The German legislature had not adapted the law on driving personnel of motor vehicles and trams (Driving Personnel Act, FPersG) in Section 8 in time to the new EC Regulation No. 561/2006 on the harmonization of certain social legislation relating to road transport, which came into force on April 11, 2007. The penalty provisions of Section 8 of the German Driving Personnel Act (Fahrpersonalgesetz) referred to an outdated regulation (EEC) No. 3820/85, which had already expired on April 10, 2007. 3820/85. This legislative omission resulted in numerous acquittals because it was a misdirection and it could not be assumed that the FPersG in conjunction with the old regulation should continue to apply, although the new regulation had already come into force.[2] In any case, there was a gap in criminal liability from April 10, 2007 to July 14, 2007.
In the meantime, the legislature has amended the Driving Personnel Act on July 6, 2007 (Federal Law Gazette I, 1270) and replaced the referenced provisions of Regulation (EEC) No. 3820/85 with Regulation No. 561/2006. The amending law was promulgated on July 13, 2007 and took effect one day later. Anyone violating the maximum daily driving times and minimum daily rest periods since then must again expect significant consequences in the form of fines. But that's not all: through the Third Amendment to the Driving Personnel Act in § 8 para. 3 FPersG, the legislature has also considered violations that were committed up to April 10, 2007 under the old Regulation (EEC) No. 3820/85. The legislator has declared the so-called most-favored-nation clause of § 4 para. 3 of the German Administrative Offenses Act (OWiG) inapplicable. The ruling states: "Administrative offenses under Section 8 of the Driving Personnel Act that were committed up to April 10, 2007 under the validity of Regulation (EEC) No. 3820/85 were committed by 10 April 2007, shall be punished in accordance with the provisions in force at the time of the offence, by way of derogation from Section 4 (3) of the Act on Regulatory Offences."Without the latter provision, there would have been a clean acquittal in the future for violations of daily driving times and daily minimum rest periods that were still being committed at the time of Regulation (EEC) No. 3820/85. Section 4 (3) of the German Act against Regulatory Offenses (OWiG) stipulates that the milder law must be applied retroactively. In other words, in a fine proceeding, the party concerned generally benefits if the legislature provides for a lighter penalty after the offense has been committed. If the act was not subject to a fine at any time between its commission and the court decision, this interim regulation is to be applied as the mildest law and prosecution is excluded.
If the legislature now sets this principle aside, it encroaches upon the principle of legitimate expectations, since the legislature returns to a stricter judgment despite the gap in punishment leading to the acquittal.[4] The person concerned would be deprived of a favorable legal situation retroactively. Despite these concerns, the supreme court (OLG Stuttgart, judgment of November 6, 1998, 1 Ss 437/98) in a similar case in which the legislature had made an erroneous reference to an EEC regulation in the Federal Nature Conservation Act of April 30, 1998 (Federal Law Gazette I, p. 823) and later declared the parallel provision from the Criminal Code (Section 2 III) for inapplicable[5], came to the conclusion that the constitutional prohibition of retroactivity under Article 103 II GG was not violated. The provisions on most-favored treatment are available for disposition.[6] If one follows this decision, then according to the current legal situation, violations of daily maximum driving times and daily minimum rest periods that occurred before April 2007 would be punishable again. However, the decision has remained highly controversial to this day,[7] especially since it would also violate the constitutionally guaranteed prohibition of arbitrary unequal treatment (Art. 3 I GG). Right-wing and legally concluded proceedings would be treated arbitrarily differently. As a reminder: The courts had to acquit the persons concerned if their court date took place before July 14, 2007, the day the new driving personnel law came into force, due to violations of maximum daily driving times and minimum daily rest periods. In this case, the most-favored-nation clause of § 4 para. 3 OWiG still applied. However, if the main hearing could not be scheduled until after that date for organizational reasons, the person concerned would have to expect punishment under the law change. The practical consequence of the new driving personnel law would lead to the absurd result that a person affected, who, due to the business situation of the district court, does not have his court date until the end of the year, would have to fear a finewould have to fear a fine, while the person concerned, who had to go to court before the law came into force, could be pleased about an acquittal. However, this is obviously arbitrary. Such a disparate application of the law would no longer be comprehensible in view of the ideas that dominate the Basic Law, so that it must be concluded that it is based on extraneous considerations.[8] It should not depend solely on the business situation of the courts whether there are punishments or acquittals before German courts. The consideration of remedying legislative omissions is also not recognized as an objective reason for different regulations. Nevertheless, the Federal Office for Goods Transport apparently insists on punishing past violations of the Driving Personnel Act in internal instructions. Some district courts have already taken an elegant middle course and regularly discontinue such fine proceedings on grounds of expediency in accordance with § 47 II OWiG, as they do not consider a penalty to be necessary. This is possible for fines of up to one hundred euros without the consent of the public prosecutor if the prosecutor has stated that they will not be attending the main hearing. Ultimately, it is clear that the question of whether violations of daily maximum driving times and daily minimum rest periods can be punished remains highly controversial, even after the partial closure of the legal loophole in the German Driving Personnel Act, and will probably have to be dealt with by the supreme court.
[1] Fromm, Legal gap in the German driving personnel law leads to the lack of sanctions for violations of maximum daily driving times and minimum daily rest periods, TranspR 6-2007, p. 225 f.
[2] TranspR 6-2007, pp. 267 et seq.
[3] Decision of the Higher Regional Court of Koblenz dated May 11, 2007 - 1 Ss 113/07, NJW 32/2007, p. 2344; zfs 8/2007, p. 471 f.
[4] Rogall, in Karlsruher Kommentar zum OWiG,§ 4 Rn 20; a.A. Bode, zfs 2007, S. 472
[5] Section 30a BNatSchG (old version)
[6] NStR-RR 1999, p. 379. On the application of the constitutional prohibition of retroactivity to driving times, cf. BVerfG, decision of November 29, 1989 – 2 BvR 1491, 1492/87, NJW 1990, 1103.
[7] Rogall, in Karlsruher Kommentar zum OWiG, sect. 4 Rn 20.
[8] BVerfGE 74, 102 (127) = NJW 1988, 45 m. w. Nachw.
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