C-230/97

2. In essence, that is the question which the Belgian Hof van Cassatie (Court of Cassa­ tion), with which Mr Awoyemi had lodged an appeal in cassation against a decision given on 4 January 1995 by the Correctionele Recht­ bank te Brugge (Bruges Criminal Court), is 5. To that end, the directive harmonised the referring to the Court for a preliminary ruling. relevant national rules, particularly as regards national systems governing the issue of driving licences, vehicle categories and conditions of licence validity. It also established a Commu­ nity model licence and introduced a system of mutual recognition of licences by Member States as well as the exchange of licences when 3. The Court has already had occasion to rule holders transfer their residence or place of on a related question in its judgment in Case work from one Member State to another. 2 C-193/94 on the criminal penalties imposed on a Community national in a similar con­ text.

* Original language: French. 1 — OJ 1980 L 375, p. 1. 6. Under Article 6 of that directive, the issue 2 — Case C-191/94 Skanavi and Chryssantbakopoulos [1996] ECR I-929. of a driving licence is subject, first, to passing

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a practical and theoretical test and meeting residence in another Member State and medical standards, and second, to having a replaces that obligation with the mutual rec­ normal residence in the territory of the ognition of driving licences (Article 1(2)). The Member State issuing the licence if the legis­ exchange of a valid driving licence issued by lation of the Member State concerned so a Member State to a holder who has taken up requires. normal residence in another Member State is thus merely discretionary (Article 8(1)).

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pality and possess the following documents (b) a consular identity card; issued in Belgium:

(c) a special residence permit. (a) a Belgian national's or alien's identity card;

2. The persons referred to in Article 1(1°) (b) proof of registration in the aliens' reg­ may drive a motor vehicle only while covered ister; by a Belgian driving licence. For a period of one year calculated from the date of their entry in the population register or the aliens' register of a Belgian municipality, they may, however, drive under a valid foreign national driving licence issued by one of the Member (c) a residence permit of a national of a States of the European Economic Commu­ Member State of the European Economic nity. Other drivers of motor vehicles must Community; hold and carry a Belgian driving licence or a foreign national or international driving licencé, subject to the conditions laid down by the provisions applicable to international road traffic.'

(d) a vehicle registration certificate;

'(1) Do the provisions of the First Council Directive 80/1263/EEC of 4 Decem­ 13. Mr Awoyemi lodged an appeal in cassa­ ber 1980 on the introduction of a Com­ tion against that decision, relying on his valid munity driving licence, in particular Community model driving licence issued in Article 8 thereof, preclude the driving of the United Kingdom and on the judgment in a motor vehicle by a person who is not Skanavi and Chryssanthakopoulos. a citizen of the European Union but who holds a national driving licence or a Com­ munity model driving licence issued by a Member State and who could have obtained a licence from the host State in exchange for it, but did not do so within the prescribed period, from being treated as driving without a licence and thus 14. It is clear from the grounds of the order rendered punishable by imprisonment or for reference that the Belgian Hof van Cas­ a fine? satie considered that the Royal Decree of 6 May 1988 had been adopted in particular to transpose into national law the first subpara­ graph of Article 8(1) of Directive 80/1263, which expressly states that if the holder of a driving licence issued by a Member State takes up normal residence in another Member State, his licence is only valid there for up to a year (2) Do Article 1(2) of Council Directive following the taking up of residence. How­ 91/439/EEC of 29 July 1991 on driving ever, it noted that Directive 91/439 repealed licences, providing for mutual recogni­ that provision and that as of 1 July 1996 the tion for driving licences issued by the

16. The Court held in that judgment that although the obligation to exchange driving licences imposed by Article 8 of Directive 80/1263 was an obstacle to the free move­ ment of persons, it was not contrary to Article 6 52 of the Treaty, as 'in view of the com­ plexity of the matter and the differences (3) If the answer to Question 2 is in the between the legislation of the Member States, affirmative, do Articles 1(2) and 8(1) of the Council was empowered to achieve the 7 Council Directive 91/439/EEC of necessary harmonisation progressively'. 29 July 1991 on driving licences have ret­ roactive effect in the sense that they pre­ clude the driving of a motor vehicle by a person who is not a citizen of the European Union but who holds a national driving licence or a Community 17. The Court also stated that, in the absence model driving licence issued by a Member of Community rules laying down penalties to State and who could have obtained a be imposed for failure to comply with the licence from the host State in exchange obligation to exchange licences, the Member for that licence, but on 27 July 1993 had States remain, in principle, competent to leg­ not made that exchange within the pre­ islate. 'However, it follows from settled scribed period, from being treated as driving without a licence and thus ren­ dered punishable by imprisonment or a 6 — Paragraph 28. fine?' 7 — Ibidem, paragraph 27.

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23. However, it is also undisputed that he is 19. The Court therefore took the view, in not a Community national. Accordingly, he accordance with settled case-law, that it was cannot validly rely on the right to freedom of movement conferred on Community workers

8 — Ibidem, paragraph 36. 9 — Ibidem, paragraph 39. 10 — See, in particular, Articles 1 and 8(1) thereof.

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by the Treaty, in particular Articles 48 or 52 Articles 1(2) and 8 of Directive 91/439 can be thereof. directly relied upon by a non-Community national holding a Community model driving licence issued by a Member State, who has taken up normal residence in a Member State other than that in which the licence was issued, but who has not exchanged his driving licence within the period prescribed by Direc­ tive 80/1263, to challenge the imposition of a 24. Therefore, the legal position of a non- term of imprisonment or a fine for the offence Community national with regard to the pen­ of driving without a licence committed under alties that may be imposed on him in the Directive 80/1263. event of non-compliance with the obligations laid down by Article 8(1) of Directive 80/1263 does not fall within the scope of Community law, but solely within that of national law.

25. I therefore suggest that the Court's answer to the first question should be that neither 27. As stated previously, Article 12 of Direc­ Directive 80/1263 nor the provisions of the tive 91/439 provided that the laws, regula­ Treaty preclude, in a case such as this, the tions and administrative provisions necessary offence with which the party concerned is to comply with that directive as of 1 July 1996 charged from being the one provided for by were to be adopted by Member States before the national legislation in question, namely 1 July 1994. Further, Article 13 of that direc­ driving without a licence, which is punishable tive provided that Directive 80/1263 would by imprisonment or a fine. only be repealed as of 1 July 1996.

u 31. In similar circumstances, the Court has 12 consistently held that 'it is for the national court to determine both the need for a pre­ 29. In view of the particular facts of the liminary ruling in order to enable it to give present case, the Commission and the United judgment and the relevance of the questions Kingdom are unsure whether the question 13 that it submits to the Court'. concerning the interpretation of Directive 91/439 is relevant for the purpose of deciding the case. They point out that the offence that Mr Awoyemi was alleged to have committed in the main proceedings occurred on 27 July 1993 and that the case was judged by the Correctionele Rechtbank te Brugge on 4 January 1995, at a time when Directive 91/439 was not yet in force. 32. Although the Court has clearly stated that in Community law there is no principle equiv­ alent to that of immediate application of the 14 more lenient criminal provisions and that, in the absence of rules to harmonise penalties for breach of Community law, it is for the domestic legal system of each Member State to determine them, the Court none the less considers that the Community-law principle of equivalence does not preclude breaches of 30. In my view, the national court is uncer­ Community law from being penalised under tain how to construe Articles 1(2) and 8 of substantive and procedural conditions analo­ Directive 91/439, as it considers that it has to gous to those applicable to infringements of apply the principle that exists in its domestic national law of a similar nature and impor­ 15 law of the retroactivity of the more lenient tance. provisions of criminal law. This principle, which exists in some national legal systems, requires domestic criminal courts to apply 11 — See, in particular, Joined Cases C-358/93 and C-416/93 Bor- immediately any new criminal provisions that dessa and Others [1995] ECR 1-361 and Case C-341/94 are more lenient to offences awaiting final Allain [1996] ECR 1-4631, paragraph 12. 12 — See Bordesset, paragraph 10, and AUain, paragraph 13. judgment that were committed before such 13 — See Skanavi and Chryssanthakopoulos, paragraph 18. provisions came into force. As a consequence, 14 — See, in particular, Case 234/83 Gesamthochschule Duisburg the national court believes that it may be v Hauptzollamt München-Mitte [1985] ECR 327, paragraph 20. obliged to disregard the provisions of its 15 — See, in particular, AUain, paragraph 29.

37. It can hardly be doubted that Articles 1(2) and 8 of Directive 91/439, as far as the definition of the right which they confer on individuals is concerned, are sufficiently pre­ cise and unconditional. 35. Consequently, in the context of the problem raised — retroactive application of a more lenient criminal provision — the national court is required to check whether the rel­ evant provisions of Directive 91/439 have been transposed into its domestic legal system. In the wording of its second question, the 38. It will be recalled that those provisions national court implies that transposition was very clearly state that driving licences issued not carried out within the prescribed period. by Member States are mutually recognised I therefore take it to have been established and that the holder of such a driving licence is no longer required to exchange his licence

16 — See, in particular, Case 148/78 Ratti [1979] ECR 1629, Case 102/79 Commission v Belgium [1980] ECR 1473 and Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] 17 — Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR I-5357, paragraph 11. ECR 53, paragraph 25 (emphasis added).

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when taking up normal residence in a Member Member States of driving licences issued by State other than that which issued it. The another Member State, regardless of the hold­ negative obligation thus imposed on Member er's nationality. States leaves them no discretion as to the measures to be adopted.

42. I therefore suggest that the Court's answer to the second question should be that, where they have not been transposed into the domestic legal system, and in view of the principle that exists in the domestic law of some Member States of immediate applica­ tion of the more lenient criminal provisions, Articles 1(2) and 8(1) of Directive 91/439 pre­ clude the driving of a motor vehicle, at a time 40. The fact that the holder of a driving when Directive 80/1263 was still in force, by licence issued by a Member State is not a the holder of a Community model driving Community national is irrelevant inasmuch licence who is not a national of a Member as Directive 91/439 harmonises once and for State and who has not exchanged his licence all the conditions for issuing driving licences for a licence from the Member State in which and requires the mutual recognition by he has settled within the prescribed period, from being treated as driving without a licence and thus rendered punishable by imprison­ 18 — Emphasis added. ment or a fine.

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Conclusion

43. In the light of those considerations, I therefore suggest that the Court give the following answers to the questions referred by the Belgian Hof van Cassatie:

(1) Neither the provisions of the First Council Directive 80/1263/EEC of 4 Decem­ ber 1980 on the introduction of a Community driving licence, in particular Article 8 thereof, nor the provisions of the EC Treaty preclude the driving of a motor vehicle by a person who is not a European Union citizen but who holds a national driving licence or a Community model licence issued by a Member State, and who in exchange for his licence could have obtained a licence of the State in which he has settled but has not made that exchange within the prescribed period, from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine.