There is hardly an issue in Bremen that is as heated as the parking of cars in residential areas. Questions like these arise: Who does resident parking help? Is parking on pavements permissible? And if so, under what conditions? What rights do pedestrians have? The debate is characterised by assumptions and unsubstantiated claims on the part of both proponents and opponents of a sustainable traffic turnaround. Reason enough to take a look at the binding provisions of road and traffic law in a series of articles on Bremenize.
My previous article (Part A: Road Law) dealt with the requirements of international law and their implementation against the background of Bremen’s urban development situation. Since the entry into force of the UN Convention on the Rights of Persons with Disabilities, the federal states have been obliged to adapt their road law in such a way that accessibility is made possible. In Bremen, this is reflected in the Bremen Equal Opportunities for Persons with Disabilities Act (BremBGG) and in the guidelines for barrier-free design of buildings. However, the rights of people with limited mobility in Bremen have so far remained largely on paper. There is still a definite lack of enforcement.
In addition, road and traffic law in Germany is split up in a somewhat complicated way: There is road law, which deals with the structural design and dedication of roads, for example the designation as pedestrian zones, and for which the Länder are responsible. There is also federal road traffic law, which regulates the use of roads by traffic uniformly throughout Germany. This concerns, for example, the question of what rights road users have and where traffic signs may or must regulate what. However, road traffic law is also enforced by the federal states, i.e. by Bremen.
The following blog post (Part B: Enforcement of the Accessibility Requirement in Road Traffic Law), on the other hand, examines the enforcement of road traffic law in Bremen. In other words: How is the parking of motor vehicles on pavements regulated under the Road Traffic Act (StVO)? What can the city order through traffic signs? What are the concrete legal consequences of traffic violations?
I. The current conflict over pavement parking
For years, environmental associations, citizens’ and neighbourhood initiatives in Bremen have been pointing out the unfair and inefficient distribution of public space. This is because almost everywhere in the city, but especially in the residential districts close to the city centre with their already narrow terraced housing estates, more and more and ever larger motor vehicles are blocking pavements and roadways. Because there is no more space at the edge of the road, motorcycles and bicycles as well as rubbish bins are often parked on the pavements. Recently, e-scooters have been added to the mix. As a result, there is less and less space for pedestrians and cyclists. This is a serious problem, especially for people using wheelchairs or walkers, for the blind and visually impaired, for people with prams or for children on bicycles. As a result, traffic in Bremen is by no means barrier-free, despite the adapted regulations for planning.
For a long time, the city did next to nothing about parked-up pavements. Currently, however, the city is beginning to establish rules for parking, initially in a few neighbourhoods, and to enforce them. The administration is linking this to the introduction of residents’ parking. This is now sparking a conflict. According to popular opinion, many “car parking spaces” would be eliminated. Some residents do not understand this. They believe that they would be deprived of something to which they are legally or at least “morally” entitled. Moreover, the instrument of residents’ parking is in itself intended to relieve parking pressure. But in connection with the new parking regulations, the opposite would be the case. Finally, the advocates of car parking are of the opinion that the availability of parking spaces is a matter for public negotiation. However, there is room for citizen participation mainly where there is actual policy space, because there are at least two legally permissible alternatives.
In reality, however, it is the case that probably just under half of the parking spaces used in residential areas close to Bremen’s inner city are quite obviously illegal. Therefore, no one is entitled to use these parking spaces. They are thus also not available as an option for direct citizen participation. This applies in particular to parking on pavements where this is not explicitly designated by traffic signs or – if only a few parking spaces are involved – by marking on the pavement. However, in many cases, pavement parking orders are also not legal.
In the following it will be shown that parking on Bremen’s pavements, which are narrow anyway for urban planning reasons, not only violates applicable road traffic law. Rather, it also disregards the requirement of accessibility and participation in mobility of the UN Convention on the Rights of Persons with Disabilities. Therefore, in order to effectively enforce the rights of persons with reduced mobility, Bremen is also obliged to effectively enforce the rules of stopping and parking of the Road Traffic Act.
II. What does road traffic law say?
Pavement parking is generally prohibited
First, let’s return to the question of whether and on what legal basis pavement parking is prohibited. Basically, this is governed by federal law, namely road traffic law. According to the Road Traffic Regulations (StVO), parking and stopping on pavements is not expressly prohibited. However, it is clear from § 12 paragraph 4 of the StVO that stopping and parking must take place at the edge of the carriageway (i.e. “inside” the kerbs). And paragraph 4a states: “If parking on the pavement is permitted, only the right-hand pavement, in one-way streets the right-hand or left-hand pavement, is to be used for this purpose.” This wording states that the prohibition of pavement parking is the rule and that otherwise there must be express permission.
Permitted only if there is sufficient pavement width
Permission to park on the pavement requires an order, which is only permissible where the legal requirements for it are met. This order must be made by traffic sign 315 (“Parking on pavements”) or by marking parking spaces. The marking of parking areas without a corresponding sign is only permissible according to the administrative regulation if there are only a few parking spaces within a street. A “marking” must be sufficiently defined. Paving with slabs of different sizes, which is done when there are utility lines on one side of the pavement, is not such a marking.
Even where parking is permitted on pavements, pedestrian traffic must not be obstructed, nor must sight lines be blocked in such a way that the safety of crossing pedestrians and cyclists suffers, for example at intersections. According to § 45 para. 1 sentence 1 of the German Road Traffic Regulations (StVO), the aim of any traffic regulation is always to avert dangers to safety and order. In this context, the safety and order of pedestrian traffic and the progress of mobility-impaired people with walkers and wheelchairs must be taken into account just as much as the interests of motor vehicle traffic. Therefore, when designating parking spaces according to the StVO, the ease of pedestrian traffic must also be taken into account.
This should actually be a matter of course. However, it is also found in the specifications for the interpretation and implementation of the StVO by the administration. This can be seen in the administrative regulations to the StVO, which restrict the conditions for parking on pavements: Pavement parking may only be ordered if sufficient space remains for the unimpeded movement of pedestrians, if necessary with prams or wheelchair users, even in meeting traffic (VwV to StVO on sign 315).
This requirement serves to implement the UN Convention on the Rights of Persons with Disabilities. It was only taken into account in the version of the administrative regulation of 17 July 2009 after it came into force. Thus, disregarding this administrative regulation does not only violate any internal administrative regulation, but also the obligations of the Federal Republic of Germany under international law and interferes with the rights of pedestrians and people with disabilities. In retrospect, many previously designated parking areas no longer correspond to the current legal situation.
The guidelines are binding for Bremen
The width of the remaining pavement area is ultimately determined by the width of walking aids such as walking frames, wheelchairs and standard prams. For example, the width of a street wheelchair is 77 cm. A commercially available twin pram is about the same width. Additional safety distances are required for unimpeded passage when encountering pedestrians walking in the opposite direction.
According to the technical regulations for road planning and construction (Recommendations for Pedestrian Traffic Facilities – (EFA) and in particular the Hinweisen für barrierefreie Verkehrsanlagen (H BVA) of the Forschungsgesellschaft für Straßen- und Verkehrswesen (FGSV)), at least 1.80 m or 2.00 m are required for footpaths without safety strips. Depending on the design of the edge areas of the road, a further 20 – 50 cm must be planned on both sides as a safety distance. These technical regulations are usually taken into account by courts as expert knowledge in their decisions. The Federal Ministry of Transport, i.e. the responsible legislator of the StVO, has also committed itself to a corresponding mandatory pavement width in an answer to a question in the Bundestag. At the request of the Green Party, an explicit regulation of the barrier-free pavement width of 2.50 m had been proposed. In response, the Ministry referred to the regulations already in force, stating that this was already essentially equivalent to the Greens’ demand (see answer to question no. 33, Bundestag Drucksache 19/2322319, vo 08.10.2020, http://dipbt.bundestag.de/dip21/btd/19/232/1923223.pdf).
In Bremen, however, the matter is somewhat clearer than in other federal states. This is because here there is the guideline for barrier-free design of structural facilities, which was already discussed in my previous article (Part A: Road Law). This actually applies to road law, so that the rules for barrier-free footpaths should initially only apply to the construction and redesign of footpaths. However, the state of Bremen is contradicting its own legislation if the same rights to mobility and participation are promised in road law, but would then be taken back in road law. If roads are first built barrier-free according to road law regulations and then road traffic law regulations are made again that thwart accessibility, then this is not only a disregard for the rights of people with walking disabilities, parents with prams and pedestrians in general. It also amounts to a massive waste of taxpayers’ money when, with the use of considerable financial resources, barrier-free pavements are misappropriated for parking spaces.
As a result, it can be stated that pavement parking may generally only be made available where pavements that are at least 2.5 metres wide are available and, in addition, a carriageway width of more than 3.05 m is available. Only then is there sufficient space to comply with the regulations for barrier-free pedestrian traffic, including the safety distances.
III Why has Bremen done nothing for so long?
These regulations are disregarded in Bremen in almost all cases where pavement parking is practised in typical streets with Bremen houses. But if the case is so clear from a legal point of view, the question arises as to why nothing was done about parking for so long. This can only be justified by political opportunism, because there is no legally tenable justification.
1. there is no customary right to park on pavements
It is often claimed in discussions that parking on pavements is now something like a customary right in Bremen. Indeed, sometimes there are rights based on customary law. However, the prerequisite is not only that something has been practised for a while. It must also be supported by the general opinion that it is legal. What is not possible in a state based on the rule of law, however, are customary rights that violate expressly legally regulated, especially statutory regulations. If the StVO regulates that parking on pavements is prohibited, then this cannot be changed by customary law, even in the unlikely case that all citizens would regard the practice as lawful and “tolerate” it. Therefore, there is no customary right to park on pavements (cf. answer of the Federal Ministry of Transport and Infrastructure to question no. 34, Bundestag Drucksache 19/2322319, vo 08.10.2020, http://dipbt.bundestag.de/dip21/btd/19/232/1923223.pdf).
2. the authorities must not systematically tolerate illegal parking.
Another question is whether the police and regulatory authorities must always take action against violations of the law. In fact, there is some leeway here. After all, illegal parking is not a criminal offence that must be prosecuted ex officio in every case, but an administrative offence. According to Section 47 (1) of the Administrative Offences Act, the so-called opportunity principle therefore prevails: according to this, the prosecution of administrative offences is at the discretion of the prosecuting authority. The authorities can essentially decide for themselves how to use their (mostly) scarce resources to enforce law and order as effectively as possible. However, this is a matter of dutiful discretion.
Sometimes law enforcement authorities understand the opportunity principle very broadly. Citizens who are upset about violations of the law and report them to the public order authorities are fobbed off with the remark that the authorities have more important things to do at the moment. That may be acceptable in individual cases. But if certain administrative offences are not prosecuted at all over a long period of time, such as illegal parking on pavements in Bremen, then this cannot be justified by the principle of opportunity. Then the margin of discretion is clearly exceeded.
For the opportunity principle is not a carte blanche for arbitrary action by the authorities. It is inadmissible, for example, if the police only ever call up certain people or groups of road users for administrative offences and not others. Or when the rules passed by the legislature threaten to become irrelevant because certain administrative offences are not prosecuted for years. Or when rules are set by circular decree of the minister or senator that run counter to current law. This must not be allowed, because, as is clear from the aforementioned § 47 OWiG, it is a matter of dutiful, not free, discretion.
This also results from case law on discretionary power. According to this, “especially in the prosecution of administrative offences committed en masse in road traffic, the existing statutory preliminary assessments are rather to be observed” (BayObLG Munich, decision of 06.05.2019 – 201 ObOWi 276/19). In other words, the administration of the Länder cannot overrule the stipulations of the federal legislature simply by not applying them. Similarly, in traffic offence law, there can be no equality in injustice and a claim to non-prosecution derived from this (BayObLG Munich, decision of 06.05.2019 – 201 ObOWi 276/19).
3. Intervention is mandatory in the case of obstruction
In addition to prosecution as an administrative offence, however, there is another possibility to take action against illegally parked vehicles. The prerequisite is that there is an obstruction or endangerment. If a vehicle is parked in contravention of the regulations in such a way that other road users are obstructed, the competent authorities can also have it towed away. According to case law, moving a vehicle parked on a footpath or cycle path is always proportionate if the illegal parking leads to obstructions for other road users (cf. BVerwG, judgement of 14 May 1992, BVerwGE Vol. 90, p. 189, 193). According to case law, this even applies if the road is only partially parked on (VG Berlin, DAR 2000, 182). Road users obstructed by illegal parking do not have to put themselves in danger or endanger third parties by swerving. Rather, the vehicle parked in violation of the rules must give way, if no one is available to take responsibility, by towing away the vehicle.
IV. What has resident parking got to do with it?
Basically, it is a political decision to link the introduction of resident parking with – finally – consistent parking space monitoring with enforcement of the rules of the road for stopping and parking.
The linkage has given many residents the impression that resident parking does not serve to relieve parking pressure. However, this impression is wrong. This is because parking pressure would be even greater without resident parking regulations. In view of the hardships faced by individual motorists who are actually dependent on their cars, the link between consistent law enforcement and relief through parking management is understandable. However, if the relief function is no longer perceived by those affected, this can lead to the acceptance of resident parking suffering.
However, this link between resident parking and parking management is by no means mandatory. Even if resident parking is not introduced, for example because political resistance to it is too strong, this will not change anything. Even without the introduction of relieving resident parking, the rules on stopping and parking would have to be consistently enforced in the future in order to do justice to the rights of non-mobile road users and accessibility.