Problem statement
For several years now, managing directors of freight forwarding and logistics companies have been increasingly confronted with the fact that police investigations are not only directed against drivers but also against company management. On the one hand, this is due to the increasing need for economic measures in public budgets, but on the other hand, it is also due to the - apparent - ease with which the administrative authority or the police can establish the legal liability of the registered keeper under the law on fines.
It is almost always the case that letters of formal notice are sent to the "freight forwarder/managing director" with wording such as: "You ordered or allowed (...)" if one of the truck drivers has committed an offense subject to a fine. This wording implies that the managing director/person responsible is complicit in the overloading of the truck/excessive driving time/GGVS violation/or other violations by the driving personnel that are subject to fines. Such accusations can result in heavy fines for the company or the person themselves, "points" on their license in Flensburg and other inconveniences. It is therefore important for those in charge in the logistics industry to have a sound knowledge not only of their obligations but also of their rights and options.
The person addressed must be aware that the accusation made does not relate to the actual action (of the driver), but that it is based on a failure to supervise. This is already apparent from the fact that a holder is often not given any actual opportunities to exert influence. In the first stage of the examination, there must therefore be misconduct on the part of the driver, and in the second stage of the examination, a failure on the part of the responsible party to supervise. Only if both of these conditions are met can a violation under the law on fines be assumed.
Contents and obligations in detail.
The responsible body must demonstrate a functioning operational structure within its organization that prevents and sanctions actions by employees that are relevant under administrative fine law. Among other things, this means that employees and drivers must be instructed, that they must be continuously informed about the legal regulations and obligations, and that they must be regularly checked by means of spot checks. However, since employees may always be expected to act in breach of duty, the complete elimination of all risks cannot be demanded. Thus, measures that would disrupt the peace of the company or completely abolish the employee's personal responsibility cannot be demanded. The following measures, among others, may not be demanded: snooping, internal rewards for denunciation, complete surveillance, or purely "poking" measures. The Higher Regional Court of Düsseldorf formulated here: "In the case of a driver who has proven to be reliable in the past, it is sufficient to carry out checks at intervals of a few months and in a surprise manner. A one-time lapse by an otherwise reliable driver does not lead to an increased monitoring obligation." However, the person concerned must be aware that the law is open to interpretation here and that both the administration and the courts take regionally different and interest-dependent interpretive approaches. However, the aforementioned interest-dependent interpretative approaches can often be corrected in favor of the owner by the higher courts' case law.
Delegation of responsibility
In order to fulfill operational obligations, the transfer of responsibility to other employees is generally permissible. The responsibility must be explicitly transferred and fulfilled under one's own responsibility, but it can be shared. For example, the responsibility for the road safety of the fleet can be transferred to the foreman of the garage and the operational responsibility can be transferred to the head of scheduling. However, it is not possible to completely get rid of the duties. Rather, the character of the obligation changes from the individual control of each driver to the control of the delegated employee. The employees assigned to this task must be proven, knowledgeable and properly trained. Delegation then opens up a wide range of defense options. On the one hand, the delegation also makes the functioning of internal controls ("something is being done") clear and, on the other hand, the prosecuting bodies are usually hardly able to clarify complex internal structures in a reasonable time with the help of the available means - within the statute of limitations of 3 months. The result is then the suspension of the proceedings, initially against the managing director and, should proceedings be initiated against the delegate at all, against the employee by administrative authority or court.
Conclusions
To avoid prosecution under administrative law, it makes sense for a company to introduce a sensible and practiced delegation structure. In this context, areas of responsibility are to be formed both at several hierarchical levels and in relation to subject areas. The owner and the authorized representatives must monitor the employees by means of regular surprise spot checks. Documentation of the division of responsibilities, as well as the briefings and spot checks, is a good way to simplify the presentation. If delegation, briefings of drivers and subordinate delegates, and regular spot checks can be demonstrated in a preliminary investigation, there will be no legal relevance for fines at any operational level. The reward for the small effort is a generally increased transparency in the company for the management as well as a risk minimization in the area of fines, "points" and with regard to entries in the central trade register.
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.