Judgment of 06 April 2016 -
BVerwG 3 C 10.15ECLI:DE:BVerwG:2016:060416U3C10.15.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its decisions, is German. This translation is based on an abbreviated version of the original decision. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this decision it is recommended to indicate the court, the date of the decision, the case number and the paragraph: BVerwG, Judgment of 06 April 2016 - BVerwG 3 C 10.15– para. 16.
Legal effect of traffic signs according to the principle of visibility
Traffic signs for stationary traffic have legal effect for every road user affected by the regulation, regardless of whether the road user actually perceives the traffic sign or not, if the signs are placed or mounted in such a manner that an average motorist exercising due care in accordance with section 1 of the Road Traffic Regulations (Straßenverkehrsordnung) and in undisturbed visibility conditions can easily see while driving or by simply looking around upon leaving the vehicle that a requirement or prohibition has been made public by means of traffic signs. The motorist is only obliged to make a closer inspection if there is a specific reason to do so under the particular circumstances of the individual case.
Sources of law
Administrative Procedure Act VwVfG, Verwaltungsverfahrensgesetz section 1 (4), section 41 (1), section 43 (1) first sentence Road Traffic Regulations StVO, Straßenverkehrsordnung section 1, section 39, section 41, section 45 Annex 2 to section 41 (1) StVO Anlage 2 zu § 41 (1) StVO item no. 62 (sign 283)
Summary of the facts
The claimant is challenging the imposition of fees for the towing away of a motor vehicle.
He had parked this vehicle in a road section in which a total stopping ban (sign 283) had been signposted by means of temporary traffic signs due to a street party taking place the next day. The defendant had the vehicle removed by a towing firm and billed the claimant for payment of a fee of EUR 125. In response to this, the claimant argued, among other things, that the traffic signs were not, as required, recognisable at a quick, cursory glance; therefore, he claims, the stopping restriction was not validly made public.
The action was unsuccessful at the lower instances. The Higher Administrative Court (OVG, Oberverwaltungsgericht) takes the view that a duty exists to look carefully at one’s surroundings without any specific reason to do so (anlasslose Nachschaupflicht) when parking a vehicle and found that the stopping restriction would have been apparent to the claimant if he had complied with this duty. It left open the questions at which height the no stopping signs were mounted and how they were aligned.
The Federal Administrative Court has reversed the appeal judgment and referred the matter back to the Higher Administrative Court for further examination of the facts.
9 (…) The facts as hitherto established by the Higher Administrative Court are not suf-ficient for an assessment to be made as to whether the stopping restriction had been validly made public and whether there had been a violation of the road traffic rules by the claimant which justified removing the vehicle and subsequently imposing a fee on the claimant (1.). The court of appeal correctly rejects the objection of the claimant that the stopping restriction was invalid simply for the reason that it had been ordered by a private third party and not by a public authority (2.). However, the appeal judgment places requirements on the visibility of traffic signs in stationary traffic and on the duties of care of the motorist which are not in every respect consistent with federal law (section 137 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The court of appeal incorrectly proceeds from the assumption that the motorist is subject to a duty to inspect the surroundings without any specific reason to do so (anlasslose Nachschaupflicht) (3. and 4.). This means that facts it has established based on this assumption, namely that the stopping restriction would have been, without any doubt, apparent to the claimant prove to be untenable (5.). For this reason, the Senate is prevented from reaching a final judgment; additional facts need to be established by the previous lower instance regarding the visibility of the no stopping signs in question (6.).
10 1. The legal basis for charging the defendant for the removal of the vehicle are, as established by the court of appeal regarding the relevant federal state law, sec-tion 1 (1), section 3 (1) and section 10 (2) letter b of the Law on Fees and Contribu-tions for the Federal State of Berlin (Berliner Gesetz über Gebühren und Beiträge) in conjunction with section 1 and no. 4.1 letter a of the fee table issued as an annex to section 1 of the Ordinance on Fees for the Use of Police Facilities for the Federal State of Berlin (Berliner Gebührenordnung für die Benutzung polizeilicher Einrich-tungen - Polizeibenutzungsgebührenordnung). Accordingly, the fee for the removal of a vehicle with a maximum permissible weight of 3.5 t on a Sunday is EUR 125. As the court of appeal moreover established in application of Berlin state law, the vehicle was removed in immediate implementation (unmittelbare Ausführung) of a measure pursuant to section 15 (1) of the General Law for the Protection of Public Security and Order in Berlin (Allgemeines Gesetz zum Schutz der öffentlichen Sicherheit und Ordnung in Berlin). Accordingly, the prerequisites for the lawfulness of the removal of the vehicle and the subsequent associated imposition of a fee are that the claimant when parking his vehicle was in violation of a stopping restriction ordered by an authority and this stopping restriction was validly made public by means of traffic signs.
11 2. According to the facts as established by the court of appeal, the erection of the no stopping signs (item no. 62 of Annex 2 to section 41 (1) of the Road Traffic Regula-tions (StVO, Straßenverkehrsordnung) was ordered by the defendant as the public authority responsible for road traffic and solely implemented by the private event or-ganiser. Therefore, there was no violation of section 1 (4) and 35 first sentence of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) as argued by the claimant, nor did the stopping restriction lack validity as argued by the claimant on the basis of such violation.
12 The basis for the authorisation to order a stopping restriction is based on sec-tion 45 (1) first sentence StVO. Accordingly the road traffic authorities may restrict or prohibit the use of certain roads or road segments on the grounds of the security or order of traffic. Such a restriction was in the present case issued by the District Office (Bezirksamt) of Steglitz-Zehlendorf by decision of 26 July 2010. This administrative act was addressed to the organiser of the street party and its (main) matter was a permit for excessive road usage under section 29 (2) StVO and section 13 of the Berlin Roads Act (Berliner Straßengesetz). The court of appeal interpreted this administrative act as an order for the stopping restriction by the road traffic authority. According to its findings, the District Office had endorsed the traffic sign plan, which “had (probably) been submitted by private persons”, with the stamp “traffic sign plan by order of the road traffic authority”. From the point of view of an appeal on points of law, there is as little to object to in this interpretation of the decision of 26 July 2010 by the court establishing the facts as there is in the conclusion drawn from it that the private persons who set up the signs had not themselves made any binding road traffic orders and were not exercising any sovereign activity in their own responsibility.
13 The claimant cannot support his objection that the stopping restriction was not valid by citing the judgment of the Federal Administrative Court (BVerwG, Bundesverwal-tungsgericht) of 26 June 1970 - 7 C 10.70 - (Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 35, 334). This judgment states that the binding decision regarding a restriction of traffic or, as in that case, a prohibition of traffic must be made by the competent public authority and may not be left to a private third party, in that case a construction firm. This does not, however, rule out that the third party may make a proposal and accompany it, as in the present case, with a specific plan for traffic signs. Nothing prevents the public authority from then making an order on this basis. Section 45 (6) StVO expressly provides that construction firms must submit a traffic sign plan prior to the com-mencement of work affecting road traffic. The same situation arises with any application for the issue of a building permit when the developer submits its building plans to the approval authority. Nor can any different legal assessment be drawn from the third headnote of the judgment, according to which permission by an authority cannot be reinterpreted as the issue of a traffic ban. The 7th Senate sees the difference between “permission” and the ordering of a traffic ban as being that with “permission” the public authority abstains from making its own decision and simply reviews the decision which has been made elsewhere (BVerwG, judgment of 26 June 1970, see above, p. 342). According to the findings of the court of appeal, it was the District Office itself that decided on the ordering of the stopping restriction in the present case. (…)
15 3. The court of appeal correctly found that lower requirements must be placed on the visibility of traffic signs in stationary traffic than those affecting moving traffic. To the extent that it is moreover of the opinion that a duty also exists for the motorist to look for the presence of no parking signs in stationary traffic without any reason to do so, this is inconsistent with federal law (section 137 (1) VwGO).
16 a) According to the established jurisprudence of the Court, the prohibition of stopping according to sign 283 is, just as other traffic prohibitions and requirements, an administrative act in the form of a general administrative act (Allgemeinverfügung) within the meaning of section 35 second sentence VwVfG (BVerwG, judgments of 9 June 1967 - 7 C 18.66 - BVerwGE 27, 181 <182> and of 13 December 1979 - 7 C 46.78 - BVerwGE 59, 221 <224>). Pursuant to section 43 VwVfG it becomes valid for the party to which it is addressed or which is affected by it in the moment at which such party is notified. Such notification is made according to federal law in the (special) provisions of the Road Traffic Regulations by the erection of the traffic sign (cf. in particular section 39 (1) and section 45 (4) StVO). This is a special form of public promulgation. If traffic signs are placed or mounted in such a way that an average motorist can register them even “with a quick and cursory glance” when complying with the due care required under section 1 StVO (Federal Court of Justice (BGH, Bundesgerichtshof), judgment of 8 April 1970 – III ZR 167/68 (…), they have legal effect according to the so-called ‘principle of visibility’ for every road user affected by the regulation, regardless of whether he actually perceives the traffic sign or not (consistent jurisprudence; BVerwG, judgments of 11 December 1996 - 11 C 15.95 - BVerwGE 102, 316 <318>; of 13 March 2008 - 3 C 18.07 - BVerwGE 130, 383 para. 11 and of 23 September 2010 - 3 C 37.09 - BVerwGE 138, 21 para. 15).
17 b) Lower requirements apply for the visibility of traffic signs in stationary traffic than of those governing moving traffic.
18 This opinion is in line with what is now established jurisprudence of many courts of instance, of both administrative courts (cf. inter alia OVG Hamburg, judgment of 30 June 2009 - 3 Bf 408/08 (…); OVG Münster, decision of 11 June 1997 - 5 A 4278/95 - juris para. 6 et seq.; OVG judgment of 20 January 2010 - 1 S 484/09 (…)) and of ordinary courts (cf. inter alia Higher Regional Court Hamm, decision of 13 November 1978 - 6 Ss OWi 2744/78 (…)). This point of view is also shared in the commentary literature. (…).
19 It has not until now been explicitly stated by the Federal Administrative Court. Such a differentiation is established, however, in the fact that, as has been demonstrated, the Federal Administrative Court, too, in its established jurisprudence has placed the requirement for the visibility of traffic signs “with a quick and cursory glance” in the context of the due care required under section 1 StVO. It is obvious and is generally recognised that the degree and manifestation of the care required of road users de-pend on the specific traffic situation (cf. representing many OVG Hamburg, judgment of 30 June 2009 - 3 Bf 408/08 (…)). Traffic signs regulating moving traffic must be perceived and registered, that is, their regulatory content understood, in the shortest time, especially at high speed, in order to achieve their regulatory aim. It is different for traffic signs governing stationary traffic. In this instance, the road user is able to park and leave the vehicle without endangering other road users and obtain clarity regarding the existence and/or content of a stopping or parking ban. Driving to the parking spot of the vehicle and the subsequent leaving of the vehicle by the driver constitute a single, uniform process. For this reason, simply looking around after parking the vehicle to see whether there are restrictions on stopping or parking is part of the duty of care required under section 1 StVO.
20 Traffic signs which are recognisable and understandable for stationary traffic must not always be recognisable and understandable while the vehicle is moving. This does not, however, mean that the road user is absolved of the duty to look around after parking the vehicle. The judgments of the reviewing Senate regarding the prin-ciple of visibility and the requirements set in these judgments for the understandabil-ity of traffic signs “with a quick and cursory glance” were based on cases involving moving traffic, indeed traffic moving at high speed (cf. BVerwG, judgment of 13 March 2008 – 3 C 18.07 - BVerwGE 130, 383, drive-through bans to curtail avoid-ance of tolls; judgment of 23 September 2010 - 3 C 37.09 - BVerwGE 138, 21, ban on overtaking by lorries on motorways). The same is true for the judgment of the Federal Court of Justice of 8 April 1970 - III ZR 167/68 (…)) referred to in the deci-sions cited above. In that judgment, the Federal Court of Justice stated that traffic signs must be mounted, erected and maintained in such a manner that a motorist is able to register the traffic situation with a quick and cursory glance and that the traffic signs should not confuse or mislead the motorist even at a fleeting glance. Conversely, the case decided by the Federal Administrative Court in its judgment of 11 December 1996 - 11 C 15.95 - (BVerwGE 102, 316 <318 f.>) concerned, as in the present case, a stopping restriction in stationary traffic. And in that judgment, too, it is stated that, in order to have legal effect, traffic signs must be erected in such a way that they may be understood “with a quick and cursory glance” when complying with the duty of care under section 1 StVO. The claimant incorrectly concludes from this that there cannot be different requirements for the visibility of traffic signs. For the only matter to be clarified in that decision was whether the stopping restriction had nevertheless become valid for the claimant in that case, who was in hospital both at the time when the traffic sign was erected and at the time when the authority took measures and for this reason alone could not have seen the traffic sign. In other words, it concerned the promulgation of the prohibition and requirement being made public by means of the traffic sign vis-à-vis a person who was not present. Contrary to the present case, it was not a question of whether the traffic sign was otherwise erected with adequate visibility. The 11th Senate affirmed the validity of the stopping restriction, giving the reason that the claimant in that case, too, was a road user and therefore an addressee of the order given by means of the traffic sign. While the de-cision does not mention duties of care with a continuing effect or a duty of inspection incumbent upon the driver or the person otherwise responsible for the vehicle, these nonetheless inherently exist by virtue of the circumstances. It may be understood from this decision that the responsible person must ascertain at intervals even after parking whether parking continues to be permitted.
21 4. The court of appeal assumed that the driver is subject, without specific reason, to a duty of inspection over and above simply looking around after parking the vehicle, and that he may “if necessary” be required to walk a certain distance in both direc-tions after parking the vehicle from the place where the vehicle is parked in order to ascertain that no stopping or parking ban exists. This assumption by the court of ap-peal overstretches the duties of care incumbent upon road users. Traffic signs for stationary traffic have legal effect for every road user affected by the regulation, re-gardless of whether they actually perceive the traffic sign, if the signs are placed or mounted in such a manner that an average motorist exercising due care in accord-ance with section 1 StVO and in undisturbed visibility conditions can easily see while driving or by simply looking around upon leaving the vehicle that a requirement or prohibition has been made public by means of traffic signs. The motorist is only obliged to make a closer inspection if there is a specific reason to do so under the particular circumstances of the individual case.
22 a) It is for the public authority to order a prohibition of parking or stopping under sec-tion 45 StVO to ensure that it is duly and properly made public, since it is a prerequi-site for the legal effect of such a prohibition and requirement under road traffic law that the relevant general administrative act (Allgemeinverfügung) is duly and properly promulgated (section 43 (1) VwVfG) by means of traffic signs in accordance with the principle of visibility. In the event of dispute, the burden of proof that the requirements of the principle of visibility in respect of the erection or mounting of the traffic signs have been satisfied is, according to general principles, borne by the public authority which intends to derive legal implications from the signs. At the same time, it is clear that in order to avoid a decision regarding the burden of proof being handed down against it in the event of unprovability (Beweislastentscheidung), the authority should document the due and proper erection or mounting of the traffic signs and the fulfilment of the requirements of the principle of visibility in an appropriate manner.
23 Requirements for the erection and mounting of traffic signs are included in the Gen-eral Administrative Regulation Regarding the Road Traffic Regulations (Allgemeine Verwaltungsvorschrift zur Straßenverkehrs-Ordnung) of 22 October 1998. Regarding sections 39 to 43 StVO it includes in chapter III (General Matters Regarding Traffic Signs), inter alia, provisions concerning the size (no. 3) and the illumination (no. 7) of traffic signs, the height at which traffic signs should as a rule be mounted (no. 13) and stipulates that traffic signs should be mounted at approximately a right angle to the right of the carriageway and directly next to it and should be clearly visible (no. 9). Pursuant to no. 13 letter a, the lower edge of the traffic sign should, except as otherwise specified for individual signs, as a rule be 2 m above road level, 2.20 m above bicycle paths, 4.5 m on gantries, and 0.60 m on central islands and channelising islands. There are no legal indications discernible either in this administrative regulation or otherwise to suppose, as the defendant argues in its decision on the objection, that lesser requirements should be placed on the visibility of traffic signs which only apply for a limited time as opposed to those which are intended to apply permanently. Even traffic signs which are erected merely temporarily must be complied with by road users for the duration of the period in which they are applicable and must, accordingly, be visible. At the same time, these requirements for the erection and mounting of traffic signs shape the “expectation horizon” (Erwartungshorizont) of road users as to where road signs can be expected and to what they must accordingly direct their attention. If the relevant provisions of the General Administrative Regulation Regarding the Road Traffic Regulations are complied with, this is at the same time an important indication that the required visibility of the traffic sign was implemented in accordance with the principle of visibility. Conversely, non-compliance with these regulations does not always justify the assumption that the traffic sign in question is neither sufficiently visible nor - at least to the extent that there is cause for closer inspection in stationary traffic - perceivable. The extent to which the requirements of the principle of visibility were satisfied depends on the final analysis on the specific circumstances of the individual case in question. Accordingly, there is a need for a judicial establishment of the facts in this regard in the case of dispute.
24 Cause for an inspection going beyond simply looking around after parking the vehi-cle, for example walking around the immediate vicinity, can exist for example if there is the possibility that a no stopping or no parking sign could be obstructed by espe-cially high vehicles parked there or if visibility is so impaired by darkness or weather conditions that the road user must anticipate not being able to recognise road signs.
25 b) The appeal judgment does not seem to state with the requisite clarity that the Higher Administrative Court considers that the road user is only obliged to carry out a closer inspection over and above simply looking around after leaving the vehicle if there is specific cause to do so. The abstract legal principle formulated by the Higher Administrative Court, that the road user must check the immediate and easily visible area for the presence of any stopping or parking restrictions before finally parking the vehicle, and to this end must “if necessary” walk a certain distance in both directions (…), does not seem to include such a limitation. The insertion by the court of appeal of the restricting addition that walking up and down is required “if necessary” is too imprecise and too vague.
26 Conversely, from the point of view of an appeal on points of law, there is no objection to the opinion of the court of appeal that no differentiation should be made with regard to the requirements for the visibility of a road sign according to whether the road user, for instance as a local, is familiar with the legal situation. This follows from the fact that the yardstick for the fulfilment of the requirements of the principle of visibility is as a matter of principle, as has already been set out, the average motorist (thus, regarding the understandability of traffic signs with several additional signs, already BVerwG, judgment of 13 March 2008 - 3 C 18.07 - BVerwGE 130, 383 para. 16 with further references).
27 5. If, as demonstrated above, the legal standard used by the court of appeal regard-ing the existence of a duty to make a closer inspection proves not to be accurate in every respect, then the facts it establishes regarding the visibility of no stopping or no parking signs using this yardstick as the basis in law are not tenable in this specific case.
28 According to the findings of the court of appeal, the road section in question (…) is around 90 m to 100 m long. A total of six no stopping signs were set up there (sign 283). There were three no stopping signs on each side of the road, of which two were placed directly at each of the junctions mentioned (sign 283-10 at the beginning and sign 283-20 at the end) and two more approximately in the middle of the road section, i.e. some 45 to 50 metres away from the junctions mentioned. According to the police officer who caused the vehicle to be removed and the person who set up the signs and reported the parking violation, the stopping restriction was signposted in a “clearly recognisable” way (…). On this basis, the court of appeal came to the conclusion that there was no doubt that the stopping restriction was objectively recognisable if the required care was exercised (…).
29 Since the court of appeal relies on the recognisability of the stopping restriction if “due care is exercised”, but at the same time proceeds from the assumption of a duty to look closely around the vicinity without specific reason to do so (anlasslose Nachschaupflicht), then the visibility of the no stopping sign for the claimant which is affirmed by the court of appeal is also subject to the premise that the claimant carries out a closer inspection of his vicinity. What is not answered, however, is the neces-sary prior question, which requires clarification, as to the extent to which there was any specific reason for such a closer inspection. If this was not the case, and the court of appeal has not established any facts in this regard, then its assumption that the stopping restriction was objectively recognisable loses its foundation. According-ly, reference in the reasons of the judgment to the written statements of the police officer who caused the vehicle to be removed and of the person who erected the traffic signs is likewise insufficient until it has been clarified whether these statements regarding the recognisability of the no stopping signs are founded on a correct understanding of the requirements of the principle of visibility and the legal requirements for a duty for the road user to inspect the vicinity.
30 6. For a final decision, further judicial establishment of the facts is therefore required as to how the no stopping signs in this specific case were erected or mounted and how this affected their visibility and thus the validity of the announcement of the stopping restriction. (…)