Everyone who violates the laws on cabotage in Germany will get severe fine. This applies both to a carrier and a customer, who usually is a freight forwarder.
The Germans want to fight „systematic cabotage”, however, the problem is something else. Many carriers carry out cabotage transport illegally and German entrepreneuers from the transport industry complain about the lack of controls in this area. Only in 2015, 540 rulings were issued on the fines for the total amount of 650 000 EUR.
– Still, it must be remembered that the people ordering cabotage services are German freight forwarders and German loaders, and many trucks from abroad belong do foreign subsidiaries of the German freight forwarding companies – Andreas Marquardt, the head of BAG summarised.
Legal cabotage
The entrepreneurs from the European Union who carry out cross-border transport to the EU country are entitled to carry out cabotage transport using the same vehicle. They can carry out the determined number of transports in a fixed time. In accordance with the art. 8 sec. 2 sentence 1 and the second regulation (EC) 1072/2009, after the unload in the arriving international transport, it is allowed to carry out maximum three cabotage transports. The last unload must take place no later than on the seventh day. The driver should carry the CMR document regarding the international transport and maximum three transport documents relating to cabotage transports.
Severe fines for illegal cabotage in Germany
In Germany violating the laws regulating cabotage is subject to high fines. In accordance with the art. 19 par. 2a in connection to the par. 7 of the German act on traffic (GüKG) the fines can reach 5000 EUR for a carrier. As a rule, for the first violation there is a mandate in the amount of 1000 EUR. The contracting party is treated more strictly – according to the art. par. 7, in accordance with par. 1a no 1 of GüKG, it can be punished with the fine in the amount of even 20 000 EUR.
Other consequences of illegal cabotage
High fines are only a part of strict consequences for the carrier and the contracting party in that situation.
Many policy conditions – especially from the countries of cabotage companies – provides for the loss of insurance cover in case of violating the laws related to transport. What will be the consequences?
1. Possible compensation from the cabotage contracting party in case of damage may not be paid due to the lack of insurance cover.
2. The freight forwarder who was aware of the fact that the next transport violate the laws on cabotage may also lose its own insurance cover.
Therefore it is in the best interest of the contracting party, who usually is a freight forwarder, to ensure that the carrier has all the required permissions for cabotage transport.
Problems with the interpretation of the law
Even if a carrier has all the required permissions, executing cabotage operations in Germany may result in some problems. How is that possible?
– Some administrative authorities and courts misinterpret the rules regulating this type of transport – stressed thr attorney Jürgen Knorre on the website dvz.de.
The problem is that even though the German act on traffic (GüKG) precisely specifies the amounts of fines for the violation related to cabotage, neither EU regulations nor the German legislator define cabotage in legal terms.
BAG says one thing, the courts say the opposite
According to the Federal Office for Transport of Goods (BAG) as the control authority, in case of added load it is one cabotage transport (not a few) unless there is the same sender and recipient on the bill of lading CMR for each part of the goods. Otherwise, every load should be treated as co-load a seperate cabotage operation.
In turn, in that case the District Court (AG) in Cologne imposed a fine in the amount of 1000 EUR for violating the law on cabotage and exceeding the allowed limit of three operations, in accordance with the art. 8 sec. 2 sentence 1 of the Regulation (EC) 1072/2009 (judgement of 19 January 2016, case number 902aOwi271/15).
Nevertheless, the Higher Regional Court (OLG) of Cologne, and later also the Administrative Court of Cologne stated that for the number of cabotage operations with one sender it is the number of recipients which is binding.
Comment
– The basic source of the rules on cabotage is the regulation no. 1072/2009. The regulation states that the transport shall be deemed to be one single consignment transported on one bill of lading. If during one physical transport the carrier transports two consignments to two recipients and on two bills of lading, this route shall be deemed to be two transports. It is often the case that the carrier who cooperates with the longterm freight forwarder and carries out the tasks for it, receives only text messages wit the information on the place of loading or unloading and does not have the time for analysing the route. Consequently, usually it is the carrier who receives the fine for the exceeded number of cabotage and the freight forwarder escapes responsibility. Te consequences also for the contracting party will contribute to larger control over the routes in particular the cabotage rules – said Paulina Eliasz-Pietrusewicz, senior lawyer of the Law Office Translawyers.