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?
Driver´s license check - the legal basis
Driving without a license can have negative consequences not only for the driver, but equally for the owner of the vehicle. According to § 21 para. 1 no. 2 StVG the owner of a vehicle is liable if he allows a person to drive his vehicle who does not possess the required driving license or who is temporarily prohibited from driving a vehicle due to a driving ban. There is no expressed provision in the law for the owner of the vehicle to check his driver´s license. The Obligation to check the driver's license rather results from the fact that the vehicle holder is liable to criminal consequences in the form of a fine or imprisonment pursuant to § 21 StVG. The owner is also liable in the event of an accident. If the owner negligently or intentionally lets someone drive his car without a driver's license, he may not be able to recover the damage from the insurance company.
According to a 1992 ruling by the Federal Court of Justice (BGH, VersR 1992, 437), the owner of a vehicle is the person who "uses the 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 owner. Thus, in companies and fleets, the managing directors or the board of directors are liable. The Responsibility of the holder duties can also be delegated by the managing directors and board members to fleet managers and thus limit their liability.
Driver's license check - how should they be carried out?
The driver's license can be checked manually or by means of electronic systems. In order to protect yourself as a fleet operator to the greatest extent possible, the driver's license should be presented in original, the submission of a mere copy is not possible. For documentation purposes, however, the vehicle owner should make a copy of the original driver's license, ideally with a current daily newspaper, so that manipulation can be ruled out. The Bavarian State Office for Data Protection Supervision also gives green light for making a copy. Only persons entrusted with fleet management should subsequently have access to the documents.
The check should furthermore be documented in writing , e.g. by means of a verification sheet and signed by the vehicle owner and 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 license authority, e.g. that the driver may only drive vehicles with automatic transmission. A violation of these restrictions would also lead to owner liability. The document should contain the following information:
- Name and address of the driver
- Driving license number, driving license class, date and place of issue and the issuing authority
- Validity date of the driver's license
- Note that the driver must immediately notify the vehicle owner of the loss or revocation of the driver's license.
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.
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.
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