C-476/01

KAPPER

OPINION OF ADVOCATE GENERAL LÉGER delivered on 16 October 2003 1

1. Is a Member State entitled to refuse to persons settling in a Member State other recognise a driving licence issued by than that in which they had passed a another Member State? If so, on what driving test, or moving within the European grounds? Those are, in essence, the ques- Economic Community. tions asked by the Amtsgericht Frankenthal (Frankenthal Local Court), Pfalz, Germany, in criminal proceedings brought against an individual. They closely affect a number of important aspects of the daily life of the European citizen. 3. To that end, Directive 80/1263 harmo- nised certain national rules, particularly those relating to the issue of driving licences and the conditions for the validity of such licences. It established a Community model licence, introduced a principle of mutual recognition of such licences and provided I — Legal background for the exchange of licences by holders transferring their place of residence or place of employment from one Member State to another.

A — Community legislation

4. Directive 80/1263 was repealed by 2. The issue and use of driving licences Directive 91/439/EEC. 3The latter marks were first harmonised by the adoption of a further stage in the harmonisation of the First Directive 80/1263/EEC. 2Its pur- national provisions, in particular as regards pose was to contribute to improving road the conditions governing the issue of traffic safety and to assist the movement of licences and the scope of the principle of mutual recognition relating to them.

4 — Article 6 of the Directive. B — National legislation 5 — Article 7(1)(a) of the Directive. 6 — Ibidem. 7 — Article 7(1)(b) of the Directive. 'Normal residence' is defined in Article 9 of the Directive as the place where a person usually lives, that is, for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties, because of personal ties which show close links between that person 9. Since 1 January 1999, the driving of and the place where he is living. The article states that the normal residence of a person whose occupational ties are in motor vehicles in Germany by the holders a different place from his personal ties and who conse- of licences issued by another Member State quently lives in turn in different places situated in two or more Member States is to be regarded as being the place of his personal ties, provided that such person returns there regularly (this last condition need not be met however where the person is living in a Member State in order to carry out a task of a definite duration). 8 — See the second paragraph of Article 10 of the Directive.

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and who have taken up residence in final) administrative measure, when there Germany has been governed by the Ver- has been a refusal to issue such a licence, ordnung über die Zulassung von Personen when there has been an abandonment of its zu den Straßenverkehr of 18 August 1998, use, 11or when the holder of the licence has also called the Fahrerlaubnisverordnung 9 been banned from driving in Germany or (Regulation on Access to Road Traffic, has had his driving licence confiscated or hereinafter the 'FeV'). seized or been required to surrender it. 12

13. Moreover, according to the interpreta- tion which has been given to those provi- 11. The same applies when a licence issued sions by case-law, 15the loss of the right to by a Member State of the European Union drive in Germany is not limited in time to or the EEA is withdrawn (whether on a the period of the driving ban or of the temporary or permanent basis) by the blocked period which is coupled with a courts in Germany or is subject to an equivalent (immediately enforceable or 11 — Paragraph 28(4)(3) of the FeV. 12 — Paragraph 28(4)(4) of the FeV. 9 — Bundesgesetzblatt 1999 I, p. 2214. The relevant provisions 13 — In German law, the withdrawal of a licence ('Entziehung') of this regulation have, as regards the main proceedings, automatically entails the loss or cancellation of the right to been very slightly amended by a regulation of 7 August drive and not simply its suspension. Such a measure 2002, which came into force on 1 September 2002. requires to be coupled with a prohibition on raking out a new licence for a period fixed by the court (a 'blocked 10 — Paragraph 28(4)(2) of the FeV. Similar provisions were in period'). At the end of the blocked period, the person place under the first paragraph of Article 1(4) of the concerned is only permitted to resume driving once lie has Verordnung zur Umsetzung der Richtlinie 91/439/EEC des been authorised to do so by the competent authorities, Rates vom 29 Juli 1991 uber den Führerschein und zur having passed a number of aptitude tests. Anderung straßenverkehrsrechtlicher Vorschriften (Bun- desgesetzblatt 1991 I, p. 885, hereinafter 'the regulation 14 — For an illustration, see in particular the order of the implementing the Directive'). This regulation was adopted Bundesgerichtshof of 20 June 2002 (4StR 371/01, NJW on 19 June 1996 and was in force from 1 July 1996 until 2002, p. 2330). 31 December 1998 (when the FeV, which replaced it, came 15 — See, inter alia, the order of the Bundesgerichtshof cited into force). above (III, paragraph 2).

14. On 26 February 1998, the Amtsgericht Frankenthal, Pfalz, ordered the withdrawal (equivalent to cancellation) of the driving licence belonging to Mr Felix Kapper, a German national and the holder of a German licence, and instructed the relevant I I I — The question referred for a pre- national authorities not to issue a new liminary ruling licence to him before the expiry of a period of nine months, that is to say not before 25 November 1998. 17. In light of the parties' arguments, the Amtsgericht Frankenthal, Pfalz, decided to 16 — It followed from the first paragraph of Article 1(4) of the stay the proceedings and to refer the regulation implementing the Directive that the holder of a licence issued by another Member State who had following question to the Court for a previously had his German licence provisionally with- drawn or who could not obtain such a licence by reason of preliminary ruling: a final judicial decision was not entitled to drive a vehicle in Germany for so long as this provision applied to him. At the expiry of the period in question, the person concerned could automatically rely in Germany on his licence issued by another Member State. 17 — However, the regulation of 7 August 2002, which came into force on 1 September 2002, made it possible to put an end to the situation where the right to drive was lost. Under Paragraph 28(5) of the FeV, as amended, permission to drive in Germany under a licence issued by another 'Does Article 1(2) of Council Directive Member State may be granted by the German authorities 91/439ÆEC of 29 July 1991 on driving when the person concerned so requests, provided that the circumstances which led to the withdrawal of the licence no licences preclude a Member State from longer exist. These provisions concern specifically the situation where the holder of a German licence has had his refusing to recognise a driving licence licence withdrawn by the German authorities and has where, according to its investigations, subsequently obtained a new licence from another Member State. another Member State issued that licence

A — The admissibility of the question referred for a preliminary ruling 20. However, it has stated that it is for the Court to examine the circumstances in which the case was referred to it by the national court in order to assess whether 18. The Netherlands Government is uncer- the Court has jurisdiction. 20 tain whether the question referred for a preliminary ruling is admissible, in the absence, in its opinion, of sufficient infor- mation in the order for reference relating to the facts, to the relevant provisions of national law and to the importance of the question for the resolution of the main proceedings, particularly on the assumption that the person concerned was still banned 21. It is in the light of this role that the from driving in Germany. Court has held that it has no jurisdiction to give a preliminary ruling where it is quite obvious that the interpretation or the assessment of the validity of a Community rule sought by that court bears no relation to the facts or purpose of the main 19. It should be borne in mind in that proceedings, or where the problem is regard that the Court has consistently held hypothetical, or where the Court does not that the procedure under Article 234 EC is have before it the factual or legal informa- an instrument which assists cooperation between the Court of Justice and the national courts. 18 In the context of that 19 — Sec inter alia Case C-415/93 Bosman [1995] ECR I-4921, cooperation, it is solely for the national paragraph 59; Case C-379/98 PreussenElektra [2001] court before which the dispute has been ECR I-2099, paragraph 38; Case C-153/00 Der Weduwe 12002] ECR I-11319, paragraph 31, and Case C-318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I-905, paragraph 41. 20 —See inter alia Case 244/80 Foglia [1981] ECR 3045, paragraph 21, Preussen Elektra, paragraph 39, Der 18— This point was stated for the first time in Case 16/65 Weduwe, paragraph 39, and Bacardi-Martini and Cellier Schwarze [ 1965] ECR 877, 886. des Dauphins, paragraph 42.

21 — See inter alia Bosman, cited above, paragraph 61, Case C-437/97 EKW and Wein & Co. [2000] ECR I-1157, 23 — It is not for the Court to take a view on the application of paragraph 52, Case C-36/99 Idéal tourisme [2000] ECR national law ratione tempore. Nevertheless, a reading of I-6049, paragraph 20, and Case C-390/99 Canal Satélite the order of the Bundesgerichtshof of 20 June 2002 Digital [2002] ECR I-607, paragraph 19. referred to above suggests that the FeV is applicable to 22 — See Joined Cases C-320/90 to C-322/90 Telemarsicab- Mr Kapper's situation, to the exclusion of the regulation ntzzo and Others [1993] ECR I-393, paragraph 6, and, in implementing the Directive. particular, the Opinion of Advocate General Gulmann in 24 — See inter alia Case C-67/96 Albany [1999] ECR I-5751, that case, paragraphs 5 to 21. See also Case C-157/92 paragraph 40, and Case C-35/99 Arduino [2002] ECR Banchero [1993] ECR I-1085, paragraph 6, and Case I-1529, paragraphs 28 and 29, and my Opinion in that C-378/93 La Pyramide [1994] ECR I-3999, paragraph 14. case, point 30.

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29. However, as Mr Kapper, the German and Italian Governments and the Commis- 31. It should be noted at the outset that sion have proposed, the scope of the Article 1(2) of the Directive lays down the question referred for a preliminary ruling principle that 'driving licences issued by should be extended to include the inter- Member States shall be mutually recog- pretation of Article 8(2) and (4) of the nised'. Directive in order to provide a useful and complete answer to the national court.

30. I am accordingly of the view that the question referred for a preliminary ruling 32. As I recently pointed out, these provi- should be treated as asking whether Article sions adopt a general approach to the 1(2), in conjunction with Article 7(1 )(b), mutual recognition of licences, and do not

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require that any particular conditions or Member State for reasons relating to the formalities are met. 25 residence of the holder of the licence in question or the fact that the latter has had his licence withdrawn or cancelled.

33. The Court so held in Skanavi and Chryssanthakopoulos 26 in the context of requirements relating to the exchange of 1. The condition relating to the residence of licences. The Court restated the point in the holder of the licence at the time of issue Awoyemi, adding that the obligation to of the licence recognise driving licences is clear and unconditional and that the Member States have no discretion as to the measures to be adopted in order to comply with those requirements. It follows that the provisions 36. Under Article 7(1)(b) of the Directive, a referred to above have direct effect. 27 driving licence may only be issued to an applicant who has his normal residence in the territory of the Member State issuing the licence.

39. As I have already observed in relation licence provided for in Directive 91/439; the to the registration procedure in the Nether- host Member State cannot then require the lands, the very philosophy of the system holder to prove again that he or she actually established by the Directive consists in satisfied the conditions laid down in Arti- laying down common rules for the issue of cles 7(1)(b) and 9 of Directive 91/439, driving licences and in conferring on the without violating the principle of mutual Member State of issue the exclusive power recognition of driving licences'. of ensuring that the rules have been met. 29 It is on the basis of this system that the principle of mutual recognition of licences is founded which, it should be borne in mind, is intended to operate automatically, that is to say without any special condi- tions, formalities or investigative measures, and therefore requires mutual confidence on the part of the Member States. 42. The Court's analysis is based on the fact that 'this requirement [of proof] negates the very recognition of driving licences issued by other Member States, because it amounts to rechecking whether the licence holder has fulfilled the condi- 40. Accordingly, to accept that a Member tions for obtaining a licence provided for in State is entitled to check that the holder of a Articles 7(1)(b) and 9 of Directive licence issued by another Member State has 91/439'. 31 fulfilled the condition as to residence of the holder and that, should the first-mentioned Member State take the view that there has been a failure to comply with that condi- tion, it may refuse to recognise the licence in question, would amount to stripping the principle of mutual recognition of licences of its substance and destroying the mutual confidence which must guide Member 43. The Court was careful to emphasise in States in the matter. that regard that this requirement meant that the holder of the licence to be registered had

to prove something the evidence for which gation to recognise a licence issued by could be extremely difficult to provide another Member State solely on the ground owing to the time which might elapse that in its opinion there was evidence which between when the licence is obtained and suggested that the condition had not been when the person took up residence in the fulfilled and thus calling into question the Netherlands and the distance there might be reliability of that proof. That is all the more between the place where the licence holder the case as, if such evidence were taken into resided (when the driving licence was account by that Member State as grounds obtained) and the municipality in which for refusing to recognise the licence in the licence holder decided to take up question, its holder would ultimately be residence (in the Member State in ques- required to provide evidence once again tion). 32 that he had fulfilled that condition, which, as the Court has held, would also be contrary to the principle of the mutual recognition of licences.

44. In my opinion, that which applies to a requirement that the holder of the licence himself must prove as a matter of course that he has met the residence condition referred to above, in the context of a registration procedure with a Member State which did not issue the licence, applies also 46. I am therefore of the opinion that a to the checks or investigations which that Member State is not entitled either to check Member State would undertake in that that the holder of a licence issued by regard in order to decide whether to grant another Member State has properly fulfilled or refuse recognition of the licence. the residence condition laid down by the Directive, or to refuse to recognise the licence in question on the ground that it has taken the view that the holder has not fulfilled that condition.

48. Where a Member State has such result of an exchange of information the doubts, it may so inform the Member State Member State which issued the licence which issued the licence by way of an realised that, contrary to what it had exchange of information under Article 12 believed when the licence was issued, the (3) of the Directive. 33 It should nevertheless residence condition laid down by the be made clear that if the result of such an Directive had not been properly fulfilled. exchange is that the Member State which Nevertheless, even in such a case, I believe issued the licence confirms that the resi- that a refusal to recognise the licence would dence condition in question was properly still not be permissible. 34 fulfilled, the Member State concerned con- tinues to be required to recognise the disputed licence, even if it is not convinced by the reply it has received. It is thus not entitled to rely on its own checks or investigations into the matter, even if confined to the specific case, to refuse to 51. Unlike the Commission, I find it recognise the licence. difficult to place the failure of the holder of a licence to fulfil the residence condition in the Member State in which it was issued on the same footing as the situation before the Court in Van de Bijl. 35

49. That being so, were the host Member State to take the view that the Member State which had issued the licence had carried out inadequate checks into the 52. In that case, the Court considered the residence condition in question, it would position of a Netherlands national who always be open to the former to bring wished to exercise the trade of a self- infringement proceedings under Article 227 employed painter, but was unable to estab- EC. lish that he had the qualifications required to exercise it in that Member State, and who relied in his dealings with the Nether-

lands authorities on a certificate issued by person concerned possessed certain general the United Kingdom authorities which knowledge and ability sufficient to pursue stated that he had carried on that activity the intended activity, in order to protect the in the United Kingdom for a specified interests of the recipients of that activity. period, with a view to being granted permission to carry on the activity con- cerned in the Netherlands under Directive 64/427/EEC. 36 That directive provided that where, in a Member State, the taking up or pursuit of certain activities was dependent on the possession of certain knowledge and 54. That context explains why the Court ability, that Member State should accept as held that 'the competent authority in the sufficient evidence of such knowledge and host Member State, when it is presented activity the fact that the activity in question with an application for a licence to take up had been pursued in another Member State an activity on the basis of a certificate for a specified period, relying for that drawn up by the competent authority of the purpose on a certificate issued by the Member State from which the beneficiary authorities of the latter Member State. comes pursuant to ... the directive, is not bound to grant the application automati- cally if the certificate produced contains a manifest inaccuracy inasmuch as it states that the person covered ... has completed a period of professional activity in the Mem- ber State from which he comes, when it is clear that during that same period the person in question has pursued his activities in the territory of the host Member State'. 38

59. In my opinion, such a failure does not 57. Moreover, that residence condition of itself justify a refusal to recognise the does not reflect needs which are compar- driving licence in question, nor indeed does able to those applying to the possession of it justify the withdrawal or cancellation of general knowledge and ability, which are the licence by a Member State which did intended to protect the interests of recipi- not issue the licence (with effects on its own ents of an activity carried on by a self- territory). 40 That being the case, if a employed person. However important it Member State which issues licences were may be in the structure of the system consistently to fail to meet its obligation to established by the Directive, the condition confirm that the residence condition has cannot be treated in the same way as an been fulfilled, the host Member State and essential condition, such as the passing of the Commission could bring infringement certain tests of skills and behaviour and proceedings against the Member State in theoretical tests, all of which are prompted question under Articles 226 and 227 EC. by overriding reasons relating to the public interest, as Article 7(1)(a) of the Directive requires. 39

60. It is moreover not inconceivable that the Member State which issued the licence

61. I am accordingly of the opinion that the combined provisions of Article 1(2), Article 7(1)(b) and Article 9 of the Directive should be interpreted as meaning that a Member State is not entitled to refuse to recognise a licence issued by another 64. Similarly, the Italian Government sub- Member State on the ground that in its mits that these provisions are solely opinion the holder of the licence in question intended to secure the application of a had not taken up normal residence in the criminal penalty, such as the suspension or latter Member State at the time when the withdrawal of a licence, so that its holder licence was issued. cannot avoid these by improperly relying on a licence obtained in another Member State. Once the criminal penalty has been executed, the Member State in which it was imposed is no longer entitled to refuse to recognise the licence.

69. This is not the situation in which Mr Kapper finds himself in the main proceed- ings. 67. As far as Article 8(2) of the Directive is concerned, I note that it provides that where the holder of a valid national driving licence issued by a Member State has taken up normal residence in another Member State, the host Member State may, subject to the observance of the principle of territoriality of criminal and police laws, apply its national provisions on the restric- 70. When the order was made in Germany tion, suspension, withdrawal or cancella- for the withdrawal (equivalent to cancella- tion of the right to drive to the holder of the tion) of his licence, that punishment applied licence and, if necessary, exchange the only to the German licence which he had licence for that purpose. previously held, before obtaining the Neth- erlands licence in issue. The question does not arise in the main proceedings whether, under Article 8(4) of the Directive, the German authorities are entitled to order the withdrawal or cancellation of Mr Kapper's licence once again, this time in relation to his Netherlands licence. The only point at issue is whether the German authorities are 68. In my opinion, these provisions of the entitled to refuse to recognise the validity of Directive, which do not apply only to the Netherlands licence. As with the resi- exchanges of licences, 41 cover the situation dence condition, this question must be where the holder of a licence is accused of answered in the negative. It follows that committing a road traffic offence in the host Mr Kapper's Netherlands licence must be Member State and where the relevant treated as valid, so that the offence with authorities in that Member State intend to which he is charged (that of driving without impose on him a penalty by way of a valid licence) cannot be sustained. As such restriction, suspension, withdrawal or can- an offence has not been committed, Article cellation of the right to drive, whose effects

72. As regards the last-mentioned provi- sions of the Directive, I am of the view that these should be narrowly interpreted, to 74. It should moreover be noted that the mean that a Member State is entitled to option given to Member States under refuse to recognise a licence issued by Article 8(4) of the Directive constitutes an another Member State when the authorities exception to the principle of recognition of of the first Member State have imposed on licences laid down in Article 1(2). It follows the holder of the licence in question a measure which restricts, suspends, with- draws or cancels the right to drive only 43 — At least in the Italian and French versions.

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V — Conclusion

78. In light of the foregoing considerations, I propose that the Court should answer as follows the questions referred for a preliminary ruling by the Amtsgericht Frankenthal, Pfalz:

(1) The combined provisions of Article 1(2), Article 7(1)(b), Article 8 and Article 9 of Council Directive 91/439/EEC of 29 July 1991 on driving licences are to be interpreted as meaning that a Member State is not entitled to refuse to recognise a licence issued by another Member State on the ground that in its opinion the holder of the licence in question had not taken up normal residence in the latter Member State at the time when the licence was issued.

(2) However, a Member State is entitled under Article 8(4) of the Directive to refuse to recognise such a licence where the authorities of that Member State have imposed on the holder of the licence in question a measure which restricts, suspends, withdraws or cancels the right to drive only where such a measure has not been fully executed and its effects have therefore not been exhausted.