The Struggle for the Right to Mobility

by | Mar 26 2024

Graphic : Ellin Grassick

Local self-government, Vision Zero and accessibility

What happens when the Highway Code clashes with fundamental individual rights as formulated by the UN or national constitutions? In Germany, federal legislators’ proposals to resolve the issue failed to get approval at the Federal Council on November 24th 2023. Here we explain some of the contradictions, and what should and could be done.

Following the failure to reform both the German Road Traffic Act and Regulations (StVG and StVO), traffic law has reached a dead end. Detailed analyses have long shown what is currently missing at the level of statute, regulation and administrative guidelines. 

However, one aspect is being neglected: while the draft reforms are being held up in the Federal Ministry and Federal Council, amazing things are happening on the streets. This daily struggle for the right to mobility is also changing traffic law.

It isn’t legislation that is taking the lead, but grassroots initiatives by citizens, local volunteer politicians or municipalities. Inspiration often comes from abroad, be it Barcelona, Bogotá, Copenhagen, Paris or Vienna. They show that other forms of mobility are possible and lead to more healthy cities and a higher quality of life:

  • Pop-up cycle paths were created and many of them have remained
  • in Berlin, so-called Kiezblocks are being set up
  • school streets” are being opened up for school children in many German cities, while “parent cabs” and through traffic must remain outside
  • accessibility is being claimed more offensively, e.g. on pavements in Bremen.
  • in many places, citizens are calling for parking privileges for cars to be restricted, parking space management to be introduced and pavement parking to be stopped.

The role of law here is at best ambivalent. At worst, it is seen as an obstacle to a transition to sustainable mobility. However, the legal rights of the individual could also act as a driver of such a transition. What is needed is a change in awareness.

For too long, traffic law was seen as a technical legal matter. Its purposes were limited to the functioning of motorised traffic. The current battle for traffic law is now about taking into account the subjective mobility rights of individuals and allowing scope for local political organisation.

After such a change of perspective, law also provides for starting points to ensure more equality and more comprehensive participation. Such points of departure can be identified at all levels of transport law: in international and constitutional law, in planning law, in road law and in traffic law.

International and constitutional law: Fundamental rights to Mobility

Not long ago, the search for a fundamental right to mobility was limited to motor vehicle traffic, for example in an essay by Michael Ronellenfitsch. The fact that non-motorised traffic was deemed non-existent may have been due to the mobility habits of the typical authors and readers of traffic law treatises. Even back then, the narrowing and its methodologically questionable constitutional apotheosis were criticised, for example by Uwe Wesel and Horst Sendler. 

Children… have a right to recreation and leisure… Especially in an urban environment, the design of public streets and squares plays a major role in whether children have sufficient opportunities to develop.

And indeed, according to German constitutional understanding, fundamental rights should not only benefit those sections of the population that are already well represented. They should also benefit marginalised groups. In road traffic, these are primarily children, the elderly and people with disabilities.

Starting points for their equal rights and participation can be found in both international and constitutional law. In international law, the UN Convention on the Rights of the Child (UNCRC) and the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

The UN Convention on the Rights of the Child protects the best interests of the child in Art. 3(1) UN CRC. The state must keep this in mind, not only in the family environment, but also in traffic accidents. There are massive deficits in Germany when it comes to implementing the state’s duty to protect the best interests of the child in traffic law, as shown in a legal opinion.

However, it is not just about protection from danger; children also have a right to recreation and leisure, which follows from Art. 31(1) UN CRC. Especially in an urban environment, the design of public streets and squares plays a major role in whether children have sufficient opportunities to develop. 

These principles of international law are vague and yet they contain a mandate for legislators. The provision on the best interests of the child also has the potential to bind the executive and the judiciary.

Article 9(1) of the UN CRPD includes a right to accessibility. According to sentence 2 no. 1, this obligation also expressly applies to roads. However, this has not been fully implemented in German traffic law. While accessibility is referred to in many road laws of the federal states and in the Passenger Transportation Act, there is a lack of implementation and no corresponding reference has yet been made in the Road Traffic Act. As a result, barrier-free planning is often thwarted by road traffic legislation, which is particularly evident in the example of illegal pavement parking.

Even if child welfare and accessibility do not yet appear in the StVG or StVO, they must be taken into account when applying road traffic law. Administrations and courts should also keep the UN CRPD in mind when applying road traffic law and ensure that they are interpreted in a manner that is friendly to international law.

German constitutional law also requires courts and authorities to protect life and health as well as the development of personality in accordance with Art. 2 (1) of the Basic Law or Grundgesetz (GG). In connection with Art. 3 (1) GG, there is an explicit right to equal participation in the use of public space and public transport infrastructure. In terms of a necessary minimum of public transport, enforceable subjective rights – what we perceive as a necessary minimum in our locality – are even being discussed. This issue becomes concrete when it comes to the lack of accessibility of public transport for wheelchair users. Since the beginning of 2022, public transport should be accessible to all people without hindrance in accordance with § 8 (3) of the Passenger Transport Act (PBefG).

Municipalities, which play an important role in transport planning and regulation, have a dual function with regard to fundamental rights. As public authorities, they are addressees of fundamental rights, against which the individual’s duty to protect can be directed. Art. 28 (2) GG establishes also rights with constitutional status, which gives them local planning sovereignty.

Urban Planning Law

For too long, transport planning has been seen as a federal or regional state task. Yet the local commune or municipality offers good opportunities for enforcing the mobility rights of all local community members.

One reason why this does not occur is that, as Hubertus Baumeister rightly pointed out in a legal opinion – the local self-administration of the municipalities is inadmissibly curtailed by the StVO. Up to now, municipalities have been able to plan their traffic comprehensively in accordance with § 45 (1b) sentence 1 no. 5 StVO within the framework of urban mobility concepts. However, they are then constrained by bureaucratic justification requirements when implementing measures under road traffic law. According to current case law pursuant to Section 45 (1) and (9) sentence 3 StVO, these require specific and even qualified hazardous situations based on local conditions and traffic volumes. This often makes overarching planning with comprehensive consideration of urban planning aspects impossible. It would therefore be necessary to interpret the relevant provisions in accordance with the constitution in the light of Article 28 (2) GG.

The municipal planning competences nevertheless allow for numerous alternatives to strengthen the mobility rights of disadvantaged groups. They can be taken into account in the context of urban land-use planning, for example through stipulations in construction development plans and in a traffic development plan. In addition, school route planning can help to make it easier for children and young people to get to school. Local transport planning must also include barrier-free routes and guidance systems for people with walking disabilities or blind people.

Road law: traffic purposes and overriding reasons in the public interest

Road law, in combination with the general rules of the German Highway Code (StVO), imposes considerable restrictions on mobility for pedestrians and children on bicycles. As soon as part of the public space is designated as a “road” and thereby dedicated to general traffic, pedestrians are only allowed to use the pavements in accordance with Section 25 (1) sentence 1 of the German Road Traffic Act (StVO). It is a myth that traffic, often referred to as “road traffic”, only includes motorised traffic. Instead, traffic conceptually refers to any specific change of location regardless of the mode of transport, including cycling and walking.

However, road law also has a great, and often neglected, potential to compensate for the disadvantages of non-motorised road users. This is because the instruments of road law make it possible to designate public spaces exclusively for the use of pedestrians or cyclists with less ambitious legal justifications. The central legal institution of road law as the law of public property is designation (Widmung). It defines the public space for a specific purpose. Restriction to certain types of traffic is possible by means of a partial restriction (Teileinziehung), which can be used, for example, to set up a pedestrian zone or a cycle lane.

According to the road laws of the federal states, this requires a public designation procedure and a justification based on the public good. Although, unlike in Austria, the German StVO does not yet contain any regulations on school roads, lanes can be opened to schoolchildren using the instruments of road law. 

The interests of people with disabilities are taken into account more when roads are built than when they are actually used, regulated and enforced.

Road law also regulates the detailed planning and construction of roads. Many of the foundations for barrier-free and inclusive infrastructure are already laid here. Compared to the German Highway Code, accessibility issues are generally already better integrated into the road law of the federal states. The interests of people with disabilities are taken into account more when roads are built than when they are actually used, regulated and enforced.

The German Highway Code

While Road Law dedicates defined public spaces to traffic use, Germany’s Highway Code, or road traffic law, defines the modalities of use. § 8 of the German Road Traffic Regulations (StVO), for example, contains right-of-way rules. In German these rules are called “Vorfahrtsregeln” (i.e. priority driving rules) for a reason. They privilege driving traffic and discriminate against pedestrian traffic. This is not explicitly stated in the road traffic regulations, but can be derived systematically. Apart from the linguistic reference in the words “right of way”, vehicles are mentioned in various places in the paragraph.

The prohibition on the use of driving lanes in § 25 (1) sentence 1 of the StVO and the right of way rules in § 8 of the StVO result in a fundamental legal discrimination against pedestrians compared to other types of traffic. In fact, the legal disadvantages are also extended to bicycle traffic wherever cycleways are provided and this results in an obligation to use them. Nevertheless, the right-of-way rules in favour of cycling continue to apply here as well. At least the right-of-way rules continue to apply in favour of cyclists, except for children up to the age of eight, who must dismount before crossing the road in accordance with Section 2 Paragraph 5 Sentence 7 StVO.

Against this background, the alleged overall orientation of road traffic law as “free of preferences and privileges”, as claimed by case law, is surprising. This can only be explained by the fact that for a long time there was no alternative to prioritizing motor vehicle traffic. This is practiced as “normality” in traffic education from early childhood.

Vision Zero

Coming from Sweden, the so-called “Vision Zero” is now often used as a goal for transport policy in Germany too. According to this vision, preventative measures, adjustments to traffic regulations and improvements to infrastructure should ensure that there are no more serious accidents involving fatalities or serious injuries. 

In order to move towards Vision Zero, the disadvantages of other types of traffic and the threat to the safety of pedestrians and cyclists would need to be compensated for by restricting motor vehicle traffic.

However, according to the logic of § 45 of the StVO, this is only possible under strict conditions. What is required is a concrete danger to the safety or order of traffic. This need for justification was reinforced by the so-called “Schilderwald novellas”. They resulted in a paradox: They were supposed to ensure fewer traffic signs, but the high, specific burden of justification resulted in more selective orders, and therefore more signage. Thus route-related speed restrictions are limited to a few sensitive points such as kindergartens, schools or old people’s and nursing homes. In between there is normal speed again. Despite the initiative of many cities to at least create more leeway, normal speed remains at 50 km/h. This only serves to speed up motorised transport, but does not meet the needs of other types of transport.

Since 1997, restrictions on flowing traffic also require a qualified danger in accordance with § 45 (9) sentence 3 StVO. It must be considerably higher than the average of typical dangers. Typically, this is indicated by accident figures, so that many courts or road traffic authorities “want to see blood first” before they are prepared to regulate traffic. 

This regulation protects the statistically unremarkable “status quo” of the traffic situation with its typical dangers for children and people with disabilities from any change. § 45 StVO has thus become a Teflon paragraph for motor vehicle traffic, which, according to the previous interpretation, allows any rights of other road users to be lost.

At best, corrections are possible in extreme cases. So, for example, it might be possible to sue for bicycle infrastructure on particularly dangerous road sections.

In Germany, the realisation of “Vision Zero”, a multinational road safety project, therefore faces a systematic legal obstacle. Vision Zero refers to the goal of ensuring that there are no more serious accidents involving fatalities or serious injuries on the roads. If the risk of such serious accidents is part of “normal” traffic behaviour, then the road traffic authorities have so far only been able to take action where these serious accidents have already occurred more frequently. The preventive approach of Vision Zero can therefore not yet be pursued with the possibilities offered by the German Highway Code.

Improving Conditions for Active Travel

A danger pursuant to § 45 (1) StVO can also exist for the flow of traffic. Until now this is used to protect the flow of motor vehicle traffic. There is no legal reason why this should not also apply to pedestrian traffic. After all, the easing of pedestrian traffic should also be covered by the right to an orderly flow of traffic. Pedestrians, especially minors, require the least space of all road users and can pass almost anywhere, which is presently being held against them: The Bremen Higher Administrative Court (OVG Bremen) has set the minimum width of a still functional footpath at 1.50 m, even if this means that baby carriages and wheelchairs can no longer pass each other easily.

German traffic law is full of contradictions and one-sided stipulations that make a radical new start essential.

Traffic law has so far largely bypassed a very important issue for the ease of pedestrian traffic: That of crossings. Due to discrimination in the right of way and priority rules, children and people with disabilities have to wait particularly long at road crossings. This could be compensated for by improved pedestrian crossings. However, under German law, these can only be ordered in exceptional cases.

Excessive waiting times at junctions and crossings must also be categorised as a concrete danger to the orderliness of pedestrian traffic. They can then also authorise compensatory measures and – in the case of particularly significant impairments – even oblige them.

Conclusion: The future of traffic law begins on the road

German traffic law is full of contradictions and one-sided stipulations that make a radical new start essential. This lies not only in the responsibility of legislators but also the users of traffic law can contribute, wherever there is a potential that could be activated. 

To ensure that sustainable travel initiatives do not continue to hit a regulatory brick wall, we need to draw on our fundamental rights and to free traffic law from the technocratic specifications on motor vehicle traffic, for example by giving better legal protections to pedestrians, cyclists and those with disabilities. Particularly it should be recognised:

  • Municipal planning competences have constitutional value and regulations have to be applied accordingly
  • Road law offers options to shape public space without the severe restrictions that apply to road traffic regulation
  • Improving accessibility and the conditions of active travel have to be recognised and implemented in traffic law.

In order to recognise and realise these dormant potentials of traffic law, disadvantaged groups must not hope that government will already grant them equal participation in “coexistence in traffic”. Rather, Rudolf von Jhering’s statement that all law in the world has been fought for also. And this – especially – applies to traffic law: ” Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right—the legal rights of a whole nation as well as those of individuals—supposes a continual readiness to assert it and defend it”.



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