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12.07.2018 | KPMG Law Insights

Driving bans – What can cities do?

Driving bans – What can cities do?

Do diesels have to stay outside? Large German cities are apparently faced with a choice between the health of their citizens and the economic factor of individual traffic. The Federal Administrative Court has now clarified that driving bans in German cities are possible in principle even without uniform federal rules. Where do we go from here?

Most recently, the city of Düsseldorf scored another success in its handling of the diesel affair before the Düsseldorf Administrative Court: it does not need to take diesel vehicles out of circulation if they have been retrofitted as required. Now the Federal Administrative Court in Leipzig was dealing with another aspect of the diesel issue: driving bans in cities with particularly high levels of exhaust pollution. The Federal Administrative Court ruled that driving bans for diesel vehicles in German cities are possible – even without a uniform federal regulation.

In many cities, the question is how to proceed in the emissions dispute and what options they have:

Example driving bans

Following the ruling by the Federal Administrative Court, the federal states or – if they themselves are responsible for the clean air plan – the cities can no longer invoke the fact that driving bans in cities are legally impermissible.

Example diesel registration

The dispute over the registration of diesel vehicles has not yet been finally resolved. The proceedings in Düsseldorf will go to the next instance. And there are also lawsuits pending in nine other cities, on which the competent administrative courts have yet to rule.

Example enforcement measures

Once a judgment is in place, the issue of enforcement measures also becomes relevant. The Munich Administrative Court has already imposed a fine on the Free State of Bavaria for deficiencies in the clean air plan for Munich. How the courts will react in the event of a continued infringement remains to be seen.

Possible steps

So what can cities do?

Cities affected by limit value exceedances should consider drawing up or updating a clean air plan, if necessary in coordination with the responsible state authority. One thing is clear: cities can pursue the goal of air pollution control by various means: From strengthening bicycle traffic and public transport to making parking space more scarce, there are numerous options. This set of instruments must be exploited to the full. As a last resort alone, driving bans can no longer be ignored. The key here is to define the right conditions under which a driving ban should take effect and to make the driving ban proportionate, for example by phasing it in gradually and providing suitable exemptions.

In the dispute over vehicle registrations for diesel vehicles, cities can at least strengthen their position by pursuing the procedures under Section 5 of the Vehicle Registration Ordinance (“Restriction and prohibition of the operation of vehicles”) swiftly and conscientiously in the case of owners who refuse to be retrofitted. In the proceedings before the Düsseldorf Administrative Court, the plaintiff had argued, among other things, that the city of Düsseldorf was not pursuing these procedures with the necessary commitment and that retrofitting as a measure was therefore running on empty.

KPMG Clear Thinker
Driving bans: What will now change for cities
Contribution by Mathias Oberndörfer

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