In practice, the terms ‘contract of forwarding/forwarder’, ‘contract of carriage/carrier’ or ‘transport company’ are often confused and used incorrectly under the German legislation. However, there are significant legal differences between these concepts.
The activities and definition of a freight forwarder are based on § 453 et seq. of the German Commercial Code (HGB), which states that the freight forwarder is obliged by the forwarding contract to arrange the shipment of goods.
Freight forwarder in Germany
According to the German Commercial Code, the tasks of a freight forwarder include:
– transport arrangements,
– determination of the means of transport,
– determination of the route,
– selection of the carrier,
– conclusion of transport, storage and forwarding contracts required for shipment,
– providing information and instructions to the company carrying out the transport.
The profession of a freight forwarder is not legally protected under German law and no authorisations are required here, as opposed to the profession of the carrier. The scope of the forwarder’s activity is usually regulated by the General German Forwarder’s Conditions (ADSp – last wording of the act from 2017).
However, as soon as the freight forwarder uses his own motor vehicles (i.e. those at the disposal of the freight forwarder, i.e. also hired or leased) with a gross weight exceeding 3.5 t, he will carry out road transport operations requiring a licence. This is called an independent transition from the role of a freight forwarder to that of a carrier as soon as one condition is met – the acquisition and use of a tractor on any legal basis. The provisions of § 407 et seq. of the German Commercial Code concerning the freight contract, the road transport law and the associated regulations, including the conditions for road transport, freight forwarding and logistics companies (from the German VBGL), apply to the carrier.
Carrier – according to German regulations
Determining the difference between a transport company and a carrier has also been controversial for a long time. A transport company within the meaning of § 407 et seq. of the German Commercial Code shall be the carrier who:
– uses his own vehicle for transport and has a transport licence pursuant to Article 3 of Regulation (EEC) 881/92 or authorisation to engage in the occupation of road transport operator pursuant to Article 3 of the Road Transport Law. This also applies if, as an individual, the driver works for only one company without additional employees and uses the company’s logo.
– an additional condition is that the carrier has, not just in theory, the possibility of carrying out transport for its own customers on its own account. It does not matter if it actually uses this option.
– acquiring the rights to a tractor – the legal form of having a right to a tractor is not important here (leasing, renting, buying).
The above is very important for Polish transport companies, which employ workers on a self-employed basis, i.e. in the B2B formula. According to German regulations, a self-employed/B2B worker is considered to be a transport company in Germany. For this reason, during police or BAG checks, officers will require him to submit a Community licence for his sole proprietorship. Lack of a licence will result in a fine for the driver and the company.
This article does not constitute a legal opinion, legal interpretation or opinion.
Photo: Bartosz Wawryszuk