OPINION OF MR
REISCHL — CASE
16/78
2. However, such a requirement may be regarded as indirectly
prejudicing the exercise of the right of freedom of movement, the
right of freedom of establishment or the freedom to provide services
guaranteed by Articles 48, 52 and 59 of the Treaty respectively, and
consequently as being incompatible with the Treaty, if it appears that
the conditions imposed by national rules on the holder of a driving
licence issued by another Member State are not in due proportion to
the requirements of road safety.
Kutscher
Pescatore
Mertens de Wilmars
Mackenzie Stuart
O'Keeffe
Sørensen
Bosco
Delivered in open court in Luxembourg on 28 November 1978.
H. Kutscher
A. Van Houtte
President
Registrar
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 24 OCTOBER 19781
Mr President,
on
Members of the Court,
November 1934 as amended by the Regu­
Under German law an official driving
licence is required for the purpose of
driving motor vehicles and, in the case of
vehicles for which a licence is required,
driving without any such driving licence
is punishable by imprisonment or a fine
announcement of
International
Motor
lation of 18 April
(Articles 2
and 24 of the Straßenver-
kehrsgesetz (Law on Road Traffic) of 19
December 1952). According to Articles 6
and 7 of the Paris Convention on Motor
Traffic of 24 April 1926 in conjunction
with Articles 4 and 5 of the Regulation
1
— Translated from the German.
2304
Traffic
of
12
1940 and also an
15
November
1952,
holders of foreign driving licences —
whether they are foreign nationals or
German citizens — are entitled, if they
possess a driving licence issued by
another country or an international
driving licence, to drive a motor vehicle
within the territory of the Federal
Republic of Germany for a period of one
year after crossing the frontier or from
the date of issue of their driving licence.
Thereafter, a German driving licence
CHOQUET
must
be
Article
obtained.
15
In
of
this
connexion
the
Straßen­
verkehrszulassungsordnung
(regulation
governing the issue of licences to drive
road vehicles), as amended by the
announcement of
15
November
1974,
reads:
After an appeal had been lodged against
that
conviction
the
Amtsgericht
Reutlingen entertained doubts as to
whether driving without a German
driving licence was a punishable offence'
or — to put it in another way — as to
whether nationals of the Member States
of the
"A German
corresponding
shall be issued
driving licence
driving licence for the
class of motor vehicles
to the holder of a foreign
if
1 . there are no doubts as to his fitness,
2. he is resident in the Federal Republic
of Germany,
3. he has resided for one year principally
in the Federal Republic of Germany,
4. during that period he has driven a
motor vehicle belonging to the class
of vehicles in respect of which he has
applied for a driving licence.
If the applicant does not fulfil the
requirements of subparagraphs (2) to (4)
of paragraph 1 the driving licence shall
be issued if he proves in a test that he
has an adequate knowledge of the
German road traffic regulations".
EEC
had
to
obtain
a
German
driving licence for the purpose of driving
a motor vehicle in the Federal Republic
of Germany. The Amtsgericht is of the
opinion that foreign nationals applying
for such a licence might encounter
linguistic
difficulties
and
incur
considerable
expense.
This
would
frequently cause foreigners who wished
to avoid that obligation to transfer their
residence abroad from the territory of
the Federal Republic of Germany, either
temporarily or permanently. Therefore
the German rules and regulations might
be
regarded
as
contravening
the
provisions of the Treaty on freedom of
movement and freedom of establishment
(Article 48 et seq. of the EEC Treaty) or
be said to disregard the obligation to act
in
a
manner
favourable
to
the
Community (Article 5 of the EEC
Treaty) and the prohibition of discrimi­
nation contained in Article 7.
These
considerations
caused
the
Amtsgericht to stay proceedings and by
Mr Choquet, who is a French citizen,
after completing his military service
remained in the Federal Republic of
Germany
as
a
civilian
worker
(electrician) and has clearly been resident
there since January 1976. He holds a
French driving licence issued on 22
an order of 13 February 1978, pursuant
November
Community to require the nationals of
other Member States to possess a driving
1968
but
does
not
have
a
German driving licence. In October 1977
he was involved in a motor accident near
Reutlingen. On 3 December 1977 the
Amtsgericht (Local Court) Reutlingen
convicted him summarily in connexion
with that accident. He was fined
DM
1 600 for dangerous driving and driving
without a driving licence and the court
ordered that he was not to be granted a
driving licence for 11 months.
to Article 177 of the EEC Treaty, to
refer the following question to the Court
of Justice for a preliminary ruling:
"Is it compatible with Community law
for a Member State of the European
licence issued by the first Member State
for driving motor vehicles and, as the
case may be, to penalize them for driving
without such a driving licence even
though such citizens of the Community
have a right of residence under Article
48 et seq. of the EEC Treaty and are in
possession of an equivalent driving
licence from their own country?"
2305
OPINION OF MR REISCHL — CASE
My
opinion
on
this
question
is
as
follows:
1.
The
Government
of
the
United
Kingdom in its written observations on
the reference for a preliminary ruling has
drawn attention to the fact that there are
16/78
proceedings, in which a French national
carries on his occupation in the Federal
Republic of Germany, even if in that
connexion he is not dependent on the
use of a motor vehicle, it is certainly not
wrong to raise the question whether he
can in fact be required to obtain a
German driving licence in addition to his
French driving licence or whether there
are arguments against this which stem
from Community law.
no provisions under Community law for
the granting of driving licences and that
the EEC Treaty does not regulate driver
licensing
law.
This
observation
is
undoubtedly
correct.
However,
it
certainly does not mean that Community
2.
law has no relevance whatsoever in this
Article
field.
sungsordnung, which has just been
quoted, makes it clear that in the present
case the question which has arisen is not
that of the legality of a general obligation
upon foreigners to obtain a domestic
driving licence on the basis of an
ordinary driving test, that is to say of a
situation in which foreigners invariably
have to reckon with expenses which may
be heavy and are incurred in connexion
with the driving test itself, in view of the
requirement that a driving instructor be
present, or with the onerous preparations
There are occupations for which an
official driving licence is essential,
because they involve the carriage of
persons or goods in motor vehicles.
Where they have to be carried on abroad
the obligation to obtain a foreign driving
licence is unquestionably relevant from
the viewpoint of freedom to provide
services, the right of establishment or the
right to freedom of movement.
However, it does not seem inappropriate
to go further. It must be acknowledged
that having regard to the present state of
our
civilization
the
use
of
a
motor
vehicle is frequently a matter of
importance in connexion with the pursuit
of one's occupation, in that it is used for
driving to one's place of work or looking
for employment. If in this respect holders
of foreign driving licences, who under
Community law have the right to
freedom of movement, are confronted
with problems and obstacles arising out
of the obligation to obtain a domestic
driving licence, the rules in the Treaty on
freedom of movement may thereby be
brought into play, since they must ensure
that
the
conditions
nationals of other
under
which
Member States take
up and pursue an occupation are not less
favourable than
those
enjoyed
by
nationals of the State concerned.
For this reason it can be said that in a
case such as the one covered by the main
2306
for
The
the
relevant
German
provision,
15 of the Straßenverkehrszulas­
test
which
have
to
because of the linguistic
which frequently arise.
Considerable
doubts
must
be
made
difficulties
indeed
be
entertained as to the correctness of the
contention of the British Government,
which has defended the corresponding
system applicable in its own country with
reference to the facts that the qualifying
standards for the granting of driving
licences in the various States differ, that
in one Member State it is not very long
since a driving test was made obligatory
and that the interests of public safety,
especially in the case of large commercial
vehicles and public transport facilities,
should
not
be
overlooked.
I
am
convinced that, in so far at any rate as
ordinary driving licences are concerned
— since driving licences for large and
special commercial vehicles, because they
raise special problems and definitely
played no part in the main proceedings,
CHOQUET
must be left out of account — and in so
far as the foreign driving licence was
issued following a test, a general
obligation to pass a driving test before
obtaining a licence cannot be properly
described as protecting public policy. I
Government foreigners are required to
take a second test and that they may on
that
occasion
meet
with
difficulties,
especially of a linguistic kind, which
might be very expensive to overcome.
rather incline to the Commission's view
3.
that the existence of a foreign driving
question referred for a preliminary ruling
from the standpoint of the legal position
licence raises a presumption of fitness to
drive. This view can be advocated having
regard to the similarity of the existing
road
traffic conditions
in
the
Member
If
we
now
turn
to
the
actual
under German law which, as we know,
on the one hand requires a domestic
driving licence to be obtained but which,
States
and
to
the
comparable
requirements for the granting of a
driving
licence,
which
the
British
Government does not call in question at
any rate in the case of ordinary driving
on the other hand, provides for the
granting of this licence to be facilitated,
licences.
then the following observations on this
Nor, on the other hand, can one rely on
the fact that the road traffic regulations
of the individual Member State are not
entirely uniform. In this connexion it
must not be forgotten that, on the basis
of the international conventions which I
mentioned
opinion,
at
there
Member States
the
are
beginning
applicable
of
my
in
all
rules to the effect that
foreign driving licences suffice for a
temporary stay and that any person
making use of this concession has an
adequate opportunity to adapt himself to
the
road
traffic
conditions
of the
host
country.
Furthermore, it does not seem to me to
be right for the British Government to
refer
in
this
connexion
to
the
Court's
judgment of 3 December 1974 in Case
33/74 (Johannes Henricus Maria Van
Binsbergen v Bestuur van de Bedrijfs­
vereniging
voor de Metallnijverheid
[1974] ECR 1299) which dealt with a
different kind of problem referring to
professional rules laid down in the
interests of the general public or to
imagine that it can deny the existence of
discrimination on the ground that no
more is required than the passing of a
test which nationals also have to take. In
that connexion
it
must
not
in
fact
be
overlooked that according to the British
for
the
licence
as
it
were
to
be
transcribed, and only requires tests in
two — very rare — exceptional cases,
aspect of the matter have to be made:
(a) The fact that in general the issue of
a domestic driving licence is required can
in my view hardly be objectionable.
This is supported in the first place by
certain pertinent reasons, to some of
which the Netherlands Government has
drawn
attention
in
its
written
obser­
vations. For example, the checking of a
driving licence by enforcement officers is
undoubtedly facilitated if it is recorded
in a domestic document. In the absence
of such a document the checking of the
validity of a driving licence is made more
difficult if it includes a time-limit for use
abroad
—
as
in
the
case
in
the
Netherlands. Should only the domestic
driving licence be subject to a time-limit
its renewal may be rendered more
difficult if the driver only has foreign
documents in his possession. There are,
furthermore, problems connected with
the withdrawal of a driving licence or a
declaration that it is invalid.
On the other hand, attention may be
drawn to the fact — and this is equally
important — that merely transcribing a
licence does not entail heavy costs or
take up considerable time, and the fact
that in this respect there cannot therefore
be said to be significant obstacles which
2307
OPINION OF MR REISCHL — CASE
are in any way material to the exercise of
rights derived from the Treaty, especially
the right to freedom of movement.
16/78
substance entirely justifiable. This applies
in particular to the third condition,
which
ensure
that
adequate adjustment to German
is
intended
to
road
(b) Nor, in principle, can any objection
be made to the requirement that a
traffic conditions, including partially
different traffic regulations, has been
driving test must be passed before the
driving licence is granted, where there
acknowledged that they can easily be
are doubts as to the fitness of the holder
of a foreign driving licence. This is
justified on grounds of public security as
mentioned in Articles 48 and 56 of the
EEC Treaty. Naturally, this is acceptable
only if such doubts as to the fitness of
holders of foreign driving licences are
not raised systematically but are based
on specific facts which provide a
sufficiently clear indication that there is a
threat to public security. However, one
can proceed on the basis that the
German practice follows this procedure,
since Jagusch's Commentary on Road
Traffic Law (19th Edition) expressly
states in connexion with Article 15 of the
Straßenverkehrszuiassungsordnung
the
doubts
referred
to
in
that
that
article
should be founded on facts. As far as
concerns the arrangements for the test
which may have to be taken, I will have
something to say about this presently in
another connexion.
(c) It now only remains for me to
consider the position regarding the other
conditions which
have
been
mentioned
for the transcription of a foreign driving
licence and also the requirement that, if
those conditions are not met, a test on
German road traffic regulations must be
taken.
As has already been mentioned, there are
three conditions under German law. The
applicant must have his residence in the
Federal Republic of Germany, he must
have stayed for one year principally in
the Federal Republic of Germany and he
must during that period have driven a
motor vehicle belonging to the class in
respect of which he has applied for a
driving licence. These conditions are in
2308
achieved.
satisfied
Furthermore,
—
I
am
it
thinking
must
in
be
this
connexion in particular of international
agreements,
pursuant
to which
pro­
visional use of foreign driving licences is
allowed — and I would also suggest that
no appreciable obstacles stem from the
fact
that
the
existence
of
the
said
preconditions must be proved.
Finally, the fact that, in the event of a
failure
to fulfil
these conditions or of
want of adequate evidence, a test of
knowledge of road traffic regulations is
required
is
as
such
also
hardly
objectionable.
This
is
undoubtedly
justified by considerations of road safety,
that is to say the idea of public security
and public policy again comes into play;
an adequate knowledge of German road
traffic regulations can as a general rule
be imputed to the holder of a driving
licence obtained abroad only if he has
driven on national territory for an appro­
priate period.
On this last point doubts could only arise
with reference to the nature of the test,
which I have already mentioned a little
earlier. If it is conducted in the same way
as the ordinary theoretical German
driving test with the use of complicated
questionnaires then holders of foreign
driving licences may be confronted with
linguistic problems which can only be
solved by means of expensive prep­
arations with the aid of driving instruc­
tors and language teachers. This can be
in fact regarded as an unreasonable and
consequently unlawful barrier — the
actual fees for taking the test are clearly
kept
within
tolerable
limits.
Consequently I am convinced that on
this aspect of the matter, the following
finding must be recorded; where a test of
CHOQUET
knowledge of German road traffic regu­
lations is considered to be necessary —
and this applies equally to the fitness test
under subparagraph 1 — it must be
conducted in a way — for instance
orally — such as to take sufficient
account of the special difficulties of
foreign applicants. It must not be
assumed
that
this
might
overtax
the
administration, if the said tests do not
constitute the rule, which could indeed
give rise to objections, but are relatively
infrequent exceptional cases occasioned
by specific circumstances linked to
individuals.
4. To sum up, the finding may therefore be recorded that the requirements
to be satisfied by foreigners who are citizens of the EEC wishing to obtain a
German driving licence are not in breach of Community law either from the
standpoint of the prohibition of discrimination or from that of the right to
freedom of movement. However, this applies on the condition that the tests
which are regarded as necessary in particular cases are so arranged that
particular difficulties, in particular language difficulties, which exist for
foreign applicants are as far as possible taken into account. There can also be
no objection under Community law to the existence of a penalty provision,
applicable if a driving licence is not obtained, provided that it prescribes the
imposition of appropriate penalties without distinction between foreigners
and nationals. In my view the question referred by the Amtsgericht
Reutlingen should be answered in this way.
2309