Criminal proceedings against Ibiyinka Awoyemi.
Date: 1998-10-29
25 Accordingly, in the absence of Community rules governing the matter, the Member States remain competent in principle to impose penalties for breach of such an obligation (see Skanavi and Chryssanthakopoulos, paragraph 36).
26 It is settled case-law that Member States may not impose a criminal penalty in this area so disproportionate to the gravity of the infringement as to become an obstacle to the free movement of persons, in view of the effect which the right to drive a motor vehicle has on the actual exercise of a trade or profession by an employed or self-employed person, particularly with regard to access to certain activities or certain offices (see Skanavi and Chryssanthakopoulos, paragraphs 36 and 38).
28 It follows from the grounds of the judgment in Skanavi and Chryssanthakopoulos, paragraphs 36 to 39, that the justification for the restriction imposed on the power of the Member States to provide for criminal penalties in the event of breach of the obligation to exchange driving licences is the free movement of persons established by the Treaty.
29 A national of a non-member country who finds himself in the same position as Mr Awoyemi may not effectively rely on the rules governing the free movement of persons which, in accordance with settled case-law, apply only to a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or to a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law (see, for example, Case C-147/91 Ferrer Laderer [1992] ECR I-4097, paragraph 7).
33 It should be noted at the outset that, in accordance with Articles 12 and 13 of Directive 91/439, the time-limit for transposing the directive into national law expired on 1 July 1994, the Member States being required to comply with the directive only as of 1 July 1996, the date on which Directive 80/1263 was repealed.
37 It is therefore necessary to answer the questions submitted since it is for the national court to determine both the need for a preliminary ruling in order to enable it to give judgment and the relevance of the questions which it submits to the Court (see, to that effect, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 10;  Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraph 15;  Case C-341/94 Allain [1996] ECR I-4631, paragraph 13, and Skanavi and Chryssanthakopoulos, paragraph 18).
38 Community law does not prevent the national court from taking account, in accordance with a principle of its criminal law, of the more favourable provisions of Directive 91/439 for the purposes of the application of national law, even though, as the Commission has pointed out in its written observations, Community law imposes no obligation to that effect.
41 Furthermore, with regard to the question whether those provisions of the directive are sufficiently precise and unconditional to be capable of being relied upon by an individual in proceedings before a national court, it should be noted, in the first place, that Article 1(2) provides for mutual recognition, without any formality, of driving licences issued by Member States (see Skanavi and Chryssanthakopoulos, paragraph 26), and secondly, that Article 8(1) replaces simply with a right, conferred on the holder of a valid driving licence issued by one Member State where that person has taken up normal residence in another Member State, the obligation to exchange driving licences within the one-year period referred to in the first subparagraph of Article 8(1) of Directive 80/1263, since that obligation is deemed by the ninth recital in the preamble to Directive 91/439 to constitute an obstacle to the free movement of persons.
42 As the Advocate General has stressed in points 37 to 41 of his Opinion, those provisions thus impose on Member States clear and precise obligations which consist in the mutual recognition of Community model driving licences and in the prohibition on requiring the exchange of driving licences issued by another Member State, regardless of the nationality of the holder, since the Member States have no discretion as to the measures to be adopted in order to comply with those requirements.
43 It may be inferred from the direct effect which should therefore be attributed to Articles 1(2) and 8(1) of Directive 91/439 that individuals are entitled to rely on them in proceedings before the national courts.
45 In the light of the foregoing considerations, the answer to the second and third questions must be that a national of a non-member country who holds a valid Community model driving licence issued by one Member State, who has taken up normal residence in another Member State, but who has not exchanged his driving licence within the one-year period prescribed by the first subparagraph of Article 8(1) of Directive 80/1263, is entitled to rely directly on Articles 1(2) and 8(1) of Directive 91/439 in order to challenge the imposition, in the Member State in which he has established his new residence, of a term of imprisonment or a fine for driving without a licence. Community law does not prevent a court of such a Member State, by reason of the principle that forms part of national law in certain Member States of the retroactive effect of more favourable provisions of criminal law, from applying the aforesaid provisions of Directive 91/439 even where the offence took place before the date set for compliance with that directive.