Commission v Germany (Transport) [2005] EUECJ C-372/03 (15 September 2005)

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(Failure of a Member State to fulfil obligations �' Directive 91/439/EEC �' Driving licences - Minimum age requirement to drive certain vehicles - Possibility of driving vehicles in a category other than the one for which a driving licence has been issued - Compulsory registration and exchange of driving licences)

Action under Article 226 EC for failure to fulfil obligations, brought on 2 September 2003,

Commission of the European Communities, represented by G. Braun and W. Wils, acting as Agents, with an address for service in Luxembourg,

composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen (Rapporteur), G. Arestis and J. Klučka, Judges,

after hearing the Opinion of the Advocate General at the sitting on 12 May 2005,

1 By its application, the Commission of the European Communities is seeking a declaration by the Court that, by adopting and maintaining in force Paragraph 6(3), point 6 and (4), the first sentence of Paragraph 10(2), and Paragraphs 29(1) and (3) and 47(2) of the Regulation relating to the entitlement of persons to drive on the highway (Verordnung über die Zulassung von Personen zum Strassenverkehr) of 18 August 1998, which is the regulation on driving licences (Fahrerlaubnis-Verordnung, BGBl. 1998 I, p. 2214, hereinafter -�the FeV-�), the Federal Republic of Germany has failed to fulfil its obligations under Articles 1(2), 3 and 5(2)(b), the first and third indents of Article 6(1)(b), and Article 8(2) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1), as amended by Council Directive 96/47/EC of 23 July 1996 (OJ 1996 L 235, p. 1, hereinafter -�Directive 91/439-�).

2 The third to fifth recitals in the preamble to Directive 91/439 read as follows:

-�... the Community model national licence established by Directive 80/1263/EEC should be adapted to take account, inter alia, of the harmonisation of categories and subcategories of vehicles and to make licences more readily comprehensible both inside and outside the Community;

... on road safety grounds, the minimum requirements for the issue of a driving licence should be laid down;

... Article 3 of Directive 80/1263/EEC stipulates that final provisions generalising in the Community the categories of vehicles mentioned in that Article should be adopted without the possibility of derogation, as should the conditions of validity of driving licences-�.

-�1. Member States shall introduce a national driving licence based on the Community model described in Annex I or Ia, in accordance with the provisions of this Directive.

3. Where the holder of a valid national driving licence takes up normal residence in a Member State other than that which issued the licence, the host Member State may apply to the holder of the licences its national rules on the period of validity of the licences, medical checks and tax arrangements and may enter on the licence any information indispensable for administration.-�

4 Article 3(1) of Directive 91/439 lists the different categories of vehicles for which driving licences may be issued. Those categories are as follows:

- Category B: motor vehicles with a maximum authorised mass not exceeding 3 500 kilograms and combinations of a tractor vehicle in category B and a trailer, where the maximum authorised mass of the combination does not exceed 3 500 kilograms;

- Category B+E: combinations of vehicles consisting of a tractor vehicle in category B and a trailer, where the combination does not come within category B;

- Category C: motor vehicles other than those in category D and whose maximum authorised mass is over 3 500 kilograms;

- Category C+E: combinations of vehicles where the tractor vehicle is in category C and its trailer has a maximum authorised mass of over 750 kilograms;

- Category D: motor vehicles used for the carriage of persons and having more than eight seats in addition to the driver-�s seat;

- Category D+E: combinations of vehicles where the tractor vehicle is in category D and its trailer has a maximum authorised mass of over 750 kilograms.

5 Under Article 3(2) of Directive 91/439, within categories A, B, B+E, C, C+E, D and D+E, a specific driving licence may be issued for the driving of vehicles in the following subcategories:

- A1: light motorcycles with a cubic capacity not exceeding 125 cm3 and of a power not exceeding 11 kW;

- C1: motor vehicles other than those in category D and whose maximum authorised mass is over 3 500 kilograms but not more than 7 500 kilograms;

- C1+E: combinations of vehicles where the tractor vehicle is in subcategory C1 and its trailer has a maximum authorised mass of over 750 kilograms, provided that the maximum authorised mass of the combination thus formed does not exceed 12 000 kilograms, and that the maximum authorised mass of the trailer does not exceed the unladen mass of the tractor vehicle;

- D1: motor vehicles used for the carriage of passengers and having more than eight seats in addition to the driver-�s seat but not more than 16 seats in addition to the driver-�s seat;

- D1+E: combinations of vehicles where the tractor vehicle is in subcategory D1 and its trailer has a maximum authorised mass of over 750 kilograms, provided that: firstly, the maximum authorised mass of the combination thus formed does not exceed 12 000 kilograms and the maximum authorised mass of the trailer does not exceed the unladen mass of the tractor vehicle; secondly, the trailer is not used for the transport of persons.

-�This issue of driving licences shall be subject to the following conditions:

(a) licences for categories C and D shall be issued only to drivers already entitled to drive vehicles in category B;

(b) licences for categories B+E, C+E, D+E shall be issued only to drivers already entitled to drive vehicles in categories B, C and D respectively.-�

-�1. The minimum age conditions for the issue of driving licences shall be as follows:

- for category A; however, access to the driving of motorcycles with a power exceeding 25 kW or a power/weight ratio exceeding 0.16 kW/kg (or motorcycles with sidecars with a power/weight ratio exceeding 0.16 kW/kg) shall be subject to a minimum of two years-� experience on motorcycles with lower specifications under an A licence; this requirement as to previous experience may be waived if the candidate is at least 21 years old, subject to the candidate-�s passing a specific test of skills and behaviour;

- for categories C, C+E and subcategories C1, C1+E, without prejudice to the provisions for the driving of such vehicles in Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1);

- for the categories D and D+E and subcategories D1, D1+E, without prejudice to the provisions for the driving of such vehicles in Regulation (EEC) No 3820/85.

2. Member States may derogate from the minimum age requirements laid down for categories A, B and B+E and issue such driving licences from the age of 17 years, except in the case of the provisions for category A laid down in the last sentence of the first indent of paragraph 1(b).

3. Member States may refuse to recognise the validity in their territory of driving licences issued to drivers under 18 years of age.-�

-�1. 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.

2. Subject to observance of the principle of territoriality of criminal and police laws, 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 and, if necessary, exchange the licence for that purpose.-�

-�1. The minimum ages for drivers engaged in the carriage of goods shall be as follows:

(a) for vehicles, including, where appropriate, trailers or semi-trailers, having a permissible maximum weight of not more than 7.5 tonnes, 18 years;

- 18 years provided that the person concerned holds a certificate of professional competence recognised by one of the Member States confirming that he has completed a training course for drivers of vehicles intended for the carriage of goods by road, in conformity with Community rules on the minimum level of training for road transport drivers.

5. In the case of internal transport operations carried out within a 50 kilometre radius of the place where the vehicle is based, including local administrative areas the centres of which are situated within that radius, Member States may reduce the minimum age for drivers-� mates to 16 years, on condition that this is for purposes of vocational training and subject to the limits imposed by their national law on employment matters.-�

10 Paragraph 6(2) of the FeV stipulates a minimum age of 25 years for direct access to the driving of heavy motorcycles in category A.

11 Under point 6 of Paragraph 6(3) of the FeV, holders of C1+E and D licences are authorised to drive vehicles in category D+E. Under Paragraph 6(4) holders of licences for vehicles in categories C1, C1+E, C and C+E are authorised to drive vehicles in category D for journeys without passengers, within Germany, aimed at testing the vehicles-� technical condition, or at transferring the vehicles to another location.

12 Paragraph 9 of the FeV provides that a licence to drive vehicles in category C1 may be issued only if the applicant for such licence already holds a licence covering category B or meets the requirements for obtaining such a licence. In the latter case, the licence to drive vehicles in category C1 may not be issued prior to the issue of the licence for vehicles in category B.

13 Paragraph 10(2) of the FeV provides that, for the purposes of professional driver training, the minimum age for obtaining a licence to drive vehicles in category B or those in categories C1 or C1+E is 17 years, whereas, for a licence covering categories C and C+E, that age is 18 years. In cases where such a licence is to be issued to an applicant who has not yet reached the age of 18 years, the applicant-�s physical and mental abilities must be certified by a medical and psychological report. While the holder is under the age of 18 years, the driving licence issued is valid only for journeys undertaken in the course of the holder-�s vocational training.

14 Under Paragraph 29(1) and (2) of the FeV, holders of driving licences issued by a Member State other than the Federal Republic of Germany are required, on pain of a fine, to have their licence registered with the German administrative authorities if they have established their normal residence in Germany and have held their licence for less than two years.

15 Paragraphs 29(3) and 47(2) of the FeV require holders of driving licences issued by a Member State other than the Federal Republic of Germany, who have established their normal residence in Germany, to exchange such licences for a German licence in order that there may be entered on it certain statements relating, in particular, to the period of validity of that licence in Germany where that period is shorter than that of the same licence in the Member State which issued it.

16 Since it considered that the transposition into German legislation of certain provisions of Directive 91/439 was not in conformity therewith, the Commission, by letter of 10 June 1997, sent the Federal Republic of Germany a letter of formal notice to submit its observations within a period of two months.

17 Since it considered that the amendments to that legislation which were forwarded to it in the course of August 1998 had not brought the Federal Republic of Germany-�s alleged failure to fulfil obligations to an end, by letter of 18 July 2001, the Commission sent an additional letter of formal notice to that Member State inviting it to submit its observations within a period of two months.

18 Not persuaded by the observations submitted by the German authorities in response to the latter letter, the Commission, on 21 March 2002, issued a reasoned opinion requesting the Federal Republic of Germany to adopt the measures necessary to comply with its obligations arising from Directive 91/439 within a period of two months from the notification of that opinion.

19 By letter of 10 June 2002, the German authorities replied to the Commission that they regarded some of the complaints raised in that opinion as unfounded and that they would take the other complaints into account by amending, as soon as possible, the FeV.

20 Since it was not satisfied with that response, the Commission brought this action.

21 In support of its action, Commission relies on six complaints which relate to the minimum age requirement to drive, first, heavy motorcycles in category A and, second, vehicles in subcategories C1 and C1+E, the possibility of driving vehicles other than those for the driving of which a licence has been obtained and the procedures for registration and exchange of driving licences issued by a Member State other than the Federal Republic of Germany.

The complaint relating to the minimum age requirement for direct access to the driving of heavy motorcycles in category A

22 By that complaint, the Commission alleges that the Federal Republic of Germany has infringed the first indent of Article 6(1)(b) of Directive 91/439, under which the minimum age for the issue of driving licences for vehicles in category A is 21 years. Under the second sentence of Paragraph 6(2) of the FeV, the minimum age stipulated for direct access to the driving of such vehicles is 25. The Commission observes that Article 6 of Directive 91/439 lays down a uniform minimum age which the Member States are not entitled to lower or raise, since that provision is intended to harmonise certain requirements for access to the driving of various categories of vehicles. The fact that Member States may disallow direct access to driving licences for vehicles in category A cannot alter the conclusion that the minimum age for such access cannot be higher than 21 years.

23 In that regard, the German Government points out, first of all, that Directive 91/439 allows the Member States to allow or disallow direct access to the driving of heavy motorcycles. Since the Member States may refuse to allow such direct access, there is nothing to prevent them from fixing a minimum age higher than that laid down by that directive.

24 Next, the German Government argues that the words -�at least-�, in the first indent of Article 6(1)(b) of Directive 91/439, leave no room for any doubt as to the fact that the Member States may require a higher age for direct access to the driving of vehicles in category A. Those words would be superfluous if the legislature had intended that only the age of 21 years could be prescribed as the minimum age.

25 Finally, the German Government contends that its raising of the minimum age for direct access to the driving of vehicles in category A is dictated by road safety considerations. In addition, in the context of the preparatory documents for the new -�driving licence directive-� (COM (2003) 621 final, of 21 October 2003), the Commission is itself proposing to raise the minimum age in question to 24 years, in order to better meet the requirements of road safety.

26 While, as the Commission maintains, it follows from the wording of the first indent of Article 6(1)(b) and 6(2) of Directive 91/439 that the directive precludes the Member States from allowing applicants who have not yet attained the age of 21 years direct access to the driving of heavy motorcycles in category A, the fact remains that those provisions cannot be understood as prohibiting a Member State from stipulating a higher minimum age for the issue of licences for driving that category of vehicles.

27 Indeed, by providing that the Member States are entitled to allow direct access to such licences for applicants who are at least 21 years old, the first indent of Article 6(1)(b) of Directive 91/439, far from expressly limiting the Member States-� entitlement to stipulate a higher minimum age, implies, on the contrary, that they may fix an age limit above 21 years.

28 Since it is not disputed, in this case, that the fixing of a minimum age above that stipulated by the last clause in the first indent of Article 6(1)(b) of Directive 91/439 for direct access to the driving of such motorcycles is likely to contribute to the improvement of road safety, which is, as is clear from that directive-�s preamble, one of its primary objectives, such stipulation does not contravene that provision, provided that the principle of proportionality is observed.

29 The fact that the derogations in Article 6(2) of Directive 91/439 provide only that, if appropriate, a minimum age may be laid down below that stipulated, generally, for the driving of different categories of vehicles does not undermine that finding, since it follows from the very logic of fixing a minimum limit that a reason for derogating from that limit only arises in cases where the threshold fixed by that limit is lowered but not in cases where a Member State stipulates a higher age.

30 Having regard to those considerations, it must be held that, contrary to the Commission-�s submission, the last clause in the first indent of Article 6(1)(b) of Directive 91/439 does not preclude, as a rule, a Member State fixing a minimum age above that stipulated by that provision for direct access to the driving of heavy motorcycles within category A.

31 In those circumstances, the first complaint raised by the Commission in support of its action is unfounded and must, therefore, be rejected.

The complaint relating to the minimum age requirement for driving vehicles in categories C1 and C1+E

32 By that complaint, the Commission alleges that the Federal Republic of Germany has infringed the third indent of Article 6(1)(b) of Directive 91/439 and the second indent of Article 5(1)(b) of Regulation No 3280/85. The Commission submits that it is clear from the combined wording of those two articles that a Member State cannot validly issue a licence to drive vehicles in categories C1 or C1+E to an applicant aged less than 18 years. Under the first sentence of Paragraph 10(2) of the FeV, such licences are issued in Germany to drivers aged 17. In that regard, the Commission makes clear that those Community provisions do not preclude a person, who has not yet attained the age of 18, from being able to begin professional driver training or to gain driving experience by means of a practical apprenticeship with an instructor-�s assistance.

33 As regards that complaint, the German Government contends, first of all, that, contrary to the Commission-�s claim, in Germany, it is necessary to obtain a driving licence for vehicles in category B before it is possible to obtain a driving licence for vehicles in category C1.

34 Next, the German Government points out that Article 6(1)(b) of Directive 91/439 and Article 5(1)(b) of Regulation No 3820/85 allow a driver who has attained the age of 18 years and who is engaged in road transport to drive vehicles whose permissible maximum weight is 7.5 tonnes provided that such driver holds a certificate of professional competence. That right could be implemented only if a licence were issued to that driver at the age of 18. Since it would also be necessary to have certain driving experience, it must necessarily be possible to obtain a licence without having attained that age.

35 Finally, the German Government contends that a licence issued under Paragraph 10(2) of FeV to a driver under 18 years old is not a licence that is fully valid for driving vehicles in category C1, since its validity is limited to journeys undertaken in the course of vocational training and its issue is subject to the dual requirement that the holder undertakes such training and has passed medical and psychological examinations.

36 It must be recalled that the third indent of Article 6(1)(b) of Directive 91/439 stipulates the minimum age required for the issue of licences to drive vehicles in categories C1 and C1+E is 18 years.

37 That same age limit is imposed by the second indent of Article 5(1)(b) of Regulation No 3280/85 for drivers engaged in the carriage of goods.

38 As the Advocate General correctly pointed out in point 41 of his Opinion, neither Directive 91/439 nor Regulation No 3280/85 provide for the possibility of derogating from that minimum age.

39 First, Article 6(2) of Directive 91/439, which lays down exhaustively the categories of vehicles for the driving of which licences may, as an exception to the general rule, be issued to applicants who have attained the age of 17 years, does not mention vehicles in categories C1 and C1+E.

40 Second, the fact that the second indent of Article 5(1)(b) of Regulation No 3280/85 does not preclude a person who has not attained the age of 18 years from being able, in the course of training to be a driver of vehicles intended for the carriage of goods by road, to gain driving experience, cannot be interpreted as meaning that that provision authorises the Member States to issue to such a person a driving licence for vehicles in those categories.

41 Indeed, the driving experience necessary to obtain such a licence can be acquired under the supervision and in the presence of an instructor and in no way implies the issue, to the applicant concerned, of a licence permitting that applicant to drive a vehicle in category C1 or C1+E without being accompanied by a person responsible for his training.

42 In this case, it is clear from the explanations provided by the German Government in reply to the written questions put to it by the Court that, under the first sentence of Paragraph 10(2) of the FeV, persons aged 17 may obtain a licence authorising them to drive, in Germany and for the purposes of their vocational driver training, vehicles in categories C1 and C1+E without being accompanied by a person providing their training.

43 It is apparent also from those explanations and from information provided by the Commission that the licence in question, which admittedly contains statements concerning the restrictions on its use, does not have to be exchanged for another licence on the day on which those restrictions cease to apply, namely the day on which the holder of such licence attains the age of 18 years.

44 It follows that the first sentence of Paragraph 10(2) of the FeV is incompatible with the third indent of Article 6(1)(b) of Directive 91/439 and with the second indent of Article 5(1)(b) of Regulation No 3280/85.

45 In those circumstances, it must be held that the second complaint raised by the Commission in support of its action is well founded.

46 The third complaint raised by the Commission alleges infringement of Article 5(2)(b) of Directive 91/439 by point 6 of Paragraph 6(3) of the FeV, inasmuch as the latter provides that holders of licences for vehicles in categories C1+E and D are authorised to drive vehicles in category D+E.

47 By its fourth complaint, the Commission alleges that the Federal Republic of Germany has infringed Article 3 of Directive 91/439 by authorising, under Paragraph 6(4) of the FeV, holders of licences for vehicles in categories C1, C1+E, C and C+E to drive, within Germany, vehicles in category D without passengers, on journeys aimed at testing the vehicle-�s technical condition or at transferring the vehicles to another location.

48 The Commission-�s fifth complaint alleges breach of the principle of mutual recognition of driving licences set out in Article 1(2) of Directive 91/439, to the extent that Paragraph 29(1) of the FeV requires, on pain of a fine, holders of driving licences issued less than two years before by a Member State other than the Federal Republic of Germany who establish their normal residence in Germany to have their licence registered with the competent administrative authorities within a period of 185 days from the date they establish such residence.

49 By its sixth complaint, the Commission alleges that the Federal Republic of Germany has infringed Articles 1(2) and 8(2) of Directive 91/439 by requiring, under Paragraphs 29(3) and 47(2) of the FeV, holders of driving licences issued by a Member State other than the Federal Republic of Germany who have established their normal residence in Germany to exchange such licences for a German licence. Such exchange is intended to enable the German authorities to enter on such licence, in particular, its period of validity in Germany, where that period is shorter than that of the licence in the Member State which issued it, or a statement about the provisions relating to provisional licences.

50 As regards those four complaints, the Federal Republic of Germany admits that the FeV-�s provisions cited by the Commission do not correctly transpose Directive 91/439 into national law. It contends, however, that the amending regulation (dritte Verordnung zur Änderung der FeV und anderer straßenverkehrsrechtlicher Vorschriften), which puts an end to those infringements, was adopted on 9 August 2004 (BGBl. 2004 I, p. 2092) and entered into force on 1 February 2005.

51 It must be recalled that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-'103/00 Commission v Greece [2002] ECR I-1147, paragraph 23, and Case C-323/01 Commission v Italy [2002] ECR I-'4711, paragraph 8).

52 In this case it is not disputed that, at the end of the period laid down in the reasoned opinion issued on 21 March 2002, the measures necessary properly to transpose Articles 1(2), 3, 5(2)(b) and 8(2) of Directive 91/439 had not been adopted.

53 In those circumstances, the third to sixth complaints raised by the Commission in support of its action must be considered to be well founded.

54 Consequently, on the one hand, it must be held that, by adopting and maintaining in force Paragraph 6(3), point 6, and (4), the first sentence of Paragraph 10(2) and Paragraphs 29(1) and (3) and 47(2) of the FeV, the Federal Republic of Germany has failed to fulfil its obligations under Articles 1(2), 3, 5(2)(b), the third indent of Article 6(1)(b) and Article 8(2) of Directive 91/439 and, on the other hand, the remainder of the action must be dismissed.

55 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for. Since the Commission has applied for costs against the Federal Republic of Germany and since the latter has, in the main, been unsuccessful, it must be ordered to bear the costs.

1. Declares that, by adopting and maintaining in force Paragraph 6(3), point 6, and (4), the first sentence of Paragraph 10(2), and Paragraphs 29(1) and (3) and 47(2) of the Regulation relating to the entitlement of persons to drive on the highway (Verordnung über die Zulassung von Personen zum Strassenverkehr) of 18 August 1998, the Federal Republic of Germany has failed to fulfil its obligations under Articles 1(2), 3, 5(2)(b), the third indent of Article 6(1)(b) and Article 8(2) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 96/47/EC of 23 July 1996;

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