An end to sidewalk parking!

The reason for this decision is the practice of "sidewalk parking", which is widespread in many cities and has rarely been questioned to date - the "superimposed" parking with two wheels on the sidewalk. Often not known: Without an explicit order, or permission from a traffic sign, this type of parking is prohibited under Section 12 (4) and (4a) of the German Road Traffic Regulations (StVO). According to this, the "right-hand hard shoulder", but not the sidewalk, is to be used for parking. Residents of a Bremen (one-way) street took this as an opportunity and demanded that the city take measures against the "sidewalk parkers" regularly standing in front of their house and put up appropriate prohibition signs. The city refused, citing the lack of need for such signs due to the prohibition already ensuing from the law.

The residents' lawsuit against this refusal was successful in key respects:
The administrative court responsible at first instance (VG Bremen, judgment of 11.11.2021, ref. 5 K 1968/19) already granted the plaintiffs a subjective legal claim to intervention by the competent authority against illegal sidewalk parking under Section 12 (4) and (4a) StVO. § Section 12 (4) and (4a) StVO had a third-party protective effect in this respect. The Administrative Court even assumed a reduction of discretion to zero in favor of the plaintiffs to the effect that the authority - without any discretion of its own - was obliged to take action against the parkers.

The Bremen Higher Administrative Court (OVG Bremen, judgment of 13.12.2022, ref. 1 LC 64/22 ), which heard the appeal, confirmed the third-party protective effect of Section 12 (4) and (4a) StVO, but limited the plaintiffs' claim to the extent that the city's discretionary power was not reduced to zero. The city (currently) had no obligation to intervene directly in response to the plaintiffs' applications. Rather, it is not objectionable if the city first determines the problem pressure in the most heavily burdened neighborhoods and develops a concept for a city-wide approach.

The Federal Administrative Court (BVerwG) has now endorsed this view of the OVG in the last instance on key points (BVerwG, judgment of 06.06.2024, ref. 3 C 5.23). The Federal Administrative Court confirms that the "sidewalk parking ban" contained in Section 12 (4) and (4a) of the German Road Traffic Regulations (StVO) has a third-party protective effect - those affected would have a direct claim against the respective competent authority to intervene against this parking practice. The ban on sidewalk parking not only protects the general public, but also residents - but only if they are "significantly impaired" in the use of the sidewalk adjacent to their property. This requirement must be asserted by the respective affected party and results in a spatial limitation of the claim: the third-party protective effect of the sidewalk parking ban from Section 12 (4) and (4a) StVO is regularly limited to the part of the sidewalk that is located on the affected resident's "own" side of the street. The impairment and thus the claim also regularly ends at the junction of the next (cross) road; from there at the latest, residents are (again) part of the general sidewalk users and are not particularly affected. Moreover, according to the Federal Administrative Court, the city's discretion to intervene in the decision is not reduced to zero. Rather, as part of its discretionary decision, it could first determine the areas of the city most affected by illegal sidewalk parking and develop a concept for city-wide action against this. The authority is therefore permitted to prioritize its approach.

Practical significance and effects of the ruling:

The ruling clarifies that residents have their own direct claim against the respective authority to ensure that it takes action against illegal sidewalk parking. This - according to the conditions outlined above - at least with regard to the sidewalks in front of their homes.

Cities and municipalities should therefore not tolerate unauthorized sidewalk parking on a permanent basis or accept it without taking action in order to avoid making themselves vulnerable.

Nevertheless, there is no reason for too much excitement or even the unconventional erection of prohibition signs. The cities and municipalities are granted the discretion to prioritize measures against sidewalk parking and to develop an area- or city-specific concept.

Status: 12.07.2024