Driving license tourism
The term driving license tourism describes cases in which, after having withdrawn their driving license in their country of residence, they received a new driving license in another EU country, which they then used in the sense of mutual recognition. The issuing countries usually have more generous regulations. The legal inequality in the driving license law of the European member states was used by many of those affected after the withdrawal of their German driving license in order to benefit from a valid foreign driving license at short notice. The practice of recognition and circumvention of national law based on judgments of the ECJ no longer plays a role in practice today.
background
With driving license tourism, applicable law in Germany, in particular the aptitude test after serious or repeated traffic violations , was circumvented with reference to EU law. By acquiring a driving license in another European country, driving license tourists were able to evade the jurisdiction of the German driving license authorities. The laws of the respective issuing country apply to the issuing of the driving license. The traffic history available to the German authorities is generally not known to the other member states, as a uniform European register management does not yet exist.
The debate about the foreign driver's license has been conducted with great emotion for years, with supporters and opponents preferring to exchange ideas in various "MPU forums". Risks arose in particular in the case of “illegal acquisition” of the foreign driving license (violation of the principle of residence, forgeries). In such cases of clear legal abuse, the German driving license authorities have often issued subsequent prohibitions on use .
Legal position
National regulations
The assessment of fitness to drive is subject to the point of view and the legal norms of the respective issuing country and is therefore inconsistent. The driving ability is no longer principally from the perspective of the issuing State if it withdraws the license. In many cases, in addition to the revocation of the driver's license, the court also imposes a temporary ban during which no new driver's license can be issued.
In Germany, the re-issuance of the driving license is made dependent in most cases on the passing of a medical-psychological examination . In almost all other countries in Europe, however, the driver's license is issued immediately after the ban, without any further test steps. The criteria for issuing and withdrawing driving licenses have not yet been harmonized.
Cross-national regulations
Driving licenses legally issued in a European EU / EEA member state are valid throughout Europe. Withdrawal and renewal of the driving license are based on the national law of the issuing country. Prerequisites for the issue are the successful driving test or the transfer of an existing driving license from another country or the re-issuance of a previously withdrawn driving license within a certain period (in Germany for example 2 years) and a permanent residence in the respective member state for at least 185 days.
Until November 2006, every responsible driving license authority in another European member state was then entitled to issue a new driving license under sovereign law. Drivers who, from the point of view of one state, would have long had their driving license withdrawn, are still suitable for driving motor vehicles under the law of other states. This is also favored by the fact that the driver's biography (recorded previous history) is usually not known to the exhibitor country due to the lack of uniform registration.
Common European Regulation / Third Driving License Directive
The European third driving license directive came into effect on January 19, 2007. It must be implemented in the national law of the member states by January 19, 2013. In Germany, January 19, 2009 was scheduled for implementation.
The driving license directive introduced major innovations against the defendant driving license tourism and is intended to restore legal certainty and equality.
In particular, the new rule was that one Member State refuses to recognize the validity of a driving license "issued by another Member State to a person whose license has been withdrawn on its territory". According to the Federal Ministry of Transport and Digital Infrastructure, the abuse of driving licenses should be combated more effectively than before.
If a driver's license was issued by another EU member state, it cannot be refused by the German authorities without reason. However, there is the possibility of doubting the legal validity and obtaining a judgment in court.
However, the guideline also provided that driving licenses issued before they came into force should be grandfathered. This actually means the recognition of all driving licenses issued up to that point.
Judgment of the Federal Administrative Court in December 2008
Germans who have had their domestic driving license withdrawn cannot, in principle, drive vehicles that require a driving license if they were domiciled in Germany on the day the license was issued (BVerwG, rulings of 11 December 2008). You can subsequently be asked to attend the MPU in Germany . Whether this principle also applies to people who have never been the addressee of a negative decision (withdrawal, suspension or restriction) is controversial (see, inter alia, references). § 28 IV No. 2 FeV, which has been in force since January 2009, even generally excludes the recognition of driving licenses that were acquired in violation of the residence requirement - the EU legal admissibility of this provision is, however, questioned in the legal literature and by some courts ( including VGH Kassel , 2 B 255/09, decision of July 20, 2009).
ECJ case law
The case law of the ECJ states that a driving license that has been issued by a non-German EU state does not have to be recognized by the responsible German driving license office if the foreign driving license was issued during a German blocking period. Anyone who drives a vehicle that requires a license with such a driver's license is liable to prosecution for driving without a license. The 3rd EU Driving License Directive, which was implemented into German law on January 19, 2009, brings with it a further complication: From the time of implementation, one may no longer drive a car in Germany with an EU driving license if the foreign driving license the German driving license was withdrawn. In this constellation, the non-German EU state would have had to refuse to issue the driver's license. Anyone who drives a motor vehicle with such a driver's license is also liable to prosecution. According to a decision of the ECJ of April 26, 2012, Az. C-419/10, which for the first time concerns an EU driving license obtained after January 18, 2009, a member state is not allowed to recognize the validity of the to refuse a driver's license issued by another Member State to a person who held a previous driving license that was withdrawn from him or her in its territory outside of a blocking period imposed on him for the new issue of this driving license if the requirement of normal residence in the territory of the latter Member State has been met. It remains to be seen how the German courts implement this decision. The problem is that the ECJ ruling contradicts the German legal situation. Because according to § 28 Paragraph 4 Number 3 FeV, foreign driving licenses are not to be recognized if the driving license was previously withdrawn in Germany. However, taking into account the case law of the European Court of Justice, this provision is only applicable in cases in which the foreign EU driving license was issued during an ongoing blocking period.
Current appearances
Many of those affected continue to seek - despite the known risks of the prohibition of use - the way abroad in order to maintain their mobility. According to statistics, the Federal Motor Transport Authority in Flensburg - Mürwik was aware of more than 2,489 people up to December 2005 who had waived the issue of a new German driving license and acquired their driving license in Germany. These are only the cases that have become known, the actual number is likely to be significantly higher. According to relevant newspaper reports, some of which were very sensational, driving license tourism is well organized, reports are made of busloads from driving license applicants to driving schools in border areas, with all-inclusive service, organized 185-day proof of residence and additional tourist offers (cf. and). Providers of organized foreign driving licenses actively advertise this approach, the legal risks are concealed, since from January 2009 the main place of residence is verifiably not allowed to be in Germany and data is compared to check whether the minimum requirements for the issue of a driving license are met. The highest German administrative judge, the Federal Administrative Court, decided on February 25, 2010 that authorities may check whether motorists who have obtained a driver's license abroad also had a place of residence there. The assumption of a pseudo residence does not have to be conclusively proven by the information provided by the issuing member state. In order to assess a fictitious place of residence - a so-called violation of residence - circumstances of the entire case may be used, including "domestic circumstances". The requirements for a regular place of residence are based on Section 7 (1) sentence 2 FeV, i.e. H. if the person usually lives in Germany (at least 185 days per year) due to personal or professional ties. If the legal requirements are not met, the use of the foreign driver's license can be prohibited. Usually, the person concerned receives a notification in which it is determined that he is not authorized to drive a vehicle in Germany with this driving license and the request to present this driver's license to attach a blocking notice.
History: Driving license tourism to Poland and the Czech Republic
In its judgment of April 29, 2004 in the Kapper case, the European Court of Justice (ECJ) ruled that a driver's license issued from an EU / EEA member state must be recognized in the host country even if the residence rule (185 days) was obviously violated .
From the end of 2004 this led to increased driving license tourism, especially to Poland and the Czech Republic, since there was no permanent residence required after the EU expansion on May 1, 2004, in clear contradiction to EU legislation.
German administrative authorities now assumed that, following reports from the police about the driving license issued abroad, for example during routine checks, they were entitled to check the suitability to drive by an MPU on the basis of ongoing doubts about suitability. If a requested expert opinion was not submitted on time or was even refused on the basis of the ECJ ruling, the German driving license authorities regularly denied the right to use this driving license in Germany (so-called usage ban ). Section 3 (1) of the Road Traffic Act (StVG) in conjunction with Section 46 (1) of the Driving License Ordinance (FeV) was used as the basis for this in order to a certain extent to the no longer applicable Article 28 (4) No. 3 of the Driving License Ordinance (FeV) Way to replace. These administrative acts were usually issued with immediate execution. Those affected were forced to take legal action against the administrative decisions before the administrative courts. In most cases, this approach of the administrative authorities was confirmed by the administrative and higher administrative courts and these usage bans were declared lawful. Often no difference was made as to whether the residence requirement was properly complied with in the issuing country. Foreign certificates of suitability were generally not recognized by the German authorities.
Then the Higher Administrative Court Koblenz decided on August 15, 2005 in a spectacular decision that the ECJ ruling should be understood in such a way that a new aptitude test is only illegal because of old doubts about suitability and is not compatible with Community law.
In the judgment of the European Court of Justice (ECJ) of April 6, 2006, it was decided that the validity of a driving license legally acquired in Austria - after the "blocking period" has expired due to violations of narcotics law - may not be subsequently questioned by the German driving license authority and the driver's license must be converted into a valid German driver's license at the applicant's request without any further requirements. In the present case, an Austrian traffic psychological report was already available, which positively confirmed the driver's fitness to drive, but was not recognized by the German driving license authority.
If there are repeated abnormalities in road traffic, doubts about suitability in Germany derived from the previous history on file can lead to an MPU request and, if this suitability test does not come to a positive result in due time, to a ban on use in the Federal Republic of Germany . Today, German judges are starting to generally prohibit appeals to Union law if obviously incorrect or incomplete information has been given in the issuing country (for example regarding an earlier confiscation in Germany or the normal place of residence). Example: Decision of the Higher Administrative Court (OVG) Berlin of September 8, 2006. As a result, the examination of the requirements for the issuing of a driving license by the foreign authorities was inadequate. To compensate for this, the driver's license holder should provide the required proof of suitability ( MPU ) (cf. order of the Higher Administrative Court (OVG) Greifswald of August 29, 2006).
The option of initiating proceedings under Article 227 EC against the issuing state in the event of doubts about the legality of the issuing of a driving license is apparently hardly used.
The last relevant ECJ ruling of September 28, 2006 ("Kremer" case) confirms the previous line that driving licenses legally acquired abroad must in principle also be valid in Germany, and a ban on use or a review of fitness to drive contradicts applicable EU law. However, the situation in this case is rather simple: There were repeated offenses by driving without a driver's license. With the legal acquisition of a valid EU driving license issued in Belgium, the lack of a driving license was naturally "cured". In addition, no driving license ban has been imposed in Germany. Since serious concerns about fitness to drive and clear indications of legal abuse are apparently lacking in the Kremer case, it is unclear why this case was even submitted to the ECJ for assessment, cf. also .
Experts are of the opinion that a ban on use for the territory of the Federal Republic of Germany would - apart from the consideration of new suitability doubts - be contrary to European law, especially considering the last judgment of the European Court of Justice (ECJ) of September 28, 2006 in the Kremer case.
- According to established case law, Article 1 (2) of Directive 91/439 provides for the mutual recognition of driving licenses issued by the Member States without any formality, thereby imposing a clear and unconditional obligation on the Member States which does not leave any discretion as to the measures to be taken are issued to meet this obligation. It follows in particular that if the authorities of one Member State have issued a driving license in accordance with Article 1 (1) of Directive 91/439, the other Member States are not empowered to re-examine compliance with the conditions of issue.
Stefan Kremer's Belgian driving license was never recognized by Germany, and he was convicted of driving without a license five times. He had never heeded the usage bans and bans and instead relied on European Community law. The European Court of Justice then ruled that his Belgian driving license was never invalid in Germany. This means that even an incontestable prohibition of use does not have to stand before the European Court of Justice.
Alternatives to driving license tourism
The problems that lead to the revocation of the driving license are just as little eliminated by acquiring a foreign driving license alone as by MPU training that is only aimed at passing the exploration. Therefore, according to traffic physicians and psychologists, repetitions and accidents are very likely in this high-risk group, even if the number of alcohol accidents decreased by a total of 4.6% from 2004 to 2005. It is expedient to clarify and change the actual causes of the driving license problems. To this end, a wide range of effective traffic psychological offers is available to those affected.
Current literature
- Pießkalla, M./Leitgeb, S., § 28 IV 1 No. 3 FeV: Recognition obligation also for EU driving licenses issued after January 18, 2009? , in: Neue Zeitschrift für Verkehrsrecht (NZV) 2010, 329 ff.
- Pießkalla, M., § 28 IV No. 2 FeV - (again) a violation of the EC driving license directive? , in: Neue Zeitschrift für Verkehrsrecht (NZV) 2009, p. 479 ff.
- Scholz, Tobias B., The end of so-called "driving license tourism" in the European Union? , in European Law (EuR) 2009, 275–281. ( PDF )
Individual evidence
- ↑ Scholz, EuR (Europarecht) 2009, 275–281 [1] ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ Free travel for MPU refugees . Driving license tourism to the Czech Republic continues to boom - New EU directive aims to remedy the situation Oberpfalznetz January 27, 2007.
- ↑ Examples for ´MPU forums´
- ↑ Court sets limits to driving license tourism Spiegel online (September 11, 2006)
- ↑ City of Münster press release ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. January 10, 2007
- ^ VG: Abusive “driving license tourism” May 20, 2007
- ↑ If the cardboard is gone, it stays away . The European Union put a stop to driving license tourism. Tagesspiegel online December 30, 2006.
- ↑ 3. Driver's license guideline ( Memento of the original from November 1, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Publication and discussion in Fahrlaubnisrecht.de
- ↑ European friendliness does not take precedence over road safety ( Memento of the original from September 28, 2007 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. OLG Stuttgart, judgment of January 15, 2007, Az. 1 Ss 560/06
- ↑ Statement of the Federal Government on driving license tourism (PDF; 72 kB) of December 14, 2006
- ↑ Legal situation regarding the European driving license. Retrieved June 10, 2016 .
- ↑ If you are not fit to drive, a foreign driver's license issued later can also be withdrawn if it shows a domestic place of residence - judgment of the BVerwG of December 11, 2008 - summary with further evidence at free-urteile.de
- ↑ Tagesschau: Dampers for "driving license tourists" ( Memento from December 14, 2008 in the Internet Archive )
- ↑ § 28 Paragraph 4 No. 3 FeV is to be interpreted in conformity with European law
- ↑ Annual report 2005 of the Federal Motor Transport Authority ( Memento of the original dated December 8, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , P. 3 (PDF file)
- ↑ Back to the wheel without an "idiot test" (Spiegel Online May 31, 2006)
- ↑ With new cardboard from Prague ( Memento of the original from March 13, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (Autobild 3/2005)
- ↑ The rag from abroad does not help ( memento of the original from October 1, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (hr-online, November 7, 2006)
- ^ ECJ judgment of June 26, 2008 on traffic offenders: driving license tourism is made more difficult
- ↑ New damper for driving license tourism (Hamburger Abendblatt February 25, 2010)
- ↑ ECJ judgment of April 29, 2004 (Kapper) ( Memento of the original of October 28, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ OVG Koblenz from August 15, 2005 ( Memento of the original from March 11, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ ECJ judgment of April 6, 2006 (Halbritter) ( Memento of the original of October 30, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ^ OVG Berlin dated September 8, 2006 ( Memento of the original dated March 11, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ OVG Greifswald dated August 29, 2006 ( Memento of the original dated March 11, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Jurathek: The Kremer case ( Memento of the original from March 12, 2007 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ ECJ judgment of September 28, 2006 (Kremer)
- ^ Accidents in road traffic 2005 - press copy of the Federal Statistical Office. (www.destatis.de, 610 kB)
