SHARE NOW and WeShare: Success in injunctive proceedings

Redeker defends freedom of approval for car‑​sharing in Berlin

Berlin, 2 August 2022. In a decision rendered today, Berlin Administrative Court accepted an injunctive appeal by the car‑​sharing providers SHARE NOW and WeShare against the Land of Berlin. This means that car‑​sharing is not deemed to constititute “special use” in the Land of Berlin for the time being. SHARE NOW and WeShare offer their customers rental vehicles without fixed pick‑​up or drop‑​off stations. The vehicles are parked in public traffic areas, located and opened via an app and parked again at the end of the journey.

The Land of Berlin is of the opinion that “free‑​floating” car‑​sharing services (including like in this case station‑​independent types) constitute a “special use” and therefore fall under the scope of regulation § 11a of the Berlin Road Act, which is to enter into force on 1 September 2022, and thus require a permit from the Land of Berlin in the future. The car‑​sharing providers SHARE NOW and WeShare challenged this view in the injunctive proceedings before the court, among other things arguing that their vehicles always travelled on the streets of Berlin within the framework of so‑​called “public use”, which is allowed for anyone and everyone without a permit. This, the providers contended, also applied to vehicles parked by users after use. Furthermore, this process was argued to be conclusively and finally laid down by the federal legislature in the German Road Traffic Act (StVO): The vehicles are parked. No permit is needed for this. The Land of Berlin, according to the providers, lacked the legislative jurisdiction to regulate a process already regulated differently by the federal government and then, what is more, require a permit for it. The Berlin legislature had seen this problem in the legislative process and had deliberately drafted the regulation in an open manner. In view of this limited jurisdiction on the part of the Land of Berlin, the petitioners argued that the Berlin Senate should not be allowed to interpret the regulation in such a way to allow it to also cover station‑​independent car‑​sharing services. This, according to the providers, would be unconstitutional due to the lack of jurisdiction on the part of the Land of Berlin.

Berlin Administrative Court has now accepted this view in its decision. The new regulation does not apply to the SHARE NOW and WeShare services, at least for the time being. According to the court, the Berlin Senate is prevented by its lack of jurisdiction from deeming the parking process under dispute here to constitute “special use”, hence requiring a permit. According to Berlin Administrative Court, the fact that the vehicles, which are ready for traffic and operation, are to be put into operation within the framework of a rental system, which is initiated and is consummated using an app, does not change the fact that the parked vehicles in essence involve a parking system regulated by the federal government. The decision is not yet final and permanent.

SHARE NOW and WeShare were represented in the proceedings by Redeker lawyers Dr Christian Eckart and Dr Korbinian Reiter. Redeker partner Dr Christian Eckart advises and acts as counsel for sharing‑​economy companies nationwide on public law regulatory issues. Dr Korbinian Reiter specialises in public commercial law and European law.

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