This text on legal issues reflects the personal opinion of the author. Neither a guarantee for the correctness of the content can be assumed, nor is it intended to replace any necessary legal advice in individual cases. Binding information can be provided by a lawyer, who is then also liable for the correctness of his advice. Legal regulation
What does "special rights" mean? What does "right of way" mean? Where can I find the legal basis?
The legal regulation of the special rights can be found in § 35 StVO (Road Traffic Code), the so-called "right of way" is defined in § 38 StVO (whereby the law does not use the term "right of way" itself).
The following table presents the essential regulatory content, tailored to the area of non-police BOS ("Authorities and organizations with security tasks"): Special rightsRight of wayPrescription§ 35 StVO§ 38 StVOBedeutungFree of all or certain regulations of the StVOall other road users have to create immediatelyfree railwaye) Police, fire brigade, KatS, Federal Border Guard, Bundeswehr, customs serviceAll vehicles that are covered by blue light and emergency horn (b) Emergency service vehiclesPrerequisites for usea) urgently necessary for the performance of sovereign tasks, where the utmost urgency is required to save human lives or avert serious damage to health, to avert a threat to public safety or order, to prosecute fugitives or to obtain significant property. no specific Blue light and horn
It can therefore be said that special rights allow the person entitled to disregard the provisions of the Highway Code without, however, granting him extended rights over the other road users. The right of way, on the other hand, acts in favour of the entitled party vis-à-vis other road users.
Special rights benefit only certain institutions listed individually in the law or their vehicles, the conditions for which are different; Right of way can claim for all equal conditions any vehicle that has a special signal system (provided, of course, that this has been installed correctly).
In principle, special rights do not have to be particularly identified; Right of way only exists if the vehicle makes itself visually and acoustically noticeable. Persons entitled to special rights
Who is allowed to claim special rights?
According to § 35 StVO,
Bundeswehr, Federal Border Guard, Fire Brigade, Civil Protection, Police and Customs Service (§ 35 Abs. 1 StVO)
Vehicles of the rescue service (§ 35 Abs. 5a StVO)
Make use of special rights.
In addition, road construction-, - cleaning and maintenance vehicles as well as vehicles of the postal and telecommunications companies (formerly Deutsche Bundespost) have special rights; they are only for certain tasks from the observance of certain (not all!) Regulations of the StVO are exempted and are not taken into account in the following.
"Police" within the meaning of § 35 Abs. 1 StVO is not only the enforcement and criminal police of the Federal Government or the Länder; rather, the term is to be defined and covers all persons and institutions to whom police powers are entitled under federal or state law. On the one hand, this applies, for example. Employees of the tax investigation who, according to § 404 AO, are assigned police tasks in criminal tax proceedings, may also concern enforcement officers of the public order office as local police authority or hunting, forestry and fishing supervisors.
The term "fire brigade" includes professional, plant and voluntary fire brigades, that of "civil protection" the units and facilities of the federal and state civil protection, insofar as they are in use as such. Vehicles of the rescue service
It is striking that in paragraph 1 of § 35 StVO, in contrast to paragraph 5a (and the following), "vehicles" ("the rescue service", "which [...] of the streets"), which is speech, but is spoken of by the institutions themselves. From this it can be assumed that these institutions themselves, i.e. not only their emergency vehicles, are justified. So it does not depend on the police or fire brigade vehicle (service or emergency vehicle), but rather on the use (i.e. the occupant or occupants).
It should be noted in passing that the scheme applicable to ambulance vehicles was introduced only retrospectively (November 1975) and, moreover, until 1988 applied only to the saving of human lives and expressly required the activation of blue lights and horns. However, vehicles of the rescue service are still not equivalent to the other entitled persons from the bos area in terms of the conditions.
The term "vehicles of the rescue service" is sometimes understood in the case law far - beyond the area of the rescue service defined by state law. Accordingly, this includes not only the vehicles of the public rescue service (i.e.KTW, RTW, NAW, NEF), but also all other vehicles that serve their purpose of saving lives, are assigned to a "rescue organization" and "their use [...] is functionally and quantitatively characterized by rescue operations". This broad interpretation therefore also includes, for example, vehicles of blood and organ transport, vehicles of water rescue, possibly of the organized medical emergency service, etc., of course even if they have private owners (such as the auxiliary organizations).
Insofar as authorised persons within the meaning of paragraph 1 (i.e. the fire brigades) operate rescue services, the more favourable Paragraph 35(1) of the StVO shall also apply to them in the rescue service.' Civil protection"
Who is "civil protection" within the meaning of § 35 Abs. 1 StVO, is governed by the respective state regulations. In Rhineland-Palatinate, for example, this includes, among other things, the rapid response groups San, care and catering, which form the civil protection according to the concept of the state. However, this only applies if they are also used in this function - i.e. as civil protection - for an operation or an (ordered) exercise, but not if vehicles, material or personnel of the SEG are used, for example, within the framework of the medical service or otherwise for the own purposes of the aid organisations. Requirements for the exercise of special rights
When can special rights be claimed?
This varies depending on whether it is a beneficiary according to § 35 para. 1 or para. 5a StVO. Fire brigades, police, etc.
For fire brigades, police, civil protection, etc., the use of special rights must be urgently required only for the fulfilment of sovereign tasks. This means that the public task must have a certain objective weight and, in compliance with the traffic rules, cannot be fulfilled properly or not as quickly as necessary for the general good. The immediate performance of the duty must therefore be more important from the point of view of the public interest than the possible disadvantage of non-compliance with the rules of transport.
For the vehicles of the rescue service, the threshold is higher: here the highest urgency must first be required, and this highest urgency must therefore be required in order to save human lives or avert serious damage to health.
However, this has the advantage that the balancing is easier - special rights may be claimed if there is a danger to life or cannot be ruled out, i.e. the patient is vitally endangered, or at least serious damage to health in the event of a threat of delay (in this regard, for example, a necessary analgesia (pain as serious damage to health) or cases of urgent wound care (replantation or similar) should be considered). It is not necessary that the accepted vital threat actually exists. Rather, the situation as it is at the moment of the decision on the use of special rights must be assumed. If, for example, a patient complains of shortness of breath during his emergency call, it can usually be assumed that there is a breathing disorder and thus a vital threat exists, so that the claim of special rights is required. If it turns out at the scene that the "shortness of breath" was only a cold, this does not change the legality of the previous decision.
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