C-60/91

OPINION OF MR JACOBS —CASE C-60/91

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 13 February 1992 *

My Lords, where there are no driving schools in neigh­ bouring districts. It appears that on 27 May 1989, Mr Morais was found to be giving a driving lesson on a motorway within the district of Loures, whilst employed by a driving school situated in the adjoining district of Lisbon. The district of Loures has its own driving schools, and no special auth­ 1. In this case, the Tribunal da Relação orization to provide instruction there has (Court of Appeal) of Lisbon has referred for been given to Mr Morais' employer. a preliminary ruling four questions concerning the compatibility with Community law of certain national restrictions on the provision of driving instruction. The Tribunal da Relação seeks guidance on whether the restrictions are compatible with the provisions of the Treaty Compatibility with the Treaty concerning the free movement of persons and services, and with the competition rules of the Treaty, as well as on the interpre­ tation and effect of First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence (Official Journal 1980 L 375, p. 1), hereafter 'the driving licence directive'. 3. The first two questions referred by the Tribunal da Relação are as follows:

2. The reference is made in the course of an '(a) May or must Article 7(1) of appeal to the Tribunal da Relação against a Decree-Law 6/82 be regarded as decision of the local court of Loures, in infringing the rules on the free which Mr Morais was held to have movement of persons and services and, infringed Article 7(1) of Decree-Law 6/82 in particular, Articles 52, 53, 54(2) and of 12 January 1982 (hereafter 'the Decree- (3)(c), 56 and 57 of the Treaty (on the ' Law ) and ordered to pay a fine of ESC right of establishment), Articles 60(a), 20 000. Article 7 of the Decree-Law 63(2) and 65 of the Treaty (on the free provides that driving schools may only give movement of services), and Article instruction on the territory of the district in 85(1)(c) (on the rules of competition), which they are situated, except where and as such is it inapplicable in national special authorization has been given or law?

It is appropriate, in my view, to consider the 6. Moreover, the circumstances of the second of those two questions first. present case do appear to be an example of a situation which is purely internal to Portugal. Thus, it appears that Mr Morais is a Portuguese national who is employed by a driving school established in Portugal. Question (b) There is no suggestion that any restriction arises, in the present instance, on the provision of services to or by persons coming from other Member States. 4. The second question referred to the Furthermore, the theoretical possibility that Court asks, essentially, whether the Mr Morais may, on future occasions, have provisions of the Treaty relating to the free pupils coming from other Member States is movement of persons, services and goods not sufficient to establish such a connection: apply to situations which are purely internal see Case C-41/90 Höfner vMacrotron, cited to a Member State, that is to say to situ­ above, at paragraph 39 of the judgment. By ations where there is no element of fact virtue of the answer I have suggested for the connecting the case with another Member second question, therefore, it can be seen State. It is however to be observed that the that, for the purpose of answering the first present case does not appear to raise any question referred to the Court, it is only issue relating to the free movement of necessary to consider the compatibility of goods, as opposed to persons or services. the national provisions in question with the competition rules of the Treaty.

by Article 90(1). A Member State may not, liable to affect trade between Member in particular, create a situation in which States, for the purposes of the application of undertakings are constrained to act in a Article 85(1) of the Treaty, does not manner which, if it resulted from an coincide with the test for whether a agreement or a concerted practice, would be situation can be described as more than contrary to Article 85, whether or not the purely internal, for the purposes of the undertakings in question are undertakings application of the provisions of the Treaty to which the Member State has granted concerning the free movement of persons or special or exclusive rights: see Case 13/77 services. Thus, for example, an exclusive Inno v ATAB [1977] ECR 2115, at para­ distribution agreement may be held to graphs 32, 33 and 42 of the judgment, and affect, actually or potentially, trade between Case C-41/90 Höfner v Macrotron, cited Member States, even where all the parties to above in paragraph 5, at paragraph 27 of the agreement are situated within the same the judgment. Member State and the agreement is solely concerned with the distribution of national products; for such an agreement may none the less have repercussions on the distri­ bution of other products: see Case 126/80 Salonia v Poidomani [1981] ECR 1563, at paragraphs 14 to 16 of the judgment. In my 8. Thus, national provisions are in principle view, the same principle would hold in the forbidden which oblige undertakings to act case of an agreement relating to services. in a manner which would be contrary to However, it seems to me that in the present Article 85(1)(c) of the Treaty, for instance case it would not be possible to find that the because the effect of the measure is to provisions in question had the required kind divide the market according to geographical of effect. For, in order to be prohibited by area. The measure at issue in the present Article 85(1)(c) in conjunction with Article case certainly appears to be anti­ 5, the contested provisions must be viewed competitive, and no convincing reason for it as equivalent in their effect to a network of has been advanced. However, Article 85(1) agreements or concerted practices between will only be infringed if the resulting Portuguese driving instructors. It is however practice is liable to affect trade between clear that such a network could not affect Member States. In its written observations, the freedom of non-Portuguese instructors the Commission suggests that there appears to offer services in Portugal. The national to be no prospect of such trade being provisions themselves may of course impose affected in the present circumstances, as such a restriction, but in doing so they would for example be the case if, but for the would be caught, if at all, by Article 59 national provisions in question, driving rather than by Article 85. schools established in other Member States might attempt to provide instruction in Portugal.

12. In contrast, the Tribunal da Relacāo's '(c) May or must Directive 80/1263/EEC, fourth question does not make complete although it concerns driving tests, be sense as currently worded. There is no interpreted as meaning that driving distinction known to Community law instruction itself is subject to similar between directives within the meaning of requirements, such as the requirement Article 189 of the Treaty, and directives that it must be provided, as far as adopted under Articles 56, 63 or 87: the possible, on motorways and in different latter are merely examples of the former. In traffic conditions as advised for the my view, however, the Tribunal da Relação purposes of the test? is in substance asking whether the relevant provisions of the driving licence directive have direct effect, that is to say whether they may be relied upon by an individual against a Member State which has failed to (d) Finally, may or must the directive in implement them in national law. question be interpreted as being in the nature purely and simply of a directive within the meaning of Article 189 of the Treaty, inasmuch as it is left to the national authorities to determine the Question (c) choice of form and methods for its implementation (that is to say, where it needs merely to be implemented) or must it, on the contrary, notwith­ standing its designation as a directive, 13. I shall first consider whether the driving be regarded as a generally applicable licence directive has any implications for the and mandatory directive of the kind requirements imposed by Member States on adopted pursuant to Articles 56, 63 and the conduct of driving instruction. In his 87 of the Treaty?' written observations, Mr Morais suggests that it follows from the directive that Member States are required, in particular, to ensure that driving instruction is carried The purport of question (c) is clear: the out at least in part on motorways and on Tribunal da Relação wishes to know roads situated outside built-up areas. whether the driving licence directive, which lays down various requirements concerning the issue of driving licences and the nature of the driving test which must be passed before a licence is issued, is also to be 14. Article 6(1) of the directive provides understood as laying down, by implication, that:

Annex II is entitled 'Minimum requirements for driving tests', and is divided into two sets of requirements, for the theoretical and practical tests respectively. Among the 16. The Commission, however, argues in its requirements for the practical test are those written observations that the directive allows specified in paragraph 9, which is headed Member States a broader discretion than 'Location of the test': Mr Morais suggests. The Commission points out that in some regions of Portugal, the nearest motorway might be as far as 200 km from the place where the driving test is 'The part of the test described in paragraph conducted. The Commission takes the view 5 may be conducted on a special testing that, in such circumstances, the requirement ground, in which case precise criteria should that a part of the test be conducted on the be laid down for measuring objectively the motorway 'wherever possible', does not candidate's ability to handle the vehicle. The prevent a Member State from deciding that part of the test described in paragraph 6 the test should never be conducted on the shall, wherever possible, be conducted on motorway. Thus, according to the roads outside built-up areas and on Commission, a Member State is entitled to motorways as well as in urban traffic.' impose a uniform driving test throughout its territory which takes into account the fact that in some of its regions there is no convenient access to a motorway. Furthermore, the United Kingdom, in its 15. Mr Morais argues as follows. From the written observations, points out that in some second sentence of paragraph 9, it is clear Member States learner drivers are not that, wherever possible, a part of the driving permitted to drive on the motorway, and test must be conducted on motorways and suggests that those too are circumstances in on roads outside built-up areas. In the case which the conduct of a part of the test on of tests set in the Lisbon area, that is in fact the motorway is not 'possible' within the possible, since although the district of meaning of paragraph 9 of Annex II.

17. From the written observations of the Strictly speaking, it would always be Portuguese Government, it appears that the possible to test the execution of the latter, unlike Mr Morais, does not consider manoeuvres specified in paragraph 5 before that it would be possible to conduct a part the behaviour in traffic described in of the driving test on the motorway, even in paragraph 6. It is therefore clear that the the Lisbon area. There is disagreement, expression 'whenever possible' in paragraph therefore, on the interpretation of the 7 is not to be taken in a strict sense, and has notion of 'possibility as it figures in Annex a meaning closer to 'reasonably practicable' II of the directive. It seems to me however than to 'consistent with the laws of physics'. that, in the context of Annex II, the notion In my view, the same must hold for the is not to be interpreted too strictly. It may interpretation of 'wherever possible' in first be observed that the French version of paragraph 9. the directive uses the expression 'si possible', which would translate as 'if possible' rather than 'wherever possible'; and the Portuguese version, similarly, uses 'se possível'. No reliance should therefore be placed on the somewhat more emphatic wording of the 19. Thus, in my view a Member State is not English version. It may also be noted that, obliged to conduct the driving test on the as both the Commission and the United motorway wherever there is a motorway Kingdom emphasized at the hearing, the within driving distance of the test centre; directive represents only a first stage in a rather, it is entitled to lay down the rule process of harmonization continued by the governing the matter which is most prac­ recently adopted Council Directive ticable in all the circumstances, and to take 91/439/EEC on driving licences (Official into account such matters as the consistency Journal 1991 L 237, p. 1), which will of the test. A Member State is entitled, in replace the present directive as from 1 July particular, to have regard to the need to 1996; although it must be said that, as far as impose a test which is uniform throughout the wording presently in issue is concerned, its territory, some parts of which may have there is little difference between the two no easy access to a motorway. It seems to directives. me that a Member State is also entitled to have regard to legitimate considerations of public interest, and thus could properly take the view that considerations of road safety, for example, justified restrictions on the use of motorways by learner drivers. Where the 18. Furthermore, the interpretation of the Member State has made what, in all the notion of possibility used in paragraph 9 of circumstances, is a reasonable exercise of its Annex II to the current directive is assisted discretion, it cannot in my view be said to by an examination of paragraph 7 of the be in breach of its obligations under Annex same annex. That paragraph provides that: II, paragraph 9, and Article 6(1) of the driving licence directive.

to be 'substantially less stringent' than those asking whether paragraph 9 of Annex II to set out in Annex II. That is a further indi­ the driving licence directive, in conjunction cation that the notion of possibility with Article 6(1), creates rights which can employed in Annex II is not to be given an be invoked by individuals before the unduly strict construction, since it is clear national courts. The right which Mr Morais from Article 6(1) that Member States enjoy would have to rely upon in the present case, a degree of discretion throughout in deter­ in order to avoid application of Article 7(1) mining the modalities of the test. of the Decree-Law, would be a right for his pupils to have a part of their driving test conducted on the motorway, and hence (by necessary implication) to receive instruction on such a road, if need be one located outside the district in which the driving 21. In any event, however, it is not disputed school is situated. that the driving test in Lisbon is not conducted on the motorway. Indeed, the Portuguese Government stated at the hearing that learner drivers are prohibited from receiving lessons on the motorway under any circumstances. Thus, no driving school in Portugal can lawfully provide instruction on the motorway, and it is unnecessary to provide such instruction in 23. According to the consistent case-law of order to prepare candidates for the driving the Court, provisions of a directive have test. Accordingly, even if, contrary to the direct effect in national law only if their conclusion I have reached above, a Member content is unconditional and sufficiently State were required to ensure that a part of precise: see, most recently, Joined Cases the driving test is conducted on the C-6/90 and C-9/90 Francovich and Bonifaci motorway, it seems to me that no impli­ v Italy [1991] ECR I-5357, at paragraph 11. cations would follow for the conduct of I have however already concluded, in para­ driving instruction in circumstances where a graphs 19 to 20 above, that the directive Member State was in breach of the does not impose upon Member States any postulated requirement. Although, on that precise and unconditional obligation to hypothesis, the Member State would be in conduct a part of the driving test on the breach of a requirement of the directive motorway; rather, each Member State concerning the location of the test, it would enjoys a discretion to decide, in the light of not in my view be in breach of any further national circumstances, whether or not it is requirement relating to the provision of possible to lay down such a requirement. driving instruction.

26. Accordingly, I am of the opinion that the questions referred to the Court by the Tribunal da Relação of Lisbon should be answered as follows:

(1) A law of a Member State which grants the exclusive right to provide driving instruction on the roads of a particular district to schools which are licensed to provide such instruction and which are situated within that district, is not in itself incompatible with Article 85(1) of the EEC Treaty in conjunction with the second paragraph of Article 5.

(2) The provisions of the Treaty relating to the freedom of establishment and the freedom to provide services do not apply to a situation which is purely internal to a Member State, such as where a national of that State who is employed by a school established therein provides driving instruction to persons coming from that State.

(3) A Member State must ensure that persons preparing for the driving test set by that State are not prevented from receiving driving instruction on roads similar to those upon which the test is actually held, whether or not the test fully conforms to the requirements laid down by Article 6(1) and Annex II of First Council Directive 80/1263/EEC of 4 December 1980. The directive does not impose any other obligation relating to the location of driving instruction.

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