Federal Constitutional Court - Press office -
Press release no. 39/2010 of 11 June 2010
Order of 4 May 2010 – 2 BvL 8/07, 2 BvL 9/07 –
Aviation Security Act did not require the consent of the Bundesrat
In two sets of proceedings, the Darmstadt Administrative Court
(Verwaltungsgericht) has submitted to the Federal Constitutional Court,
by the procedure for testing the constitutionality of laws, certain
statutory provisions which relate to the checking of the background of
airmen (§ 7.1 no. 4 of the Aviation Security Act (Luftsicherheitsgesetz)
in conjunction with § 4.1 sentence 2 no. 3 of the Civil Aviation Act
(Luftverkehrsgesetz)). The Aviation Security Act was adopted in January
2005 as Article 1 of the Act on the Reorganisation of Aviation Security
Tasks (Gesetz zur Neuregelung von Luftsicherheitsaufgaben). The
submission orders arise from actions brought by private pilots
challenging the revocation of pilot’s licences to fly private aircraft
and gliders. The flying licences had been revoked because the plaintiffs
had not undergone the background checking required under the Aviation
Security Act and/or had not produced the necessary supporting documents.
The Administrative Court is of the opinion that the provisions under
which the plaintiffs in the original proceedings are subject to the
requirement of a background check are unconstitutional because the
Aviation Security Act required the consent of the Bundesrat.
The Second Senate of the Federal Constitutional Court has ruled that the
provisions submitted for review are constitutional.
In essence, the decision is based on the following considerations:
The Act on the Reorganisation of Aviation Security Tasks, as a
constituent part of which the Aviation Security Act was adopted, did not
require the consent of the Bundesrat.
No need for Bundesrat consent arises on the basis that the Act contains
provisions on the establishment of authorities (Article 85.1 sentence 1
of the Basic Law (Grundgesetz - GG)). Although the Aviation Security Act
does use the term “aviation security authorities”, it neither obliges
the Länder (states) to create new authorities nor otherwise affects the
competence of the Länder to organise their authorities.
The Act did not need Bundesrat consent on account of provisions on
administrative procedure contained in it. According to its wording,
Article 85.1 sentence 1 of the Basic Law does not create a basis for a
requirement of Bundesrat consent for provisions on administrative
procedure.
The Act did not require Bundesrat consent pursuant to Article 87d.2 of
the Basic Law. Under that provision, functions of air transport
administration may be delegated to the Länder acting on federal
commission (only) with the consent of the Bundesrat.
A statutory provision “delegates” functions to the Länder if it assigns
to them functions which were not previously incumbent upon them.
Accordingly, that depends first of all on a comparison of the functions
transferred to the Länder before and after the entry into force of the
Act on the Reorganisation of Aviation Security Tasks. That comparison
shows that the Act did not delegate any additional functions. Even
before its entry into force, “protection from attacks on the security of
air traffic” was delegated to the Länder by the Civil Aviation Act. The
Act on the Reorganisation of Aviation Security Tasks did not assign to
the Länder any functions which fall outside the scope of that function
which was already assigned previously.
Admittedly, even mere changes in the form of an already delegated
function may exceptionally constitute, in substance, a delegation of new
functions and therefore require Bundesrat consent if they confer a
fundamentally different meaning and scope on the delegated function.
However, a merely quantitative increase in workload is not, in
principle, sufficient for that. It certainly does not constitute a
fundamental change in the meaning and scope of a function delegated
pursuant to Article 87d.2 of the Basic Law if the exercise of the
delegated function is not structurally or otherwise significantly
changed by it. No such fundamental restructuring of the delegated
function was brought about by the Act on the Reorganisation of Aviation
Security Tasks.
Nor do the provisions which enable the Federation to take back to itself
functions of the aviation security authorities which were previously
delegated to the Länder (§ 16.3 sentences 2 and 3 of the Aviation
Security Act) give rise to a requirement of Bundesrat consent. They do
not govern the delegation of functions to the Länder, which alone,
according to the wording of Article 87d.2 of the Basic Law, requires
Bundesrat consent. No compelling reasons which could justify an
understanding which departs from the actual wording are apparent. The
particularly significant effect on the federal order and on the sphere
of interest of the Länder, which the requirements of Bundesrat consent
under the Basic Law take into account, is absent when the Länder are
divested of a sphere of functions which is not, in any case, assigned to
them according to the primary allocation of functions under the Basic
Law (see Article 87d.1 sentence 1 of the Basic Law).
The provisions under which the plaintiffs in the original proceedings
are subject to background checking are also substantively compatible
with the constitution. They do not infringe either fundamental rights or
the principle of the rule of law.
This press release is also available in the original german version.
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