29.3.2008

Official Journal of the European Union

C 79/15

(Case C-4/08)

(2008/C 79/28)

Language of the case: German

Referring court

Parties to the main proceedings

Appellant: Michael Mario Karl Kerner

Respondent: Land Baden-Württemberg

Questions referred

1.Does Article 8(4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (1) preclude the application of a provision of national law which, in the event of a previous withdrawal of a driving licence in the Member State in question, makes possible recognition of a driving licence issued by another Member State on condition that it is established that the facts which originally led to the withdrawal of the driving licence no longer exist, even if

—recognition of that driving licence is not required in the interest of giving effect to the fundamental freedom of free movement on the part of citizens of the Union,

—the driving licence was issued in the other Member State in clear breach of the provisions of the Directive (residence requirement),

—the issuing Member State itself, when issuing the driving licence, must have been aware of this clear breach of the provisions of the Directive,

—according to the Member State of residence, the issuing Member State generally refuses to annul driving licences issued in breach of Community law,

—the driving licence was obtained by the person concerned in the other Member State through an abusive exercise of rights in order to circumvent the provisions of the Member State of residence, which, according to the Directive, are the provisions which determine reissue, and the issuing Member State must have been aware of that abusive exercise of rights,

and the medical examination to determine the fitness of the person concerned to drive, carried out before issue of the driving licence in knowledge of the reasons for the original withdrawal of the driving licence in the issuing Member State, clearly did not meet the requirements imposed on it in view of the grounds for the earlier withdrawal of the driving licence, with the result that the continued presence on the roads of the person involved represents a significant danger to the life and physical safety of other road users?

In the event that the answer to Question 1 is in the affirmative:

2.Is Article 8(2) of Directive 91/439/EEC to be interpreted as meaning that while, in the circumstances described in Question 1, the Member State of residence is obliged to recognise the driving licence issued in another Member State of the European Union, with the result that, within its national territory, the holder is in principle entitled to drive motor vehicles, the Member State of residence is, in the interests of road safety, none the less at the very least empowered, in order to safeguard against the significant danger presented by this licence holder, to verify his fitness to drive in view of the circumstances which previously led to the withdrawal of the driving licence in the Member State of residence and which, because of the subsequent issue of the driving licence in another Member State of the European Union, precisely cannot be regarded as having been overcome?

(1) OJ L 237, p. 1.