Special use of free-floating rental bicycles under Berlin doctrine

Legal position under street law regarding free-floating rental bicycles: common use, special use and the 'predominance' test

Street lawstreet law is built on distinctions. Central is the distinction betweenlicence-free common use (for example § 10 BerlStrG; § 7 FStrG) andspecial use requiring a licence (for example § 11 BerlStrG; § 8 FStrG). Common use exists only if the public street is usedpredominantly for traffic. What is decisive is not the subjective intention of the user, but – according to settled case law of the Federal Administrative Court – theobjectively discernible purpose of the street use from the perspective of an impartial observer.

While theparking of vehicles is fundamentally part of stationary traffic and thus part of common use. This principle is not without limits. It ends where parking is no longer merely a consequence of participation in traffic, but ratheran integral component of a business model that functionally appropriates the public street space. It is at precisely this point that the decisions of theVG Berlin (decision of 17.10.2025 – 1 L 631/25) and theOVG Berlin-Brandenburg (decision of 19.01.2026 – OVG 6 S 114/25) come into play.

The concrete conflict: The end of toleration of the free-floating model

The applicant had operated rental bicycles in Berlin for years – partly with public funding – most recently exclusively under thestation-free free-floating model. After the expiry of the operator agreement and the time-limitedspecial use permits she did not discontinue her offering, but explicitly stated that she would in futurenot apply for any licence again.

The Senate administration responded with aremoval and prohibition order, orderedimmediate enforcement and relied onunauthorised special use of public street land. The centre of the dispute thus concerned nothing less than the fundamental question:
Are free-floating rental bicycles still traffic – or already commercial use in the street space?

The decision of VG Berlin: departure from earlier hints on special use

TheVG Berlin answered this question clearly in favour ofspecial use and rejected the application for interim protective relief. It is already notable that the chamber expressly distanced itself fromearlier, non-binding observations from its own court and clarified its position.

The core of the decision is the finding that the parking of the rental bicyclesdoes not predominantly serve subsequent participation in moving traffic, but ratherprimarily serves the initiation of a rental agreement. Until unlocking via app, the bicycles arenot ready for operation. Rather, they function in the public space ascontract objects and are thus comparable to other commercially offered items in the street space.

The court here develops several criteria for distinction that are of considerable importance for practice:

First and foremost, emphasis is placed on the objectively discernible purpose. The bicycles are not placed in the street space coincidentally or only temporarily, but deliberately, comprehensively and permanently, in order to generate customer contacts. The street thereby becomes a substitute for the operator's own business premises.

In addition, there is the external design of the rental bicycles: heavy construction, advertising surfaces, QR codes and an appearance that clearly distinguishes them from private bicycles. This too signals to the objective observer a non-traffic-related use.

The VG Berlin particularly emphasizes the quantitative dimension. The placement of thousands of bicycles, often in groups and at high-traffic locations, leads to a more than merely insubstantial impairment of common use by other road users, in particular pedestrians and people with mobility restrictions. A statistical demonstration of specific accidents is not required for this; the typical obstruction situation alone is sufficient.

In this overall view, the VG Berlin sees a classic special use present. Consequence: The absence of a licence constitutes a formally unlawful use of the street, which justifies a removal order. The fact that the business model may be environmentally friendly changes nothing in this regard.

The decision of the OVG Berlin-Brandenburg: Regulatory need to the fore

The OVG Berlin-Brandenburg confirmed this approach in the appeal proceedings, but set an interesting emphasis. The Senate explicitly leaves open whether the free-floating model must necessarily be classified as special use.

What is decisive is rather the street law regulatory need that the VG correctly identified. This results from the mass of vehicles, the permanent use of public space and the associated structural impairments of common use by others.

The OVG here formulates very fundamentally: Public street space is a scarce resource that cannot be made available simultaneously and indiscriminately to any number of business models. Whether in an individual case a certain traffic nexus exists falls away if the use occurs comprehensively, intensively and permanently. Especially in urban areas, this justifies a directing and limiting regulation by way of special use licences.

The OVG also clearly rejects the attempt to make climate protection or Art. 20a GG useful as an argument against street law intervention. The state objective of environmental protection does not grant subjective rights and does not permit, in particular, suspending applicable street law.

Classification: Berlin case law – (yet) no nationwide consensus

However, it is important – and this should always be pointed out in practice:
These decisions reflect only the perspective of Berlin administrative courts for now. Street law is certainly shaped by federal law and uniform in its basic structures, yet there exist different emphases in higher court rulings. Thus there are in particular earlier decisions of other Higher Administrative Courts (OVG) that have emphasized a stronger traffic-related connection in the context of bike-sharing or comparable models.

However, it is unmistakable that the case law is becoming increasinglyrestrictive in its position. The Berlin decisions are therefore not mere 'outliers', but an expression of acurrent development that takes account of themassive growth of station-free mobility services.

Precisely because the Higher Administrative Court of Berlin-Brandenburg (OVG Berlin-Brandenburg)OVG Berlin-Brandenburg based its decision fundamentally on theregulatory requirement, the orders have considerable weight beyond the individual case. This argument istransferable across federal states and is likely to convince other courts as well.

Practical guidance: Strategic course-setting for municipalities and operators

Formunicipalities this means: The decisions provide arobust legal foundation to control, limit and impose conditions on free-floating services via special use permits – without risking the accusation of generally denying space for innovative mobility.

Foroperators the reverse applies: Insisting on common use rights is becoming increasingly risky. Whoever operates without a permit risks exposure to administrative enforcement measures – up to and including immediately enforceable removal – solely on the basis offormal illegality.

Our legal recommendation

Given the dynamic legal development, both public authorities and mobility operators shouldsecure their concepts early in terms of road law. The Berlin orders demonstrate how quickly long-tolerated models can become legally untenable.

And if you attach value tostrategic advice,deep knowledge ofadministrative law and road law andsober yet assertive representation – well then: The experts atAVANTCORE Rechtsanwälte in Stuttgart are happy to assist.

Not only the Berlin courts are engaged with sharing providers and special use permits:

Administrative Court of Bremen (VG Bremen) confirms lottery procedure for e-scooter special use – leading decision for municipalities and sharing operators