Building and operating regulations for pioneer railways

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Basic data
Title: Building and operating regulations for pioneer railways
Abbreviation: BOP
Type: According to Art. 9 Unification Treaty, GDR law continues to apply
Scope: New federal states , except Thuringia , and eastern Berlin
Legal matter: Administrative law
Issued on: February 15, 1979 (Reprint No. 1/1979 of the bulletin of the State Railway Inspectorate of the Ministry of Transport); Continued validity according to Annex II, Chap. XI Subject A Section III No. 3 Unification Agreement
Entry into force on: January 1, 1980
Please note the note on the applicable legal version.

The building and operating regulations for pioneer railways (BOP) regulate the construction and operation of the former pioneer railways in the new federal states - with the exception of Thuringia - and in East Berlin. In part, it is also used as the legal basis for the supervision of other narrow-gauge railways.

History and continuation

General

The BOP was issued on February 15, 1979 by the GDR Minister for Transport on the basis of Section 9 (2) Railway Supervision Ordinance of January 22, 1976 (Journal of Laws of I, p. 33). It came into force on January 1, 1980.

According to the provisions of the Unification Treaty, the BOP continues to apply as state law in the new federal states - except in Thuringia - and in the eastern part of Berlin, but only in Saxony as far as it does not contradict state railway law. The respective federal states are responsible for repeal and amendment. The BOP in the federal states concerned was excluded from the extensive repeal of GDR law in the course of the legal adjustment. Regulations that refer to the “socialist education system” (Section 2 (5) BOP) or make decisions of the Central Council of Free German Youth binding have never been formally overridden.

Legal situation in Thuringia

In Thuringia, the BOP expired in 1996. Since then there has been no legal basis to supervise the Gera Park Railway and other affected railways. For this reason, the Thuringian Landtag passed an amendment to the Mountain Railway Act - which has since come into force - in March 2017, which is supplemented by regulations on park railways and provides for the future enactment of an ordinance by the state government with detailed regulations. The Thuringian Mountain Railway and Park Railway Act (ThürBPBahnG) and the ordinance should also apply to standard-gauge park railways.

Norm character and continued validity problem

The normative character of the BOP cannot be easily determined according to German standards. In the Federal Republic of Germany, the matter is usually regulated by ordinance (cf. railway building and operating regulations for narrow-gauge railways , building and operating regulations for connecting railways ). The BOP was not enacted as a statutory ordinance, but as a quasi-internal administrative regulation ("instruction of normative character") because in the GDR pioneer railways were operated exclusively by state institutions or state-controlled companies. Since such standards do not fit into the conceptual structure of the federal German legal system, they are referred to as "law that continues to apply under Article 9 of the Unification Treaty".

According to German law, the building and operating regulations in most of the federal states in question do not have a basis for authorization that would allow the enactment of corresponding legal provisions. Without such a basis for authorization, the BOP will only continue to apply for a temporary transition phase after reunification.

The matter must be changed, repealed and revised by law or ordinance .

scope of application

The regulatory area of ​​the BOP primarily covers the former pioneer railways , now known as park railways . These are railways that are used to transport people and for the leisure activities of children and young people who are actively involved in rail operations (cf. § 2 Paragraph 5 Sentence 2 BOP and No. 18 Appendix I to the BOP).

Despite this restricted area of ​​application, the authorities also use the BOP as the legal basis for museum railways with a gauge of 600 mm (e.g. Mecklenburg-Pomerania narrow-gauge railway , railway in the brickworks petrol , forest railway Muskau ) that were built after 1990 .

The BOP regulates u. a. Structural measures, maintenance work on railway systems and vehicles, the implementation of railway operations, the qualification and exercise of the service of the railway operating staff, including the children and young people deployed, and work in the vicinity of railway systems (cf. § 1 Paragraph 1 BOP).

criticism

The working group Feldbahn Parkbahn, an amalgamation of various light railway museums and park railways within the Association of German Museum and Tourist Railways , criticized in 2012 the unchanged continued validity of the regulation after the status of 1979. The working group particularly criticized the fact that the BOP was involved in the structures of the GDR state railway and is based on technical regulations that are no longer up to date. The working group assumes that a revision of the BOP to meet current needs is neither possible nor politically desired.

In 2017, the Thuringian state government noted that the other new federal states had consistently good experiences with the application of the BOP. Their technical quality is also evident from the fact that facilities comparable to the pioneer railways in the old federal states, such as the Killesbergbahn in Stuttgart, also voluntarily comply with the BOP as a technical set of rules.

literature

Web links

Individual evidence

  1. ↑ Section 2, Paragraph 1 in conjunction with Annex No. 15 of the Saxon Legal Adjustment Act of April 17, 1998 (GVBl. 1998, p. 151) and Art. 3 p March 12, 1998 (GVBl. 1998, p. 97).
  2. ↑ E.g. No. 19 of the annex to Section 1, Paragraph 1 of the First Brandenburg Legal Cleansing Act of September 3, 1997 (GVBl. I, p.104)  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. ; see. also Märkische Allgemeine dated December 31, 2008.@1@ 2Template: Toter Link / www.landesrecht.brandenburg.de  
  3. ↑ Law and Ordinance Gazette 2017 p. 90.
  4. ↑ bill the state government - First Act Amending the Thuringian mountain railway law , parliament printed matter 6/3038, p 1f. (accessed on May 17, 2017).
  5. ↑ For the legislative procedure, see the parliamentary documentation of the Thuringian State Parliament (accessed on May 17, 2017).
  6. ↑ On the whole: Gerd Janke: On the ranking and publication of the GDR legal provisions . In: Neue Justiz 1997, pp. 455 ff., 463.
  7. ↑ Ulrich Stelkens, in: Paul Stelkens, Heinz Joachim Bonk , Michael Sachs (Eds.): Administrative Procedure Act, Comment . 7th edition. CH Beck , Munich 2008, ISBN 978-3-406-56559-5 , § 35 paragraph 366; see. also memorandum on the Unification Treaty, Bundestag printed paper 11/7760, pp. 355, 358.
  8. ↑ There are no legal regulations in Brandenburg and Mecklenburg-Western Pomerania; the railway laws still in force in Berlin ( Prussian Railway Act , Prussian Small Railway Act ) and the State Railways and Mountain Railways Act for the state of Saxony-Anhalt do not contain any basis for authorization; only Section 17 of the Railway Act for the Free State of Saxony contains the authorization to issue statutory instruments.
  9. ↑ See Peter Lerche , in: Klaus Letzgus u. a. (Ed.): For State and Law. Festschrift for Herbert Helmrich on his 60th birthday . CH Beck, Munich 1994, ISBN 978-3-406-38031-0 , pp. 57ff., 71f .; Carola Schulze, in: Michael Sachs (Ed.): Basic Law, Commentary . CH Beck, 5th edition, Munich 2009, ISBN 978-3-406-58043-7 , Art. 123, paragraph 20 (there also further references).
  10. ↑ See Oberverwaltungsgericht Frankfurt (Oder), judgment of June 21, 1997, file number: 3 D 15 / 94.NE, published in: Landes- und Kommunalverwaltung 1997, p. 217, especially p. 218. In some federal states this is legal expressly provided.
  11. ↑ Report in: Potsdamer Latest News , June 26, 2008.
  12. ↑ Reproduced by Rudi Buchweitz: Parkeisenbahnen. In: Wolf-Dietger Machel (editor): secondary and narrow-gauge railways in Germany. 102nd supplementary edition (October 2013), Geramond Verlag, Munich, ISSN  0949-2143 , pp. 3-4.
  13. ↑ Draft law of the state government - First law to amend the Thuringian Mountain Railway Act , Landtag-Drucksache 6/3038, p. 2 (accessed on May 17, 2017).