Legal basis for driving licence checks in the company
As a fleet manager, am I obliged to carry out driving licence checks on my employees? What is the legal basis for electronic driving licence checks?
Legal basis for company driving licence checks
Driving without a license can have negative consequences not only for the driver, but also for the owner of the vehicle. Every vehicle owner has to fulfil certain obligations. Pursuant to Section 21 (1) No. 2 StVG, the owner of a motor vehicle is liable if he allows a person to drive his vehicle who does not possess the required driving licence or who is temporarily prohibited from driving a vehicle due to a driving ban. In the following, the topics of "operational driving licence checks - what to bear in mind" and "driving licence checks - legal basis" are discussed in more detail.
Driving licence checks - the legal basis
There is no express provision in the law that the owner of a vehicle must regularly carry out a driving licence check on the drivers of his vehicle. Rather, the obligation to check driving licences arises from the fact that the owner must fear criminal consequences in the form of a fine or imprisonment in accordance with § 21 StVG if he allows or orders a person without a driving licence to drive his vehicle. In addition, the issue of driving licence checks is also relevant to the liability of the owner in the event of an accident. If the owner negligently or intentionally lets someone drive his car without a driving licence, he may not be able to get the damage reimbursed by the insurance company.
According to a 1992 BGH ruling (BGH, VersR 1992, 437), the owner of a vehicle is the person who "uses the motor vehicle for his own account and has the corresponding power of disposal over it". It is therefore not important who is entered in the vehicle register as the keeper. This is only taken as an indication. Thus, in companies and vehicle fleets, the managing directors or the board of directors are liable if they let their employees or customers drive their cars without a driver's license. The managing directors and board members can also delegate the responsibility of the keeper duties to fleet managers and thus limit their liability. However, the fleet manager must also be subject to random checks to ensure that he is carrying out his work conscientiously.
Driving licence checks in the fleet - how should they be carried out?
The driving licence can be checked manually or by means of electronic systems. There is no specification as to how the driving licence check is to be carried out. In order to ensure the greatest possible security for the fleet operator, the original driving licence should be presented during the check. The presentation of a mere copy is not legally secure, as it cannot be ruled out that it has been tampered with. However, for documentation purposes, the vehicle owner should make a copy of the original driving licence in order to be able to prove that he has fulfilled his obligations in the event of a check. It is recommended that a current daily newspaper is also copied so that manipulation can be ruled out. The Bavarian State Office for Data Protection Supervision also gives the green light for making a copy. However, the documents should be stored in such a way that only persons entrusted with fleet management have access to them.
The inspection should also be documented in writing, e.g. by means of a record sheet. The following information should be recorded in this:
- Name and address of the driver
- Driving licence number, category, date and place of issue and issuing authority
- Expiry date of the driving licence
- Note that the driver must immediately notify the vehicle owner of the loss or withdrawal of the driving licence
The documentation should be signed jointly by the vehicle owner and the driver. The documents must be kept for at least five years.
Furthermore, it should be checked whether restrictions have been imposed on the driver by the driving licence authority, e.g. that the driver may only drive vehicles with automatic transmission. A breach of these restrictions would also lead to keeper liability.
Exception foreign driving licences
Special care must be taken with foreign driving licences. In particular, the matter should be approached with a healthy degree of scepticism if an employee or customer presents a foreign driving licence who has his or her normal place of residence in Germany. Normally, foreign driving licences can be transcribed accordingly. A foreign driving licence could always entail the risk that the driver is banned from driving in Germany and has therefore acquired his licence abroad. As long as the driving ban exists in Germany, the offence of § 21 StvG is fulfilled if the driver participates in road traffic with a foreign driving licence and a driving ban in Germany. If, however, the driving licence was acquired abroad after the ban period, there would be no violation of the law. However, it will be difficult for the vehicle owner to verify this.
Driving licence checks in the fleet - how often should they be carried out?
In the case of operational driving licence checks, a distinction is made between two variants and thus the frequency of the fleet driving licence check.
If the driver has been given a company car for permanent use, the driving licence check should be carried out at the beginning of the transfer and repeated at intervals of six months. It is important that the vehicle user is made aware that he/she must immediately report the loss or withdrawal of the driving licence to the fleet manager. In addition, the vehicle owner must also check the driver's license in addition to the regular appointments if the driver's license is suspected of being revoked.
Driver's license checks in the fleet when vehicles are occasionally transferred should be done prior to each transfer of the vehicles to avoid owner liability.
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