Austrian Administrative Court: E-scooters Are Vehicles

Feb 3, 2023 Benn-Ibler Rechtsanwälte GmbH

On September 7, 2021, a co-participant with an alcohol content of 0.68 mg/l in his breath drove a mini scooter with an electric drive, thereby violating Section 99 (1a) in conjunction with Section 5 (1) of the Austrian Road Traffic Act (Straßenverkehrsordnung, hereinafter StVO). He appealed to the Vienna Administrative Court, stating that the Vienna Regional Police Directorate was not responsible for his case.

The Vienna Administrative Court, as the court of first instance, stated that the law does not classify electrically powered mini-scooters or e-scooters as bicycles, however, users of e-scooters must behave like cyclists. Thus, e-scooter users are neither cyclists nor vehicle drivers. Violations of Section 88b (2) first sentence of the StVO are always infringements of Part X of the StVO. This would imply that the district administrative authorities and not the regional police directorates are responsible for handling offences.

The Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) stated:

According to Section 2 StVO, vehicles are defined as ‘means of transport that can be used on or are exclusively used on roads’, whereas bicycles are defined as ‘vehicles equipped with a device for transmitting human power to their drive wheels.’ According to Section 88b (2) StVO, the rules of driving conduct for cyclists are also to be applied to users of small scooters and mini scooters. It is clear from the legislative materials (Explanatory Memorandum 22 BlgNR 9.GP 51) that means of transport that do not primarily serve mobility needs are not to be considered vehicles. E-scooters, however, are used for mobility. Their use is permitted on most roadways. Small scooters or micro scooters with a maximum allowable power of not more than 600 watts and a maximum design speed of not more than 25 km/h are vehicles in the sense of Section 2(1)(19) StVO. Otherwise, Section 5 StVO would not apply and Section 99(3)(j) StVO would apply, which would lead to lower penalties. Section 88b (2) StVO is not an infractions standard in and of itself, but refers to other provisions such as Part I. Thus, the Vienna Regional Police Directorate is indeed responsible for the case at hand.

VwGH Ra 2022/02/0043 (23.11.2022)