Is it the end of the line for billboard advertising?
The Spatial Planning Act (“ZUreP-3”), which has been in effect since 1 June 2022, introduced several new provisions. We have already written about some of them, in particular about the problematic nature of the provisions of the ZUreP-3 on the Administrative Court’s jurisdiction to review spatial planning implementing acts (for more on this, see the article Judicial protection against spatial planning implementing acts).
In this article, we will touch on a long-awaited change in the field of advertising, introduced due to the extreme vagueness of current legislation and the ensuing flood of advertising structures. From now on, there will be tighter restrictions around the installation of billboards, signage and other advertising structures, devices or objects. Outside residential areas, their installation will be prohibited in all areas classified as agricultural, forest, water, and other land – i.e. on non-buildable land.
Although the ZUreP-3 has been in effect since 1 June this year, this advertising ban will only apply from 1 January 2024. This transitional period gives municipalities time to bring their spatial planning acts into line with the residential area definition provisions of ZUreP-3. This means municipalities will have to transpose the advertising zone provisions of ZUreP-3 into their spatial planning acts to ensure regulation of the ban on advertising outside residential areas at the municipal level. The delay is also intended to allow time to settle civil law relations, and avoid interference with existing legal relations and causing damage. This is particularly important given the lease agreements for the relevant land for installing the advertising media.
Nevertheless, we will still see advertising media even outside residential areas and on non-buildable land. The ZUreP-3 does not provide a basis for the removal of advertising media/structures; rather, it only prohibits the installation of new ones. Advertising structures, devices and other advertising media installed pursuant to the regulations applicable before this ban takes effect may remain in place.
Violations of the restriction on advertising outside residential areas will be sanctioned as a minor offence. Under ZUreP-3, these minor offences carry fines of up to EUR 15,000 where a legal entity commits the offence and up to EUR 30,000 where the legal entity is a medium-sized or large company. The competent authority may sanction a person who has installed a permanent or temporary advertising structure, device or item. However, under the general rules on complicity, a landowner may also be liable if he/she has permitted the advertiser to install the advertising structure on, for example, agricultural land, thereby making a decisive contribution to the commission of the offence.
Despite the new regime introduced by the ZUrep-3, the question remains as to what implementation will look like in practice. The first problem, already mentioned above, i.e. is that certain existing advertising structures, devices and items may remain in place. The second problem is that municipalities could broaden the definition of residential areas, circumventing the restriction. Advertising may also be in the interest of local communities as it provides a source of income (e.g. when the use of facilities is subject to the building land utilisation fee, i.e. NUSZ). An additional problem around the advertising restriction is the fragmentation of the legislation governing advertising structures, which spans several laws and regulations instead of one umbrella law. Such fragmentation causes inevitable confusion in the legal order.
For example, the new Roads Act (“ZCes-2”), which enters into force on 29 October 2022, has recently legislated for advertising along national roads. The reason for adopting the new regulation is to ensure greater road safety. ZCes-2 provides, among other things, that permissible advertising structures along national roads include advertising towers, columns, billboards, advertising panels, brackets and poles for overhead banners and flags, light showcases, and other fixed and movable dedicated supports. There is a general ban on the installation and use of advertising structures next to a national road outside residential areas, but there are certain exceptions. The law also prohibits the installation and use of electronic displays close to a national road. Back-lit light showcases with an advertising area of up to and including 2.1 m2 (in the case of single-sided advertising) or 4.2 m2 (in the case of double-sided advertising) may be installed and used along national roads in residential areas but only roadside. The national road manager shall grant consent for the installation of the above-mentioned structures based on an advertising structure installation plan, provided that the municipality’s spatial act permits advertising in that area. Violations of these provisions also carry fines.
In light of the new developments in the area of advertising and the fines for infringements, you are advised to take extra care when concluding or renewing lease agreements and not to overlook the new restrictions.
Author: Živa Korenjak, Legal Assistant
