Right, so this issue has been talked about extensively, debated, caused arguments, tears, frustration and near bloody murder. Instead of spending my time off over Christmas and New Year's relaxing, I have been reading and re-reading legislation, articles, documents and making further personal enquiries because for the majority, this law makes zero sense and nobody until now has really been able to explain it clearly in a way that can be properly understood (myself included!).
The big question is: Who is obligated to exchange their EU driving license for a Spanish one and why? I hope that by the end of what I hope to be the final and definitive article on this matter, we can lay it to rest for good. Please note that throughout this post, I am only referring to EU licenses as non-EU must follow a different procedure.
First of all, why has this created so much conflict? Well, the law was initially drafted quite ambiguously that left certain aspects open to interpretation and of course, everybody has interpreted it in their own way so there was no cohesiveness at all in national media and even within the Tráfico Administration. Different versions have appeared since 2013 on Tráfico's website to explain how this law should be understood and this has led to much misinterpretation, Chinese whispers and total chaos. As I said before, I read through the law at the time and had a number of questions about the way it was drafted so I went directly to source at Fuerteventura's Tráfico office as well as the Madrid Central Office to try to clarify those doubts. The explanations received were inconclusive on many aspects as far as I was concerned and varied depending on who I spoke to. Then there would be moments when one interpretation would appear to make sense but that would change as I reviewed other elements that did not coincide 100% with that particular interpretation but since this has created yet another frenzy, I wanted to get to the bottom of how this law should really be interpreted so, let's get on with it now and break the law down into bite size pieces and pray that I am able to explain it well because God strike me down if this has to be amended later on especially since I am going to have to retract something I wrote only a month ago!
The Beginning: The Decree that Started It All
Real Decreto 818/2009, de 8 de mayo, published in BOE (State Bulletin) number 138, 8th June 2009. This decree was first published in 2009 and unbelievable as it sounds, here we are still debating it almost seven years later, not that we are the only ones. The whole point of this law is to bring commonality to all EU issued driver's licenses as well as mutually accepting the validity of licenses issued in other member countries throughout the EU. You could say it really started back in July 2006 when the point system was first introduced in Spain to fall in line with the rest of Europe (I personally remember it as the year Spain wept). If at that time you had a driving license for more than three years, you were awarded 12 points but if you had had it for less than that, you were only awarded 8. Depending on the type of infraction committed, the police can deduct 2, 3, 4 or 6 points at a time and obviously the loss of all points means losing your license.
There were considerable differences throughout the EU as some countries countries issued licenses that expire after 10 years as is the case in Spain but others did not have an expiry date at all or it was set at 15 years. Besides that, they wanted to establish the same validity for each class of license, a standard plastic card license as opposed to the paper variety and set up a common registry to facilitate an exchange of information on the status of each license between countries.
a) Established expiry dates according to license type:
Chapter I, article 12 determines -
Permits BTP, C1, C1 + E, C, C + E, D1, D1 + E, D y D + E are valid for a 5 year period until the holder reaches 65 years of age. From that time, the permits are only valid for a 3 year period.
All other types regardless of their class are valid for a 10 year period until the holder reaches 65 years of age, from which the permits are to be renewed every 5 years.
The above-mentioned validities may be reduced if upon issue or renewal, it is determined that the holder suffers from an illness or deficiency that may not necessarily impede them from driving at that moment but is susceptible to worsen in time.
b) Validity of EU issued licenses in Spain:
Chapter II states -
Driver's licenses issued by any EU member country maintain their validity in Spain under the conditions in which they were issued in their place of origin unless the minimum age does not correspond to the minimum age required in Spain.
Licenses issued by member countries that have been restricted, suspended or remanded by any EU country or even Spain, will not be considered valid for use in Spain.
Nor will those licenses issued in any EU country be valid if the holder is also in possession of a license issued by a different EU country that had been withheld, suspended, declared null and void, damaging or deemed invalid in Spain.
The holder of a license issued in one of those member countries that has established permanent residence in Spain will be subject to Spanish legislation regarding its duration, the holder's mental and physical capabilities as well as application of the point system.
Now comes the key point: "When it comes to licenses that are not subject to a determined expiry date, it's holder should proceed to renew said license TWO YEARS after they establish their permanent residence in Spain with the object of applying the expiry dates detailed in article 12."
The law states that if your EU license does not establish a set expiry date, you are obligated to renew it two years after obtaining residency in Spain. This raised a whole new set of issues at Tráfico because some of their civil servants interpret the term "permanent residence" as 6 months after the date shown on the green residency card whereas others accept the actual residency card as sufficient proof of their status in Spain regardless of its issue date. The correct interpretation of the is actually 6 months after the issue date indicated on the card for purposes of this particular decree.
If you remember, this was a hot topic back in 2013 because from that year all EU licenses had to conform to the same standard so the rumour mill went into overdrive and the belief was that all foreigners had to exchange their licenses when it reality it meant that any foreigners with legal residence in Spain on or before 19/01/2013 with an EU license that did not have an expiry date or one superior to 15 years had to exchange them and the rest who obtained residency after that date had to exchange their licenses once the two years were up so another date was set, the famous 19/01/2015.
I mentioned before that if the holder establishes their permanent residence in Spain, they are subject to Spanish law. How? According to article 16 of the decree -
... these can voluntarily apply for the details of their license to be officially recorded in the Drivers and Offenders Registry at Tráfico
This article created even further confusion because even though it sounds clear, it again gave cause for open interpretation as some of Tráfico's civil servants and other professionals understood that once a holder of an EU driving license becomes a resident in Spain, they are obligated to exchange their permit because they are subject to Spanish law from that moment on and had to come under the national point system whereas others understood that because the holder is subject to Spanish law, they are only obligated to register their current license in the Drivers and Offenders Registry. Even this last point poses an issue because, one article clearly states that residents are subject to Spanish law and a latter article indicates that registry is optional so some say it is not necessary and others say it is obligatory.
c) Exchanging the permit for an equivalent Spanish version -
Article 18 indicates:
The holder of an in-date permit issued by any EU country and who has established their permanent residence in Spain, may request at any time, the exchange of said license for a Spanish equivalent
The word "may" is very telling as it indicates there is a choice and not an obligation no matter how officials may interpret this law, however, a debate arises once again because some Tráfico offices will accept the residency card as sufficient proof whereas the Tráfico office in Fuerteventura will only accept the application if 6 months have passed from the issue date shown on the residency card. Once the application has been received, Tráfico officials contact the country that issued the license to ensure its authenticity and validity and from there may accept or reject the application. The outcome of the checks that are carried out is recorded in the Drivers and Offenders Registry
Article 19 continues -
Tráfico has the right to obligate a holder to obtain a Spanish license if:
As a result of applying Spanish legislation, it may be necessary to impose modifications, restrictions or other limitations to people or vehicles.
If the holder has been sanctioned administratively for offenses punishable by the loss of points and in order to apply the full weight of Spanish law with regards to restriction, suspension, withdrawal or the lapsing of the drivers license.
When it is necessary to declare the nullity or harmfulness of the license in question.
In order for officials to enforce this article, the holder must have established their permanent residence in Spain and again, the resolution of the file would be recorded in the Drivers and Offenders Registry.
I obtained the following information of interest from the National Police Forum:
"From the date in which an EU holder of a drivers license resides in Spain and whilst he resides in Spain, any renewals or issue of new permits must compulsorily be done in Spain. In the event a license is renewed in the holder's country of origin whilst having Spanish residency, the license would be valid in any other country EXCEPT Spain, where the permit would be considered illegal and any applications to exchange it at a later date would not be accepted. If traffic violations were committed in Spain that result in the loss of points or the temporary withdrawal of said license, he would be obligated to handover the original license and a Spanish one would be issued with the corresponding points taken off. From that point on, if the holder does not exchange or apply for a duplicate license in their country of origin they should be made aware that their permit would be considered illegal in Spain with all the penalties that apply if the anomaly were detected."
From there, the rumour mill began about 1st January 2016 being the cut-off point for all foreign residents to exchange their permits or risk being fined and after enquiring, this seemed to be the case, however, I did not find any legal basis for this procedure within the decree of 2009 so I began to look elsewhere. After further research, a lot of patience, tired computer eyes, and a million cups of tea (I'm sure some glasses of wine were thrown into the mix too), I did manage to find an obscure report issued by Tráfico and that amazingly dated back to 9th March 2015 (the report has been attached) that completely confirmed my initial interpretation of the law:
"The European Commission has requested that all member States show flexibility in the implementation of this new regulation since the main objective is the administrative legalization of EU driving permits. Since there are a considerable number of citizens residing in Spain who must comply and renew their permits, said flexibility must be accompanied by a strong campaign in which EU residents in our country are advised of their obligations. For this reason, fines for driving on a EU license without having renewed it after the two year residency period in our country cannot be carried out automatically, rather it must be done in a way the citizens who are affected by this change are advised of new regulations and have a reasonable period of time in which to legalize their situation. For this reason, we deem it necessary to establish a transitory period in which holders of EU permits may familiarize themselves with the procedures they must carry out in order to renew said permits. It has been established that until 1st January 2016, it does not proceed to denounce or sanction this situation, a time period that we consider sufficient and reasonable to renew permits at Tráfico offices."
How are the Guardia Civil and Police Officers to proceed? The report continues to say:
"It is significant to point out the principle that all EU licenses are valid for the holder to drive in Spain as long as these have been issued by the corresponding authorities of each Member State... When agents in the carrying out of their duties detect that a EU driver is a registered resident in Spain, they must also check the expiry date of their license, paying special attention to the following two scenarios: (a) if the permit has already expired or (b) if the permit does not have an expiry date or if the indicated date is more than 15 years for permits AM, A1, A2, A, B and BE or an indefinite validity or expiry date of more than 5 years for permits BTP, C1, C1E, C, CE, D1, D1E, D and DE. In both cases, the agent will give the driver an informative document with all the information pertaining to the renewal of their permit. A fine will not be issued, rather, the driver's details must be noted down on a document, advising the driver that if after 6 months or from 1st January 2016, they are caught again in the same circumstances and has not proceeded to renew the permit, they will fined 200 euros. If there is any doubt regarding the driver's residency status in Spain, this document must be filled out and forwarded to Tráfico where the necessary checks will be carried out to determine their status. All documents filled in by the agents will be recorded on the driver's file at Tráfico along with the date so that if they are intercepted at a later date, the proper fine can be issued. The agents cannot issue any type of fine if they observe that the driver has already requested an appointment at Tráfico in order to legalize their situation."
The Dreaded Medical Examination and Finalizing the Application at Tráfico
To exchange your drivers license for the Spanish equivalent, you must pass a medical examination that can only be performed by official centres, "Centros de reconocimiento médico de conductores". The type of examination can vary depending on the applicant as well as the type of license they hold but in most cases the exam is not extensive at all and comprises of a hand-eye coordination test, an eye test followed by a brief chat with the overseeing doctor. If necessary, they will carry out further tests to verify audiological, respiratory, cardiovascular and renal systems and if the tests are positive, they will stamp the certificate and forward the file directly to Tráfico to confirm the applicant is eligible to drive (this is unless the entire I.T. system between the medical centre and Tráfico completely collapses as it did the other day!). From there, you need to go to Tráfico to complete the process and they will confirm whether the Spanish license will be issued pending confirmation from the country that issued the current license.
In short, if your license complies to current EU legislation and has an expiry date inferior to 15 years, you are not under any obligation, at least not at this moment in time to exchange it for a Spanish license. Due to mounting fears and skepticism of local law enforcement, many have opted to exchange their licenses anyway for a simpler life and they are not wrong to do so at all. For some it was an easy decision because they no longer have ties to the issuing country and are permanent residents here so it made sense to just obtain a Spanish license anyway but others prefer to retain their own country's license for as long as they possibly can.
On another but related note, even though the law says that if a resident of Spain's EU license has expired or is about to expire, it should be renewed, the same 6 month residency period applies (6 months from the date shown on the residency certificate) so please do not get caught out as you would have to renew in your country of origin or be without a license until the 6 months are up.
Not to be further swayed by supposed legal loopholes and the various interpretations of Tráfico's own civil servants, until I am persuaded otherwise, I am trusting my own instincts and understanding of this decree so this article clearly outlines my position and more importantly of course, what is in effect, the legal position on the whole EU driver's license fiasco.
Source by Sabrina L Williams
