E-Scooter als Sondernutzung

Better options for action for municipalities 

A recent ruling by the Cologne Administrative Court gives reason to take another look at the classification of e-scooters and rental bicycles as special use and the resulting regulatory options by means of municipal statutes.

Since the first appearance of "e-scooters", rental scooters (e-scooters) and bicycles, which are mostly distributed by commercial providers without stations on the streets, the cities concerned have been trying to counter the problems associated with them. Large numbers of rental vehicles parked randomly in public spaces and on footpaths and cycle paths lead to traffic obstructions and complaints. In this respect, there is great interest in ensuring order. This can basically be done by limiting the number of rental vehicles, creating parking or no-parking zones or setting up parking areas. The municipal tool for this is the issuing of special use statutes. If these are legal, quotas can be allocated and fees set when issuing a special use permit.

Whether this is possible, however, depends on whether the parking of such rental vehicles is legally a special use in the sense of the road laws or a public use, i.e. use for the purpose of traffic, which includes not only locomotion but also "stationary traffic", i.e. the parking of vehicles. As early as 1982, the Federal Administrative Court classified the parking of rental cars by car rental companies in public parking lots as public use, since they are parked to be put back into operation by customers (BVerwG, judgment of 03.06.1982 - 7 C 73/79).

Following this assessment, it was argued that rental vehicles such as e-scooters etc. should also be classified as public use - with the consequence that the providers would be allowed to distribute their scooters in the city area without permission. The most that would be possible would be to conclude agreements with the providers in the form of voluntary commitments.

In this sense, car sharing was recently classified as a public use. The fact that customers must first conclude rental agreements - even if the necessary entries on the cell phone are only made near the vehicle - does not mean that the vehicle is used for purposes other than traffic (OVG Berlin-Bbg, B. v. 26.10.2022 - OVG 1 S 56/22).

After the Higher Administrative Court of Münster had already assumed a special use with regard to rental bicycles (judgment of November 20, 2020 - 11 B 1459/20), the Administrative Court of Cologne has now confirmed this assessment for e-scooters as well. A provider of "e-scooters" had objected to the collection of special use fees for "the use of public road land by operating a commercial rental system for a total of 3,300 e-scooters". The Administrative Court of Cologne (judgment of January 11, 2023 - 21 K 4871/22) dismissed the lawsuit as unfounded. There was a special use because the scooters "are primarily set up on public road land for the purpose of concluding a rental agreement". In addition, the scooters are not ready to move at any time, but must first be rented and unlocked. The monthly fee of around EUR 10.00 per vehicle is also not objectionable. The fee can be earned on 2 to 3 days based on the usage fees and assuming 2 to 3 trips per day.

As far as can be seen, the ruling is not yet legally binding and is somewhat at odds with the car sharing decisions from Berlin. It is therefore not possible to predict with any certainty whether the assessment will stand. Nevertheless, the cities affected now have good arguments for assuming special use and creating a binding regulatory instrument by issuing statutes. Fees charged can be used to counteract the remaining negative side effects. There is therefore hope that the chaos on footpaths will soon be a thing of the past and that rental vehicles can make their contribution to the transport transition with greater acceptance.

Conclusion

It remains to be seen whether the decision of the Cologne Administrative Court will stand. However, for cities and municipalities, recent case law shows a tendency to view rental systems for e-scooters etc. as special use and to counteract abuses with statutes.

Authors: Attorney Dr. Oliver Wittig, Attorney Fabian Dietl, Attorney André Koch