Driving Bans in Germany
Driving bans are based on the Road Traffic Act (StVG) and are regulated there in § 25. According to this, the issuing of a driving ban for a period of one month to three months is basically at the discretion of the competent administrative authority or the court when deciding on the fine. The prerequisite is that the person has committed a traffic offence according to § 24 StVG with gross or persistent violation of the duties of a motor vehicle driver or a violation of the 0.5 per mille limit as well as the ban on driving motor vehicles under other intoxicating substances according to § 24a StVG. The reasons for which a driving ban may be issued are therefore manifold and range from serious violations of speed limits or safety distances, to the use of a mobile phone while driving, to driving under the influence of alcohol or drugs.
However, regardless of the reason for which the driving ban was issued, the following conceptual distinction is to be particularly noted as a special feature of German law and can quickly lead to confusion if it is not known. In Germany there is a strict distinction between the terms “driving licence” and “permission to drive“. In this context, the driving licence is basically the document which proves the permission to drive and thus the holder’s entitlement to drive motor vehicles. It is therefore not surprising that in Germany it is generally permitted to drive without a driving licence on hand. Only if a requirement for presentation of the driving licence is not fulfilled is a warning fee to be paid. The driving ban leads to the suspension of the driving licence for a period of one to three months, i.e. during this period there is no entitlement to drive a motor vehicle. At the end of the driving ban period, the driving licence is automatically regained.
In contrast to driving without a driving licence, driving following a driving ban does not lead to a warning, but constitutes a criminal offence according to § 21 StVG, which is punishable with a prison sentence of up to one year or with a fine. In some other countries, no distinction is made between driving licence and the permission to drive, so that there the document confirming the right to drive a vehicle is at the same time the right itself. Thus, the differentiation between “driving licence” and “permission to drive” is not only essential for the further explanations, but also for the practical procedure in German road traffic.
Possibility of a Driving Ban for the Foreign Driver
The question now arises as to whether the German authorities can issue an effective driving ban on foreign driving licences at all or whether this falls within the competence of the foreign state which issued the driving licence.
For EU member states and thus EU foreigners in Germany, the special requirements of the Directive on driving licences (“driving licence” also means the permission to drive, contrary to the requirements of German law according to European understanding) (RL 2006/126/EC), which was issued by the European Parliament and the Council in 2006 and transposed into national law by the EU member states, apply. In particular, this directive requires the recognition of driving licences from other EU countries in all member states. However, the directive does not explicitly regulate the equal treatment of EU foreigners in the case of driving bans or restrictions on driving licences in other member states.
In the course of this, the European Court of Justice has decided (ECJ, 23.04.2015 – C-260/13) that the Directive entitles each Member State to apply (in Art. 11 para. 4 subpara. 2 of Directive 2006/126/EC) national provisions on restriction, suspension, withdrawal or cancellation of the driving licence. This therefore also includes a driving ban according to § 25 StVG, which was confirmed by a recent decision of the Munich Higher Regional Court in 2018 (OLG Munich, 19.09.2018 – 4 OLG 14 Ss 228/18).
This means that the requirements of the German Road Traffic Act and Road Traffic Regulations apply to EU foreigners, but also to third-country nationals if they wish to drive a motor vehicle on German roads. Violations of these requirements can therefore also be committed by foreigners, which can then lead to the existence of the conditions for a driving ban according to § 25 StVG. It is questionable, however, how such a driving ban is then enforced and whether there is a threat of custody of the foreign driving licence for the period of the driving ban.
Effects of the Driving Ban on the Foreign Driving Licence
The implementation or enforcement of the driving ban for EU foreigners and third-country nationals is regulated in § 25 Para. 2 and 3 StVG. According to this, the legal force of the fine decision is required for the driving ban to become effective. In the following it is ordered that national and international driving licences, issued by a German authority, are officially kept in safekeeping for the time of the driving ban and this also applies if the driving licence was issued by an authority of a member state of the European Union or another EEA member state. In this case, the foreign driving licence would have to be submitted to the German authorities. However, this equivalence to the implementation of driving bans with regard to German driving licences only applies under the special condition that the EU foreigner with a foreign driving licence has his or her normal place of residence in Germany.
EU foreigners with a foreign driving licence who do not have their normal place of residence in Germany, or third-country nationals with a foreign driving licence who have been issued a driving ban do not therefore have to hand in their driving licence to the German authorities for its duration. According to § 25 Abs. 3 StVG, the driving ban may only be noted on the foreign driving licence. The driving licence may also be confiscated in principle for the purpose of making the note but may not be kept beyond this purpose.
In principle, the person concerned has the right to choose when the driving ban is to take effect in accordance with § 25 (2a) StVG. This provision is not directly applicable to foreign driving licences. Nevertheless, it should be ensured that a foreign person affected with a foreign driving licence is also granted such a right of choice, as the Higher Regional Court of Hamm already decided in 2006 (OLG Hamm, 15.08.2006 – 2 Ss OWi 455/06).
Subsequently, it still has to be clarified what effects a driving ban imposed in Germany has on the entitlement to drive a vehicle in the home country or the issuing country. In principle, a driving ban imposed in Germany is only directly valid within the German national territory. Thus, the cross-area effect of driving bans depends on the regulatory and traffic law provisions of the respective country. It should be noted that many states can transfer foreign driving bans with reference to Art. 42 of the Vienna Convention. Our experienced lawyers with expertise in immigration, residence and traffic law can check for you whether in your individual case a driving ban imposed in Germany also has effects in your exhibiting country.
Withdrawal of the Driving Licence in Germany – Driving Disqualification
In Germany, driving disqualification can be declared an administrative measure by the driving licence authority in accordance with § 3 StVG or a criminal penalty in accordance with §§ 69 ff. StGB. In contrast to the driving ban, it is not a temporary but a final measure. The driving licence must therefore be applied for again and is only issued after a renewed examination of the suitability to drive motor vehicles. According to § 3 StVG, the driving licence is to be withdrawn if someone proves to be unsuitable or unfit to drive motor vehicles. As in the case of a driving ban, there can be a variety of reasons for this, such as: significant and repeated violations of traffic regulations, drunkenness in traffic or exceeding the 8-point mark in the driving aptitude register.
The withdrawal of a driving licence as a criminal sanction according to § 69 StGB can be ordered in principle if someone has committed a criminal offence in connection with driving a motor vehicle or in violation of the duties of a motor vehicle driver and it is apparent from the offence that he is unfit to drive motor vehicles. Criminal offences in this context may include endangering road traffic (§ 315c StGB), participating in a prohibited motor vehicle race (§ 315d STGB) or drunk driving (§ 316 StGB).
See our page on Driving Offences Lawyer: DUIs, Alcohol Limits and the Law in Germany to find out more.
Possibility of Withdrawal of the Foreign Driving Licence – Driver Disqualification
The question that now arises is whether EU foreigners and third-country nationals must also expect their foreign driving licence to be revoked by the German driving licence authorities, even though the German driving licence authority was not the issuer of their driving licence. As already seen in the case of the driving bans, the European Court of Justice has decided (ECJ, 23.04.2015 – C-260/13) that the Directive on driving licences (Directive 2006/126/EC) entitles each Member State to apply national provisions on restriction, suspension, withdrawal or cancellation of the driving licence. The requirements for the withdrawal of the driving licence according to § 3 StVG or §§ 69 ff. StGB thus also apply in principle to EU foreigners and third-country nationals.
According to § 2 para. 7 StVG, the driving licence authority can obtain information from foreign registers or from foreign offices when determining the (missing) suitability or ability to drive motor vehicles. This means that traffic offences or crimes committed abroad or in the country of issue can also affect the decision to withdraw a driving licence in Germany. Nevertheless, the ECJ ruling still leaves open the question of how the withdrawal of a foreign driving licence is to be carried out in practice, in particular whether EU foreigners and third-country nationals must also fear a cross-regional effect of the withdrawal in the issuing state.
Effects of the Withdrawal of a Foreign Driving licence
The effects of an order to revoke a foreign driving licence and its execution have been considered separately in German law, comparable to the driving bans on foreign driving licences.
In the case of a driving licence withdrawal by the driving licence authority under § 3 StVG, Paragraph 1 of the provision provides that in the case of a foreign driving licence, the withdrawal has the effect of depriving the holder of the right to drive in Germany. This is also confirmed by § 46 para. 5 Driving Licence Regulation (FeV). According to § 3 para. 2 STVG and § 46 para. 6 FeV, in the case of foreign driving licences, the withdrawal expressly does not invalidate the driving licence itself, but the right to drive motor vehicles in Germany. Accordingly, the withdrawal of the foreign driving licence only has effects on the territory of the Federal Republic of Germany. The prohibition must again be noted on the foreign driving licence. In addition, the European Directive on Driving Licences (Directive 2006/126/EC) gives Member States the option of returning driving licences issued by another Member State to the competent authority of the issuing State for persons who are normally resident in Germany.
The withdrawal of a foreign driving licence under criminal law aspects is regulated in more detail in § 69b StGB. According to this, the withdrawal of the driving licence also has the effect of revoking the right to use the driving licence in Germany. Furthermore, the provision for holders of a foreign EU driving licence, who have their normal residence in Germany, stipulates that the driving licence must be confiscated in the judgement and returned to the issuing authority. In other cases, i.e. for EU foreigners not normally resident in Germany and third-country nationals, the withdrawal of the driving licence and the ban is noted in the foreign driving licence.
In principle, the withdrawal of the driving licence thus only affects the entitlement to drive motor vehicles in Germany. Whether the ordered revocation also has an effect in the issuing country or other foreign countries depends on the regulations of the respective country.
Defence Options with experienced lawyers
Ultimately, it is also essential to take the necessary legal steps and lodge appeals in order to avert driving bans or withdrawal of the driving licence in advance. The driving ban will be imposed in a judgement or set in a fine. The necessary appeal against the fine notice can be lodged within the two-week period, for example, in order to prevent the notice from taking legal effect and thus the driving ban from being imposed. However, in order to circumvent a driving ban, it is necessary to credibly discuss the intervention of a case group such as momentary failure, disproportionate measurement or particular hardship before the competent authority. For this procedure it is highly recommended to engage an experienced lawyer for traffic law as well as immigration and residence law.
Our lawyers at Schlun & Elseven are experienced in dealing with the road traffic and driving licence authorities as well as in negotiations in court. We have the necessary expertise and many years of experience to ward off driving bans or the withdrawal of your driving licence for you. We also help you to deal with all other questions concerning foreign driving licences. We can advise you on site at our offices in Aachen, Cologne and Düsseldorf and throughout Germany with the help of our conference rooms in Berlin, Hamburg, Munich, Stuttgart and Frankfurt. Clear communication with our clients is particularly important to us, which is why we offer our services both in English and a number of other languages.