delivered on 16 May 2017 (1)

Case C‑195/16

Staatsanwaltschaft Offenburg

(Request for a preliminary ruling from the Amtsgericht Kehl (Local Court, Kehl, Germany))

(Reference for a preliminary ruling — Transportation — Driving licence — Mutual recognition — Scope — Temporary certificate issued by another Member State evidencing the right to drive on its territory — Criminal proceedings for failure to produce a driving licence — Distinction between right to drive and driving licence — Nature of sanctions — Administrative or criminal)

1.I (‘the Defendant’) successfully passed his driving tests in France. A temporary certificate was issued to him to prove the acquisition of the right to drive, pending the issue of his final driving licence. One month later, he was intercepted while driving a car in Kehl, Germany. The temporary French certificate he showed was not accepted as a document recognised under German law. He was charged with the criminal offence of driving without the right to do so.

2.Against this factual background, the national criminal court of first instance, the Amtsgericht Kehl (Local Court, Kehl, Germany), has referred to this Court two sets of questions: first, under both primary and secondary EU law, what types of documents are the Member States obliged to recognise as proof of the existence of the right to drive? Are only final, standardised driving licences to be accepted? Or are temporary certificates issued by the competent authorities of another Member State also to be acknowledged? Second, what type of sanction is a Member State allowed to impose on persons who, although they have acquired a right to drive, cannot yet prove it with a driving licence issued in the final, standardised form, as foreseen by the relevant EU secondary law?

II. Legal framework

3.The first paragraph of Article 18 TFEU provides that: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

4.According to Article 21(1) TFEU, ‘every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.

5.Article 45(1) TFEU reads as follows: ‘Freedom of movement for workers shall be secured within the Union.’

6.Article 49 TFEU states that restrictions on the ‘freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited’.

7.The first paragraph of Article 56 TFEU provides that: ‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.’

8.Recital 2 of the Directive on driving licences (2) (‘the Directive’) states that: ‘The rules on driving licences are essential elements of the common transport policy, contribute to improving road safety, and facilitate the free movement of persons taking up residence in a Member State other than the one issuing the licence ... Despite the progress achieved with harmonising the rules on driving licences, significant differences have persisted between Member States in the rules on periodicity of licences renewal and on subcategories of vehicles, which needed to be harmonised more fully, in order to contribute to the implementation of Community policies.’

9.Recital 3 reads: ‘The possibility of laying down national provisions with regard to the period of validity provided for in Directive 91/439/EEC leads to the co-existence of different rules in different Member States and over 110 different models of driving licences valid in the Member States. This creates problems of transparency for citizens, police forces and the administrations responsible for the administration of driving licences and leads to the falsification of documents which sometimes date back several decades.’

10.Under Recital 5, ‘this Directive should not prejudice existing entitlements to drive granted or acquired before its date of application’.

11.Recital 8 is worded as follows: ‘On road safety grounds, the minimum requirements for the issue of a driving licence should be laid down. Standards for driving tests and licensing need to be harmonised. …’

12.Article 1(1) provides that: ‘Member States shall introduce a national driving licence based on the Community model set out in Annex I, in accordance with the provisions of this Directive. The emblem on page 1 of the Community model driving licences shall contain the distinguishing sign of the Member State issuing the licence.’

13.Pursuant to Article 2(1), ‘driving licences issued by Member States shall be mutually recognised’.

14.By virtue of Article 3(3), ‘Member States shall ensure that, by 19 January 2033, all driving licences issued or in circulation fulfil all the requirements of this Directive’.

15.Article 4(1) states that: ‘The driving licence provided for in Article 1 shall authorise the driving of power-driven vehicles in the categories defined hereafter. …’

16.Article 5(1) reads: ‘Driving licences shall state the conditions under which the driver is authorised to drive.’

17.Article 7(1) states that: ‘Driving licences shall 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;

…’

18.Paragraph 4 of the Verordnung über die Zulassung von Personen zum Straßenverkehr (3) (Regulation on the authorisation of persons to drive on the highway) (‘the FeV’) lays down rules as to the authorisation and identification requirements for the driving of motor vehicles:

‘(1) A person driving a motor vehicle on a public road must have the right to drive. …

(2) The right to drive shall be evidenced by a valid official certificate (driving licence). A person driving a motor vehicle must carry his driving licence and must, on being so required by a competent person, produce it for examination. An international driving permit or a foreign national driving licence and the translation thereof required in accordance with the second sentence of Paragraph 29(2) must be carried and must, where so required by a competent person, be produced for examination.

(3) By way of derogation from the first sentence of subparagraph (2), the right to drive may also be evidenced by a certificate other than a driving licence in so far as express provision is made or express authorisation given to that effect. The second sentence of subparagraph (2) shall apply mutatis mutandis to a certificate within the meaning of the first sentence.’

Paragraph 22 is entitled ‘Procedure at the competent authority and the technical test centre’. It provides that:

‘…

(3) If all the requirements for the granting of the right to drive have been met, the driving licence authority shall be required to issue a driving licence.

(4) … On successful completion of the test, the expert or examiner, or otherwise the driving licence authority, shall issue the driving licence after inserting the date of issue. The driving licence may be issued only if the identity of the candidate is established beyond doubt. Where the expert or examiner has issued the driving licence, he shall notify the driving licence authority accordingly and confirm the date of issue. He shall also send the certificate of training to the driving licence authority. The right to drive is granted by means of the issue of the driving licence or, in the absence of the driving licence, alternatively by means of a temporary test certificate valid only on German territory as proof of the right to drive in accordance with Annex 8a.’

Paragraph 29 provides for the recognition of the right of foreigners to drive under certain conditions. It reads:

‘(1) A person having a foreign right to drive may, to the extent of his entitlement to do so, drive a motor vehicle on German territory if he does not have his normal residence in Germany in accordance with Paragraph 7. …

(2) The right to drive shall be evidenced by a valid national driving licence or international driving permit … Foreign national driving licences drawn up in a language other than German which have not been issued in another Member State of the European Union … shall require a translation.

(3) The entitlement under subparagraph (1) shall not apply to persons having a foreign right to drive,

1.who are in possession of only a learner-driver or other provisional driving licence;

…’

Paragraph 75(4) provides that the failure to carry a driving licence (and show it for inspection if so requested by the competent authorities) constitutes an administrative offence (‘Ordnungswidrigkeit’).

III. Facts, proceedings and the questions referred

On 17 April 2015, the Defendant successfully passed his driving licence tests in France, where he is also resident. He thus qualified for the grant of a licence to drive vehicles falling within category B. In France, the final driving licence is not delivered immediately. Delivery may take up to several weeks or months. Upon passing his tests, the Defendant was therefore issued with a temporary certificate (the Certificat d’Examen du Permis de Conduire or ‘CEPC’).

About one month later, on 15 May 2015, the Defendant was intercepted driving a car in Kehl. He could not produce a valid driving licence. He nonetheless presented his temporary certificate — the CEPC, together with an official form of identification.

The public prosecutor in Offenburg charged the Defendant with the criminal offence of driving without the right to do so, a breach of Paragraph 21 of the StVG. His temporary certificate was valid only in the territory of France. It was not recognised as a valid authorisation to drive in Germany under German law.

The public prosecutor submitted a request for a penalty order against the Defendant to the first-instance court, the Amtsgericht Kehl (Local Court, Kehl). That court has doubts as to the compatibility of the potential criminal conviction with a number of provisions of EU law. The referring court enquires whether or not, as a matter of EU law, the Defendant in fact had an authorisation entitling him to drive in Germany. If that form of proof of the right to drive had to be recognised, and no criminal offence would as a result have been committed, the referring court enquires as to whether the facts of the case may nonetheless amount to an administrative offence.

By order of 22 March 2016, the Amtsgericht Kehl (Local Court, Kehl) therefore referred the following questions to the Court:

‘(1) Is EU law, in particular Article 2 of Directive 2006/126 or Articles 18, 21, 45, 49 and 56 TFEU, to be interpreted as precluding legislation of a Member State which refuses to recognise an authorisation to drive acquired in another Member State, in particular where that authorisation to drive was acquired in accordance with the requirements of Directive 2006/126?

(2) Is EU law, in particular Article 2 of Directive 2006/126 or Articles 18, 21, 45, 49 and 56 TFEU, to be interpreted as precluding legislation of a Member State which refuses to recognise a document evidencing authorisation to drive which another Member State has issued to the holder of such authorisation in accordance with Directive 2006/126, even if that Member State has limited the validity of that authorisation in time and to its own territory and that document does not, moreover, fulfil the requirements of the single European driving licence model of Directive 2006/126?

(3) Should the answer to the first question be in the negative: Is EU law, in particular Article 2 of Directive 2006/126 or Articles 18, 21, 45, 49 and 56 TFEU, to be interpreted as precluding legislation of a Member State which threatens to prosecute as a criminal offence the driving of a vehicle without a right to drive even if the driver of the vehicle has been authorised to drive in another Member State in accordance with the requirements of that directive, but is unable to provide a document to that effect which corresponds to the single European licence model of Directive 2006/126?

(4) Should the answer to the second question be in the negative: Is EU law, in particular Article 2 of Directive 2006/126 or Articles 18, 21, 45, 49 and 56 TFEU, to be interpreted as precluding legislation of a Member State — in which an applicant for a driving licence is, as a general rule, issued a definitive driving licence directly after passing the practical driving test — under which prosecution as a minor offence is threatened for driving a vehicle if the driver, who has been licensed to drive in another Member State in accordance with the requirements of Directive 2006/126, drives without a definitive driving licence as evidence of his authorisation to drive because such a licence has not yet been issued to him, yet due to the particularities of the procedure for the issuing of the definitive driving licence in that Member State, over which the driver has no control, the driver is in possession of an official document certifying that the necessary requirements for acquiring authorisation to drive have been fulfilled?’

Written observations were submitted by the Kingdom of the Netherlands, the Republic of Poland and the European Commission.

By questions 1 and 2, the referring court essentially asks whether Member States are obliged to accept only a standardised and final driving licence issued pursuant to Directive 2006/126 as a valid document that establishes the right to drive or whether they are obliged to accept other documents that also show that the right exists in another Member State. By questions 3 and 4, it inquires what kind of sanctions, if any, may be imposed on drivers that have acquired a right to drive in a Member State, but cannot yet prove it with such a final, standardised driving licence.

The referring court has asked its questions with regard to two sets of EU rules: the Directive, but also a number of primary law provisions: the TFEU provisions on free movement, non-discrimination, and Union citizenship. I agree with the referring court that both sets of rules are relevant in the present case. However, for the clarity of presentation, I shall address each of them separately, in successive steps.

This Opinion is thus structured as follows. As a preliminary remark, I start by distinguishing between the two notions central to the present case: the right to drive, on the one hand, and the driving licence, on the other (A). I will subsequently assess the duties of the Member States arising from the Directive (B) before evaluating overall obligations flowing from the Treaties when imposing sanctions in areas covered by EU primary law (C).

32.

There is a clear distinction which is common to both EU law as well as a number of national legal orders: the (coming into) existence of a right to perform certain activity, such as the ‘right to drive’, is distinct from the holder of the right being able to prove that fact by producing the appropriate document (whether it is called a certificate, licence, or authorisation), such as a ‘driving licence’. A right comes into being once all the necessary conditions prescribed by the law are met. If they are, and in order to attest that fact, a certificate to that effect is issued. (7)

33.At the level of EU law, that distinction in the context of driving licences is present both in the Directive itself as well as in this Court's case-law which predates that directive.

As suggested by its very title, the Directive is primarily concerned with harmonising and standardising the certificate, that is, the driving licence. However, it also touches upon the right to drive by setting out some minimum substantive requirements that must be met in order to acquire that right. In particular, in addition to age, the Directive lays down minimum standards for driving tests and licensing together with minimum standards of physical and mental fitness for driving, in accordance with Article 4 and Article 7(1) of the Directive, in conjunction with Annexes II and III. (8)

34.Next, Skanavi (9) is a case predating Directive 2006/126. Albeit in a somewhat different factual context, the Court generally stated that: ‘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’. (10)

The Court thus clearly acknowledged that a driving licence is mere evidence of an extant right to drive. That right means that all the conditions allowing a person to drive a vehicle under the Directive have been fulfilled. For its part, a ‘driving licence’ is the final document proving that right, issued in a standardised form as required by the Directive. As stated by the Court, ‘the possession of a driving licence issued by one Member State has to be regarded as constituting proof that on the day on which that licence was issued, its holder satisfied those conditions’. (11) Thus, the right to drive follows from a legal event, namely the actual fulfilment of all the physical, mental and intellectual conditions necessary to acquire it. By contrast, the document that is the driving licence is a type of official attestation of the existence of the right.

Finally, and still at the level of EU law, it may be noted that a similar distinction has also been acknowledged by the Court to exist in other areas. For example, the Court operated an analogous differentiation between the right of residence, which is obtained on fulfilment of the conditions laid down by EU law, and the residence permit. The Court held in particular that ‘the declaratory character of residence permits means that those permits merely certify that a right already exists’. (12) The issuing of ‘a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State’. (13) On this basis, the Court has further concluded that, for both the nationals of a Member State and third country nationals married to a national of a Member State, their right of residence is derived directly from EU law, irrespective of whether a resident permit has been issued by the competent authority of a Member State. (14)

By the same token, the fact that EU law distinguishes between these two notions is unlikely to be perceived as surprising at the national level. Quite to the contrary, in fact. It would appear that differentiating between the coming into existence of a right as a legal event, on the one hand, and the ensuing or parallel issue of a declaratory certificate attesting that event, on the other, would be common to a number of Member States’ legal systems.

In the specific context of the driving licence, the referring court suggests that the distinction between the right to drive and the driving licence exists under both German and French law. That differentiation is then driven over into the realm of sanctions, where it forms the basis for differentiating between criminal and administrative sanctions. In both legal orders, driving without having the right to do so is punishable as a criminal offence. Driving without the actual driving licence, while having acquired the right, is punishable as an administrative offence.

In this regard, I agree with the referring court: in general, the notions of the right to drive and a driving licence should not be confused. They are of course intrinsically connected. The issue of the licence is conditional upon the existence of the right. But both of them have, to some extent, an independent existence, as shown by a phenomenon that might be described as temporal misalignments or mismatches between the right and the official document.

One may, as seems to be the case in the main proceedings, have the right to drive without yet having the appropriate driving licence. Alternatively, one may have the right to drive without having a driving licence in the form now required by the Directive. That would be the case in particular for those who still hold a driving licence that predates the entry into force of the Directive.

Conversely, one may contemplate the possibility for a person to have a driving licence without having the right to drive any more. Leaving instances of fraud aside, such a situation might also occur when the individual right to drive has been suspended or withdrawn, but the person concerned had not yet surrendered her licence.

All this is not just a theoretical debate. It has tangible practical consequences. In particular, it leads to one necessary conclusion: the coming into existence of the right to drive is a free-standing legal event that produces legal effects of its own, independent of there being a certificate attesting that event in the appropriate, standardised form required for a driving licence. This fact is highly relevant for potential sanctions. However, before addressing that issue, the Member States’ obligations of mutual recognition arising under the Directive must be examined first.

By the first part of questions 1 and 2, which can be addressed together, the referring court asks whether Directive 2006/126 obliges Member States to accept a temporary certificate issued by another Member State as valid proof of the right to drive.

My concise answer to that question is ‘no’. Admittedly, the Directive contains some provisions on the conditions to be met in order to acquire the right to drive. However, the only duty clearly stemming from the Directive is the mutual recognition of the standardised document called ‘driving licence’, the harmonisation of which it effectively provides.

Pursuant to Article 2(1) of the Directive, ‘driving licences issued by Member States shall be mutually recognised’. According to settled case-law, the mutual recognition clause ‘provides for the mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes a clear and precise obligation which leaves no room for discretion as to the measures to be adopted in order to comply with it’. (15)

Thus, there is an imperatively worded duty of mutual recognition. However, the referring court enquires as to what precisely is to be understood by ‘driving licences’ for the purpose of that provision. For the referring court, it is questionable whether the term ‘driving licences’ is to be interpreted as meaning that an authorisation to drive is to be recognised under Article 2 of the Directive only if an official driving licence in the form of a document evidencing authorisation to drive is issued, or whether the obligation to recognise driving licences covers the right to drive, independently of the existence of an official driving licence. The referring court considers that such ambiguity primarily arises from the failure of the Directive to provide for general recognition of authorisations to drive in all Member States, due to the lack of a harmonised EU law on the authorisation to drive.

According to arguments put forward by the Dutch and the Polish Governments and by the Commission, the obligation of mutual recognition under the Directive applies only to driving licences, that is, standardised certificates attesting the existence of the right to drive.

I agree. In my view, the mutual recognition obligation laid down in Article 2(1) of the Directive only concerns the standardised driving licence as the official document authoritatively showing the right to drive. Neither the text, the context nor the aims of the Directive can be stretched so far as to amount to the Member States’ duty to automatically recognise types of documentation not explicitly foreseen by the Directive.

First, Article 2(1) of the Directive explicitly provides for mutual recognition of ‘driving licences’ issued by Member States. With the distinction between a right and its certification made in the preceding section of this Opinion in mind, it is rather clear that what a ‘licence’ refers to is the physical document, the official attestation that the conditions to be permitted to drive have been met. That is also confirmed by the expressions used in other linguistic versions of the Directive, such as: in German, <span class="italic">Führerscheine</span>; in French, <span class="italic">permis de conduire</span>; in Czech, <span class="italic">ridičské průkazy</span>; in Spanish, <span class="italic">permisos de conducción</span>; in Italian, <span class="italic">patenti di guida</span>. All these expressions clearly refer to the actual document.

Second, a systemic reading of the Directive leads to the same result. The thrust of the provisions of the Directive is geared at the format of the licence itself. The Directive contains precise requirements relating to the layout, the content and the physical characteristics and security features of a document that is supposed to prove, in a standardised and uniform way, the existence of the right to drive.

Concerning the layout, the national driving licence must be based on the European Union model as set out in Annex I and pursuant to Article 1(1) of the Directive. That model depicts how the driving licence should look in the EU and explains the type and order of information that it ought to contain. Content-wise, Article 5(1) of the Directive requires driving licences to state the conditions under which the driver is authorised to drive. Besides, the Directive requires security features to avoid any risk of forgery of driving licences. In particular, Article 3(2) explicitly imposes, in conjunction with Annex I, that the material used for the driving licence shall be made secure against forgery.

In addition, a glance at the legislative history confirms that the aim of the Union (Community) legislature in this area has remained the same. Also the predecessor of the current Directive (<span class="note"><a id="c-ECR_62016CC0195_EN_01-E0016" href="#t-ECR_62016CC0195_EN_01-E0016">16</a></span>) appears to have aimed at harmonising the document itself. (<span class="note"><a id="c-ECR_62016CC0195_EN_01-E0017" href="#t-ECR_62016CC0195_EN_01-E0017">17</a></span>)

Third and finally, the overall purpose of the Directive also supports the conclusion that the mutual recognition obligation only applies to the official document, that is, the driving licence itself.

Recital 2 of the Directive indicates that the latter enhances road safety and aims at facilitating the freedom of circulation of people. Recitals 3 and 4, for their part, highlight the need to solve problems of transparency and avoid falsification. The rationale behind having ultimately (<span class="note"><a id="c-ECR_62016CC0195_EN_01-E0018" href="#t-ECR_62016CC0195_EN_01-E0018">18</a></span>) a standard EU licence, which is valid throughout EU territory, is to substitute over 110 different models of driving licences. As their validity could be hard to assess, that diversity could give rise to possible fraud.

All these aims lead to one conclusion: the purpose of the Directive is to introduce one standardised driving licence that would allow for immediate and easy recognition by any authorities anywhere in the Union. It would therefore clearly go against the overall aim of the Directive if the latter would be interpreted as obliging the Member States to recognise, again, all kinds of documents that may be issued by another Member State to prove the existence of the right to drive.

At the same time, as previously mentioned at paragraph 34 of this Opinion, the Directive also provides for several elements of minimum harmonisation of the right to drive by setting out the substantive and formal conditions under which the driving licence is issued, such as age or fitness to drive.

However, in my understanding, those minimum requirements have been gradually inserted as a necessary precondition for the mutual recognition of driving licences. That conclusion can already be inferred from the <span class="italic">Choquet</span> ruling where the Court, back in 1978, refused the recognition of driving licences issued by other Member States unless the requirements for the issue of those driving licences were harmonised to a sufficient extent. (<span class="note"><a id="c-ECR_62016CC0195_EN_01-E0019" href="#t-ECR_62016CC0195_EN_01-E0019">19</a></span>)

Thus, following this logic, the Union legislature has, in successive amendments, set some minimum requirements as a precondition for the mutual recognition of the driving licences. However, I do not think that those elements of minimum and rather ancillary harmonisation of some elements of the right to drive could be turned around so as to amount to harmonisation and the ensuing duty of mutual recognition of the right to drive itself. Harmonising some preconditions in order to facilitate the mutual recognition of the final document does not also mean the mutual recognition of those preconditions. Although I readily acknowledge that ‘harmonisation by stealth’ or largely unintended ‘harmonisation by accident’ are certainly attractive titles for an academic article, I do not think that they would be a good point of departure for the interpretation of the scope of Member States’ obligations under secondary law.

It follows from the foregoing that Article 2 of Directive 2006/126 cannot be interpreted as requiring the Member States to recognise documents attesting the acquisition of the right to drive in another Member State other than those that fulfil the requirements of that directive.

Overarching duties of the Member States under the Treaties

In the previous section of this Opinion, I suggested that in my view, the Directive cannot be interpreted as obliging the Member States to recognise the right to the drive obtained in another Member State. The Directive merely obliges the Member States to issue and then also recognise a standardised attestation clearly provided for in the Directive, which is the uniform driving licence.

There is, however, still a need to consider the second half of the first two questions posed by the national court — what about the obligations the Member States have in this area under primary law? The nature of those obligations is linked to the third and fourth questions referred by the national court. They concern the nature of sanctions, if any, that may be imposed on the Defendant by a Member State for driving without an appropriate driving licence, but with only a temporary certificate attesting the acquisition of the right to drive in another Member State.

In the remaining parts of this Opinion, I turn to those questions. After identifying the relevant primary law provisions (1), I shall examine the compatibility of those provisions with criminal and administrative sanctions imposed for driving without a driving licence (2).

Relevant primary law provisions: free movement and non-discrimination

The Directive only provides for the mutual recognition of driving licences. It does not contain any provision as to the possible imposition of sanctions for the lack of the right to drive or the failure to produce the official driving licence or another type of document to that effect.

Therefore, as in other areas of EU law, in the absence of specific EU law rules governing the matter, it is in principle for the Member States to provide for sanctions. (<span class="note"><a id="c-ECR_62016CC0195_EN_01-E0020" href="#t-ECR_62016CC0195_EN_01-E0020">20</a></span>)

However, when exercising that competence, Member States are still obliged to comply with other requirements flowing from EU law, especially from primary law. In the matters that are not covered by secondary law, but still clearly fall within the scope of EU law, the primary law and obligations that ensue from it remain applicable.

The referring court suggests that the criminal and administrative sanctions for driving without a driving licence recognised in Germany, but only with a temporary certificate issued by another Member State, may infringe the general prohibition on discrimination under Article 18 TFEU and the fundamental freedoms under Articles 21, 45, 49 and 56 TFEU.

I note at the outset that the present situation clearly falls within the scope of application of the Treaties on at least two different grounds: first, as the Court has already stated in <span class="italic">Skanavi</span>

the right to drive effectively stems from EU law;

69.Regarding free movement in particular, the specific reasons why the Defendant was in Germany were not stated. It remains therefore for the national court to determine which of the freedoms of movement were at stake in the context of the main proceedings. With a view to fully assisting the referring court, general guidance may be provided in this regard. Several options are conceivable.

70.First, the Defendant may have driven to Germany to exercise a specific economic activity, such as to seek employment, establish himself there, or receive or provide services. In this respect, taking into account the importance of the individual means of transport, the failure to recognise a temporary certificate issued by another Member State may affect the actual pursuit of a number of occupations for employed or self-employed persons. Thus, refusing to recognise a temporary certificate would be liable to hinder the exercise of freedom of movement for workers or freedom of establishment.

71.Second, the Defendant may have driven to Germany merely for leisure. In that scenario, he is likely to have received services as a tourist. Although perhaps not primarily aimed at by the Treaties, it has been the established case-law of this Court that the freedom to provide services also includes the freedom for the recipients of the services to go to another Member State in order to receive a service there. Hence, the domestic prohibition of recognition of foreign temporary driving certificates could also be seen as a restriction on receiving services.

72.Third, according to the referring court, the Defendant is a French national, thus an EU citizen. His situation falls also within the substantive scope of EU law on this account: he has exercised his freedom to move within the territory of the Union, within the notion of the Union citizenship of Article 21(1) TFEU.

73.In sum, it remains for the national court to ascertain which fundamental freedom was triggered in the present case. However, since the Defendant seems to be an EU citizen, it would not even be, in my opinion, necessary to start construing (sometimes quite tenuous) connections to one of the specific freedoms. Being a citizen freely moving on the territory of the Union should be enough in itself: after all, what else should be included under the notion of European citizenship if not the right to travel freely around the territory of the Union? ‘Autoraedarius europeus sum.’

74.In any case, any citizen of the Union may rely on Article 18(1) TFEU, which prohibits any discrimination on grounds of nationality, in all situations falling ratione materiae within the scope of EU law. Those situations also include, apart from any of the fundamental freedoms, the exercise of the freedom conferred by Article 21 TFEU to move within the territory of the Member States.

75.By prohibiting ‘any discrimination on grounds of nationality’, Article 18 TFEU requires that persons in a situation falling within the scope of application of the Treaties be treated equally. It is established case-law that the principle of non-discrimination prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. Unless objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect nationals of other Member States more than nationals of the host State.

Compatibility of criminal and administrative sanctions with Union primary law

76.I now turn to the question of how these general propositions are to be applied in the present case. In particular, are potential criminal and/or administrative sanctions when one cannot prove the existence of the right to drive by showing the standardised driving licence compatible with free movement and the prohibition of discrimination?

77.The Netherlands claim that it is for the Member States to adopt sanctions which may be both criminal and administrative. This is as long as they are non-discriminatory, proportionate and effective.

78.The Commission acknowledges that sanctions fall within the competence of the Member States. It distinguishes, however, between two categories of persons: those who have acquired a right to drive in another Member State and those who have not yet acquired it, or who have been stripped of it. According to the Commission, only the latter category may incur criminal sanctions.

79.I agree with the Commission’s view. In the present case, having a right to drive obtained in another Member State prevents the imposition of criminal sanctions. On the other hand, it is, in my view, possible to impose administrative sanctions for not being able to properly evidence the existence of that right with the help of the required, standardised licence.

80.There are two ways in which this issue might be approached: one is as a restriction on any fundamental freedoms to be identified by the national court. The other is via the prohibition of (indirect) discrimination on the basis of nationality embedded in the Union citizenship and Article 18(1) TFEU. However, in the end, both argumentative avenues meet at the same crossroads: who would be treated less favourably (discriminatorily) in relation to whom?

81.There are two layers of potential comparison in the present case. First, it is the focus on what exactly is being punished. For what specific failure is the sanction being imposed? Second, are those documents, namely nationally issued temporary driving certificates, effectively comparable for that purpose?

82.As the national court helpfully explained in its order for reference, what is punished criminally under German law is not having the right to drive — that is, not having the entitlement to carry out that activity at all. By contrast, the administrative sanction is for situations in which a driver is not able to provide the required document in the appropriate form when requested to show it to the competent authority (typically the police). In other words, the administrative sanction is imposed for failing to comply with the obligation of showing the required document upon inspection, while actually being in the possession of the corresponding right.

83.The essence of prohibition of discrimination on the grounds of nationality is treating the others not less favourably than one’s own nationals. It means, at least, extending the national regime to comparable situations coming from other Member States, while loyally and in good faith approaching the acts and decisions of other Member States.

84.In the present case, following the facts as ascertained by the national court, the Defendant was in possession of the right to drive, granted to him in France. He just could not physically produce the required standardised driving licence to prove it. Leaving aside the issue of proof and evidence, which is for the national court to ascertain, and assuming that it has been clearly established that at the moment of being intercepted, the Defendant had the right to drive, he cannot be subject to criminal punishment as if he did not have that right.

85.Stated in different terms, the key question is how would a driver with a ‘German right to drive’, but who did not have the appropriate licence, be treated in a similar situation? The referring court states that in Germany, a driving licence is issued immediately upon the successful passing of all the necessary tests. However, the national court also refers to Paragraph 22(4) of the FeV. That provision foresees, exceptionally, that a temporary test certificate valid only on the territory of Germany can be produced as acceptable proof of the right to drive.

86.This means that not only would a person who has passed the driving tests in Germany and thereby obtained a right to drive and later, before the final, standardised driving licence was issued, upon being intercepted by the police, not be punished criminally, she would also not be punished administratively. That is because under German law, a temporary test certificate issued by German authorities is legally sufficient evidence of the existence of the right to drive.

87.

That brings me to the second point: the imposition of administrative sanctions and the comparability of temporary certificates.

88.

If pushed to an extreme, the non-discrimination and mutual recognition obligation under primary law arguments could indeed suggest that, as Germany is accepting German temporary test certificates, it must also accept French CEPCs. Provided that Germany accepts national temporary certificates, it must also accept those coming from other Member States.

89.

I do not think that the primary law based obligations can be pushed that far, for three main reasons.

90.

First, the Directive instituted a harmonised regime of mutual recognition of driving licences. From a constitutional point of view, within such a regime, primary law obligations remain relevant and applicable, as suggested in the previous section of this Opinion. However, I do not think that they can be pushed so far as to effectively reintroduce a full scale obligation to recognise any and all documents issued by the Member States. In parallel, I also do not believe it requires denying certain legislative choices carried out on the level of secondary law, in other words, a reversal to a Europe with dozens of different driving documents, issued by each of the Member States. (29)

91.

Second, it serves to be mindful that in both systems, France as well as Germany, the temporary driving certificates are issued not only with temporal, but also clear territorial limitations. This brings them, in my view, outside the set of comparable attestations of the right to drive if, for the purpose of proving that right, a person issued with such a document decides to disregard the limits clearly imposed upon those certificates and seeks to rely on them outside of their ‘designated use’, both temporal and geographical.

92.

Third, and perhaps most importantly, it is necessary to recall what exactly is being sanctioned by an administrative fine: I understand that it is the failure to provide documentation in the correct form, when requested to do so by the competent authority. From that point of view, there is no denying that a person who only has a temporary certificate issued in another Member State, which is expressly limited in its temporal and geographical scope and thus not fully recognisable, does not comply with such evidentiary obligations. The Defendant was, by definition, simply not in the position to provide the appropriate document. He could therefore be subject to an administrative punishment.

93.

In other words, Member States are certainly free to sanction a failure to provide the legally requested documents upon inspection. What is being sanctioned there, however, is the failure of a person to carry the appropriate documentation with her, if obliged to do so by law; not the absence of the right for which the licence was issued. If any penalty would be imposed, it is for failing to meet those prescribed evidentiary obligations. It is also potentially for the ensuing extra administrative work in verifying, by different means, the existence of the right or entitlement that was supposed to be established in a speedy and uniform way by the required standardised licence.

94.

For the sake of completeness, I would add that from my point of view, the same conclusion would also follow if the reasoning were based solely on the free movement provisions of the Treaty. The judgment in Skanavi (30) again provides useful guidance. The case addressed the compatibility of criminal sanctions imposed on a Greek national. She took up residence in Germany for business-related purposes further to the freedom of establishment. As the claimant in that case, she was punished because she failed to exchange her Greek driving licence for a German one.

The Court stated that freedom of establishment precluded ‘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’. (31) The Court reached that conclusion by considering that the obligation to exchange driving licences was ‘essentially a way of meeting administrative requirements’. (32)

96.

Similar reasoning would also be pertinent in the present case. It also concerns a person who has not yet received the driving licence in the appropriate format but has acquired the right to drive in the country of his residence. A national obligation requiring a standardised, final driving licence to be shown, as opposed to a temporary certificate, could also be seen as an administrative requirement. Obtaining the driving licence in a given format is a formality that aims at authoritatively establishing the right to drive.

97.

The Skanavi analogy is perhaps even stronger in the present case. This is because the issue of the driving licence does not depend on the Defendant. As rightly stated by the referring court, the latter had no control over the date on which it would be delivered to him: that was not the case in Skanavi.

98.

By analogy, treating a person, who has acquired the right to drive in another Member State, but who has not yet received his driving licence, as if he were a person driving without a licence and facing the potential of a criminal penalty (whether that would be imprisonment or only a fine, but amounting to the individual having a criminal record), would be disproportionate to the gravity of that infringement in view of the ensuing consequences. (33)

99.

Yet again, a broader parallel may be drawn with non-compliance with formalities for establishing the right of residence of an individual, such as the requirement to make a formal declaration of residence within three days of entering the territory of a Member State. In this respect, the Court held that Member States may not impose a penalty that is so disproportionate to the gravity of the infringement that this becomes an obstacle to free movement. (34) Thus, detention and deportation based solely on the failure of the person concerned to comply with legal formalities concerning the monitoring of aliens impair the very substance of the right of residence directly conferred by EU law and are manifestly disproportionate to the seriousness of the infringement. (35) However, the national authorities are entitled to make the failure to comply with such requirements subject to penalties comparable to those attached to minor offences committed by their own nationals. (36)

100.

It follows from the foregoing that Articles 18 and 21 TFEU shall be interpreted as precluding a Member State from prosecuting as a criminal offence the driving of a vehicle when the driver has obtained the right to drive in another Member State in accordance with the requirements of Directive 2006/126 but, for administrative reasons beyond his control, he is unable to provide, upon inspection, a document to that effect which meets the requirements of that directive.

Conclusion

101.

In the light of the aforementioned considerations, I propose that the Court of Justice answer the questions posed by the Amtsgericht Kehl (Local Court, Kehl, Germany) as follows:

–

Article 2 of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences cannot be interpreted as requiring the Member States to recognise documents attesting the acquisition of the right to drive in another Member State other than those that fulfil the requirements of that directive.

–

Articles 18 and 21 TFEU shall be interpreted as precluding a Member State from prosecuting as a criminal offence the driving of a vehicle when the driver has obtained the right to drive in another Member State in accordance with the requirements of Directive 2006/126 but, for administrative reasons beyond his control, he is unable to provide, upon inspection, a document to that effect which meets the requirements of that directive.

* * *

(1) Original language: English.

(2) Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (Recast) (OJ 2006 L 403, p. 18).

(3) Verordnung über die Zulassung von Personen zum Straßenverkehr vom 13. Dezember 2010, zuletzt geändert durch Art. 1, Art. 2 der Elften Verordnung zur Änderung der Fahrerlaubnis-Verordnung und anderer straßenverkehrsrechtlicher Vorschriften vom 21. Dezember 2016 (Regulation on the authorisation of persons to drive on the highway (Regulation on the right to drive — FeV) of 13 December 2010 (BGBl. 2010 I, p. 1980), as last amended by Articles 1 and 2 of the 11th Regulation on the amendment of the Regulation on the right to drive and other road traffic provisions of 21 December 2016 (BGBl. 2016 I, p. 3083)).

(4) Straßenverkehrsgesetz, in der Fassung der Bekanntmachung vom 5. März 2003, zuletzt geändert durch Art. 3 des Gesetzes zur Stärkung der Bekämpfung der Schwarzarbeit und illegalen Beschäftigung vom 6. März 2017 (Law on road traffic (StVG), in the version published on 5 March 2003 (BGBl. 2003 I, p. 310, corrigendum p. 919), as last amended by Article 3 of the Law on strengthening the fight against undeclared work and illegal employment of 6 March 2017 (BGBl. 2017 I, p. 399)).

(5) The referring court states that the French authorities issued the Defendant with his final driving licence on 9 July 2015.

(6) Under French law, the CEPC is delivered as a temporary authorisation to drive until the final driving licence (a licence in the standardised form pursuant to the specifications of Annex I to Directive 2006/126) is issued. It is to be presented for inspection purposes on the national territory, together with a valid ID, in lieu of the driving licence. It is valid for up to four months from the day of the successful examination (see Article 4 I 1° of Arrêté du 20 avril 2012 fixant les conditions d’établissement, de délivrance et de validité du permis de conduire (JORF of 6 May 2012, p. 8050) (Order of 20 April 2012 laying down the conditions for the drawing up, issuing and validity of driving licences)).

(7) Naturally, a different category which is not concerned in the present case includes official documents which are constitutive of a right. In such cases, the right only comes into existence when and if the appropriate document, typically in the form of an administrative decision, is issued. But such constitutive documents are distinct from merely declaratory ones.

(8) The Directive only provided for a minimum degree of harmonisation of the national provisions relating to the conditions under which a driving licence is issued — see judgment of 1 March 2012, Akyüz (C‑467/10, EU:C:2012:112, paragraph 53).

(9) See judgment of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70).

(10) See judgment of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70, paragraph 34).

(11) See judgment of 1 March 2012, Akyüz (C‑467/10, EU:C:2012:112, paragraph 42).

(12) See judgment of 21 July 2011, Dias (C‑325/09, EU:C:2011:498, paragraph 54).

(13) See judgment of 25 July 2002, MRAX (C‑459/99, EU:C:2002:461, paragraph 74). See also judgment of 21 July 2011, Dias (C‑325/09, EU:C:2011:498, paragraph 48). I note that those judgments address the opposite situation to the one in the main proceedings. They deal with the consequences attached, under EU law, to the holding of a permit when the substantive conditions of the right of residence are not met.

(14) See judgment of 25 July 2002, MRAX (C‑459/99, EU:C:2002:461, paragraph 74).

(15) See, for instance, judgments of 29 April 2004, Kapper (C‑476/01, EU:C:2004:261, paragraph 45); of 26 June 2008, Wiedemann and Funk (C‑329/06 and C‑343/06, EU:C:2008:366, paragraph 50); and of 1 March 2012, Akyüz (C‑467/10, EU:C:2012:112, paragraph 42).

, EU:C:2012:112, paragraph 40).

Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1).

See especially Annex I to Directive 91/439, concerning the Community model driving licence.

The word ‘ultimately’ is to be stressed here. The Directive clearly provides for a gradual phasing out of the previous national documents, with a generous period within which those national documents are to be fully recognised under the Directive (see, to that effect, recital 5 and Article 3(3) of the Directive).

Judgment of 28 November 1978, Choquet (16/78, EU:C:1978:210, paragraph 7).

See judgments of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70, paragraph 36), and of 29 October 1998, Awoyemi (C‑230/97, EU:C:1998:521, paragraph 25).

See judgments of 31 January 1984, Luisi and Carbone (286/82 and 26/83, EU:C:1984:35, paragraph 16), and of 2 February 1989, Cowan (186/87, EU:C:1989:47, paragraph 15).

Gratefully acknowledging the inspiration from Advocate General Jacobs’ ‘civis europeus sum’ in his Opinion in Konstantinidis (C‑168/91, EU:C:1992:504, paragraph 46).

See for instance judgments of 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 24); of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181).

paragraph 31); and of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraphs 53 and 54).

See, to that effect, judgment of 2 February 1989, Cowan (186/87, EU:C:1989:47, paragraph 10), and of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraph 29).

See judgments of 18 July 2007, Hartmann (C‑212/05, EU:C:2007:437, paragraph 29); of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 40); of 25 January 2011, Neukirchinger (C‑382/08, EU:C:2011:27, paragraphs 32 and 34); and of 18 March 2014, International Jet Management (C‑628/11, EU:C:2014:171, paragraph 64).

See judgments of 30 November 2000, Österreichischer Gewerkschaftsbund (C‑195/98, EU:C:2000:655, paragraph 40), and of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 41).

See, for instance, on the interplay between harmonised secondary law regimes and Treaty provisions, judgments of 5 April 1979, Ratti (148/78, EU:C:1979:110, paragraph 36), and of 5 October 1994, Centre d'insémination de la Crespelle (C‑323/93, EU:C:1994:368, paragraph 31). For a somewhat different understanding, see also judgments of 22 January 2002, Dreessen (C‑31/00, EU:C:2002:35, paragraph 27), and of 13 November 2003, Morgenbesser (C‑313/01, EU:C:2003:612, paragraph 43).

See judgment of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70).

Judgment of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70, paragraph 39).

Judgment of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70, paragraph 35).

See, to that effect, judgment of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70, paragraph 37).

See, to that effect, judgments of 3 July 1980, Pieck (157/79, EU:C:1980:179, paragraph 19), and of 12 December 1989, Messner (C‑265/88, EU:C:1989:632, paragraph 14).

See judgments of 25 July 2002, MRAX (C‑459/99, EU:C:2002:461, paragraph 78), and of 17 February 2005, Oulane (C‑215/03, EU:C:2005:95, paragraph 40).

See judgments of 3 July 1980, Pieck (157/79, EU:C:1980:179, paragraph 19), and of 12 December 1989, Messner (C‑265/88, EU:C:1989:632, paragraph 14).