Keywords
Summary

Keywords

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1. Freedom of movement for persons ° Freedom of establishment ° Driving licences ° Obligation to exchange the licence issued by the Member State of origin for a licence of the host Member State ° Permissible until the implementation of Directive 91/439

(EC Treaty, Art. 52; Council Directive 91/439/EEC)

2. Freedom of movement for persons ° Freedom of establishment ° Driving licences ° Failure to comply with the obligation to exchange the licence issued by the Member State of origin for a licence of the host Member State ° Treated as driving without a licence ° Criminal penalties ° Disproportionate penalties ° Not permissible

(EC Treaty, Art. 52; Council Directive 80/1263/EEC)

Summary

1. As Community law stands, and prior to the implementation of Directive 91/439 on driving licences, Article 52 of the Treaty does not preclude a Member State from requiring the holder of a driving licence issued by another Member State to exchange that licence for a licence of the host Member State within one year of taking up normal residence in that State in order to remain entitled to drive a motor vehicle there.

In view of the complexity of the matter and the differences between the legislation of the Member States, the Council, which had the task of achieving harmonization of the conditions governing the issue of driving licences and of providing that driving licences issued by the Member States should be mutually recognized in order to remove the obstacles to the free movement of persons resulting from the obligation to obtain a driving licence issued by the host Member State, was empowered to achieve that harmonization progressively and was therefore entitled to allow Member States temporarily to impose an obligation to exchange licences.

2. In view of the consequences which may result from the existence of a criminal record for the exercise of a trade or profession by an employed or self-employed person, particularly with regard to access to certain activities or certain offices, which would constitute a further, lasting restriction on freedom of movement, Article 52 of the Treaty precludes the driving of a motor vehicle by a person who could have obtained a licence from the host State in exchange for the licence issued by another Member State but who did not make that exchange within the prescribed period from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine.

The Member States, which, in the absence of Community rules governing the matter, remain competent to impose penalties for breach of the obligation to exchange driving licences which they may impose under Directive 80/1263 on the introduction of a Community driving licence, may not, however, impose a disproportionate penalty which, in view of the effect which the right to drive a motor vehicle has on the actual exercise of the rights relating to the free movement of persons, creates an obstacle to such free movement. Treatment of failure to exchange licences as equivalent to driving without a licence, thereby giving rise to criminal penalties, even if only financial in nature, is disproportionate on two grounds. First, it is disproportionate because the issue of a driving licence by a Member State in exchange for a licence issued by another Member State does not constitute the basis of the right to drive a motor vehicle in the territory of the host State, which is directly conferred by Community law, but evidence of the existence of such a right, and the obligation to exchange is therefore essentially a way of meeting administrative requirements. Second, it is disproportionate by reason of the consequences which it may have for the future prospects of the person concerned in his trade or profession.