An app is not a measuring instrument subject to calibration

Apr 1, 2022 Benn-Ibler Rechtsanwälte

Neither a smartphone app nor a smartphone with GPS function is a measuring instrument subject to calibration according to Section 8 para 1 no 1 of the Measurement and Calibration Act (Maß- und Eichgesetz, MEG).

In the case at hand, a car rental company was fined by the Korneuburg district authority because his company had transported a passenger, and the arrangement of the transport as well as the calculation of the fare was handled via the smartphone app of his cooperation partner. According to the authority, the app was a measuring device in the sense of the MEG, which had not been calibrated. The authority therefore imposed a fine on the entrepreneur.

The appeal filed by the entrepreneur against the penalty was dismissed by the Regional Administrative Court.

The Administrative Court (Verwaltungsgerichtshof, VwGH) stated that a measuring instrument in the sense of Sec. 7 para 1 MEG is a device that is intended to measure at least one parameter (such as length, weight or temperature). According to Sec. 8 para 1 no 1 of the MEG, measuring instruments for determining length [...] and fare gauges (taximeters) on vehicles are subject to calibration in legal transactions.

The term "device" is not defined in the MEG; according to the usage, it is to be understood as a (movable) object. An app cannot therefore be a device in the sense of the MEG. But also the definition in Directive 2014/30/EU, which defines an "apparatus" as a "finished apparatus [...] intended for end-users and liable to cause electromagnetic disturbance, or the operation of which is liable to be affected by electromagnetic disturbance", does not cover the app in question. And the smartphone with GPS function in combination with the app is also not a measuring device within the meaning of the MEG.

According to Directive 2014/32/EU, however, a "taximeter" is a device that is operated together with a signal transmitter and forms a measuring device with it. According to the findings of the Regional Administrative Court, the smartphone continuously transmits its location, but no length measurement was carried out on the device itself.

Moreover, the smartphone is not a length measuring device that is used to determine the length of elongated objects (such as fabrics, tapes or cables) while the object being measured is moved forward. The offence under Sec. 63 para 1 in conjunction with Sec. 7 para 1 no 1 and 2 MEG was therefore not fulfilled.

VwGH Ro 2019/04/0028-5 (12.11.2021)