Prohibition of driving vehicles without a license
Our client’s driver’s license was revoked due to a so-called “drug drive” with the passenger car. However, the District Office was not satisfied with this and even wanted to prohibit our client from driving vehicles without a driving license, such as bicycles. However, since there were no concrete indications for the unsuitability to drive vehicles without a driving license, the Administrative Court of Würzburg has decided on the decision – as initially also provisionally in the summary proceedings – with the judgment of 22.01.2020, Az. W 6 K 19.1403, annulled on our complaint in this regard:
However, the action is well-founded insofar as the plaintiff was also prohibited from driving unlicensed vehicles in No. 2 of the notice at issue.
2.1
According to § 3 para. 1 sentence 1 FeV, the driving license authority must prohibit the driving of vehicles or animals if someone proves to be unsuitable or only conditionally suitable for this. According to the explanatory memorandum to § 3 FeV, this provision applies to persons who do not drive a motor vehicle for which a driving license is required, but who participate in road traffic in other ways, e.g. as bicycle and moped riders and drivers of carts (cf. BR-Drucks 443/98, p. 237; Hentschel/König/Dauer, loc.cit., § 3 FeV Rn 10). For example, the provision does not authorize official measures against pedestrians who are unsuitable or only partially suitable for participating in road traffic (Hentschel/König/Dauer, loc. cit., § 3 marginal no. 10). The definition of suitability in § 2 para. 4 StVG, but with the restriction that only those deficiencies are relevant for the application of § 3 that relate to the driving of vehicles that do not require a driving license. The unsuitability or conditional suitability for driving vehicles is thus determined in principle according to the regulations that also apply to driving motor vehicles requiring a driving license (Hentschel/König/Dauer, loc.cit., 3 FeV marginal no. 11). According to this, a person is suitable if he or she meets the necessary physical and mental requirements and has not significantly or repeatedly violated traffic regulations or criminal laws. Sections 11-14 FeV apply pursuant to Section 3 para. 2 FeV shall apply accordingly. Accordingly, Annex 4 to Sections 11, 13 and 14 FeV is also applicable, at least insofar as the deficiencies listed there can also be related to the driving of vehicles not requiring a driving license, because the deficiencies listed in Annex 4 to the FeV relate to the suitability for driving motor vehicles in Groups 1 (driving license classes A and B) and 2 (driving license classes C and D). Suitability-relevant deficiencies with regard to vehicles not requiring a driving license are expressly not regulated in Annex 4 to the FeV. It should also be noted that participation in traffic, e.g. with a bicycle in road traffic, is an expression of the general freedom of action from Art. 2 Para. 1 of the German Basic Law (GG) and the movement with this means of transport is basically allowed to all persons, for example also small children and old people, without preconditions. It must also be taken into account that the safety of road traffic and other road users is typically not endangered to the same extent as with motor vehicles in the case of vehicles not requiring a driver’s license due to their considerably lower speed and mass, even though the potential danger posed by an unsuitable cyclist, for example, can by no means be regarded as low. According to No. 9.1 of Annex 4 to the FeV, a person is not normally fit to drive a motor vehicle requiring a driving license if he or she has taken narcotics within the meaning of the Narcotics Act (with the exception of cannabis), irrespective of the frequency of consumption, the level of narcotics concentration, participation in road traffic in an intoxicated state and the presence of specific signs of failure on the part of the person concerned. Accordingly, the revocation of the driving license is already justified if the driving license holder has consumed so-called hard drugs at least once (st. Rspr., e.g. BayVGH, B.v. 24.4.2017 – 11 CS 17.601 juris; OVG NRW, B.v. 23.7.2015 – 16 B 656/15 – juris m.w.N.), which is why – as shown above – the unsuitability to drive motor vehicles requiring a driving license is also present in the case of the plaintiff. However, the extent to which this regulation is also to be applied without restriction to the driving of vehicles not requiring a driving license can be left open in the present case, because the unsuitability of a driver to drive vehicles requiring a driving license, resulting in the withdrawal of the driving license, cannot automatically result, as it were, in the authority to prohibit him or her from using vehicles not requiring a driving license. Rather, such a prohibition requires the determination that the person concerned is also unsuitable for driving vehicles without a driving license and that the concrete circumstances of the individual case give reason to believe that the person concerned will probably drive a vehicle without a driving license in the foreseeable future in a state of unsuitability and thus become a concrete danger for other road users (OVG Lüneburg, B. v 2.2.2012 – 12 ME 274/11; OVG Rheinland-Pfalz, B.v. 8.6.2011 -10 B10415/11 – in each case juris; Hentschel/König/Dauer, loc. cit, § 3 FeV marginal no. 20).
2.2
However, no such concrete circumstances giving rise to such an event can be ascertained in the present case. It is true that the District Office admits that the use of amphetamine can also indicate the unsuitability to drive vehicles without a driving license. However, neither the submitted official file nor the plaintiff’s presentation provide sufficiently concrete evidence that the plaintiff has already used vehicles without a driving license (e.g. bicycle, moped) in addition to a motor vehicle in the past or intends to use them in the future. The conclusion of the district office that the plaintiff, as a result of the revocation of his driver’s license, will switch to the use of vehicles not requiring a driver’s license in order to reach the future places of employment, which will change in the rural area, is not compelling. The plaintiff can use public transport, join a carpool or be driven by relatives or friends and, last but not least, participate in road traffic as a pedestrian, e.g. if the vocational school assigns the internship positions close to home due to the special circumstances. The District Office did not make any specific findings or investigations with regard to the possession or previous or future use of vehicles not requiring a driving license. The court has already pointed this out in the previous summary proceedings (W 6 S 19.1404, B.v. 6.11.2019). The plaintiff’s side also did not comment on this. Whether changes have occurred in the meantime (e.g. purchase of a bicycle, etc.) is therefore not known. Insofar as the District Office pointed out in the pleading of December 19, 2019, that the presentation in the statement of claim of the authorized representative of October 18, 2019 (p. 5 below) concrete indications for the use of vehicles without a driving license resulted, since it is stated there that the continuation of the training and thus the economic future of the plaintiff was seriously endangered by the withdrawal of the driving license and “in particular also the prohibition of driving vehicles without a driving license”, which can only be understood to mean that the intention is to ensure the continuation of the training and the necessary completion of internships with locations in rural areas through the use of vehicles without a driving license, this cannot be followed, since – as described above – this conclusion is not compelling and is exhausted in pure conjecture. The wording in the pleading can therefore not be considered as a sufficient indication for a (future) actual use of vehicles not requiring a driving license. Irrespective of the question of what is to be regarded as the decisive point in time of the decision in the prohibition proceedings (disputed; most recently BayVGH, U.v. 17.1.2020 – 11 B 19.1274 – juris; decisive point in time of the court’s decision; not legally binding, appeal admitted), there is also no obligation from the point of view of the official investigation (§ 86 VwGO) and the obligation to make a case ready for adjudication (§ 113 para. 3 and 5 VwGO) in the context of the intervention administration, there is no obligation on the part of the court to carry out the necessary investigations in place of the district administration office without further indications, especially since the lack of indications for an actual or concretely expected traffic participation with vehicles not requiring a driving license was already pointed out in the previous summary proceedings. This was not taken by the district office as a reason to conduct further investigations. However, the burden of proof for the existence of the prerequisites for intervention lies with the authority (Kopp/Schenke, VwGO, 25. A. 2019, § 86 Rn. 12; § 113 para. 193
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Günter Grüne
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Fachanwalt für Verkehrsrecht
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