C-246/00

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OPINION OF MR LÉGER — CASE C-246/00

licences, and provided for the exchange of of persons in the light of the progress made licences by holders transferring their resi- towards European integration. 6 The direc- dence or place of employment from one tive however allows the exchange of Member State to another. licences under certain defined circum- stances. 7

3. Directive 80/1263 was repealed by Directive 91/439, which represented a 5. Article 1(2) of Directive 91/439 lays new stage in the harmonisation of national down the principle that 'driving licences provisions, in particular with reference to issued by Member States shall be mutually the conditions governing the issue of recognised'. Article 1(3) provides that licences and to vehicle categories. Thus, where the holder of a licence takes up Article 6 of Directive 91/439 sets down normal residence in a Member State other minimum age conditions for the issue of than that which issued the licence, the host driving licences according to relevant Member State may apply its national rules vehicle categories. Further, Article 7 of on tax, medical checks and the period of the directive states that the issue of licences validity of the licences to the holder of the is conditional on the applicant having licence, and may enter on the licence any passed certain tests and meeting medical information essential for administrating it. standards, as well as having normal resi- dence 5 in the territory of the Member State issuing the licence or providing evidence that he has been studying there for at least six months.

6. The directive was amended on several 9. Furthermore, Article 108(1 )(h) of the occasions and in particular by Directive WVW lays down specific rules in favour of 96/47/EC. 8 Directive 96/47 afforded drivers who hold a licence issued by Member States the possibility of issuing another Member State where they are licences according to a model, set down in resident in the Netherlands. The obligation Annex I B to that directive and different to hold a Netherlands licence to drive on from the model provided for in Annex I to national territory does not apply to these Directive 91/439. Member States can there- drivers for a certain period, which varies fore choose to comply with the traditional according to whether or not the holder has model drawn up on paper, or the more registered his licence in the Netherlands. advanced model issued on a polycarbonate Where the licence has been registered, the card similar to that used for bank and length of the period corresponds to the credit cards. duration of the validity of the licence in the Netherlands. Where the licence has not- been registered, the duration of the period is one year after the individual concerned has settled in the Netherlands.

B — National legislation 10. For the purposes of Article 109(1 ) of the WVW, licences are valid in the Nether- lands during:

7. The main provisions in the Netherlands concerning driving licences are contained in the Wegenverkeerswet (Law on Road Traf- — 10 years from the date of issue when, fic)9 and in the Rijbewijs (the regulation on the date of issue, the holder was implementing the W W ) . 10 under 60 years old;

11. The Netherlands procedure for the 25 October 1995, sent the Commission a registration of licences takes place in the number of draft texts of laws and regu- following manner. 11 The holder of the lations which were intended to transpose licence must first of all complete a form, Directive 91/439. Although the Commis- attach a number of documents to it 12 and sion expressed a number of criticisms send it to the mayor of the municipality regarding the draft texts, the drafts led to where he is registered. The mayor must the adoption of the WVW and the imple- then send it in his turn to a public body menting regulation. which is responsible for the centralised registration of licences on a register set up for that purpose. That body subsequently checks the identity of the applicant, usually by calling on him to attend in person at its premises, and ensures the validity of the licence as well as that the conditions 14. Following an exchange of letters required for registration are satisfied. At between the Netherlands authorities and the same time, it determines the period of the Commission, the Commission formally recognition, in the Netherlands, of the requested, on 17 June 1997, that the auth- registered licence. orities submit their observations on the abovementioned texts to it.

12. Article 177(1) of the WVW provides that driving without a licence, or driving with a licence which has expired or a licence which does not satisfy the statutory 15. The Commission was not convinced by requirements, is liable to criminal penalties, the observations submitted by the Kingdom namely a term of imprisonment of two of the Netherlands in response to its letter months or a fine. of formal notice, and on 7 December 1998 sent it a reasoned opinion.

A — The first ground of complaint, regarding the licence registration procedure

18. Second, according to the Commission, this principle also precludes the use of the date of issue of licences issued by other 1. The parties' arguments Member States as the starting point for the duration of their validity in the Nether- lands.

22. The Commission points out that the licences issued by a Member State to persons residing in the Netherlands for 19. Third, the Commission points out that over a year are not recognised unless they the minimum age provided for by the have been registered during that period. Netherlands rules for driving category D These individuals are therefore systemati- vehicles does not correspond with that cally obliged to register their licence within envisaged by Article 6(1 )(c) of Directive the prescribed period in order to continue 91/439. to be entitled to drive on the territory of that Member State. Furthermore, the Com- mission observes that the registration for- malities in the Netherlands are almost as cumbersome as those prescribed for the exchange of licences, whereas Directive 20. Finally, the Commission states that the 91/439 expressly prohibits Member States Netherlands rules do not provide for a from establishing such a procedure in their periodical medical examination for group 2 mutual relations. drivers, contrary to what is required by point 4 of Annex III to Directive 91/439.

23. This situation is incompatible with the principle of the mutual recognition of 21. The two last grounds of complaint are licences laid clown in Article 1(2) of Direc- not disputed by the Kingdom of the Nether- tive 91/439. After one year of residence in lands. I therefore limit my Opinion to the the Netherlands, the recognition of licences two first grounds of complaint, and pro- issued by another Member State is no

24. Moreover, the disputed procedure can- 26. The Netherlands Government, for its not be justified by Article 1(3) of Directive part, points out that there is no registration 91/439 which states that where the holder system common to the Community or of a licence takes up normal residence in a coordinated between the Member States. Member State other than that which issued The introduction of a national registration the licence, the host Member State may system is therefore essential in order to apply its national rules on tax, medical ensure the validity of licences submitted checks and the period of validity of the during road traffic controls, in conformity licence to the holder of the licence, and may with the objectives of road safety and the enter on the licence any information which combat against fraud pursued by Directive is essential for administrating it. According 91/439. to the Commission, these provisions must be interpreted strictly as they provide for an exception to the mutual recognition of licences. The Commission notes that even before the entry into force of Directive 80/1263 the Court held, in its judgment in the Choquet case of 28 November 1978, 13 27. Only such a system enables the police that restrictions on the right to drive a to check on the spot the conformity of the vehicle in the Community under a licence licences presented with the registered data, issued by another Member State are only in particular as concerns the period of acceptable, in the light of the Treaty rules validity and the existence of penalties liable regarding the free movement of persons, if to affect them adversely. Moreover, they can be reasonably related to the immediate consultation of the registered requirements of road safety. This is not information is essential in order to check the case here. the validity of licences issued before the entry into force of Directive 91/439, as these licences do not conform to a uniform model which is easily identifiable. Further, a registration system makes it possible to record information essential for the admin- istration of licences, without being con- fronted with the problem of the physical 25. The Commission adds that the criminal impossibility of entering such information penalties incurred in the Netherlands in the on licences which are in the form of a event of infringement of the disputed polycarbonate card.

31. The Spanish Government, intervening in support of the Kingdom of the Nether- 29. Furthermore, the Netherlands Govern- lands, also considers that the obligation of ment contends that the principle of mutual registration is compatible with the principle recognition is limited to prohibiting pro- of mutual recognition and is justified by cedures for exchanging licences, but not Article 1(3) of Directive 91/439. registration procedures. This interpretation is confirmed by the declaration made by the Council and the Commission when Direc- tive 91/439 was adopted, and recorded in the minutes. 1 5Moreover, a licence issued by a Member State remains valid and recognised in the Netherlands, even though it has not been registered. The absence of registration has the sole consequence that 32. In support of this contention, the the licence in question no longer allows its Spanish Government states that the appli- holder to drive on Netherlands territory. cation of national provisions regarding the renewal of licences necessarily implies that the host State is aware of the existence of the licences issued by another Member State and used on its territory. It adds that the registration of a driver's history is essential in order to apply an appropriate 30. Finally, the Netherlands Government penalty to him, as its determination de- asserts that since 1990 criminal penalties pends most often on whether or not the have no longer been applied to drivers driver has already been found guilty of an holding a licence that has not been regis- offence. Finally, the Spanish Government tered. Moreover, the national rules in considers that simple traffic controls on the public highway are not sufficient to ensure the application of the relevant national 15 — Declaration concerning Article 1(3} of Directive 91/439: provisions of the host Member State, as 'The Council and the Commission recognise that the holders of licences issued by another present Directive does not prevent the Member States from registering the information regarding licences issued by Member State do not necessarily respond another Member State when the holders of such licences to police questioning and may, as a result, take up normal residence on their territory (hereinafter the "contested declaration")'. avoid all control of their licence's validity.

16 — Points 21 and 22. 38. Such national rules appear more 17 — The Commission has also initiated infringement proceed- ings against the Kingdom of Spain, notably on account of a restrictive than the wording of Article 1(2) mandatory and systematic licence registration system, in of Directive 91/439 indicates, which states Case C-195/02 Commission v Spain, pending before the Court. that '[d] riving licences issued by Member I - 7494

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OPINION OF MR LÉGER — CASE C-246/00

the Member State which issued it or has Member State at the end of the period laid been enrolled in a school or university there down in the reasoned opinion and that the for at least six months. Court cannot take into account any sub- sequent changes. 21 The failure to adopt measures, during this period, enabling the new national legislation invoked to be implemented is liable to engender doubts incompatible with the principle of legal This requirement is not acceptable, because certainty since such a situation does not it falls within the scope of a control which enable the beneficiaries of the principle of duplicates that which has necessarily been mutual recognition of licences, laid down carried out on this point by the authorities in Article 1(2) of Directive 91/439, a issuing the licence, in accordance with provision having direct effect, to ascertain Article 7(2) of Directive 91/439. This easily the full extent of their rights. 22 specific formality is contrary to the very Furthermore, according to settled case-law, spirit of the system established by the the incompatibility of national legislation directive, which defines common rules for with provisions of the Treaty, even provi- issuing licences and gives the issuing sions which are directly applicable, can be Member State exclusive competence to finally eliminated only by means of ensure that the rules are complied with. national provisions of a binding nature This analysis may be compared to that which have the same legal force as those which the Court adopted regarding a which must be amended. It follows that number of restrictions to the freedoms mere administrative practices, which by guaranteed by the Treaty. 20 their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constitut- ing proper fulfilment of the Treaty obli- gations. 23

45. Contrary to what the Netherlands Government maintains, the contested dec- 46. All the same, should the Court consider laration does not cast doubt on this con- that the content of the contested declar- clusion. The Court has consistently held ation find expression in Article 1(2) of that a declaration recorded in the minutes Directive 91/439, it must be pointed out of the Council meeting during which sec- that such a declaration does not necessarily ondary legislation has been adopted cannot authorise Member States to set up any be admitted for the purpose of interpreting system of licence registration whatsoever, that law where no reference is made to the in particular such as that existing in the content of the declaration in the wording of Netherlands. While it may be accepted that the provision in question and where the a Member State may set up a registration declaration therefore has no legal signifi- system, with limited formalities and with- cance. 24 That is the case here. Article 1(3) out penalties, for example, for statistical of Directive 91/439, to which the contested purposes, it is difficult to see how the declaration refers, does not include any system in the Netherlands could be provision which relates to 'the registration accepted, in light of its conflict with the of information concerning driving licences'. principle of mutual recognition. The only procedure mentioned is the enter- ing of certain information on the licence. The use of this procedure is limited to information which is indispensable for administrating the licence. Its purpose and modalities are specified in point 4 of Annex I to Directive 91/439 and point 4 of Annex la to Directive 96/47. These provisions are designed to limit the circum- stances in which the host Member State may enter information on a licence. This logic is not echoed in the contested declar- ation because the declaration deals with, 47. As the registration procedure in the Netherlands is, in my opinion, contrary to the principle of mutual recognition laid down in Article 1(2) of Directive 91/439, 24 —See Case C-292/89 Antomssen [1991] ECR I-745, para- graph 18; Joined Cases C-197/94 and C-252/94 Bmmaa the relevant question is therefore whether and Société française maritime [ 1996] ECR I-505, para- this procedure can be justified by graph 51; and Case C-329/95 VAG Sverige [1997] ECR I-2675, paragraph 23. Article 1(3) of the directive.

48. In the abovementioned judgment in Canal Satelite Digital, the Court held that when a directive does not contain provi- sions relating to the administrative rules implementing the obligations on Member States under that directive, Member States may provide for an administrative pro- cedure for that purpose, but they must at all times respect the fundamental freedoms guaranteed by the Treaty. 25 5 0 . In Kraus, 26 the C o u r t held t h a t 'Articles 48 and 52 [of the Treaty] preclude any national measure... where that meas- ure, even though it is applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by Community nationals... of fundamental freedoms guaranteed by the 49. In my view, this case-law may be Treaty'. The Court reiterated that '[t]he transposed to the present case for the situation would be different only if such a application of the rights which are granted measure pursued a legitimate objective to the host Member State under Article 1(3) compatible with the Treaty and was justi- of Directive 91/439. That directive does not fied by pressing reasons of public interest..., provide for an administrative procedure, application of the national rules in question allowing the Kingdom of the Netherlands [must] be appropriate for ensuring attain-

25 — Paragraphs 27 and 28. 26 — Case C-19/92 [1993] ECR I-1663, paragraph 32.

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ment of the objective they pursue and not... establishment or of the freedom of move- go beyond what is necessary for that ment. purpose'. 27

27 — Ibid. 30 — The Court has held, ou a l i n eof decisions, that protection 28 — Paragraph 23. See also Choquet, cited above, paragraph 4. of road safety is an overriding requirement. See Case C-55/93 Van Schaik [1994] ECK I - 4 8 3 7 , paragraph 19 29 — Skanavi and Chryssanthakopoulous, cited above, para- and Case C-314/98 Snellers [2000] ECR I-8633, paragraph graph 2 3 . 55.

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54. Contrary to ' what the Netherlands 56. Secondly, I am not convinced that, in Government maintains, this situation is order to apply its provisions on the period applicable both as regards licences drawn of the validity of licences, the host Member up on paper and as regards those issued on State would be forced to impose a regis- a polycarbonate card. The date of issue is tration procedure in order to record that cited in point 2 of Annex I to Directive information systematically and to ensure 91/439 as part of the mandatory infor- that holders renew their licences within the mation which should appear on a licence necessary time-limits. (for licences drawn up on paper) and point 2 of Annex la to Directive 96/47 (for licences issued on a polycarbonate card). It is therefore not indispensable, at road checks, to consult a register in order to find out the period of validity of a licence and to ensure compliance with the relevant national rules.

(ii) The entering of information on the licence essential for administrating it

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necessary to adopt a registration procedure holder of the licence settled in the Nether- such as that in the Netherlands. lands, when applying the national rules concerning the period of validity of licences. Accordingly, the principle of mutual recognition remains a dead letter for numerous holders of licences issued by Member States other than the Netherlands. This is the case, in particular, for holders of licences issued more than nine years before they settled in the Netherlands and who are 58. It follows from all the considerations at least 60 years old. These holders cannot set out above that the licence registration register their licences within the prescribed procedure in the Netherlands is contrary to one-year time-limit, as the period of valid- the principle of mutual recognition laid ity of their licence, 10 years in the Nether- down in Article 1(2) of Directive 91/439 lands, will have expired. They are therefore and cannot be justified by Article 1(3) of obliged to exchange their licence. 32 that directive. I therefore propose that the Court uphold this complaint.

B — The second ground of complaint, regarding the calculation of the period of validity of licences 60. The Netherlands Government states that Directive 91/439 allows a host Member State to apply its national provi- sions concerning the period of validity of licences without specifying the date which 1. The arguments of the parties should be used as a starting point. It adds that the starting point used in the Nether- lands applies both to Netherlands licences and to those issued by other Member States, which ensures that holders arc treated equally. On this point, the Nether- lands Government contends, in essence,

that the adoption of different starting Netherlands. It is apparent from various points to calculate the period of validity factors, notably statistical, put forward by of a licence in the Netherlands, according the Commission, that the rules in question to whether the licence has been issued by its have the effect of limiting significantly the national authorities (from the date of issue) application of the principle of the mutual or by another Member State (from the date recognition of licences. on which the holder settled in the Nether- lands), would bring about 'reverse discrimi- nation' as the holders of licences issued in the Netherlands would be in an adverse situation as compared to that of holders of licences issued by another Member State. Furthermore, rules according to which the period of validity of licences issued by 62. I do not agree, as this case stands, with another Member State begins to run from the objection put forward by the Nether- the date of issue of the licence, and not lands Government in order to contest the from the date on which the holder settled in Commission's arguments on this point. The the Netherlands, are dictated by imperative Court has held that situations such as requirements of effective control, road 'reverse discrimination' are not taken into safety and the best possible method of account by Community law. They must be enabling fraud. resolved in the context of the internal legal system of the Member State concerned. 33

63. Moreover, contrary to what the 2. Assessment Netherlands Government maintains, the rules in question appear disproportionate in comparison with the objectives of a best possible campaign against fraud and of road safety, on which the government relies in order to restrict the free movement of persons.

(2) declare that, by adopting rules which provide that the period of validity of a licence starts to run from its date of issue, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 1(2) of Directive 91/439;

(3) declare that, by not adopting the legal and administrative provisions envisaged by Article 6(1 )(c) and by point 4 of Annex HI to Directive 91/439, concerning, on the one hand, the minimum age for driving and, on the other hand, medical checks, the Kingdom of the Netherlands has failed to fulfil its obligations under the said directive, and

(4) order the Kingdom of the Netherlands to pay the costs.

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