Introduction

By way of four decisions, the Second Chamber of the First Senate of the Federal Constitutional Court (located in Karlsruhe, Germany) rejected four constitutional complaints for adjudication against the Federal Administrative Court (located in Leipzig, Germany) decision concerning Berlin-Schoenefeld Airport.

Following a deviation from the originally envisaged flight routes, the plaintiffs sought an annulment of the original plan approval order confirmed by the Federal Administrative Court judgment on March 16 2017. According to the decisions, the difference between the planning procedures for the expansion of Berlin-Schoenefeld Airport and the determination of the flight routes raised no constitutional concerns.

Facts

An August 13 2004 plan approval order foresaw the expansion of Berlin-Schoenefeld (a commercial airport) into Berlin-Brandenburg (an international airport) with two parallel runways. The authority responsible for the plan approval set out that the establishment of an independent parallel system of runways was essential to the airport expansion and that the flight routes were fixed in a separate procedure.

The plaintiffs were owners of residential properties which, according to the proposed flight routes in the plan approval order, were located outside the zones eligible for protection and compensation. Following the introduction of new planned flight routes in 2010, the properties were now beneath the proposed flight path.

In the proceedings (1 BvR 1026/13), the plaintiffs unsuccessfully applied for the withdrawal of the plan approval order and filed a claim with the Federal Administrative Court. The court refused the claim, stating that the plan approval order contained no legal errors which could have led to a withdrawal or a corrected discretionary decision by the authority.

Other property owners unsuccessfully applied for a restitution action to achieve a suspension of the plan approval order and previous judgments which confirmed the same. Further, the plaintiffs sought a reinstatement of the time limit for bringing an action following an unsuccessful claim against the plan approval order.

Decision

According to the Federal Constitutional Court, the difference between the planning of the airport location and the determination of the flight procedure did not violate the plaintiffs' property rights or guarantee of effective legal protection. The plan approval order and rules regarding flight procedures can be separately and juristically controlled by the affected person without causing unreasonable legal disadvantages.

The Federal Administrative Court observed procedural irregularities in the plan approval order between the publically displayed planning documents and the actual space investigated pursuant to an environmental impact assessment. With respect to the consideration concept underlying the regional development plan and the admission of the plan approval order, the court noted that neither the location choice nor the runway configuration, even without the procedural mistakes, would have been different.

It is of no legal importance whether the Federal Administrative Court confirmed that the publically displayed planning documents could raise the objection that despite the planning expectations, the flight routes proposed were unlikely, even from the outset. Such an argument would not have helped the complaint, as it was clear that the plaintiffs would not succeed in a re-referral to the original administrative court.

The court's determinations regarding the material legitimacy of the plan approval order received no objection with respect to the explanations concerning location choice, but neither were the explanations substantially tackled by the plaintiffs.

The constitutional complaints against the rejection of the restitution actions were also unsuccessful. The assumption that newly provided documents would not lead to a positive decision raised no constitutional concerns because the rough planning choice regarding location and the admission of the project at the Schoenefeld locations were reasonably justified.

Comment

The Federal Constitutional Court decision is a further milestone in the realisation of the new Berlin-Brandenburg Airport and reduces the hopes of the airport's opponents to almost nil. Nevertheless, the court reasonably considered the legal interests of the affected property owners and the public in relation to the airport as one of Germany's largest infrastructure projects.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Oliver Nissen at Arnecke Sibeth by telephone (+49 30 814 59 13 00) or email (onissen@arneckesibeth.com). The Arnecke Sibeth website can be accessed at www.arneckesibeth.com.