61997J0230

1 Freedom of movement for persons - Freedom of establishment - Driving licence - National of a non-member country holding a Community model driving licence - Failure to comply with the obligation to exchange the driving licence issued by the Member State of origin for a licence of the host Member State - Treated as equivalent to driving without a licence - Criminal penalties - Whether permissible

(EC Treaty, Arts 48 and 52; Council Directive 80/1263, Art. 8(1), first subpara.)

2 Freedom of movement for persons - Freedom of establishment - Driving licence - National of a non-member country holding a Community model driving licence - Failure to comply with the obligation to exchange licences provided for by Directive 80/1263 - Criminal penalties - Directive 91/439 - Direct effect of Articles 1(2) and 8(1) - Scope - National legal principle of the retroactive effect of the more favourable provisions of criminal law - Effect

(Council Directive 80/1263, Art. 8(1), first subpara., and Directive 91/439, Arts 1(2) and 8(1))

1 Although Member States may not, in the event of breach of the obligation to exchange driving licences laid down in the first subparagraph of Article 8(1) of Directive 80/1263 on the introduction of a Community driving licence, impose a criminal penalty so disproportionate to the gravity of the infringement as to become an obstacle to the free movement of persons, in view of the effect which the right to drive a motor vehicle has on the actual exercise of a trade or profession by an employed or self-employed person, particularly with regard to access to certain activities or certain offices, the justification for the restriction imposed on the power of the Member States to provide for criminal penalties in this area is the free movement of persons established by the Treaty. A national of a non-member country may not effectively rely on the rules governing the free movement of persons which apply only to a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or to a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law.

Accordingly, neither the provisions of Directive 80/1263 nor those of the Treaty preclude the driving of a motor vehicle by a national of a non-member country who holds a Community model driving licence issued by one Member State and who, having transferred his residence to another Member State, could have obtained a licence issued by the host State in exchange, but did not complete that formality within the prescribed period of one year, from being treated by the latter State as driving without a licence and thus rendered punishable by imprisonment or a fine.

2 Articles 1(2) and 8(1) of Directive 91/439 on driving licences impose on Member States clear and precise obligations which consist in the mutual recognition of Community model driving licences and in the prohibition on requiring the exchange of driving licences issued by another Member State, regardless of the nationality of the holder, since the States concerned have no discretion as to the measures to be adopted in order to comply with those requirements. It may be inferred from the direct effect which should therefore be attributed to those provisions that individuals are entitled to rely on them in proceedings before the national courts.

It follows that a national of a non-member country who holds a valid Community model driving licence issued by one Member State, who has taken up normal residence in another Member State, but who has not exchanged his driving licence within the one-year period prescribed by the first subparagraph of Article 8(1) of Directive 80/1263, is entitled to rely directly on Articles 1(2) and 8(1) of Directive 91/439 in order to challenge the imposition, in the Member State in which he has established his new residence, of a term of imprisonment or a fine for driving without a licence. Community law does not prevent a court of such a Member State, by reason of the principle that forms part of national law in certain Member States of the retroactive effect of more favourable provisions of criminal law, from applying the aforesaid provisions of Directive 91/439 even where the offence took place before the date set for compliance with that directive.

In Case C-230/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Hof van Cassatie (Belgium) for a preliminary ruling in the criminal proceedings before that court against

Ibiyinka Awoyemi

on the interpretation of Article 8(1) of the First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence (OJ 1980 L 375, p. 1) and of Articles 1(2) and 8(1) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1),

THE COURT

(Second Chamber),

composed of: G. Hirsch, President of the Chamber, G.F. Mancini and R. Schintgen (Rapporteur), Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- the United Kingdom Government, by S. Ridley, of the Treasury Solicitor's Department, acting as Agent, and R. Thompson, Barrister,

- the Commission of the European Communities, by B.J. Drijber and L. Pignataro, of its Legal Service, acting as Agents,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 July 1998,

gives the following

Judgment

1 By judgment of 17 June 1997, received at the Court on 24 June 1997, the Hof van Cassatie (Court of Cassation) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of Article 8(1) of the First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence (OJ 1980 L 375, p. 1) and of Articles 1(2) and 8(1) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1).

2 Those questions were raised in criminal proceedings instituted by the public prosecutor's office against Mr Awoyemi, who was charged with driving a motor vehicle on the public highway in Belgium without being in possession of a valid driving licence.

The directives on driving licences

3 Driving licences were initially harmonised by the adoption of Directive 80/1263 which, as stated in the first recital in its preamble, aims to contribute to improving road traffic safety and to assist the movement of persons settling in a Member State other than that in which they have passed a driving test, or moving within the Community.

4 To that end, Directive 80/1263 harmonised the relevant national rules, particularly as regards national systems governing the issue of driving licences, categories of vehicles and conditions for the validity of such licences. It also established a Community model licence and introduced a system of mutual recognition of national driving licences by Member States and the exchange of licences by holders transferring their place of residence or place of employment from one Member State to another.

5 In accordance with Article 6(1) of that directive, a driving licence may be issued only to applicants who have passed a practical and theoretical test and who meet medical standards, and who have their normal residence in the territory of the Member State issuing the licence, if the legislation of that State so requires.

6 Article 8(1) of the directive provides as follows:

`The Member States shall provide that, if the holder of a valid national driving licence or valid Community model licence issued by a Member State takes up normal residence in another Member State, his licence shall remain valid there for up to a maximum of a year following the taking up of residence. At the request of the holder within that period, and against surrender of his licence, the State in which he has taken up normal residence shall issue him with a driving licence (Community model) for the corresponding category or categories without subjecting him to the conditions laid down in Article 6. However, that Member State may refuse to exchange the licence if its national regulations, including medical standards, preclude the issue of the licence.

The exchange must be preceded by the submission of a statement by the applicant to the effect that his driving licence is currently valid. It shall be for the Member State effecting the exchange to check the veracity of his statement if necessary. The Member State effecting the exchange shall return the old licence to the authorities of the Member State which issued it.'

7 Directive 91/439 marked a further stage in the harmonisation of national provisions, in particular as regards the conditions governing the issue of licences and vehicle categories. It also abolished the obligation to exchange driving licences where normal residence is transferred to another Member State; that obligation, according to the ninth recital in the preamble to the directive, constitutes an obstacle to the free movement of persons, which is inadmissible in the light of the progress made towards European integration.

8 Article 1(2) of Directive 91/439 provides as follows:

`Driving licences issued by Member States shall be mutually recognised.'

9 Article 8(1) of the directive provides:

`Where the holder of a valid national driving licence issued by a Member State has taken up normal residence in another Member State, he may request that his driving licence be exchanged for an equivalent licence; it shall be for the Member State effecting the exchange to check, if necessary, whether the licence submitted is in fact still valid.'

10 According to Article 8(6):

`Where a Member State exchanges a driving licence issued by a third country for a Community model driving licence, such exchange shall be recorded in the latter as shall any subsequent renewal or replacement.

Such an exchange may occur only if the licence issued by the third country has been surrendered to the competent authorities of the Member State making the exchange. If the holder of this licence transfers his normal residence to another Member State, the latter need not apply Article 1(2).'

11 Article 12(1) of the directive provides as follows:

`After consulting the Commission, Member States shall, before 1 July 1994, adopt the laws, regulations or administrative provisions necessary to comply with this directive as of 1 July 1996.'

12 Article 13 of the directive provides:

`Directive 80/1263/EEC is hereby repealed as of 1 July 1996.'

The national legislation

13 In Belgium, Article 2 of the Royal Decree of 6 May 1988 (Moniteur Belge of 28 September 1988, p. 13631) provides as follows:

`1. A Belgian driving licence may be issued to persons who:

1. are registered in the population register or in the aliens' register of a Belgian municipality and possess the following documents issued in Belgium:

(a) a Belgian national's or alien's identity card;

(b) proof of registration in the aliens' register;

(c) a residence permit of a national of a Member State of the European Economic Community;

(d) a vehicle registration certificate;

2. possess one of the following documents issued in Belgium:

(a) a diplomatic identity card;

(b) a consular identity card;

(c) a special residence permit.

2. The persons referred to in Article 1(1) may drive a motor vehicle only while covered 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 States of the European Economic Community. Other drivers of motor vehicles must hold and carry a Belgian driving licence or a foreign national or international driving licence, subject to the conditions laid down by the provisions applicable to international road traffic.'

The dispute in the main proceedings

14 Mr Awoyemi, a Nigerian national, lived in the United Kingdom for a time, where he was the holder of a Community model driving licence valid from 11 April 1990 to 26 January 2003.

15 Since 17 December 1990, he has lived in Belgium on a regular basis.

16 On 27 July 1993 Mr Awoyemi was stopped by the police in Ostende (Belgium) and found to be driving a motor vehicle without being in possession of a Belgian driving licence.

17 Although he relied on his Community model licence which was valid at the material time, Mr Awoyemi was ordered on 4 January 1995 by the Correctionele Rechtbank te Brugge (Bruges Criminal Court) to pay a fine of BFR 2 000 for driving a motor vehicle on the public highway in Belgium without being in possession of a valid driving licence pursuant to Article 2 of the aforesaid Royal Decree of 6 May 1988. According to that court, Mr Awoyemi was living in Belgium without being in possession of a Belgian driving licence; at the material time, moreover, the one-year period from the date of his entry in the aliens' register in Belgium, during which he was entitled to drive while covered by a valid driving licence issued by a Member State of the European Community, had expired.

18 Mr Awoyemi lodged an appeal in cassation against that judgment.

19 It is apparent from the order for reference that the Hof van Cassatie considers, in the first place, that the aforesaid Royal Decree of 6 May 1988 was adopted, in particular, to implement the first subparagraph of Article 8(1) of Directive 80/1263. The national court then refers to the Court's judgment in Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929, but points out that it was given in a case concerning nationals of a Member State of the European Community, whereas this case is concerned with a national from a non-member country in possession of a driving licence issued by a Member State other than that person's host State. Finally, it notes that Directive 80/1263 was repealed as from 1 July 1996 by Directive 91/439 which, in Article 1(2), requires driving licences issued by Member States to be mutually recognised, and, in Article 8(1), transforms simply into a right the obligation to exchange within a period of one year a valid driving licence issued by one Member State, where the holder takes up normal residence in another Member State. According to the national court, those provisions would appear to have direct effect, although Directive 91/439 does not specify whether its provisions may be applied to infringements committed while Directive 80/1263 was in force.

20 Taking the view that the outcome of the case therefore depended on the interpretation of Community law, the Hof van Cassatie stayed proceedings and referred the following three questions to the Court for a preliminary ruling:

`1. Do the provisions of the First Council Directive 80/1263 of 4 December 1980 on the introduction of a Community driving licence, in particular Article 8 thereof, preclude 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 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 rendered punishable by imprisonment or a fine?

2. Do Article 1(2) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, providing for mutual recognition for driving licences issued by the Member States, and the right provided for in Article 8(1) of that directive to exchange licences mean that a person who is not a citizen of the European Union but who holds a national driving licence or a Community model driving licence issued by a Member State and has his normal residence in the territory of another Member State, has the right, even where there are no national rules in this regard, to rely on the application of those provisions in court proceedings as from 1 July 1996?

3. If the answer to Question 2 is in the affirmative, do Articles 1(2) and 8(1) of Council Directive 91/439/EEC of 29 July 1991 on driving licences have retroactive effect in the sense that they preclude 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 model driving licence issued by a Member State and who could have obtained a licence from the host State in exchange for that licence, but on 27 July 1993 had 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?'

Question 1

21 It is apparent from the order for reference that, in its first question, the national court is essentially asking the Court whether the provisions of Directive 80/1263 or those of the Treaty preclude the driving of a motor vehicle by a national of a non-member country who holds a Community model driving licence issued by one Member State and who, having transferred his residence to another Member State, could have obtained a licence issued by the host State in exchange, but did not complete that formality within the prescribed period of one year, from being treated by the latter State as driving without a licence and thus rendered punishable by imprisonment or a fine.

22 It should be noted at the outset that, as the Advocate General has observed in point 21 of his Opinion, Directive 80/1263 applies not only to nationals of Member States but also to holders of a driving licence issued by a Member State, irrespective of nationality.

23 It follows that a person in Mr Awoyemi's position, who holds a Community model driving licence which has been issued by the competent authorities of the United Kingdom and is valid at the material time, falls within the scope ratione personae of that directive.

24 However, that directive makes no provision for the penalties to be imposed in the event of breach of the obligation laid down in the first subparagraph of Article 8(1) to exchange driving licences.

25 Accordingly, in the absence of Community rules governing the matter, the Member States remain competent in principle to impose penalties for breach of such an obligation (see Skanavi and Chryssanthakopoulos, paragraph 36).

26 It is settled case-law that Member States may not impose a criminal penalty in this area so disproportionate to the gravity of the infringement as to become an obstacle to the free movement of persons, in view of the effect which the right to drive a motor vehicle has on the actual exercise of a trade or profession by an employed or self-employed person, particularly with regard to access to certain activities or certain offices (see Skanavi and Chryssanthakopoulos, paragraphs 36 and 38).

27 However, a person such as Mr Awoyemi may not rely on that case-law.

28 It follows from the grounds of the judgment in Skanavi and Chryssanthakopoulos, paragraphs 36 to 39, that the justification for the restriction imposed on the power of the Member States to provide for criminal penalties in the event of breach of the obligation to exchange driving licences is the free movement of persons established by the Treaty.

29 A national of a non-member country who finds himself in the same position as Mr Awoyemi may not effectively rely on the rules governing the free movement of persons which, in accordance with settled case-law, apply only to a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or to a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law (see, for example, Case C-147/91 Ferrer Laderer [1992] ECR I-4097, paragraph 7).

30 In those circumstances, the legal position of such a non-Community national with regard to the penalties which may be imposed on him in the event of non-compliance with the obligation to exchange driving licences, laid down in the first subparagraph of Article 8(1) of Directive 80/1263, is not governed either by the provisions of that directive or by those of the Treaty relating to the free movement of persons.

31 The answer to the first question submitted must therefore be that neither the provisions of Directive 80/1263 nor those of the Treaty preclude the driving of a motor vehicle by a national of a non-member country who holds a Community model driving licence issued by one Member State and who, having transferred his residence to another Member State, could have obtained a licence issued by the host State in exchange, but did not complete that formality within the prescribed period of one year, from being treated by the latter State as driving without a licence and thus rendered punishable by imprisonment or a fine.

Questions 2 and 3

32 In its second and third questions, which it is appropriate to examine together, the national court is asking essentially whether a national of a non-member country who holds a valid Community model driving licence issued by one Member State, who has taken up normal residence in another Member State, but who has not exchanged his driving licence within the one-year period prescribed by the first subparagraph of Article 8(1) of Directive 80/1263, is entitled to rely directly on Articles 1(2) and 8(1) of Directive 91/439 in order to challenge the imposition, in the Member State in which he has established his new residence, of a term of imprisonment or a fine for driving without a licence, where that offence took place before the date set for compliance with Directive 91/439.

33 It should be noted at the outset that, in accordance with Articles 12 and 13 of Directive 91/439, the time-limit for transposing the directive into national law expired on 1 July 1994, the Member States being required to comply with the directive only as of 1 July 1996, the date on which Directive 80/1263 was repealed.

34 Accordingly, the obligation to exchange driving licences, laid down in the first subparagraph of Article 8(1) of Directive 80/1263, was mandatory until 1 July 1996 since the provisions of Directive 91/439 do not have retroactive effect (see, to that effect, Skanavi and Chryssanthakopoulos, paragraph 28).

35 As the material events in this case occurred on 27 July 1993, the United Kingdom Government and the Commission have expressed doubts as to the usefulness of interpreting Directive 91/439 for the purpose of determining the dispute pending before the national court.

36 It is apparent from the order for reference, however, that the national court considered it necessary to seek a ruling from the Court on the interpretation of Articles 1(2) and 8(1) of Directive 91/439 on the ground that it may, where appropriate, apply the principle, which forms part of its national law, of the retroactive effect of more favourable provisions of criminal law by setting aside the national provisions under which the offences in question were committed, if national law were to prove incompatible with Community law and if the relevant provisions of Community law were capable of being relied upon directly by an individual.

37 It is therefore necessary to answer the questions submitted since it is for the national court to determine both the need for a preliminary ruling in order to enable it to give judgment and the relevance of the questions which it submits to the Court (see, to that effect, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 10; Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraph 15; Case C-341/94 Allain [1996] ECR I-4631, paragraph 13, and Skanavi and Chryssanthakopoulos, paragraph 18).

38 Community law does not prevent the national court from taking account, in accordance with a principle of its criminal law, of the more favourable provisions of Directive 91/439 for the purposes of the application of national law, even though, as the Commission has pointed out in its written observations, Community law imposes no obligation to that effect.

39 In order to determine whether the aforesaid provisions of Directive 91/439 have direct effect, it should be borne in mind that, according to established case-law, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State, where the latter fails to transpose the directive into national law within the prescribed period or where it fails to implement the directive correctly (see, for example, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 7).

40 In that regard, it is apparent first of all from the actual wording of the second question submitted by the national court that Articles 1(2) and 8(1) of Directive 91/439 were not transposed into the national legal system concerned within the prescribed period and were not complied with, in accordance with Article 12 of that directive, as of 1 July 1996.

41 Furthermore, with regard to the question whether those provisions of the directive are sufficiently precise and unconditional to be capable of being relied upon by an individual in proceedings before a national court, it should be noted, in the first place, that Article 1(2) provides for mutual recognition, without any formality, of driving licences issued by Member States (see Skanavi and Chryssanthakopoulos, paragraph 26), and secondly, that Article 8(1) replaces simply with a right, conferred on the holder of a valid driving licence issued by one Member State where that person has taken up normal residence in another Member State, the obligation to exchange driving licences within the one-year period referred to in the first subparagraph of Article 8(1) of Directive 80/1263, since that obligation is deemed by the ninth recital in the preamble to Directive 91/439 to constitute an obstacle to the free movement of persons.

42 As the Advocate General has stressed in points 37 to 41 of his Opinion, those provisions thus impose on Member States clear and precise obligations which consist in the mutual recognition of Community model driving licences and in the prohibition on requiring the exchange of driving licences issued by another Member State, regardless of the nationality of the holder, since the Member States have no discretion as to the measures to be adopted in order to comply with those requirements.

43 It may be inferred from the direct effect which should therefore be attributed to Articles 1(2) and 8(1) of Directive 91/439 that individuals are entitled to rely on them in proceedings before the national courts.

44 It would be otherwise only if the person concerned had obtained the driving licence in the first Member State in exchange for a licence issued by a non-member country. It follows from Article 8(6) of Directive 91/439 that the other Member States are under no obligation to recognise such a licence and that, in those circumstances, therefore, the directive does not impose an unconditional obligation. However, there is no indication in the documents before the Court as to the manner in which Mr Awoyemi obtained his Community model driving licence in the United Kingdom.

45 In the light of the foregoing considerations, the answer to the second and third questions must be that a national of a non-member country who holds a valid Community model driving licence issued by one Member State, who has taken up normal residence in another Member State, but who has not exchanged his driving licence within the one-year period prescribed by the first subparagraph of Article 8(1) of Directive 80/1263, is entitled to rely directly on Articles 1(2) and 8(1) of Directive 91/439 in order to challenge the imposition, in the Member State in which he has established his new residence, of a term of imprisonment or a fine for driving without a licence. Community law does not prevent a court of such a Member State, by reason of the principle that forms part of national law in certain Member States of the retroactive effect of more favourable provisions of criminal law, from applying the aforesaid provisions of Directive 91/439 even where the offence took place before the date set for compliance with that directive.

Costs

46 The costs incurred by the United Kingdom Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Second Chamber),

in answer to the questions referred to it by the Hof van Cassatie by judgment of 17 June 1997, hereby rules:

1. Neither the provisions of the First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence, nor those of the EC Treaty, preclude the driving of a motor vehicle by a national of a non-member country who holds a Community model driving licence issued by one Member State and who, having transferred his residence to another Member State, could have obtained a licence issued by the host State in exchange, but did not complete that formality within the prescribed period of one year, from being treated by the latter State as driving without a licence and thus rendered punishable by imprisonment or a fine.

2. A national of a non-member country who holds a valid Community model driving licence issued by one Member State, who has taken up normal residence in another Member State, but who has not exchanged his driving licence within the one-year period prescribed by the first subparagraph of Article 8(1) of Directive 80/1263, is entitled to rely directly on Articles 1(2) and 8(1) of Council Directive 91/439/EEC of 29 July 1991 on driving licences in order to challenge the imposition, in the Member State in which he has established his new residence, of a term of imprisonment or a fine for driving without a licence. Community law does not prevent a court of such a Member State, by reason of the principle that forms part of national law in certain Member States of the retroactive effect of more favourable provisions of criminal law, from applying the aforesaid provisions of Directive 91/439 even where the offence took place before the date set for compliance with that directive.