Introduction
Anyone who drives on German highways at night is now familiar with the new risk areas: rest stops where trucks with their hazard warning lights on pile up in the lanes. Parking on the highway, previously unthinkable, is now a nightly routine in some areas. This is partly due to the vehicles that never see the home freight yard, but are in continuous operation. The problem: the regular weekly rest period (rwR).
Problem
Until now, it has been disputed whether it is permissible to spend the regular weekly rest period (rwR) in or in front of the driver's cab in accordance with Article 8 (8) of Regulation (EC) 561/2006. This is prohibited under Belgian and French law. From 25.05.2017, there will also be the revised § 8a FahrPersG in Germany. § 8a paragraph 1 number 2 FahrPersG now reads: "In the case of sentence 1 number 2, the entrepreneur also does not ensure that the regular weekly rest period according to Article 8a, paragraph 6 is observed if it is spent in the vehicle or in a place without suitable sleeping facilities.
What this means seems clear at first glance. It will mean an enormous change to the previous freight forwarding and scheduling structures. Trucks can no longer legally fulfill the regular weekly rest period (rwR) at the rest area or service area. Drivers and freight companies have to adjust to this new situation and the new restrictions that have arisen. In particular, since corresponding checks on drivers and the structure of instructions and delegation within freight companies are to be expected.
Nevertheless, some problems that are already occurring can be identified. Examples:
- The new standard does not "prohibit" trucks from parking or camping at rest areas. What is no longer the case, however, is the legal assessment of parking or camping as a "regular weekly rest period". In this case, checking the driver on the spot will not yield any tangible results, provided the driver's statements are legally correct. Only the later continuation of the journey with insufficient rest would be relevant.
- The control after the legally incorrect rwR will not be easy for the control authorities even after the truck has left the stop. Initially, the driver would have the right to refuse to answer questions about when, where and under what conditions he stopped the vehicle (Section 55 of the German Code of Criminal Procedure (StPO)), and even then, any statements made by the driver could only be verified with a great deal of effort.
- Even when inspecting freight companies, those responsible would be entitled to a right to refuse to give evidence (§ 55 StPO). Investigating the structure of the freight company, especially those based abroad, would require a high degree of surveillance, including searches.
In addition to the actual problems, there are legal concerns. The wording "suitable" sleeping accommodation will certainly be regarded as insufficiently specific in terms of the principle of "nulla poena sine lege" and the principle of legal certainty. The basics for this are
Nulla poena sine lege, Article 103 II GG
The principle of nulla poena sine lege is enshrined in Article 103 II of the German Constitution and is also found in Section 1 of the German Criminal Code and in a similar formulation in Article 7 I 1 of the European Convention on Human Rights. In Article 103 II of the German Constitution and Section 1 of the German Criminal Code, the principle is expressed as follows: "An act can only be punished if the punishability was legally determined before the act was committed." This principle is more specifically found in Art. 7 I 1 ECHR: "No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that imposed in the country in which the crime was committed." This principle states that "not only the fact that a particular behavior is punishable at all, but also the nature of the punishment and its possible amount must be legally established before the act [...]"[1]. From Art. 103 II GG and 1 StGB, four individual principles can be derived: the prohibition of customary law (nulla poena sine lege scripta), the principle of certainty (nulla poena sine lege certa), the prohibition of retroactivity (nulla poena sine lege praevia) and the prohibition of analogy (nulla poena sine lege praevia). The principle of legal certainty is of interest for § 8a, paragraph 1, number 2 of the FahrPersG.
(nulla poena sine lege certa)
"Everyone should be able to foresee what action is threatened with what punishment, in order to be able to adjust their behavior accordingly."[2] This principle is intended, on the one hand, to ensure that only the legislature and not the courts decide on criminal liability, while on the other hand, the individual should be given the opportunity to recognize which behavior is prohibited.The principle of legal certainty requires that the prohibited conduct be described as precisely as possible. The legislator is required to define the conditions for criminal liability in such a specific way that the scope and application of the criminal offenses can be derived directly from the law and can be determined by interpretation. [4] The principle of legal certainty also applies in full to the area of administrative offenses.
Conclusion
What exactly is a "suitable" place to sleep for a sufficient rwR? The law at least assumes from the wording that everything "in the vehicle" is unsuitable. However, does that mean "in the professional driver's vehicle" or does it mean any overnight accommodation "in vehicles"? Does it have to be the private bed at home, or is a hotel enough? What about spending the night in a tent? The Federal Council's reasoning: to oblige the transport company to "ensure that the driving personnel spend their regular weekly rest periods in such a way improve the driver's health and road safety, would, in a teleological interpretation, allow for all overnight accommodation options that do not result in a negative impact on health and road safety. However, this can certainly also be realized "in vehicles". The possible issues in connection with § 8a, paragraph 1, number 2 of the German Driving Personnel Act only serve to demonstrate the vagueness. The subsequent interpretation of the law and the content-related filling by means of judicial case group formation appears to be neither acceptable nor legally compliant in the area of criminal and fine law.
The intention of the legislator is to be recognized, but the chosen design leads to legal uncertainty – and probably also to unconstitutionality. The defense is called upon to point out the constitutional concerns of the standard./p>
[1] Roxin, Criminal Law, General Part, Volume I, 4th edition, section 5, para. 4.
[2] BGHSt 23, 167 (171).
[3] BVerfGE 73, 206 (234 f.).
[4] BVerfG NJW 2003, 1030.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.