Absence or non-use of a tachograph

The absence or non-use of a type-approved tachograph pursuant to § 134 of the Motor Vehicle Act 1967 in conjunction with Regulation (EU) No. 165/2014 exists if a legally required control device is either not installed, not type-approved, not functional, or not used properly.

Covered are both the operation of a vehicle subject to equipment requirements without a tachograph and the omission or incorrect use of an existing device, for example, due to missing records, non-use of the driver card, or unauthorized operating modes. The legislator expressly qualifies this behavior as a serious violation of the social regulations in road transport.

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Fundamentals of the tachograph

Purpose and function of the tachograph

The tachograph serves to control driving times, working times, and rest periods in road traffic. It protects the health of drivers and contributes significantly to road safety. At the same time, it ensures that all companies in the transport sector work under comparable conditions.

The device automatically records relevant driving data. Control bodies can read and evaluate this data during inspections. The tachograph is therefore a central instrument for enforcing working time regulations in road traffic.

Practical terms

Different terms are used in practice. What is meant is always the same technical system:

• Tachograph
• Tachograph
• EU control device

All these terms describe the control device that must be installed and used in certain vehicles.

Analog and digital tachograph

A distinction is made between analog and digital tachographs.
Analog devices record data on paper discs. Digital devices store the data electronically on a driver card and in the device memory.

Vehicles with an initial registration from May 2006 must be equipped with a digital tachograph. Older vehicles may continue to be operated with analog devices, provided there is no retrofitting obligation.

Legal basis of the tachograph obligation

Why is there a tachograph obligation?

The obligation to use a tachograph is intended to prevent drivers from driving for too long or falling below legally required rest periods. This increases safety on the roads. At the same time, fair competition between companies should be guaranteed.

To achieve this goal, uniform rules apply within the European Union for road traffic.

Uniform rules within the European Union

In the European Union, there are common requirements for in which vehicles a tachograph is required and how it is to be used. These rules apply primarily to vehicles in freight and passenger transport.

As soon as a vehicle falls under these common requirements, a suitable control device must be used. It does not matter whether transports take place regularly or only occasionally.

Control and enforcement in Austria

In Austria, authorities monitor compliance with these requirements on the basis of the Motor Vehicle Act. This law defines the consequences that threaten if a tachograph is missing or not used properly.

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Scope of the tachograph obligation

Freight transport over 3.5 tons

For all motor vehicles in freight transport with a maximum permissible total weight of over 3.5 tons, there is an obligation to use a tachograph. This obligation applies regardless of whether transports are carried out for third parties or in one’s own company.

Passenger transport with buses

Also buses with more than eight seats are subject to the tachograph obligation. The aim is to control the working hours of drivers in scheduled and occasional transport

Company transport and subordinate transports

The obligation also exists in principle in company transport, for example, when a company transports its own goods or work equipment. It is irrelevant whether these transports characterize the company’s purpose or only represent an ancillary service.

Technical requirements for the tachograph

Admissibility and approval

Only approved and authorized tachographs may be used. Devices without corresponding approval are legally considered non-existent.

Importance of initial registration

The date of initial registration determines whether an analog or digital device is permissible. Vehicles with initial registration from May 2006 necessarily require a digital control device.

Tests and inspections

The tachograph must be checked every two years. In addition, a check is required after each repair and after each change in tire circumference. Companies must actively monitor these dates.

Technical defects and their consequences

A defective or incorrectly set tachograph is considered not properly used. Technical defects do not relieve either drivers or companies if they could have been avoided.

Deviation to reach a stopping place

If it is necessary for safety, the driver may deviate briefly from the time specifications in order to reach a suitable stopping place. The driver must document the reason and nature of the deviation, either in the tachograph or in the work records.

Absence of a type-approved tachograph

When is a tachograph considered missing?

A tachograph is legally considered missing if a vehicle has no control device installed despite an existing obligation. The same applies if a device is present, but it is not approved or not functional.

For the authorities, it makes no difference whether the device was never installed or does not work due to a defect. In both cases, there is a serious violation

Non-use of the tachograph

Definition of non-use

Non-use exists if an existing tachograph is not used properly. This includes in particular driving without an inserted driver card or failing to make prescribed records.

Even incorrect operation can already constitute non-use if no reliable data is recorded as a result.

Typical practical cases

In practice, authorities often complain about:

• missing or delayed entries
• incomplete records
• incorrect settings
• deliberate circumvention of the recording

Such violations are regularly classified as particularly serious.

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Obligations of the driver

Proper operation

Drivers must operate the tachograph correctly and record all relevant times completely. This includes the correct use of the driver card as well as the correct setting of activities.

Documentation obligations

The driver is responsible for ensuring that the records are complete and comprehensible. Incorrect or missing entries regularly lead to administrative penalties.

Importance of collective agreement regulations

In addition to the legal requirements, the collective agreement regulates in detail which obligations drivers must comply with when dealing with analog and digital tachographs. These regulations are binding.

Obligations of the company

Installation and functional safety

Companies must ensure that their vehicles are equipped with a properly functioning tachograph. They must have defects repaired immediately.

Training and organization

Companies must demonstrably train their drivers. They must create clear organizational requirements so that records are made correctly.

Data management

Companies must regularly read out the recorded data, store it, and make it available for inspections. Deficiencies in the organization often lead to independent administrative penalties.

Administrative penalties under § 134 of the Motor Vehicle Act

Violations of the tachograph obligation are considered serious administrative offenses. Affected are both cases in which a required tachograph is missing, as well as situations in which an existing device is not used properly. Authorities regularly check both the driver and the responsible company.

The Motor Vehicle Act provides for fines of up to €5,000 for such violations. If a fine cannot be collected, there is a threat of a substitute custodial sentence of up to six weeks. Already the attempt of a violation is punishable and can trigger administrative penalty proceedings.

In the case of repeated violations, the consequences become significantly more severe. If a similar violation has already been penalized, imprisonment of up to six weeks may be imposed instead of a fine. In the case of multiple prior convictions, fines and imprisonment may be imposed alongside each other.

Violations remain punishable even if they were committed outside of Austria, provided they are detected during an inspection in Austria. The place of inspection is decisive.

In practice, the consequences are often not limited to a penalty. Authorities may require a provisional security deposit of up to 2,180 euros. If this is not provided, they may prohibit further travel, confiscate vehicle keys and papers, or take further measures. Under certain conditions, even a seizure of the vehicle is possible

Administrative penal procedure and competence of the authorities

The administrative penal procedure follows clear legal rules. It is crucial for those affected to know how a procedure works and which authority is responsible, because even early procedural steps can have great practical significance.

Initiation of the procedure

A procedure usually begins with a control by police or supervisory bodies. If these determine a violation on the basis of the tachograph records, they file a report. This report forms the basis for the administrative penal procedure. Measures such as a security deposit or an interruption of the journey can take place even before the procedure is completed.

Competent authorities

The district administrative authority is usually responsible, i.e. the district authority or, in cities with their own statutes, the magistrate. In certain cases, the Landespolizeidirektion also carries out the procedure. These authorities are particularly common in the case of controls on motorways or in border areas.

Rights of the accused

The accused has the right to comment on the accusation, to request access to files and to submit evidence. The authority must fully examine the facts and may not limit itself to individual findings. Especially in procedures relating to the tachograph, evaluation errors or formal defects regularly occur, which is why a timely legal review is often decisive.

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Limitation of violations

Statutory limitation periods apply to administrative offenses and must be strictly observed. The authority must act within a certain period, otherwise it may no longer impose a penalty.

It is crucial that the authority initiates a prosecution action in good time, for example, by filing a complaint, issuing a summons, or issuing a penalty order. If this does not occur, limitation occurs. The authority must take the limitation into account ex officio, even if the person concerned does not invoke it.

In the case of foreign matters, it must also be checked whether the violation was still ongoing at the time of the control and whether a legally binding punishment has already been imposed abroad.

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Your Benefits with Legal Assistance

The legal requirements surrounding the tachograph are clearly regulated and are consistently monitored. For drivers and companies, it is not just about technology, but about responsibility, organization, and timely legal course setting. Well-founded legal support creates legal certainty, reduces risks, and strengthens your position vis-à-vis authorities. Our experts support you in a targeted and practical manner in all decisive areas.

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