FIFTH SECTION

DECISION

Application no . 25330/10 Frank ECKENBRECHT and Heinz RUHMER against Germany

The European Court of Human Rights (Fifth Section), sitting on 10 June 2014

as a Committee composed of:

Boštjan M. Zupančič, President, Angelika Nußberger, Helena Jäderblom, judges,

and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 3 May 2010 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Frank Eckenbrecht and Mr Heinz Ruhmer , are German nationals, who were born in 1956 and 1950. They were represented before the Court by Mr W. Günther , a lawyer practising in Leipzig .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The applicants own and live in residential premises in Rackwitz and in Leipzig/G ö bschelwitz in close vicinity of Leipzig/Halle airport.

4. The original flight authorisation for the airport dating from 1990 did not restrict night flights between 10.00 pm and 6.00 am. In the year 2003, the aircraft noise pollution for their respective residential areas was determined as follows: in Rackwitz where Mr Eckenbrecht lives the continuous-noise-pressure level at night ( n ä chtlicher Dauerschallpegel ) was found to be 43.7 dB(A). 3.5 sound events ( Schallereignisse ) exceeding 68 dB(A) and 0.6 sound events above 75 dB(A) had to be expected. In G ö bschelwitz where Mr Ruhmer lives the continuous-noise-pressure level at night was found to be at 29.7 dB(A). There were practically no sound events above 68 dB(A) and none at all above 75 dB(A).

1. The plan approval decision regarding the expansion of the Leipzig /Halle airport

5. The Leipzig regional council ( Regierungspr ä sidium , hereafter: the planning authority) opened formal planning proceedings for expansion and reconstruction of the Leipzig/Halle airport, a limited company of private law whose main shareholder was the Land Freistaat Sachsen . In the course of administrative proceedings all plan documents with explanations and expert reports were made public in the municipalities in the vicinity of the airport. Some residents including the applicants raised objections to the plans and asked for a prohibition of night flights.

6. These requests were dismissed by the planning authority after a public hearing.

7. On 4 November 2004 the planning authority approved a plan for expansion of the airport in order to make it a hub for air freight, particularly for express freight. It was expected and established by expert reports that the general demand for international air freight would increase in the future and that expanding the airport would bring economic advantages for the region as several freight operators had already expressed interest to use the expanded airport. However, this implied a substantial increase of night-time flights, as freight carriers used the night in order to be able to deliver the (express) freight on the day after dispatch. Accordingly, the plan approval decision ( Planfeststellungsbeschluss ) forecast an increase of noise, in particular at night. The continuous-noise-pressure level at night was forecast to be 54.7 dB(A) in Rackwitz and 51.2 dB(A) in G ö bschelwitz. As regards maximum sound events, a number of 35.8 exceeding 68 dB(A) and 7.9 exceeding 75 dB(A) per night were forecast for Rackwitz. For G ö bschelwitz, the respective numbers were 20.3 sound events above 68 dB(A) and 1.2 above 75 dB(A).

8. The approval decision specif ied protection targets , requ ir ing that noise protection must be sufficient to prevent health hazards , disturbances of communication and su bstantial noise annoyance in the residential areas. Critical levels of noise should be as low as to prevent sleeping disturbances and health hazards, and should ensure that resident s could fall asleep again at night after being woken up. The plan , as approved, defined areas where due to the expected noise at night protection measures were needed as well as an area where the residents were entitled to transfer their property at market value to the airport company . Th e company had to provi de for passive noise protection of the residents at its own expense. Additionally , the airport was required to pay compensation where the use of outdoor residential areas was impaired.

9. Within the specific protection area where both applicants lived the airport was obliged to provide for passive noise protection of bedrooms. The protection had to ensure that on statistical average, there should be less than one disturbance of sleep per night and a maximum interior sound level of 65 dB(A) should be respected. Where this could only be realized by keeping the windows closed, additional ventilation equipment was to be installed upon request. As regards ground level noise from the airport within the night-time protection area, noise protection had to be provided wherever a continuous-noise-pressure level of 45 dB(A) or more was reached, thus ensuring a maximum indoor noise level of 30dB(A).

2. Court p roceedings regarding the 2004 plan approval decision

10. In January 2005 the applicants lodged an action against the approval decision with the Federal Administrative Court . They asserted that the decision had not been sufficiently reasoned and the balancing of interests had been inadequate because the transportation system already in existence was sufficient for the economic needs as forecast. They also asserted that night time flights should at least be restricted and that the concept of passive noise protection was inadequate.

11. On 9 November 2006 the Federal Administrative Court partly upheld the plan approval decision. Although the approach used by the planning authority in order to determine the necessary level of noise protection had been new, it was based on extensive and correct expertise and therefore was state-of-the-art. As far as the balancing of interests was concerned, the court held that the planning authority had correctly assessed the public interest in transportation particularly for (express) freight transport, and, as a consequence, in the economic development of the region. These interests, the court held, were in principle vital enough to outweigh the conflicting interest of the local residents in maintaining the status quo .

12. However, the Federal Administrative Court partly quashed the approval decision insofar as the night flights were regulated: the balancing of interests was flawed insofar as the regional authorities had not considered restricting night flights for ordinary freight or passenger flights, although the need for expeditious transportation was less pressing for these. This was particularly important since the local residents already suffered from night disturbances due to express freight. Their interest to be spared additional night flights therefore should have been taken into consideration. The court found it not sufficient to justify the unrestricted passenger and cargo flights with the generous provision of passive noise protection. The relevant domestic law, Section 29b § 1 2 of the Air Traffic Act (see below under Relevant domestic law) did not (only) aim at protecting people ’ s sleep, but also night-time peace ( Nachtruhe ). This implied that nights and days should be distinguishable by noise levels and that, in principle, the night levels should allow people to rest. The insufficient balancing of interests, however, was not so severe as to set aside the complete plan approval decision. Instead, regional authorities were obliged to decide again on whether flights other than those for the transportation of express freight should be restricted during the night time, and the approval decision was set aside only insofar as it contravened this obligation.

13. The applicants did not lodge a constitutional complaint against the judgment.

3. The supplementary approval decision and its judicial review

( a ) P roceedings before the planning authority

14. In 2006 the planning authority set up proceedings for a supplementary plan approval decision. In the course of the administrative proceedings the public were again invited to share their view and objections to the planning. The authorities did not order new expert reports on noise pollution.

15. On 27 June 2007, night time flights were regulated anew and restricted as follows:

No restrictions for passenger take-offs and landings between 5.30 am and 11.30 pm; between 11.30 and midnight as well as between 5.00 and 5.30 am only delayed or premature passenger flights were allowed.

Freight flights as well as military flights in fulfilment of an international obligation were allowed throughout the night.

Additionally, the airport was obliged to monitor the actual volume of flights, the respective routes and the noise level. The authorities reserved the right to further amend the provisions on night time protection on the basis of these findings. The planning authority stated that the obligatory passive noise protection level applicable for this airport was already higher than stipulated by the relevant domestic provisions. Referring to a newly commissioned expert report on the development of air freight volume as well as on the necessity of take-offs and landings of late night and early morning passenger flights the authority concluded that the report justified the prognosis of substantial positive employment effects in the region. A separation of express and normal air freight was not possible and uneconomical as express and normal air freight were often shipped together. However, the airport operator had to watch over the relation of express and to normal freight shipped at night and had to intervene if express freight was not by far the predominant cargo transported at night. Lastly, it held that there were good reasons to allow passenger flights during late evenings and early mornings as otherwise the region of Germany would not be reachable from major European hubs by connecting flights.

(b) P roceedings before the Federal Administrative Court

16. On 31 July 2007, the applicants applied for judicial review against the supplementary approval decision with the Federal Administrative Court. Their interests, they said, had once again not been sufficiently taken into account, and there were no plausible reasons for allowing passenger flights during the above-mentioned periods. Also, they asserted that the modified approval decision contradicted the court ’ s first decision insofar as it did not distinguish between normal and express air freight.

17. On 24 July 2008, the Federal Administrative Court dismissed the claims. It held that there were valid reasons for allowing passenger flights in the time between 10.00 and 11.30 pm and 5.30 and 6.00 am because these flights served as feeders that connected the airport with domestic and international hubs for passenger flights, and at present, train service was not an alternative. As regards charter flights, it held that the decision of the regional authorities to follow the carriers ’ submission that these times would be required in order to allow for efficient deployment of the aircraft had been reasonable and was supported by a n expert report . The applicants ’ submission s that different plans for deployment were feasible were unsubstantiated as t hese w ere based on a fictitious plan that did not take into account passenger volume to the various destinations, human resources, maintenance requirements or capacities and ranges of the different aircraft. Also with respect to freight flights, the balancing of interests by the planning authority had been correct. It was true that it was basically the time pressure for express freight transports that justified night time flights , and providers could not rely on this argument for less urgent transports. However, there were reasonable grounds f or transporting express and non ‑ express freight together. If a prohibition of night flights for non-express freight endangered the functionality of the freight hub for express freight, the demand for night flights for express freight could render necessary normal cargo flights. This, however, was only true as long as the nightly freight transport predominantly served express freight. The forecast relation of express to non-express freight had been double-checked by a newly commissioned report and was found to be plausible. Finally, the Federal Administrative Court underlined the primordial economic importance of the night flight possibilities for the development of the region as only these conditions led to the settlement of a big international freight transporter at Leipzig/Halle airport.

(c) Proceedings before the Federal Constitutional Court

18. On 30 October 2008 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They complained insofar as relevant about the admissibility of night flights concerning cargo and the preponderance of economic consideration over the health risks for the residents due to noise pollution.

19. On 15 October 2009 the Federal Constitutional Court declined to accept the applicant ’ s constitutional complaint in a reasoned decision. The Court held that the judgment of the Federal Administrative Court was in compliance with its own case-law. This provided for a progressive system of protection against noise by airports. The Federal Constitutional Court underlined that the Basic Law prohibited state authorities to authorise the operation of airports that led to health damages or significant health hazards. In such a case the owner of residential property could at least demand the compulsory purchase of property and compensation. For noise disturbances below this level the planning authority was under a positive obligation to balance the conflicting interests and either to limit aircraft operation or to provide for protective measures or a combination of both. In the concrete case the Federal Constitutional Court found no deviation from the established standards. Also Article 8 of the Convention had not been violated considering the wide margin of appreciation in the context of airport expansion projects. As the approval decision provided for noise protection measures and as domestic law had ensured that local residents could participate in the decision-making process and also could challenge its outcome, the standard set by Article 8 of the Convention had been met.

B. Relevant domestic law

20. Section 29b of the Air Traffic Act ( Luftverkehrsgesetz ) stipulates :

“ (1) Airport and aircraft operators as well as pilots are required to prevent any avoidable noise and to limit the spread of unavoidable noise to a m inimum while operating aircraft in the air and on the ground, if this is necessary to protect the population against the dangers, disadvantages and significant nuisance by noise. The night rest of the population has to be taken into particular consideration.

(2) The aeronautical authorities and air traffic control have to work towards the protection of the public against unreasonable noise."

COMPLAINT

21. The applicants complained exclusively under Article 8 of the Convention that the expansion of the Leipzig/Halle airport would substantially affect their private and family life due to increased noise emissions by aircraft take-offs and landings and airport operation at night. The plan approval decision and the 2007 supplementary decision were not justified under Article 8 § 2 of the Convention because they did not strike a fair balance between the interests of the applicants and the public interest of airport expansion: the applicants ’ health should have been given priority in the balancing of interests. Moreover, the effects of noise on people had been wrongly assessed. The applicants further complained about the technical assumptions of the expert report on noise as the relevant guidelines on noise of the WHO recommended applying lower threshold levels (45 dB(A)) in order to prevent any health hazards. Moreover, recent scientific studies had suggested that the health risks by noise were more severe than previously assumed. The expert reports on impact assessment were therefore deficient as test persons did not include ill or handicapped persons. The assessment of the statistical probability of people waking up was also wrong and additionally difficulties in falling asleep after having been woken up had not been taken into consideration at all. Lastly, the applicants complained that there had been a conflict of interest, because the planning authority that was responsible for the approval decision was not independent of the main shareholder of the airport holding, namely the Freistaat Sachsen.

THE LAW

A. Whether the applicants exhausted domestic remedies in regard to the 2004 plan approval decision

22. The Court notes that the Federal Administrative Court upheld in its judgment of 6 November 2006 the 2004 approval decision in a number of decisive elements : namely, in regard to the chosen methodology of assessing the environmental impacts and in regard to the quality of the expert reports. The Federal Administrative Court furthermore approved of the zoning of areas where the residents received either complete compensation for loss of habitable property or passive noise protection on their houses. The Federal Administrative Court also approved the threshold values of noise pollution at night. These findings of the Federal Administrative Court became final, as the applicant s did not pursue their complaints in this regard and did not file for a constitutional complaint. Consequently, on remittal the planning authority based its balancing on the fact s and findings of the 2004 plan approval decision insofar as it was final .

23. Furthermore, the applicant s did not raise a complaint regarding the technical quality of the expert reports before the Federal Constitutional Court when complaining about the 2007 supplementary plan approval decision.

24 . Therefore, the Court finds that the applicants ’ complaints challenging the technical assumptions of the expert report in comparison with the WHO guidelines and other alleged deficiencies of the expert report are already inadmissible for not-exhaustion of domestic remedies.

25 . Likewise, the Court notes that the applicants did not raise the complaint concerning the alleged conflict of interests of the planning authority before the Federal Constitutional Court. In this respect the applicants ’ complaint is also inadmissible for non-exhaustion of domestic remedies.

B. Alleged violation of Article 8 of the Convention.

26. The applicants complained that the supplementary approval decision as well as the subsequent court decisions on the extension of the operation of the Leipzig/Halle airport violated their rights under Article 8 of the Convention, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1 . Whether the supplementary approval order affected the applicants ’ right s under Article 8 of the Convention

27. Article 8 protects the individual ’ s right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. T he Court has frequently held that Article 8 could include a right to protection from severe environmental pollution, since such a problem migh t affect individual ’’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 ‑ VIII , and Flamenbaum and Others v. France , nos. 3675/04 and 23264/04 , § 133 , 13 December 2012 ).

28. In the present case the Court notes that the Leipzig/Halle airport, a private law company with limited liability, has enjoyed unrestricted night operation since 1990. This night operation was limited by the approval decision s in question. The Court takes note that the domestic courts did not argue that the applicants ’ position regarding night flights at Leipzig/Halle airport improved as night flights were now restricted for the first time. On the contrary, the domestic courts relying on the impact assessment studies assumed that the noise pollution at the applicants ’ home would increase significantly, as the envisaged changes of the airport and its runways would for the first time actually lead to any night traffic. Therefore, the administrative planning orders in question allowed a night time operation of the airport in such a way that this would adversely affect the applicants ’ right to respect for their private and family life.

2. Whether the State violated a positive obligation

29. In the present case the noise disturbances complained of emanate from the activities of private airline operators and by the operation of the Leipzig/Halle airport that is organized as a private limited company. On the other hand, these disturbances by night time operation were regulated in the plan approval decisions which were issued by state authorities.

30. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. T he applicable principles are broadly similar w hether the case is analysed in terms of a positive duty on the State to take appropriate measures to secure the applicants ’ rights or , conversely, in terms of an interference by a public authority to be justified in accordance with paragraph 2. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention ( compare Hatton and Others , § 98 and Flamenbaum , § 13 4, both cited above). The Court is therefore not required to decide whether the present case falls into one category or the other. The question is rather (compare Hatton and Others , cited above § 119) whether a fair balance was struck between the competing interests.

3. Whether a fair balance was struck

31. The Court reiterates that there are two aspects to the inquiry: f irst, the Court assess es the substantive merits of the State ’ s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision ‑ making process to ensure that due weight has been accorded to the interests of the individual.

(a) Substantive merits

32. Regarding the substantive merits of the State ’ s decision the Court has consistently held that in cases raising environmental issues the State must be allowed a wide margin of appreciation . It is for the national authorities to make the initial assessment of the “necessity” for an interference. They are in principle better placed than an international court to assess the requirements relating to the operation of an airport in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community (besides the cases already cited see Hardy and Maile v. the United Kingdom , no. 31965/07 , § 218 , 14 February 2012 ).

33. The Court notes that the domestic courts, in an approach similar to that followed by this Court, reviewed the reasons given by the planning authority why the restructuring of the airport made it necessary to allow night flights while respecting a certain margin of appreciation of the planning authorities. The planning authority motivated the e xpansion of the airport and its runways with the intention of the Freistaat Sachsen to turn the airport into a n international hub for air freight, particularly for express freight. The underlying assumption was that the national and international demand for air freight would increase in the future and that fostering this activity would create long-lasting positive economic effects for the region. This inevitably involv ed a substantial increase in night-time flights, as freight carriers use these in order to be able to deliver the express freight on the day after it has been dispatched.

34. The Court reiterates that according to the second paragraph of Article 8 restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others. It is therefore legitimate for the State to have taken the above economic interests into consideration in the shaping of its policy (compare Hatton and Others , cited above § 121).

35. The Court notes that the economic aims pursued by the reconstruction of the airport are legitimate and follow sound policy reasons for the development of a whole geographic region.

(b) T he decision making process

36. T he Court reiterates that w henever discretion capable of interfering with the enjoyment of a Convention right is conferred on the State , the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 . It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process and the procedural safeguards available . A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals ’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake (see Hatton and Others , cited above, § 128; Dubetska and Others v. Ukraine , no. 30499/03, § 143, 10 February 2011 and Grimkovskaya v. Ukraine , no. 38182/03, § 67, 21 July 2011). Furthermore, the public should have access to the findings (see TaÅŸkın and Others v. Turkey (dec.), no . 46117/99, § 11 9, ECHR 2004 ‑ X ).

37. The Court notes at the outset that the planning authorities were well aware that the envisaged economic development implied serious disturbances for residents.

38. It observes that the approval decisions complied with all requirements of the domestic law: in its judgment of 9 November 2006 the Federal Administrative Court quashed the (original) appeal decision in the parts relating to the balancing of interests and required the authorities to take a formal decision on the regulation of night flights.

39. The Court notes in this context that when scrutinizing the procedural safeguards that were available to those whose rights were at stake, it should not limit itself to scrutinising exclusively the supplementary plan approval decision of 2007 , as only by examining the supplementary decision in the light of the 2004 approval decision the Court may attain a full overview of the safeguards at hand.

40. Before the supplementary plan approval decision was issued the local residents had again the possibility to advance their views and objections in order not to become precluded from future judicial review. Views and objections were only admitted and taken note of if they related to the balancing that had to be amended by these supplementary proceedings.

41. The supplementary approval decision based its balancing of the public interest in economic and regional development with the private interests in privacy on the findings of the expert reports on noise pollution ordered in 2003. The planning authority had originally ordered expert reports on the ex ante situation and on future noise disturbances in order to have a sound factual basis for its decision. These reports and the plans based on these findings were made public and the residents and interested NGOs were invited to comment in 2004. According to the findings of the reports the planning commission set out several noise protection zones ranging from zones which would be considered no longer suitable for occupational purposes due to noise to zones where passive noise protection measures would be provided for by the airport company. The applicant ’ s homes both lay within the zone where passive noise protection would be provided for.

42. In summary, the Court observes that the residents affected by the planning had the right to participate actively in the proceedings by advancing their views. The expert reports on noise impacts were rendered public as were the planning materials. The planning authority defined areas where owners had to be compensated as the premises were considered to have become unhealthy for habitation, and areas where passive noise protection was provided for. Lastly, there was access to judicial review.

43. The Court recalls that the planning authority in 2007 decided solely on the question whether it was possible to further restrict night time flights for ordinary freight or passenger flights while still ensuring that the economic development aims for the regions by attracting global freight operator s remained feasible. Further reducing night flights was considered of particular importan ce since the residents already had to tolerate night disturbances due to the flights for express freight and t heir interest to be spared additional flights at night was taken into special consideration . A decision to allow unrestricted night time flights would have required a particular justification.

44. The planning authorities therefore carefully lay out which type of flights could be further restricted (passenger and ordinary freight flights) and which could not without endangering the legitimate public purpose pursued by the airport reconstruction. Regarding express freight the authority explained that only rarely a whole flight would consist entirely of express freight, but most freight flights would be mixed. However, it imposed a supervisory duty on the airport for the future to ensure that the overwhelming part of night goods would consist of express goods. The Court is not in a position to substitute the authority ’ s balancing decision with its own.

45. In view of the fact that the German courts took into account all relevant factors and balanced them in a reasonable manner, the impugned decisions cannot be held to have overstepped the margin of appreciation as regards Article 8. Accordingly, the Court finds that the applicant s ’ complaints under Article 8 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President