CELEX: 62001CC0476
Language: en
Date: 2003-10-16
Title: Opinion of Mr Advocate General Léger delivered on 16 October 2003. # Criminal proceedings against Felix Kapper. # Reference for a preliminary ruling: Amtsgericht Frankenthal - Germany. # Directive 91/439/EEC - Mutual recognition of driving licences - Residence requirement - Article 8(4) - Effects of withdrawal or cancellation of a previous driving licence - Recognition of a new driving licence issued by another Member State. # Case C-476/01.

OPINION OF ADVOCATE GENERALLÉGER delivered on 16 October 2003(1)
         Case C-476/01 Staatsanwaltschaft Frankenthal (Pfalz)vFelix Kapper(Reference for a preliminary ruling from the Amtsgericht Frankenthal (Pfalz) (Germany))
            (Directive 91/439/EEC  –  Refusal by a Member State to recognise a driving licence issued by another Member State  –  Grounds of refusal  –  Normal residence of the licence-holder not in the Member State where the licence was issued  –  Withdrawal of a licence previously issued in the host Member State)
            
      
         
        1.        Is a Member State entitled to refuse to recognise a driving licence issued by another Member State? If so, on what grounds?
      Those are, in essence, the questions asked by the Amtsgericht Frankenthal (Frankenthal Local Court), Pfalz, Germany, in criminal
      proceedings brought against an individual. They closely affect a number of important aspects of the daily life of the European
      citizen.
      
      
      I –  Legal background
       A – Community legislation
        2.        The issue and use of driving licences were first harmonised by the adoption of the First Directive 80/1263/EEC. 
         			(2)
         		 Its purpose was to contribute to improving road traffic safety and to assist the movement of persons settling in a Member
      State other than that in which they had passed a driving test, or moving within the European Economic Community.
      
      
        3.        To that end, Directive 80/1263 harmonised certain national rules, particularly those relating to the issue of driving licences
      and the conditions for the validity of such licences. It established a Community model licence, introduced a principle of
      mutual recognition of such licences and provided for the exchange of licences by holders transferring their place of residence
      or place of employment from one Member State to another.
      
      
        4.        Directive 80/1263 was repealed by Directive 91/439/EEC. 
         			(3)
         		 The latter marks a further stage in the harmonisation of national provisions, in particular as regards the conditions governing
      the issue of licences and the scope of the principle of mutual recognition relating to them.
      
      
        5.        The issue of driving licences is subject to minimum age conditions, 
         			(4)
         		 and to requirements to have passed certain tests, 
         			(5)
         		 to meet certain medical standards 
         			(6)
         		 and to have normal residence in the territory of the Member State issuing the licence, or to produce evidence that the applicant
      has been studying there for at least six months. 
         			(7)
         		 Article 7(5) of the Directive states that no person may hold a driving licence from more than one Member State. Thus, where
      a person is the holder of a (valid) driving licence issued by a Member State, and which the other Member States have undertaken
      to recognise, he is precluded from obtaining another licence from the same or another Member State.
      
      
        6.        The principle of the mutual recognition of licences is laid down by Article 1(2) of the Directive in general terms as follows:
      ‘Driving licences issued by Member States shall be mutually recognised’.
      
      
        7.        However, where the holder of a valid licence issued by a Member State has taken up normal residence in another Member State,
      Article 8(2) of the Directive provides that ‘subject to observance of the principle of territoriality of criminal and police
      laws, the Member State of normal residence may apply its national provisions on the restriction, suspension, withdrawal or
      cancellation of the right to drive to the holder ... [in question] and, if necessary, exchange the licence for that purpose’.
      
      
        8.        Furthermore, under Article 8(4) of the Directive, ‘a Member State may refuse to recognise the validity of any driving licence
      issued by another Member State to a person who is, in the former State’s territory, the subject of one of the measures referred
      to in paragraph 2’. The implementation of this provision by Member States by way of adjustments to their national legislation
      is subject to the agreement of the Commission. 
         			(8)
         		
      
       B – National legislation 
        9.        Since 1 January 1999, the driving of motor vehicles in Germany by the holders of licences issued by another Member State and
      who have taken up residence in Germany has been governed by the Verordnung über die Zulassung von Personen zu den Straßenverkehr
      of 18 August 1998, also called the Fahrerlaubnisverordnung 
         			(9)
         		 (Regulation on Access to Road Traffic, hereinafter the ‘FeV’).
      
      
        10.      Under Paragraph 28(1) and (4) of the FeV, the holder of a driving licence issued by a Member State of the European Union or
      the European Economic Area (hereinafter the ‘EEA’) is not permitted to drive in Germany when at the time the licence was issued
      he had already taken up normal residence in Germany (unless he obtained his driving licence while he was attending a school
      or university in the Member State in which it was issued). 
         			(10)
         		
      
        11.      The same applies when a licence issued by a Member State of the European Union or the EEA is withdrawn (whether on a temporary
      or permanent basis) by the courts in Germany or is subject to an equivalent (immediately enforceable or final) administrative
      measure, when there has been a refusal to issue such a licence, when there has been an abandonment of its use, 
         			(11)
         		 or when the holder of the licence has been banned from driving in Germany or has had his driving licence confiscated or seized
      or been required to surrender it. 
         			(12)
         		
      
        12.      It follows from these provisions that the holder of a German licence is no longer permitted to drive in Germany if the licence
      has been withdrawn 
         			(13)
         		 or if he has been banned from driving by the German authorities, even if he has subsequently obtained a licence from another
      Member State. 
         			(14)
         		
      
        13.      Moreover, according to the interpretation which has been given to those provisions by case-law, 
         			(15)
         		 the loss of the right to drive in Germany is not limited in time to the period of the driving ban or of the blocked period
      which is coupled with a withdrawal of the licence. Unlike the position which applied before the regulation implementing the
      Directive, 
         			(16)
         		 such a loss of the right to drive in Germany is capable of lasting indefinitely, even after the expiry of the periods concerned.
      
         			(17)
         		
      
      II –  Facts and procedure in the main proceedings
        14.      On 26 February 1998, the Amtsgericht Frankenthal, Pfalz, ordered the withdrawal (equivalent to cancellation) of the driving
      licence belonging to Mr Felix Kapper, a German national and the holder of a German licence, and instructed the relevant national
      authorities not to issue a new licence to him before the expiry of a period of nine months, that is to say not before 25 November
      1998.
      
      
        15.      Since then, no new licence has been issued to him in Germany. However, he obtained a Netherlands driving licence on 11 August
      1999.
      
      
        16.      On 17 March 2000, the same court sentenced Mr Kapper to a fine for driving a motor vehicle in Germany, on 20 November and
      11 December 1999, without a valid licence, or, more precisely, while possessing a Netherlands licence whose validity was not
      recognised by the German authorities. Mr Kapper appealed against that decision, to the same court, on the basis that he held
      a Netherlands licence.
      
      
      III –  The question referred for a preliminary ruling
        17.      In light of the parties’ arguments, the Amtsgericht Frankenthal, Pfalz, decided to stay the proceedings and to refer the following
      question to the Court for a preliminary ruling:
      ‘Does Article 1(2) of Council Directive 91/439/EEC of 29 July 1991 on driving licences preclude a Member State from refusing
      to recognise a driving licence where, according to its investigations, another Member State issued that licence although the
      holder of the licence did not have his normal residence there, and in appropriate cases is actual effect to be given to that
      provision in that regard?’
      
      
      IV –  Analysis
       A – The admissibility of the question referred for a preliminary ruling
        18.      The Netherlands Government is uncertain whether the question referred for a preliminary ruling is admissible, in the absence,
      in its opinion, of sufficient information in the order for reference relating to the facts, to the relevant provisions of
      national law and to the importance of the question for the resolution of the main proceedings, particularly on the assumption
      that the person concerned was still banned from driving in Germany.
      
      
        19.      It should be borne in mind in that regard that the Court has consistently held that the procedure under Article 234 EC is
      an instrument which assists cooperation between the Court of Justice and the national courts. 
         			(18)
         		 In the context of that cooperation, it is solely for the national court before which the dispute has been brought, and which
      must assume responsibility for the subsequent judicial decision, to determine both the need for a preliminary ruling and the
      relevance of the questions which it puts to the Court. Consequently, where the questions submitted by the national court concern
      the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. 
         			(19)
         		
      
        20.      However, it has stated that it is for the Court to examine the circumstances in which the case was referred to it by the national
      court in order to assess whether the Court has jurisdiction. 
         			(20)
         		
      
        21.      It is in the light of this role that the Court has held that it has no jurisdiction to give a preliminary ruling where it
      is quite obvious that the interpretation or the assessment of the validity of a Community rule sought by that court bears
      no relation to the facts or purpose of the main proceedings, or where the problem is hypothetical, or where the Court does
      not have before it the factual or legal information necessary to give a useful answer to the questions submitted to it. 
         			(21)
         		
      
        22.      As regards the last-mentioned case, I would point out that the requirement adequately to describe the legal and factual context
      of the dispute principally pursues two objectives.
      
      
        23.      First, the information provided in the decision referring the matter for a preliminary ruling must enable the Court to provide
      an interpretation of Community law which will be of assistance to the national court. 
         			(22)
         		
      
        24.      It is true that in the present case the order for reference contains little information on the factual and legal background
      to the main proceedings. A reading of it does not make it clear whether when Mr Kapper was charged with driving without a
      valid licence his right to drive in Germany was, or was not, still cancelled or restricted following the withdrawal of his
      German licence.
      
      
        25.      Nevertheless, the information provided in the order for reference has been supplemented, both by the reply from the national
      court to the request for clarification sent to it by the Court, and by the replies from Mr Kapper and the German Government
      to the questions put to them in this regard. These make it clear that at the time he was charged in relation to the matters
      in question he was no longer prohibited from obtaining a new licence (which had been withdrawn for a period of nine months),
      but apparently continued to be deprived of the right to drive in Germany by reason of Paragraph 28(4)(4) of the FeV. 
         			(23)
         		 I am therefore of the view that notwithstanding the lacunae in the order for reference, the Court is in a position to provide
      a useful answer to the question put by the Amtsgericht Frankenthal, Pfalz.
      
      
        26.      Secondly, the information provided by an order for reference must give the governments of the Member States and interested
      parties the opportunity to submit observations pursuant to Article 20 of the Statute of the Court of Justice. 
         			(24)
         		
      
        27.      In this case, it is clear from the observations submitted by the governments of the Member States and by the Commission that
      the information provided in the order for reference has enabled them to comment effectively on the question referred for a
      preliminary ruling. Moreover, as mentioned above, that information has been supplemented by the reply from the national court
      to the request for clarification sent to it by the Court. This additional information was referred to in the report for the
      hearing and made known to the governments of the Member States and other interested parties, either for the purpose of a written
      answer to certain questions or for the purpose of the hearing. The latter have thus had the opportunity to add to their observations
      where necessary.
      
      
        28.      I am therefore of the opinion that the question referred for a preliminary ruling by the Amtsgericht Frankenthal, Pfalz, is
      admissible.
      
      
        29.      However, as Mr Kapper, the German and Italian Governments and the Commission have proposed, the scope of the question referred
      for a preliminary ruling should be extended to include the interpretation of Article 8(2) and (4) of the Directive in order
      to provide a useful and complete answer to the national court.
      
      
        30.      I am accordingly of the view that the question referred for a preliminary ruling should be treated as asking whether Article
      1(2), in conjunction with Article 7(1)(b), Article 8(2) and (4) and Article 9 of the Directive, should be interpreted as meaning
      that a Member State is entitled to refuse to recognise a driving licence issued by another Member State on the grounds (a)
      that according to its investigations, the holder of the licence in question had not taken up normal residence in the Member
      State in which the licence was issued prior to its being issued, and/or (b) that the holder of the licence is still banned
      from driving in the first-mentioned Member State following the withdrawal or cancellation of a previous licence, issued in
      that Member State, coupled with a provisional prohibition on obtaining a new licence there, when both those measures are fully
      executed and their effects have therefore been exhausted.
      
      
       B – Substance 
        31.      It should be noted at the outset that Article 1(2) of the Directive lays down the principle that ‘driving licences issued
      by Member States shall be mutually recognised’.
      
      
        32.      As I recently pointed out, these provisions adopt a general approach to the mutual recognition of licences, and do not require
      that any particular conditions or formalities are met. 
         			(25)
         		
      
        33.      The Court so held in Skanavi and Chryssanthakopoulos 
         			(26)
         		 in the context of requirements relating to the exchange of licences. The Court restated the point in Awoyemi, adding that the obligation to recognise driving licences is clear and unconditional and that the Member States have no discretion
      as to the measures to be adopted in order to comply with those requirements. It follows that the provisions referred to above
      have direct effect. 
         			(27)
         		
      
        34.      The point was again made by the Court very recently in Commission  v Netherlands, cited above, in the context of a requirement relating to the registration of licences. 
         			(28)
         		
      
        35.      It is in the light of this principle of mutual recognition of licences, founded on mutual confidence between Member States,
      that it should be considered whether a Member State is entitled to refuse to recognise a licence issued by another Member
      State for reasons relating to the residence of the holder of the licence in question or the fact that the latter has had his
      licence withdrawn or cancelled.
      
      
       1. The condition relating to the residence of the holder of the licence at the time of issue of the licence
      
        36.      Under Article 7(1)(b) of the Directive, a driving licence may only be issued to an applicant who has his normal residence
      in the territory of the Member State issuing the licence.
      
      
        37.      I agree with Mr Kapper and the Netherlands and Italian Governments that it is the task solely of the Member State issuing
      the licence to verify that this condition precedent is complied with, in accordance with the criteria set out in Article 9
      of the Directive. It follows that where a licence has been issued by a Member State, the other Member States cannot refuse
      to recognise it on the grounds that in their view this condition has not been met.
      
      
        38.      To accept the contrary, as the German Government proposes, would strike at the heart of the system established by the Directive
      as well as the principle of mutual recognition, which is its linchpin.
      
      
        39.      As I have already observed in relation to the registration procedure in the Netherlands, the very philosophy of the system
      established by the Directive consists in laying down common rules for the issue of driving licences and in conferring on the
      Member State of issue the exclusive power of ensuring that the rules have been met. 
         			(29)
         		 It is on the basis of this system that the principle of mutual recognition of licences is founded which, it should be borne
      in mind, is intended to operate automatically, that is to say without any special conditions, formalities or investigative
      measures, and therefore requires mutual confidence on the part of the Member States.
      
      
        40.      Accordingly, to accept that a Member State is entitled to check that the holder of a licence issued by another Member State
      has fulfilled the condition as to residence of the holder and that, should the first-mentioned Member State take the view
      that there has been a failure to comply with that condition, it may refuse to recognise the licence in question, would amount
      to stripping the principle of mutual recognition of licences of its substance and destroying the mutual confidence which must
      guide Member States in the matter.
      
      
        41.      Similar considerations led the Court to hold that ‘if a person holds a driving licence issued by a Member State, that should
      be deemed to be proof that the licence holder has fulfilled the conditions for the issue of a licence provided for in Directive
      91/439; the host Member State cannot then require the holder to prove again that he or she actually satisfied the conditions
      laid down in Articles 7(1)(b) and 9 of Directive 91/439, without violating the principle of mutual recognition of driving
      licences’. 
         			(30)
         		
      
        42.      The Court’s analysis is based on the fact that ‘this requirement [of proof] negates the very recognition of driving licences
      issued by other Member States, because it amounts to rechecking whether the licence holder has fulfilled the conditions for
      obtaining a licence provided for in Articles 7(1)(b) and 9 of Directive 91/439’. 
         			(31)
         		
      
        43.      The Court was careful to emphasise in that regard that this requirement meant that the holder of the licence to be registered
      had to prove something the evidence for which could be extremely difficult to provide owing to the time which might elapse
      between when the licence is obtained and when the person took up residence in the Netherlands and the distance there might
      be between the place where the licence holder resided (when the driving licence was obtained) and the municipality in which
      the licence holder decided to take up residence (in the Member State in question). 
         			(32)
         		
      
        44.      In my opinion, that which applies to a requirement that the holder of the licence himself must prove as a matter of course
      that he has met the residence condition referred to above, in the context of a registration procedure with a Member State
      which did not issue the licence, applies also to the checks or investigations which that Member State would undertake in that
      regard in order to decide whether to grant or refuse recognition of the licence.
      
      
        45.      Such a process would amount to rechecking whether the holder of a licence issued by another Member State had fulfilled the
      residence condition laid down by the Directive for obtaining the licence. As the Court has held, the holding of such a licence
      should be deemed to be proof that the holder of the licence in question has fulfilled that condition. The fact that such proof
      exists thus necessarily preludes a Member State from disregarding the obligation to recognise a licence issued by another
      Member State solely on the ground that in its opinion there was evidence which suggested that the condition had not been fulfilled
      and thus calling into question the reliability of that proof. That is all the more the case as, if such evidence were taken
      into account by that Member State as grounds for refusing to recognise the licence in question, its holder would ultimately
      be required to provide evidence once again that he had fulfilled that condition, which, as the Court has held, would also
      be contrary to the principle of the mutual recognition of licences.
      
      
        46.      I am therefore of the opinion that a Member State is not entitled either to check that the holder of a licence issued by another
      Member State has properly fulfilled the residence condition laid down by the Directive, or to refuse to recognise the licence
      in question on the ground that it has taken the view that the holder has not fulfilled that condition.
      
      
        47.      Contrary to what the Commission suggests, I believe that this conclusion also applies where, as is the case in Germany, such
      checks are not carried out as a matter of course, but are limited to those cases where the Member State concerned had significant
      doubts as to compliance with the residence condition.
      
      
        48.      Where a Member State has such doubts, it may so inform the Member State which issued the licence by way of an exchange of
      information under Article 12(3) of the Directive. 
         			(33)
         		 It should nevertheless be made clear that if the result of such an exchange is that the Member State which issued the licence
      confirms that the residence condition in question was properly fulfilled, the Member State concerned continues to be required
      to recognise the disputed licence, even if it is not convinced by the reply it has received. It is thus not entitled to rely
      on its own checks or investigations into the matter, even if confined to the specific case, to refuse to recognise the licence.
      
      
        49.      That being so, were the host Member State to take the view that the Member State which had issued the licence had carried
      out inadequate checks into the residence condition in question, it would always be open to the former to bring infringement
      proceedings under Article 227 EC.
      
      
        50.      In that regard, I am aware that it is possible (although very unlikely) that as a result of an exchange of information the
      Member State which issued the licence realised that, contrary to what it had believed when the licence was issued, the residence
      condition laid down by the Directive had not been properly fulfilled. Nevertheless, even in such a case, I believe that a
      refusal to recognise the licence would still not be permissible. 
         			(34)
         		
      
        51.      Unlike the Commission, I find it difficult to place the failure of the holder of a licence to fulfil the residence condition
      in the Member State in which it was issued on the same footing as the situation before the Court in Van de Bijl. 
         			(35)
         		
      
        52.      In that case, the Court considered the position of a Netherlands national who wished to exercise the trade of a self-employed
      painter, but was unable to establish that he had the qualifications required to exercise it in that Member State, and who
      relied in his dealings with the Netherlands authorities on a certificate issued by the United Kingdom authorities which stated
      that he had carried on that activity in the United Kingdom for a specified period, with a view to being granted permission
      to carry on the activity concerned in the Netherlands under Directive 64/427/EEC. 
         			(36)
         		 That directive provided that where, in a Member State, the taking up or pursuit of certain activities was dependent on the
      possession of certain knowledge and ability, that Member State should accept as sufficient evidence of such knowledge and
      activity the fact that the activity in question had been pursued in another Member State for a specified period, relying for
      that purpose on a certificate issued by the authorities of the latter Member State.
      
      
        53.      That condition precedent as to the carrying on of an activity arose in the context of a temporary system of authorisation
      for carrying on those activities, pending the coordination of national rules relating to the taking up and pursuit of those
      activities, and the mutual recognition of qualifications. 
         			(37)
         		 The condition reflected the legitimate concern of the host Member State that it should be satisfied that the person concerned
      possessed certain general knowledge and ability sufficient to pursue the intended activity, in order to protect the interests
      of the recipients of that activity.
      
      
        54.      That context explains why the Court held that ‘the competent authority in the host Member State, when it is presented with
      an application for a licence to take up an activity on the basis of a certificate drawn up by the competent authority of the
      Member State from which the beneficiary comes pursuant to ... the directive, is not bound to grant the application automatically
      if the certificate produced contains a manifest inaccuracy inasmuch as it states that the person covered ... has completed
      a period of professional activity in the Member State from which he comes, when it is clear that during that same period the
      person in question has pursued his activities in the territory of the host Member State’. 
         			(38)
         		
      
        55.      In my opinion, that case-law cannot be applied to the situation in the main proceedings.
      
      
        56.      It should be pointed out first of all that the residence condition under the Directive is part of a system of recognition
      of driving licences, and not of authorisation, which will as a rule exclude all discretion on the part of other Member States
      than the State of issue as to fulfilment of the conditions for obtaining those licences.
      
      
        57.      Moreover, that residence condition does not reflect needs which are comparable to those applying to the possession of general
      knowledge and ability, which are intended to protect the interests of recipients of an activity carried on by a self-employed
      person. However important it may be in the structure of the system established by the Directive, the condition cannot be treated
      in the same way as an essential condition, such as the passing of certain tests of skills and behaviour and theoretical tests,
      all of which are prompted by overriding reasons relating to the public interest, as Article 7(1)(a) of the Directive requires.
      
         			(39)
         		
      
        58.      It follows from this reasoning that the parallel suggested by the Commission between the failure to fulfil the residence condition
      under the Directive which has been found and the situation considered by the Court in the Van de Bijl  judgment, cited above, is not relevant in my opinion. That judgment does not therefore call into question my analysis.
      
      
        59.      In my opinion, such a failure does not of itself justify a refusal to recognise the driving licence in question, nor indeed
      does it justify the withdrawal or cancellation of the licence by a Member State which did not issue the licence (with effects
      on its own territory). 
         			(40)
         		 That being the case, if a Member State which issues licences were consistently to fail to meet its obligation to confirm
      that the residence condition has been fulfilled, the host Member State and the Commission could bring infringement proceedings
      against the Member State in question under Articles 226 and 227 EC.
      
      
        60.      It is moreover not inconceivable that the Member State which issued the licence might decide that by reason of the irregularity
      which has been found it should withdraw or cancel the licence, operating a mirror procedure, with the result that the other
      Member States would plainly not be required to recognise it.
      
      
        61.      I am accordingly of the opinion that the combined provisions of Article 1(2), Article 7(1)(b) and Article 9 of the Directive
      should be interpreted as meaning that a Member State is not entitled to refuse to recognise a licence issued by another Member
      State on the ground that in its opinion the holder of the licence in question had not taken up normal residence in the latter
      Member State at the time when the licence was issued.
      
      
       2. The effects of a withdrawal or cancellation of a licence issued by a Member State as regards a licence issued subsequently
      by another Member State
      
        62.      The question here is whether a Member State is entitled to refuse to recognise a licence issued by another Member State on
      grounds other than that considered above, on the basis of measures taken against the holder of the licence in question to
      withdraw or cancel a licence previously issued by the first Member State.
      
      
        63.      According to Mr Kapper, it is possible that, on the basis of Article 8(4) of the Directive, the German authorities might refuse
      to recognise the validity in their territory of a licence issued by another Member State so long as a national measure such
      as a suspension or cancellation of the right to drive for a specified period was in place. However, it is certainly not open
      to them to do so after that time.
      
      
        64.      Similarly, the Italian Government submits that these provisions are solely intended to secure the application of a criminal
      penalty, such as the suspension or withdrawal of a licence, so that its holder cannot avoid these by improperly relying on
      a licence obtained in another Member State. Once the criminal penalty has been executed, the Member State in which it was
      imposed is no longer entitled to refuse to recognise the licence.
      
      
        65.      According to the Commission, the Directive does not prevent a Member State from refusing to recognise a licence issued by
      another Member State when its holder has had his national licence withdrawn and the first-mentioned Member State has not reinstated
      it. It added at the hearing that such a refusal of recognition, based on Article 8(4) of the Directive, could not apply indefinitely,
      particularly where, at a given time, the person concerned could once more obtain a licence in his home country.
      
      
        66.      Having considered the observations of the parties, I am of the opinion that in circumstances such as those arising in the
      main proceedings such a refusal to recognise a licence cannot be justified on the basis of either Article 8(2) of the Directive
      or Article 8(4).
      
      
        67.      As far as Article 8(2) of the Directive is concerned, I note that it provides that where the holder of a valid national driving
      licence issued by a Member State has taken up normal residence in another Member State, the host Member State may, subject
      to the observance of the principle of territoriality of criminal and police laws, apply its national provisions on the restriction,
      suspension, withdrawal or cancellation of the right to drive to the holder of the licence and, if necessary, exchange the
      licence for that purpose.
      
      
        68.      In my opinion, these provisions of the Directive, which do not apply only to exchanges of licences, 
         			(41)
         		 cover the situation where the holder of a licence is accused of committing a road traffic offence in the host Member State
      and where the relevant authorities in that Member State intend to impose on him a penalty by way of restriction, suspension,
      withdrawal or cancellation of the right to drive, whose effects would be limited to the Member State concerned. 
         			(42)
         		
      
        69.      This is not the situation in which Mr Kapper finds himself in the main proceedings.
      
      
        70.      When the order was made in Germany for the withdrawal (equivalent to cancellation) of his licence, that punishment applied
      only to the German licence which he had previously held, before obtaining the Netherlands licence in issue. The question does
      not arise in the main proceedings whether, under Article 8(4) of the Directive, the German authorities are entitled to order
      the withdrawal or cancellation of Mr Kapper’s licence once again, this time in relation to his Netherlands licence. The only
      point at issue is whether the German authorities are entitled to refuse to recognise the validity of the Netherlands licence.
      As with the residence condition, this question must be answered in the negative. It follows that Mr Kapper’s Netherlands licence
      must be treated as valid, so that the offence with which he is charged (that of driving without a valid licence) cannot be
      sustained. As such an offence has not been committed, Article 8(2) of the Directive will not apply to the person concerned.
      
      
        71.      In my opinion, contrary to what the German Government contends, Article 8(2) of the Directive cannot be interpreted as meaning
      that a host Member State is entitled to refuse to recognise a licence issued by another Member State where, under the national
      rules (of the host Member State in question) relating to the restriction, suspension, withdrawal or cancellation of the right
      to drive, the right to drive in that Member State has been removed from the holder of the licence by reason of his previously
      having been banned from driving (by the authorities of that Member State), even where that penalty has been fully executed
      and thus ceased to have effect. As will be seen, a broad interpretation of these provisions of the Directive would make Article
      8(4) of the Directive redundant.
      
      
        72.      As regards the last-mentioned provisions of the Directive, I am of the view that these should be narrowly interpreted, to
      mean that a Member State is entitled to refuse to recognise a licence issued by another Member State when the authorities
      of the first Member State have imposed on the holder of the licence in question a measure which restricts, suspends, withdraws
      or cancels the right to drive only where such a measure has not been fully executed and its effects have not therefore been
      exhausted. There are several factors which support such an interpretation.
      
      
        73.      First of all, as the Italian Government observed, it follows from the wording of these provisions 
         			(43)
         		 that the option open to Member States (to refuse to recognise the validity of a licence issued by another Member State) applies
      only to the case of a person ‘who is’ in its territory the subject of one of the measures referred to above, which falls to
      be distinguished from a person ‘who was’ the subject of such measures. The use of the present, and not the past, tense clearly
      reflects the will of the Community legislature to limit the use of that option to measures removing or restricting the right
      to drive which are current, that is to say which remain enforceable.
      
      
        74.      It should moreover be noted that the option given to Member States under Article 8(4) of the Directive constitutes an exception
      to the principle of recognition of licences laid down in Article 1(2). It follows under settled case-law that Article 8(4)
      of the Directive should be interpreted narrowly.
      
      
        75.      Lastly, it should be pointed out that the purpose of the Directive is to establish a Community model licence and to introduce
      a system of mutual recognition of those licences without any requirement for exchange, in order inter alia to facilitate the
      movement of persons settling in a Member State other than that in which they have passed a driving test. 
         			(44)
         		 The principle of mutual recognition of licences laid down in Article 1(2) of the Directive therefore constitutes the linchpin
      of the system established by the Directive. For a Member State to be entitled to rely on its national rules to refuse indefinitely
      or permanently to recognise a licence issued by another Member State would run entirely contrary to this principle. 
         			(45)
         		
      
        76.      I would also note that it is clear from the second paragraph of Article 10 of the Directive that where a Member State wishes
      to adopt provisions under its national legislation intended to implement Article 8(4) of the Directive, it must obtain the
      prior agreement of the Commission. This requirement exists in order to ensure that the proposed national legislation complies
      with the terms of Article 8(4) of the Directive. For that reason, it is important that such an agreement is expressed in legally
      binding form, and is not limited to an implicit or informal understanding, as was the case with the German rules at issue
      in the main proceedings. 
         			(46)
         		
      
        77.      I am accordingly of the opinion that Article 1(2) and Article 8(4) of the Directive should be interpreted as meaning that
      a Member State is entitled to refuse to recognise a driving licence issued by another Member State where the authorities of
      the first Member State have imposed on the holder of the licence in question a measure which restricts, suspends, withdraws
      or cancels the right to drive only where such a measure has not been fully executed and its effects have therefore not been
      exhausted.
      
       
      V –  Conclusion
        78.      In light of the foregoing considerations, I propose that the Court should answer as follows the questions referred for a preliminary
      ruling by the Amtsgericht Frankenthal, Pfalz:
      
      (1)
         The combined provisions of Article 1(2), Article 7(1)(b), Article 8 and Article 9 of Council Directive 91/439/EEC of 29 July
            1991 on driving licences are to be interpreted as meaning that a Member State is not entitled to refuse to recognise a licence
            issued by another Member State on the ground that in its opinion the holder of the licence in question had not taken up normal
            residence in the latter Member State at the time when the licence was issued. 
         
      
      
      (2)
         However, a Member State is entitled under Article 8(4) of the Directive to refuse to recognise such a licence where the authorities
            of that Member State have imposed on the holder of the licence in question a measure which restricts, suspends, withdraws
            or cancels the right to drive only where such a measure has not been fully executed and its effects have therefore not been
            exhausted.
         
      
      
      
       1 –
         
         Original language: French.
      
      2 –
         
         Council Directive of 4 December 1980 on the introduction of a Community driving licence (OJ 1980 L 375, p. 1).
            
         
      
      3 –
         
         Council Directive of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1) (hereinafter ‘the Directive’).
            
         
      
      4 –
         
         Article 6 of the Directive.
            
         
      
      5 –
         
         Article 7(1)(a) of the Directive.
            
         
      
      6 –
         
         .Ibidem.
         
      
      7 –
         
         Article 7(1)(b) of the Directive.  ‘Normal residence’ is defined in Article 9 of the Directive as the place where a person
            usually lives, that is, for at least 185 days in each calendar year, because of personal and occupational ties, or, in the
            case of a person with no occupational ties, because of personal ties which show close links between that person and the place
            where he is living. The article states that the normal residence of a person whose occupational ties are in a different place
            from his personal ties and who consequently lives in turn in different places situated in two or more Member States is to
            be regarded as being the place of his personal ties, provided that such person returns there regularly (this last condition
            need not be met however where the person is living in a Member State in order to carry out a task of a definite duration).
            
         
      
      8 –
         
         See the second paragraph of Article 10 of the Directive.
            
         
      
      9 –
         
         .Bundesgesetzblatt 1999 I, p. 2214.  The relevant provisions of this regulation have, as regards the main proceedings, been very slightly amended
            by a regulation of 7 August 2002, which came into force on 1 September 2002.
            
         
      
      10 –
         
         Paragraph 28(4)(2) of the FeV. Similar provisions were in place under the first paragraph of Article 1(4) of the Verordnung
            zur Umsetzung der Richtlinie 91/439/EEC des Rates vom 29 Juli 1991 über den Führerschein und zur Änderung straßenverkehrsrechtlicher
            Vorschriften (Bundesgesetzblatt 1991 I, p. 885, hereinafter ‘the regulation implementing the Directive’). This regulation was adopted on 19 June 1996 and
            was in force from 1 July 1996 until 31 December 1998 (when the FeV, which replaced it, came into force).
            
         
      
      11 –
         
         Paragraph 28(4)(3) of the FeV.
            
         
      
      12 –
         
         Paragraph 28(4)(4) of the FeV.
            
         
      
      13 –
         
         In German law, the withdrawal of a licence (‘Entziehung’) automatically entails the loss or cancellation of the right to drive
            and not simply its suspension. Such a measure requires to be coupled with a prohibition on taking out a new licence for a
            period fixed by the court (a ‘blocked period’). At the end of the blocked period, the person concerned is only permitted to
            resume driving once he has been authorised to do so by the competent authorities, having passed a number of aptitude tests.
            
         
      
      14 –
         
         For an illustration, see in particular the order of the Bundesgerichtshof of 20 June 2002 (4StR 371/01, NJW 2002, p. 2330).
            
         
      
      15 –
         
         See, inter alia, the order of the Bundesgerichtshof cited above (III,  paragraph 2).
            
         
      
      16 –
         
         It followed from the first paragraph of Article 1(4) of the regulation implementing the Directive that the holder of a licence
            issued by another Member State who had previously had his German licence provisionally withdrawn or who could not obtain such
            a licence by reason of a final judicial decision was not entitled to drive a vehicle in Germany for so long as this provision
            applied to him.  At the expiry of the period in question, the person concerned could automatically rely in Germany on his
            licence issued by another Member State.
            
         
      
      17 –
         
         However, the regulation of 7 August 2002, which came into force on 1 September 2002, made it possible to put an end to the
            situation where the right to drive was lost. Under Paragraph 28(5) of the FeV, as amended, permission to drive in Germany
            under a licence issued by another Member State may be granted by the German authorities when the person concerned so requests,
            provided that the circumstances which led to the withdrawal of the licence no longer exist. These provisions concern specifically
            the situation where the holder of a German licence has had his licence withdrawn by the German authorities and has subsequently
            obtained a new licence from another Member State.
            
         
      
      18 –
         
         This point was stated for the first time in Case 16/65 Schwarze [1965] ECR 877, 886.
            
         
      
      19 –
         
         See inter alia Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C-153/00 Der Weduwe [2002] ECR I‑11319, paragraph 31, and Case C-318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I-905, paragraph 41.
            
         
      
      20 –
         
         See inter alia Case 244/80 Foglia [1981] ECR 3045, paragraph 21, PreussenElektra, paragraph 39, Der Weduwe, paragraph 39, and Bacardi-Martini and Cellier des Dauphins, paragraph 42.
            
         
      
      21 –
         
         See inter alia Bosman, cited above, paragraph 61, Case C-437/97 EKW and Wein & Co. [2000] ECR I-1157, paragraph 52, Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20, and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 19.
            
         
      
      22 –
         
         See Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6, and, in particular, the Opinion of Advocate General Gulmann in that case, paragraphs 5 to
            21. See also Case C-157/92 Banchero [1993] ECR I-1085, paragraph 6, and Case C-378/93 La Pyramide [1994] ECR I-3999, paragraph 14.
            
         
      
      23 –
         
         It is not for the Court to take a view on the application of national law ratione tempore. Nevertheless, a reading of the order of the Bundesgerichtshof of 20 June 2002 referred to above suggests that the FeV is
            applicable to Mr Kapper’s situation, to the exclusion of the regulation implementing the Directive.
            
         
      
      24 –
         
         See inter alia Case C-67/96 Albany [1999] ECR I-5751, paragraph 40, and Case C-35/99 Arduino [2002] ECR I-1529, paragraphs 28 and 29, and my Opinion in that case, point 30.
            
         
      
      25 –
         
         See my Opinion in Case C-246/00 Commission v Netherlands [2003] ECR I-7485, point 38.
            
         
      
      26 –
         
         Case C-193/94 [1996] ECR I-929, paragraph 26.
            
         
      
      27 –
         
         Case C-230/97 [1998] ECR I-6781, paragraph 41.
            
         
      
      28 –
         
         Paragraphs 60 and 61.
            
         
      
      29 –
         
         See my Opinion in Commission v Netherlands, cited above, point 42.
            
         
      
      30 –
         
         .Commission v Netherlands, cited above, paragraph 75. The complaint against the Kingdom of the Netherlands in that case was that it had instituted
            a system of compulsory registration of driving licences issued by other Member States, a year after the holder of such a licence
            had taken up residence in the Netherlands, and had imposed a registration system so cumbersome that it could barely be distinguished
            from a procedure for exchanging licences. It was cumbersome in particular owing to the fact that the holder of the licence
            to be registered was required to prove to the Netherlands authorities that during the year in which the licence was obtained
            he had resided for at least 185 days in the Member State in which the licence was issued or had been enrolled for at least
            six months at a school or university in that State.
            
         
      
      31 –
         
         Paragraph 74.
            
         
      
      32 –
         
         .Ibidem.
         
      
      33 –
         
         See in that regard the Commission interpretative communication on Community driver licensing (OJ 2002 C 77, p. 5, Part II,
            paragraph C.2).
            
         
      
      34 –
         
         It is very likely that this situation does not apply in the main proceedings. Nothing in the documents before the Court suggests
            that the German authorities have exchanged information with the Netherlands authorities as regards the licence issued by the
            latter to Mr Kapper. Moreover, if, at the hearing, he claimed to have spent eight months in the Netherlands when the licence
            was issued, and to have subsequently returned to Germany, where he now resides, that information could neither be affirmed
            nor denied by the Netherlands Government, which was not present at the hearing (nor indeed by the German Government, which
            was also not present). It is therefore not known whether in fact Mr Kapper did not fulfil the residence condition in question.
            That being the case, the possibility falls to be considered for the sake of completeness.
            
         
      
      35 –
         
         Case 130/88 [1989] ECR 3039.
            
         
      
      36 –
         
         Council Directive of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities
            of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23 to 40 (Industry and
            small craft industries) (OJ, English Special Edition 1963-64, p. 148).
            
         
      
      37 –
         
         See Van de Bijl, cited above, paragraph 14.
            
         
      
      38 –
         
         .Ibidem, paragraph 27.
            
         
      
      39 –
         
         It would appear that that is not the view of the Commission as expressed in its interpretative communication cited above.
            The consequences of a breach of Article 7(1)(b) of the Directive are the same as those relating to a breach of Article 7(1)(a).
            
         
      
      40 –
         
         Contrary to what the Commission suggests in its interpretative note cited above (Part II, paragraph C.2.3), it is my view
            that even if it were agreed that the residence condition laid down by the Directive had not been fulfilled, a Member State
            is not entitled to cancel, with effects in its territory, a licence issued by another Member State (short of subsequently
            returning it to the Member State which issued it, so that the latter may proceed to cancel it itself, with consequent effects
            in all Member States). The effects of cancelling a licence in this way would be largely similar to those resulting from a
            decision to refuse to recognise a licence.
            
         
      
      41 –
         
         Contrary to what the order for reference assumes.
            
         
      
      42 –
         
         See, to that effect, the Commission’s interpretative communication, cited above, Part II, paragraph C.2.1.
            
         
      
      43 –
         
         At least in the Italian and French versions.
            
         
      
      44 –
         
         See the first recital in the preamble to the Directive. The importance of the recognition of driving licences has been emphasised
            by the Court as regards the freedom of movement of workers as well as the freedom of establishment and the freedom to provide
            services. See Skanavi and Chryssanthakopoulos, cited above, paragraph 23.
            
         
      
      45 –
         
         I note that that appears to be the effect of the German legislation (the FeV), as currently applied under national case-law.
            See in that regard points 12 and 13 of this Opinion
            
         
      
      46 –
         
         Moreover, in accordance with the first paragraph of Article 10 of the Directive, the Commission has already formalised its
            agreement in the form of a decision (Decision 2000/275/EC of 21 March 2000 on equivalences between certain categories of driving
            licences, OJ 2000 L 91, p. 1). It will probably do the same with the agreement provided for under the second paragraph of
            Article 10 of the Directive.