Due to errors in the legislative process, there is currently a lively discussion about whether the amendment to the StVO, which did not come into force until April 28, 2020, is completely or partially invalid. We recently reported on the violation of the so-called citation requirement of the Basic Law (Art. 80 I GG).
In a new regulation, the legal basis for the new regulation would have had to be stated. However, the amendment lacks a reference to § 26a (1) no. 3 StVG. Neither the Federal Ministry of Transport nor the federal states involved had noticed the lack of reference to the regulation. It is worth reporting on this again, as there has been a lot of news on the subject in the last few weeks and days. The question arises as to what legal consequences the formal error will have for fine proceedings before and after April 28, 2020.
Speeding after April 28, 2020
Due to the error in the legislative process and the associated lawlessness, some federal states are now trying to save themselves by instructing the authorities to apply the old schedule of fines for all open proceedings, including Mecklenburg-Western Pomerania, Lower Saxony, Rhineland-Palatinate and Saxony. They claim that they do not want to adhere to a void regulation. This would mean that fines with driving bans would continue to be possible in principle, but only for serious speeding violations of 31 km/h or more in urban areas and 41 km/h or more in non-urban areas.
In contrast to this, various fine offices are discontinuing ongoing proceedings, i.e. speeding violations from 28.04.2020. The central fine office in Kassel has announced that 60,000 proceedings in Hesse are affected because of the invalidity of the fine catalog.[2] On the homepage of the Central Office for Fines in Kassel, [3] there is already a note that calls regarding the invalidity of the catalog of fines are to be refrained from. It states:
"Invalidity of the Fine Catalog Regulation - The Central Fine Office requests that inquiries regarding the partial invalidity of the Fine Catalog Regulation (BKatV) be refrained from. New and ongoing proceedings will be processed ex officio in accordance with the previously applicable BKatV. Proceedings that are not yet legally binding will be discontinued ex officio. A uniform national regulation is still expected for dealing with proceedings that are already legally binding.
The central Speyer fines office, which processes speed cameras in Rhineland-Palatinate, has also already discontinued many proceedings. Quite obviously, the fine offices also assume that the amendment to the StVO is invalid, with the consequence that currently neither fines nor driving bans may be imposed for speeding.
The invalidity also applies to small fines in the warning area. As is well known, the fines for trivial offenses were also increased considerably. Instead of a 15 EUR warning, this is up to 10 km/h too fast from 28.04.20 at 30 EUR. Many fine offices have already reacted to the ineffectiveness of the StVO amendment and are using the old warning fees of 15 euros as a basis.
Impact on offenses under the old penalty catalog
Nationwide, hundreds of thousands of penalty proceedings under the old law are still pending at the penalty office or before the local courts. The effects of the invalidity of the new StVO amendment on old proceedings are currently still unclear. From court practice, it is known that in many cases, judges react by simply waving the case aside and arguing that the formal error only affects more recent proceedings. This would have the consequence that a driver could be fined for exceeding the speed limit on April 27, 2020, but one day later the same behavior would no longer be relevant under the law. This application of the law cannot be reconciled with the so-called "most favorable treatment principle" of § 4 para. 3 of the German Act against Regulatory Offenses (OWiG). The judge must apply the mildest law, that is, the milder current legal situation. To a certain extent, the new void law must therefore be applied as the mildest law.
Return of driver's licenses
Due to the time that has passed, there is only a small number of confirmed penalty notices. If the person concerned has accepted the fine and already paid it and, if applicable, has already surrendered their driver's license, they will have to file a petition for clemency with the fines office or public prosecutor's office in order to have the point entry deleted or the driving ban lifted or to get the fine refunded. If the driver's license has already been surrendered after it has become final, a petition can be filed for the annulment of the decision and the immediate surrender of the driver's license in clemency proceedings. The first federal states have already begun to return driver's licenses.[4]
Outlook
A spokesperson for the Federal Minister of Transport was quoted as saying that "a rapid clarification is being worked on under high pressure". However, a new legislative procedure is necessary to close the gap in prosecution. There is currently no political majority in favor of reintroducing driving bans starting at 21 km/h (13 mph) over the speed limit in urban areas and 26 km/h (16 mph) outside of urban areas.
Due to the complexity of the matter and the completely inconsistent approach of the authorities, it is essential to seek the help of a lawyer specializing in traffic law.
References:
[1] www.welt.de v. 2.7.2020 ("First federal states suspend strict driving ban rules due to formal error").
[2] www.hessenschau.de v. 9.7.2020 ("Fine catalog invalid: 60,000 proceedings in Hesse affected")
[3] https://rp-kassel.hessen.de.
[4] www.n-tv.de, dated July 14, 2020 ("Scheuer's emergency stop on the StVO amendment could end up in the bin").
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.