24.–26.05.2023 #polismobility

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ON THE LAWFULNESS OF POP-UP CYCLEWAYS

TEMPORARY LANES

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Pop-up cycleways are a novel phenomenon in transport law, and one that is set to play a key role in shaping the urban landscape and transport options in German cities.

Women at bicycle

Pop-up cycleways, or, to use the correct administrative term, “temporary cycle lanes”, are a novel phenomenon in transport law. They proved highly popular worldwide during the coronavirus pandemic.

Originally designed for temporary use only, the lanes are set to play a key role in shaping the urban landscape and transport options in German cities. The administrative implementation in Berlin has paved the way for this by demonstrating the feasibility of such cycleways, gaining popular support for them, and winning legal backing from the courts.

Overview

Since the outbreak of the SARS-CoV-2 pandemic in 2020, a series of cities have introduced new forms of cycleways. In addition to Munich, Nuremberg and Leipzig in Germany, they have been trialled in Paris, Budapest, Milan and Mexico City.

These pop-up cycleways aim to further the objective of establishing cyclists as equal road users. This is a goal that the citizens of modern major cities have pushed for and one that is enshrined in road traffic law. Implementing equal participation in mobility is increasingly gaining weight because the overall volumes of traffic are constantly growing, but the spatial capacity in cities is limited, and mobility infrastructure was often not designed with cyclists in mind or adapted to their needs. Against this backdrop, the public administration of Berlin used the pandemic and the resulting increase in bicycle use as an opportunity to introduce pop-up cycleways. In a short space of time, cycle lanes were painted on busy roads that pose numerous risks for cyclists. They were often separated from the lanes for motor vehicles by construction site markers.

As public authorities seek to shape a sustainable mobility with the aim of making cyclists equal traffic participants, pop-up cycleways are an instrument that is likely to be widely adopted.

Dr. Florian Brahms & Julian Arnold

The legal assessment

This course of action and the cycleways themselves prompted an intense debate about their lawfulness, which also occupied the Research Services of the Bundestag and Berlin’s House of Representatives.

However, the debate should be settled for now thanks to a judgement on the matter by the Higher Administrative Court of Berlin-Brandenburg. The court confirmed that creating pop-up cycleways is fundamentally possible and lawful provided that the requirements of the enabling provisions under transport law have been fulfilled in the individual case.

This assessment is correct from the perspective of administrative law. In a legal analysis, pop-up cycleways are cycle lanes (Section 237 of the German Road Traffic Regulations [StVO] in conjunction with Section 295 of the same regulations). They owe their temporary character to a time limit under Section 36 of the German Administrative Procedures Act (VwVfG); however, they can subsequently be converted into permanent cycle lanes by a permanent order. For the creation of a cycle lane to be lawful, whether it is a temporary or permanent measure, the requirements of Section 45(1) StVO in conjunction with Section 45(9) sentence 1 StVO must be fulfilled.

The above provisions set out two requirements for their creation: (i) Cycleways may be created only where this is absolutely necessary due to particular circumstances.

(ii) A specific danger to the safety or order of road traffic must exist. However, according to the case law, the stipulations governing this specific danger must not be set too high. In particular, there is no need to demonstrate that harm can be expected to occur at any time while the traffic sign or other traffic control device is in place.

Rather, it must be demonstrated that there is a sufficient probability that accidents may occur at some point in the foreseeable future. This is determined by considering the specific situation at a particular point or on a stretch of road and asking whether it gives rise to the fear that the dangerous situation that is to be addressed may occur – possibly due to the coincidence of several dangerous circumstances. It follows from this that the requirements under these provisions are to be determined in each individual case. In the opinion of the Higher Administrative Court of Berlin-Brandenburg, these requirements had been met for all the pop-up cycleways created by Berlin’s public administration that the court had been asked to rule upon.

Confirmation from the courts' rulings

Some background on the rulings issued to date: The judgement by the court in the appeal proceedings was preceded by an urgent preliminary ruling procedure brought by a member of Berlin’s House of Representatives from the Alternative for Germany party (AfD). It was heard by the Berlin Administrative Court, which ruled in his favour and declared the cycleways unlawful. In the lower court’s view, the Berlin Senate had not adequately demonstrated the existence of a specific dangerous situation in the vicinity of the pop-up cycleways in question. In particular, the Berlin Administrative Court held that invoking the impact of the SARS-CoV-2 pandemic was insufficient as this per se concerned non-traffic-related considerations.

Before the appeal against the ruling by the Berlin Administrative Court, the Berlin Senate therefore strengthened its position by setting out and demonstrating a specific justification for the temporary cycle lanes that had triggered the complaint. The Higher Administrative Court of Berlin-Brandenburg held that this was sufficient and that the requirements of the decisive provisions of Section 45(1) sentence 1 StVO in conjunction with Section 45(9) sentence 1 StVO had been fulfilled for all the sections of road under dispute. Furthermore, the Berlin Administrative Court had already ruled that no objections could be raised to the cycle lanes’ temporary nature.

This is in line with Section 36(2) point 1 VwVfG, according to which an administrative act may be enacted with a time limit. Such a limitation does not conflict with the purpose of a cycleway, since a change in the traffic situation may require a traffic regulation for a limited period. Should pop-up cycleways be challenged in other German cities, the administrative courts are likely to base their rulings on these substantively correct decisions.

By creating temporary cycle lanes, public administrations and politicians can initially introduce infrastructure changes on a trial basis. The data gathered on the impact on traffic, use by cyclists and popular approval can be used to develop a form of mobility that is an ideal fit for the individual city.

Dr. Florian Brahms & Julian Arnold

Outlook

As public authorities seek to shape a sustainable mobility with the aim of making cyclists equal traffic participants, pop-up cycleways are an instrument that is likely to be widely adopted. By creating temporary cycle lanes, public administrations and politicians can initially introduce infrastructure changes on a trial basis. The data gathered on the impact on traffic, use by cyclists and popular approval can be used to develop a form of mobility that is an ideal fit for the individual city.

DR. FLORIAN BRAHMS, LIC. EN DRT. FR.

Dr. Florian Brahms, © Brahms Nebel & Colleagues

Dr. Florian Brahms, © Brahms Nebel & Colleagues

is a lawyer and partner of the boutique energy law firm BRAHMS NEBEL & KOLLEGEN, which is based in Berlin and Hamburg, and head of its Hamburg office.

He studied law in Potsdam and Paris. While practising at MASLATON Rechtsanwaltsgesellschaft in Leipzig from November 2011 to March 2016, he was awarded a doctorate with a thesis on “The Integration of Renewable Energies into the Electricity Market – Direct Marketing between Feed-in Remuneration and a Free Market”. Florian Brahms is Chair of the Research Advisory Board of Fraunhofer ISE APV Obstanbau, which researches agrivoltaics, and teaches a seminar on energy law for solar power operators at PHOTON Akademie.

JULIAN ARNOLD

Julian Arnold, © Brahms Nebel & Colleagues

Julian Arnold, © Brahms Nebel & Colleagues

is a lawyer practising at the Berlin office of BRAHMS NEBEL & KOLLEGEN, a specialist energy law firm.

He advises on projects of all kinds in the energy sector, with a particular focus on environmental and planning law.

Authors

Dr. Florian Brahms & Julian Arnold