HEADNOTES:

Art. 1, first sentence, and Art. 4(3), second sentence, of the Treaty of 19 December 1967 between the Federal Republic of Germany and the Republic of Austria on the Effects of the Location and Operation of the Salzburg Airport on the Sovereign Territory of the Federal Republic of Germany, together with Art. 1 of the Consenting Law to the Treaty, determine in a constitutionally unobjectionable manner the content and limits of ownership of property located in German territory that is overflown during operation of the Salzburg airport.

Order of the First Senate of 12 March 1986 -- 1 BvL 81/79 --in the proceedings for constitutional review of whether Arts. 1 and 2 of the Act of 9 January 1974 consenting to the Treaty of 19 December 1967 between the Federal Republic of Germany and the Republic of Austria on the Effects of the Location and Operation of the Salzburg Airport on the Sovereign Territory of the Federal Republic of Germany [i] are in part unconstitutional.

Order of 10 March 1978 (V ZR 73/78) by the Federal Supreme Court (Bundesgerichtshof) to stay proceedings and submit the matter to the Federal Constitutional Court.

DECISION:

The Consenting Act of 9 January 1974 to the Treaty of 19 December 1967 between the Federal Republic of Germany and the Republic of Austria on the Effects of the Location and Operation of the Salzburg Airport on the Sovereign Territory of the Federal Republic of Germany is compatible with the Basic Law to the extent that (1) under Article 1 of the Act together with Article 4, paragraph 3, second sentence of the Treaty, § 11 of the Air Traffic Act (Luftverkehrsgesetz; LuftVG) together with § 26 of the Industrial Code (Gewerbeordnung; GewO) -- now § 14 of the Federal Pollution Control Act (Bundes-Immissionsschutzgesetz; BImSchG) -- is to be applied by analogy in establishing civil-law claims to ward off noise pollution under German law before German courts, insofar as the airport is operated according to Austrian legal provisions and within the scope of the Treaty, and (2) under Article 1 of the Act together with Article 1, first sentence, of the Treaty, the Federal Republic of Germany is obligated to treat as participation in the common use of air space when, during take-offs and landings, the minimum safe altitude is not maintained pursuant to § 6 of the Air Traffic Ordinance (Luftverkehrsordnung; LuftVO), insofar as this remains within the flight-operations regulations in force for the Salzburg Airport.

EXTRACTS FROM GROUNDS:

A.

The submission relates to the regulation of defensive claims (Abwehransprüche) by German property owners against air traffic noise emanating from the operation of the Salzburg Airport.

I.

1.906 of the Civil Code, which limits the defensive claims of property owners under § 1004 of the Civil Code against airport operators is to be applied to property located in the vicinity of domestic airports and other landing sites within the meaning of § 6(1) of the LuftVG in the version of the announcement of 14 January 1981. [ii] Moreover, pursuant to § 11 of the LuftVG together with § 14 of the BImSchG, there is an additional limitation: private-law claims not based on special titles to ward off detrimental effects from airport property on neighboring property may not be used to demand the discontinuance of airport operations, whose license cannot be contested; only able to be demanded are precautions to preclude such detrimental effects or compensation for damages, in the event that these precautions are not possible or economically reasonable according to the state of technology. Accordingly, the uncontestable public-law approval of an airport also guarantees its existence in the civil-law relationship between airport operator and airport neighbor.

Under § 1(1) of the LuftVG, the use of air space by aircraft is free, insofar as this is not limited by the Air Traffic Act, the Act on the Federal Air Security Authority and the legal provisions enacted to implement these Acts. The owners of overflown property are therefore not entitled under § 1004(2) of the Civil Code to any forbearance claims against airlines and aircraft owners with regard to the orderly usage of air space. The prerequisite to orderly usage is, inter alia, the observance of the so-called minimum safety altitude pursuant to § 6 of the LuftVO in the version of 14 November 1969. [iii] In populated regions, this altitude is at least 300 meters and may only be undercut when this is necessary for take-off or landing. Pursuant to § 25(1) of the LuftVG, aircraft may in principle only take-off or land outside of approved landing sites when the property owner or some other duly entitled person has given his approval and when the Air Traffic Authority has granted permission.

2.  The Salzburg Airport is located in the direct vicinity of the German-Austrian border. Following World War II, it was changed in such a way that approach and departure lanes in the northerly direction extended from the City of Salzburg into German sovereign territory, in particular, over the City of Freilassing. The build-up areas of Freilassing begin roughly 3 km away from the end of the airport's take-off and landing runways. The current airport operations are based on approvals issued by the Austrian Air Traffic Authority between 1960 and 1965, as well as on an expansion grant in 1969.  In opposition to the foregoing, the City of Freilassing and the owner of property located there filed a complaint with the Austrian Administrative High Court, which was rejected with the reasoning that neither foreign municipalities nor owners of property located abroad possess the status of party in proceedings for the issuance of a grant for a civil airport under Austrian air traffic law.

On 19 December 1967, the Treaty between the Federal Republic of Germany and the Republic of Austria on the Effects of the Location and Operation of the Salzburg Airport on the Sovereign Territory of the Federal Republic of Germany was concluded. [iv] Under Art. 1, the Federal Republic of Germany is obligated to adopt pursuant to German air traffic law the necessary measures for the location and operation of the airport in the sovereign territory of the Federal Republic of Germany and, in so doing, to take as a basis the grants issued by the Austrian Air Traffic Authority for the civil airport and the start of operations. Art. 3(1) of the StV provides that a building protection zone (cf. § 12 of the LuftVG) be established on German sovereign territory. In addition, the Treaty states:

ARTICLE 4

(3)  Claims relating to effects from airport traffic or from the operation of the airport on persons, things or rights in the sovereign territory of the Federal Republic of Germany may be based on either German or Austrian law. Should the claims be based on German law, § 11 of the German Air Traffic Act together with § 26 of the German Industrial Code are to be applied by analogy, insofar as the airport is operated under valid Austrian provisions and within the scope of this Treaty. For decision of disputes surrounding such claims, the ordinary courts of the Federal Republic of Germany have exclusive jurisdiction.

Pursuant to Art. 8 of the StV, measures by the Federal Republic of Germany to protect against noise pollution remain unaffected. Art. 7 of the StV contains the assurance by the Republic of Austria that within the scope of the possibilities existing under Austrian law, it will see to it that enclosed settlements in the sovereign territory of the Federal Republic of Germany will not be overflown at an altitude below that necessary for airport operation. As required, an exchange of opinions is to take place between the Air Traffic Authorities of the two Treaty partners in order to ensure close cooperation and understanding in all affairs relating to the application and interpretation of the Treaty (Art. 10 of the StV).  This sort of exchange of opinions is provided for in particular in Art. 2(1) of the StV in the event that the civil airport grant or the grant for assumption of operations should be changed or extended. In this case, the Republic of Austria agrees to give consideration to German requirements, in particular, to regional and state planning, municipal construction and protection against air traffic noise. Art. 2(2), first sentence, of the StV finally permits approval for extension of the operating hours of the airport to the period between 11 PM and 6 AM only when this does not interfere with German interests in the areas of security and order or of protection against air traffic noise.

The Consenting Act to the Treaty of 19 December 1967 declares in Art. 1 the consent to this Treaty and in addition contains the following regulation:

Article 2

For the German legal provisions to be applied by the Federal Republic of Germany under this Treaty, the Salzburg Airport is considered to be located on German sovereign territory. However, these provisions are only to be applied by analogy and insofar as they relate to an established, operating airport. The building protection zone under Article 1 and Article 3(1) of the Treaty is defined in the Appendix to this Act.

II.

1.  The two Complainants in the proceedings below are owners of residential property in Freilassing and Mitterfelden (Bavaria).  In particular the property of Complainant 1) is overflown in approaches and departures by aircraft that use the Salzburg Airport, operated by Respondent 1).  . . . Respondents 2) to 4) are foreign airline companies that regularly land at the Salzburg Airport. By way of their complaint, the Complainants demanded from the Respondents that they forbear such interferences that arise from the overflying of their property during landings and take-offs at an altitude below the minimum safety altitude as set down in § 6 of the LuftVO.  The Respondents objected to this by pointing out that the interferences remained within the limits prescribed by § 906 of the Civil Code and that since the entry into force of the provisions under § 14, first sentence, of the BImSchG submitted to constitutional review, private-law claims for the discontinuance of operations have been ruled out. Moreover, the take-offs and landings represent a permissible common use of air space.

The Higher District Court dismissed the complaint with reference to the provisions of the Consenting Act and the Treaty . . ..  . . .

The Regional Appeals Court quashed the ruling of the Higher District Court, including the underlying proceedings, due to violation of essential procedural provisions and referred the matter back to the Higher District Court for renewed hearing and decision. By way of appeal, the Respondents pursue further their application for rejection.

2.  The Federal High Court stayed the proceedings and submitted the following question to the Federal Constitutional Court:

whether Arts. 1 and 2 of the Consenting Act are unconstitutional to the extent that

(1) under Art. 1 of the Act together with Art. 4(3), second sentence of the StV, § 11 of the Air Traffic Act together with § 26 of the Industrial Code (now § 14 of the Federal Pollution Control Act) is to be applied by analogy in establishing civil-law claims to ward off noise pollution under German law before German courts, insofar as the airport is operated according to Austrian legal provisions and within the scope of the Treaty,

and

(2) under Art. 2 of the Consenting Act, the Salzburg Airport is considered as located on German sovereign territory for the purposes of German legal provisions to be applied by the Federal Republic of Germany under the Treaty.

III.

1.  The Federal Minister for Transportation considers the provisions submitted for review to be constitutional. . . .

IV.

During the constitutional proceedings, the Federal Minister for Transportation and the Head of the Bavarian State Chancellery gave notice that in the meantime the new take-off route WS 02 for the Salzburg Airport has been established, which has led to a considerable reduction in air traffic noise for the affected property owners. The Complainants in the proceedings below have declared in this regard that the noise caused by airport operation has remained essentially unchanged.

. . .

C.

The provisions submitted for review are compatible with the Basic Law. The guarantee of property under Art. 14 of the Basic Law has not been violated.

I.

. . .

2.  The provisions submitted for constitutional review do not contain an expropriation under Art. 14(3) of the Basic Law but rather merely determine pursuant to Art. 14(1), second sentence, of the Basic Law the content and limits of ownership of those pieces of property on German sovereign territory that are exposed to air traffic noise from the Salzburg Airport.

. . .

Determination of content within the meaning of Art. 14(1), second sentence, of the Basic Law is understood in the Basic Law as meaning the general and abstract establishment of rights and duties by the legislature with respect to such objects of legal protection that are to be understood as ownership in the meaning of the Constitution. It is directed at the standardizing of objective-legal provisions that determine for the future in general form the content of ownership law, beginning with the entry into force of the Act. [v] b) By way of the provisions submitted for constitutional review, the legislature has regulated the legal relations between, on the one hand, property owners located on German sovereign territory and affected by noise pollution from the Salzburg Airport and, on the other, the operator of the airport (Art. 4(3), second sentence, of the StV) and the airline companies using the airport (Art. 1, first sentence, of the StV).  It thus has determined the content and limits of ownership of property located in the vicinity of the airport. . . .

II.

The provisions submitted for constitutional review determine in permissible fashion the content and limits of property.

1.  In fulfilling the task placed upon it in Art. 14(1), second sentence, of the Basic Law of defining the content and limits of property, the legislature must give equal consideration to both elements of the relationship set forth in the Basic Law between constitutionally guaranteed legal status and the precept of a property order doing justice to social demands; it must provide the protected interests of the persons involved with fair compensation in a balanced relation. Unilateral preference or disadvantaging is not in harmony with the constitutional notions of socially obligated private property. This corresponds to the commitment of the legislature to observe the constitutional principle of proportionality (Verhältnismäßigkeit).  The common good is not merely the reason but also the boundary for limitations to be imposed on the property owner. In order to comport with the Constitution, these limitations must be required as regards an ordered subject matter and also be proper in their set up. Restrictions on the powers of property owners may not extend any farther than the protective purpose served by the regulation. In any event, the constitutional guarantee supports the observance of the substance of property and respect for the precept of equality under Art. 3(1) of the Basic Law. [vi] 2.  The provisions submitted for constitutional review meet these principles.

a) The substance of their real property is preserved for the affected persons. But the defensive claims originally associated with real property against the airport operator due to air traffic noise emanating from the Salzburg Airport are not completely eliminated. Rather, analogous application of § 11 of the LuftVG and § 14 of the BImSchG -- as required by Art. 4(3), second sentence, of the StV -- leads to the situation where a former claim for discontinuance of operation is primarily transformed into a claim for creation of precautions and secondarily into one for damages.

b) Prior to enactment of the Consenting Act, the legal status of the Complainants in the proceedings below was characterized by uncertainty with respect to the air traffic noise emanating from the operation of the airport. Their claim possibly existing under German law against the operator of the airport to forbear the interference could not have met with success. If such a ruling had been made by a German court, then they would have had to expect that its enforcement in Austria would fail due to the reservation there of ordre public.

This uncertainty was eliminated by the Consenting Act and by the Treaty. In so doing, the foreign operator of the airport has been bindingly included in the regulation and has thereby achieved a considerable gain in legal certainty. The defensive claims originally associated with real property against the operator of the airport due to air traffic noise, insofar as these originally aimed at discontinuance of operation, have been transformed into claims for creation of precautions or damages. Furthermore, the new regulation dispensed with the possibility of asserting claims of forbearance against the airlines and aircraft owners; the private-law claims by the affected property owners to ward off noise pollution are now directed exclusively at the operator of the airport. The possible success of these claims is guaranteed by the Treaty.

c) The provisions submitted for review serve, within the meaning of the principle of proportionality, a legitimate objective, for whose achievement they are both appropriate and necessary.

The concern followed by the legislature by way of its enactment did not have to be exclusively directed at protecting the German population against air traffic noise. With respect to the Salzburg Airport, it was also faced with the task of not endangering the relations with the Republic of Austria and of paying regard to international air traffic, for whose support the Federal Republic of Germany committed itself by way of signing the Chicago Convention on International Civil Air Traffic. In addition, it had to be taken into consideration that the Salzburg Airport -- particularly in view of friendly relations with the Republic of Austria -- is suited to assuming traffic functions for the Southeast Bavarian region, from which this region and its population could well benefit. As seen from this perspective, the legislature could then have considered it to be necessary to recognize the existence of the Salzburg Airport and to place the airport operations, from the German viewpoint as well, in a legally ensured status as long as, within an overall regulation, the protection of the German population against unreasonable air traffic noise was sufficiently taken into account. For this purpose, it was also able to be determined that on the basis of private-law claims not based on special titles to ward off detrimental effects by certain real estate on a neighboring piece of real estate, the discontinuance of airport operations may not be demanded. This well-established rule is appropriate and necessary for guaranteeing the desired undisturbed existence of the airport.

d) The formation of the property position of the affected German property owners and the purpose pursued with this formation stand in a reasonable relationship to one another, without protected interests of the parties being unilaterally preferred or disadvantaged.

The operation of the airport does not burden the affected neighboring German property so severely that a solution other than affecting its discontinuance must be ruled out from the outset. Average air traffic at the Salzburg Airport is not excessive. . . . The outskirts of Freilassing begin more than 3 km away from the end of the Salzburg Airport's take-off and landing runways, i.e., thus falling neither within Protective Zone 2 or even Protective Zone 1 of a noise protection area set down for this airport. In the Federal Republic of Germany, there are a number of approved airports in whose noise protection areas considerably more construction has taken place than could ever be the case for the Salzburg Airport if a noise protection area were to be established for it. There is thus no room for the theory that the Austrian civil airport grant for the Salzburg Airport is in violation of international law; it may not be simply assumed that international neighbor law prohibits a neighboring state from approving an airport in the vicinity of the border that results in less noise pollution for the population of the bordering state than some domestic airports for their local neighborhoods.

In consideration of the foregoing, the impairments to legal power suffered by the German property owners as a result of the provisions submitted for review are not particularly weighty. The defensive claims originally associated with the property against the operator of the airport due to the air traffic noise emanating from the Salzburg Airport are not completely eliminated but rather merely transformed from claims for discontinuance of operations into those for precautions or damages. By way of Art. 1, first sentence, of the StV together with § 1(1) of the LuftVG and § 6(1), first sentence, of the LuftVO, it is not possible to assert forbearance claims against the airlines and aircraft owners; with regard to the latter, the noise associated with overflights must therefore continue to be accepted. This is not of special significance since the focus of the claim to ward off air traffic noise has, for actual reasons, from the outset been directed at the operator of the airport. It therefore does not represent an appreciable loss of a right when the private-law claims by the affected property owners on account of air traffic noise from the Salzburg Airport are now exclusively directed against the operator of the airport.

This applies all the more in that the restructured, "reduced" claims have a considerably greater chance of success than the former claim for discontinuance of operations. As a consequence of conclusion of the Treaty, the Austrians have now recognized that the German airport neighbors may assert substitute claims pursuant to § 14 of the BImSchG, § 11 of the LuftVG and Art. 4(3), second sentence, of the StV against the Austrian airport operator. In general, the conclusion of the Treaty has resulted in an improvement of the legal status of the affected German citizens in contrast to their previous status. This improvement does not follow solely from the new possibility of asserting substitute claims. In addition, the following should be mentioned:

-- the possibility opened pursuant to Art. 8 of the StV together with Art. 4(2) of the StV of applying the Air Traffic Noise Act with assumption of expenses by the Republic of Austria;

-- the restrictions now imposed by Art. 2 of the StV on a change or extension of the civil airport grant or the grant for the assumption of operations by the Salzburg Airport and, in particular, on the starting of night-time flight operations; and

-- the assurance by the Republic of Austria in Art. 7 of the StV that it will ensure by way of appropriate measures within the scope of possibilities existing under Austrian law that build-up areas in the Federal Republic of Germany's sovereign territory will not be overflown at an altitude below that necessary for flight operations.

The view that the Treaty (also) forms an instrument for the protection of the affected German property owners therefore does not lack justification. . . .

The restructuring of the legal status of the German property owners affected by air traffic noise is justified by the above-mentioned regulatory purposes of the Treaty. The German legislature was empowered to grant priority to the maintenance of airport operations in Salzburg over the efforts of the German property owners aiming at discontinuance of operations. It saw itself compelled to accept the result of cooperation between the two states for solution of the issues at hand. This cooperation has led to mutual concessions, whose underlying concept lies in the fact that the existence of the Salzburg Airport is recognized by the Federal Republic of Germany and that the airport operations are placed on secure legal foundation, whereas the Republic of Austria recognized the interests of the German population in protection against unreasonable air traffic noise and took this into consideration to the extent possible. Furthermore, the airport operations have been subject since the entry into force of the Treaty to supervision, including that by the Federal Republic of Germany, which makes it highly unlikely that the protection of the German population against noise pollution by the airport will be neglected in future decisions on airport operations. In sum, the provisions submitted for constitutional review do not regulate the opposing interests so unilaterally that the principle of proportionality has been violated.

3.  The precept of equality has been respected. The legislature was entitled on account of the described material reasons to ensure the existence and operations of the Salzburg Airport by way of enactment of a law. It is not necessary to rule on whether other possibilities were available to it.

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Endnotes

[i] BGBl. II, p. 13.

[ii] BGBl. I, p. 61.

[iii] BGBl. I, p. 2118.

[iv] Vertrag über Auswirkungen der Anlage und des Betriebes des Flughafens Salzburg auf das Hoheitsgebiet der Bundesrepublik Deutschland, BGBl. 1974 II, p. 15 (hereinafter, StV).

[v] BVerfGE 52, 1, 27; BVerfGE 58, 137, 144-45; BVerfGE 58, 300, 330.

[vi] BVerfGE 52, 1, 29-30.

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