Communicated on 3 February 2016

FIFTH SECTION

Application no. 32377/12 WERRA NATURSTEIN GMBH & CO KG against Germany lodged on 16 May 2012

STATEMENT OF FACTS

1. The applicant company, Werra Naturstein GmbH & Co. KG, is a German company based in Auengrund . It is represented before the Court by Mr I.J. Tegebauer , a lawyer practising in Trier.

A. The circumstances of the case

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

1. Background to the case

3. In July 1994 the applicant company purchased land underneath which lay a limestone deposit ( Kalksteinvorkommen ). It acquired the licence ( Bewilligung ) to quarry the deposit for twenty-five years. Subsequently the open-cast quarrying of limestone began and the applicant operated a plant directly next to the quarry to process the limestone into construction material. In 1997 it received permission to use the quarry as a landfill ( Deponiezulassung ) using waste soil from earthworks at other sites.

4. Meanwhile, the federal authorities began the planning process for a new motorway with the preferred option being a route across the quarry. On 7 November 2000, in the light of the chosen route, the Bad Salzungen Mining Authority ( Bergamt ) declined to approve the applicant company ’ s operation plan ( Hauptbetriebsplan ), an administrative prerequisite to operate and continue operating a quarry. Consequently, the applicant company had to stop quarrying limestone in 2001 and transferred its activity to another nearby mining site. At the old site, 4,700,000 cubic metres of limestone (67% of the original volume) remained in the ground. The applicant company had to bear the costs of relocating the plant, including the removal of machinery and the construction of roads and buildings. An administrative objection ( Widerspruch ) it lodged against the decision of the Mining Authority was never decided upon.

2. The planning process concerning the motorway

5. On 26 May 2003 the Land of Thuringia issued a planning decision ( Planfeststellungsbeschluss ) for the construction of the motorway, which stated, inter alia , that it would be too costly and time consuming to circumvent the applicant company ’ s land.

6. The applicant company brought an action before the Federal Administrative Court. It requested, inter alia , that it be stipulated in the planning decision that the applicant company be compensated for the interference in its quarrying operation. On 2 February 2004, after the Federal Administrative Court had stated that the relevant part of the planning decision was not sufficiently precise, the Land modified it by adding a “clarification” that the “seizure” ( Inanspruchnahme ) entitled landowners to compensation whose amount and scale had to be determined in the course of individual expropriation proceedings. Subsequently, the applicant company and the Land declared the matter resolved ( erledigt ) and the Federal Administrative Court therefore decided in 2004 that the proceedings were to be discontinued.

3. The expropriation proceedings

7. In 2005 the Federal Government seized the applicant company ’ s land for road construction purposes after it had reached a settlement with the applicant company during the proceedings concerning provisional seizure ( vorläufige Besitzeinweisung ). On 19 June 2006, following the initiation of formal expropriation proceedings, a court-sworn expert ’ s report recorded losses and additional costs amounting to about 3,500,000 euros (EUR), including the value of the limestone, and forgone profits from the landfill, relocation costs and interest.

8. On 26 March 2008 the Administrative Office of Thuringia Land ( Landesverwaltungsamt ) expropriated the part of the applicant company ’ s land on which the motorway had been built and decided that the Federal Government should compensate the applicant company by a payment of some EUR 865,000. That amount included about EUR 22,800 in compensation for the land value as farmland and some of the costs of the relocation of the plant (new infrastructure, transport of machinery and opening the ground of the new mine).

9. Both parties requested a judicial review. The Federal Government was of the opinion that the cost of the quarrying plant ’ s relocation should not be compensated. The applicant company requested compensation of an additional EUR 2,300,000 euros plus interest, specifically for the loss of landfill capacity and the respective profits, further relocation costs and reduced delivery capacity during the transition period. Claims for compensation regarding the value of the limestone were dropped.

10. On 18 February 2009 the Meiningen Regional Court dismissed the applicant company ’ s request and – on the request of the Federal Government – reduced the amount of compensation to about EUR 22,800. It held that only the value of the expropriated land – not taking into account that there existed a limestone deposit underneath it – had to be compensated. Pursuant to section 124(3) of the Federal Mining Act ( Bundesberggesetz , see “Relevant domestic law”, paragraph 17 below), mining rights under the terms of that Act were granted only on the statutory condition that they would have to yield to a public infrastructure project without compensation. Consequently, the actual right to quarry and the linked costs and losses for relocation and the impeded landfill did not generate a compensation claim. While the acquired mining rights constituted “property” under Article 14 of the Basic Law, the holder of a mining licence could not rely on making unhindered use of his or her mining rights; he or she could only operate under the limitations stipulated, inter alia , by section 124(3) of the Federal Mining Act. The planning decision was therefore merely actualising the determination of content and limits already inherent in the acquired mining right.

11. On 27 January 2010 the Thuringia Court of Appeal dismissed an appeal lodged by the applicant company. It held that the construction of the motorway had not led to a loss of the applicant company ’ s mining rights but only to a factual impairment in the exercise of those rights which followed from the preference given to transport infrastructure projects. The relevant provisions, section 124(3) and (4) of the Federal Mining Act, excluded compensation claims. The clarification of the planning decision had not generated a claim regarding the impairment of the applicant ’ s mining rights and the business operation linked to it, including the landfill. Article 14 of the Basic Law (see “Relevant domestic law”, paragraph 15 below) had not been infringed because the measure taken had not been unreasonable, even considering that 67% of the mining right had been rendered valueless.

12. On 14 April 2011 the Federal Court of Justice dismissed an appeal on points of law by the applicant company. It rejected the claim for compensation for the alleged interference with the mining right, mainly relying on section 124(3) of the Federal Mining Act, and in particular on the grounds that an interference with the rights of an established and operational business enterprise ( Eingriff in den eingerichteten und ausgeübten Gewerbebetrieb ) should not be compensated either. The enterprise could not enjoy more extensive protection under the law than the economic basis it rested on: the mining right. Referring to its case-law, it reiterated that it made no difference that the applicant company was the owner of the land and, at same time, the holder of the mining licence. Under German mining law, both entitlements needed to be assessed separately.

13. The Federal Court of Justice further acknowledged that quarrying was de facto no longer possible. Mentioning that for reasons of proportionality the planning decision might in a case like the instant one call for a formal expropriation of the mining rights with corresponding compensation, it found that such a claim – as well as the issue of disproportionality as such – should have been raised in the proceedings concerning the planning decision before the Federal Administrative Court (see paragraph 6 above). Lastly, it observed that the loss of future profits from the landfill was a mere hope for future returns and could thus not be considered a “property right” under Article 14 of the Basic Law.

14. On 21 December 2011 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant company without providing reasons (1 BvR 1499/11).

B. Relevant domestic law and practice

15. Article 14 of the Basic Law reads as follows:

“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.

(2) Property entails obligations. Its use shall also serve the public good.

(3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.”

16. Section 3 of the Federal Mining Act distinguishes between certain mineral resources which are “freely available for mining” ( bergfrei ) and those which belong to the property in question. While the latter may be mined by the owner without a licence from the Mining Authority, the former is not the property of the landowner. Resources which are “freely available for mining” may be extracted by anybody who acquires a licence ( Bewilligung ) for a specific site under section 8 of the Federal Mining Act. Only after extraction of the resource does the licensee acquire property rights to it.

17. Section 124 of the Federal Mining Act, in so far as relevant, reads as follows:

“...

(3) In so far as a public transport infrastructure project and a mining operation cannot be operated simultaneously without a significant impairment of the transport infrastructure, the construction, significant modification or operation of the transport infrastructure has priority over the mine unless the public interest in the mine prevails.

(4) If the construction, significant modification or operation of a piece of public infrastructure requires that the entrepreneur installs, removes or modifies installations in his or her mining operation, he or she shall be reimbursed in so far as his or her measures serve the purpose of securing the transport infrastructure ... ”

18. According to the case-law of the Federal Court of Justice and the Federal Administrative Court (see Federal Court of Justice, case nos. III ZR 229/09, 14 April 2011; III ZR 158/75, 1 June 1978; III ZR 176/70, 16 October 1972; Federal Administrative Court case nos. 4 A 2/97, 26 March 1998; 4 A 1/98, 30 July 1998), the first sentence of section 124(4) of the Federal Mining Act (as well as similar clauses in previous German mining laws) excludes any further compensation claim.

19. In a case (4 A 2/97, 26 March 1998) governed by section 124 of the Federal Mining Act, the Federal Administrative Court, considered that the planning decision to allow a piece of transport infrastructure to cut through a mining site might have to provide for a formal expropriation and compensation of the mining rights in order to strike a fair balance between public and private interests if that project completely impeded further mining. As the case in question affected only 11% of the mining site the Federal Administrative Court did not find it necessary to come to a final conclusion on this issue.

COMPLAINTS

20. The applicant company complains under Article 1 of Protocol No. 1 to the Convention that it did not receive any compensation for the loss of its mining rights, the costs of relocating its quarrying operation to another site, and the loss of earnings from the landfill on the quarry after the seam had been exhausted, all due to the planning and construction of a motorway on its land by the domestic authorities.

QUESTION TO THE PARTIES

Has there been an interference with the applicant ’ s right to peaceful enjoyment of possessions, within the meani ng of Article 1 of Protocol No. 1? If so, was that interference necessary to control the use of property in accordance with the general interest? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?