In the recent judgement ‘Rückkehrpflicht VI’ (Federal Court of Justice, 3 June 2026 – I ZR 123/25), the Federal Court of Justice has addressed, for the sixth time, the obligation to return hire cars as set out in section 49(4), third sentence, of the Passenger Transport Act (PBefG). Despite considerable doubts as to the constitutionality of the provision, the federal judges refrained from referring the matter to the Federal Constitutional Court (BVerfG) under Article 100(1) of the Basic Law (GG) – much to the bewilderment of Niko Härting and Jan Hemann. In the new October issue of the specialist journal ‘WRP – Wettbewerb in Recht und Praxis’, they analyse the judgement and explain why the BGH’s decision is unconvincing.
The ruling was prompted by a claim brought by a taxi company against a Cologne-based firm which arranged journeys via the ‘UberX’ platform, using subcontractors to carry out the services. One of the drivers had breached the return obligation applicable to hire cars. Under Section 49(4), third sentence, of the Passenger Transport Act (PBefG), a hire car must return to its place of business immediately after completing a transport assignment, unless it has received a new transport assignment from its place of business or the driver’s home before the journey, or whilst en route. After both the Regional Court of Cologne and the Higher Regional Court of Cologne had upheld the claim, the Federal Court of Justice (BGH) was then required to consider the case. The crux of the decision was the question of whether the obligation to return – undoubtedly an encroachment on the freedom to choose one’s occupation under Article 12(1) of the Basic Law (GG) – is constitutionally justified. Had the Federal Court of Justice (BGH) been convinced that there was no justification, it would have had to refer the question of the constitutionality of the provision to the Federal Constitutional Court (BVerfG) in accordance with Article 100(1) of the Basic Law.
It is true that the Federal Constitutional Court had previously confirmed the constitutionality of the obligation to return in 1989. It identified the protection of the ‘existence and functionality of the taxi service’ as a legitimate purpose – which, in the case of a regulation governing the exercise of a profession, must relate to a matter of particular importance to the public interest. This line of argument ties in with the regulatory asymmetry between taxis and hire cars: Whilst taxis – due to their role as part of public services – are subject to an obligation to provide transport under Section 22 of the Passenger Transport Act (PBefG) and to fixed fares under Section 51(1) of the PBefG, hire cars are free to set their own prices and may refuse transport requests.
However, why this line of argument no longer holds water in 2026, and how the Federal Court of Justice (BGH) nevertheless – in a rather unconvincing manner – avoided a referral, can be read in the full article by Härting/Hemann, WRP 2026, 1247.