Federal Constitutional Court - Press office -

Press release no. 18/2009 of 27 February 2009

Orders of 24 February 2009
– 1 BvR 165/09, 1 BvR 182/09 (1 BvQ 5/09), 1 BvR 189/09 (1 BvQ 7/09), 1 BvR 188/09 (1 BvQ 8/09) –


Procedural challenges of temporary injunctions issued by the Hesse
Administrative Court in the matter of Frankfurt/Main Airport unsuccessful

1. By its order of 18 December 2007, the Hesse Ministry for Economy,
Transport and Regional Development approved the extension plan for
Frankfurt/Main Airport. The plan provides for the airport to be
extended by another runway. Early in 2008, a number of private
individuals and municipalities brought action against this order before
the Hesse Higher Administrative Court (Hessischer
Verwaltungsgerichtshof – HessVGH), applying there for an order
establishing the suspensive effect of their action. The airport
operator promised to wait for the decision of the HessVGH before
executing the planning approval notice. In January 2009, the HessVGH in
several orders rejected the application to establish the suspensive
effect, so that construction could be started. Before, several motions
of challenge for fear of bias had been moved against the judges of the
adjudicating Senate; they had been denied by the HessVGH. The HessVGH
has not yet adjudicated in the main action. 

2. The complainants lodged constitutional complaints and made
applications for a temporary injunction against the orders of the
HessVGH. They did not directly impugn the lawfulness of the extension
of the airport itself but exclusively challenged alleged infringements
on the part of the HessVGH when denying the motions of challenge for
fear of bias. On the one hand, they alleged violations of the
procedural guarantee of a hearing in court, which is enshrined in the
Basic Law, because no hearing had been conducted on a brief by the
opposing party concerning the motions of challenge for fear of bias. On
the other hand, it was argued that there had been a violation of the
right to one’s lawful judge, in particular because the HessVGH had
allegedly dealt with the motions of challenge for fear of bias in an
arbitrary manner and had allegedly violated the precept of effective
legal protection by not deciding immediately on the basis of a mere
weighing of interests but on the basis of a summary examination of the
prospects of success in the main action.

3. The constitutional complaints and the motions for a temporary
injunction were unsuccessful without exception. In essence, this is
based on the following considerations:

Even if the HessVGH initially did not provide the complainants with an
opportunity to give their opinion on the briefs by the opposing party
concerning the motions of challenge for fear of bias, its rulings are
not based on this possible infringement of the right to a hearing in
court. For it can be ruled out that the hearing would have resulted in
a decision on the motions of challenge for fear of bias that would have
been more favourable to the complainants. In this context, it must be
taken into account that after the denial of the motions of challenge
for fear of bias by the HessVGH, the complainants had the opportunity
to make a statement on the opposing party’s briefs in subsequent 
roceedings (challenge of the violation of the right to a hearing in
court). The HessVGH, however, did not deem this statement legally
relevant.

The Federal Constitutional Court also could not establish that there
had been a violation of the right to one’s lawful judge. In particular,
the HessVGH did not arbitrarily assume that the judges of the
adjudicating Senate were not biased. As regards the reproach that had
been raised of a unilateral agreement with the opposing party as
regards the point in time of the decision, it explained in a very
justifiable manner that this point in time was known, or could have
been known, to all parties.

In view of the airport operator’s promise that it would wait until the
court ruling, it was unobjectionable that the HessVGH decided on the
motions for a temporary injunction only in January 2009, and in doing
so focused on the prospects of success in the main action (which were
lacking in the opinion of the HessVGH) instead of deciding immediately
on the basis of a mere weighing of interests.


This press release is also available in the original german version.