Introduction
If a truck belonging to a haulage company is inspected by the authorities far away from the company's registered office and a violation relevant to the law on administrative fines is detected, this often leads to the initiation of administrative fine proceedings against the "owner" of the truck, usually the managing director of the company. The question of which court has jurisdiction regularly arises for the authority, the court and the party concerned. The district court of the place of control or the district court of the company's registered office. Depending on the outcome, not only are considerable costs incurred (travel costs, loss of working hours, etc.), but it can also bring advantages or disadvantages, depending on whether one is litigating at the "home court" or at a foreign court.
General rules of jurisdiction
The owner of a motor vehicle is in breach of § 31 II, 69 V No. 3 StVZO if he or she intentionally or negligently orders or permits the operation of a vehicle that does not comply with the regulations. In this context, "commissioning" refers not only to the mere "setting in motion" of the vehicle or its first use. The place of commission and thus also the place of offense within the meaning of 7 I OWiG is rather any place where the vehicle is driven in violation of the regulations on condition due to the order or permission of the owner, because the entire journey, which constitutes participation in traffic, fulfills the elements of the offense[1].
According to § 7 I OWiG, this means that the possible place of commission and thus also the place of offense is both the registered office of the operator and the specific place of control where the regulatory offense was determined by the regulatory authorities. The determination of the place of success and the place of commission in turn has an impact on the jurisdiction of the authority and the court to be determined in the event of an appeal against the fine notice.
Pursuant to Section 68 I 1 OWiG, the decisions on objections to fines are assigned under federal law to the district court in whose district the administrative authority that issued the fine is based. Pursuant to § 68 I, III No.1 OWIG, however, the respective state government may, by means of a legal ordinance, determine the jurisdiction of the district court in deviation from paragraph 1, in which district the administrative offense or one of the administrative offenses has been committed. The federal states of Baden-WuerttembergWürttemberg[2], Bavaria[3], Brandenburg[4], Bremen[5], Hamburg[6], Hesse[7], Lower Saxony[8], North Rhine-Westphalia[9], Rhineland-Palatinate[10], Saxony[11], Saxony-Anhalt[12] and Schleswig-Holstein[13]have made use of this option by means ofstate law.
In this context, the problem arises as to whether, in the event of an appeal against the fine notice, the local court with primary jurisdiction is that in the area of the company's registered office, which is the first of two cumulative places of commission, or that in the area of the place of control, as the second place of commission.
Place of Jurisdiction
According to a decision of the Federal Court of Justice (BGH) of June 19, 1986 [14], in which a decision had to be made regarding the violation of the regulations concerning driving and rest periods by an entrepreneur, the decisive act for the legal assessment isdecisive for the legal assessment is the act of issuing the order to the driver to drive. This entrepreneurial disposition is made in the company of the holder, who violates the duties incumbent on him in his capacity as an entrepreneur. Only the result of the breach of duty manifests itself during the journey. However, this is irrelevant for determining the place of commission. The place of commission is therefore the company's registered office. The district court is deemed to have jurisdiction in the district where the relevant act was committed, and therefore at the company's registered office.
The Federal Court of Justice ruled similarly – albeit without stating reasons – in a decision of September 10, 2003 [16].
In this case, the reproachable behavior of the entrepreneur was based on the overloading of a transport vehicle and the violation of a related duty of supervision in accordance with § 130 I S.1 OWiG. In this regard, the Federal Court of Justice stated that the factual result already occurred with the overloading of the transport vehicles at the company's place of business, and this is to be assumed regardless of whether the entrepreneur is charged with the overloading as such or with the violation of a duty of supervision towards the company's employees.
The District Court of Kassel, for example, took a different legal view in its decision of October 28, 2008[17]. In the underlying facts of the case, there was both a place of commission and a place of occurrence in Rhineland-Palatinate, at the company's registered office, and in Hesse, at the place of control. The District Court of Kassel then ruled that that the fact that there was also a place of commission and a place of success at the place of control in Hesse, there in the district of the Limburg Local Court, meant that the Kassel Local Court, which was only competent in the case of an offense scene located exclusively outside of Hesse in accordance with Section 68 I S.1, was excluded.
It follows from this that as soon as, according to § 68 I, III OWiG in conjunction with the respective state law, a jurisdiction that deviates from § 68 I OWiG due to a location of commission and thus also of success at the checkpoint in the district of a district court exists, this should take precedence over any additional jurisdiction established at the company headquarters.
Arguments
The uniformity of the assessment of the case by the same court initially supports the jurisdiction of the district court in the district of the place of control. This would avoid a divergence of responsibilities for the fine proceedings against the driver and the owner.
The reasoning of the Kassel District Court, which is limited solely to the determination of the nature of the ordering or allowing of the operation of the vehicle by the owner in violation of § 31 II StVZO as a continuous offense, which corresponds to the prevailing opinion in this respect[18], is not, however,convincing. The further argument, according to which in this case the court of the place of control is at least also[19] and then, only on the basis of the fact that a potentially competent district court in the federal state of Hesse is thus given, [20] to declare the competence of this district court, appears ultimately arbitrary in view of the right of the individual to the lawful judge according to Article 101 I GG. This is especially true because the court never addresses the possibility of the court at the company's registered office having precedence, which in the case at hand was in another federal state, namely Rhineland-Palatinate.
In this case, in which an administrative offense was committed in several districts, which may also be located in different federal states, according to the legal concept of § 13 StPO, which is applicable in accordance with § 46 OWiG, in principlein principle, each district court is competent to decide on the related administrative offense. [21] However, in order to solve the problem of this concurrent jurisdiction and to ensure sufficient planning and legal certainty for the person concerned, it seems preferableto follow the view taken by the highest court in the case of alternative jurisdiction, that the allocation should be made to the court in whose district the act that is the main subject of the accusation against the owner was committed. Because only in this case is the fact that the operator, by ordering or allowing the commissioning on his premises, set the cause for the subsequent permanent regulatory offense, sufficiently appreciated.
Furthermore, this result also corresponds to the underlying justification for the introduction of the option of decentralization in accordance with § 68 III OWiG. According to this, the deconcentration by assigning the responsibility to the respective district court of the place of commission or place of occurrence is always subject to the premise of expediency. 23. This justifies an assignment to the district court of the place of commission or place of commission or occurrence is justified precisely in the case in which it is unreasonable to expect the person concerned to waive his or her presence at the main hearing only because of the great distance between his or her place of residence and the place of court, due to the great distance between the place of residence and the place of court, which is the sole reason for the court at the seat of the administrative authority to be competent according to § 68 I OWiG. In this context, if the court in another federal state has jurisdiction and the local court at the company's registered office also has jurisdiction, considerations of expediency must also be taken into account. The conflict of jurisdiction must therefore also be resolved in favor of the local court of the company's registered office, taking into account the aspect of reasonableness.
In particular, in a company that operates a large number of vehicles that carry out orders throughout the Federal Republic of Germany, considerable unnecessary additional costs, for example in the form of travel expenses but also loss of working hours, could be avoided in this way.
Conclusion
For both the defense and the court, the question of local jurisdiction arises regularly, but it is not raised often enough. In the case of the accusation of "ordering or allowing the operation of vehicles", this question can now be answered to the effect that the place of jurisdiction is to be assumed where the company is based and the decisive act or the decisive omission took place. The defense must raise the objection of the lack of local jurisdiction in this regard at the latest by the start of the main hearing.
Summary
In the context of an administrative offense according to § 31 II, 69 V No. 3 StVZO, the problem of cumulative court jurisdiction regularly arises.
To solve this problem, previous case law has, with different justifications, assumed both that the local court at the holder's place of business has primary jurisdiction and that the local court at the place where the offense was detected, i.e. at the place of control, has primary jurisdiction.
To avoid an arbitrary decision, the case law of the Federal Court of Justice, which opts in favor of a primary jurisdiction at the place of business, should be followed.
This result alone is in line with the reasoning behind the law on § 68 III OWiG and guarantees sufficient planning and legal certainty for the person concerned.
[1] BGHSt 25, 338/343; Bay OLG, VRS 60, 155.
[2] Section 28 no. 1 of the Ministry of Justice's Regulation on Judicial Jurisdiction of November 20, 1998.
[3] Section 44 no. 1 sentence 1 of the Regulation on Judicial Jurisdiction in the Area of the State Ministry of Justice and Consumer Protection (Judicial Jurisdiction Regulation Justice - GZVJu) of November 16, 2004.
[4] Section 4 II of the Regulation on Judicial Jurisdiction and Concentration of Jurisdiction (Court Jurisdiction Regulation – GerZustV) of November 3, 1993.
[5] Section 1 of the Regulation on the Jurisdiction of Local Courts under the Law on Regulatory Offenses of December 17, 1968.
[6] Section 1 of the Regulation on the local jurisdiction of district courts in matters of fines in the field of road traffic law of December 17, 1968.
[7] Section 1 I No. 2 of the Ordinance on the Determination of the Local Jurisdiction of the Local Courts in the Fines Proceedings of September 11, 1996.
[8] Section 5 of the Regulation on the Regulation of Jurisdiction in the Judiciary and the Administration of Justice (ZustVO-Justiz) of January 22, 1998.
[9] Section 7 (a) of the Regulation on the Jurisdiction of Local Courts in Criminal Cases against Adults, in Juvenile Criminal Cases, in Fine Proceedings and in Deportation Detention Cases of March 4, 2008.
[10] Section 4 of the State Ordinance on Judicial Jurisdiction in Criminal Matters and Fine Proceedings of November 19, 1985.
[11] § 3 II of the Decree of the Saxony Ministry of Justice on court jurisdiction and jurisdiction in matters of judicial administration (Judicial Jurisdiction Decree - JuZustVO) of May 6, 1999.
[12] Section 1 no. 2 of the Regulation on the Jurisdiction for Objections against Fines in the Area of Road Traffic Law of May 10, 2002.
Section 13 of the State Ordinance on the Jurisdiction of Local Courts in Fines Proceedings for Administrative Offenses under the Road Traffic Act of October 18, 1994.
[14] Federal Court of Justice, NJW 1987, 1152.
[15] so also KG Berlin, VRS 67, 473.
[16] Federal Court of Justice, wistra 2003, 465; Federal Court of Justice, NStZ 2004, 699-700.
[17] Kassel District Court, SVR 2008, 474.
[18] Göhler/ Gürtler OWiG, 15th edition 2009, § 7 margin no. 4; Hentschel/König/Dauer Straßenverkehrsrecht, 40th edition 2009, StVZO, § 31 margin no. 18.
[19] Kassel District Court, SVR 2008, 475.
[20] Kassel District Court, SVR 2008, 475.
[21] Göhler/Seitz OWiG, 15th edition 2009, Section 68 margin no. 19.
[22] Federal Court of Justice, NJW 1987, 1152.
[23] Göhler/Seitz OWiG, 15th edition 2009, Section 68, margin no. 18.
[24] Göhler/Seitz OWiG, 15th edition 2009, Section 68, margin no. 18.
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.