A court of Alicante considers that an electric scooter is considered a vehicle and therefore it can circulate freely along the road until there is a norm that prohibits it. This is stated by the titular magistrate of the Court of Administrative Litigation number 3 of Alicante in a sentence where he estimates the resource of the driver of a scooter fined with 60 euros for driving on the road and annuls the sanction imposed by the Local Police and then confirmed by the Alicante City Council.
The appeal against the penalty for driving an electric scooter was filed by the driver himself, lawyer Rafael Moreno Ubric, of the firm INUR Abogados de Alicante. The sentence, which is not appealable, is a pioneer and opens the door for all types of scooters to circulate on the road while the municipal ordinance does not enter into force.
The driver was fined on April 8, 2019 while driving on the road of a street in Alicante. A patrol of the Local Police, who was traveling on an electric bicycle, put a fine of 60 euros for violation of article 121 of the General Traffic Regulation that prohibits «riding with a skateboard, skates or similar devices on roads not intended for such use”.
Initially, the affected party appealed the fine to the City Council but the allegations were dismissed, hence the driver filed an appeal through the administrative dispute. Rafael Moreno, lawyer specializing in Real Estate Law and Urban Planning, argues that the fine was not appealed for saving the 60 euros of the penalty, but for the feeling of arbitrariness that I considered to be suffering, because “there was the circumstance that the policemen who fined me circulated in a vehicle of similar characteristics (electric bicycle “.
The magistrate who annuls the sanction recalls in the sentence that the General Directorate of Traffic treats electric scooters “as vehicles and places them in the area of the road, provided they are expressly authorized by the local authority.” In the case of Alicante, there is nothing agreed yet and being in the process of approval “makes it impossible to invoke in court.”
The court considers Article 121 of the General Traffic Regulation is not applicable on the prohibition of driving on the road in non-motorized devices (skateboards, skates or similar devices). The judge warns in the ruling that “in sanctioning matters it is very risky that the Administration intends to make analog extensions”. He adds that electric scooters are not a skateboard or skates, while the mention of “similar devices must be received with great caution,” notes the ruling before stating that they are a new vehicle and as such are not contemplated by law.
“If the legislator wishes to include them, he must expressly mention them and establish the regulation he deems appropriate,” the ruling adds. In disciplinary matters, the principle of legality that affects all public authorities “clearly states” that what is not prohibited is permitted.
The ruling clarifies that the “gadgets” referred to in article 121 of the General Traffic Regulations –skateboard or skates– they are “non-motorized” elements and makes it clear that “it is clear that the consideration that an electric scooter must have is clearly that of a vehicle, being able (until it is prohibited) to drive along the road”. The judicial decision emphasizes that “the dangerous thing would be to allow them to circulate on the sidewalks or through the pedestrian areas, given the speed they can reach.”
In the same ruling, the magistrate criticizes the Alicante City Council for using a complaint bulletin on the back of which he offers as information to the denounced citizen a procedural regulation (RDL 339/1990, of March 2) that “had been repealed for more than three years.” The judge indicates that “it seems like a joke in bad taste” and points out that it is “inadmissible behavior in an Administration that should act with a minimum of objectivity.”
Although it did not appear in the appeal, the magistrate also reminds the City Council that it must be very careful with the use of abbreviations in the complaints when it refers to a regulation and indicates that its use has been unauthorized by jurisprudence “because the principle itself is contrary defense”.