Self-employed drivers, who like to call themselves invoicer, are now hard to be found. This refers to drivers who rent out themselves and make themselves available to the various transport companies as drivers. Does such an independent driver need a company card? Is he therefore also affected by all the entrepreneurial obligations regarding the use of such a company card?
These questions are therefore not immediately easy to answer because the high court case law of the social court’s majority assumes that there is no self-employed driver without own vehicle. In other words, in the opinion of the social courts, a driver without his own vehicle is usually classified as liable to social security. An own vehicle would presuppose in the consequence that such a driver possesses the license for commercial goods or passenger transport.
However, in a recent case of such so-called invoicer, the competent Labor Office required the use of a company card. But who is an entrepreneur in the sense of driving personnel law? To answer this question, the systematics of the relevant regulations must be taken into account. EU Regulation stipulates that the entrepreneur must ensure by means of a company card that the data recorded by the tachograph can be assigned to his company. That is exactly what the Office for Health and Safety at Work referred to. The term “entrepreneur” is not defined in the Professional Drivers Regulation. However, the context in which the term is used reveals who is meant by the term. Among other things, the Driver Personnel Ordinance lists the obligations of the entrepreneur, which originate from the EU Regulation 561/2006 or the Tachograph Regulation 165/2014. These duties are partially specified, supplemented or in some cases only repeated in the Professional Drivers Regulation. It remains unclear why the national legislator has not adopted the term “haulier” used in the EU regulations. From the overall context of the regulations, however, there is clearly a synonymous use of the two terms. Article 4 (p) of Regulation (EC) 561/2006 contains the legal definition of the transport undertaking:
“Transport undertaking” means any natural or legal person […] carrying on a commercial or commercial transport by road;
In addition, the obligation to download the data referred to in Article 10 (5) (a) then refers specifically to “A transport undertaking using vehicles …”.
With reference to the invoicer driver described above, the question now arises as to whether this driver can be “entrepreneur” or “carrier” in the sense of driving personnel law. This is probably to be answered in the negative since that driver does not use the vehicle in the sense of the abovementioned definition and does not undertake any transport operations on his own. For if he were to use a vehicle and carry out road transport as an entrepreneur, he would naturally also need a corresponding permit to transport goods or passengers. Already this problem shows that the driving personnel law does not know the term of the self-employed driver.
The situation is different, for example, with the concept of a self-driving entrepreneur. This term is used and defined, for example, in the EU Working Time Directive 2002/15 / EC. According to this, this term is understood to mean an entrepreneur who mainly carries out journeys for the transport of goods or passengers using an appropriate permit. Again, reference is made to the corresponding permit.
Of course, the situation is clearer when the haulier uses rented drivers, which he employs as part of temporary staffing. Again, it is not the lender but the borrower, the transport company, which uses the vehicles with these drivers and carries out road transport. And the “self-employed driver” is basically the same because he does not rent his staff but himself only as a driver.
The rules for the operator mentioned in the Driver Regulations, therefore, relate to the person or company using vehicles within the meaning of the EU Regulations or the Driver Regulations. It can also be a self-driving entrepreneur who carries out goods or passenger transport with his own license. Self-employed drivers are not covered by these terms. Therefore, the actual haulier, ie the one who actually uses this “self-employed” driver on his vehicles, is responsible for the duties in the sense of driving personnel law.