Cabotage in Germany: fines and criminal-law risk for non-EU carriers

IMPORTANT INFORMATION FOR NON-EU CARRIERS

Cabotage in Germany represents one of the most sensitive risks for transport companies from Serbia, Bosnia and Herzegovina, Montenegro, North Macedonia, Albania and other countries outside the European Union. A transport company registered in these countries may not carry out domestic carriage of goods on a Germany–Germany route, regardless of whether it holds an ECMT or bilateral permit. However, a much more serious risk arises when the German police do not treat the case solely as an infringement of road transport regulations.

In practice, there are cases where, in addition to unlawful cabotage, the status of a third-country driver and his right to work on the territory of Germany are also examined. In such cases, the matter may move from administrative offence proceedings into criminal proceedings, including suspicion of “smuggling of foreigners” (Einschleusen von Ausländern) in accordance with the German Residence Act, Employment and Integration of Foreigners in the Federal Republic of Germany (AufenthG), Section 96: Smuggling of foreigners and persons to whom the Freedom of Movement Act/EU applies.

This means that the case is no longer only: “The carrier carried out unlawful cabotage,” but may become: “Did someone organise or enable a third-country driver to unlawfully stay and work in Germany?”

Such a qualification is not an automatic consequence of every cabotage operation, as it depends on the driver’s status, his right of residence and work, the circumstances under which he entered Germany, the way in which the transport was organised and other facts of the specific case. The prohibition of cabotage for carriers registered outside the European Union applies throughout the territory of all EU Member States, while this text presents the risks and consequences using Germany as an example.

What is cabotage?

Cabotage is the domestic carriage of goods within one country carried out by a carrier registered in another country. If a Serbian carrier loads new goods in Munich and unloads them in Berlin, i.e. if both the place of loading and the place of unloading are located in Germany, such a transport operation constitutes cabotage.

However, not every journey in Germany is cabotage. It is important to distinguish between domestic and international transport. If the goods were loaded in Serbia and the same goods are then unloaded, for example, first in Munich and then in Berlin, this is not cabotage. It is an international transport operation from Serbia to Germany with several unloading points. What is decisive is that the transport documentation clearly shows that the goods for both unloading points were loaded outside Germany.

Therefore, it is not sufficient to look only at the movement of the vehicle. It is necessary to check where the specific goods were loaded, where they are being unloaded and what is shown by the CMR, the transport order and other documentation.

A security deposit of several thousand euros may be only the beginning

In standard administrative offence proceedings for unlawful cabotage, a foreign carrier may be required to pay a Sicherheitsleistung, i.e. a security deposit for the future proceedings.

A security deposit is not the same as a final fine. It is paid in order to secure the conduct of proceedings against a carrier that does not have its registered office in Germany. In a typical case of unlawful cabotage, the amount of the security deposit in practice often ranges around EUR 2,600–2,700. This amount usually includes the expected fine and the costs of the proceedings.

It is important for transport companies to know that paying a security deposit on the spot is not the same as admitting guilt. The security deposit is paid so that the proceedings can continue and, in certain cases, so that the journey may be allowed to continue. However, everything the driver says during the inspection, the documentation he hands over and the explanations he signs may be of great importance for the further course of the proceedings.

During the inspection, the driver may immediately refer the competent authority to the authorised representative, thereby reducing the risk of missed deadlines, incomplete statements and the submission of information that may be detrimental to the transport company. EXPO provides its clients with the service of a permanent representative in Germany, professional communication with German authorities and support throughout the entire proceedings, with the aim of protecting the interests of the transport company and reducing regulatory risks in international transport.

What happens when the police connect cabotage with the driver’s status?

In the case of third-country drivers, an additional question arises: on what basis is that driver allowed to work in Germany?

German regulations make an important distinction between international road transport and domestic work in Germany. This is precisely where a significantly more serious problem may arise: if the police conclude that the driver is carrying out domestic work that is not covered by the rules applicable to international transport, they may start examining whether his stay and work in Germany are lawful. If additional elements prescribed by Sections 95 and 96 of the AufenthG are then established, the case may receive a criminal-law qualification.

For the carrier, the difference is enormous: instead of proceedings for unlawful cabotage and a security deposit of several thousand euros, the company, responsible persons or other individuals involved in organising the transport may face a far more serious criminal-law allegation. Under the applicable law, where the legal conditions for this criminal offence are met, the prescribed penalty is imprisonment from six months to ten years, while in less serious cases imprisonment of up to five years or a fine may be imposed.

The driver deployment plan may be an important circumstance in the proceedings

When assessing a specific case, it may also be relevant whether the driver, before arriving in Germany, was duly covered by a deployment plan (Einsatzplanung) submitted by the employer to the German authorities.

For mobile activities, which include the transport of goods, German regulations provide for the notification of a deployment plan containing information about the driver, the period of deployment, the expected number of engagements in Germany and the client. If the specific driver was duly declared and covered by a valid deployment plan, this could be a favourable circumstance for the carrier in the specific proceedings, as it shows that his presence and planned engagement in Germany were not concealed and that the employer had previously fulfilled the relevant notification obligation.

However, a duly submitted deployment plan does not mean that cabotage is permitted!

What should the carrier do during an inspection?

If an inspection develops from a cabotage check into proceedings in which the police refer to unlawful stay, work or smuggling of foreigners, the situation should be treated much more seriously.

It is recommended to:

• immediately inform the responsible person in the company and the professional representative;
• avoid giving detailed statements about the organisation of the transport without prior legal advice;
• avoid signing statements whose content the driver does not understand;
• keep and photograph all documentation received during the inspection;
• keep the CMR, transport orders and documentation relating to the previous international journey;
• in the event of a criminal-law qualification, involve as soon as possible a lawyer experienced in German criminal, immigration and transport law.

How can EXPO help?

When it comes to cabotage, the best protection is to check the transport operation before the vehicle starts the journey.

The EXPO team can check whether the planned route contains elements of cabotage, analyse the documentation and provide support in communication with German authorities. When a case develops into criminal proceedings, EXPO can coordinate the documentation and communication with the lawyer in charge of the legal defence.

For carriers, the most important message is simple: The risk of unlawful cabotage in Germany should no longer be viewed only through the lens of a fine of several thousand euros. In certain circumstances, a single domestic journey may also raise the question of the legality of the driver’s work and stay, and subsequently lead to criminal proceedings.

If you have a transport order within Germany and are not sure whether it constitutes cabotage, contact the EXPO team before the journey begins.

It is better to check the transport before departure than to deal with the consequences after an inspection.