CELEX: 62010CC0184
Language: en
Date: 2011-03-31 00:00:00
Title: Opinion of Mr Advocate General Bot delivered on 31 March 2011. # Mathilde Grasser v Freistaat Bayern. # Reference for a preliminary ruling: Bayerischer Verwaltungsgerichtshof - Germany. # 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. # Case C-184/10.

OPINION OF ADVOCATE GENERAL
      BOT
      delivered on 31 March 2011 (1)
      
      Case C‑184/10
      Mathilde Grasser
      v
      Freistaat Bayern
      (Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany))
      (Directive 91/439/EEC – Mutual recognition of driving licences – Driving licence issued by a Member State in disregard of the requirement for residence – Recognition refused by the host Member State solely on the ground of the breach of the residence requirement)
      1.        The question referred leads the Court, once again, to interpret the provisions of Directive 91/439/EEC of the Council of 29
         July 1991 on driving licences. (2)
      
      2.        Article 1(2) of Directive 91/439 provides that driving licences issued by Member States are to be mutually recognised. The
         issue of those licences is subject to a number of conditions. In particular, under Article 7(1)(b) of the directive, acquisition
         of a driving licence is subject to the condition of normal residence in the territory of the issuing Member State.
      
      3.        The Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) (Germany) asks, therefore, if a Member State
         may refuse to recognise a driving licence issued by another Member State, once it is established that the licence has been
         issued in disregard of the residence requirement.
      
      4.        This question leads me to clarify the rules developed by the Court in its judgments of 26 June 2008 in Wiedemann and Funk (3) and Zerche and Others, (4) according to which a host Member State may refuse to recognise in its territory the right to drive stemming from a driving
         licence subsequently issued by another Member State, if it is established, on the basis of entries appearing in the driving
         licence itself or of other incontestable information supplied by the issuing Member State, 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 driving
         licence, was not normally resident in the territory of the issuing Member State.
      
      5.        The specific feature of the dispute in the main proceedings arises from the fact that, contrary to the circumstances considered
         by the Court in the cases which gave rise to those judgments, Ms Grasser, a German national whose driving licence (issued
         by the Czech authorities) the German authorities refuse to recognise, has never had a German driving licence and has therefore
         never been the object of a measure withdrawing an earlier licence. The question is, therefore, whether Wiedemann and Funk and Zerche and Others can be applied to Ms Grasser’s case.
      
      6.        In this Opinion, I propose that the Court should rule that Articles 1(2) and 7(1)(b) of Directive 91/439 are to be interpreted
         as not precluding a Member State from refusing to recognise in its territory the right to drive stemming from a driving licence
         issued by another Member State, if it is established, on the basis of entries appearing in the driving licence itself or of
         other incontestable information supplied by the issuing Member State that, when the licence was issued, its holder was not
         normally resident in the issuing Member State.
      
      I –  Legal context
      A –    European Union legislation
      7.        With the aim of facilitating the movement of persons within the European Community or their establishment in a Member State
         other than that in which they obtained their driving licence, Directive 91/439 established the principle of mutual recognition
         of driving licences. (5)
      
      8.        The laying down, in that directive, of minimum requirements for the issue of a driving licence also has the objective of improving
         road safety within the European Union. (6)
      
      9.        In particular, Article 7(1)(b) of Directive 91/439 provides: 
      
      ‘1.      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’. (7)
      
      10.      Article 7(5) of Directive 91/439 provides that no person may hold more than one driving licence.
      
      11.      Article 8(2) of the directive provides that the Member State of normal residence may apply its national provisions on the
         restriction, suspension, withdrawal or cancellation of the right to drive to the holder of a driving licence issued by another
         Member State.
      
      12.      Under the first subparagraph of Article 8(4) of the directive, a Member State may also refuse to recognise the validity of
         a driving licence issued by another Member State to a person who is, in the former State’s territory, the object of one of
         the measures referred to above.
      
      B –    National legislation
      13.      The regulation on the authorisation of persons to drive on highways (Verordnung über die Zulassung von Personen zum Straßenverkehr),
         in the version in force on 19 January 2009 (‘the FeV’), provides in Paragraph 28(1) that holders of a valid European Union
         (‘EU’) or European Economic Area (‘EEA’) driving licence having their normal residence, within the meaning of Paragraph 7(1)
         or (2) of the FeV, in Germany shall be authorised – subject to the restrictions laid down in subparagraphs (2) to (4) of Paragraph
         28 – to drive motor vehicles in Germany within the limits authorised by their driving licence.
      
      14.      Paragraph 28(4) (first sentence, subparagraphs 2 and 3, and second sentence) of the FeV provides that that authorisation to
         drive does not apply to holders of an EU or EEA driving licence in two circumstances. Firstly, the authorisation does not
         apply when, on the basis of entries appearing in the driving licence itself or of other incontestable information supplied
         by the issuing Member State, the holder had, on the date of issue, his normal residence in the national territory, unless
         he obtained the licence during a stay of at least six months as a scholar or student. Secondly, holders of an EU or EEA driving
         licence are not authorised to drive in Germany if their 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, if
         they have been definitively refused a driving licence, or if their driving licence has not been withdrawn solely because they
         have surrendered it in the meantime.
      
      II –  The facts of the main proceedings and the question referred for a preliminary ruling
      15.      Ms Grasser, the applicant in the main proceedings, is of German nationality and lives in Viereth-Trunstadt (Germany). She
         has never had a German driving licence.
      
      16.      The applicant obtained a driving licence on 31 May 2006, issued by the municipal authority of Plzeň (Czech Republic). Her
         place of residence as shown on the driving licence is the town of Viereth-Trunstadt.
      
      17.      In a letter of 3 April 2009, the German authority responsible for the issuing of driving licences asked Ms Grasser to present
         her Czech driving licence in order that it could be noted on the licence that she was not entitled to drive in Germany, since
         the residence requirement 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.
      
      18.      Ms Grasser challenged the authority’s decision and asked it 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. Both
         requests were refused by the competent German authority.
      
      19.      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.
      
      20.      On 1 July 2009, the applicant brought an action for annulment in the Verwaltungsgericht Bayreuth (Bayreuth Administrative
         Court) against that decision. By judgment of 22 September 2009, that court upheld Ms Grasser’s application and annulled the
         decision. The Verwaltungsgericht Bayreuth considered that the infringement of the principle of residence may not, in and of
         itself, constitute a reason for non-recognition of the right to drive in Germany. According to that court, the applicant would
         also have had to be the object of a measure restricting, suspending, withdrawing or cancelling her driving licence.
      
      21.      The Freistaat Bayern, defendant in the main proceedings, brought an appeal against the decision of the Verwaltungsgericht
         Bayreuth before the Bayerischer Verwaltungsgerichtshof, which decided to stay the proceedings and refer the following question
         to the Court:
      
      ‘Are Articles 1(2) and 8(2) and (4) of Directive 91/439 … 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 …?’
      
      III –  My analysis
      22.      By its question, the referring court is asking, in essence, if a Member State may refuse to recognise a driving licence issued
         by another Member State, if it is established, on the basis of entries appearing in that licence, that the residence condition
         has not been observed, even though the holder of the licence has never been the object, in the territory of the first Member
         State, of any measure withdrawing a previous driving licence.
      
      23.      First, it should be noted that Directive 91/439 has two specific purposes: firstly, to facilitate the movement of persons
         settling in a Member State other than that in which they have passed a driving test and, secondly, to improve road safety. (8)
      
      24.      Those objectives are inextricably linked. The principle of freedom of movement for persons requires that such movement may
         safely occur.
      
      25.      Therefore, in order to meet those imperatives of road safety, the EU legislature considered it necessary to establish minimum
         requirements or conditions under which driving licences may be issued. (9)
      
      26.      In particular, under Article 7(1)(a) and (b) of Directive 91/439 issue of a driving licence is subject to a person having
         passed a test of mental and physical abilities and aptitudes as well as a theory test, and, in addition, to having normal
         residence in the territory of the issuing Member State.
      
      27.      Thus, driving licences issued on the basis of those minimum conditions are covered by the principle of mutual recognition,
         under Article 1(2) of Directive 91/439.
      
      28.      Of the minimum conditions subject to which a driving licence may be issued, the condition relating to normal residence in
         the territory of the issuing Member State plays a special role within the system established by the EU legislature, as interpreted
         by the Court in its case-law.
      
      29.      In Weidemann and Funk and Zerche and Others, the Court stated 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. (10) Indeed, that condition is indispensable if observance of the condition of fitness to drive is to be monitored. (11) The condition is a precondition making it possible for the issuing Member State to establish that the other conditions have
         been observed. (12) It is for that reason that the residence condition, which determines the issuing Member State, assumes special importance
         in relation to the other conditions laid down by Directive 91/439. (13)
      
      30.      The Court has therefore concluded that road safety could be jeopardised if this condition was not observed. (14)
      
      31.      At the hearing, Ms Grasser’s lawyer stated that, in the present case, there is no imminent danger or urgency, in contrast
         to the circumstances before the Court in the cases giving rise to the judgments in Wiedemann and Funk and Zerche and Others. He stated that, in those cases, the holders of the driving licences in question had already demonstrated how much of a danger
         they represented, since they had had their previous driving licences withdrawn for road traffic offences. Ms Grasser had never
         had a driving licence before and had therefore never been the object of any measure withdrawing a previous driving licence.
         For this reason, that case-law did not apply.
      
      32.      To my mind there is no merit in that submission. It is tantamount to repudiating the objectives referred to in Directive 91/439.
      
      33.      As we have seen, the EU legislature has established minimum conditions subject to which a driving licence may be issued, in
         order to ensure road safety in the European Union. Those conditions apply to all applicants for a driving licence. The provisions
         of Directive 91/439 make no distinction, in this respect, between applicants passing their driving test for the first time
         and those requesting a new licence following the withdrawal of a previous licence.
      
      34.      The reason for this is obvious, namely that the level of danger posed by a driver must be assessed well before the driving
         licence is issued. It would be inconceivable to wait for a driver to cause an accident in order to confirm how much of a danger
         he represents and to apply the necessary measures when he seeks renewal of his driving licence. As the defendant in the main
         proceedings observed at the hearing, road safety is a matter which is relevant not only for persons who have caused an accident,
         but also for persons applying for a driving licence.
      
      35.      Thus, in accordance with Article 7(1)(a) and (b) of Directive 91/439, when a competent national authority issues a first driving
         licence, the same minimum requirements must be observed.
      
      36.      It should be recalled that the residence condition has an essential role to play here. If that condition is not observed,
         it is impossible, or at least very difficult, for the national authority issuing the driving licence to verify certain of
         the conditions laid down by Directive 91/439. The first of these is that there should be a single driving licence per holder.
         Article 7(5) of the directive provides that no person may hold more than one driving licence. (15) As there are not yet any central databases for driving licences at EU level, who is better placed than the national authorities
         in the normal place of residence of the applicant for a driving licence to establish whether the applicant already has a driving
         licence?
      
      37.      The same is true of other essential information, such as the checking of criminal records, in order to confirm that the applicant’s
         history does not preclude a driving licence being issued.
      
      38.      For this reason compliance with the residence condition is an essential precondition making it possible to ascertain whether
         the applicant has complied with the other minimum conditions of Directive 91/439.
      
      39.      The consequence of disregarding the residence condition, when an applicant passes the driving test for the first time, would
         therefore be to upset the system established by the EU legislature, to the detriment of the safety of road users.
      
      40.      I would add that, during the hearing, the European Commission and, subsequently, Ms Grasser’s lawyer, argued that the entry
         on residence on her driving licence could involve a simple drafting error, that the issuing Member State could have made a
         mistake when making reference to a residence in Germany and that there was, therefore, no need to take it into account and
         the licence should be recognised as valid. In my view, that argument cannot be accepted.
      
      41.      If such reasoning were to be accepted, all information provided by the issuing Member State which appears in an official document,
         in this case a driving licence, could be challenged. As the Court has held, information appearing in the driving licence is
         incontestable information supplied by the authorities of the issuing Member State. (16)
      
      42.      Consequently, I consider that, when it is possible to determine, on the basis of entries appearing in the driving licence
         itself or of other incontestable information supplied by the issuing Member State, that the residence requirement laid down
         in Article 7(1)(b) of Directive 91/439 was not satisfied when that licence was issued, the host Member State may refuse to
         recognise the right to drive stemming from that driving licence.
      
      43.      It could be argued that such a solution would destroy the mutual trust between Member States which the principle of mutual
         recognition presupposes.
      
      44.      However, the principle of mutual recognition of driving licences cannot achieve its full potential unless the minimum conditions
         for the issue of driving licences, prescribed by a directive adopted for the purpose of harmonisation, are fulfilled and respected
         by all Member States. Herein lies the very essence of the principle. The Member States have mutual trust and mutually recognise
         driving licences issued by their authorities, because the EU legislature has put in place a system serving to ensure that
         all Member States have a minimum standard concerning the issue of those licences.
      
      45.      Therefore, when that minimum standard is not respected, the principle of mutual recognition cannot be applied in the normal
         way.
      
      46.      Moreover, if it were accepted that a driving licence, such as that of Ms Grasser, must be recognised by the host Member State,
         even though the residence requirement has not been respected, that would encourage ‘driving-licence-tourism’. Although Directive
         91/439 lays down minimum conditions for fitness to drive, the fact remains that the Member States are free to impose stricter
         standards than those mentioned in the directive. (17) It would become, therefore, more advantageous for a person resident in a Member State imposing such standards to take the
         test in another Member State with less stringent standards.
      
      47.      The aim of Directive 91/439 is not to offer EU nationals opportunities for driving-licence forum shopping, but to allow a
         person who has a driving licence to settle in the territory of a Member State other than the Member State in which the licence
         was issued, without having to take another driving test or exchange that licence.
      
      48.      It seems to me that the principle of mutual recognition has, in the present case, been diverted from its function in order
         to circumvent stricter national rules.
      
      49.      Consequently, for all of the above reasons, I take the view that Articles 1(2) and 7(1)(b) of Directive 91/439 should be interpreted
         as not precluding a Member State from refusing to recognise in its territory the right to drive stemming from a driving licence
         issued by another Member State, if it is established, on the basis of entries appearing in the driving licence itself or of
         other incontestable information supplied by the issuing Member State that, when the licence was issued, its holder was not
         normally resident in the issuing Member State.
      
      IV –  Conclusion
      50.      In the light of the foregoing considerations, I propose that the Court give the following answer to the question referred
         to it by the Bayerischer Verwaltungsgerichtshof:
      
      Articles 1(2) and 7(1)(b) of Directive 91/439/EEC of the Council of 29 July 1991 on driving licences should be interpreted
         as not precluding a Member State from refusing to recognise in its territory the right to drive stemming from a driving licence
         issued by another Member State, if it is established, on the basis of entries appearing in the driving licence itself or of
         other incontestable information supplied by the issuing Member State that, when the licence was issued, its holder was not
         normally resident in the issuing Member State.
      
      1 –	Original language: French.
      
      2 –	OJ 1991 L 237, p. 1.
      
      3 –	Joined Cases C‑329/06 and C‑343/06 [2008] ECR I-4635.
      
      4 –	Joined Cases C‑334/06 to C‑336/06 [2008] ECR I-4691.
      
      5 –	See Article 1 of the directive.
      
      6 –	See the fourth recital to the directive
      
      7 –      The first paragraph of Article 9 of Directive 91/439 states that a person’s normal residence is the place where he usually
         lives, that is, for at least 185 days in each calendar year. If the licence holder is a student in that Member State, he must
         produce evidence that he has been studying there for at least six months.
      
      8 –	See the first recital to the directive.
      
      9 –	See the fourth recital to the directive.
      
      10 –	Wiedemann and Funk (paragraph 69) and Zerche and Others (paragraph 66).
      
      11 –	Ibidem.
      
      12 –	Wiedemann and Funk (paragraph 70) and Zerche and Others (paragraph 67).
      
      13 –	Ibidem.
      
      14 –	Wiedemann and Funk (paragraph 71) as well as Zerche and Others (paragraph 68).
      
      15 –	See, to that effect, Wiedemann and Funk (paragraph 70) and Zerche and Others (paragraph 67).
      
      16 –	See, to that effect, Wiedemann and Funk (paragraph 72) and Zerche and Others (paragraph 69). See also order of 9 July 2009 in Case C‑445/08 Wierer (paragraph 51).
      
      17 –	See point 5 of Annex III to the directive.