In this case, Section 839 para. 1 sentence 1 BGB in conjunction with Art. 34 sentence 1 GG results in liability on the part of the state or the responsible body. of the responsible body, whereas otherwise there is liability under private law in accordance with Sections 823 et seq. of the BGB.
Transfer of road traffic regulation and safety obligations to private parties
The transfer of public duties to the private sector is particularly widespread in road traffic. For example, private companies are commissioned with the installation and maintenance of traffic signs or the securing of roadworks areas. The assessment of these measures as administrative assistance has undergone a change in the case law of the Federal Court of Justice (BGH) in recent decades.
The BGH has long made a fundamental distinction between the duty to regulate traffic, which serves the general safety and ease of traffic, and the duty to ensure traffic safety. The latter represents a sub-category of the traffic duties under tort law and obliges the party causing a hazard to take suitable measures to prevent any damage that may result. In this sense, the Federal Court of Justice ruled in 1972 for a traffic light system that the programming of the same was part of the duty to regulate traffic, but that the monitoring of the functionality and maintenance of the system was part of the duty to ensure traffic safety.
However, this does not answer the question of when a company under private law is acting as an administrative assistant. This is the case when the company acts as a "mere tool" of the public authority, i.e. when it has no relevant decision-making scope of its own.
Development of the case law of the Federal Court of Justice on the qualification of private companies as administrative assistants
As recently as 1973, the Federal Court of Justice stated that a private company does not even act as a sovereign authority in the (instruction-bound) initial erection of traffic signs, but is merely a technical implementing body of the authority in this respect. Even in the (autonomous) subsequent control of the signage by the private company, it does not act as a public official in the sense of liability.
In its ruling of 6 June 2019, the Federal Court of Justice departed from this case law with regard to the first-time installation of traffic signs, which is strictly subject to instructions, and qualified this as an administrative auxiliary activity. The BGH justified this by stating that this was the implementation of a traffic regulation order. Therefore, it is irrelevant whether the erection of the signs is a measure of road traffic regulation or road traffic safety. The decisive factor is that the erection of the signs only leads to the effectiveness of the road traffic regulation. The regulation itself and its implementation should therefore be treated uniformly in terms of liability law.
However, the BGH also expressly clarified in its ruling that this decision should not refer to the independent control and maintenance of signage. It can therefore be assumed that the BGH did not intend to deviate from its previous case law in this respect. The inspection is precisely not an implementation of the duty to regulate traffic, but a pure fulfillment of the duty to ensure traffic safety. Equal treatment under liability law with the duty to regulate traffic is therefore not required.
Conclusion
For the qualification of a private company as an administrative assistant, it is still decisive to what extent the company has a relevant scope for decision-making in the fulfillment of its obligations. The current ruling of the BGH does not contradict this principle. Rather, it merely clarifies that a precise distinction must be made between the respective activities, particularly in terms of a distinction between the duty to regulate traffic and the duty to ensure traffic safety. Thus, while the (instruction-bound) initial erection of traffic signs is to be regarded as an administrative auxiliary activity according to the new ruling, the (independent) control remains a purely private law activity.
Dr. Fiete Kalscheuer and Leander Schmedemann