Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26245/95

by P. N.

against Switzerland

The European Commission of Human Rights sitting in private on

11 September 1997, the following members being present:

Mrs. G.H. THUNE, Acting President

Mr. S. TRECHSEL

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 August 1994 by

P. N. against Switzerland and registered on 19 January 1995 under file

No. 26245/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 December 1996 and the observations in reply submitted by the

applicant on 3 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1957, is a trustee

administrator (Treuhänder).

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

The applicant lives, and owns real property, in the Dornach

community approximately 12 km south of the airport Basel-Mulhouse.

Following the creation of a new flight path over the Basel

agglomeration, the applicant and his wife in 1991 filed a complaint,

in respect of his property at Dornach, with the Federal Office for

Civil Aviation (Bundesamt für Zivilluftfahrt), requesting in

particular:

1. the complete prohibition of direct take offs (Direktstarts)

over Basel and its agglomeration;

2. the complete prohibition of flights at night, in particular

of nightly take offs over densely populated areas;

3. the publication of night flight statistics and of the

spread of noise (Lärmkataster) in the security zones;

4. prohibitions or limitations of take offs in case of

transgression of the limits of the Clean Air Ordinance

(Luftreinhalteverordnung);

5. the prohibition of domestic flights;

6. no authorisation for additional take offs;

7. the prohibition of private and entertainment flights over

densely populated areas, in particular on Sundays and

holidays;

8. the institution of an environmental expert commission to

survey and control the Clean Air Ordinance.

The Federal Office replied to the applicant by letter of 26 April

1991, explaining the legal situation of Basel-Mulhouse airport.

The applicant and his wife thereupon filed an objection

(Einsprache). On 21 June 1991 the Federal Office formally decided not

to enter into the applicant's complaints. In its decision, the Federal

Office dealt with each of the applicant's requests. In respect of

request no. 1 it stated:

"The applicants do not have their residence ... in the

agglomeration of Basel which is directly affected by such

flights; rather their residence is in Dornach which is

approximately 12 km south of Basel-Mulhouse airport. At such a

distance from the place of take off, the aeroplanes which have

been authorised to use the new flight path will have already

reached altitudes of more than 1,000 m above the ground. Flights

in this altitude are nothing extraordinary. Thus, the applicants

lack the status of being particular victims of the so-called

direct take offs over the town of Basel. ... The request is

therefore inadmissible."

"Die Gesuchsteller haben jedoch ihren Wohnsitz nicht in der

unmittelbar von solchen Überflügen betroffenen Agglomeration von

Basel, sondern im ungefähr 12 Kilometer südlich vom Flughafen

Basel-Mülhausen entfernten Dornach. In dieser Distanz vom

Startort haben die für die Benützung der neuen Flugroute

zugelassenen Flugzeuge bereits Höhen von mehr als tausend Metern

über Grund erreicht. Ein Überflug in dieser Höhe stellt nichts

aussergewöhnliches dar; mithin mangelt es den Gesuchstellern an

einer besonderen Betroffenheit durch die sogenannten Direktstarts

über die Stadt Basel. ... Auf das Begehren ist nicht

einzutreten."

In respect of request no. 2, the Federal Office referred to the

above considerations. In respect of requests nos. 3 and 8, it found

that legislation would be called for, and in respect of request no. 4

the applicant and his wife should have approached the cantonal

authorities. In respect of requests nos. 5 and 7, the Federal Office

found that the applicant and his wife lacked the status of victims

(besondere Betroffenheit) as they were not more affected than anybody

else in Switzerland. Request no. 6 could not be made the object of an

order.

The applicant's appeal (Beschwerde) was declared inadmissible on

2 September 1992 by the Federal Department for Transport and Energy

(Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement). The

decision stated that an administrative law appeal (Verwaltungsgerichts-

beschwerde) could be filed with the Federal Court (Bundesgericht).

In its decision the Federal Department dealt with the applicant's

individual points. In respect of his request no. 1, the Federal

Department explained the legal situation of the Basel-Mulhouse airport

(see below, Relevant international and domestic law and practice). It

considered that the direct take offs, of which the applicant

complained, had been decided by the French authorities and therefore

lay outside the jurisdiction of the Swiss authorities. Before

determining the new flight paths, however, the French authorities had

consulted the Swiss authorities.

In respect of the authorisation of additional take offs and the

complete prohibition of flights at night, of domestic flights and of

private and entertainment flights (requests nos. 2, 5, 6 and 7), the

Federal Department found that this would require general-abstract

legislation for which the Department was not competent. The

publication of night flight statistics and the institution of expert

commission (requests nos. 3 and 8), on the other hand, could not be

made the object of an order. Similarly, request no. 4 fell into the

jurisdiction of the Cantons.

The applicant filed an administrative law appeal with the Federal

Court. In its decision of 14 April 1994, the Court found that doubts

had arisen as to its jurisdiction according to S. 99 (e) of the Federal

Judiciary Act (Organisationsgesetz) and that it had conducted informal

consultations with the appeals service of the Federal Council

(Abteilung für Beschwerden an den Bundesrat). As a result, the Court

considered that it would refer the applicant's case to the Federal

Council (i.e. the Swiss Government) which was the competent body.

On 9 November 1994 the Federal Council dismissed the applicant's

appeal.

In its decision the Federal Council recalled that in 1991 the

Swiss Government had agreed to the new flight path on condition that

it would only be used by certain aircraft, complying with the strictest

noise nuisance levels.

The decision then mainly confirmed the grounds given by the

Federal Office for Civil Aviation of 21 June 1991 and the Federal

Department for Transport and Energy in its decision of 2 September

1992. However, in particular in respect of the applicant's request

no. 1 the Federal Council found that the applicant could not claim a

practical interest therein as the night take offs in Basel occurred in

a northerly direction not affecting Swiss territory.

On the whole the Federal Council found it unnecessary to examine

whether the prohibitions invoked by the applicant were compatible with

the Swiss-French Treaty concerning Basel-Mulhouse airport. The Federal

Council's decision continued:

"If the Federal Office for Civil Aviation imposed a prohibition

of direct take offs over Basel under Swiss environmental law,

this might lead the French authorities to invoke the arbitration

clause stated in the Treaty. If in such an arbitration a

prohibition of direct take offs over Basel were to be declared

inadmissible, this would lead in view of the primacy of

international law ... in this area to the non-application of

Swiss environmental law; or, on the other hand, Switzerland would

have to give notice of the Treaty, which the Federal Council

considers out of question in view of the importance of the Basel-

Mulhouse airport."

"Würde das Bundesamt für Zivilluftfahrt - gestützt auf das

schweizerische Umweltrecht - ein Verbot von Direktstarts über

Basel erlassen, so könnte dies zur Anrufung der im Staatsvertrag

enthaltenen Schiedsklausel durch die französischen Behörden

führen. Würde in einem solchen Schiedsverfahren ein Verbot von

Direktstarts über Basel als unzulässig erklärt, so führte dies

angesichts des Primats des Völkerrechts ... in diesem Bereich zur

Nichtanwendung des schweizerischen Umweltrechts beziehungsweise

müsste die Schweiz den Vertrag kündigen, was indes für den

Bundesrat angesichts der Bedeutung des Flughafens Basel-Mülhausen

ausser Betracht fiele."

The decision concluded:

"The question can remain open whether the quality of victim of

the applicant - solely in respect of the legal requests to be

decided here, not in respect of civil law claims - could also

have been based on the mere fact of the real property being

situated in the vicinity of the airport, since the appeal must

already be dismissed for other reasons."

"Die Frage, ob die Legitimation des Beschwerdeführers sich -

allein in bezug auf die hier zu beurteilenden Rechtsbegehren,

nicht aber hinsichtlich zivilrechtlicher Ansprüche - allein auch

auf das blosse Wohnungseigentum in der Nähe des Flughafens hätte

stützen lassen, kann hier offenbleiben, da die Beschwerde bereits

aus anderen Gründen abzuweisen ist."

B. Relevant international and domestic law and practice

Basel-Mulhouse airport which is situated on French territory is

governed by the Swiss-French Treaty of 4 July 1949 concerning its

construction and operation. The airport's governing body is the

Airport Administration in which both States (on the Swiss side also the

Cantons of Basel-Stadt and Basel-Landschaft) are represented.

According to S. 4 of the Treaty, the flight control is secured

by the French Government which, according to SS. 6 and 14 of the

Treaty, will apply French law. Insofar as the flight control concerns

technical-operational aspects, it falls outside the jurisdiction of the

Airport Administration.

In application of S. 28 of the 1944 Chicago Convention on

International Civil Aviation, Switzerland has delegated part of her air

space over Basel to France in order to permit an efficient flight

control. In this air space the French authorities are authorised to

determine the flight routes for take offs and landings.

Swiss environmental law remains applicable on Swiss territory in

the vicinity of Basel-Mulhouse airport, though it is subject to the

Swiss-French Treaty of 1949.

According to S. 96 of the Federal Judiciary Act

(Organisationsgesetz) an administrative law appeal (Verwaltungs-

gerichtsbeschwerde) can be filed against decisions of Federal

authorities relying on Federal law. However, S. 99 (e) of the Act

excludes such an appeal if it is directed against permits for the

operation of facilities or installations of a technical nature.

S. 679 of the Swiss Civil Code (Zivilgesetzbuch) states as

regards relations between private neighbours that "(w)hoever is damaged

or threatened with damage by a proprietor who abuses his property right

can file an action in order to have the damage set aside or to obtain

protection against imminent damage and to obtain compensation".

S. 684 para. 2 of the Swiss Civil Code prohibits, inter alia,

interferences by means of smells, noise or vibrations which are

damaging and unjustified according to the situation and nature of the

real properties.

The Federal Act on Expropriation (Enteignungsgesetz) envisages

in S. 1 the right to expropriation in the interest of the Confederation

or in favour of another public interest. S. 5 of the Federal

Expropriation Act has, for instance, been invoked by neighbours to busy

national roads who feared hazardous exhaust substances (cf. ATF 118 Ib

205). According to the Federal Court's case-law, compensation will be

granted if the nuisance was not foreseeable; if it specially concerns

the proprietor; and if it results in serious damage (cf. loc. cit.

205). The foreseeability will depend inter alia on whether the

neighbour, at the time when he obtained the property, could reasonably

be aware of the forthcoming nuisance (cf. ATF 111 Ib 234).

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that he has been denied access to court in respect of his complaints

about noise nuisance emanating from Basel-Mulhouse airport. He

complains that the Federal Court transferred his administrative law

appeal to the Federal Council. The authorities dealing with his case

were not independent and impartial in that they were all bound into the

administration.

The applicant submits that he is invoking a "civil right" within

the meaning of Article 6 in that Swiss law determines a right to

property and also defence rights (Abwehrrechte). These rights no

longer apply in the case of the Basel-Mulhouse airport. The individual

is left with damage claims. He is thus obliged to tolerate the serious

interference of aeroplanes flying over his real property at low

altitudes. These flights entail considerable noise nuisance,

particularly on weekends. As a result, this situation contradicts the

basic principles of property.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 August 1994 and registered

on 19 January 1995.

On 1 July 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

20 December 1996. The applicant replied on 3 April 1997, after an

extension of the time-limit fixed for that purpose.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he has been denied access to court in respect of his

complaints about noise nuisance emanating from Basel-Mulhouse airport.

He complains that the Federal Court transferred his administrative law

appeal to the Federal Council. The authorities dealing with his case

were not independent and impartial in that they were all bound into the

administration.

Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair ... hearing ... by (a) tribunal

..."

The Government submit that the applicant cannot claim to be a

victim within the meaning of Article 25 (Art. 25) of the Convention.

Reference is made to the Commission's case-law according to which a

link must be established between the applicant and any prejudice which

he suffered in view of the alleged violation (see No. 28204/95, Dec.

4.12.95, Tauira v. France, D.R. 83-A, p. 112). In the present case,

it transpires from the various decisions of the Swiss authorities that

the applicant has not shown that he was personally affected in his

property rights following the creation of a new flight path at Basel-

Mulhouse airport. Thus, it was found that the applicant lived 12 km

away from the airport, and the aeroplanes flew at approximately 1,000

m above his property. In fact, the new system has not aggravated the

noise nuisance at all for the persons concerned, and the applicant does

not even live in the noise area C where in view of the noise the

construction of new buildings is limited. The present case also

differs from other cases before the Commission concerning, for

instance, the airports at Heathrow and Gatwick in the United Kingdom.

The Government note that the applicant has not attempted to

invalidate the findings of the Swiss authorities according to which he

lacked a practical interest in his complaint. He also failed to

complain when the new flight path was being tested. He has not

produced any document according to which he was unduly suffering from

noise nuisance, or showing that the value of his property was unduly

diminished. An airport in the neighbourhood may well increase the

value of property.

The Government submit that according to Article 1 (Art. 1) of the

Convention the Commission is not competent ratione personae to examine

the complaint. The situation of Basel-Mulhouse differs from that of

other airports situated in Switzerland. Persons living in the vicinity

of Swiss airports enjoy access to a court which may, if necessary,

order the noise nuisance to cease. In the case of Basel-Mulhouse

airport, issues of air navigation fall entirely under French

jurisdiction according to S. 4 of the relevant 1949 Swiss-French

Treaty. Any opinion given by the Swiss authorities on issues of noise

nuisance in the present case was purely of a consultative nature.

The Government contend that Article 6 para. 1 (Art. 6-1) of the

Convention does not apply in the present case as the applicant cannot

claim a "right" to end the noise nuisance within the meaning of this

provision. This "right" must be determined according to the rights

established in the Swiss legal order. It is true that a neighbour can

invoke his property rights according to S. 679 of the Swiss Civil Code.

Airport neighbours have the possibility to institute expropriation

proceedings in respect of their property. In the case of Basel-

Mulhouse airport, the Swiss judge could only apply Swiss law to the

extent that Switzerland had undertaken international obligations which

supersede domestic law. In the present case, the Swiss judge would

breach international law, in particular the 1949 Swiss French-Treaty;

he would be deciding on a question falling exclusively under French

jurisdiction; and his decision would not affect the French authorities.

By concluding this treaty, the Swiss authorities deprived the property

owners in the vicinity of Basel-Mulhouse airport of their right to

institute proceedings according to S. 679 of the Civil Code.

The Government contend that, in any event, the applicant has the

possibility of bringing his case before a court. The latter will have

full jurisdiction to determine, in particular, the formal expropriation

of the applicant's rights as a neighbour and, if the conditions are

met, to award damages. The court can also decide if the applicant's

use of property has been restricted, so as to constitute material

expropriation, and award damages.

The applicant submits that an airport's effects on human beings,

nature and property cannot be unlimited merely because it is pursuing

public interests. The applicant claims that he is certainly able to

distinguish between proceedings whereby he would obtain damages, and

proceedings whereby he requests cessation of a nuisance.

The applicant admits that, for reasons unknown to him, for the

past 18 months noise nuisance over his property has been reduced during

day time. Basel-Mulhouse has always been conceived as a regional

airport with fewer passengers. However, it is important to stop

unlawful direct flights in order to prevent the arbitrary use of Swiss

air space. The applicant is directly and vehemently affected by the

noise as a proprietor and as a lessor. A confirmation of his status

as a victim can be seen in the fact that the Swiss authorities took

formal decisions in his case.

The applicant submits that he is also a victim because he has two

other properties situated within 2,3 and 3,1 km from the airport. The

Swiss authorities failed ex officio to inquire about these houses. He

further contends that there is an increased danger of plane crashes on

his properties. The applicant questions whether only serious noise

levels will suffice for him to qualify as a victim. Is it not enough

that the noise causes considerable damage to health. Moreover,

occasionally, there are also night flights.

The applicant contends that he is exercising a right which

protects private property but which, unfortunately, cannot be examined

by a civil judge. A judge who would examine the possible expropriation

of real property does not suffice, as he would not be competent to

examine the special legislation at issue. In fact, a proprietor would

be left with nothing else than financial compensation. The rights

under S. 679 of the Swiss Civil Code apply to any person causing noise

nuisance. What counts is where the right is being breached, and in the

applicant's case, this is in Switzerland. Irrelevant in the present

case is the fact that Basel-Mulhouse airport is in France and not in

Switzerland. Decisions on the flight path fall exclusively to the

Swiss authorities which must apply all legal provisions protecting

human beings, the environment, and property.

In the applicant's view, the Government's submissions according

to which Switzerland has no jurisdiction in the present case in view

of S. 4 of the Swiss-French Treaty, are far-fetched. It cannot be

possible that with this delegation to the French authorities the Swiss

authorities also delegated all rights protecting human beings, the

environment and property. The applicant submits that he has a "right"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

He relies in particular on the respective laws of air legislation

combating noise nuisance. These laws contain obligations, for

instance, to publish the flight times; not to grant authorisations for

airports if they do not meet security and environmental requirements;

not to build hospitals in any noise area; to protect residential areas;

and to adjust the flight altitudes.

The Commission has first examined whether the applicant's right

was "civil" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. The Commission observes that the applicant's claim was

related to the use of his property as proprietor. The right to

property is undoubtedly a "civil right" within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention. Consequently, the entitlement

in issue was of a "civil" nature (see, mutatis mutandis, Eur. Court HR,

Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p.

40, para. 27).

The Commission must next ascertain whether there has been a

dispute (contestation) over a "right" which can be said, at least on

arguable grounds, to be recognised under domestic law. The dispute

must be genuine and serious; it may relate not only to the actual

existence of a right but also to its scope and the manner of its

exercise; and finally, the result of the proceedings must be directly

decisive for the right in question (see Eur. Court HR, Zander v. Sweden

judgment, loc. cit., p. 38, para. 22).

In the present case the applicant's main complaint is the noise

nuisance which he allegedly suffers as proprietor in the Dornach

community, some 12 km from the airport, from the various aeroplane

movements at Basel-Mulhouse airport. While the applicant now submits

that he also owns property in the more immediate vicinity of the

airport, the Commission notes that the proceedings before the domestic

authorities concerned his property at Dornach.

In this respect, the Commission notes the decision of

26 April 1991 of the Federal Office for Civil Aviation according to

which the applicant could not be considered a victim since aeroplanes

flying over Dornach had reached an altitude of more than 1,000 m which

was not extraordinary. The Federal Council, in its decision of

9 November 1994, found that the applicant could not claim a practical

interest as the night take offs in Basel occurred in a northerly

direction not affecting Swiss territory.

In the Commission's opinion, while the air traffic noise may well

have been noticeable for the applicant, he has not substantiated that

the noise nuisance reached a level which would raise an issue under

Swiss law and therefore would imply a genuine and serious dispute in

respect of the applicant's property rights within the meaning of the

Convention organs' case-law (see Eur. Court HR, Zander v. Sweden

judgment, loc. cit.). The Commission finds a confirmation for this

conclusion in the applicant's submissions according to which in the

past 18 months the noise nuisance has been reduced.

It is true that before the domestic authorities the applicant

also raised various other complaints which were not directly related

to the air movements of Basel-Mulhouse airport, i.e. the publication

of night flight statistics and the institution of an environmental

expert commission. However, in the Commission's opinion, these issues

did not directly relate to the exercise of the applicant's property

right (see Eur. Court HR, Zander v. Sweden judgment, loc. cit.).

The proceedings before the Swiss authorities did not, therefore,

involve "the determination" of the applicant's "rights" for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention was not applicable

in the present case, and the application is therefore incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER G.H. THUNE

Secretary Acting President

to the Commission of the Commission

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P.N. v. SWITZERLAND

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