Press release no. 71/2019 of 10 October 2019

Obtaining a preliminary ruling by the Court of Justice of the European Union on the question whether there is an obligation to recognise a foreign EU driving licence which was renewed following a withdrawal of the driving licence in Germany.

The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig obtains a preliminary ruling by the Court of Justice of the European Union on the scope of the obligation to recognise foreign EU driving licences for vehicles in categories A and B.


The claimant has his main residence in Spain and an additional residence in Germany. In 1990, he had his German driving licence withdrawn on account of drink-driving. In 1992, he acquired a driving licence for vehicles in categories A and B in Spain. He was convicted by final and binding judgment for driving under the influence of drink or drugs for, in December 2008, he was driving a motor vehicle while having a blood alcohol concentration of 2.12 per mille; at the same time, the criminal court withdrew his right to make use of his Spanish driving licence in Germany and determined a disqualification period of 14 months for the reissue. The claimant had his confiscated Spanish licence returned by the Spanish authorities, to whom it was sent, without further ado. After that, he was issued with new driving licences for vehicles in categories A and B multiple times whilst extending the period of validity; most recently on 6 September 2016 a driving licence valid until 22 October 2021.


The defendant city of Karlsruhe rejected the claimant's application to have this Spanish driving licence recognised for driving motor vehicles in the federal territory. On account of his drink-driving of December 2008, the claimant first had to provide evidence that he had regained fitness to drive by providing a positive medical-psychological expert report. The action brought against this before the Karlsruhe Administrative Court (Verwaltungsgericht) and the Mannheim Higher Administrative Court (Verwaltungsgerichtshof) did not meet with success. There was no obligation to recognise the claimant's driving licence which was renewed in Spain, even when taking into account the principle of recognition under EU law. The claimant did not but obtain a new driving licence document when renewing his Spanish driving licence following the withdrawal of the right to make use thereof in Germany. Although the renewal of his driving licence in Spain was subject to a health test, it was not subject to the verification of the minimum requirements for issuing driving licences under article 7 (1) of Directive 2006/126/EC on driving licences and accordingly it was also not subject to a comprehensive examination of the fitness to drive.


The Federal Administrative Court has suspended the proceedings. In accordance with article 267 (3) of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union is obtained on the question whether the principle of recognition under EU law as set out in Directive 2006/126/EC on driving licences, provides for an obligation to recognise a foreign EU driving licence for vehicles in categories A and B which was issued to the person concerned by way of renewal (= extension of the administrative validity) under article 7 (3) second subparagraph of Directive 2006/126/EC after he or she had his or her right to make use thereof in Germany withdrawn. By virtue of this provision, Member States may make the renewal of driving licences for vehicles in categories A and B subject to an examination of the minimum standards of physical and mental fitness for driving these vehicles; however, they are not obliged to do so.


Footnote:

The question referred to the Court of Justice of the European Union for a preliminary ruling reads as follows:


"Do article 2 (1) and article 11 (4) second subparagraph of Directive 2006/126/EC preclude a Member State, within the sovereign territory of which the holder of an EU driving licence for vehicles in categories A and B issued by another Member State had his or her right to drive motor vehicles in the first Member State under that driving licence withdrawn because of drink-driving, from refusing to recognise a driving licence for those categories which was issued to the person concerned in the second Member State, after that right had been withdrawn, through renewal of the licence pursuant to article 7 (3) second subparagraph of Directive 2006/126/EC?"


BVerwG 3 C 20.17 - decision of 10 October 2019


Decision of 10 October 2019 -
BVerwG 3 C 20.17ECLI:DE:BVerwG:2019:101019B3C20.17.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, decision of 10 October 2019 - 3 C 20.17 - para. 16.

Obligation of one Member State to recognise a driving licence renewed in another EU Member State after withdrawal of the right to drive vehicles on its national territory.

Headnotes

The following question on the interpretation of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ L 403 p. 18) is referred to the Court of Justice of the European Union for a preliminary ruling:

Do article 2 (1) and article 11 (4) second subparagraph of Directive 2006/126/EC preclude a Member State, within the sovereign territory of which the holder of an EU driving licence for vehicles in categories A and B issued by another Member State had his or her right to drive motor vehicles in the first Member State under that driving licence withdrawn because of drink-driving, from refusing to recognise a driving licence for those categories which was issued to the person concerned in the second Member State, after that right had been withdrawn, through renewal of the licence pursuant to article 7 (3) second subparagraph of Directive 2006/126/EC?

  • Sources of law
    Driver Licensing OrdinanceFeV, Fahrerlaubnis-Verordnungsections 11 (8), 13 first sentence no. 2 (c) and (d), section 29 (3) first sentence no. 3 and third sentence, (4)
    Road Traffic ActStVG, Straßenverkehrsgesetzsection 3 (6)
    Directive 2006/126/ECarticles 2 (1), 7 (1) and (3), 11 (4) second subparagraph

Reasons

I

1 The claimant seeks a declaration stating that he is entitled to drive motor vehicles in Germany under his Spanish driving licence for vehicles in categories A and B.

2 The claimant is a German national. He has had his residence in Spain since 1992 and an additional residence in K., which is not however his normal residence within the meaning of section 7 of the Ordinance on the Admission of Persons to Road Traffic - Driver Licensing Ordinance - (FeV, Fahrerlaubnis-Verordnung) and article 12 (1) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ L 403 p. 18). In Germany he was convicted for driving under the influence of drink or drugs in 1987, 1990, 1995 and 2000; therefore, he had his German driving licence withdrawn once more in 1990. On 21 October 1992, the claimant was issued with a driving licence in Spain which, amongst others, included vehicles in categories A and B. Its validity has since been extended several times there.

3 On 12 December 2008, the claimant was driving a motor vehicle in Germany while having a blood alcohol concentration of 2.12 per mille. Therefore, he was sentenced to a fine for driving under the influence of drink or drugs by final and binding penal order (Strafbefehl) of 20 January 2009 and he had his right to drive motor vehicles in Germany under this driving licence withdrawn on the ground that he was unfit to drive. A disqualification period of 14 months was determined for the reissue of a driving licence; it ended on 19 March 2010. His driving licence for vehicles in categories A, A1 and B issued in Spain on 22 October 2007 was confiscated and sent to the competent Spanish authorities. They quickly returned the document to the claimant without further ado.

4 On 23 November 2009 - and thus during the disqualification period imposed in Germany - the claimant was issued in Spain with a new driving licence for vehicles in categories A1, A2, A and B, which, like his previous driving licence, was valid until 22 October 2012. On 15 October 2012, he obtained a driving licence in Spain for vehicles in categories A1, A2, A and B valid until 22 October 2014, on 18 September 2014, he obtained a driving licence for vehicles in categories AM, A1, A2, A and B valid until 22 October 2016 and on 6 September 2016, he obtained his current driving licence for vehicles in categories AM, A1, A2, A and B valid until 22 October 2021. On the driving licences, 21 October 1992 is indicated as the commencing date of validity for each of these vehicle categories.

5 The claimant's application of 20 January 2014 to have "his Spanish driving licence ... of 21 October 1992, valid until 22 October 2014" recognised for the federal territory, was rejected by the defendant city of K. The claimant had his Spanish driving licence withdrawn for drink-driving by penal order of 20 January 2009. After the expiry of the disqualification period, he had not acquired a new driving licence in Spain which could be recognised, rather, he was simply issued with replacement documents there. Since the claimant had not produced the medical-psychological expert report which was rightly requested from him in order to clarify existing doubts regarding his fitness to drive, one could - in accordance with section 11 (8) FeV - conclude that he was unfit to drive. The Regional Commissioner's Office (Regierungspräsidium) of K. rejected the claimant's objection (Widerspruch) on the same grounds.

6 The Administrative Court (Verwaltungsgericht) dismissed his action seeking the annulment of the defendant's notices and to have the defendant ordered to grant him the right to make use of his Spanish driving licence in Germany.

7 The Higher Administrative Court (Verwaltungsgerichtshof) dismissed the claimant's appeal on points of fact and law providing the following reasons: The claimant's main application seeking a declaration stating that he was entitled to make use of his Spanish driving licence in Germany was unfounded, as was his subsidiary application seeking to have the defendant ordered to constitutively grant him the right to make use of his Spanish driving licence in Germany.

8 The right to drive in Germany under section 29 FeV was excluded on the ground set out in section 29 (3) first sentence no. 3 in conjunction with the third sentence FeV. By final and binding decision, the claimant had his right to drive withdrawn for drink-driving in December 2008; this was still registered with the Register of Driver Fitness and has not yet been deleted. This exclusion applied to the claimant's current Spanish driving licence, extended until 22 October 2021, as well. By virtue of section 29 (4) FeV in conjunction with section 3 (6) Road Traffic Act (StVG, Straßenverkehrsgesetz) a granting decision by the driver licensing authority issued upon application was needed in order to make use of it in Germany again. Nor did article 2 (1) of Directive 2006/126/EC currently confer on the claimant the right to drive motor vehicles in Germany under his Spanish driving licence. Neither the return of the driving licence document confiscated in Germany nor its replacement by the Spanish authorities on 23 November 2009 were measures constituting a recognition obligation under EU law. They were taken during the disqualification period determined in the penal order of 20 January 2009. Moreover, there is nothing indicating that a test of fitness to drive had been carried out prior to taking these measures. The claimant had not been issued with new driving licences and the Spanish authority did not but renew the licence upon expiry of its validity in accordance with article 7 (2) and (3) of Directive 2006/126/EC. As a harmonised minimum requirement for the renewal of a driving licence for vehicles in categories A and B, article 7 (3) first subparagraph (b) of Directive 2006/126/EC merely provided that the residence requirement had to be met. Thus, the renewal of a driving licence was, by its nature, equal to a replacement within the meaning of article 11 (5) of Directive 2006/126/EC; both was limited to the production of new documentary evidence of an existing right to drive. A Member State - like Spain - choosing to make the periodic renewal of a driving licence subject to a health test, was not, without any particular indication, required to carry out an examination of each licence holder to verify whether all the minimum health standards set out in Annex III to Directive 2006/126/EC were still met. An age-based health test could regularly be limited to examining the ability to see, hear and react and to any openly apparent health impairments. It would be contrary to the public interest objective of improving road safety had the validity of a driving licence to be recognised unconditionally in such a situation.

9 The claimant's subsidiary application, seeking to oblige the driver licensing authority to issue a constitutive granting decision under section 29 (4) FeV, was likewise unfounded. This would require that the reasons for the withdrawal of the right to drive no longer existed. However, the claimant had failed to produce the medical-psychological expert report required on account of his drink-driving. In view of the blood alcohol concentration of 2.12 per mille that he was found to have, which was evidence of excessive alcohol consumption, and the threats to road safety posed by alcohol consumption, the principle of proportionality under EU law did not conflict with requesting a medical-psychological expert report.

10 As grounds for his appeal on points of law, the claimant relies on the following arguments: By providing for a granting decision, section 29 (3) and (4) FeV violated EU law. It had been assumed arbitrarily and without any legal basis that the three Spanish administrative acts of 15 October 2012, 18 September 2014 and of 6 September 2016 did not constitute the issue of a driving licence within the meaning of article 2 (1) of Directive 2006/126/EC, but an extension of the original driving licence of 21 October 1992. Likewise, there was no legal basis for the assumption that, when a driving licence is renewed, any existing irregularity was transferred to the current driving licence. The Court of Justice of the European Union (CJEU) had not ruled to that effect either. The competence to decide whether he had regained fitness to drive laid solely with the Spanish authorities. The German authorities were not allowed to review the Spanish decision.

11 The defendant opposes the appeal on points of law and defends the appeal judgment.

II

12 The proceedings must be suspended and, in accordance with article 267 (3) of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling must be obtained from the Court of Justice of the European Union on the question set out in the decision's operative part. Due to the primacy of application of EU law, it is on the interpretation of Directive 2006/126/EC that it depends, whether the action is successful and whether the claimant is entitled to drive category A and B motor vehicles in Germany under his driving licence which was renewed in Spain. In the proceedings on the appeal on points of law, he has limited his request to the vehicle categories A and B.

13 1. National law
Section 29 (1) first sentence of the Ordinance on the Admission of Persons to Road Traffic - Driver Licensing Ordinance (FeV, Fahrerlaubnis-Verordnung) - of 13 December 2010 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1980), as relevant and last amended by article 1 of the Fourth Ordinance Amending the Driver Licensing Ordinance of 4 July 2019 (BGBl. I p. 1056) stipulates:
"Holders of a foreign driving licence may, to the extent entitled by their licence, drive motor vehicles in Germany if they do not have a normal residence within the meaning of section 7 here."

14 This provision is applicable in the present case as, according to the findings of the Court of Appeal, which were not challenged by the defendant and are therefore binding (see section 137 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)), the claimant does not have his normal residence within the meaning of section 7 FeV and article 12 (1) of Directive 2006/126/EC in Germany.

15 As an exception to the recognition of foreign driving licences, section 29 (3) first sentence no. 3 FeV provides:
"The right under subsection 1 shall not apply to holders of foreign driving licences who have had the right to drive on national territory withdrawn provisionally or with final and binding effect by a court or which has been withdrawn by immediately enforceable or by legally binding decision by an administrative authority, who have been refused a driving licence with legally binding effect or who have not had their right to drive withdrawn merely because they have since renounced to the right to drive".

16 The claimant's Spanish driving licence was withdrawn in Germany with final and binding effect by a penal order on account of his drink-driving while having a blood alcohol concentration of 2.12 per mille on 12 December 2008, causing a withdrawal of his right to make use of the licence in the national territory (section 69b (1) first sentence of the German Criminal Code (StGB, Strafgesetzbuch)). Pursuant to section 69b (1) second sentence StGB, the right to drive motor vehicles in Germany lapses upon the decision becoming final and binding.

17 The entry recording the withdrawal of the right to drive in the Register of Driver Fitness (sections 28 et seqq. of the Road Traffic Act (StVG, Straßenverkehrsgesetz)) has not yet been deleted from there, which would have caused the end of the exclusion from the right to drive under the licence within the national territory as provided for in section 29 (3) first sentence no. 3 FeV. Section 29 (3) third sentence FeV stipulates:
"First sentence no. 3 and 4 shall only apply to an EU or EEA driving licence if the measures referred to therein are entered in the Register of Driver Fitness and if they have not been deleted in accordance with section 29 of the Road Traffic Act."

18 As regards reissue of the right to make use of the driving licence in Germany, section 29 (4) FeV in conjunction with section 3 (6) StVG provides:
"The right to make use of a foreign driving licence on national territory following a decision referred to in subsection 3 no. 3 and 4 shall be granted on application, if the grounds for withdrawal no longer exist."

19 Section 3 (6) StVG stipulates:
"The provisions on the reissue of a driving licence after previous withdrawal or previous renunciation, shall apply mutatis mutandis to granting persons with normal residence outside of Germany the right to make use of a foreign driving licence on national territory after previous withdrawal or previous renunciation."

20 Accordingly, the claimant, due to his drink-driving with a blood alcohol concentration of 2.12 per mille, would have to produce a - positive - medical-psychological expert report as set out in section 13 first sentence no. 2 (c) FeV. This provision reads as follows:
"In order to prepare decisions to issue or renew a driving licence or to impose restrictions or conditions, the driver licensing authority shall order
…
2. a medical-psychological expert report to be produced, if
…
c) a vehicle was driven in road traffic with a blood alcohol concentration of 1.6 per mille or more or a breath alcohol concentration of 0.8 mg/l or more"

21 The claimant did not provide such a medical-psychological expert report.

22 2. EU law - Principle of mutual recognition of EU driving licences (article 2 (1) of Directive 2006/126/EC)
Due to the primacy of application of EU law, the claimant would, under the principle of mutual recognition of driving licences issued by the Member States as set out in article 2 (1) of Directive 2006/126/EC, be entitled to drive motor vehicles in categories A and B in Germany under his Spanish driving licence, last renewed on 6 September 2016 and valid until 22 October 2021, even without meeting those requirements which must be observed under German driving licence law, if the obligation to recognise also applied to the renewal of a driving licence in the aforementioned categories pursuant to article 7 (3) second subparagraph of Directive 2006/126/EC.

23 The essential question is then, to what extent the principle of recognition under EU law set out in article 2 (1) of Directive 2006/126/EC also applies in case where a driving licence is renewed under article 7 (3) second subparagraph of Directive 2006/126/EC by the Member State of normal residence after the Member State of stay had withdrawn the right from the person concerned, to make use of his or her driving licence on its territory on grounds of drink-driving and hence unfitness to drive.

24 a) On the basis of the information shown on the claimant's current valid and previous driving licences concerning their validity, there is no doubt that his driving licence issued in Spain on 6 September 2016 and valid until 22 October 2021 was issued on the basis of article 7 (3) of Directive 2006/126/EC, that is to say, that it was a renewal of a driving licence on expiry of its validity within the meaning of said provision (FR: "renouvellement du permis de conduire au moment où sa validité administrative vient à échéance"; DE: "Erneuerung eines Führerscheins bei Ablauf der Gültigkeitsdauer"). The defendant and the two lower courts mutually concurred on this point.

25 b) article 7 (3) second subparagraph of Directive 2006/126/EC provides that Member States may, when renewing driving licences in categories AM, A, A1, A2, B, B1 and BE, require an examination applying the minimum standards of physical and mental fitness for driving set out in Annex III (FR: "Les États membres peuvent imposer, lors du renouvellement des permis de conduire des catégories AM, A1, A2, A2, B, B1 et BE, un contrôle des normes minimales concernant l'aptitude physique et mentale à la conduite telles qu'exposées à l'annexe III."; DE: "Die Mitgliedstaaten können bei der Erneuerung von Führerscheinen der Klassen AM, A, A1, A2, B, B1 oder BE von einer Prüfung der Mindestanforderungen an die körperliche und geistige Tauglichkeit für das Führen dieser Fahrzeuge gemäß Anhang III abhängig machen."). It follows from this provision that, when renewing driving licences in these categories, Member States are entitled ("können", "peuvent imposer", "may require"), but are not obliged, under EU law, to provide for an examination of the fitness to drive.

26 The Senate is of the opinion that no. 14 (alcohol) of Annex III to Directive 2006/126/EC (minimum standards of physical and mental fitness for driving a power-driven vehicle) is unlikely to change the outcome of the interpretation that article 7 (3) second subparagraph of Directive 2006/126/EC does merely allow Member States to carry out examinations, but does not impose such obligation upon them, when renewing driving licences in the abovementioned categories of vehicles. By virtue of no. 14.1 of Annex III, which contains the rules applicable to drivers of motor vehicles in group 1 (vehicles in categories A, A1, A2, AM, B, B1 and BE), driving licences shall not be issued to, or renewed for, applicants who are dependent on alcohol or unable to refrain from drinking and driving. It is true that no 14.1. of Annex III explicitly refers to driving licence renewal in addition to its issue. However, the "may rule" laid down by the issuer of the Directive in article 7 (3) second subparagraph of Directive 2006/126/EC in relation to the categories of vehicles referred to therein would be meaningless in that regard and would be ineffective if an obligation to carry out a test of fitness to drive, covering all cases of driving licence renewal, resulted from no. 14.1 of Annex III to the Directive. One cannot suppose that the issuer of the Directive intended to adopt such a self-contradictory rule. Rather, according to the systematic interpretation, article 7 (3) second subparagraph of Directive 2006/126/EC as the more specific provision, is likely to take precedence over no. 14.1 of Annex III to the Directive and, therefore, in cases where a driving licence in the categories listed therein is renewed, the re-examination of the "minimum standards of physical and mental fitness for driving a power-driven vehicle" set out in Annex III is likely to be left to the discretion of the Member State concerned.

27 If, where a driving licence is renewed, article 7 (3) second subparagraph of Directive 2006/126/EC merely establishes under EU law the possibility but not the obligation to examine, the renewal of a driving licence in those categories under article 7 (3) second subparagraph of Directive 2006/126/EC is fundamentally different from the issue of a driving licence in accordance with the requirements set out in article 7 (1) (a) of this Directive. Under this provision, a driving licence shall be issued only to applicants 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.

28 c) In the claimant's case, an obligation under EU law to have his driving licence recognised in Germany should not likely be denied on the ground that he had his Spanish driving licence, issued on 22 October 2007, which had been the subject of a final and binding withdrawal of his right to make use of it in Germany, returned to him in Spain during an ongoing disqualification period and, moreover, also during the disqualification period, had a new driving licence with an unchanged validity until 22 October 2012 issued to him in Spain. Although the Court of Justice of the European Union in its case-law recognises that a Member State is not precluded from refusing to recognise a new driving licence issued by another Member State during a disqualification period to a person to whom a measure on the withdrawal of a driving licence in conjunction with the determination of a disqualification period for the reissue of a driving licence has been applied on its territory (see, inter alia, CJEU, judgment of 19 February 2009 - C-321/07 [ECLI:EU:C:2009:104], Schwarz - para. 83 with further references). However, the potential obligation to recognise in Germany, which is the subject of the present action, is not linked to the driving licence returned during the disqualification period and also not to the claimant's old driving licence issued on 23 November 2009, the validity of which has expired in each case, but to his now valid Spanish driving licence issued there on 6 September 2016. As regards the substantive entitlement shown therein, this driving licence goes back to the corresponding driving licences issued on 21 October 1992, which does not reveal any breach of the residence requirement under EU law and which was not issued during an ongoing disqualification period either.

29 Contrary to what the Court of Appeal held (see printed judgment p. 21) and what the defendant had also meant, it should likewise not be possible to counter a possible obligation to recognise the renewed driving licence by claiming that the renewal of a driving licence under article 7 (3) of Directive 2006/126/EC did not constitute but the issue of a replacement document. Renewal within the meaning of this provision does not merely involve the exchange of the document embodying a substantive entitlement as in the case of a replacement, for instance as a result of loss or theft, under article 11 (5) of Directive 2006/126/EC. On the contrary, the renewal of a driving licence under article 7 (3) of Directive 2006/126/EC entails an extension of the substantive entitlement to drive motor vehicles in the categories concerned. This is precisely its spirit and purpose ("renewal of a driving licence when their administrative validity expires").

30 d) In the Senate's opinion, there are many reasons indicating that, where a driving licence in one of the categories referred to in article 7 (3) second subparagraph of Directive 2006/126/EC is renewed after the holder was withdrawn the right to make use of his or her driving licence in the territory of the Member State of stay on grounds that he or she was found to be unfit to drive there, an obligation to recognise the licence without any formality, such as can be assumed to apply in accordance with the established case-law of the Court of Justice of the European Union when a driving licence is issued subject to verification of the harmonised minimum requirements set out in article 7 (1) of Directive 2006/126/EC, does not exist.

31 The case-law of the Court of Justice of the European Union has clarified that driving licences issued in compliance with the residence requirement after the domestic disqualification period determined with final and binding effect had expired, must be recognised without any formality. Even where a Member State makes the reissue of driving licences subject to stricter requirements under its domestic rules, it must therefore recognise the EU driving licence issued by another Member State in compliance with the residence requirement after the disqualification period had expired (see, inter alia, CJEU, judgment of 26 June 2008 - C-329/06 et al. [ECLI:EU:C:2008:366], Wiedemann and Funk - para. 54). In such cases, the unfitness to drive is remedied by the test of fitness to drive carried out by another Member State when the later driving licence is issued (CJEU, judgments of 19 February 2009 - C-321/07, Schwarz - para. 92 et seq. and of 26 April 2012 - C-419/10 [ECLI:EU:C:2012:240], Hofmann - para. 51). At the same time, the Member State which had withdrawn from the person concerned of the right to use his or her driving licence on its territory based on article 11 (4) second subparagraph of Directive 2006/126/EC on the ground that he or she was unfit to drive, is no longer authorised to verify whether he or she has regained his or her fitness to drive and is therefore permitted to drive motor vehicles there again (on the authority of the Member State depriving of the right to drive on its territory see, CJEU, judgment of 23 April 2015 - C-260/13 [ECLI:EU:C:2015:257], Aykul - para. 74 et seqq.)

32 In its case-law, the Court of Justice of the European Union has repeatedly stressed the link between minimum requirements harmonised by EU law for the issue of a driving licence, verification whether those requirements have been met by the issuing Member State and the obligation to recognise a driving licence issued in another Member State. The imposition by virtue of Directive 2006/126/EC of an obligation of mutual recognition of driving licences was a result of the mandatory minimum requirements laid down in that Directive for the issue of a Community driving licence (see most recently CJEU, judgment of 28 February 2019 - C-9/18 [ECLI:EU:C:2019:148], Meyn - para. 28).

33 In the Senate's opinion, the case-law of the Court of Justice of the European Union was therefore likely to suggest that the existence of an obligation to recognise under article 2 (1) of Directive 2006/126/EC depends on whether, in the specific case, EU law provides for the verification of the harmonised minimum requirements set out in article 7 (1) of Directive 2006/126/EC when issuing the driving licence. This is shown by the judgment of the Court of Justice of the European Union of 19 February 2009 - C-321/07, Schwarz -. Admittedly, as stated there with reference to the case-law already referred to above, the unfitness to drive motor vehicles, punished by withdrawal of the driving licence in one Member State, was remedied by the test of fitness to drive carried out by another Member State when the later driving licence was issued (CJEU, judgment of 19 February 2009, see above, para. 92). In the present case, however, the claimant was not subjected to an examination of his fitness to drive motor vehicles ordered by the authorities of another Member State. Consequently, no evidence had been provided that the holder was fit to drive motor vehicles and to move in road traffic in accordance with the requirements as to fitness - in the case at the time, those set out in Directive 91/439/EEC (CJEU, judgment of 19 February 2009, see above, para. 95). The aforementioned judgment of the Court of Justice of the European Union of 28 February 2019 - C-9/18, Meyn - confirms this connection between harmonised minimum requirements provided for by EU law, that have to be verified, and the resulting obligation to recognise in relation to Directive 2006/126/EC (CJEU, judgment of 28 February 2019, see above, para 28 et seqq.) There, the rejection of an obligation to recognise is based on the argument that the aim of Directive 2006/126/EC was not to establish the requirements to be met for the exchange of driving licences from third countries, since such prerogative fell solely within the authority of the Member States, and accordingly those Member States could not be bound by the assessments made by other Member States in this respect (CJEU, judgment of 28 February 2019, see above, para. 31). Consequently, in order to ensure that the road safety grounds referred to in Directive 2006/126/EC were not to be undermined, a Member State could not be subject to an obligation to recognise a driving licence - the holder of which has his or her normal residence in its territory - which has been issued by another Member State, without a test of fitness to drive, in exchange for a driving licence issued by another Member State on the sole ground that the latter driving licence was for its part exchanged for a driving licence issued by a third country (CJEU, judgment of 28 February 2019, see above, para. 32).

34 As has been shown, the renewal of the claimant's Spanish driving licence, which is in the midst of this case, also does not constitute the issue of a driving licence in respect of which the issuing Member State was required to carry out a comprehensive test of fitness to drive in accordance with article 7 (1) of Directive 2006/126/EC.

35 In such cases of subsequent renewal of driving licences in the Member State of normal residence, the Senate thus takes the view that the authority of the Member State withdrawing from the person concerned the right to make use of his or her driving licence on its territory on the basis of article 11 (4) second subparagraph of Directive 2006/126/EC on the ground that he or she was unfit to drive, remains - as recognised by the Court of Justice of the European Union - that of verifying if the person concerned is once again fit to drive (see on this, CJEU, judgment of 23 April 2015 - C-260/13, Aykul - para. 74 et seqq.).

36 e) In the view of the Senate, the fact that Spanish driver licensing law - as is apparent from the appeal judgment - also provides for a health test when a driving licence is renewed for vehicles in category A and B, and thus within the scope of application of article 7 (3) second subparagraph of Directive 2006/126/EC, is unlikely to lead to a different conclusion. The Court of Appeal has not made more detailed factual findings on the subject and scope of this health test.

37 In the view of the Senate, the interpretation that such rules concerning the health standards for the renewal of a driving licence adopted by an individual Member State do not give rise to an obligation to recognise such licence under article 2 (1) of Directive 2006/126/EC, already follows from the fact that, according to the case-law of the Court of Justice of the European Union the mutual recognition of driving licences without any formality required thereunder, is based on EU law prescribing harmonised minimum requirements for the fitness to drive motor vehicles, which are binding on all Member States, amongst others, in terms of health, which the applicant for a driving licence must meet and compliance with which the Member State of normal residence is required to verify when issuing a driving licence. As demonstrated, this is not the case under article 7 (3) second subparagraph of Directive 2006/126/EC when renewing driving licences in the categories referred to therein.

38 In the Senate's view, recognition without any formality would also be incompatible with the need for the authorities and courts of the Member State of stay - in each individual case - to look into the question of the precise content and scope of the medical examination which the Member State of normal residence renewing a driving licence may provide for based on article 7 (3) second subparagraph of Directive 2006/126/EC. These provisions can vary considerably from one Member State to another. Such a case-by-case consideration would however be necessary to ensure road safety, which is the objective of the harmonised minimum requirements under article 7 (1) of Directive 2006/126/EC in conjunction with Annex III thereto.

Judgment of 15 September 2021 -
BVerwG 3 C 3.21ECLI:DE:BVerwG:2021:150921U3C3.21.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 15 September 2021 - 3 C 3.21 - para. 16.

Recognition of a driving licence in categories A and B renewed in another Member State

Headnote

Section 3 (6) StVG in conjunction with section 13 first sentence no. 2 (c) and section 11 (8) first sentence FeV must be interpreted in conformity with EU law. Where the holder of a driving licence in categories A and B, renewed in the Member State of his or her normal residence, provides evidence that his or her fitness to drive such motor vehicles was examined there when his or her driving licence was renewed and that such examination corresponds to what must be successfully completed under German driver licensing law for obtaining a positive medical-psychological expert report, the driver licensing authority may not, when deciding on the right of the person concerned to make use of the right to drive in Germany again, infer the person's unfitness to drive from failure to produce the medical-psychological expert report required of it in accordance with section 11 (8) fist sentence 1 FeV. Providing such evidence is equivalent to presenting a positive medical-psychological expert report.

  • Sources of law
    Driver Licensing OrdinanceFeV, Fahrerlaubnis-Verordnungsections 11 (8) first sentence, 13 first sentence no. 2 (c) and (d), section 29 (3) first sentence no. 3 and third sentence, (4)
    Road Traffic ActStVG, Straßenverkehrsgesetzsections 3 (6), 29 (1) second sentence no. 3 (a) and (5) first sentence, section 65 (3) no. 2
    Directive 2006/126/ECarticles 2 (1), 7 (1) and (3), 11 (4) second subparagraph

Summary of the facts

The claimant seeks a declaration stating that he is entitled to drive motor vehicles in Germany under his Spanish driving licence for vehicles in categories A and B.

The claimant is a German national. He has had his normal residence within the meaning of section 7 of the Ordinance on the Admission of Persons to Road Traffic - Driver Licensing Ordinance (FeV, Verordnung über die Zulassung von Personen zum Straßenverkehr - Fahrerlaubnis-Verordnung) and article 12 (1) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ L 403 p. 18) in Spain since 1992 and an additional residence in K. In Germany he was convicted for driving under the influence of alcohol in 1987, 1990, 1995 and 2000; therefore, he had his German right to drive withdrawn once more in 1990. On 21 October 1992, the claimant was issued with a driving licence in Spain which, amongst others, included vehicles in categories A and B. Its validity had been extended several times there.

On 12 December 2008, the claimant was driving a motor vehicle during a temporary stay in Germany while having a blood alcohol concentration of 2.12 per mille. Therefore, he was sentenced to a fine for driving under the influence of alcohol by penal order (Strafbefehl) of 20 January 2009, final and binding since 24 January 2009, and he had his right to drive motor vehicles in Germany under his Spanish right to drive withdrawn on the ground that he was unfit to drive. A disqualification period of 14 months was determined for obtaining a new right to drive; it ended on 19 March 2010. His driving licence for vehicles in categories A, A1 and B issued in Spain on 22 October 2007 was confiscated and sent to the competent Spanish authorities. They returned the document to the claimant in the course of the disqualification period.

On 23 November 2009 - and thus also during the disqualification period - the claimant was issued in Spain with a new driving licence for vehicles in categories A1, A2, A and B, which, like his previous driving licence, was valid until 22 October 2012. On 15 October 2012, he obtained a driving licence in Spain for vehicles in categories A1, A2, A and B valid until 22 October 2014, on 18 September 2014, he obtained a driving licence for vehicles in categories AM, A1, A2, A and B valid until 22 October 2016 and on 6 September 2016, he obtained his current driving licence for vehicles in categories AM, A1, A2, A and B valid until 22 October 2021. On the driving licences, 21 October 1992 is indicated as the commencing date of validity for the said vehicle categories.

The claimant's application of 20 January 2014 to have "his Spanish right to drive ... of 21 October 1992, valid until 22 October 2014" recognised for the federal territory, was rejected by the defendant. The claimant had his Spanish right to drive withdrawn for drink-driving by penal order of 20 January 2009. After the expiry of the disqualification period, he had not acquired a new right to drive in Spain which could be recognised in Germany, rather, he was simply issued with replacement documents. Since the claimant had not produced the medical-psychological expert report which was rightly requested from him in order to clarify existing doubts regarding his fitness to drive, one could conclude that he was unfit to drive. The Regional Commissioner's Office (Regierungspräsidium) of K. rejected the claimant's objection (Widerspruch) on the same grounds.

His action remained unsuccessful at the lower instances.

By decision of 10 October 2019 - 3 C 20.17 - (...) the Senate suspended the proceedings and obtained a preliminary ruling from the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) pursuant to article 267 (3) of the Treaty on the Functioning of the European Union - TFEU - (CJEU, judgment of 29 April 2021 - C-47/20 [ECLI:EU:C:2021:332] -).

Following this, the Senate dismissed the claimant's appeal on points of law.

Reasons (abridged)

11 (...) The judgment of the Court of Appeal is not based on a violation of law that is subject to an appeal on points of law (section 137 (1) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The claimant is not entitled to a declaration stating that he is authorised to drive motor vehicles in Germany under his Spanish driving licence for vehicles in categories A and B. Under German driver licensing law, such authorisation is precluded by the fact that the right to make use of his Spanish right to drive in Germany was withdrawn by a final and binding decision for drink-driving while having a blood alcohol concentration of 2.12 per mille (section 29 (3) first sentence 1 no. 3 FeV). The corresponding entry has neither been deleted from the Register of Driver Fitness (section 29 (3) third sentence FeV) nor has the claimant submitted a positive medical-psychological expert report to the driver licensing authority in accordance with section 3 (6) of the Road Traffic Act (StVG, Straßenverkehrsgesetz) in conjunction with section 20 (1) first sentence and section 13 first sentence no. 2 (c) FeV (1.). Nor does anything to the contrary follow from the principle of recognition under EU law and the fact that the claimant's driving licence was renewed several times in Spain after the expiry of the disqualification period pursuant to article 7 (3) second subparagraph of Directive 2006/126/EC. As the Court of Justice ruled in its judgment of 29 April 2021 - C-47/20 [ECLI:EU:C:2021:332] - articles 2 (1) and 11 (4) second subparagraph of Directive 2006/126/EC do not preclude the authorities of a Member State from refusing, in such a situation, to recognise the validity of a driving licence in categories A and B which has been renewed in another Member State (2.). The conditions laid down in section 3 (6) StVG in conjunction with section 13 first sentence no. 2 (c) FeV, which a holder of a driving licence who has been withdrawn the right to drive a motor vehicle in Germany on account of drink-driving while having a blood alcohol concentration of 1.6 per mille or more during a temporary stay in Germany must fulfil in order to reacquire this right, do not exceed the limits of what is necessary to achieve the objective pursued by Directive 2006/126/EC - the improvement of road safety - when interpreted in conformity with EU law (3.).

12 The legal assessment of the request for a declaratory judgement sought by the claimant is governed by the legal provisions applicable at the time of the decision on the appeal on points of law. Accordingly, the Road Traffic Act in the version promulgated on 5 March 2003 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 310, corrected p. 919), at the relevant time as last amended by article 4 of the Act of 7 May 2021 (BGBl. p. 850), the Ordinance on the Admission of Persons to Road Traffic (Driver Licensing Ordinance) of 13 December 2010 (BGBl. I p. 1980) as last amended by article 12 of the Act of 12 July 2021 (BGBl. I p. 3091) and Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ L 403 p. 18) as last amended by Commission Directive (EU) 2020/612 of 4 May 2020 amending Directive 2006/126/EC of the European Parliament and of the Council on driving licences (OJ L 141 p. 9) apply.

13 1. The claimant, who, according to the factual findings of the Court of Appeal, does not have his normal residence within the meaning of section 7 FeV and article 12 (1) of Directive 2006/126/EC in Germany but in Spain, cannot base his request for a declaratory judgment on section 29 (1) first sentence FeV; according to this provision, holders of a foreign right to drive may, to the extent entitled by their licence, drive motor vehicles on national territory if they do not have a normal residence within the meaning of section 7 FeV here. The right the claimant seeks to be granted is precluded by section 29 (3) first sentence no. 3 FeV, which stipulates that the right under subsection 1 does not apply, inter alia, to holders of a foreign right to drive who have had the right to drive on national territory withdrawn by a court with final and binding effect. This is the case with the claimant; on account of his drink-driving on 12 December 2008 while having a blood alcohol concentration of 2.12 per mille and the resulting unfitness to drive inferred by the criminal court, his Spanish right to drive was withdrawn by final and binding penal order causing a withdrawal of his right to make use of this right to drive on national territory (section 69b (1) first sentence of the German Criminal Code (StGB, Strafgesetzbuch)); under section 69b (1) second sentence StGB, the right to drive motor vehicles on national territory lapses upon the decision becoming final and binding.

14 The corresponding entry in the Register of Driver Fitness has not yet been deleted at the relevant time of the decision on the appeal on points of law. According to section 29 (3) third sentence FeV, section 29 (3) first sentence no. 3 and 4 shall only apply to a right to drive obtained within the EU or EEA if the measures referred to therein are entered in the Register of Driver Fitness and if they have not been deleted in accordance with section 29 StVG. Under section 29 (5) first sentence StVG, the entry relevant in this case is due to be deleted on 24 January 2024; under this provision, the ten year deletion period (section 65 (3) no. 2 fourth sentence StVG in conjunction with section 29 (1) second sentence no. 3 (a) StVG) for the withdrawal of a right to drive on grounds of unfitness does not begin until the right to drive is obtained or a new right to drive is obtained, but no later than five years after the decision adversely affecting the holder of the right has become final and binding. The penal order issued against the claimant became final and binding on 24 January 2009.

15 The claimant did also not obtain a new right to drive motor vehicles in Germany with his Spanish driving licence; he is also not entitled to reacquire this right. According to section 29 (4) FeV, the right to make use of a foreign right to drive on national territory following a decision referred to in subsection 3 no. 3 and 4 shall be obtained on application, if the grounds for withdrawal no longer exist. In this regard, section 3 (6) StVG stipulates that, for obtaining the right to make use of a foreign right to drive on national territory after previous withdrawal, the provisions on obtaining a new right to drive shall apply mutatis mutandis to persons with normal residence abroad. Pursuant to section 20 (1) first sentence in conjunction with section 13 first sentence no. 2 (c) FeV, the claimant must produce a - positive - medical-psychological expert report after drink-driving while having a blood alcohol concentration of 2.12 per mille; under this provision, the driver licensing authority orders that a medical-psychological expert report must be produced if a vehicle was driven in road traffic while having a blood alcohol concentration of 1.6 per mille or more. If the person concerned refuses to be examined or fails to provide the driver licensing authority with the required expert report by the time limit set, the driver licensing authority can then infer in its decision that the person concerned is unfit (section 11 (8) first sentence FeV). The claimant has so far failed to provide the defendant with a medical-psychological expert report, contrary to the request made to him.

16 2. Nor can the claimant derive a right to drive motor vehicles in categories A and B in Germany from the fact that his Spanish driving licence has (also) been renewed in Spain several times in accordance with article 7 (3) second subparagraph of Directive 2006/126/EC, most recently on 6 September 2016 until 22 October 2021, after the expiry of the disqualification period (see on the power to refuse to recognise a new driving licence issued by another Member State while the disqualification period was still running: CJEU, judgment of 19 February 2009 - C-321/07 [ECLI:EU:C:2009:104], Schwarz - para. 83 with further references, there on Directive 91/439/EEC, which was replaced by Directive 2006/126/EC). In this respect, the right asserted by the claimant does not result from the primacy of application of EU law and the principle to be inferred from article 2 (1) of Directive 2006/126/EC, in accordance with the established case-law of the Court of Justice, that driving licences issued by the Member States are to be mutually recognised without any formality (see, inter alia, CJEU, judgments of 23 April 2015 - C-260/13 [ECLI:EU:C:2015:257], Aykul - para. 45 and of 28 October 2020 - C-112/19 [ECLI:EU:C:2020:864], Kreis Heinsberg - para. 25, each with further references).

17 On that point, the Court of Justice stated in the preliminary ruling sought in the present proceedings (CJEU, judgment of 29 April 2021 - C-47/20 -):
"...
(42) Since, pursuant to the second subparagraph of article 7 (3) of Directive 2006/126, Member States are not required, when renewing a driving licence in categories AM, A, A1, A2, B, B1 and BE, to carry out an examination of the minimum standards of physical and mental fitness for driving as set out in Annex III to that Directive, the Member State in whose territory the holder of a licence for those categories that has only been renewed wishes to drive, after having been deprived, following the commission of a road-traffic offence in that territory, of the right to drive in that territory, may refuse, under the exception provided for in the second subparagraph of article 11 (4) of Directive 2006/126 and, therefore, by derogation from the principle of mutual recognition of licences referred to in paragraph 29 of this judgment, to recognise the validity of that licence where, after the expiry of any period of prohibition from applying for a new licence, the conditions laid down by national law for the restoration of the right to drive in that territory are not satisfied.
(43) In such circumstances, the obligation, laid down by Directive 2006/126, of mutual recognition by Member States of the validity of driving licences in categories AM, A, A1, A2, B, B1 and BE issued by other Member States cannot apply of its own motion to renewals of those driving licences, since the conditions for renewal may differ between Member States.
(44) While such an obligation of mutual recognition cannot depend on the verification, by the Member State in whose territory the holder of a driving licence issued and renewed in another Member State is temporarily staying, of the conditions under which that driving licence has been renewed, it must however be open to the licence holder who, after the expiry of any period of prohibition from applying for a new licence, wishes to have the right to drive in the first Member State again to provide evidence to the authorities of that Member State that his or her fitness to drive in accordance with the provisions of Annex III to Directive 2006/126 was checked when his or her licence was renewed in the second Member State and that, therefore, in accordance with the case-law cited in paragraph 35 of this judgment, the unfitness to drive established by the first Member State was lifted by the effect of that renewal, provided however that the purpose of the check corresponds with that of the check ordered by the legislation of that same Member State.
(45) It follows from the foregoing considerations that article 2 (1) and article 11 (4) second subparagraph of Directive 2006/126 do not, in principle, preclude the authorities of a Member State from refusing, in a situation such as that at issue in the main proceedings, to recognise the validity of a driving licence in categories A and B merely renewed in another Member State, pursuant to article 7 (3) of Directive 2006/126, the first Member State thus being competent to lay down the conditions with which the holder of the driving licence must comply in order to recover the right to drive in its territory.
(46) It is clear, in that regard, that allowing, in such a situation, the authorities of a Member State to make the recognition of the validity of a driving licence issued and renewed in another Member State subject to certain conditions, on account of the commission of a road-traffic offence in their territory, is liable to reduce the risk of road-traffic accidents occurring and thus meets the objective consisting in improving road safety pursued by Directive 2006/126, as recital 2 thereof recalls.
(47) It is however for the referring court to examine whether, in accordance with the principle of proportionality, the rules, provided for by the legislation of the first Member State, laying down the conditions with which the holder of a driving licence deprived as a result of unlawful conduct of the right to drive in its territory in which he or she was staying temporarily must comply in order to recover the right to drive in that territory, do not exceed the limits of what is appropriate and necessary to attain the objective pursued by Directive 2006/126, consisting in improving road safety (see, to that effect, judgment of 23 April 2015 - C-260/13 [ECLI:EU:C:2015:257], Aykul - para. 78), which would be the case in particular if they precluded that licence holder from being able to provide evidence that his or her fitness to drive, after the expiry of any period of prohibition from applying for a new licence, was checked in accordance with the provisions of Annex III to Directive 2006/126 when his or her licence was renewed in his or her Member State of normal residence and that the purpose of that check corresponds with that of the check ordered by the legislation of the first Member State.
..."

18 3. The required assessment of proportionality of the provisions of the Road Traffic Act and the Driver Licensing Ordinance on reacquiring the right to make use of a driving licence issued by another Member State, after unlawful conduct in Germany, shows that those provisions, when interpreted in conformity with EU law, as called for in view of the judgment of 29 April 2021, do not exceed the limits of what is appropriate and necessary in order to achieve the objective pursued by Directive 2006/126/EC, namely the improvement of road safety.

19 a) According to the provisions laid down in section 3 (6) StVG as well as section 29 (3) first sentence no. 3 and third sentence FeV, which - as shown at the beginning - apply after the final and binding withdrawal of the claimant's right to drive a motor vehicle in Germany on account of drink-driving while having a blood alcohol concentration of 2.12 per mille, the exclusion from the right to drive in Germany does on the one hand cease to have effect when the corresponding entry in the Register of Driver Fitness has been deleted. In the present case, as shown, the entry is due for deletion 15 years after the penal order has become final and binding.

20 It is not necessary to decide whether this deletion period would be appropriate and necessary in itself (affirmatively CJEU, judgment of 23 April 2015 - C-260/13, Aykul - para. 81 on the deletion period of five years relevant in the proceedings at that time). This period is to be evaluated in a synopsis with the other legal options open to the person concerned to reacquire the right to drive motor vehicles in Germany with his driving licence issued in Spain. In its judgment of 23 April 2015, the Court of Justice took - with regard to the review of the appropriateness and necessity conferred upon the Member State - into account that the person concerned had the possibility to apply for a new right to drive motor vehicles in Germany with the right to drive obtained in the other Member State - at that time Austria (CJEU, judgment of 23 April 2015, see above, para. 80).

21 Under section 29 (4) FeV, the person concerned has the option - regardless of and already before the deletion of the entry on the withdrawal from making use of the right to drive in Germany - to apply for obtaining a (new) right to make use of his foreign right to drive on national territory following one of the decisions mentioned in section 29 (3) first sentence no. 3 and 4 FeV. According to this provision, the (new) right to drive shall be obtained if the reasons for the withdrawal - in this case alcohol abuse in the sense of a failure to separate alcohol consumption impairing the ability to drive from driving a vehicle in road traffic (see no. 8.1 of Annex 4 to the Driver Licensing Ordinance) - have ceased to exist.

22 Following the withdrawal of the right to drive a motor vehicle in Germany on account of drink-driving while having a blood alcohol concentration of 1.6 per mille and more, section 3 (6) StVG in conjunction with section 13 first sentence no. 2 (c) and section 11 (8) first sentence FeV require that the person concerned, who wishes to make use of a driving licence issued in another Member State in Germany again, submits to the driver licensing authority a positive medical-psychological expert report from an officially recognised driver fitness test centre (see section 11 (3) FeV).

23 Pursuant to no. 8.2 of Annex 4 to the Driver Licensing Ordinance, one may assume fitness to drive after the end of (alcohol) abuse; it may be deemed to exist within the meaning of this provision when the change in drinking behaviour has been consolidated. Thus, the subject matter of a medical-psychological examination under the requirements of the relevant German driver licensing law (see CJEU, judgment of 29 April 2021 - C-47/20 - para. 32 and 45) is also and precisely the expert examination of whether the person concerned has undergone a sufficiently consolidated change in his or her drinking behaviour.

24 In the deciding Senate's view, in order to prevent the threats to road safety resulting from the fact that drivers who are unfit to drive due to alcohol consumption participate in road traffic, no objection can be made, measured against the principle of proportionality, to the fact that a corresponding examination of the person concerned is carried out before he or she reacquired the right to drive motor vehicles in Germany. The very fact that the claimant had driven a motor vehicle in the past while having a blood alcohol concentration clearly exceeding the limit of 1.6 per mille specified in section 13 first sentence no. 2 (c) FeV, proves that he - at least at that time - belonged to the (risk) group of motorists that are more than others used to drink alcohol, which at the same time constitutes the increased risk of new unlawful conduct and thus, in the interest of road safety, a corresponding need for clarification and examination (see on the connection between a high blood alcohol level in a case involving drink-driving and the existence of a risk of repetition Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 17 March 2021 - 3 C 3. 20 - (...) para. 18 et seqq.). Not least, no. 14.1 of Annex III to Directive 2006/126/EC (Minimum standards of physical and mental fitness for driving a motor vehicle), which contains the requirements for driving motor vehicles in categories A, A1, A2, AM, B, B1 and BE with regard to alcohol, also stipulates that applicants who are dependent on alcohol or who are unable to separate driving from alcohol consumption will neither be obtained a right to drive nor will their right to drive be renewed.

25 b) If interpreted in conformity with EU law, German driver licensing law does not preclude the holder of a driving licence renewed in another Member State from providing evidence that his or her fitness to drive has been examined in the Member State of his or her normal residence upon renewal of his or her driving licence after the expiry of any disqualification period in accordance with Annex III to Directive 2006/126/EC and that such examination corresponds to that ordered by the German rules (see, on this criterion, CJEU, judgment of 29 April 2021 - C-47/20 - para. 47).

26 aa) In view of these statements by the Court of Justice in the judgment of 29 April 2021, section 3 (6) StVG in conjunction with section 13 first sentence no. 2 (c) and section 11 (8) first sentence FeV must however be interpreted in conformity with EU law. If the holder of the renewed driving licence in categories A and B provides evidence that his or her fitness to drive such motor vehicles was examined in the Member State of his or her normal residence when his or her driving licence was renewed and that this examination corresponds to that which must be successfully completed under German driver licensing law for obtaining a positive medical-psychological expert report, the driver licensing authority, in deciding on the right of the person concerned to make use of the right to drive in Germany again, may not rely on the failure to provide the medical-psychological expert report required by it under section 11 (8) first sentence FeV to infer unfitness to drive. Providing such evidence is equivalent to presenting a positive medical-psychological expert report. If the person concerned has undergone a corresponding expert examination of his or her fitness to drive when renewing his or her driving licence in the Member State of his or her normal residence, it must immediately come to his or her mind that he or she must assert and prove this to the driver licensing authority even without an explicit notification contained in the request to provide a medical-psychological expert report by such driver licensing authority. The request to produce a medical-psychological expert report does not need to contain such a notification.

27 bb) Even such an interpretation of the relevant provisions in conformity with EU law cannot, however, help the claimant to succeed with his request for a declaratory judgment. He did not even assert that the health examination he underwent in the Kingdom of Spain before renewing his driving licence also included the question, as in a medical-psychological examination, whether there had been a consolidated change in his drinking behaviour and whether he could again be deemed able to separate driving a motor vehicle and alcohol consumption impairing driving safety with sufficient certainty. This applies not only to his assertions in the courts responsible for finding the facts, but also to his opinion on the CJEU's judgment in the appeal proceedings on points of law. On the contrary, the claimant's counsel also proceeds from the assumption that the subject matter and standard of the health examination provided for in Spain is different; in his written statement of 23 August 2019, he concedes "that there is no selection procedure in the form of the medical-psychological examination in Spain anyway". Moreover, the Higher Administrative Court (Verwaltungsgerichtshof) has already found that the claimant has not produced any medical-psychological evidence whatsoever that would be suitable for plausibly documenting recovery of fitness to drive in any other way, i.e. other than by submitting a medical-psychological expert report from an officially recognised driver fitness test centre (printed judgment p. 31).