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Detlef Neufang Lawyer Federal Association for Transport, Economy and Logistic – BWVL - GERMANY

7. Symposium of Lawyers Members of the IRU Legal Assistance Network Saint Petersburg, 30. April 2008 Diversity in controls and sanctions for driver‘s work conditions. Detlef Neufang Lawyer Federal Association for Transport, Economy and Logistic – BWVL - GERMANY.

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Detlef Neufang Lawyer Federal Association for Transport, Economy and Logistic – BWVL - GERMANY

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  1. 7. Symposium of LawyersMembers of the IRU Legal Assistance NetworkSaint Petersburg, 30. April 2008Diversity in controls and sanctions for driver‘s work conditions Detlef Neufang Lawyer Federal Association for Transport, Economy and Logistic – BWVL - GERMANY

  2. Overview of the national and international rules applicable Regulation 561/2006/EC AETR Labour Time Law (Arbeitszeitsgesetz-ArbZG) Law on Bus and Truck Crews (Fahrpersonalgesetz-FPersG) Bus and Truck Crews Regulation (Fahrpersonalverordnung-FPersV) Regulation on Admission for Road Traffic (Straßenverkehrszulassungsordnung-StVZO)

  3. Driving time concept

  4. Relevant documents to have on board the vehicle in case of control • Tachograph record sheets of the current day and the previous 28 calendar days (when analog check instrument is used) • Log book, if driver was assigned one • Printouts that must be created in accordance with art. 15 of 3821/85 EEC if a vehicle with a digital check instrument was driven in the previous 28 calendar days • Attestation of activities under Regulation (EC) 561/2006 or AETR • AETR-transport: documents of the ongoing week and the last day of the preceding week

  5. Control bodies - Federal Office of Goods Transports =(Bundesamt für Güterverkehr – BAG) - Police - Custom Authority/Fiscal administration =(Hauptzollamt) - Trade Supervisory Authority =(Gewerbeaufsichtsamt)

  6. Applicable sanctions • Control bodies can take various steps in case of violation, depending upon the type and severity of the violation: They will • issue warnings, • start a proceeding concerning administrative penalties, • demand a provision of security (for foreigners), • prohibit the vehicle from traveling further on (in case of serious violations), • compel the driver to take a daily rest period, • refuse entry to the territory of Germany. • In extreme cases, when driver refuses to pay and the offence was serious, authorities can impound the vehicle.

  7. Applicable sanctions • Penalty - Examples • Driver/Employer: • Rest period not sufficient: • First hour: 30/30 € • > 1 hour: 30/60 per 60 min. • Driving time interruption not sufficient: • per 15 min. 30/60 € • Driving time too long: • over 9 hours: 30/60 € for the first 60 min. • > 10 hours: 30/60 € per 30 min.

  8. Applicable sanctions • No Attestation of activities under Regulation (EC) 561/2006 or AETR: 75/150 € • No use of record sheet/driver card: 125-250 € (driver only) • Vehicle not equipped with tachograph: 2500 € • Warning, penalty and security can be paid by EC-Card, credit card or service card

  9. Applicable sanctions • Working time: • Exceeding the maximum daily/weekly working time according to the Labour Time Law: 50-100 € per hour (employer only) • If employer violates the working time rules • intentionally and puts the driver‘s health at risk • or repeatedly breaks the rule he commits a crime according to § 23 Labour Time Law. Possible sanctions: fine or prison sentence up to one year

  10. Persons sanctioned • Driver • Employer • Consignor(in the – rare - case of § 8 a FPersG)

  11. Means and deadline for appeal • Judgement/conviction: written appeal within one week • Summary sentence: written objection within 2 weeks after summary sentence has been delivered • Penalty notice: written objection within 2 weeks after penalty notice has been delivered

  12. Practical advice for drivers • Inspections of BAG, police or customs: • The driver should • present all demanded documents • and, when road inspectors accuse him of an infringement of a regulation, refrain from giving excuses, justifications or explanations (why he drove too long, rested too short, drove too fast, did not keep enough distance to the next truck etc). In most of all cases, it worsens the situation and destroys any successful defence option. Silence is golden!!

  13. Practical advice for drivers • If the driver is accused by control bodies of an infringement of (EC) 561/06 or other rules and regulations, he should ask for and keep any document or another evidence concerning penalties imposed or the initiation of proceedings until such time as the same infringement of this regulation can no longer lead to a second proceeding or penalty (Art. 20 (EC) 561/06).

  14. Practical advice for drivers • Don‘t forget: Member states of EC/EEC can impose a penalty on an undertaking and/or a driver for an infringement of the 561/06 detected on its territory, and for which a penalty has not yet been imposed, even where that infringement has been committed on the territory of another Member State or a third country (§ 8 a IVLaw on Bus and Truck Crews/Fahrpersonalgesetz-FPersG). • Forum shopping can be an option…

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