent to revoke the document and return it to the issuing

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

State. In these cases the right to drive as well is forfeited, since
the holder did not fulfil all the formal requirements to obtain a
licence.

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

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

D. CALCULATION OF VALIDITY PERIODS

D.1. Legal position

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

D.2. Practical situations

Example 15:

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

this licence holder will

renewed,

Example 16:

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

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

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D.3. Solution

E. RENEWAL OF LICENCES

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

E.1. Cases for renewal

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

regardless whether

expires

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

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

cases, notably calculating it

the issue of

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

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

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

immediately, despite

licence

the

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

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

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

in another Member State,

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

the application of

In this

The differing periods of validity and dates of expiry of licences
are result of a lack of harmonisation as regards renewal
intervals:
a
Member State may apply its national rules on the period of
validity.

according to Article 1(3) of

the Directive,

E.2. Interpretation of
Second Directive

the relevant provisions of

the

Article 7(1) of the Second Directive lays down:

‘Driving licences shall, moreover, be issued only to those applicants,
who have their normal residence in the Member State issuing the
licence.’

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

Furthermore, Article 8(1) determines:

‘Where the holder of a national driving licence issued by a Member
State has taken up normal residence in another Member State, he
may request that his driving licence be exchanged for an equivalent
licence.’

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This Article determines the competence of the Member State of
normal residence for the exchange, an interpretation that is
also supported by combined reading of Articles 7(1) and 9
of
licences
thus may only be carried out by the Member State in which
the holder normally resides. This assessment is underlined by
the subsequent paragraph of the Directive, Article 8(2):

the Second Directive. A voluntary exchange of

‘[. . .] the Member States of normal residence may apply its national
provisions [. . .] to the holder of a driving licence issued by another
Member State and, if necessary, exchange the licence for that purpose.’

their

licence

exchange

holders who

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

Another provision of the Directive, Article 8(5), establishes the
exclusive legal competence of the Member State of normal
residence in another context:

‘A replacement of a driving licence, which has [. . .] been lost or
stolen, may be obtained from the competent authorities of the State
in which the holder has his normal residence.’

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

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

E.3. Solution

in case of

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

licences,

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

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

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

E.4. Procedural aspect

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

to all aspects of

the procedure,