The case, described by BALM, concerns a freight forwarding company in southwest Germany. Over several months, it contracted two foreign hauliers to carry out a total of 449 transports, which were conducted in violation of cabotage regulations. The hauliers had either not previously performed any cross-border transport or had not complied with the four-day ‘cooling-off’ period after three permitted cabotage operations.
The Cologne District Court has confirmed 449 cases of misconduct related to the liability of the transport contracting company under Article 7c of the German Road Transport Act (GüKG), reports BALM in an official communication.
Article 7c of the Road Transport Act reads as follows: ‘Anyone who has entered into a contract for the carriage of goods or a freight forwarding contract with a company for the purpose of their business or independent professional activity may not contract out the services under this contract if they know or are negligently unaware that the entrepreneur:
- does not hold an authorisation pursuant to paragraph 3 or an authorisation pursuant to paragraph 6, or a Community licence, or makes unauthorised use of an authorisation, authorisation or licence,
- uses for transport operations drivers who do not meet the requirements of § 7b(1), first sentence, or for whom they do not hold a driving licence in accordance with Articles 3 and 5 of Regulation (EC) No 1072/2009,
- employs or permits the operation of a forwarding agent or freight forwarder who performs the transport under the conditions provided for in points 1 and 2.
The effectiveness of the contract concluded for this purpose shall not be affected by the infringement under point 1.’
“All commercial haulage customers have a duty of care to ensure that the companies to which they outsource haulage have valid entitlements (e.g. a Community licence) and do not use them in an unacceptable manner,” stresses BALM.
The contracting haulage company did not check or otherwise prove whether the two hauliers complied with the cabotage rules. As a result, the Cologne District Court imposed a fine of €72,700 on the transport commissioner and a financial penalty of €17,928 on the responsible managing director of the shipping company.