Traffic manager

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The term traffic manager is mainly used in connection with commercial road haulage according to the Road Haulage Act (GüKG). It was introduced by EU Regulation (EC) No. 1071/2009, which came into force on December 4, 2011; Since that day, all companies that operate commercial road haulage require a traffic manager.

Basis: the Freight Transport Act (GüKG)

Commercial road haulage

definition

Anyone in Germany who transports third-party goods commercially (i.e. for a fee) with vehicles that, including trailers, have a gross vehicle weight higher than 3.5 tonnes, operates commercial road haulage in accordance with the GüKG. He needs a permit for this. The basis for this is Section 1 (1) GüKG.

Delimitation - no commercial road haulage

Exceptions according to GüKG

The following transports do not fall under the GüKG and therefore do not require a permit:

  • the occasional, non-commercial transport of goods by associations for their members or for charitable purposes,
  • the transport of goods by corporations, institutions and foundations under public law as part of their public tasks,
  • the transport of damaged vehicles or vehicles in need of repair for reasons of traffic safety or for the purpose of repatriation ( attention: mere towing e.g. from the stopping ban does not fall under this exception!)
  • the transport of medicines, medical devices and equipment as well as other goods intended for assistance in urgent emergencies,
  • the transport of milk and milk products for others between farms, milk collection points and dairies by agricultural entrepreneurs
  • the usual transport of agricultural and forestry commodities or products in agricultural and forestry operations
    • for own purposes or
    • for other establishments of this type
      • as part of neighborhood help or
      • within the framework of a machine ring or a comparable economic association, provided that the transport is carried out within a radius of 75 kilometers as the crow flies around the regular location of the vehicle, the residence or the seat of the owner with tractors or special vehicles that are exempt from vehicle tax
  • the transport of operating equipment for own purposes within the framework of the exercise of a business as well as
  • the transport of mail as part of universal services by postal service providers.

Works traffic

Works transport is the transport of your own goods or transport for your own purposes under the following conditions:

  • The goods carried must be the property of the company or have been sold, bought, rented, rented, manufactured, manufactured, extracted, processed or repaired by the company.
  • The transport must serve to deliver the goods to the company, dispatch them from the company, move them inside or - for personal use - outside the company. The vehicles used for transportation must be driven by the company's own staff or by staff made available to the company under a contractual obligation.
  • The transport may only represent an ancillary activity in the context of the entire activity of the company.

Works traffic is also not permitted, but notifiable. Vehicles with a gross vehicle weight of more than 3.5 tonnes that are used for works transport must be reported to the state representatives of the Federal Office for Goods Transport (BAG).

carrier

Often the terms freight forwarder, haulage company, freight carrier or transport company are taken for the same thing and used accordingly and therefore confused. This is not only wrong, but also legally dangerous because

  1. The operation of a forwarding agency does not require a separate permit
  2. The operation of a road haulage company, on the other hand, requires a permit according to GüKG
  3. The concept of the carrier mainly regulates and regulates the connection with the distribution of tasks and liability in a transport process
  4. The concept of the transport company, a collective term for all possible transport processes, is of no great legal relevance

To 1) - Forwarding The activity and definition of a forwarding agent is based on §§ 453 ff. HGB . According to this, "... the freight forwarder is obliged by the freight forwarding contract to arrange for the shipment of the goods." According to the German Commercial Code, the duties of the freight forwarder include: organizing the transport, determining the means of transport, determining the transport route, selecting the executing company, the Conclusion of the freight, storage and forwarding contracts required for the shipment, the provision of information and instructions to the executing entrepreneurs and the securing of claims for damages by the sender.

The professional and activity designations forwarder / forwarding agent are not protected by law. They are not subject to any authorization requirement. The freight forwarder can begin his work with the official registration. This activity is often based on the General German Forwarding Conditions (ADSp).

Regarding 2) - Road haulage company according to GüKG Anyone in Germany who transports third-party goods commercially (i.e. for a fee) with vehicles that have a gross vehicle weight higher than 3.5 t including trailers operates commercial road haulage under the GüKG in accordance with Section 1 (1) GüKG . He needs a permit for this. Anyone who uses smaller vehicles also operates road haulage under commercial law, but does not require a GüKG permit.

The rule of thumb to differentiate between freight forwarding and road haulage is:

  • Use of own vehicles: road haulage
  • Use of third-party vehicles: Forwarding agency - another company is commissioned to carry out the transport with their vehicles

It often happens that freight forwarders also have their own vehicles and outsource some of their transports (i.e. freight forwarding) and carry out some of them with their own vehicles (i.e. freight transport): In the latter case, one speaks of so-called "self-entry".

Re 3) - Carrier: Carrier is the person involved in a transport process who uses his own equipment. Example: Freight forwarder X organizes a transport and uses carrier Z for the actual physical transport, who carries out this transport with his own vehicles. Freight carriers can therefore be road hauliers, but also ship owners, airlines or railway operators such as DB.

Re 4) - Transport company This term is not legally regulated and is only a common term for all companies that transport goods or people in any way (freight forwarders) or have them transported (freight forwarders).

Approval for commercial road haulage

Road haulage companies that want to carry out transports in accordance with § 1 Paragraph 1 GüKG are subject to a permit requirement.

Types of permits

If you want to carry out transport exclusively in Germany, you need a national license for commercial road haulage. If you want to carry out transports within Europe, you need an EU community license. Since this also applies to transports within Germany, it is advisable to apply for and use an EU community license from the outset.

Approval authority

Both the permit for commercial road haulage and the EU community license are issued by the responsible transport authorities of the local authorities (cities, districts, etc.).

Requirements for issuing the permit / license

The permit / license is issued when the applicant has proven that he

  • personally reliable
  • financially efficient and
  • is professionally suitable.

Personal reliability

The personal reliability of the applicant is given in any case if he has not yet come into conflict with a law on record and z. B. has been sentenced to a penalty, a fine or the like. Personal reliability is at risk if, for example, convictions or sanctions for a serious violation of applicable national regulations, i.e. those applicable in the individual European countries, exist in the following areas:

  • Commercial law,
  • Bankruptcy law,
  • Pay and working conditions in the industry,
  • Road traffic,
  • Professional liability,
  • Human or drug trafficking.

The unreliability also exists if a judgment has been imposed in a Member State for a serious criminal offense or a sanction has been imposed for a serious breach of Community law, in particular in the following areas:

  • Driving and rest times of the drivers, working hours as well as installation and use of control devices,
  • maximum permissible weight and dimensions of commercial vehicles in cross-border traffic,
  • Basic qualification and further training of drivers,
  • Roadworthiness of commercial vehicles including the mandatory technical inspection of vehicles,
  • Access to the market for cross-border road haulage or, where applicable, access to the market for cross-border road passenger transport,
  • Safety when transporting dangerous goods by road,
  • Installation and use of speed limiters in certain vehicle classes,
  • Driver's licenses,
  • Access to the profession,
  • Animal transport.

The EU Regulation No. 1071/09 contains in Annex IV a list of the most serious violations that can lead to the determination of unreliability:

  • Exceeding the 6-day or 14-day maximum driving times by 25 percent or more.
  • During daily working hours, exceeding the maximum daily driving time by 50 percent or more without a break or without an uninterrupted rest period of at least 4.5 hours.
  • Missing tachograph and / or speed limiter or use of a fraudulent device capable of altering the recordings of the recording equipment and / or the speed limiter or falsification of the record sheets or data downloaded from the tachograph and / or driver card.
  • Driving without valid proof of technical inspection, if such a document is required by Community law, and / or very serious deficiencies in the braking system, steering system, wheels / tires, suspension or chassis, among other things, which would pose such an immediate risk to road safety, that the vehicle is decommissioned.
  • Transport of dangerous goods, the transport of which is prohibited or which are transported with prohibited or unauthorized means for safekeeping or without appropriate dangerous goods marking on the vehicle, which pose such a risk to human life and the environment that the vehicle is decommissioned.
  • Carriage of people or goods without a valid driver's license or by a company that does not hold a valid community license.
  • Use of a forged driver card, a card from another driver or a card obtained on the basis of false information and / or falsified documents.
  • Carriage of goods that exceed the gross vehicle weight by 20 percent or more for vehicles with a gross vehicle weight of more than 12 tons and by 25 percent or more for vehicles with a gross vehicle weight of not more than 12 tons.

The problem with determining personal reliability is that denial of this leads to a ban on occupation and / or market access. Because the person whose reliability cannot be determined can neither work as a traffic manager nor run, establish or take over a freight transport company.

So that the determination of personal reliability is not subject to a complete margin of discretion by the competent licensing authority, the Federal Ministry of Transport, Building and Urban Development has developed a catalog of national criminal and administrative fines as an aid to interpretation, which includes the most serious violations within the meaning of Annex IV of EU Regulation No. . 1071/09 lists. This catalog is e.g. B. retrievable under the web link, among others. It is true that it remains at the discretion of the authority to determine the reliability; However, this catalog offers a separate and useful guide that both the authority and the applicant can refer to.

Financial performance

Financial capacity exists if the company's equity and reserves are not less than 9,000 euros for the first vehicle and not less than 5,000 euros for each additional vehicle (note: only motor vehicles are included, i.e. only vehicles with their own drive, under the obligation to provide evidence of financial capacity). The corresponding proof is u. a. by submitting a certificate of equity that has been countersigned or drawn up by a knowledgeable third party (auditor, tax advisor, etc.).

Professional qualification

The professional qualification is possessed by someone who has demonstrated knowledge in the following subject areas:

Law

  • Road haulage law
  • Commercial law including dangerous goods, waste and animal transport
  • Road traffic law
  • Employment Law
  • Social security law
  • Civil Law
  • Commercial law
  • Tax law

Commercial and financial management of the company

  • Payment transactions and financing
  • Cost accounting
  • Conditions and prices of carriage
  • Transport documents
  • Accounting
  • Insurance
  • carrier
  • Operational management of road transport companies
  • marketing

Technical standards and technical operation

  • Approval and operation of the vehicles
  • Maintenance and inspection of vehicles
  • Vehicle weights and dimensions
  • Loading and unloading of vehicles
  • Transport of dangerous goods
  • Transportation of food
  • Basic rules of environmental protection when using and maintaining the vehicles

Road safety

  • Accident prevention and measures to be taken in the event of an accident
  • Traffic safety

Cross-border road haulage

  • Main features of the provisions that apply to road haulage between the member states of the European Communities and other contracting states of the European Economic Area and between these and third countries
  • Basics of customs practice and formalities, types and meaning of the transport documents
  • Basics of the traffic rules in the neighboring countries, especially in the member states of the European Communities
  • Regulations and measures against the illegal transport of intoxicants.

Proof of professional suitability

Proof of professional suitability can be provided by:

  • taking a specialist examination at the locally responsible IHK or
  • the submission of an equivalent final examination / training or
  • the recognition of a previous managerial position by mdst. 10 years in a road haulage company (at least in the period from December 4, 1999 and only until December 4, 2009)
Expertise examination

The local Chamber of Commerce and Industry (IHK) will conduct the specialist examination after registration. Filing at another IHK is also possible as part of a formal transfer. The examination procedure is standardized in Germany and is as follows: The examination consists of two two-hour written parts and, if necessary, an oral part lasting up to half an hour. The written partial exams consist of:

  • Written questions as a combination of multiple choice questions with four answers to choose from and
  • written exercises / case studies.

The evaluation of the examination performance is also uniformly regulated and looks like this at every IHK:

The examination performances are assessed with points in the individual examination parts. The total number of points is divided into the parts of the exam as follows:

  • written questions (40 percent)
  • written exercises / case studies (35 percent)
  • oral exam (25 percent)

The examination is passed when at least 60 percent of the possible total number of points has been achieved, whereby the percentage of points achieved in each partial examination must not be less than 50 percent of the respective possible number of points. If the minimum number of points is not achieved in one part of the examination, the examination is not passed. If this is the case in one of the two written parts of the examination, the oral examination will no longer be carried out. If 180 points or more are achieved in the two written parts of the exam, the exam is passed. In this case there is no oral examination.

Equivalent final examination / training

The specialist knowledge can also be proven by passing a final examination in a recognized training occupation or in a vocational IHK training course or through certain degrees. However, only the following qualifications are currently recognized:

  • Forwarding agents,
  • Merchants in rail and road transport (specializing in freight transport),
  • Transport specialist,
  • Graduated in business administration in the field of economics, specializing in freight forwarding from the vocational academies in Lörrach and Mannheim or in the field of business I, degree in transport and logistics, specializing in freight transport from the Heilbronn University of Applied Sciences and
  • Bachelor of Arts in business administration / forwarding, transport and logistics at the vocational academies in Lörrach and Mannheim or in the course in transport management and logistics, specializing in transport logistics at Heilbronn University

Very important: These qualifications are also only recognized if the training started before December 4, 2009. Training courses started after this are not recognized as proof of qualification. Of course, old final exams before this date will also be recognized.

Recognition of managerial activity

The professional suitability for road haulage can also be demonstrated by at least ten years of managerial activity in a company that operates road haulage. This activity must have been carried out without interruption in one or more member states of the European Union for a period of ten years prior to December 4, 2009. The locally responsible Chamber of Commerce and Industry carries out the examination or recognition of the managerial activity. Corresponding evidence, certificates, employment contracts, etc. must be submitted to her. If the documents are not sufficient to prove professional suitability, the Chamber of Commerce and Industry can conduct a supplementary assessment interview with the applicant.

The role of the traffic manager in commercial road haulage

Origin and definition

Road haulage companies have always had to name “a person appointed to manage the business of the road haulage company”. The term "traffic manager" was only introduced by the EU regulation (EC) No. 1071/2009 and thus replaces the previous "GüKG managing director". Only the concept of the traffic manager himself is new, his function, on the other hand, essentially corresponds to this "person appointed to manage the business". Article 2 No. 5 of Regulation (EC) No. 1071/09 defines the traffic manager as follows: he is “a natural person employed by a company or, if this company is a natural person [mostly smaller sole proprietorships], this person Person himself or, if necessary, another natural person contractually commissioned by this company who actually and permanently manages the transport activities of this company ”. Companies that only operate works are not subject to the EU regulation. You don't need a traffic manager.

Tasks of the traffic manager

According to the legal definition, the "actual and permanent management of a company's traffic activities" is the core task of the traffic manager. The EU Regulation 1071/2009 specifies these tasks in Article 4 Paragraph 2 b):

  • the maintenance management of the vehicles
  • the examination of the transport contracts and documents
  • the basic accounting
  • the disposition of the loads and the driving staff (compliance with social regulations) and
  • the examination of the safety procedures (e.g. accident prevention regulations and cargo safety)

The list of these areas of responsibility is not exhaustive and should / must be supplemented.

Traffic manager responsibilities

The responsibilities of the traffic manager are not directly regulated in EU Regulation 1071/2009. Article 6, and here in particular paragraph 1, however, name areas of responsibility, the non-observance of which can ultimately lead to a loss of reliability:

  • Driving and rest times, working hours, control devices
  • Driving ability, weights and dimensions, speed limiters
  • Basic qualification and further training of drivers, driving licenses
  • Market and professional access
  • Transport of dangerous goods
  • Animal transport

In addition, the ordinance stipulates that “the actual and permanent tasks to be carried out as well as ... responsibilities must be precisely regulated”.

Requirements for the traffic manager

In principle, any natural person can be appointed as traffic manager (Art. 4 Regulation (EC) No. 1071/09), provided they meet the following criteria:

  • Reliability: The reliability of the transport manager or the transport company must not necessarily be called into question, for example by conviction or sanction for a serious violation of applicable national regulations.
  • Professional aptitude: The traffic manager should have the necessary knowledge to manage both domestic and cross-border traffic. The required specialist knowledge is usually proven by an IHK specialist examination.

In addition to these basic requirements (which must be proven), there are other criteria that the EU makes binding in all member states:

  • Actual and permanent management of the company's transport activities, d. In other words, the traffic manager must have the appropriate decision-making powers and skills in the company.
  • He must have a real relationship with the company, for example if he is an employee, director, owner, shareholder, or if he is in charge of the company's administrative business. Exceptions apply to the external traffic manager.
  • The transport manager must have his permanent residence (= place of residence) in the EU, but not necessarily in the same member state of the company (example: a road haulage company in Karlsruhe can appoint a transport manager who lives in Strasbourg).

Forms of traffic manager

A distinction is made here between the internal and the external traffic manager.

Internal traffic manager

The "internal traffic manager" has a real relationship with the company, for example as an employee, director, owner or shareholder, or someone who manages the company's administrative business or, if the company is a natural person, is that person himself (Art. 4, Paragraph 1b of the EU Regulation). He is therefore bound to the company under an employment contract or under company law. Whether a person is recognized by the licensing authority under an employment contract, i.e. as a permanent employee, depends, in addition to the basic requirements, on the design and content of the employment contract, which must also be submitted to the authority for review. In the administrative regulations for the GüKG, some criteria are named. There it says:

“The actual and permanent management of the company's traffic activities lies with the traffic manager. The requirements for actual and permanent management must always be checked in relation to the specific corporate structure. Clues can be:

  • Authority to issue instructions (if applicable, proof of powers of attorney),
  • remuneration appropriate to the level of responsibility,
  • sufficient presence at the place of business during business hours,
  • Accountability for the company's traffic activities

The duties of the traffic manager must emerge from the employment relationship on which the activity is based. This is particularly the case if the tasks are regulated in the contract on which the activity is based. "

External traffic manager

If a company does not meet the requirement of professional suitability itself, i.e. does not employ a competent person with a real relationship to the company (internal traffic manager), the company must have a natural. So do not appoint a legal person as traffic manager (external traffic manager).

The same requirements apply to this so-called external traffic manager as to all other traffic managers: He must be reliable and have the required specialist knowledge.

In addition, the following applies: The traffic manager has to perform the tasks exclusively in the interests of the company and independently of other companies. He must not have any contractual relationships with clients.

In the contract between the external traffic manager and the company for which he is in charge of the traffic business, the actual and permanent tasks to be carried out as well as the responsibilities as a traffic manager must be precisely regulated. The EU regulation specifies which tasks must be the subject of the contractual regulation. These include:

  • Maintenance management for the vehicles,
  • the examination of the transport contracts and documents,
  • basic accounting,
  • the assignment of the load or the driving services to the drivers and vehicles as well as
  • review of security procedures;

It is therefore very advisable to actually regulate these matters in the contract. Of course, the contracting parties can also include further regulations and should, as a rule, do so.

Legal person / natural person

a.) Natural persons

One speaks of natural persons in the context of legal capacity. It is understood to mean the person as the bearer of rights and duties. With the completion of the birth a person becomes legally competent and thus also a natural person (see § 1 BGB ). In the case of natural persons, legal capacity ends with death.

b.) Legal persons

A legal person is an association of persons, i.e. an association of natural persons who, based on legal recognition, are themselves legally capable, ie themselves bearers of rights and obligations. The rights and obligations of legal persons are exercised by a representative. In business life, one usually finds so-called legal entities under private law, for example the GmbH, the stock corporation or a registered cooperative. The beginning of the legal capacity begins with the entry in the commercial register and ends with the deletion.

Actual and permanent management of the company

The activity of the traffic manager is not about any kind of "support" or just the presence of a competent person, but about the "actual and permanent" management of the company. This is especially true if it is a pure transport company. Gradations are conceivable if, for example, the company has other business areas in addition to commercial road haulage and the management of the "transport activities" is limited to the road haulage business area. According to the German case law on the requirements for the transport manager, the official guiding principle is: The transport manager must be able to actually manage the company according to his employment contract, his working hours, his wages and the company structure. This also includes "a sufficient physical presence in the company, which makes it possible to really monitor the course of business and to keep it in hand."

Limitation of the scope of activity

Unlike an internal traffic manager, the external traffic manager is allowed to manage the traffic activities of a maximum of four companies with a total fleet of no more than 50 vehicles.

Individual evidence

  1. ↑ Regulation (EC) No. 1071/2009 (PDF), accessed on December 5, 2016
  2. ↑ Proof of professional competence in road haulage. In: www.taxi-gueterverkehr.de. Retrieved July 8, 2016 .
  3. ↑ The traffic manager in road haulage. In: www.taxi-gueterverkehr.de. Retrieved July 8, 2016 .