24.–26.05.2023 #polismobility

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On the legal admissibility of "Pop-up" cycle paths

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"Pop-up cycle lanes" are a new kind of traffic law phenomenon that will help shape the image and mobility options of the city in Germany in the future.

Women at bicycle

"Pop-up cycle lanes", in administrative language correctly "temporary cycle lanes", are a new phenomenon in traffic law that has also found global appeal in the wake of the Corona pandemic. Originally designed for temporary use only, these lanes will shape the image and mobility options of the city in Germany in the future. This was pioneered by the administrative implementation in Berlin, which demonstrated the practicability of such cycle lanes and found approval from the population as well as backing from the judiciary.

Overview

Since the start of the SARS-CoV-2 pandemic in 2020, a number of cities have introduced new forms of cycle lanes.

These include Munich, Nuremberg and Leipzig, and internationally Paris, Budapest, Milan and Mexico City, among others. These "pop-up cycle paths" are intended in particular to promote the goal demanded by the citizens of modern cities and laid down in road traffic law, namely to establish cyclists as equal road users. The implementation of equal mobility participation is becoming increasingly important. This is because the overall traffic volume is continuously increasing, but the spatial capacities in the cities are limited and mobility infrastructures have often not been designed or adapted with cyclists in mind. Against this backdrop, the Berlin administration used the occasion of the pandemic and the resulting increased use of bicycles to introduce "pop-up cycle paths". For this purpose, cycle lanes were quickly painted on heavily frequented roads that pose a risk to cyclists, and often separated from the lanes for motor vehicles by construction site safety barriers.

In the course of designing a sustainable mobility that aims at equal participation of cyclists in traffic, the instrument of "pop-up cycle lanes" may become more widespread.

Dr. Florian Brahms & Julian Arnold

Legal classification

This procedure and the cycle lanes as such led to a lively discourse that dealt with the legal admissibility and also occupied the scientific services of the Bundestag as well as the Berlin parliament. However, the discourse is now likely to have been pre-decided by the decision of the OVG Berlin-Brandenburg in this regard. The OVG confirmed the fundamental possibility and legal admissibility of "pop-up cycle paths", provided that the requirements of the authorisation basis under traffic law are met in the individual case.

This classification is correct from an administrative law perspective. From a legal point of view, "pop-up cycle lanes" are cycle lanes (§ 237 in conjunction with § 295). They receive their temporary character through a time limit according to § 36 VwVfG, whereby they can subsequently be converted into permanent cycle lanes by way of an unlimited order. For the lawful ordering of a - temporary as well as permanent - bicycle lane, the requirements of § 45 para. 1 StVO in conjunction with § 45 para. 9 sentence 1 StVO must be met. § 45 para. 9 sentence 1 StVO must be met.

According to the aforementioned standards, two prerequisites are required for the order: (i) The cycle lanes may only be created where this is absolutely necessary due to special circumstances. (ii) A further prerequisite is that there is a concrete danger to the safety or order of road traffic. However, according to case law, no excessive requirements are to be placed on such a concrete danger. In particular, it is not necessary to prove that damage is to be expected at any time during the erection of the traffic sign. Rather, it must be proven that at some point in the foreseeable future, damage may occur with sufficient probability. This is assessed according to whether the concrete situation at a certain place or stretch of a road suggests the fear that - possibly due to the coincidence of several dangerous circumstances - the dangerous situation to be combated will occur. Subsequently, the prerequisites of the standards are to be determined in the individual case. In the opinion of the OVG Berlin-Brandenburg, these were given with regard to all "pop-up cycle paths" of the Berlin administration that were the subject of the decision.

Confirmation by case law

Background to the previous case law: The decision of the OVG in the appeal instance was preceded by summary proceedings brought by an AfD member of parliament from Berlin, in which the VG Berlin ruled in his favour and held that the cycle lanes were unlawful. According to the VG Berlin, the Berlin Senate had not sufficiently demonstrated that a concrete danger situation existed in the area of the respective "pop-up cycle paths". In particular, the VG Berlin did not consider the effects of the SARS-CoV-2 pandemic to be sufficient. For this was already not a matter of traffic-related considerations.

In the run-up to the appeal proceedings against the decision of the VG Berlin, the Berlin Senate therefore followed up by providing decisive reasons and evidence for the necessity of the temporary cycle lanes complained about. The OVG Berlin Brandenburg considered this to be sufficient and the factual requirements of the decisive norms of § 45 para. 1 sentence 1 in conjunction with § 45 para. 9 sentence 1 StVO to be met. Paragraph 9, Sentence 1 of the German Road Traffic Regulations (StVO) were fulfilled for all sections of the road that remained in dispute. Moreover, in the opinion of the VG Berlin, the temporary character of the bicycle lanes was not objectionable.

According to § 36 para. 2 no. 1 VwVfG, an administrative act may be issued with a time limit. The time limit also does not run counter to the purpose of a cycle lane, since a changed traffic situation may make it necessary to regulate traffic for a limited period of time. These decisions, which are correct in terms of content, will presumably be followed by the administrative courts then called upon - should there also be challenges to the "pop-up cycle paths" in other cities.

With the temporary installation of the cycle lanes, administration and politics can initially introduce the change in infrastructure on a trial basis. The data obtained with regard to traffic impact, use by cyclists and approval by citizens can be used to develop a customised form of mobility in the respective city.

Dr. Florian Brahms & Julian Arnold

Prospects

In the course of designing a sustainable mobility that aims at equal participation of cyclists in traffic, the instrument of "pop-up cycle lanes" may become more widespread. This is because with the temporary installation of the cycle lanes, administration and politics can initially introduce the change in infrastructure on a trial basis. The data obtained with regard to traffic impacts, use by cyclists and approval by citizens can be used to develop a customised form of mobility in the respective 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 at the energy law boutique BRAHMS NEBEL & KOLLEGEN, based in Berlin and Hamburg and head of the Hamburg office. He studied law in Potsdam and Paris and, while working as a lawyer at MASLATON Rechtsanwaltsgesellschaft in Leipzig from November 2011 to March 2016, simultaneously obtained a doctorate on the topic of "The integration of renewable energies in the electricity market - direct marketing between feed-in tariffs and the free market". Florian Brahms is Chairman of the Research Advisory Board Fraunhofer ISE APV Fruit Cultivation and a speaker at the PHOTON Academy on the topic of "Energy Law for Solar Operators".

JULIAN ARNOLD

Julian Arnold, © Brahms Nebel & Colleagues

Julian Arnold, © Brahms Nebel & Colleagues

is an attorney at law at the Berlin office of the law firm specialising in energy law BRAHMS NEBEL & KOLLEGEN in Berlin. Julian Arnold handles all types of projects in the energy sector, with a particular focus on environmental and planning law.

Authors

Dr. Florian Brahms & Julian Arnold