Part of a journalist's job is to report - as promptly and comprehensively and authentically as possible. This undertaking proves to be quite challenging when the subject of the report is blocked by a freeway traffic jam several kilometers long. However, this is often the case for so-called "blue light journalists", whose job involves obtaining information, photos and videos of accidents. In order to get to the scene of the accident in a short time, they often only have the option of using the hard shoulder or highway ramps that are not intended for the public. Both types of behavior are generally prohibited by the StVO. It is only possible to apply for a special permit in accordance with Section 46 Paras. 1 and 2a StVO. However, the VGH Mannheim ruled on 08.11.2023 (Ref.: 13 S 1059/22) that there is no entitlement to a permit. This does not arise from the freedom of the press, the freedom of information or the freedom to choose an occupation.
The granting of a special permit is at the discretion of the competent authorities. It is intended for exceptional situations in which the provisions of the StVO would mean undue hardship for the person concerned, taking into account fundamental rights(BVerwG, judgment of 04.07.2019 - 3 C 24.17 - para. 10 f.). The VGH Mannheim had to decide whether the competent authorities were allowed to deny the plaintiff "blue light journalist" the use of the hard shoulder and service ramps on freeways.
It took the view that an accident scene is a general source of information within the meaning of Art. 5 para. 1 sentence 1 GG(VGH Mannheim on 08.11.2023 - Ref.: 13 S 1059/22 - para. 39 f.). The journalist also had a legitimate interest in taking photos and videos at the scene of the accident in light of the freedom of the press (para. 49). However, the court left open whether the refusal of permission actually interfered with the journalist's freedom of information, freedom of the press or freedom of broadcasting (para. 38, 41). In any case, any restriction was justified by the protection of the physical and psychological integrity of third parties (Art. 2 para. 2 sentence 1 GG) (para. 42, 45). The use of hard shoulders and service exits exposes other persons to an increased abstract danger to life and limb. This could obstruct emergency vehicles (para. 48) and significantly increase the risk of accidents (para. 97).
Nothing else arises in consideration of freedom of occupation. The bans on the use of hard shoulders and service exits do not have the necessary "tendency to regulate the profession" (para. 52). The exercise of the profession was also justified by sufficient reasons of public interest in the form of the protection of life and limb intended by the StVO (para. 53).
The court therefore came to the conclusion that the competent authority had rejected the application for the exemption permit without making an error of judgment. In particular, the decision was also proportionate (para. 70). Of course, this does not rule out the possibility of a permit being granted in other cases. The statements of the Mannheim Administrative Court regarding jurisdiction should also be of interest for future cases: Permission to use service driveways and to enter and stop on hard shoulders is, according to Section 46 para. 2a sentence 1 nos. 1, 2 and 3 StVO in conjunction with Section 6 sentences 1 and 2 InfrG. § Section 6 sentences 1 and 2 InfrGG, Section 1 para. 1 sentence 2 no. 1, Section 4 InfrGGBV lies with "Autobahn GmbH des Bundes", which is entrusted by the Fernstraßen Bundesamt (marginal no. 20), while driving on the hard shoulder must be approved by the local road traffic authority (marginal no. 86). The VGH Mannheim did not allow the appeal.
By Charlotte Gaschke and Jöran Jacob, lawyers