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Forming a rescue alley (in June 2019 near Munich): the tightening of the law in recent years invalid?
Photo: Sina Schuldt / DPA
The transport ministers of the federal states are looking for a way out together with the federal transport ministry in the drama about the unsuccessful revision of the road traffic regulations (StVO).
For this purpose, an extraordinary meeting of the transport committee was called for Wednesday.
As SPIEGEL reported, it is not only possible that the most recent amendment to the StVO has an error, older versions are also likely to be void due to a formal error.
At least that is the view of the Ministry of Justice in Baden-Württemberg, which in a circular to the transport ministers of the federal states and the federal government fears that all new versions of the regulation since 2009 are "ineffective".
This is a so-called citation error because the legal basis of the regulations, according to the lawyers from Stuttgart, has not been fully reproduced.
As a result, only the StVO in the version from November 2007 would be valid until today.
However, it does not include many of today's regulations - for example, the general ban on mobile devices, the blocking of an emergency lane on the motorway or the approval of e-scooters in road traffic.
So there is a significant loophole
.
Higher Regional Court Stuttgart: concerns from judicial practice (NOTE: The picture shows the entrance to the OLG, see also its homepage, contrary to the caption.)
Photo: Lino Mirgeler / dpa
According to information from SPIEGEL, the 16 heads of authorities will therefore join a video conference on Wednesday under the direction of Saarland Transport Minister Anke Rehling (SPD) to discuss the new situation.
The Federal Ministry of Transport is meanwhile annoyed by the recent intervention from the southwest.
The lawyers from Andreas Scheuer's house (CSU) do not consider the arguments presented in the letter to be convincing.
A spokeswoman for the Federal Ministry of Transport said on request that the legal bases to which the StVO relates were quoted correctly.
The legal issue is currently also being examined by the Federal Ministry of Justice and the Federal Ministry of the Interior.
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Most of the provisions of the StVO, such as right of way, general speed limits and the regulations on traffic signs, are based on the missing general clause.
Photo: Florian Gaertner / photothek / imago images
A phrase is missing - what does that mean legally?
But even if the federal and state governments should wipe away the legal concerns at the meeting on Wednesday, the assessment from Stuttgart could have serious consequences: Motorists could invoke it and sue in court against current and future fines.
Judgments might take years to come, depending on how many instances are taken.
During this time there would be great legal uncertainty for road traffic.
As with the most recent amendment, the legal background to the new debate is a possible violation of the so-called quotation requirement under Article 80 paragraph 1 sentence 3 of the Basic Law.
This means that a regulation must specify the legal basis, i.e. the legal provisions on the basis of which it is issued.
The core of the concerns expressed from Baden-Württemberg is that
-
like the change in April of this year - an amendment to the StVO from 2013 could contain a citation error and thus be void.
This would mean that all subsequent changes would also be invalid, as they all relate to the 2013 amendment.
The 2013 amendment was supposed to replace one from 2009, which was also held to be null and void due to a citation error
.
So the possible chain of errors - if you follow the lawyers from Baden-Württemberg - goes back deep into the past.
Law that had been superseded for years would suddenly come back into force
The letter from the Ministry in Stuttgart therefore states that the legal situation from August 2009 would "continue" to apply.
The mistakes that are currently shaking the entire set of rules are comparatively banal.
In the most recent amendment, when listing the legal bases for the catalog of fines, one number was simply forgotten.
Goodbye winter tires: Even summer tires on snow would not result in a fine - as long as they have enough profile and nothing happens.
Photo: Oliver Berg / dpa
As the Stuttgart lawyers have now found out, the 2013 amendment was also not properly quoted and a general clause was not mentioned.
On this general authorization, however, notes the letter from the Baden-Württemberg Ministry of Justice, "most of the regulations" of the StVO, such as right of way, general speed limits and the regulations on traffic signs are based.
And because the authorization bases were not quoted in full, this would lead to "the invalidity of the regulation" as a whole, says the Federal Constitutional Court.
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E-scooter (in Berlin, June 2019): Suddenly no longer allowed on the road
Photo: FABRIZIO BENSCH / REUTERS
The conclusion of the Stuttgart ministerial that there is a relevant error is disputed among experts.
From the point of view of the ADAC, there is "no citation error" in the 2013 StVO, as Gerhard Hillebrand, director of traffic law at ADAC and chairman of the traffic law working group of the German Lawyers' Association, says.
The regulation is "quoted in full".
Other traffic lawyers disagree.
"The general clause is simply missing," says the Heilbronn fines expert Stefan Lay.
"Whether this would be legally necessary is a matter of debate."
The lawyer says that the "serious concerns" expressed by the Baden-Württemberg Ministry of Justice were "convincing".
His Saarland colleague Alexander Gratz is also of the opinion that the quotation was "imprecisely".
"Of course, as a victim, you should try to refer to it," advises Gratz.
"Just so that the question is then decided by a court."
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At the wheel with the mobile phone in hand: Although still prohibited, there is a good chance of avoiding a fine.
Photo: Arno Burgi / dpa
If you follow the critics, this would have a significant impact on the legal regulations in road traffic.
The current regulations would be invalid, suddenly the old rules would come into effect again.
Example of mandatory winter tires: According to current law, winter tires must be fitted in the event of snow or ice.
If the old law now applies, then summer tires are also sufficient, "as long as they have enough profile and nothing happens," as Stefan Lay, the fine expert, says.
Example of emergency lanes: The stricter regulations from 2013 and 2016 oblige motorists to create an alley for emergency vehicles on the motorway.
You would now be obsolete.
If you don't build an alley, you would only have to pay a fine of 20 euros and would not get a point in Flensburg.
Take e-bikes, for example: If the new rules from November 2016 do not apply, unlike moped riders, for example, cyclists with e-bikes would have to stay on the road outside of built-up areas and not be allowed to use the cycle path, says traffic law expert Alexander Gratz.
Example e-scooter: The rules of 2019 would be null and void.
Electric scooters and similar small electric vehicles would no longer be allowed on German roads.
For example, seat belts must be worn while driving: Taxi drivers would be exempt from this, according to Gratz.
Take a phone call at the wheel, for example: picking up or holding a mobile phone while driving has been forbidden since 2001.
"In practice, however, you got most of the fines under the old law," says lawyer Lay.
On the one hand, because the police were often unable to prove that a cell phone was being used, on the other hand, because there were loopholes in the legislation.
In 2017, the ban was extended to other devices, such as MP3 players, tablets and iPod touches.
If the concerns from Stuttgart are followed
,
this regulation would also be
invalid.
And even the changes from April of this year, which at least in part could still have applied despite the error contained therein, would now be completely ineffective, say the experts.
This would mean that the requirement that a distance of at least 1.5 meters must be observed when overtaking bicycles would also fall victim to this newly discovered citation error.
The pressure to reform is increasing again
Even if one assumes that there is still a judicial clarification as to whether all the rules that have been renewed in recent years are actually invalid, the pressure on the transport ministers is great.
After all, the objection by the Stuttgart lawyers created legal uncertainty.
It is doubtful, however, that the states and the federal government will quickly agree on a way out of the dilemma.
Already for the screwed up StVO amendment from April of this year it is hardly possible to find a solution that everyone agrees with.
The Greens, above all the Baden-Württemberg Transport Minister Winfried Hermann, have decided on a tough line: In the amendment, only the formal error is to be corrected, and further changes are ruled out.
For example, the immediate withdrawal of a driver's license should continue to apply if the speed limit is exceeded.
Hermann, who largely negotiated the cause for the Greens, recalls that the probability of being killed by a car as a pedestrian is considerably greater if the car drives at 50 instead of 30 kilometers an hour: at a speed of 50, seven die out of ten pedestrians, at 30 km / h only one out of ten.
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A3 motorway near Würzburg (2011): Immediate driving license withdrawal from 26 km / h too much only if it is violated at a motorway construction site?
Photo: Karl-Josef Hildenbrand / picture alliance / dpa
"We won't give in a bit," said Hermann last Thursday.
He had just suffered a defeat at the regular meeting of the transport committee.
Because in this ten of 16 state transport ministers had spoken out in favor of a compromise proposal by Scheuer.
This provides for a relaxation of the strict rules.
For example, drivers who drive at least 21 kilometers per hour too fast in urban areas should only lose their driver's license immediately if the speed limit is detected in front of schools or kindergartens.
This restriction was not originally intended.
The fight could drag on for months
A similar compromise should also apply outside of town.
The withdrawal of a driver's license does not apply in principle if a driver drives too fast here at at least 26 kilometers per hour, but only if he is driving too fast in a motorway construction site.
The officials of the Federal Minister of Transport had been able to win the SPD-led state ministries on their side and caused the Green Transport Ministers to lose the vote.
He was "surprised and angry," said Green Hermann on Thursday.
But in the vote on Thursday, the compromise is not yet valid.
The decisive factor is the vote on this on September 18 in the Federal Council.
There, Hermann hopes, the states that are co-governed by the Green Party will abstain, which would mean that the necessary majority for the compromise proposal would be missing.
So it remains a struggle that can drag on for months.
For the Greens, the commitment to the traffic turnaround and the protection of cyclists is an important election issue.
The fact that earlier reforms might at least have to be repeated again is now an aggravating factor.
The fight for tougher penalties in road traffic goes into the next round.
Icon: The mirror
