Criminal proceedings against Baris Akyüz.
Date: 2012-03-01
31. While Directive 91/439 is to be repealed only with effect from 19 January 2013, Articles 2(1) and 11(4) of Directive 2006/126 are nonetheless applicable as from 19 January 2009, in accordance with the second subparagraph of Article 18 of that directive.
32. It should be noted that Article 2(1) of Directive 2006/126 provides for the mutual recognition of driving licences issued by Member States. The second subparagraph of Article 11(4) of that directive provides, however, that a Member State is to refuse to recognise the validity of any driving licence issued by another Member State to a person whose driving licence is restricted, suspended or withdrawn in the former State’s territory, irrespective of whether or not that licence had been issued before the date on which that provision became applicable.
40. In that respect, it must be noted that, according to the Court’s settled case-law, Article 1(2) of Directive 91/439 provides for the mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on those Member States a clear and precise obligation which leaves no room for discretion as to the measures to be adopted in order to comply with it (see, inter alia, Case C‑321/07 Schwarz [2009] ECR I‑1113, paragraph 75, and Case C‑184/10 Grasser [2011] ECR I‑0000, paragraph 19). It must be stated that the same is true as regards Article 2(1) of Directive 2006/126,  whose wording is the same as that of Article 1(2) of Directive 91/439.
41. It is for the issuing Member State to investigate whether the minimum conditions imposed by European Union law, particularly those relating to residence and fitness to drive laid down in Article 7(1) of Directive 91/439, have been satisfied and, therefore, whether the issuing of a driving licence is justified (see Schwarz , paragraph 76, and Grasser , paragraph 20).
42. Once the authorities of one Member State have issued a driving licence in accordance with Article 1(1) of Directive 91/439, the other Member States are not entitled to investigate whether the conditions for issue laid down by that directive have been met. The possession of a driving licence issued by one Member State has to be regarded as constituting proof that on the day on which that licence was issued, its holder satisfied those conditions (see, inter alia, Schwarz , paragraph 77, and Grasser , paragraph 21).
43. However, Article 8(2) and (4) of Directive 91/439 permits the Member States,  in certain circumstances and, in particular, for reasons of road safety, as is apparent from the final recital in the preamble to Directive 91/439, to apply their national provisions on the restriction, suspension, withdrawal or cancellation of driving licences in relation to any licence‑holder who is normally resident in their territory (see Schwarz , paragraph 79).
45. However, the Court has repeatedly pointed out that the option provided for in Article 8(4) of Directive 91/439 constitutes a derogation from the general principle of mutual recognition of driving licences and is therefore to be interpreted strictly (see, inter alia, Case C‑1/07 Weber  [2008] ECR I‑8571, paragraph 29; Schwarz , paragraph 84; and order in Case C‑334/09 Scheffler [2011] ECR I‑0000, paragraph 63).
46. The exceptions to the obligation of mutual recognition of driving licences issued in Member States without any formality, which balances that principle against the principle of road safety, cannot be interpreted broadly without depriving of all substance the principle of mutual recognition of driving licences issued in other Member States in accordance with Directive 91/439 (see, to that effect, order of 9 July 2009 in Case C‑445/08 Wierer , paragraph 52, and Scheffler , paragraph 63).
53. In that respect, it is apparent from the fourth recital in the preamble to Directive 91/439 and from recital 8 in the preamble to Directive 2006/126 that those directives provide for only a minimum degree of harmonisation of the national provisions relating to the conditions under which a driving licence may be issued. Member States may thus maintain or adopt stricter provisions in that regard.
54. In respect of the physical and mental requirements for driving, the Court has stated that the fact that, in accordance with paragraph 5 of Annex III to Directive 91/439, a Member State may require, for any issuing of a driving licence, a fuller medical examination than those referred to in that annex does not affect the obligation  for that Member State to recognise driving licences issued by the other Member States in conformity with that directive (see Joined Cases C‑329/06 and C‑343/06 Wiedemann and Funk  [2008] ECR I‑4635, paragraph 53).
57. In that context, it is necessary to note that acknowledgment that a Member State is entitled to rely on its national provisions in order to refuse indefinitely to recognise a licence issued in another Member State would be fundamentally incompatible with the principle of mutual recognition of driving licences which is the lynchpin of the system established by Directive 91/439 (see, to that effect, Case C‑476/01 Kapper [2004] ECR I‑5205, paragraph 77, and order of 28 September 2006 in Case C‑340/05 Kremer , paragraph 30).
61. It must be noted that, as claimed by the German Government, failure to observe the condition of normal residence for the purpose of Article 7(1)(b) of Directive 91/439 is capable, in itself, of justifying the refusal by a Member State to recognise a driving licence issued by another Member State (see Case C‑224/10 Apelt  [2011] ECR I‑0000, paragraph 34).
62. It follows from the Court’s case-law that Articles 1(2), 7(1)(b) and 8(2) and (4) of Directive 91/439 do not preclude a host Member State from refusing to recognise within its territory a driving licence issued in another Member State where it is established, on the basis, not of information coming from the host Member State, but of entries appearing on the driving licence itself or of other indisputable information from the issuing Member State, that the condition of normal residence provided for in Article 7(1)(b) had not been satisfied (see, to that effect, Wiedemann and Funk , paragraph 72, and Grasser , paragraph 33).
63. As the Court has already held at paragraph 33 of the judgment in Grasser , the fact that the host Member State has not applied any measure under Article 8(2) of Directive 91/439 to the licence holder is irrelevant in that regard.
75. In the context of that assessment of the information from the issuing Member State which the referring court has at its disposal, the referring court may take into account all the circumstances of the dispute before it. In particular, it can take into account the possibility that information from the issuing Member State could show that the holder of the driving licence was present in the territory of that State only for a very brief period and that he had established a purely fictional place of residence within its territory, with the sole aim of avoiding application of stricter conditions laid down for the issue of a driving licence in the Member State in which he was in fact resident.
76. It must, however, be pointed out that, as it is inherent in the exercise of his right to move and reside freely within the territory of the Member States, which is conferred on European Union citizens by Article 21(1) TFEU and recognised by Directives 91/439 and 2006/126, the fact that the holder of a driving licence established his residence in a given Member State with the purpose of benefiting from less stringent legislation concerning the conditions under which a driving licence may be issued (see, by analogy, Case C‑212/97 Centros [1999] ECR I‑1459, paragraph 27) does not, of itself, enable a finding of failure to observe the condition of normal residence as laid down in Articles 7(1)(b) and 7(1)(e) of those directives, respectively, justifying the refusal by a Member State to recognise the driving licence issued in another Member State.