Grundrechtskollisionen im öffentlichen Raum Gemeingebrauch, Anliegergebrauch und Sondernutzung als Beispiele grundrechtsgeprägter Erlaubnisverfahren

In the public space, on streets and places different users compete with each other. The public street area cannot be extended at will, so that the demand of the prospective users exceeds the supply of usage possibilities. This leads to conflicts which pursuant to the law of public streets and roads have to be resolved by the administrative authorities. The law distinguishes between the common use of all citizens, the adjacent owners' use of the street residents and the special use of third parties. The common use and the adjacent owners' use are not subject to permission. The special use, however, falls under a prohibition with the reservation on the granting of permission, making a discretionary decision necessary. The discretionary decision must take the fundamental rights positions of the different users which appear behind the forms of use into consideration. In order to avoid the burdensome proceedings on the granting of permissions several courts declared typical forms of special use as common use. This, however, renders the differentiation between the forms of use very difficult. If the term common use is extended beyond its classical and central function of movement, i.e. people or objects changing locations, to other types of conduct, it is nearly impossible to distinguish it from special use. Escpecially forms of use like distributing flyers or street artists p.ex. extend the common use to the so called »communicative use«. However, such forms of use have nothing to do with changing locations. Yet, the further the line for common use is drawn, the less possibilities the administration has to make a fair reconciliation of the different interests of users, due to lack of proceedings on the granting of permissions. But if the division of street area is left to the users alone, the strongest and most ruthless user will prevail. Thus the freedom of the individual from the obligation to obtain a permission makes all those unfree who cannot realize their plans of use. In its first part the essay advocates an argument for setting limits for common use more in step with actual practice by only accepting such conduct as common that, viewed objectively, serves the purpose of movement, and whose internal objective, subjectively seen, serves this purpose of movement as well. This shifts the reconciliation of interests of the converging fundamental rights of the competing users from the level of protection of fundamental rights back to the level of limits and proportionality. In doing so, the law of public streets and roads can once again fulfill its function of reconciliation between the forms of use, especially between the various forms of special use. In its second part the essay applies its proposals to the typical situations of conflicting fundamental rights in the public space and presents the case law of the courts more systematically.