Öffentliche Straßen zwischen öffentlicher Zweckbestimmung und Sacheigentum

The legal status of public roads—understood as dualistic and so construed in normative terms—leads to legal misjudgments and legal uncertainty. The author illustrates this by examining the problem areas—the granting of rights of way under § 46 EnWG, the reform of Art. 90 GG and the civil doctrine of components regarding utility lines—as well as the criticism of this understanding of legal status. The prevailing legal view, however, advocates for private-law ownership of public roads, overlaid by public law. Nadja Kretschmer demonstrates that only a purely public-law structure meets the requirements of the multifunctional, public-interest-oriented infrastructure facility known as the “public road,” and proposes this as a reform approach.