Exemption (AEG)

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The exemption is a procedure according to § 23 AEG , with which a (former) operating system of a railway also loses this property legally.

Legal basis

As part of the rail reform in Germany , the General Railway Act (AEG) was created on December 27, 1993 ( Federal Law Gazette I p. 2378) and has since been amended several times. With the third amendment (Art. 1 of the Third Act on the Amendment of Railway Regulations of April 27, 2005 - Federal Law Gazette I 2005 No. 24 of April 29, 2005, p. 1138), a new § 23 AEG was inserted that provides exemption regulates. It has been in effect since May 1, 2005. For "old cases", the transitional regulation of Section 38 (6) AEG applies: They must be concluded according to the previously practiced procedure.

With the "exemption", the legislature has adopted a term that also exists in case law. At the same time, he tried to capture the previously existing variety of terms with the newly created term “exemption” without saying anything about the “deedication” that had been carried out in practice up to that point. For other linear infrastructures (roads, paths, waterways, pipelines, etc.) there is no “exemption” as a legal instrument.

function

The closure or abandonment of a route does not mean that it legally loses its status as a railway operating facility . The shutdown is only a prerequisite for this. Rather, the status of a railway operating facility can only be abandoned if it is also established that the public transport requirement for it has ceased to exist for the foreseeable future.

Railway operating systems are subject to specialist planning law in accordance with Section 18 AEG and are withdrawn from the general planning authority of the municipalities in accordance with Section 38 BauGB . With the exemption, this special status is lifted again and the corresponding areas are returned to the planning authority of the municipalities.

If the property as a railway operating facility is no longer required and the property is therefore no longer required for railway operations, there is even a legal obligation to lift this planning exception and restore the "normal state". This principle was initially developed through case law .

The prescribed, formal procedure ensures that municipal planning sovereignty is restored at a specific, precisely defined point in time. This creates legal clarity for the municipalities as to whether and when they can re-plan areas that were originally used for railway operation purposes and located in their municipal district . On the other hand, the formal procedure ensures that non-rail use is only legally possible again when the public concerns that speak in favor of use by the railroad no longer exist.

genesis

This restoration of the "normal state" under planning law has its forerunner in the " de-dedication " of (former) railway facilities. This term, borrowed from the law of public things , presupposes that the public transport railways are public things in the sense of the law of public things. That is already controversial. In practice, however, a deed was pronounced.

This was basically based on a linguistic inaccuracy in the fundamental decision of the Federal Administrative Court (BVerwGE 81, 111ff). For the first time it was stipulated by the highest court that there is a legal obligation to restore the planning law "normal state" for the municipalities in areas that are no longer used as operating systems for a railway. This fundamental decision speaks of “de-dedication” (in quotation marks!). From the context of the decision, however, it is clear that the term from the law of public matters is not meant, but the restoration of the “normal state” under planning law. However, the following literature has partly used the concept of deedication (now without quotation marks) without reflection in the sense of the law of public matters. This has led to considerable confusion, including in terms of content.

Prior to this landmark decision in 1988, the problem was largely ignored. The fact that it occurred at this point in time is due, on the one hand, to the increased number of line closures since the 1970s and, on the other hand, to the vacancy of large former operating areas of the railway due to operational and technical changes. For example, the abandonment of steam locomotives made numerous depots superfluous.

Eligibility to apply

According to Section 23 (1) AEG, the railway infrastructure company concerned , the owner of the property in question or the municipality on whose territory the property is located are entitled to apply .

Jurisdiction

The Federal Railway Authority is responsible for deciding on exemptions in accordance with Section 23 Paragraph 1 AEG in conjunction with Section 3 Paragraph 1 No. 1 and Paragraph 2 Sentence 2 of the Federal Railway Administration Act ( Federal Railway Administration Act - BEVVG of December 27th 1993, Federal Law Gazette I, p. 2394, last amended by the Second Law on the New Regulation of Energy Sector Law of 7 July 2005, Federal Law Gazette I p. 1970, 2017) in conjunction with Section 18 AEG as the planning approval authority for federal railways . For railways that do not belong to the federal government ( NE-Bahn ), the planning approval authority of the respective federal state is responsible.

Consequences of the exemption

With the procedure according to § 23 AEG, the property of the affected area as a railway operating facility ends legally with the result that it is released from the specialist planning privilege under railway law (§ 38 BauGB in conjunction with § 18 AEG). The planning authority of the specialist planning authority, the Federal Railway Authority, ends and the railway-specific earmarking of the area in question no longer applies. After the exemption, all areas are again exclusively subject to general municipal planning law. The Federal Railway Authority loses its supervisory powers. The same applies to the jurisdiction of the Federal Police according to Section 3 (1) BPolG .

criticism

One shortcoming of this procedure is that the legislature made the participation options very formal. Announcement of an exemption procedure applied for takes place exclusively through a publication in the Federal Gazette , since January 2008 in the Electronic Federal Gazette. In this supraregional and non-public medium, it can easily be overlooked among the large number of publications. In addition, the deadlines within which comments are possible are in the range of a few weeks (usually four to six, in some places only two weeks), so that a timely statement by the bodies involved is practically only possible with constant research in the Federal Gazette. As a result, publications have already been overlooked several times by the bodies mentioned. In addition, the announcement in the Federal Gazette only speaks

  • the railway companies,
  • the bodies specified in accordance with Section 1 (2) of the Regionalization Act, i.e. the public transport providers in the federal states,
  • the responsible bodies responsible for state planning and regional planning,
  • the affected communities, as well
  • Railway infrastructure companies, insofar as their railway infrastructure is connected to the railway infrastructure affected by the application

on. Anyone otherwise interested in the procedure (e.g. citizens, interest groups) is not entitled to access to the procedure and its documents. The decision on the conclusion of the procedure is not published at all, but only sent to the persons concerned. Compared to the plan approval procedure and its completion, the exemption practice is very remote from the public.

literature

  • Reinhard Dietrich: The beginning and end of railway infrastructure . In: German administrative gazette . 2007, pp. 657-664.
  • Georg Hennes u. a .: Beck's AEG commentary . Munich 2006.

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