Legal uncertainty in the German Freight Forwarding Law

No future for the German ADSp

Legal Uncertainty in German Freight Forwarding Law

The End of the "ADSp era" in Germany

The German freight forwarding law is facing a revolution: For decades this law was characterized by the ADSp (German General Conditions on Shipments). The era of the ADSp as the General Terms and Conditions (GTC) jointly developed and used by the associations of carriers and shippers has now come to an end.

In German law, the ADSp were of great importance. According to a survey from 1999, 94% of all German freight forwarding companies and 86% of the transport industry referred in their contracts to the ADSp because most of the German interest association jointly negotiated the ADSp and recommended its use to its members (for the shippers: Federation of German Industries (BDI), Federation of German Wholesale and Foreign Trade (BGA), German Retail Federation (HDE) Federal Association of Transport and Logistics in Industry and Trade (BWVL); for the carriers: German Association of Freight Forwarders and Logistics Companies (DSLV)).

Lawyers could so far rely on an extensive jurisprudence and doctrine regarding the ADSp, which was a significant contribution to legal certainty. However, the German doctrine criticized the substantial differences between the ADSp and the (revised) freight forwarding law ruled in the fourth book of the HGB. As an alternative to the ADSp, parties can agree upon the applicability of the "VBGL" (conditions as per contract for the transportation of goods by road, forwarding business and logistics entrepreneurs, published by the BGL (Federal Association of Road Fright Transport and Logistics)). However, the VBGL are still playing a minor role in Germany.

The negotiations regarding the revision of the ADSp failed due to the position of the shippers associations, which demanded to align the ADSp with the needs of all supply chain service providers. In a nutshell, the ADSp was expected to be drafted with more contractual flexibility, the shippers were asked to give agree to quality assurance measures and the liability regulations should have been adjusted accordingly. The parties could not find a common legal framework in these issues.

What’s next?

Each of the two above mentioned groups of associations has now passed its own GTC: The new DTLB (German conditions on transport and storage) on the one, and the DSLVs unilateral revision of the ADSp 2016 on the other side. Furthermore, the VBGL still can be used.

Thus, a decade-long tradition of the German freight forwarding law comes to an end. All players involved criticize that the German trade associations failed to balance their conflict of interests within the ADSp.

Impacts on Swiss Companies

The current development has no impact on running contracts. Hence, in future contractual negotiating with German partners, the parties will have to discuss the choice of the applicable GTC: The ADSp (in the version of 2003 or 2016), the DTLB or the VBGL. The legal conditions differ considerably within these three frameworks.

* Prof. Dr. Andreas Furrer

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