Transport law

Sustainable mobility requires realising innovative changes differing in design as best suited for the respective area, e.g. conurbations or rural areas. We must recover road space occupied by cars, take more effective control of parking, test and implement alternative concepts such as sustainable car sharing and redesign and promote public transport systems to be future-viable, including attractive schemes especially for rural regions. An UBA study entitled “Rechtliche Hemmnisse und Innovationen für eine nachhaltige Mobilität – untersucht an Beispielen des Straßenverkehrs und des öffentlichen Personennahverkehrs in Räumen schwacher Nachfrage“examines examples of road traffic and concludes that lasting changes to legislation are  required to achieve this aim. The authors of the study consider a paradigm shift in traffic to be long overdue, stating that “a few minor adjustments to German Road Traffic Regulations (StVO), as have been suggested by Federal Transport Minister Scheuer, do not go far enough.” The guiding principle of traffic law must shift away from the satisfaction of “transport requirements“ (with cars in particular) and aim to guarantee the greatest possible mobility for everyone, while ensuring the lowest possible degree of danger and harm to people and the environment.

The reaseach project was conducted by the Öko-Institut (project lead by senior researcher Andreas Hermann) and Prof. Dr. Stefan Klinski, Professor for Environmental Law at the Berlin School of Economics and Law (HWR Berlin), who took the lead regarding road traffic law.

The Federal Supervisory Authority for Air Navigation Services (BAF) determines flight procedures in accordance with the regulations of the Civil Aviation Act [LuftVG (2007)] and the Civil Aviation Ordinance (German air traffic regulations LuftVO (1999)]. Flight procedures with particular importance for the protection of the population from aircraft noise, are enacted in consultation with the German Environment Agency (UBA). The UBA published an evaluation of the noise effects of the flight procedures of the Berlin Brandenburg Airport [Lärmfachliche Bewertung der Flugrouten für den Verkehrsflughafen Berlin Brandenburg (BER) für die Benehmensbeteiligung nach §32 Luftverkehrsgesetz]. The UBA also commissioned a legal expert report to Prof. Dr. Eckhard Pache entitled Die Prüfung von formell- und materiell-rechtlichen Aspekten bei der Benehmensregelung zur Festlegung von Flugrouten nach §32 LuftVG zwischen UBA und BAF. The report presents the legal basis for the enactment of flight procedures and an analysis thereof. In addition to legal foundations, the expert report addresses the requirements in terms of form and substance on the UBA consultations to enact flight procedures as per § 32 of the Civil Aviation Act. It also discusses basic issues regarding the balance between the enactment of flight procedures and the planning approval of an airport. A second expert report about the formal and substantive options for action in the regulation of flight procedures was commissioned to Öko-Institut e.V. and Prof. Dr. Elmar Giemulla. This survey deals with the formal and substantive action possibilities in the regulation of flight procedures.

One possibility to reduce noise emissions in rail transport is to levy access charges based on noise emissions produced. A noise emissions-based track access charging system creates economic incentives for train operators to replace the old, noisy freight wagons with lower noise emissions vehicles. The German Environment Agency commissioned a legal opinion to Prof. Dr. Eckhard Pache [Minderung der Umweltbelastungen im Schienenverkehr durch emissionsabhängige Trassenpreise] which shows that noise emissions-based track access charges are legally feasible in Germany and how they might be charged.

To reduce air pollutants UBA additionally recommends the installation of particle filters in diesel locomotives.

The world oceans and airspace are typical examples of global environmental goods, also known as open-access resources. They can be used by everyone, virtually without limitations and free of charge. Global environmental goods are not under the jurisdiction of any national sovereign body. International treaties have so far inadequately regulated the rights of use of these goods.

However, more and more aircraft are crowding the skies and shipping traffic on the world oceans is growing. As a result, the levels of pollution – of greenhouse gas emissions, for example – are also increasing. Pollution knows no national borders and its effects are global. Up to now the direct polluters have not been held accountable for the consequential costs. Various financial policy instruments have been considered to change this situation, one of which is the introduction of user charges at international, European and national level. User charges are meant to control traffic volume and promote the development of greener technologies. Possibilities include charges on airline tickets or for freight, charges for the use of waterways and harbours, earmarked charges on fuel, tolls and emissions-based user charges (e.g. CO2 charge).

The Legal Aspects of User Charges on Global Environmental Goods report by Dr. Nils Meyer-Ohlendorf, Michael Mehling, LL.M., Alexander Neubauer, Prof. Dr. Astrid Epiney, LL.M. and Prof. Dr. jur. Stefan Klinski assesses the legal aspects of user charges and makes policy recommendations on how to levy these charges. The paper was published by Erich-Schmidt-Verlag.

The Integration of Marine Transport into the European Emissions Trading System has been analyst form an environmentally, economically and legal point of view by Tim Bäuerle, Jakob Graichen, Kristin Meyer, Stefan Seum, Dr. Margareta Kulessa, Dr. Matthias Oschinski. The study is published online.

A conference hosted by the UBA on 13-14 May 2008 was also devoted to the topic of internalising externalities at airports.

The implementation of aviation tax legislation has introduced a tax on air travel for the first time in Germany. It is the Federal legislator’s reaction to the fact that the aviation sector – unlike other modes of transport such as the railways and roads – has largely gone untaxed up to now. The German Environment Agency investigated the possibility of levying an air ticket tax a number of years ago. The strategy paper which resulted (Legal Construction of an Air Ticket Tax in Germany) issues recommendations for the introduction of an air ticket tax. The strategy paper has been published in German and English (see Documents).

Although railway travel and long-distance routes in particular demonstrate great ecological advantages compared to aviation, they do not enjoy the same tax breaks. As a result, the railways bear the brunt of an uneven distribution of costs. One way to minimise this imbalance would be to reduce the VAT rate for rail transport.

A report by attorneys Dr. Dieter Sellner and Dr. Ulrich Karpenstein entitled Gemeinschaftsrechtliche Zulässigkeit einer Mehrwertsteuerreduzierung im Schienenverkehr illustrates the conditions in which such a reduction of the VAT rate is legally feasible. Under current legislation, it would be possible to increase the attractiveness of the railways by reducing the VAT rate for journeys of up to about 400 km.

Exceeding the speed limits on urban roads impairs the quality of life and living in cities and also traffic safety. A research project on behalf of the Federal Environment Agency surveyed the influence of maximum speed limits on the environmental quality of major roads areas. It looked at the aspects of emission of pollutants, noise, residential and environmental quality, separation effects and traffic safety for pedestrians and cyclists. The key discovery: city ecologically advantageous is a steady flow of traffic at speeds between 30 and 50 km/h. Traffic speeds that are compatible with the objectives of sustainable urban development require a combination of conceptual planning measures and statutory regulatory measures. The study entitled Verbesserung der Umweltqualität in Kommunen durch geschwindigkeitsbeeinflussende Maßnahmen auf Hauptverkehrsstraßen (Hunger et al. 2007, published as UBA-TEXTE 09/07) [Improvement of the environmental quality through speed-affecting measures on major roads in municipalities] has been published online.