VwGH: Particularly dangerous conditions due to U-turns

Apr 29, 2022 Benn-Ibler Rechtsanwälte

In the present case, the Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) addressed particularly dangerous conditions with regard to road traffic under the Driving Licence Act (Führerscheingesetz, FSG).

Due to his manoeuvre, the co-involved driver's driving licence was revoked for six months by the district authority of Bregenz. Due to a traffic jam in a long, straight tunnel, the co-involved was forced to change lanes over a double barrier line and leave the tunnel in a direction going against traffic. According to the findings, the tunnel was easily visible and was not marked as a highway. A lorry approaching in the other direction had to brake due to the manoeuvre.

The VwGH ruled that there were no particularly dangerous conditions within the meaning of Section 7 para 3 FSG. The tunnel was well visible and the manoeuvre of the other driver would have been recognisable early enough. In addition, the co-involved only objected to the amount of the penalty, which is why the lower administrative court set the penalty at 3 months. The district administration appealed against this.

The VwGH saw this as follows:

Traffic reliability according to Sec. 7 FSG is endangered if, among other things, reckless behaviour is committed. This also includes the setting of particularly dangerous conditions, such as exceeding the speed limit in front of schools and on safety paths or bicycle crossings. These circumstances are to be assessed according to their reprehensibility and dangerousness. According to settled case law, it is sufficient for the existence of certain facts of para 3 that this setting causes the demonstratively listed cases of para 3; a specific endangerment of other road users is not required. In the present case, it is also significant that the turning manoeuvre took place in a tunnel, as a traffic accident in such an area would have had serious consequences (such as danger of explosion). The fact that the oncoming lorry had to brake due to the manoeuvre is irrelevant for the VwGH.

The VwGH saw dangerous conditions and therefore annulled the contested decision.

VwGH Ra 2020/11/0221 (25.01.2022)