CELEX: 62007CC0001
Language: en
Date: 2008-07-17 00:00:00
Title: Opinion of Mr Advocate General Bot delivered on 17 July 2008. # Criminal proceedings against Frank Weber. # Reference for a preliminary ruling: Landgericht Siegen - Germany. # Directive 91/439/EEC - Mutual recognition of driving licences - Temporary suspension of a driving licence - Withdrawal of right to drive - Validity of a second driving licence obtained in another Member State during the period of temporary suspension. # Case C-1/07.

OPINION OF ADVOCATE GENERAL
      BOT
      
      delivered on 17 July 2008 1(1)
      
      Case C‑1/07
      Staatsanwaltschaft Siegen
      v
      Frank Weber
      [Reference for a preliminary ruling from the Landgericht Siegen (Germany)]
      (Directive 91/439/EEC – Article 8(2) and (4) – Driving licences – Mutual recognition of driving licences – Misconduct by the holder prior to the issue of the second driving licence – Procedure to examine fitness – Withdrawal of the driving licence – Improvement of road safety)1.        In the present case the Court is invited to specify the scope of Article 8(2) and (4) of Directive 91/439/EEC (2) which permits a Member State to refuse to recognise the validity of any driving licence issued by another Member State if
         the holder is, in the first Member State’s territory, subject to a measure which restricts, suspends, withdraws or cancels
         the right to drive.
      
      2.        The special feature of this case is that a licence was issued to a person even though he was the subject of a procedure to
         examine his fitness to drive following a road traffic offence committed before the issue of the licence.
      
      3.        The referring court therefore asks whether, under those circumstances, the Member State on whose territory the withdrawal
         measure was adopted may refuse to recognise the validity of the licence thus issued.
      
      4.        In this opinion, I will propose that the Court interprets Article 8(2) and (4) of Directive 91/439 as meaning that a Member
         State is entitled to refuse to recognise the validity of a driving licence issued by another Member State when the licence
         has been issued even though, following a road traffic offence committed previously on the territory of the first Member State,
         a procedure to examine the holder’s fitness to drive was ongoing.
      
      I –  Legal background
      A –    Community law
      5.        With the aim of facilitating the circulation of persons within the Community or their establishment in a Member State other
         than that in which they passed their driving test, Directive 91/439 established the principle of mutual recognition of driving
         licences. (3)
      
      6.        The laying down, in that Directive, of the minimum requirements for the issue of a driving licence also has the objective
         of improving road safety in the European Union. (4)
      
      7.        Article 7(1)(a) of the Directive provides as follows:
      
      ‘Driving licences shall, moreover, be issued only to those applicants:
      who have passed a test of skills and behaviour and a theoretical test and who meet medical standards, in accordance with the
         provisions of Annexes II and III.’
      
      8.        In particular, Directive 91/439 provides that driving licences shall not be issued to, or renewed for, applicants or drivers
         who are dependent on alcohol or psychotropic substances.
      
      9.        In fact, point 14.1 of Annex III to that Directive provides:
      
      ‘Driving licences shall not be issued to, or renewed for, applicants or drivers who are dependent on alcohol or unable to
         refrain from drinking and driving.’
      
      10.      Point 15 of the same annex provides:
      
      ‘Driving licences shall not be issued to or renewed for applicants or drivers who are dependent on psychotropic substances
         or who are not dependent on such substances but regularly abuse them, whatever category of licence is requested.’
      
      11.      Article 7(5) of the Directive provides that no person may hold more than one driving licence.
      
      12.      Article 8(2) of Directive 91/439 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.
      
      13.      Article 8(4) of that Directive provides as follows:
      
      ‘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.
      
      A Member State may likewise refuse to issue a driving licence to an applicant who is the subject of such a measure in another
         Member State.’
      
      B –    National law
      14.      Paragraph 28(1) of the regulation on the authorisation of persons to drive on the highways (Verordnung über die Zulassung
         von Personen zum Straßenverkehr, the ‘FeV’) provides that holders of a driving licence issued by a Member State of the Union
         are authorised to drive on the territory of the Federal Republic of Germany.
      
      15.      However, according to Article 28(4)(3) of the FeV that authorisation does not apply to persons whose driving licence has been
         provisionally or definitively withdrawn, in Germany, by a court or been withdrawn by an immediately enforceable or final decision
         of an administrative authority.
      
      16.      By virtue of Article 46 of the FeV, the driving licence authority is to withdraw the right to drive if it is shown that the
         holder of a licence is unfit to drive motor vehicles, in particular in the case of serious or repeated contraventions of provisions
         of road traffic or criminal law.
      
      17.      Moreover, Article 3(1) of the Law on Road Traffic (the Straßenverkehrsgesetz) provides that ‘[i]f a person is unfit to drive
         motor vehicles, the driving licence authority is to withdraw the right to drive. In the case of a foreign licence, its withdrawal
         – even if under other provisions – shall have the effect of revoking the right to use the driving licence in Germany...’
      
      II –  Facts and procedure
      18.      Mr Weber, resident in Germany, was the subject of a road check on 18 September 2004. During this check, it was noted that
         he was under the influence of cannabis and amphetamine. Following that  offence, the Kreis Siegen-Wittgenstein (local authority
         of Siegen-Witgenstein), by administrative decision of 17 November 2004, which became final on 4 December 2004, imposed a fine
         and decided to suspend his driving licence for one month.
      
      19.      On 18 November 2004, the Czech authorities issued a driving licence to Mr Weber, who had passed his driving test on 16 November
         2004.
      
      20.      Because of the offence committed on 18 September 2004, the Ordnungsamt of the Kreis Siegen‑Wittgenstein initiated a procedure
         to examine Mr Weber’s fitness to drive. He was informed of this on 7 January 2005 and handed in his German driving licence
         to the competent administrative authorities in February 2005.
      
      21.      By decision of 17 March 2005, which became final on 6 April 2005, the Ordnungsamt of the Kreis Siegen‑Wittgenstein decided
         to withdraw Mr Weber’s German driving licence.
      
      22.      The referring court also points out that the latter did not comply, within the time-limit set, with the obligation imposed
         on him to obtain a medical‑psychological report to prove his fitness to drive and that the German administrative authorities
         were unaware that he had a Czech driving licence.
      
      23.      On 6 January 2006, when driving on public roads in Germany, Mr Weber was stopped by the police, to whom he produced his Czech
         driving licence.
      
      24.      Following that check, the Amtsgericht Siegen (Local Court, Siegen), by judgment of 22 August 2006, convicted Mr Weber of negligent
         driving without a licence. He appealed against that judgment to the Landgericht Siegen (Regional Court, Siegen).
      
      III –  The question referred
      25.      It is in this context that the Landgericht Siegen decided to stay proceedings and to request a preliminary ruling from the
         Court of Justice on the following question:
      
      ‘Is Article 1(2) in conjunction with Article 8(2) and (4) of Directive 91/439/EEC to be interpreted as meaning that a Member
         State is precluded, within its territory, from refusing to recognise the validity of a right to drive under a driving licence
         issued by another Member State, and therefore the validity of that licence, because the right to drive was withdrawn from
         its holder in the first Member State after the grant to him in another Member State of a so-called “second” EU driving licence,
         if the withdrawal of the right to drive is based on an incident or on misconduct which occurred prior to the issue of the
         driving licence by the other Member State?’
      
      IV –  Analysis
      26.      By its question, the referring court asks, essentially, whether Article 8(2) and (4) of Directive 91/439 must be interpreted
         as meaning that a Member State is entitled to refuse to recognise the validity of a driving licence issued by another Member
         State when the licence has been issued even though, following a road traffic offence committed previously on the territory
         of the first Member State, a procedure to examine the holder’s fitness to drive was ongoing.
      
      27.      It should be noted that, in the case in the main proceedings, the person holding a German driving licence committed a road
         traffic offence in Germany. Around one month after the offence, that person obtained a Czech driving licence although, following
         the offence, a procedure to examine his fitness to drive was pending and that procedure ultimately led to withdrawal of the
         German licence.
      
      28.      The question is therefore whether the German authorities are obliged to recognise the validity of the second licence obtained
         while that procedure was underway.
      
      29.      The present case allows the Court to clarify the case-law developed in Case C‑476/01 Kapper (5) and in its orders of 6 April 2006, in Halbritter (6) and 28 September 2006, in Kremer. (7)
      
      30.      In Kapper, cited above, the Court, which had already held that the obligation of mutual recognition of driving licences applies without
         any formality and leaves no discretion to the Member States as to the measures to be adopted to comply with it, (8) applied the principle of mutual recognition in all its force.
      
      31.      In fact, the Court ruled that the host Member State is not entitled to verify the conditions of issue of a driving licence
         obtained in another Member State. Consequently, the host Member State is obliged to recognise the validity of the driving
         licence obtained in this way. (9)
      
      32.      The Court has, however, observed that that there is an exception to the principle of mutual recognition of driving licences
         resulting from the very wording of Directive 91/439. Article 8(2) and (4) of that Directive provides that a Member State may
         refuse to recognise the validity of any driving licence obtained in another Member State if the holder is, in the first Member
         State’s territory, subject to a measure which restricts, suspends, withdraws or cancels the right to drive.
      
      33.      The Court had the opportunity to clarify that provision in Kapper, Halbritter and Kremer, cited above.
      
      34.      It first stated that, as that provision derogates from the principle of mutual recognition, it must be strictly interpreted. (10) It also clarified that the circumstances in which a driving licence may not be recognised as valid, in accordance with Article
         8(2) and (4) of Directive 91/439, are not limited to cases where the holder of the licence asks to exchange it. That provision
         also has the aim of allowing a Member State to apply, within its territory, its national provisions concerning the withdrawal,
         suspension or cancellation of driving licences, when the holder of a licence has, for example, committed an offence. (11)
      
      35.      The Court then ruled that that provision may not be used by a Member State as a basis for refusing indefinitely to recognise
         the validity of a licence issued in another Member State, when the holder of the licence has been subject, in the territory
         of the first Member State, to a restrictive measure. It clarified that, when the prohibition on requesting a new licence has
         expired in the territory of the host Member State, Article 8(2) and (4) of Directive 91/439 preclude that Member State from
         continuing to refuse to recognise the validity of any driving licence subsequently issued by another Member State. (12)
      
      36.      Such an interpretation applies a fortiori when the measure withdrawing the driving licence does not include a period in which it is prohibited to apply for a new licence. (13) In such a case, the host Member State must recognise a driving licence issued by another Member State after the measure of
         withdrawal. The host Member State could then only apply Article 8(2) of Directive 91/439 in the case of wrongful conduct by
         the party concerned which took place after the new driving licence was obtained. (14)
      
      37.      In Kapper, Halbritter and Kremer, cited above, the holders of driving licences, recognition of which was contested, had obtained their licence after the measure
         of withdrawal or after the expiry of the period in which it was prohibited to apply for a new licence. Controls had been carried
         out, the offence sanctioned, and the effects of the restrictive measure were therefore at an end.
      
      38.      The present case is different, as Mr Weber is a person who committed a road traffic offence in Germany and who obtained a
         new licence in the Czech Republic, although he was the subject of a procedure, following that offence and on German territory,
         to examine his fitness to drive. Unlike in the cases on which the Court has already ruled, the time of issue of the new licence,
         in the case in the main proceedings, is after the misconduct and before the measure of withdrawal taken following that conduct.
      
      39.      Therefore, the measures ensuring that a dangerous person could not drive on the road network had not yet been adopted and,
         in any case, these measures had not exhausted their effects.
      
      40.      I recall that, in that respect, it is apparent from paragraphs 14.1 and 15 of Annex III to Directive 91/439 that a driving
         licence may not be issued to or renewed for a person who is dependent on alcohol or drugs or who, without being dependent,
         regularly consumes or abuses them.
      
      41.      In my opinion, the procedure provided for by German law, in application of points 14.1 and 15 of Annex III of that Directive
         and which follows the commission of an offence, has the aim of establishing precisely, for example by blood tests and monitoring
         of a person, whether the latter is still under the influence of alcohol or drugs.
      
      42.      Moreover, when an offence is committed on the territory of a Member State, only that State is competent to sanction that offence
         by taking, where appropriate, a measure which withdraws the licence from that person, with or without a period in which it
         is prohibited to apply for a new licence.
      
      43.      Therefore, in a case such as the present, I  believe that Article 8(2) and (4) of Directive 91/439 must allow a Member State
         on whose territory a procedure to examine a person’s fitness to drive is pending not to recognise a driving licence issued
         by another Member State during that procedure.
      
      44.      Firstly, the procedure pending in the Member State on whose territory the offence was committed has the objective of assessing
         whether a person may be dangerous. However, the new licence was issued to him without the in-depth tests foreseen under German
         law having been carried out.
      
      45.      To admit the validity of that new driving licence would therefore go against the objective of Directive 91/439, which is the
         improvement of road safety.
      
      46.      Secondly, the person concerned cannot, by obtaining a new driving licence, avoid the sanctions which may be imposed on him
         as a result of the offence committed on the territory of a Member State.
      
      47.      Finally, the issue of a driving licence, in circumstances such as those in the main proceedings, goes against the requirements
         of Article 7(5) of Directive 91/439. At that stage of the proceedure, when the person concerned had obtained a new driving
         licence, he still held a driving licence issued by the Federal Republic of Germany.
      
      48.      The whole point of that article is to avoid behaviour such as that of Mr Weber. It is apparent from the facts in the main
         proceedings that he, although having committed a road traffic offence, tried to avoid the resulting sanctions by going to
         another Member State to obtain a new driving licence there. (15) Such behaviour is clearly fraudulent.
      
      49.      In other words, to oblige the Federal Republic of Germany to recognise a licence issued while a procedure, following the commission
         of an offence, is still pending would have the consequences of authorising a person in a potentially dangerous state to drive,
         of allowing that person to avoid the criminal sanction which they incurred, and of encouraging fraud.
      
      50.      Therefore, I believe that Article 8(2) and (4) of Directive 91/439 must be interpreted as meaning that a Member State is entitled
         to refuse to recognise the validity of a driving licence issued by another Member State when the licence has been issued even
         though, following a road traffic offence committed previously on the territory of the first Member State, a procedure to examine
         the holder’s fitness to drive was ongoing.
      
      V –  Conclusion
      51.      On the basis of the foregoing, I propose that the Court should reply to the Landgericht Siegen as follows:
      
      Article 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Regulation (EC) No
         1882/2003 of the European Parliament and of the Council of 29 September 2003 must be interpreted as meaning that a Member
         State is entitled to refuse to recognise the validity of a driving licence issued by another Member State when the licence
         has been issued even though, following a road traffic offence committed previously on the territory of the first Member State,
         a procedure to examine the holder’s fitness to drive was ongoing.
      
      1 –	Original language:  French.
      
      2 –	Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1), as amended by Regulation (EC) No
         1882/2003 of the European Parliament and of the Council of 29 September 2003 (OJ 2003 L 284, p. 1, ‘Directive 91/439’).
      
      3 –	See Article 1.
      
      4 –	See recital 4.
      
      5 –	C-476/01, Kapper [2004] ECR I‑5205.
      
      6 –	C-227/05.
      
      7 –	C-340/05.
      
      8 –	See, in particular, Case C‑230/97, Awoyemi [1998] ECR I‑6781, paragraphs 41 and 42.
      
      9 –	Kapper, cited above (paragraphs 47 and 49).
      
      10 –	Ibidem (paragraph 72 and the case-law cited). See also Halbritter, cited above (paragraph 26).
      
      11 –	Kapper, cited above (paragraph 73).
      
      12 –	Ibidem (paragraph 76).
      
      13 –	See Kremer, cited above (paragraphs 33 and 34).
      
      14 –	Ibidem (paragraph 35).
      
      15 –	Mr Weber’s observations indicate, in this regard, that ‘[h]e thought it very likely that the withdrawal of the authorisation
         to drive granted by the German authorities was imminent’ and that was why he went to the Czech Republic to obtain a new permit
         (p. 1).