Dienstag, 13.09.2005
Loophole in driving and rest times
from
Dr. jur. Ingo E. FrommLawyer
Specialist in criminal law
Specialist in traffic law
Give me a call: 0261 - 404 99 25
E-Mail:
According to the Federal Statistical Office, approximately 60,000 cases of driving time violations, non-compliance with rest periods and insufficient rest periods are detected each year. More than half a million checks were carried out in 2005. Roadside checks have long been part of everyday life in the transportation industry. Further violations of social regulations in road transport are uncovered during company inspections at freight forwarding companies.
The majority of these offenses will now remain without consequences under the law on fines. This is due to the fact that the German legislature has made an unpleasant mistake: It failed to adapt the German Driving Personnel Act in good 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. Currently, the provisions on fines in Section 8 of the Driving Personnel Act refer to the outdated Regulation (EEC) No. 3820/85, which has now expired (a so-called "rigid" reference). The current version of the German law is therefore no longer valid. However, this is incompatible with the principle of legal certainty in criminal and administrative fine law and the constitutional requirement that an act can only be punished if it was legally determined before the act was committed ("nulla poena sine lege", Article 103 (2) of the German Basic Law). According to the unanimous rulings of the highest courts, this means that when the old EEC Regulation 3820/85 ceased to be in force, the blanket provision of § 8 of the Driving Personnel Act also ceased to be valid. Accordingly, violations of the new EC Regulation No. 561/2006 (OJ L 102, p. 1) cannot be penalized at present. Even past driving and rest time offenses against the expired Regulation (EEC) No. 3820/85, which were committed before April 2007, may no longer be punished with fines. This follows from the Administrative Offenses Act (Section 4 (3)), since the offense was not punishable by a fine for a period of time between its commission and the court decision, as well as from the prohibition of retroactivity. The Higher Regional Court of Koblenz has since confirmed this in its decision of May 11, 2007 (1 Ss 113/07). Violations of driving and rest periods will only be subject to fines again once the German legislature has closed this legal loophole and the Driving Personnel Act has been amended to include the new regulation. This is to be done in the course of the "Third Law Amending the Driving Personnel Act" (Bundestag printed paper 16/4691).
A similar faux pas occurred in 1986, when the EEC Regulation 543/69 on driving and rest times referred to in German law had expired before the federal legislature could adapt the law to this situation. Here, too, the courts ruled that the legal loophole must lead to an acquittal of the person concerned (Cologne Higher Regional Court, Ref.: Ss 605/86 and Hamburg Higher Regional Court, Ref.: 3 Ss 25/87 OWi).
The transport industry is therefore currently in a legal vacuum, so to speak. This gives rise to concerns that there will be serious consequences for road safety. The German legislature does not plan to close this gap in the law until next summer. However, this will not prevent the employees of the Federal Office for Goods Transport from carrying out checks and, in individual cases, from prohibiting the continuation of the journey. Fines for exceeding driving times, failure to observe rest periods and insufficient rest periods should therefore not be accepted without objection. Proceedings can be initiated against both truck drivers and companies. An appeal can be lodged within two weeks of the notification of the decision. An appeal on points of law can be lodged within one week against first-instance decisions of local courts.
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.