Communicated on 11 December 2020 Published on 11 January 2020

THIRD SECTION

Application no. 19667/18 Rita WAGNER-LIPPOLDT against Germany and 3 other applications (see list appended)

SUBJECT MATTER OF THE CASE

The applications concern aircraft noise pollution for residential areas from the new Berlin Brandenburg Airport.

In the course of the formal planning proceedings for the construction of the airport, it became evident that the envisaged flight routes did not allow operating the runways independently. At that time, the investigations and studies, in particular the noise impact assessment, had already been conducted on the basis of those flight routes.

On 13 August 2004 the planning authority approved the plan for the construction of the airport. In the plan approval decision ( Planfeststellungsbeschluss ) it was explained, inter alia , that full capacity of the airport was only achieved by operating the runways independently and that the precise flight routes would be determined in separate administrative proceedings. Further, the plan referred to the initial envisaged flight routes which were described to be a plausible and sufficient concrete basis to assess the impact of the airport.

The applicants own and live in residential premises in the vicinity of the airport. In 2007 t he applicant, Ms U. Zeisig , who had taken legal action against the plan approval decision in time, consented to discontinue the court proceedings after the planning authority had guaranteed that she would also benefit from the partial success of the plaintiffs of pilot proceedings on that subject.

In 2010 the applicants learned about the necessity of the modified flight routes which allowed operating the runways independently. In the meantime, the plan approval decision had become final. Subsequently, the applicant, Ms U. Zeisig , requested the re-opening of the discontinued proceedings and the other applicants initiated separate legal proceedings, all arguing that the modified flight routes would cause or would increase the adverse effects from aircraft noise on their residential premises. Their legal actions before the Federal Administrative Court and before the Federal Constitutional Court (1 BvR 877/13, 1 BvR 1026/13, 1 BvR 2762/12, 1 BvR 2763/12) were of no avail .

The applicants complain under Article 6 of the Convention, and the applicants, Ms U. Zeisig , Mr J. B ü ttner and Ms J. Krebs, in addition under Article 8 of the Convention, that the authorities misled the public, which in turn discouraged them to take action in the formal planning proceedings and before the courts. When they had learned about the modified flight routes, access to court was denied and they had no effective remedy. They further allege that the investigations and studies regarding the noise pollution were not appropriate.

QUESTIONS TO THE PARTIES

1 . Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?

2 . If so, did the applicants have access to a court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

3 . Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in so far as their applications raise an issue (either explicitly or in substance) under Article 8 of the Convention?

In particular, would legal actions in due time or the continuation of the proceedings before the Federal Administrative Court against the plan approval decision have been an accessible remedy for the applicants in the first place, capable of providing redress also in respect of the present complaints and offering reasonable prospect of success in the circumstances of the case irrespective of the fact that the plan approval decision referred to different flight routes?

Having regard to the level of the expected noise pollution, is it relevant for the purpose of Article 35 § 1 of the Convention that the applicants had abstained from initiating immediate legal proceedings or had consented to discontinue the proceedings and had only taken or continued legal actions when they had learned about the necessity of modified flight routes?

Could the applicants also be expected to take legal actions against the precise flight routes, which were determined and approved in separate administrative proceedings? What is the scope of the judicial review of such proceedings?

4 . If Article 35 § 1 has been complied with, has there been a violation of the applicants ’ rights to respect for their private lives and their homes, contrary to Article 8 of the Convention? Bearing in mind that the Court is the master of the characterisation to be given in law to the facts of the case (see, among many other authorities, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009 and Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015) and having regard to the submissions before the Court, this question also applies to the applicants Ms R. Wagner ‑ Lippoldt and Mr R. Nicolai.

To which protection and compensation measures were the applicants entitled after the flight routes had been modified?

5 . Bearing again in mind that the Court is the master of the characterisation to be given in law to the facts of the case and having regard to the applicants ’ submissions before the Court, did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8, as required by Article 13 of the Convention?

6 . The Government are invited to provide the Court with the motions to be heard ( Anhörungsrügen ) of the applicants, Ms R. Wagner ‑ Lippoldt and Mr R. Nicolai, and the corresponding decisions of the Federal Administrative Court, dated 25 February 2013 (file nos. 4 A 5000.12 and 4 A 5001.12), the decision of the Federal Administrative Court on the motion to be heard of the applicant, Ms J. Krebs, dated 25 February 2013 (file no. 4 A 7005.12), as well as with the declaration of the planning authority, in which it guaranteed that the applicant, Ms J. Krebs, would benefit from the partial success of the plaintiffs of pilot proceedings, which ultimately resulted in the decision of the Federal Administrative Court, dated 3 July 2007, to discontinue the proceedings (file no. 4 A 1006.07).

APPENDIX

List of applications