For many foreign business people, doing business in Germany also means driving around Germany. Although advice about road traffic offences is not among our core competencies, we give you below a brief overview of the current situation in Germany regarding “Using a mobile while driving” as our clients often ask us about this.
What you can do (but should still avoid doing)
In September 2014, Hamm Higher Regional Court (OLG) ruled that it was not illegal for a driver to use a mobile phone while the vehicle was stationary and the engine had been switched off automatically (start/stop function). Here, the law does not differentiate between manual or automatic switching-off of the engine. The same court also ruled in 2007 that the use of a mobile device as a “heat pad” for a painful ear would be considered as a legal act and therefore not an offence.
Also, the companion required by law for a 17 year-old driver is not a driver and can therefore use a mobile phone in the passenger seat without fear of punishment.
If a road user simply picks up their vibrating mobile from the storage tray of their car to put it somewhere else, this is not against the law either.
What is not allowed
Any use of a mobile phone (making and receiving calls without a hands-free kit, rejecting a call, texting and reading news, searching for data online) is forbidden when driving a vehicle. Many courts take the view that use includes any utilisation of the possible functions of a mobile phone, including use of the built-in calendar, notebook, dictation mode, MP3 player and photo app. These rulings are based on a fear of difficulties of proof since, if calls alone were banned, people would often try to get away with it by saying that they weren’t making or receiving calls, just dictating on their phone, which wasn’t an offence.
The courts are united in their view that use of a mobile or car phone must be positively established. This is often difficult to prove. Seizure of the mobile phone by the police to gather evidence of incoming or outgoing calls would probably not be allowed in view of the minor penalties for an offence based on the principle of proportionality as well as for data protection reasons as a mobile contains lots of personal data unrelated to the use of the roads.
Legal consequences of an offence
A mobile offence costs 60 Euros, plus a point on the register in Flensburg for German drivers. Following the ruling of Hamm Higher Regional Court in 2014, there is also the risk of a driving ban in case of repeated illegal use of a mobile phone.