Press release no. 29/2019 of 11 April 2019

A first-time violation by an occasional user of cannabis of the requirement to separate use from driving does usually not result in immediate withdrawal of the driving licence

The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig has decided today that the driver licensing authority may not generally and without further clarification assume that an occasional user of cannabis who drove a motor vehicle for the first time under the influence of cannabis is unfit to drive and immediately withdraw the driving licence. In such cases, the driver licensing authorities are obliged to decide at their discretion in accordance with legal obligation whether to obtain a medical-psychological expert report pursuant to section 46 (3) in conjunction with section 14 (1) third sentence of the Driver Licensing Ordinance (FeV, Fahrerlaubnis-Verordnung) in order to clarify the doubt regarding driving fitness resulting from this drive.


In the proceedings pending before the Federal Administrative Court, road checks had shown that the claimants, who were occasional users of cannabis, drove a motor vehicle despite previously using of cannabis. Based on the determined concentration of tetrahydrocannabinol (THC), i.e. the psychoactive cannabis substance, of 1ng/ml in blood serum or more, the driver licensing authorities assumed that the driving safety of the claimants could be impaired. Therefore they were unfit to drive pursuant to no. 9.2.2 of Annex 4 to the Driver Licensing Ordinance because they failed to separate the use of cannabis and driving a motor vehicle. The driver licensing authorities therefore withdrew the driving licences of the persons concerned pursuant to section 11 (7) FeV without obtaining a medical-psychological expert report.


The actions brought against this were successful in as far as the Bavarian Higher Administrative Court (Verwaltungsgerichtshof) decided on the appeal on points of fact and law. It takes the view that, in the case of an occasional user of cannabis, the driver licensing authority may not, after a first-time drive in a motor vehicle under the influence of cannabis, which is punishable as an administrative offence, directly assume unfitness to drive, but must, in order to clarify the doubts thus raised as to whether the user is fit to drive, decide at its discretion whether to order the submission of a medical-psychological expert report. In contrast to this, the North Rhine-Westphalia Higher Administrative Court (Oberverwaltungsgericht) considered direct withdrawal of the driving licence to be permissible in the appeal proceedings on points of fact and law pending before it.


The Federal Administrative Court has confirmed its previous jurisprudence (BVerwG, judgment of 23 October 2014 - 3 C 3.13) that an occasional user of cannabis fails to separate use of cannabis and driving a motor vehicle (no. 9.2.2 of Annex 4 to the Driver Licensing Ordinance) if there is a possibility of cannabis-related impairment of his or her driving safety during the drive. Such a possibility can still be assumed if a THC concentration of 1ng/ml or more is detected in the person concerned after the drive. However, this first-time violation of the required separation of the use of cannabis and driving by itself does not generally justify the assumption that the person concerned has proved to be unfit to drive a motor vehicle. The Federal Administrative Court does not uphold its assumption to the contrary as expressed in its judgment of 23 October 2014. However, even a one-off violation gives rise to concerns regarding driving fitness, which the driver licensing authority must investigate. What is needed is a prognosis as to whether the person concerned will not continue to distinguish between the use of cannabis, which may impair driving safety, and driving. In order to have a sufficiently secure assessment basis, it is usually necessary to obtain a medical-psychological expert report. Pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV, the driver licensing authority has to decide at its discretion in accordance with legal obligation on the order for the submission of such an expert report and the deadline to be observed for this.


Footnote:

Section 3 (1) first sentence of the Road Traffic Act (StVG, Straßenverkehrsgesetz; withdrawal of the driving licence)


If a person proves to be unfit or incapable of driving a motor vehicle, the driver licensing authority must withdrawal the driving licence.


 


Section 46 FeV (withdrawal, restriction, conditions)


Subsection 1: If the holder of a driving licence proves to be unfit to drive a motor vehicle, the driver licensing authority must withdraw the driving licence. This specifically applies if diseases or defects are present as contemplated in Annexes 4, 5 or 6 or if traffic rules or criminal laws have been substantially or repeatedly violated, so that fitness for driving motor vehicles is therefore excluded.


Subsection 3: sections 11 to 14 apply mutatis mutandis if facts become known which justify concerns that the holder of a driving licence is unfit or conditionally fit for driving a motor vehicle.


 


Section 14 (1) third sentence FeV (clarification of doubts regarding fitness with regard to narcotic drugs and medicinal products)


Submission of a medical-psychological expert report may be ordered if occasional use of cannabis is present and further facts cast doubt on the holder's fitness.


 


Section 11 (7) FeV (fitness)


If the driver licensing authority is convinced that the person concerned is unfit to drive, submission of an expert report is not ordered.


 


No. 9.2.2 of Annex 4 to the Driver Licensing Ordinance


Defect:


Occasional use of cannabis.


Fitness or conditional fitness:


Yes, when use and driving are separated and no additional use of alcohol or other psychoactive substances, no personality disorder, no loss of control.


BVerwG 3 C 13.17 - judgment of 11 April 2019

BVerwG 3 C 14.17 - judgment of 11 April 2019

BVerwG 3 C 7.18 - judgment of 11 April 2019

BVerwG 3 C 2.18 - judgment of 11 April 2019

BVerwG 3 C 8.18 - judgment of 11 April 2019

BVerwG 3 C 9.18 - judgment of 11 April 2019

BVerwG 3 C 25.17 - judgment of 11 April 2019


Judgment of 11 April 2019 -
BVerwG 3 C 14.17ECLI:DE:BVerwG:2019:110419U3C14.17.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 11 April 2019 - 3 C 14.17 - para. 16.

Withdrawal of the driving licence following a violation of the separation requirement by an occasional user of cannabis

Headnotes

1. In the case of an occasional user of cannabis who, for the first time, drove a motor vehicle under the influence of cannabis which may impair his driving safety, the driver licensing authority may as a rule not assume, without further clarification, that he is unfit to drive and immediately withdraw his driving licence. In such cases, the driver licensing authority is obliged to decide at its discretion in accordance with legal obligation whether to obtain a medical-psychological expert report pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV.

2. An occasional user of cannabis does not separate the use of cannabis and driving a motor vehicle in accordance with no. 9.2.2 of Annex 4 to the Driver Licensing Ordinance if there is a possibility that the use of cannabis may impair his driving safety. Such a possibility can still be assumed, even taking into account the recommendation by the Limit Value Commission (Grenzwertkommission) of September 2015, if a concentration of tetrahydrocannabinol (THC) of 1ng/ml or more is found in the blood serum of the person concerned.

  • Sources of law
    Road Traffic ActStVG, Straßenverkehrsgesetzsection 3 (1) first sentence
    Driver Licensing OrdinanceFeV, Fahrerlaubnis-Verordnungsections 11 (7) and (8), 13, 14 (1) third sentence and (2) no.3, section 46 (1) first sentence, (3) and Annex 4 no. 9.2.2
    Basic LawGG, Grundgesetzarticle 3 (1)

Summary of the facts

The claimant challenges the withdrawal of his driving licence.

He was subjected to a traffic check at around 1:20 a.m. on 28 September 2014. According to the police report, he stated that he had smoked a joint two days earlier and often did so because he suffered from insomnia. In his blood sample taken at 2:25 a.m., 1.1ng/ml of the psychoactive cannabis agent tetrahydrocannabinol (THC), around 0.4ng/ml of 11-hydroxy-THC (11-OH-THC) and 25ng/ml of carboxylic acid (THC-COOH) were found in blood serum.

The toxicological expert report dated 11 February 2015 submitted by the claimant in response to the defendant's order showed that a blood sample taken on 26 January 2015 contained around 0.9ng/ml of THC-COOH; other cannabis ingredients were not detected.

In its notice dated 3 March 2015, the defendant withdrew the claimant's driving licence, ordering immediate enforcement, and ordered him to immediately hand over his driving licence on pain of a penalty payment. The defendant states that the claimant is an occasional user of cannabis. The expert report dated 11 February 2015 showed that he had used cannabis at least a second time. The THC-COOH value established there could not have been caused by a (single) case of cannabis use on 28 September 2014. Driving under the influence of cannabis on that day proved that the claimant was unable to separate the use of cannabis and driving a motor vehicle. His driving licence therefore had to be withdrawn due to his lack of fitness to drive.

The Administrative Court (Verwaltungsgericht) dismissed the action brought against this; the Higher Administrative Court (Oberverwaltungsgericht) dismissed the claimant's appeal on points of fact and law.

Reasons (abridged)

10 The claimant's appeal on points of law was successful. Without breaching federal law, the Court of Appeal assumes that an occasional user of cannabis already violates the requirement of no. 9.2.2 of Annex 4, i.e. to separate such use and driving a motor vehicle, when driving such a vehicle, even though there is a risk that his driving safety is impaired as a result of previous cannabis use. Pursuant to section 46 (3) in conjunction with section 14 (1) third sentence of the Driver Licensing Ordinance (FeV, Fahrerlaubnis-Verordnung), such a violation of the separation requirement also constitutes reason to doubt his fitness to drive a vehicle with the need to clarify such doubts. Nor does it give rise to any objections within the scope of the appeal on points of law against the fact that the Court of Appeal still sets the limit value for tetrahydrocannabinol (THC) as the psychoactive substance in cannabis of 1ng/ml in blood serum (1.). However, the assumption by the Court of Appeal that the defendant was entitled to withdraw the claimant's driving licence directly on 28 September 2014 because of his driving under the influence of cannabis is not compatible with federal law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). In the case of an occasional user of cannabis who, for the first time, has driven a motor vehicle under the influence of cannabis which impacted his or her driving safety, the driver licensing authority may as a rule not assume, without further clarification, that he or she is unfit to drive. In such cases, a withdrawal of the driving licence requires a prognosis that the person concerned will not separate the use of cannabis, which may impair his or her driving safety, and driving a motor vehicle. In order for this prognosis to be based on a sufficiently reliable basis, a medical-psychological expert report is usually required, which the driver licensing authority must obtain at its discretion in accordance with legal obligation pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV (2.). The defendant failed to make such a discretionary decision in this case.

11 1. The decisive factor for assessing the lawfulness of the challenged withdrawal of the driving licence is the factual and legal situation at the time of the most recent administrative decision (established jurisprudence, see, i.a., Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 23 October 2014 - 3 C 3.13 [ECLI:DE:BVerwG:2014:231014U3C3.13.0] - (...) para. 13 and of 28 April 2010 - 3 C 2.10 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 137, 10 para. 11, each with further references); the notice issued on 3 March 2015 is therefore relevant in this case.

12 Pursuant to section 3 (1) first sentence of the Road Traffic Act (StVG, Straßenverkehrsgesetz) and section 46 (1) first sentence FeV, the driver licensing authority must withdraw the driving licence of a holder who proves to be unfit to drive motor vehicles. Pursuant to section 46 (1) second sentence FeV, this specifically applies if illnesses or defects as contemplated in Annex 4 exist, so that fitness to drive motor vehicles is ruled out. Pursuant to no. 9.2.2 of Annex 4, if cannabis is taken occasionally, fitness to drive may be affirmed for occasional users of cannabis if use and driving are separated, no alcohol or other psychoactive substances are additionally used and if there is no personality disorder or loss of control. The assessments in Annex 4 apply to the normal case in accordance with no. 3 of its recitals. Sections 11 to 14 FeV apply mutatis mutandis (section 46 (3) FeV) if facts become known which justify concerns that the holder of a driving licence is unfit or conditionally fit to drive a motor vehicle. Pursuant to section 14 (1) third sentence FeV, submission of a medical-psychological expert report may be ordered if occasional use of cannabis is present and further facts cast doubt on the holder's fitness. Pursuant to section 14 (2) no. 3 FeV, submission of a medical-psychological expert report for the purposes set out in subsection 1 must be ordered if repeated offences as contemplated in section 24a of the Road Traffic Act were committed in road traffic.

13 As the Court of Appeal assumes without breach of federal law, the claimant was an occasional user of cannabis at the relevant time of assessment (a) and, by driving a motor vehicle on 28 September 2014, violated the requirement under no. 9.2.2 of Annex 4, i.e. to separate the use of cannabis and driving a motor vehicle (b).

14 a) Occasional use of cannabis within the meaning of no. 9.2.2 of Annex 4 exists if the person concerned has used cannabis in at least two independent consumption processes and these consumption processes have a certain, also time-based connection (established jurisprudence, see BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 19 et seqq. with further references). According to the factual findings of the Court of Appeal, the claimant had such a pattern of use; during the oral hearing before the Court of Appeal, he expressly admitted occasional use of cannabis which met the above-mentioned requirements (...).

15 b) During the drive on 28 September 2014, the claimant did not separate the use of cannabis and driving a motor vehicle in the required manner; this constitutes a violation of the separation requirement under no. 9.2.2 of Annex 4, thereby justifying doubts as to his fitness to drive (section 46 (3) in conjunction with section 14 (1) third sentence FeV).

16 aa) Pursuant to no. 9.2.2 of Annex 4, occasional use of cannabis, unlike regular use (no. 9.2.1 of Annex 4), is not in itself sufficient to assume that the person concerned is unfit to drive. Additional factual circumstances must be added. Apart from the combined use of cannabis and alcohol, one of these "additional facts" is that the person concerned does not separate the use of cannabis and driving a motor vehicle (BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 29). However, not every THC value established for a motor vehicle driver justifies the assumption of no separation within the meaning of no. 9.2.2 of Annex 4 (BVerwG, judgment of 23 October 2014, see above, para. 31).

17 bb) According to the jurisprudence of the deciding Senate, the person concerned must separate use and driving in such a way that the previous use of cannabis cannot impair his or her traffic-relevant characteristics under any circumstances in order to affirm the fitness to drive pursuant to no. 9.2.2 of Annex 4. In view of the serious threats which drivers with impaired driving may pose to the lives and health of other road users, it is also necessary, in light of the state's obligation to warrant road safety, to exclude such risks as far as possible. Accordingly, the separation requirement is not only violated if it can be assumed with certainty that driving safety will be impaired or if - as the Bavarian Higher Administrative Court (Verwaltungsgerichtshof) temporarily assumed - there is a significant increase in the accident risk (see also Munich Higher Administrative Court, decision of 4 June 2007 - 11 CS 06.2806 - para. 20 with further references), but already when the possibility of cannabis-induced impairment of driving safety exists or - put negatively - if such impairment cannot be ruled out (BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 33; likewise, i.a. (...); Mannheim Higher Administrative Court, decision of 22 July 2016 - 10 S 738/16 - (...)).

18 The Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) also applies these threat criteria. It is sufficient for the assumption of a lack of willingness to separate and hence of a moral lack of fitness that it is at least not possible to rule out unfitness to drive due to drug use (BVerfG, chamber decision of 20 June 2002 - 1 BvR 2062/96 - (...)). As a precondition for an act of driving a motor vehicle "under the influence" of cannabis to fulfil the constituent elements of an administrative offence punishable pursuant to section 24a (2) StVG, the Federal Constitutional Court, in its interpretation of this provision in conformity with the constitution, considers it necessary, but also sufficient that the THC concentration determined in the blood makes limited driving fitness of the motor vehicle driver participating in road traffic appear possible (BVerfG, chamber decision of 21 December 2004 - 1 BvR 2652/03 - (...)). These deliberations by the Federal Constitutional Court regarding the offence of exposure to an abstract threat pursuant to section 24a (2) StVG are, according to the jurisprudence of the deciding Senate (BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 34), which the Court of Appeal (...) has adopted, readily transferrable to the procedure aimed at preventing and averting threats on the basis of the Driver Licensing Ordinance (...).

19 cc) The separation requirement under no. 9.2.2 of Annex 4 is violated if an occasional user of cannabis ultimately fails to appropriately separate the use of cannabis and driving a motor vehicle. It is irrelevant whether failure to separate is due to the fact that the person concerned was unable to separate ("ability to separate" or "capacity to separate") or that he or she was unwilling to separate cannabis use and driving a motor vehicle ("willingness to separate"). The Court of Appeal also assumes this (...).

20 The wording of no. 9.2.2 of Annex 4 implies that the criterion to be applied is the objective fulfilment of the separation requirement. This provision does not use any of the terms "capacity to separate", "ability to separate" or "willingness to separate". These terms designate individual requirements, non-compliance of which may be the reason for violation of the separation requirement; they are not identical to the term "separation" which defines the conduct to be followed by an occasional user of cannabis. In no. 9.2.2 of Annex 4, the issuer of the ordinance affirms fitness to drive only if "[there is no] separation of use and driving and no additional use of alcohol or other psychoactive substances, no personality disorder, no loss of control". With regard to the "additional facts" listed therein, the issuer of the ordinance hence refers to the assessment guidelines regarding fitness to drive which, pursuant to Annex 4a to the Driver Licensing Ordinance (principles for carrying out examinations and preparing expert reports), form the basis for assessing fitness to drive motor vehicles. Since 1 February 2000, these guidelines state under 3.14.1 (addiction <dependence> and states of intoxication) that persons who occasionally use cannabis are able to meet the requirements for driving motor vehicles of both groups if they can separate the use of cannabis from driving, if they do not additionally use alcohol or other psychoactive substances and if there is no personality disorder or loss of control. However, the issuer of the ordinance has chosen a different wording in order to describe the content of the separation requirement. Indications as to why the issuer of the ordinance chose the term "separation" in deviation from the assessment guidelines are not given in the explanatory memorandum. However, this does not alter the clear wording of the provision, whose - positive - language calls for separation in order to affirm the driving fitness of an occasional user of cannabis.

21 This "result orientation" also best reflects the function of the catalogue of defects in Annex 4. Its purpose is to exclude as far as possible threats to road safety and the associated risks to life, health and property which, within the scope of no. 9.2.2 of Annex 4, may arise from occasional use of cannabis and its insufficient separation from driving a motor vehicle. Such threats are possible when driving a motor vehicle under a THC-induced impairment of driving safety irrespective of whether the separation requirement was violated due to the person's lack of cognitive ability/capability or lack of willingness to separate. This understanding of the separation requirement is also in line with established jurisprudence of the Federal Constitutional Court. It does not consider the possession of cannabis to be sufficient for the requirement for a driving fitness expert report by the driver licensing authority, but additionally requires that concrete factual indications be established that the person concerned is not able or willing to reliably separate the use of cannabis from active participation in road traffic (see BVerfG, chamber decision of 8 July 2002 - 1 BvR 2428/95 - (...)). The Federal Constitutional Court too hence places both possible causes for the violation of the separation requirement on an equal footing.

22 However, the fact that objective fulfilment of the separation requirement is the key parameter for affirming driving fitness pursuant to no. 9.2.2 of Annex 4 does not in its own right answer the question as to the consequences under driver licensing law for a violation of the separation requirement committed in the past (see 2.).

23 dd) The fact that even the possibility of an impairment of the driving safety of the person concerned constitutes a violation of the separation requirement under no. 9.2.2 of Annex 4 has repercussions on the level of the THC limit value to be applied. The relevant aspect in this case is the concentration of THC in blood serum at which impairment of driving safety can begin with relevance for traffic safety or - in accordance with the jurisprudence of the Federal Constitutional Court (BVerfG, chamber decision of 20 June 2002 - 1 BvR 2062/96 - (...)) - the level at which it cannot be ruled out; in this respect it is a "risk limit value" (BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 37 (...)).

24 The THC value at which such impairment can begin is essentially a question of a factual, i.e. medical-toxicological nature (see BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 31). Accordingly, the review by the court deciding on the appeal on points of law must be based on the factual findings made by the lower instance unless any admissible and well-founded procedural complaints were raised against this - as in the present case (see section 137 (2) VwGO). In addition, general scientific findings may be used in the appeal proceedings on points of law (BVerwG, judgment of 3 March 1987 - 1 C 39.84 - (...)).

25 (1) The administrative courts in their established jurisprudence have so far predominantly assumed that the driving safety of occasional users of cannabis may be impaired if a THC concentration of 1ng/ml in blood serum is reached or exceeded (see, i.a., Mannheim Higher Administrative Court, judgment of 22 November 2012 - 10 S 3174/11 - (...)). This assumption was approved by the deciding Senate from the legal point of view determining appeals on points of law (regarding the judgment by Mannheim Higher Administrative Court, see: BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 37 et seqq.). The fact that the Bavarian Higher Administrative Court, deviating from this, temporarily applied a THC limit value of 2ng/ml in blood serum was essentially due to its assumption that a significant increase in the risk of impaired driving safety had to be used as the criterion (see, still, Munich Higher Administrative Court, decision of 25 January 2006 - 11 CS 05.1711 - (...)). In the meantime, however, the Bavarian Higher Administrative Court has departed from this again (see, i.a., Munich Higher Administrative Court, decision of 10 March 2015 - 11 CS 14.2200 - para. 12 et seqq.); it too now once again uses a THC limit value of 1ng/ml in blood serum (see Munich Higher Administrative Court, judgment of 13 December 2017 - 11 BV 17.1876 - para. 21 and decision of 23 May 2016 - 11 CS 16.690 - (...) para. 15 et seqq.).

26 The above-mentioned THC limit value of 1ng/ml in blood serum is based on the decision of the Limit Value Commission of 20 November 2002. It recommended this value there for the assumption of an administrative offence pursuant to section 24a (2) StVG - here the driving of a motor vehicle under the influence of cannabis -; it updated and confirmed its recommendation in a further decision of 22 May 2007 (...). As has been shown, established jurisprudence of the administrative courts has made it clear that the transfer of this limit value, that was developed for administrative offence law, to driver licensing law is justified because section 24a (2) StVG and no. 9.2.2 of Annex 4 are based on the same threat criteria (see BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 34).

27 (2) It does not give rise to any objections within the scope of the appeal on points of law against the Court of Appeal's assumption that this THC limit value of 1ng/ml in blood serum should be further adhered to for the determination of a violation of the separation requirement pursuant to no. 9.2.2 of Annex 4 also taking into account the more recent recommendation by the Limit Value Commission of September 2015 (with regard to further adherence to this limit value, see also: (...); Kassel Higher Administrative Court, decision of 17 August 2017 - 2 B 1213/17 - (...); (...); Mannheim Higher Administrative Court, decision of 22 July 2016 - 10 S 738/16 - (...); (...)).

28 The "Recommendation by the Limit Value Commission for the concentration of tetrahydrocannabinol (THC) in blood serum in order to determine the capacity to separate between cannabis use and driving" (Empfehlung der Grenzwertkommission für die Konzentration von Tetrahydrocannabinol (THC) im Blutserum zur Feststellung des Trennungsvermögens von Cannabiskonsum und Fahren) (...), published in September 2015, recommends, with reference to various studies, rejecting a separation between use and driving as defined in Annex 4 for occasional users of cannabis if a THC concentration of 3.0ng/ml or more in blood serum is determined. If the last use of cannabis at this concentration level was definitely longer ago, accumulation of THC as a result of regular use had to be assumed, hence excluding fitness to drive pursuant to no. 9.2.1 of Annex 4. The justification is that a loss of performance can be detected in experimental studies at the earliest from 2ng THC/ml in serum, an increased accident risk from a THC concentration of 4ng/ml in blood serum. Furthermore, in order to avoid disadvantages in a concrete individual measurement, a maximum fluctuation in the measured value of 30% had to be taken into account (see above, p. 322). On this basis, the Limit Value Commission recommends that the separation of use and driving be denied once a THC limit value of 3.0ng/ml in blood serum has been reached (see above, p. 323). However, the Limit Value Commission expressly does not consider a need to reassess the analytical limit value of THC (1ng/ml) according to its recommendation regarding the Annex to section 24a StVG (see above, p. 323).

29 The Court of Appeal rightly assumes that the Limit Value Commission, in issuing this recommendation, assumed different threat criteria than the ones to be applied under driver licensing law on the basis of the legal reasons outlined above. This is, in particular, reflected by the fact that, on the one hand, the Limit Value Commission recommends that, in the case of persons who occasionally use cannabis, the separation of use and driving pursuant to no. 9.2.2 of Annex 4 should only be denied at a THC concentration of 3ng/ml or more in blood serum, but on the other hand expressly states that a reassessment of the analytical THC limit value of 1ng/ml in blood serum in accordance with its recommendation to the annex to section 24a StVG is not necessary. Established jurisprudence of the administrative courts, however, recognises for the legal reasons already mentioned that the threat criteria to be applied in driver licensing law for assessing fitness to drive is identical to that contemplated in section 24a (2) StVG. The more recent recommendation by the Limit Value Commission also does not - as the Court of Appeal also rightly states in this context - suggest that and, if applicable, for what medical-toxicological reasons, a differentiation in threat criteria between driver licensing law and administrative offence law would be appropriate. Instead, the then chairman of the Limit Value Commission, Prof. Dr Daldrup, had stated in the oral hearing before the Administrative Court regarding the limit value of 1ng/ml as laid down by the Limit Value Commission for section 24a (2) StVG that there was a possibility of impairment with this quantity as the Federal Constitutional Court considered to be necessary for the interpretation of the provision in conformity with the constitution (...).

30 However, the main argument against the need to abandon the THC limit value used so far is that, according to the factual findings of the previous instances and generally available scientific findings, which are binding for the appeal proceeding on points of law, the medical-toxicological assumption is still correct, i.e. that driving a motor vehicle may be impaired by factors impacting driving safety even if the THC value is as low as 1ng/ml in blood serum. The Court of Appeal concluded this from the statements made by the experts Prof. Dr Daldrup and Prof. Dr Tönnes - the former and current chairmen of the Limit Value Commission - who were heard there on the question of the THC limit value. Both of them did not voice any doubt that impairment of driving safety could not be ruled out with a THC value of 1ng/ml in blood serum (...); they instead expressly confirmed this. In the appeal proceedings on points of fact and law, the reporting judge, referring to the minutes of the oral hearing and the general legal rules established by Federal Administrative Court to no. 9.2.2 of Annex 4, asked the experts whether an impairment of road safety could be ruled out for users of cannabis with a THC value of 1ng/ml in serum. The experts denied it; a THC value of 1ng/ml in serum could have an externally measurable effect (...). In the oral hearing before the Administrative Court, the then chairman of the Limit Value Commission, Prof. Dr Daldrup, stated that even at a THC concentration of 1ng/ml in blood serum, a cannabis-related performance loss relevant for traffic safety could not be ruled out (...). No admissible and well-founded procedural complaints were lodged against the finding by the lower courts, based on these statements, that driving safety could already be impaired with a THC value of 1ng/ml in blood serum. In the oral hearing before the deciding Senate, the then chairman of the Limit Value Commission, Prof. Dr Tönnes, once again expressly confirmed that there is not only a theoretical, but also a realistic possibility that an occasional user of cannabis will suffer an impairment of a person's safety-relevant driving characteristics from a THC value of 1ng/ml in blood serum. However, the Federal Constitutional Court and established jurisprudence by the administrative courts agree - as shown - that even the not only theoretical possibility of impairment of driving safety through previous occasional cannabis use is sufficient to affirm a violation of the prerequisites of the separation requirement applicable in administrative offence and driver licensing law ("risk limit value").

31 In as far as the recommendation by the Limit Value Commission of September 2015 (...), the written explanations by individual members of the Limit Value Commission (...) as well as the oral statements of the two experts in the present proceedings point out that chronic use of cannabis can lead to the formation of a depot in tissue from where THC would enter the bloodstream, without this having any impact on the characteristics of the person concerned relevant for driving safety, the Court of Appeal made the factual finding that this does not yet constitute a statement of scientific evidence on the basis of which the given legal standard under driver licensing law, i.e. safe exclusion of threats, can be regarded to be fulfilled (...). Notwithstanding this, the limit value must rule out the realistic possibility of impaired driving safety not only in the case of chronic, but also less frequent use of cannabis. No. 9.2 of Annex 4 differentiates only between regular and occasional use of cannabis. Chronic use is not an independently regulated pattern of consumption; the distinction from regular consumption is not clear. Finally, the claimant never stated to be a chronic user of cannabis. He initially claimed to have used cannabis only once before the drive on 28 September 2014. In the oral hearing before the Court of Appeal, however, he admitted to occasionally using cannabis against the background of his statements during the traffic check and the results of the blood tests, but not to chronic use beyond that.

32 Finally, with regard to the recommendation by the Limit Value Commission of September 2015, it must be taken into account that the higher THC limit value proposed there, as suggested by the statement by members of the Limit Value Commission on the "state of scientific knowledge regarding the determination of insufficient separation between cannabis use and driving based on the concentration of tetrahydrocannabinol (THC) in blood serum" (...), was based on the assumption that the driving licence would be immediately withdrawn from occasional users of cannabis who drove a motor vehicle reaching the THC limit value. The authors therefore considered it to be necessary to demand that proof of unfitness to drive due to cannabis use based solely on a THC blood serum concentration be contingent upon a limit value that proves unfitness to drive beyond any reasonable doubt (...). It can be left open whether - as the Court of Appeal assumes - the threat criteria relevant according to established jurisprudence of the administrative courts are also missed in this respect. In any case, this approach adopted by the Limit Value Commission for a higher limit value becomes obsolete because - as will still be shown in detail - the achievement of this limit value by an occasional user of cannabis during a first drive under the influence of cannabis usually only leads to the fact that the person concerned can be ordered to submit a medical-psychological expert report pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV.

33 On 28 September 2014, the claimant, while driving a motor vehicle, exceeded the THC limit value of 1ng/ml in blood serum, which is still relevant for the reasons set out above. A THC value of 1.1ng/ml in blood serum was found in the blood sample taken around one hour after the end of the drive. There is no need for a "safety margin" in order to allow for possible measurement inaccuracies (see BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...)). The claimant therefore failed to separate his (occasional) use of cannabis and driving a motor vehicle in the manner required by no. 9.2.2 of Annex 4.

34 2. Contrary to the assumption by the Court of Appeal, the first violation by an occasional user of cannabis of the requirement for separation of cannabis use and driving within the meaning of no. 9.2.2 of Annex 4 does not yet justify the conclusion that he or she proves to be unfit to drive motor vehicles within the meaning of section 3 (1) first sentence StVG and section 46 (1) FeV (for instance, the Court of Appeal and others (...); Mannheim Higher Administrative Court, judgment of 22 November 2012 - 10 S 3174/11 - (...)). The driver licensing authority may therefore not withdraw the driving licence in such cases directly, i.e. without further inquiry into the facts. Following further examination, the deciding Senate no longer adheres to its contrary opinion expressed in the judgment of 23 October 2014 - 3 C 3.13 - (...). A prerequisite to negate fitness to drive (section 3 (1) first sentence StVG and section 46 (1) FeV) is, following the first-time violation of the separation requirement by an occasional user of cannabis, the prognosis of his or her future failure to separate between possible impairment of the driving safety due to cannabis use and driving a motor vehicle. In order for this prognosis to be supported by reliable facts, it is usually necessary to obtain a medical-psychological expert report (section 46 (3) in conjunction with section 14 (1) third sentence FeV).

35 a) Driver licensing law is law on threat prevention (see, i.a., BVerwG, judgment of 14 November 2013 - 3 C 32.12 - BVerwGE 148, 230 para. 21). Therefore, the driver licensing authority's assessment of fitness to drive which must be carried out within this framework, in contrast to the punishment of an administrative offence pursuant to section 24a (2) StVG, is not about the sanctioning of past misconduct in road traffic. Instead, driver licensing law aims at minimising future risks to road safety. In order to answer the question as to whether profound reasons exist to doubt fitness to drive leading to withdrawal of the driving licence, the behaviour of the person concerned as it has become known so far as well as other circumstances relevant for fitness to drive must hence be used as a basis for a prognosis as to whether there is a risk of repetition, i.e. - in other words - where future offences relevant for assessing fitness to drive are to be expected (regarding the combined used of alcohol and cannabis, see BVerwG, judgment of 14 November 2013 - 3 C 32.12 - BVerwGE 148, 230 para. 16; regarding section 14 (1) third sentence FeV: Munich Higher Administrative Court, judgment of 25 April 2017 - 11 BV 17.33 - (…)).

36 The fact that the assessment of fitness to drive in such cases depends on a prognosis is also implied by no. 1 (f) of Annex 4a to the Driver Licensing Ordinance. The examination in the cases contemplated in sections 13 and 14 FeV hence also covers the probable conduct of the person concerned, in particular whether it is to be expected that he or she will not or no longer drive a motor vehicle under the influence of alcohol, narcotic drugs or medicinal products. These regulations are indeed contained in part 2 of the Driver Licensing Ordinance which addresses the conditions for issuing a driving licence. However, these provisions are applicable mutatis mutandis pursuant to section 46 (3) FeV if facts become known which justify concerns that the holder of a driving licence is unfit or conditionally fit to drive a motor vehicle, i.e. also in the event that the authority has to decide on the withdrawal of a driving licence or on measures preceding such a withdrawal of a driving licence, such as obtaining a fitness to drive expert report.

37 b) After committing a single violation of the separation requirement pursuant to section 46 (1) second sentence FeV in conjunction with no. 9.2.2 of Annex 4, an occasional user of cannabis is not proven to be unfit to drive motor vehicles. Pursuant to no. 9.2.2 of Annex 4, fitness to drive is to be affirmed if use and driving are separated unless any of the other additional facts are present. This does not mean that fitness to drive must be definitely denied if the separation requirement is violated once only. Instead a one-off violation of the separation requirement is a fact which justifies reservations regarding fitness to drive and, pursuant to section 46 (3) FeV, leads to the application of sections 11 to 14 FeV. The driver licensing authority must clarify any doubts regarding fitness to drive that emerge as a result of the violation of the separation requirement. In such cases, a medical-psychological assessment is usually required in order to have a sufficiently secure basis for the prognosis as to whether or not the person concerned will continue to distinguish between the use of cannabis, which may impair driving safety, and driving a motor vehicle (section 46 (3) in conjunction with section 14 (1) third sentence FeV).

38 aa) The argument why section 14 (1) third sentence FeV rather than - as the Court of Appeal believes - section 11 (7) FeV is applied in cases like this is supported by the explanatory memorandum given by the issuer of the ordinance in the recast version of the Driver Licensing Ordinance that was issued with effect from 1 January 1999 in order to transpose the Second Driving Licences Directive into national law (Ordinance on the Admission of Persons to Road Traffic and Amending Road Traffic Law Provisions (Verordnung über die Zulassung von Personen zum Straßenverkehr und zur Änderung straßenverkehrsrechtlicher Vorschriften) of 18 August 1998, Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2214). The explanatory memorandum to section 14 (1) FeV reads (Bundesrat printed paper (BR‑Drs., Bundesratsdrucksache) 443/98 p. 262 et seq.): "In the case of cannabis, a distinction must be made between regular and occasional use. Fitness is generally excluded in cases of regular use. In case of occasional use of cannabis, fitness is usually given. An additional medical-psychological examination is required if further circumstances cast doubt on fitness. This is, for instance, the case if use is combined with driving, if there is a loss of control or if personality disorders exist or if additional use of alcohol or other psychoactive substances is present. The third sentence therefore provides for the authorisation to order a medical-psychological examination if occasional use was determined." This implies that the issuer of the ordinance considered the use of cannabis by occasional users of cannabis in combination with driving to constitute an additional fact within the meaning of section 14 (1) third sentence FeV that justifies doubts as to fitness. However, according to this provision, this "additional fact" does not lead to the determination of unfitness and hence also not to the application of section 11 (7) FeV; instead, section 14 (1) third sentence FeV provides that in such cases the driver licensing authority must take a discretionary decision as to whether the submission of a medical-psychological expert report is to be ordered. The fact that this was the issuer of the ordinance's regulatory intention is confirmed by the statement submitted by the Representative of the Interests of the Federation at the Federal Administrative Court (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht) in agreement with the Federal Ministry of Transport and Digital Infrastructure as the ministry (Bundesministerium für Verkehr und digitale Infrastruktur) responsible for issuing the Driver Licensing Ordinance, stating that, in the case of occasional use of cannabis, the first-time violation of the separation requirement is not sufficient to be considered proof of unfitness of the person concerned; instead, this merely leads to the assumption of facts that cast doubt regarding the fitness to drive of the person concerned.

39 bb) Furthermore, systematic considerations support the application of section 14 (1) third sentence FeV.

40 Section 14 (2) no. 3 FeV provides that submission of a medical-psychological expert report for the purposes set out in subsection 1 must be ordered if repeated offences as contemplated in section 24a of the Road Traffic Act were committed in road traffic. While this may include successive drives under the influence of alcohol affecting driving safety during the first drive and under the influence of cannabis during the next drive(s) ("combined cases"), the wording of the provision also covers several drives under the influence of cannabis which may affect driving safety. In view of this, there is no convincing reason why the application of section 11 (7) FeV should lead to immediate withdrawal of the driving licence after a single drive with a cannabis level relevant for driving safety, if, pursuant to section 14 (2) no. 3 FeV, only a medical-psychological expert report has to be ordered in the case of multiple offences.

41 Furthermore: section 11 (7) FeV, pursuant to which no order to submit the expert report is issued if the driver licensing authority is convinced that the person concerned is unfit, presupposes that the authority itself can easily determine unfitness to drive on the basis of the circumstances known to it. This is, for instance, the case if hard drugs are used; pursuant to no. 9.1 of Annex 4, such drug use necessarily must always lead to negation of fitness to drive. If, however, an occasional user of cannabis drove a motor vehicle in the past, the crucial criterion for the relevant threat assessment is whether sufficient certainty exists that the user of cannabis will - i.e. also under the threat of punishment of his or her violation as an administrative offence pursuant to section 24a (2) StVG - observe the separation requirement in future. In order to be able to assess this, special psychological expertise and a corresponding professional assessment and hence a medical‑ psychological examination are usually required, as confirmed by the genesis of section 14 (1) third sentence FeV and the assessment of this initial situation by the issuer of the ordinance expressed there. There is no general principle based on experience that a person who has once violated the separation requirement pursuant to no. 9.2.2 of Annex 4 will also do so in the future. Admittedly, special circumstances of the individual case, such as particularly irresponsible handling of cannabis use with regard to traffic safety, may suggest that a violation of the separation requirement could be repeated. In such cases of a sufficiently secured negative prognosis, section 11 (7) FeV can then also be applied.

42 The requirement for a medical-psychological assessment in the case of occasional cannabis use and the first violation of the separation requirement pursuant to no. 9.2.2 of Annex 4 is also the basis for the commentary on the assessment guidelines for fitness to drive motor vehicles (...) published by the German Society for Traffic Medicine (Deutsche Gesellschaft für Verkehrsmedizin) and the German Society for Traffic Psychology (Deutsche Gesellschaft für Verkehrspsychologie). According to this, the fitness to drive of occasional cannabis users can be affirmed in the context of the medical-psychological assessment if there is only occasional cannabis use and if participation in traffic under the influence of drugs can be reliably avoided even if use may continue (...). The following examination criteria are mentioned for this: In the past, the client used cannabis products with a small amount of active substance, and, if he or she has not stopped using cannabis completely, he or she is very likely to continue using cannabis only occasionally and with a small amount of active substance in the future (...). The client realistically assesses the mode and duration of action of the cannabis products used, so that a reliable separation of use and driving is ensured. He or she is (now) aware of the particular risks of cannabis use for participation in road traffic (...). The client has plausibly declared his or her intention not to participate in road traffic under the influence of THC and has such good self-control and assertiveness that he or she will be able to implement this intention (...). These (main) criteria are then followed by corresponding sub‑criteria. This catalogue of criteria also illustrates what will be the subject of the medical-psychological examination when section 14 (1) third sentence FeV is applied.

43 cc) As the Court of Appeal rightly assumes (...), the applicability of section 14 (1) third sentence FeV cannot be derived from a desirable synchronisation between section 13 FeV (clarification of doubts regarding fitness in the case of alcohol) and section 14 FeV (clarification of doubts regarding fitness in the case of narcotic drugs and medicinal products) (however, see Munich Higher Administrative Court, judgment of 25 April 2017 - 11 BV 17.33 - (...)).

44 Although the issuer of the ordinance had such a synchronisation in mind in the Fourth Ordinance Amending the Driver Licensing Ordinance and Other Road Traffic Law Provisions (Vierte Verordnung zur Änderung der Fahrerlaubnis-Verordnung und anderer straßenverkehrsrechtlicher Vorschriften) of 18 July 2008 (BGBl. I p. 1338), which came into effect in 2008, the intention of this provision only related to specific individual issues. By amending section 13 FeV, the issuer of the ordinance intended to eliminate the different assessments of earlier alcohol and earlier drug addiction (article 1 no. 7 of the Fourth Ordinance Amending the Driver Licensing Ordinance and Other Road Traffic Law Provisions, see the explanatory memorandum in BR-Drs. 302/08 p. 62) and, within the framework of section 14 FeV, to achieve equal treatment of withdrawal of the driving licence by criminal courts and withdrawal of the driving licence by driver licensing authorities (article 1 no. 8 of the Fourth Ordinance Amending the Driver Licensing Ordinance and Other Road Traffic Law Provisions, see the explanatory memorandum in BR-Drs. 302/08 p. 62 et seq.). However, this does not imply that the issuer of the ordinance generally sought to synchronise sections 13 and 14 FeV. This was and is not required by the principle of equal treatment in article 3 (1) of the Basic Law (GG, Grundgesetz). According to the jurisprudence of the Federal Constitutional Court (BVerfG, chamber decision of 21 December 2004 - 1 BvR 2652/03 - (...)) and of the deciding Senate (BVerwG, judgment of 23 October 2014 - 3 C 3.13 - (...) para. 51) it is recognised that unequal treatment of alcohol and cannabis use in driver licensing law does not violate article 3 (1) GG because of the different threat potential to road safety and the different modes of action. Even after the harmonisation carried out by the issuer of the ordinance, the provisions of section 13 FeV regarding alcohol and those of section 14 FeV regarding the consumption of narcotic drugs are still considerably different. Under driver licensing law, even considerable use of alcohol, as long as it is not classified as alcohol abuse within the meaning of no. 8.1 of Annex 4 due to a violation of the separation requirement, does therefore not yet lead to the requirement for a medical-psychological expert report, whereas the use of hard drugs (no. 9.1 of Annex 4) or also regular cannabis use (no. 9.2.1 of Annex 4) already directly results in the withdrawal of the driving licence.

45 c) If the driver licensing authority decides, pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV, in exercising its discretion in accordance with legal obligation that the person concerned must submit a medical-psychological expert report in order to clarify existing doubts regarding his or her fitness, the driver licensing authority at the same time sets a deadline for submission of the report pursuant to section 11 (6) second sentence FeV. If the person concerned refuses to be examined or fails to provide the driver licensing authority with the required expert report by the deadline set, the driver licensing authority can then, pursuant to section 11 (8) FeV, conclude in its decision that the person concerned is unfit. This instrument enables the driver licensing authority to quickly clarify doubts regarding fitness arising from the past violation of the separation requirement and then, either on the basis of the driving fitness expert report or, in the event of failure to submit the report by the deadline set as contemplated in section 11 (8) FeV, to take its decision on the withdrawal of the driving licence in a timely manner.

46 d) In the present case, the defendant failed to make its discretionary decision pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV to obtain a medical-psychological expert report. The contested withdrawal of the driving licence hence proves to be unlawful and violates the claimant's rights; the defendant's notice must therefore be repealed by revising the decisions by the courts of previous instance (section 113 (1) first sentence VwGO).