Opinion of the Advocate-General

1. The cases now submitted to the Court belong to the already considerable number of Community disputes concerning mutual recognition of driving licences.

2. In these five cases, the Court is asked whether a Member State may refuse to recognise the validity of a driving licence issued by another Member State, where the holder of that licence has been the object, in the first Member State, of a measure withdrawing the licence and imposing a requirement to pass a medical/psychological test in order to obtain a new driving licence.

3. Answering that question involves defining the scope of the obligations to which Member States are subject pursuant to Council Directive 91/439/EEC, (2) and in particular by virtue of Articles 7(1)(a) and (b) and 8(2) and (4) of that directive.

4. In this Opinion, I shall recommend that the Court should hold that, where a person has had his driving licence withdrawn in one Member State on the ground that he was driving under the influence of alcohol or drugs and where, in view of the level of danger he presents, the issue of a new driving licence has been made conditional upon his passing a medical/psychological test, that Member State is entitled, pursuant to Articles 1(2) and 8(2) and (4) of Directive 91/439, to refuse to recognise the validity of a driving licence issued by another Member State if no test of a level comparable to that required in the first State has been carried out in the Member State of issue.

5. I also propose that the Court should declare that, where the holder of a driving licence behaves in a potentially dangerous manner, particularly in the light of the reasons which led to the withdrawal of the first driving licence, the Member State which carried out the inquiries is entitled to take provisional measures, such as the suspension of that licence, while the issuing Member State examines the conditions for obtaining that licence.

6. As those five cases concern the same legal problem, I propose to examine them together in this Opinion.

I – Law

A – Community legislation

7. Directive 91/439 establishes the principle of mutual recognition of driving licences in order to facilitate the movement of persons within the European Community or their establishment in a Member State other than that in which they obtained their driving licence. (3)

8. The laying down, in that directive, of minimum requirements for the issue of a driving licence also has the objective of improving road security within the territory of the European Union. (4)

9. Article 7(1)(a) and (b) of that directive reads as follows:

‘1. Driving licences shall, moreover, be issued only to those applicants:

(a) who have passed a test of skills and behaviour and a theoretical test and who meet medical standards, in accordance with the provisions of Annexes II and III;

(b) who have their normal residence in the territory of the Member State issuing the licence, or can produce evidence that they have been studying there for at least six months.’ (5)

10. In particular, Directive 91/439 provides that driving licences are not to be issued to, or renewed for, applicants or drivers who are dependent on alcohol or on psychotropic substances.

11. Points 14.1 and 15.1 of Annex III to that directive provides:

‘Driving licences shall not be issued to, or renewed for, applicants or drivers who are dependent on alcohol or unable to refrain from drinking and driving.

After a proven period of abstinence and subject to authorised medical opinion and regular medical check-ups, driving licences may be issued to, or renewed for, applicant or drivers who have in the past been dependent on alcohol.

…

Driving licences shall not be issued to, or renewed for, applicants or drivers who regularly use psychotropic substances, in whatever form, which can hamper the ability to drive safely where the quantities absorbed are such as to have an adverse effect on driving. This shall apply to all other medicinal products or combinations of medicinal products which affect the ability to drive.’

12. Article 8(2) of the directive provides that the Member State of normal residence may apply its national provisions on the restriction, suspension, withdrawal or cancellation of the right to drive to the holder of a driving licence issued by another Member State.

13. Under the first paragraph of Article 8(4) of Directive 91/439, a Member State may also refuse to recognise the validity of a driving licence issued by another Member State to a person who is, in the former State’s territory, the subject of one of the measures referred to above.

14. Lastly, Article 12(3) of that directive provides that ‘the Member States shall assist one another in the implementation of this Directive and shall, if need be, exchange information on the licences they have registered’.

B – National legislation

15. The Regulation on access to driving on the highways (Verordnung über die Zulassung von Personen zum Straßenverkehr, ‘the FeV’) provides, in Article 28(1), that persons who are holders of a driving licence issued by a Member State of the Union are authorised to drive in the Federal Republic of Germany.

16. However, according to Article 28(4)(3) of the FeV, that authorisation does not apply to persons whose driving licence has, in Germany, been provisionally or definitively withdrawn by a court, or has been withdrawn by an immediately enforceable or final decision of an administrative authority.

17. In addition, under Article 28(5) of the FeV, the right to use, in Germany, a driving licence obtained in a Member State of the Union after being the subject of one of the measures referred to in Article 28(4)(3) of the FeV is to be granted where the grounds justifying the withdrawal of the right to drive or the prohibition of applying for that right no longer obtain.

18. Article 11 of the FeV provides that applicants wishing to obtain a driving licence must satisfy the relevant physical and mental requirements to that effect. Those requirements are not satisfied, in particular, where those persons are under the influence of narcotics or use cannabis.

19. If doubts arise as to the physical and mental fitness of those persons, the driving licence authority may require them to provide a medical report to assist it in its decision whether or not to grant or extend the driving licence. (6)

20. The German legislation provides for two types of withdrawal. A driver may have his driving licence withdrawn by the administrative authorities. Where a driver is subject to such a measure, he must, in order to recover his right to drive, demonstrate that he is fit to drive again by providing a medical/psychological report. The Verwaltungsgericht Sigmaringen (Germany) states that in such a case it is not possible to set a time-limit on the effect of an order for withdrawal.

21. In addition to withdrawal by the administrative authorities, the German legislation also provides for withdrawal of a driving licence by the criminal courts, with the possibility of banning the holder of the licence which was withdrawn from applying for a new driving licence for a period from anything between six months and five years. (7)

II – The facts in the main proceedings giving rise to these references for a preliminary ruling

A – Cases C‑329/06 and C‑343/06

1. Case C‑329/06

22. Mr Wiedemann, a German national, had his driving licence withdrawn in April 2004 on the ground that he had driven while under the influence of narcotics (heroin and cannabis). The administrative appeal which Mr Wiedemann brought against that measure was dismissed by decision of 16 August 2004, notified on 18 August 2004 which became final on 20 September 2004.

23. On 19 September 2004, a Sunday, Mr Wiedemann was granted the right to drive by the competent Czech authorities. The driving licence, which bore his address in Germany, was given to him on 1 October 2004.

24. On 11 October 2004, Mr Wiedemann caused an accident in Germany and had his driving licence confiscated. By decision of 27 October 2004, the Landratsamt Ravensburg (Ravensburg district administration) (Germany) revoked Mr Wiedemann’s right to drive in Germany, on the ground that he was still unfit to drive on account of his drug use. The Landratsamt Ravensburg later returned the driving licence to its holder with the endorsement: ‘Driving licence does not carry the right to drive motor vehicles in Germany’.

25. Following his unsuccessful challenge to that decision, Mr Wiedemann brought an action before the Verwaltungsgericht Sigmaringen.

2. Case C‑343/06

26. Mr Funk, a German national who was banned from driving for a nine-month period following a drunk-driving conviction, had his driving licence withdrawn again, on the same grounds, by an administrative decision of the city of Chemnitz (Germany) on 15 July 2003. After producing a medical/psychological report, Mr Funk’s application, brought in December 2003, to recover his driving licence was dismissed.

27. On 9 December 2004, Mr Funk obtained a driving licence in the Czech Republic, without being resident in that Member State.

28. The German authorities, informed of the existence of that licence, stated that Mr Funk had not yet demonstrated that he was fit to drive. As Mr Funk refused to undergo a medical/psychological examination, the German administrative authorities threatened to withdraw his Czech driving licence.

29. Following his unsuccessful challenge to that decision, Mr Funk brought an action before the Verwaltungsgericht Chemnitz (Chemnitz Administrative Court) (Germany).

B – Cases C‑334/06 to C‑336/06

30. Mr Zerche, Mr Schubert and Mr Seuke, German nationals, had their German driving licences withdrawn by order of the criminal court and were banned from obtaining a new licence for a number of months on the ground that they had driven whilst under the influence of alcohol.

31. Subsequently, having failed to produce a positive medical/psychological report, the requests for a new driving licence by the three persons concerned were dismissed.

32. After the expiry of the period in which no new licence could be obtained, Mr Zerche, Mr Schubert and Mr Seuke obtained driving licences in the Czech Republic. The addresses appearing on those three licences are, in each case, in Germany.

33. When the German authorities became aware of the existence of those new driving licences, they called on each of the three holders to present a medical/psychological report. As the three holders failed to comply with that request, the German administrative authorities revoked their right to use their Czech licences in Germany.

34. Following their unsuccessful appeals, Mr Zerche, Mr Schubert and Mr Seuke brought an action before the Verwaltungsgericht Chemnitz.

III – The questions referred for a preliminary ruling

35. In Case C‑329/06, the Verwaltungsgericht Sigmaringen decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Are Articles 1(2) and 8(2) and (4) of Directive 91/439 to be interpreted as meaning that the withdrawal of a driving licence by administrative authorities in the State of residence on the ground of unfitness to drive does not prevent another Member State from issuing a driving licence, and that in principle the State of residence must recognise such a driving licence?

(2) Is Article 1(2), in conjunction with Articles 7(1)(a) and 8(2) and (4) of, and Annex III to, Directive 91/439, to be interpreted as meaning that there is no obligation imposed on the [Member] State of residence to recognise a driving licence which, after his driving licence was withdrawn in his [Member] State of residence, the holder obtained fraudulently, by deliberately deceiving the competent driving licence authorities of the issuing State, without proving that he had become fit to drive again, or as a result of collusion with employees of the authorities of the issuing State?

(3) On a proper construction of Articles 1(2) and 8(2) and (4) of Directive 91/439, after a driving licence has been withdrawn by the administrative authorities of the [Member] State of residence, may that State temporarily suspend, or prohibit the use of, a driving licence issued by another Member State while that issuing State considers whether to revoke that driving licence fraudulently obtained?’

36. In Case C‑343/06, the Verwaltungsgericht Chemnitz decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) May a Member State, in accordance with Article 1(2) in conjunction with Article 8(2) and (4) of Directive [91/439], require the holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to use that licence in its territory when the holder of that licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason?

(2) If it may not, is Article 1(2) in conjunction with Article 8(2) and (4) of Directive [91/439] to be interpreted as meaning that a Member State may refuse to recognise in its territory a driving licence issued by another Member State when the person concerned has had a previous driving licence [issued by that first Member State] withdrawn by the administrative authorities, where, according to the law of that first Member State, in the case of administrative measures for the withdrawal or cancellation of a driving licence, there is no period during which [a new driving licence] may not be issued and one of the fundamental conditions for entitlement to that issue is that the person concerned should, when so ordered by the administrative authorities, have supplied evidence of his fitness to drive in the form of a medical-psychological report the detailed rules governing which are laid down by national law?

(3) If it is not, is Article 1(2) in conjunction with Article 8(2) and (4) of Directive [91/439] to be interpreted as meaning that a Member State may refuse to recognise in its territory a driving licence issued by another Member State when the holder has had a previous driving licence [issued by that first Member State] withdrawn or cancelled by the administrative authorities in that Member State, and when there are grounds for concluding, on the basis of objective evidence (non-residence in the Member State issuing the driving licence in question or the failure of an application for issue of a new licence in the first Member State), that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure in the first Member State for the issue of a new driving licence, particularly the need for a medical/psychological report?’

37. In Joined Cases C‑335/06 and C‑336/06, the Verwaltungsgericht Chemnitz decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) May a Member State, in accordance with Article 1(2) in conjunction with Article 8(2) and (4) of Directive [91/439], require the holder of a driving licence issued in another Member State to apply to the administrative authorities of the first Member State for recognition of the right to use that licence in its territory when the holder of that licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason?

(2) If not, on a proper construction of Article 1(2) in conjunction with Article 8(2) and (4) of Directive [91/439], may a Member State refuse to recognise a driving licence issued by another Member State where the person concerned has had a previous driving licence withdrawn or cancelled in the first Member State, when the period ordered in connection with that withdrawal or cancellation measure during which no new licence was to be issued had expired before the new driving licence was issued by the second Member State, and when there are grounds for concluding, on the basis of objective evidence (non-residence in the Member State issuing the new driving licence issue or the failure of an application for issue of a new licence in the first Member State), that the only reason for acquiring the European driving licence in the second Member State was to circumvent the strict substantive requirements of national procedure [in force in the first Member State] for the issue of a new driving licence, particularly the need for a medical/psychological report?’

38. The question referred by the Verwaltungsgericht Chemnitz in Case C‑334/06 is identical to the second question referred by that court in Joined Cases C‑335/06 and C‑336/06.

IV – Analysis

39. The question arising in the main proceedings is whether Articles 1(2) and 8(2) and (4) of Directive 91/439 are to be interpreted as precluding one Member State from refusing to recognise the validity of a driving licence issued by another Member State on the ground that the holder of that licence is the subject, in the first Member State, of a measure withdrawing that licence for driving under the influence of drugs or alcohol, whether or not that measure also imposes a period during which no new licence may be obtained, and that the issue of a new licence is subject, in that first Member State, to passing a medical/psychological test.

40. The Commission of the European Communities is of the view that, provided that that licence was issued in accordance with Article 1(1) of that directive, the host Member State is in principle not entitled to verify whether the conditions for the issuing of a licence by another Member State have been complied with. However, it adds that, if the issuing State itself considers that the licence was issued in breach of Community law, the licence holder may not, in that case, rely on the principle of mutual recognition.

41. In any event, the Commission considers that the host Member State has other measures at its disposal to justify its refusal to recognise such a licence. That Member State could withdraw the licence pursuant to Article 8(2) of the directive, on the basis of wrongful conduct by the holder, after the second licence has been issued. In addition, the host Member State could inform the issuing Member State of continuing defects on the basis of Article 12(3) of Directive 91/439 or even commence proceedings against that Member State, under Article 227 EC.

42. I do not share the Commission’s view, for the following reasons.

43. Directive 91/439 pursues two aims – ensuring safety and facilitating the movement of persons – without one prevailing over the other, something which is beyond dispute, since it is impossible to imagine a situation in which it would be acceptable to facilitate movement of persons at the expense of their safety.

44. With regard to the present cases, the most important provisions of that directive are those which concern measures to combat the risk to which other road users are exposed by those who abuse alcohol and drugs or are dependant on them.

45. The provisions of the directive and its annexes show that particularly clearly in the way in which measures to combat the danger posed by such drivers are conceived and expressed, by depriving them of the right to drive for as long as that danger continues or measures aimed at preventing its occurrence or recurrence have not been put in place or complied with.

46. Article 7(1)(a) of Directive 91/439 refers to Annex III thereto. According to points 14 and 15 of that annex, it is prohibited to issue or renew a driving licence in respect of a person who is dependent on alcohol or drugs or who, while not dependant on them, regularly consumes or abuses them. (8)

47. Medical fitness to drive is governed in the Czech Republic by Law No 361/2000 on road transport. According to the provisions of that law, medical fitness to drive consists of physical and mental fitness. That fitness is assessed, at the request of the candidate seeking a driving licence, by a doctor who issues a medical opinion on the applicant’s fitness to drive.

48. The opinion issued by the doctor must take into account the applicant’s declarations and the examination of his state of health.

49. Law No 361/2000 withholds the right to drive from persons suffering from behavioural problems caused by dependence on alcohol or psychotropic substances.

50. In the main proceedings, it appears that the five holders of Czech driving licences presented to the competent Czech authorities a simple medical certificate certifying their fitness to drive.

51. In my opinion, Directive 91/439, which sets minimum requirements for obtaining a driving licence, does not oblige Member States to require from candidates anything more than a simple medical certificate of fitness to drive, issued by a doctor.

52. I do not think it reasonable to require each Member State, in the absence of particular signs revealed by the usual clinical examination, to see that its competent authorities systematically check each candidate, by making him, amongst other things, undergo blood tests in order to check whether he is under the influence of drugs or alcohol.

53. On the other hand, I consider that a fuller examination of medical fitness to drive must be carried out where, for example, in addition to the situation above, the holder of a driving licence caused an accident when he had consumed drugs or alcohol and his licence was withdrawn for those reasons, or where it is well-known, or certain behaviour tends to show, that that person is probably dependent on those substances.

54. In the light of the objective of improving road safety, that is, in my opinion, the meaning which the Community legislature intended to give to points 14 and 15 of Annex III to Directive 91/439, namely to prevent persons who are unfit to drive by virtue of their consumption of dangerous substances from obtaining the right to drive.

55. The directive, in order to achieve its stated objectives, introduces a procedure for issuing driving licences which is common to all the Member States and accords the benefit of the application of the principle of mutual recognition to licences issued in accordance with that procedure. (9)

56. However, there is a qualification of that mutual recognition.

57. Article 8(2) and (4) of Directive 91/439 provides that, where the holder of a driving licence is subject to a restriction, suspension, withdrawal or cancellation in the territory of a Member State, that Member State may refuse to the holder recognition of the validity of any licence issued by another Member State.

58. That provision is intended to satisfy the objective of improving road safety set by that directive. It allows a Member State to ensure that persons whom it considers to be unfit to drive, because dangerous, are unable to reply on a licence issued by another Member State.

59. In addition, in furtherance of the principle of mutual recognition which it lays down, the directive also imposes on Member States a duty to cooperate in good faith expressed, in particular, in two especially clear provisions: Article 2(2) and Article 12(3).

60. Article 2(2) of Directive 91/439 provides that Member States are to take all necessary steps to avoid the forgery of driving licences.

61. Article 12(3) of that directive requires Member States to assist one another in implementing the provisions of that directive by, if need be, exchanging information on the licences they have registered.

62. Having in the past had various cases referred to it, regarding in particular the principle of mutual recognition, the Court has had occasion to establish case‑law specifying inter alia the obligatory nature of mutual recognition which prevents host Member States from reviewing the procedure of the issuing State.

63. From its judgment in Skanavi and Chryssanthakopoulos onwards, (10) the Court has held that the mutual recognition of driving licences applies without the completion of any formality, as confirmed in the judgments in Awoyemi (11) and Commission v Netherlands . (12)

64. Moreover, in those two judgments the Court stated that the obligation mutually to recognise driving licences in Directive 91/439 is a precise and unconditional obligation and leaves Member States no freedom of action as to the measures to be adopted in order to comply with the requirement. (13)

65. The contrary solution would have had the effect of destroying between the Member States the necessary mutual trust which the principle of mutual recognition presupposes. (14)

66. However, the cases before the Court today are completely different from those on which it has had to adjudicate hitherto.

67. In the judgment in Kapper , the Court accepted that it was not for the host Member State to verify whether all the conditions required in order to obtain a driving licence had been fulfilled, in particular the condition concerning the normal residence of the licence holder. That investigation falls to the issuing Member State alone, which has exclusive competence to check that when driving licences are issued the conditions laid down are observed. (15)

68. Concerning Article 8(2) and (4) of Directive 91/439, the Court held, in its judgment in Kapper , that a Member State may not refuse indefinitely to recognise, in relation to a person who has been the subject in its territory of a measure withdrawing or cancelling a previous licence issued by that State, the validity of any driving licence issued to him by another Member State following the expiration of the temporary ban on obtaining a new licence. (16)

69. However, it should be noted that, in the judgment in Kapper, the host Member State refused to recognise the licence issued by another Member State solely on the ground that the residence requirement laid down in Article 7(1)(b) of Directive 91/439 had not been complied with.

70. In my opinion, such a requirement cannot be placed on the same level as a requirement concerning medical fitness, with which the present cases are concerned. Residence, whether in a host Member State or in an issuing State, does not affect the safety of road users in any way, unlike dangerous behaviour such as that of the five parties concerned in the present cases.

71. Today, it is necessary to adjudicate on cases in which the holder of a driving licence has obtained from a Member State, in contravention of measures restricting his right to drive taken against him because of his dependence on alcohol or drugs, the issue of a driving licence regardless of the rules laid down by the directive.

72. Examination of the facts in the different main proceedings shows unambiguously the fraudulent intent of the holders of the licences at issue.

73. First, it would appear, as Mr Wiedemann explains in his submissions, that the interested parties went to the Czech Republic, because they knew that the medical/psychological test, required in Germany for the issue of a new driving licence, was not required in the Czech Republic and that they would not have to specify the grounds for the withdrawal of their German driving licences.

74. It should be noted in that regard that that information is known to everyone, since specialised internet sites exist which indicate, in German, that that test, referred to in German as the ‘Idiotentest’, is not required for the issue of a driving licence in the Czech Republic. (17)

75. Further, Mr Wiedemann explains that he started group therapy sessions with a view to resolving his drug related problems, but stopped them when he was informed that the medical/psychological test was not required in the Czech Republic.

76. All these factors indicate that the provisions of Directive 91/439, which might appear ancillary where the essential procedural formalities which it lays down for the issue of a driving licence have been observed, become, on the contrary, of primary importance in the context of fraud and that circumventing them was the essential precondition for the commission of the fraud in question.

77. That also applies to the provision concerning the jurisdiction of the issuing Member State set out in Article 7(1)(b) of Directive 91/439.

78. That requirement of residence for at least six months in the issuing Member State before obtaining the driving licence is indispensable if it is to be possible to carry out the medical examinations provided for by the directive, and also the requests for and necessary exchanges of information, in accordance with Article 12(3) of that directive.

79. For those reasons, the rule in Kapper cannot properly be transposed here, the circumstances of the case being totally different.

80. For those same reasons, the principle of mutual recognition cannot be applied, in the present cases, in the normal and traditional way.

81. Such an application would, in the present cases, have the effect of facilitating or upholding fraud, thereby accentuating the situation of potential danger and so going directly against the expressly stated purpose of Directive 91/439 which is to increase road safety.

82. Not only the law but also plain common sense requires, in such a situation, that fraud be treated as destroying mutual trust and that Member States be afforded the right to investigate the circumstances in which the issue of a driving licence has been obtained.

83. The very nature of the system put in place by Directive 91/439 requires, for the safety objective to be attained, at least in the essential fields expressly considered by the directive, mutual recognition of driving licences to be accompanied by the mutual recognition of suspensions and cancellations of driving licences and other restrictions on the right to drive, ordered for reasons in respect of which the directive requires the Member States to adopt identical measures for testing fitness to drive.

84. That complementary form of mutual recognition is, in my opinion, an obligation imposed on the Member States by the effect of Article 2(2) of Directive 91/439 which requires them to take all necessary steps to avoid any risk of forgery of driving licences. I see no reason why the concept of forgery should cover only the material alteration of an administrative document.

85. That concept, if it is not to be rendered meaningless, must be understood relate also to cases in which a dishonest person fraudulently obtains the issue of an administrative document which, under the guise of being genuine, appears to acknowledge that he has a right which has in fact been taken away from him.

86. That obligation imposed on the Member States leads as a consequence to the duty to exchange information provided for in Article 12(3) of Directive 91/439, the conditions for implementing which it is for the Member States to put in place.

87. Failing that, it is for the Community legislature, by virtue of the principle of subsidiarity, to put in place the conditions for implementation, which can hardly be more complicated that establishing a network, something which has already been established between certain Member States, of the files containing the police records which, moreover must normally contain the necessary information on the judicial decisions concerning the restriction, suspension, withdrawal or cancellation of the right to drive.

88. However, so long as those harmonised conditions are not in force, I am of the opinion that, even if only as a precaution, a Member State which objectively considers that the measures protecting third parties taken by Directive 91/439 have not been applied is entitled to review the conditions for the application of the principle of mutual recognition.

89. Such is the case, in particular, where a simple reading of the driving licence reveals that the minimum actual residence requirement in Article 7(1)(b) of that directive has not been fulfilled and that the party concerned was the subject, in the Member State which carried out the review, of a measure withdrawing the licence and requiring him to pass a medical/psychological test in order to obtain a new driving licence.

90. I am of the opinion that, in this context, the reviewing Member State is entitled, in case of doubt, to refer the matter to the issuing Member State so that it may decide, as it alone can, on the validity of the document which it has issued.

91. In the present cases, it would fall to the issuing Member State to check whether the holder of the driving licence was, in the light of the circumstances which led to the withdrawal of the original licence and the danger he poses for other road users, subject to a medical examination of a standard comparable to that of the medical/psychological test.

92. If a test of a level comparable to that required in the first Member State, verifying the medical capacities of the holder of the driving licence and, in particular, his dependence on drugs and alcohol, has been carried out by the issuing Member State, I consider that the first Member State must recognise the licence so issued, pursuant to Article 1(2) of Directive 91/439.

93. On the other hand, if the issuing Member State informs the first Member States that it is not aware of the past record of the holder of that licence and that, consequently, no full medical examination establishing that he is once again fit to drive has been carried out, I consider that, exceptionally, the first Member State is entitled, pursuant to Article 8(2) and (4) of that directive, to refuse to recognise the validity of the licence, in view of the proven risk posed by the holder in question.

94. In my opinion, the opportunity for the driving licence authorities of checking a driver with a licence issued by another Member State and of investigating, where appropriate, the validity of that licence with the authorities of the issuing Member State is not contrary to the principle of mutual recognition.

95. The situation would be different only if the reviewing Member State did not, of its own motion, recognise the driving licence or if that licence was not recognised as valid even though the check revealed nothing abnormal.

96. The Commission itself, in a recommendation, emphasised that enforcement, in particular cross-border enforcement, is an important and effective way of preventing and reducing accidents. (18)

97. Not to allow a Member State such an opportunity would, in my opinion, go against the objective of improving road safety to which Directive 91/439 aspires and which the Commission supports. (19)

98. Moreover, the Commission recalled that the lack of road safety is the number one concern of road users and that, of all modes of transport, car transport is the most dangerous and the most costly in terms of human lives. (20)

99. The Commission also states that it is for the Member States to take the necessary measures to attain the objective set by the White Paper which is to reduce by half the number of people killed on the roads. (21)

100. In that regard, Mr Wiedemann’s case shows that the danger does not appear to have been averted, since less than a month after he obtained his Czech driving licence, he caused another accident in Germany.

101. I do not consider that such a solution is contrary to the case-law of the Court.

102. As explained above, in the judgment in Kapper , only the residence requirement was at issue.

103. It could also be objected that, in its order in Halbritter , the Court once more accepted that the Member States are not entitled to investigate again whether the conditions for issue have been respected and that, in the case in point, the condition concerned was that relating to medical fitness. (22)

104. However, unlike the present cases, the authorities of the issuing Member State in Halbritter had already checked the medical fitness of the holder of the driving licence by specifically examining whether he was still dependant on drugs. (23)

105. As the check had already been carried out and the Austrian authorities had concluded that the applicant was medically fit to drive, the Federal Republic of Germany was no longer entitled to require the holder of the licence to undergo a medical/psychological test and thus to refuse to recognise that licence.

106. Lastly, the facts of the present cases are also different from those in Kremer , (24) since, in that latter case, the Federal Republic of Germany refused on its own initiative to recognise a driving licence issued by the Kingdom of Belgium, without first being satisfied that the Kingdom of Belgium had carried out the necessary medical fitness tests.

107. The Verwaltungsgericht Sigmaringen wishes to know, in addition, whether during the examination by the issuing Member State of the requirements for obtaining a driving licence, the Member State in which the holder of the licence is subject to a decision withdrawing an earlier licence may take provisional measures in order to suspend the second licence.

108. In my opinion, pending the decision of the issuing Member State, the Member State carrying out the check may legitimately withdraw the licences in question by a measure deemed necessary for the protection of third parties.

109. It would not be acceptable, in my opinion, to require a new accident or the commission of a new offence before the Member State which carried out the check was authorised to act.

110. In fact, to take a different position would be to negate any policy of prevention, which must play a predominant role in road safety. It would also have the effect, understandably, of shocking public opinion and casting doubt on the efficiency and usefulness of the Community measures.

111. For all of these reasons, I consider it necessary to reply in the following manner to the questions referred for a preliminary ruling.

112. Where a person has had his driving licence withdrawn in a Member State on the ground that he was driving under the influence of alcohol or drugs, and, taking into account the level of danger he presents, the issue of a new driving licence has been made subject to his passing a medical/psychological test, that Member State is entitled, pursuant to Articles 1(2) and 8(2) and (4) of Directive 91/439, to refuse to recognise the validity of a licence issued by another Member State if he has not undergone, in the issuing Member State, a test of a standard comparable to that required in the first State.

113. Moreover, Articles 1(2) and 8(2) and (4) of Directive 91/439 must be interpreted as meaning that a Member State is not prevented from taking provisional measures, such as the suspension of that driving licence, while the issuing Member State examines the conditions for obtaining that licence, when the holder of the driving licence behaves in a potentially dangerous manner.

V – Conclusions

114. In view of the foregoing considerations, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Verwaltungsgericht Sigmaringen and by the Verwaltungsgericht Chemnitz:

Articles 1(2) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences are to be interpreted as not preventing a Member State from refusing to recognise the validity of a driving licence issued by another Member State, when the holder of that licence has had his driving licence withdrawn in the first Member State on the ground that he was driving under the influence of alcohol or drugs, and when, taking into account the level of danger he presents, the issuing of a new driving licence has been made subject to the successful completion of a medical/psychological test and when he has not undergone, in the issuing Member State, a test at a comparable level to that required in the first State.

Moreover, Articles 1(2) and 8(2) and (4) of Directive 91/439 must be interpreted as meaning that a Member State is not precluded from taking provisional measures, such as the suspension of that driving licence, while the issuing Member State examines the conditions for obtaining that licence, when the holder of the driving licence behaves in a potentially dangerous manner.

(1) .

(2) – Directive of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1).

(3) – See Article 1 of the directive.

(4) – See Recital 4 of the preamble thereto.

(5) – According to the first paragraph of Article 9 of Directive 91/439, normal residence means the place where a person usually lives, that is for at least 185 days in each calendar year. If the holder of the licence is a student in that Member State, he must produce evidence that he has been established for at least six months in that State.

(6) – Article 11(2) and (3) of the FeV.

(7) – Articles 69 and 69a of the German Criminal Code.

(8) – See point 14, the first paragraph of point 14.1, and point 15 and 15.1 of Annex III.

(9) – See Article 1(2) of Directive 91/439.

(10) – C‑193/94, [1996] ECR I‑929, paragraph 26.

(11) – C‑230/97, [1998] ECR I‑6781, paragraph 41.

(12) – C‑246/00, [2003] ECR I‑7485, paragraph 60.

(13) – See Awoyemi (paragraph 42) and Commission v Netherlands (paragraph 61).

(14) – See paragraphs 35 to 40 of the Opinion of Advocate General Léger in Kapper (C‑476/01, [2004] ECR I‑5205).

(15) – Paragraphs 46 to 48 and the case‑law cited.

(16) – See the judgement in Kapper (paragraph 76) and the order in Case C‑227/05 Halbritter [2006], not published in the ECR, paragraph 37).

(17) – See, inter alia, the internet site www.fahrschulvermittlung.com.

(18) – See Commission Recommendation of 6 April 2004 on enforcement in the field of road safety (OJ 2004 L 111, p. 75).

(19) – See Commission White Paper of 12 September 2001 ‘European transport policy for 2010: time to decide’ (COM(2001) 370 final). I also note the Commission publication ‘Saving 20 000 lives on our roads. A shared responsibility’ available on the link http://ec.europa.eu/transport/roadsafety_library/rsap/rsap_en.pdf in the framework of the European Road Safety Action Programme – ‘Halving the number of road accident victims in the European Union by 2010: A shared responsibility’ (COM(2003) 311 final).

(20) – See White Paper (p. 70).

(21) – See White Paper (p. 73).

(22) – See paragraph 34 of the order.

(23) – See paragraph 31 of the order.

(24) – Order of 28 September 2006 (C‑340/05, not published in the ECR).