Special use permit

Any trader who also wishes to offer his goods and services on a public thoroughfare, i.e., generally in front of his business, requires a special use permit for this purpose. This is a permit which allows the trader or restaurateur to use streets, pavements and other non-privately-owned areas outside his rented business premises for purposes "beyond the scope of public use". Typical examples would be offering goods for sale in front of a shop, a pub terrace, advertising boards or even flower tubs in front of the business premises.

If, on the other hand, an area is used which is privately owned and not intended for public use (e.g., a terrace in a garden or courtyard), then this does not constitute use of a public thoroughfare, and no special use permit is required.

N.B.: If the public thoroughfare is used without first obtaining a special use permit, an administrative penalty and fine may be imposed. Fines of up to EUR10,000 are possible.

The purposes for which a trader requires a special use permit are largely explained in Art. 11 of the Berlin Roads Act (Strassengesetz); much depends on the type of street furniture he wishes to set up on the public thoroughfare. The law defines special use as "any use of the public streets which is beyond the scope of public use". This means that, as a matter of principle, everyone is entitled to use streets and pavements in accordance with the rules of the road and customary practices for public circulation. Anything over and above that is a special use. Special use can even mean installing the most everyday, apparently inoffensive objects such as flower tubs. 

Examples of special use:

Exclusions:

N.B.: The authority will always base its decision about whether or not to issue the special use permit applied for by the trader on the precise location and size of the object to be placed on the public thoroughfare. It is therefore not possible to make a general statement about whether a particular venture by a trader is likely to be approved. The decision is always made by the authorities on a case-by-case basis, weighing up the interests of all the affected parties. That is why it is important for traders to be sure to allow plenty of time when applying for a special use permit.

Where and how do I submit my application?
The special use permit should be applied for from the relevant authority in the city district in which the trader has his/her business/catering establishment and/or where he/she intends making use of the permit. A list of relevant agencies in Berlin can be found in Section 8.

Applications are made in writing; there is not usually a form to complete. The trader must ensure that he provides the following information so that the authority can expedite its decision on whether or not the special use is legitimate:

Some authorities do supply special application forms such as the Wirtschafts- und Ordnungsamt of Charlottenburg-Wilmersdorf via the following link: http://www.berlin.de/ba-charlottenburg-wilmersdorf/org/wirtschaft/vordrucke.html
When do I need to apply?
Applications must always be made before commencing the special use, i.e., before setting up advertising boards, a pub terrace, etc. If you have not submitted your application and had it approved in advance, you may find yourself facing a substantial fine. 
N.B.: You should always submit your application in good time before the start of the ‘outdoor season’, as it may take up to eight weeks to process.

General information
Under Art. 11(2) of the Berlin Roads Act, the permit should be issued if there are no overriding public interests to the contrary. Thus special use permits will be issued in most cases, although the authority is left with scope for discretion. It is always possible for the authority to reject the application after careful consideration, if it is contrary to overriding public interests or would seriously impair the ability of disabled people to enjoy public use of the thoroughfare. This would apply, for instance, if – because of the special use – essential equipment for the conveyance of disabled people was obstructed, or if the type of special use resulted in unacceptable emissions or nuisances (see Section 6. ‘Patio heaters’). 
If the public area to be used is in a conservation area, the consent of the historic monuments authority is also required. The particulars of the special use must be agreed in consultation with this authority.

N.B.: You are not automatically entitled to a permit. There is merely an entitlement to have a balanced appraisal made of the various interests of the parties by the authority.
The trader is absolutely within his rights to appeal against an unfair rejection of his application by raising an objection and/or resorting to administrative proceedings.

For how long is the permit issued?
The permit is usually issued for one year, but may be issued for several years. However, the authority may also make the permit contingent upon certain terms and conditions being met. 

Expenses
The fees for special use depend on the location of the street and the type of use. The details are governed by the Ordinance on Special Use Fees. 

This defines a scale of charges for individual districts and areas of the city, and another list sets out the level of fees for particular types of use, in accordance with this scale. Thus the cost of ‘setting out chairs’ in Kastanienallee in the Prenzlauer Berg district (a Band III location) is EUR27.50 per square metre of table space per month.
The cost is EUR2.50 per square metre per day for trade and other service stands in the city centre (in Band I), e.g., on Potsdamer Platz square or near the Zoo.

However, not every use of the public thoroughfare attracts a charge. For instance, no fee is payable for Christmas lights or decorative items (such as plant tubs). 

If a licensed restaurant wishes to have an outdoor terrace, the restaurateur must first apply for a special use permit. If this is issued, the Business Agency (Wirtschaftsamt) will verify at a second stage of the process whether the planned size of the terrace can be approved under the Berlin Restaurant Ordinance, because serving diners on a terrace automatically increases the overall floor space of the establishment. This may have an impact on the number of toilets required under the Restaurant Ordinance.

No toilets are required, for instance, if the total area of the premises is no more than 50 square metres and there is seating for a maximum of 10 people, but if the premises are larger than 300 square metres, decisions about the number of toilets are made on a case-by-case basis.

Another important point about such terraces is that Berlin’s noise abatement regulations (Lärmschutzverordnung) must be observed which ban any disturbance during normal sleeping hours (10 pm to 6 am).

Patio heaters, which have become a regular fixture on many licensed premises in recent years, are no longer approved in every district. The relevant authority may issue a special use permit on condition that no patio heaters are positioned next to the tables and chairs. This condition and the associated general ban on the use of patio heaters are a result of their CO₂ emissions, which are incompatible with climate protection goals. This is one case where approval would be contrary to the overriding public interest.

If you are engaged in an itinerant trade and wish to offer your wares to customers on the public thoroughfare (e.g., from a vendor’s tray, ice-cream cart or fast-food stand), you will also need a special use permit. An Itinerant Trader's Card alone will not suffice. In this case, applications must be lodged with the city district in which the itinerant trader intends to be based, or where a street vendor will be conducting most of his activities (place of use).

If he intends to operate in several districts, he should notify the first district authority he contacts accordingly; the authority will then obtain the other permits through internal channels and issue them by proxy.

The information provided in Sections 1 – 4 also applies here. In particular, the permit is only likely to be rejected if granting it would be contrary to the overriding public interest. This might be the case, for instance, if it would seriously impair enjoyment of public use or if the type of special use was likely to result in unacceptable emissions or nuisances.

N.B.: Special use permits will be issued for the central area of Berlin between Victory Column (Siegessäule) and Alexanderplatz and for Breitscheidplatz, unless the purpose for which they are issued is in stark contrast to concerns associated with the safeguard of the cultural and architectural heritage of these areas, which are in particular need of special protection. Detailed rules have been laid down in the implementing provisions of the Berlin Roads Act.

More information about the Itinerant Trader's Card is available in this article.