CELEX: 61978CC0016
Language: en
Date: 1978-10-24
Title: Opinion of Mr Advocate General Reischl delivered on 24 October 1978. # Criminal proceedings against Michel Choquet. # Reference for a preliminary ruling: Amtsgericht Reutlingen - Germany. # Recognition of driving licences between Member States. # Case 16/78.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 24 OCTOBER 1978 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      Under German law an official driving licence is required for the purpose of driving motor vehicles and, in the case of vehicles for which a licence is required, driving without any such driving licence is punishable by imprisonment or a fine (Articles 2 and 24 of the Straßenver-kehrsgesetz (Law on Road Traffic) of 19 December 1952). According to Articles 6 and 7 of the Paris Convention on Motor Traffic of 24 April 1926 in conjunction with Articles 4 and 5 of the Regulation on International Motor Traffic of 12 November 1934 as amended by the Regulation of 18 April 1940 and also an announcement of 15 November 1952, holders of foreign driving licences — whether they are foreign nationals or German citizens — are entitled, if they possess a driving licence issued by another country or an international driving licence, to drive a motor vehicle within the territory of the Federal Republic of Germany for a period of one year after crossing the frontier or from the date of issue of their driving licence. Thereafter, a German driving licence must be obtained. In this connexion Article 15 of the Straßenverkehrszulassungsordnung (regulation governing the issue of licences to drive road vehicles), as amended by the announcement of 15 November 1974, reads:
      ‘A German driving licence for the corresponding class of motor vehicles shall be issued to the holder of a foreign driving licence if
      
               1
            
            
               . there are no doubts as to his fitness,
            
         
               2.
            
            
               he is resident in the Federal Republic of Germany,
            
         
               3.
            
            
               he has resided for one year principally in the Federal Republic of Germany,
            
         
               4.
            
            
               during that period he has driven a motor vehicle belonging to the class of vehicles in respect of which he has applied for a driving licence.
            
         …
      If the applicant does not fulfil the requirements of subparagraphs (2) to (4) of paragraph 1 the driving licence shall be issued if he proves in a test that he has an adequate knowledge of the German road traffic regulations’.
      Mr Choquet, who is a French citizen, after completing his military service remained in the Federal Republic of Germany as a civilian worker (electrician) and has clearly been resident there since January 1976. He holds a French driving licence issued on 22 November 1968 but does not have a German driving licence. In October 1977 he was involved in a motor accident near Reutlingen. On 3 December 1977 the Amtsgericht (Local Court) Reutlingen convicted him summarily in connexion with that accident. He was fined DM 1600 for dangerous driving and driving without a driving licence and the court ordered that he was not to be granted a driving licence for 11 months.
      After an appeal had been lodged against that conviction the Amtsgericht Reutlingen entertained doubts as to whether driving without a German driving licence was a punishable offence or — to put it in another way — as to whether nationals of the Member States of the EEC had to obtain a German driving licence for the purpose of driving a motor vehicle in the Federal Republic of Germany. The Amtsgericht is of the opinion that foreign nationals applying for such a licence might encounter linguistic difficulties and incur considerable expense. This would frequently cause foreigners who wished to avoid that obligation to transfer their residence abroad from the territory of the Federal Republic of Germany, either temporarily or permanently. Therefore the German rules and regulations might be regarded as contravening the provisions of the Treaty on freedom of movement and freedom of establishment (Article 48 et seq. of the EEC Treaty) or be said to disregard the obligation to act in a manner favourable to the Community (Article 5 of the EEC Treaty) and the prohibition of discrimination contained in Article 7.
      These considerations caused the Amtsgericht to stay proceedings and by an order of 13 February 1978, pursuant to Article 177 of the EEC Treaty, to refer the following question to the Court of Justice for a preliminary ruling:
      ‘Is it compatible with Community law for a Member State of the European Community to require the nationals of other Member States to possess a driving licence issued by the first Member State for driving motor vehicles and, as the case may be, to penalize them for driving without such a driving licence even though such citizens of the Community have a right of residence under Article 48 et seq. of the EEC Treaty and are in possession of an equivalent driving licence from their own country?’
      My opinion on this question is as follows:
      
               1.
            
            
               The Government of the United Kingdom in its written observations on the reference for a preliminary ruling has drawn attention to the fact that there are no provisions under Community law for the granting of driving licences and that the EEC Treaty does not regulate driver licensing law. This observation is undoubtedly correct. However, it certainly does not mean that Community law has no relevance whatsoever in this field.
               There are occupations for which an official driving licence is essential, because they involve the carriage of persons or goods in motor vehicles. Where they have to be carried on abroad the obligation to obtain a foreign driving licence is unquestionably relevant from the viewpoint of freedom to provide services, the right of establishment or the right to freedom of movement.
               However, it does not seem inappropriate to go further. It must be acknowledged that having regard to the present state of our civilization the use of a motor vehicle is frequently a matter of importance in connexion with the pursuit of one's occupation, in that it is used for driving to one's place of work or looking for employment. If in this respect holders of foreign driving licences, who under Community law have the right to freedom of movement, are confronted with problems and obstacles arising out of the obligation to obtain a domestic driving licence, the rules in the Treaty on freedom of movement may thereby be brought into play, since they must ensure that the conditions under which nationals of other Member States take up and pursue an occupation are not less favourable than those enjoyed by nationals of the State concerned.
               For this reason it can be said that in a case such as the one covered by the main proceedings, in which a French national carries on his occupation in the Federal Republic of Germany, even if in that connexion he is not dependent on the use of a motor vehicle, it is certainly not wrong to raise the question whether he can in fact be required to obtain a German driving licence in addition to his French driving licence or whether there are arguments against this which stem from Community law.
            
         
               2.
            
            
               The relevant German provision, Article 15 of the Straßenverkehrszulassungsordnung, which has just been quoted, makes it clear that in the present case the question which has arisen is not that of the legality of a general obligation upon foreigners to obtain a domestic driving licence on the basis of an ordinary driving test, that is to say of a situation in which foreigners invariably have to reckon with expenses which may be heavy and are incurred in connexion with the driving test itself, in view of the requirement that a driving instructor be present, or with the onerous preparations for the test which have to be made because of the linguistic difficulties which frequently arise.
               Considerable doubts must indeed be entertained as to the correctness of the contention of the British Government, which has defended the corresponding system applicable in its own country with reference to the facts that the qualifying standards for the granting of driving licences in the various States differ, that in one Member State it is not very long since a driving test was made obligatory and that the interests of public safety, especially in the case of large commercial vehicles and public transport facilities, should not be overlooked. I am convinced that, in so far at any rate as ordinary driving licences are concerned — since driving licences for large and special commercial vehicles, because they raise special problems and definitely played no part in the main proceedings, must be left out of account — and in so far as the foreign driving licence was issued following a test, a general obligation to pass a driving test before obtaining a licence cannot be properly described as protecting public policy. I rather incline to the Commission's view that the existence of a foreign driving licence raises a presumption of fitness to drive. This view can be advocated having regard to the similarity of the existing road traffic conditions in the Member States and to the comparable requirements for the granting of a driving licence, which the British Government does not call in question at any rate in the case of ordinary driving licences.
               Nor, on the other hand, can one rely on the fact that the road traffic regulations of the individual Member State are not entirely uniform. In this connexion it must not be forgotten that, on the basis of the international conventions which I mentioned at the beginning of my opinion, there are applicable in all Member States rules to the effect that foreign driving licences suffice for a temporary stay and that any person making use of this concession has an adequate opportunity to adapt himself to the road traffic conditions of the host country.
               Furthermore, it does not seem to me to be right for the British Government to refer in this connexion to the Court's judgment of 3 December 1974 in Case 33/74 (Johannes Henricus Maria Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metallnijverheid [1974] ECR 1299) which dealt with a different kind of problem referring to professional rules laid down in the interests of the general public or to imagine that it can deny the existence of discrimination on the ground that no more is required than the passing of a test which nationals also have to take. In that connexion it must not in fact be overlooked that according to the British Government foreigners are required to take a second test and that they may on that occasion meet with difficulties, especially of a linguistic kind, which might be very expensive to overcome.
            
         
               3.
            
            
               If we now turn to the actual question referred for a preliminary ruling from the standpoint of the legal position under German law which, as we know, on the one hand requires a domestic driving licence to be obtained but which, on the other hand, provides for the granting of this licence to be facilitated, for the licence as it were to be transcribed, and only requires tests in two — very rare — exceptional cases, then the following observations on this aspect of the matter have to be made:
               
                        (a)
                     
                     
                        The fact that in general the issue of a domestic driving licence is required can in my view hardly be objectionable.
                        This is supported in the first place by certain pertinent reasons, to some of which the Netherlands Government has drawn attention in its written observations. For example, the checking of a driving licence by enforcement officers is undoubtedly facilitated if it is recorded in a domestic document. In the absence of such a document the checking of the validity of a driving licence is made more difficult if it includes a time-limit for use abroad — as in the case in the Netherlands. Should only the domestic driving licence be subject to a time-limit its renewal may be rendered more difficult if the driver only has foreign documents in his possession. There are, furthermore, problems connected with the withdrawal of a driving licence or a declaration that it is invalid.
                        On the other hand, attention may be drawn to the fact — and this is equally important — that merely transcribing a licence does not entail heavy costs or take up considerable time, and the fact that in this respect there cannot therefore be said to be significant obstacles which are in any way material to the exercise of rights derived from the Treaty, especially the right to freedom of movement.
                     
                  
                        (b)
                     
                     
                        Nor, in principle, can any objection be made to the requirement that a driving test must be passed before the driving licence is granted, where there are doubts as to the fitness of the holder of a foreign driving licence. This is justified on grounds of public security as mentioned in Articles 48 and 56 of the EEC Treaty. Naturally, this is acceptable only if such doubts as to the fitness of holders of foreign driving licences are not raised systematically but are based on specific facts which provide a sufficiently clear indication that there is a threat to public security. However, one can proceed on the basis that the German practice follows this procedure, since Jagusch's Commentary on Road Traffic Law (19th Edition) expressly states in connexion with Article 15 of the Straßenverkehrszuiassungsordnung that the doubts referred to in that article should be founded on facts. As far as concerns the arrangements for the test which may have to be taken, I will have something to say about this presently in another connexion.
                     
                  
                        (c)
                     
                     
                        It now only remains for me to consider the position regarding the other conditions which have been mentioned for the transcription of a foreign driving licence and also the requirement that, if those conditions are not met, a test on German road traffic regulations must be taken.
                        As has already been mentioned, there are three conditions under German law. The applicant must have his residence in the Federal Republic of Germany, he must have stayed for one year principally in the Federal Republic of Germany and he must during that period have driven a motor vehicle belonging to the class in respect of which he has applied for a driving licence. These conditions are in substance entirely justifiable. This applies in particular to the third condition, which is intended to ensure that adequate adjustment to German road traffic conditions, including partially different traffic regulations, has been achieved. Furthermore, it must be acknowledged that they can easily be satisfied — I am thinking in this connexion in particular of international agreements, pursuant to which provisional use of foreign driving licences is allowed — and I would also suggest that no appreciable obstacles stem from the fact that the existence of the said preconditions must be proved.
                        Finally, the fact that, in the event of a failure to fulfil these conditions or of want of adequate evidence, a test of knowledge of road traffic regulations is required is as such also hardly objectionable. This is undoubtedly justified by considerations of road safety, that is to say the idea of public security and public policy again comes into play; an adequate knowledge of German road traffic regulations can as a general rule be imputed to the holder of a driving licence obtained abroad only if he has driven on national territory for an appropriate period.
                        On this last point doubts could only arise with reference to the nature of the test, which I have already mentioned a little earlier. If it is conducted in the same way as the ordinary theoretical German driving test with the use of complicated questionnaires then holders of foreign driving licences may be confronted with linguistic problems which can only be solved by means of expensive preparations with the aid of driving instructors and language teachers. This can be in fact regarded as an unreasonable and consequently unlawful barrier — the actual fees for taking the test are clearly kept within tolerable limits. Consequently I am convinced that on this aspect of the matter, the following finding must be recorded; where a test of knowledge of German road traffic regulations is considered to be necessary — and this applies equally to the fitness test under subparagraph 1 — it must be conducted in a way — for instance orally — such as to take sufficient account of the special difficulties of foreign applicants. It must not be assumed that this might overtax the administration, if the said tests do not constitute the rule, which could indeed give rise to objections, but are relatively infrequent exceptional cases occasioned by specific circumstances linked to individuals.
                     
                  
                        4.
                     
                     
                        To sum up, the finding may therefore be recorded that the requirements to be satisfied by foreigners who are citizens of the EEC wishing to obtain a German driving licence are not in breach of Community law either from the standpoint of the prohibition of discrimination or from that of the right to freedom of movement. However, this applies on the condition that the tests which are regarded as necessary in particular cases are so arranged that particular difficulties, in particular language difficulties, which exist for foreign applicants are as far as possible taken into account. There can also be no objection under Community law to the existence of a penalty provision, applicable if a driving licence is not obtained, provided that it prescribes the imposition of appropriate penalties without distinction between foreigners and nationals. In my view the question referred by the Amtsgericht Reutlingen should be answered in this way.
                     
                  
         (
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         )	Translated from the German.