Federal Constitutional Court - Press office -

Press release no. 18/2011 of 22 February 2011

Judgment of 22 February 2011 – 1 BvR 699/06 –

Freedom of Assembly also Applies at Frankfurt Airport


I. Facts of the case 

1. Frankfurt am Main Airport is operated by Fraport Aktiengesellschaft 
(Fraport AG), a stock corporation. The majority of its shares are in 
public ownership, divided between the Land (state of) Hesse and the City 
of Frankfurt am Main. Apart from the infrastructure which serves to 
handle air traffic, the airport comprises numerous facilities for 
consumer and leisure purposes which are open to the general public. 

2. The complainant is a member of an “Initiative against Deportations”, 
which objects to foreigners being deported with the cooperation of 
private airlines. In March 2003, the complainant, together with five 
other members of the initiative, distributed leaflets at a check-in desk
in the departure lounge of Frankfurt Airport which were directed against
a deportation. Fraport AG thereupon imposed an “airport ban” on her, 
stating that a criminal complaint for unlawful entry would be initiated 
against her as soon as she would again be found to “unjustifiedly” stay 
at the airport. In an explanatory letter, Fraport AG informed the 
complainant, making reference to its regulations for the use of the 
airport, that collections, advertisements and the distribution of 
leaflets required its consent and that “for reasons of smooth 
operational procedure and for safety reasons,” it did, “as a matter of 
principle, not” tolerate “demonstrations in the terminal that had not 
been coordinated [with Fraport AG] beforehand”. 

3. The action instituted by the complainant against Fraport AG before 
the civil courts for a declaration that the ban on demonstrating and on 
expressing one’s opinion imposed with regard to the premises of 
Frankfurt Airport was unlawful remained unsuccessful in all instances. 
By means of her constitutional complaint, the complainant inter alia 
challenges a violation of her fundamental rights to freedom of 
expression and freedom of assembly by the contested civil-court 
decisions. 

II. The Federal Constitutional Court’s decision 

The First Senate of the Federal Constitutional Court has decided with 
7:1 votes that the contested civil-court decisions violate the 
complainant’s fundamental rights to freedom of expression under Article 
5.1 sentence 1 of the Basic Law (Grundgesetz – GG) and to freedom of 
assembly under Article 8.1 GG, and has hence annulled them. The matter 
has been referred back to the Local Court (Amtsgericht) of Frankfurt am
Main for a new ruling. 

III. In essence, the decision is based on the following considerations: 

1. In its relation to the complainant, Fraport AG is directly bound by 
the fundamental rights. The use of private-law forms of organisation 
does not exempt state authority from its being bound by the fundamental 
rights pursuant to Article 1.3 GG. Like public enterprises that are in 
the sole ownership of the state and are organised in the forms of 
private law, enterprises owned both by private owners and the state 
(gemischtwirtschaftliche Unternehmen) on which the public authority has
a controlling influence, are directly bound by the fundamental rights. 
Pursuant to Article 1.3 GG, the fundamental rights shall bind the 
legislature, the executive and the judiciary as directly applicable law. 
They do not only apply to certain areas, functions or forms of action of 
the state’s assumption of its responsibilities but comprehensively bind 
state authority in its entirety. Article 1.3 GG is based on a 
fundamental distinction: while the citizen as a matter of principle is 
free, the state as a matter of principle is bound. Accordingly, the 
citizen is not directly bound by the fundamental rights but is 
recognised through them by the state as a free person who is responsible 
him or herself with regard to developing his or her personality. The 
imposition of obligations on the citizen by the legal order is relative 
and, as a matter of principle, limited from the outset; with regard to 
the imposition of obligations on the citizen, the state achieves a 
balance between the different holders of fundamental rights, thus 
indirectly bringing the fundamental rights to bear between them. In 
contradistinction to this, the state assumes its responsibilities in a 
fiduciary capacity on behalf of the citizens and is accountable to them. 
Its activities do not constitute an expression of free, subjective 
convictions through which personal individuality is realised. Instead, 
they keep a respectful distance to the different convictions held by the 
citizens and accordingly, the constitution comprehensively and directly 
commits the state’s activities to the fundamental rights. This also 
applies where the state makes use of the civil law when assuming its 
responsibilities. 

The direct binding force of the fundamental rights does not only apply 
to enterprises which are completely in public ownership but also to 
enterprises owned both by private owners and the state on which the 
public authority has a controlling influence. As a general rule, this is 
the case if more than half of the shares are publicly owned. The 
assumption that not only the shareholders but also the respective 
enterprise itself are directly bound by the fundamental rights 
corresponds to the enterprise’s nature as a single operating entity; 
this assumption ensures an effective binding force of the fundamental 
rights irrespective of whether, to what extent and in what form the 
owner or owners can exert an influence under company law on the 
management of business and of how, in the case of enterprises with 
different public shareholders, a coordination of the influence rights of 
several public owners can be guaranteed. This does not unjustifiably 
curtail the private shareholders’ rights: it is their free decision 
whether or not to participate in an enterprise on which the public 
authority has a controlling influence. Even if the majority situation 
changes only subsequently, they are, as is the case with other changes 
of majority situations, free to react to such change. Their legal 
position as holders of fundamental rights, especially of the fundamental 
right to property, directly vis-à-vis the public shareholders or 
vis-à-vis public authority in general remains unaffected at any rate. 

2. The contested decisions violate the complainant’s freedom of 
assembly. 

a) The area of protection of the freedom of assembly applies here. The 
freedom of assembly guarantees the holders of the fundamental right 
inter alia the right to freely determine the location of the assembly. 
However, it does not thereby provide them with the right of access to 
any location. In particular, assemblies cannot be organised without 
further ado on freely chosen private property. The freedom of assembly 
is, however, not restricted to public street space either. Instead, it 
ensures that assemblies can also be held in other places in which a 
public enterprise has opened a general public traffic. If today, the 
communication function of public streets and places is complemented to 
an increasing extent by other forums such as shopping centres or other 
meeting places, the traffic areas of such facilities cannot be exempted 
from the freedom of assembly to the extent that a direct binding force 
of the fundamental rights exists or that private individuals can be 
burdened through the indirect binding force of the fundamental rights in 
conflicts between private parties. This applies irrespective of whether 
the areas are located in premises of their own or are connected with 
infrastructure facilities, and whether they are indoors or outdoors. 

Places of general traffic for communication purposes, which, apart from 
public street space, can be used for organising assemblies are first of 
all only places which are open and accessible to the general public. In 
contrast, on the one hand, places the access to which is controlled 
individually and is only permitted for individual, restricted purposes 
are excluded from such use. On the other hand, the question of whether 
such a place that is located outside public streets, paths and places 
can be deemed a public space of communication can be answered according 
to the concept of the public forum. The characteristic of the public 
forum is that a variety of different activities and concerns can be 
pursued in it which results in a varied and open communication network. 
The meetings intended by the complainant fall within the area of 
protection of the freedom of assembly because they also concern areas of 
Frankfurt Airport which are designed as places of general traffic for 
communication purposes. 

b) The contested decisions encroach upon the freedom of assembly. In 
general, the provisions of the Assembly Act (Versammlungsgesetz), as the 
legal basis of encroachments by the authorities competent with regard to 
assemblies and by the police, also apply at Frankfurt Airport. Apart 
from this, encroachments by the airport operator can also rely on the 
right under private law of the owner of premises to undisturbed 
possession pursuant to § 903 sentence 1, § 1004 of the Civil Code 
(Bürgerliches Gesetzbuch – BGB) as a law restricting the freedom of 
assembly within the meaning of Article 8.2 GG. Assemblies in places of 
general traffic for communication purposes are outdoor assemblies within 
the meaning of Article 8.2 GG. This applies irrespective of whether the 
places which are open to the public are located out in the open or in 
closed buildings. What is decisive is that assemblies in such places for 
their part take place in a public space, i.e. surrounded by the general 
public and not spatially separated from it. 

c) The encroachment is not justified because the ban, which has been 
confirmed by the civil courts, is disproportionate. In principle, the 
authorisations under civil law cannot be interpreted in such a way that 
they go beyond the limits set by constitutional law to the authorities 
competent for assemblies. Under these limits, banning an assembly only 
comes into consideration if there is a direct danger, which can be 
ascertained from recognisable circumstances, to fundamental legal 
interests that rank equally with the freedom of assembly. This, however, 
is not an obstacle to specifically responding to the special potential 
danger involved with assemblies in an airport and to paying due account 
to the rights of other holders of fundamental rights. Here, the fact 
that an airport, in its primary function as a place in which air traffic 
is organised, is especially sensitive to disruptions also justifies 
restrictions that would not have to be tolerated under the precept of 
proportionality in public street space. The airport operator can 
establish, under the proviso of the requirements of constitutional law, 
transparent rules for the exercise of the right of assembly in the 
airport which are adapted to the situation of the location and 
especially to its specific conditions of operation, such as danger 
situations. The sovereign powers of the authorities competent for 
assemblies and of the police forces on the location remain unaffected by 
such rules. 

In the instant case, however, the ban imposed on the complainant 
prohibits her, without the existence of the forecast of a specific 
danger, from organising any assembly in every area of the airport for an 
unlimited period of time unless permission to organise such assemblies 
has been granted beforehand by Fraport AG on the basis of a 
fundamentally discretionary decision. This is not compatible with the 
freedom of assembly. 

3. The contested decisions also violate the complainant’s freedom of 
expression. 

a) The freedom of expression is also guaranteed to the citizens only in 
places to which the citizens actually gain access. Unlike in the case of 
Article 8.1 GG, the expression of opinion is broader already with regard 
to its area of protection, and it is not restricted to public forums 
that serve communication. For contrary to the freedom of assembly, which 
is exercised collectively, the exercise of the freedom of expression, as 
a right of the individual, as a general rule does not imply a particular 
need for space and also does not initiate a traffic of its own that 
typically results in nuisance. As a right of the individual, the 
citizens are fundamentally entitled to it wherever they are in a given 
moment. 

b) The ban, which has been confirmed by the civil courts, prohibiting 
the complainant from distributing leaflets in the airport without 
previously obtaining permission from Fraport AG is disproportionate. The 
wish to create a “feel-good atmosphere” in a sphere which is strictly 
reserved to consumer purposes and which remains free from political 
discussions and controversies in society cannot be invoked as a 
legitimate purpose for restricting the freedom of expression. What is 
also out of the question are bans which serve the purpose of preventing 
certain expressions of opinion for the sole reason that the airport 
operator does not share them, disapproves of their content or regards 
them as discrediting the business of an enterprise because of the 
critical statements it contains. In contrast, the use of the airport 
premises for disseminating opinions can be restricted and regulated 
according to functional aspects for the protection of legal interests, 
just as is the case with public street space. The restrictions must, 
however, comply with the principle of proportionality. This at any rate 
precludes generally prohibiting the distribution of leaflets in the 
airport, and thus also in the areas designed as public forums, or making 
it generally contingent on a permission. In contrast, to avoid 
disruptions, restrictions applying to certain places, manners or points 
in time of expressions of opin-ion in the airport are not on principle 
precluded. However, the contested decisions do not comply with these 
requirements. 

Dissenting opinion of Justice Schluckebier: 

1. The assumption of Fraport AG being directly bound by fundamental 
rights is correct as regards its result; the reasoning, however, is not 
sufficiently differentiated. The direct fundamental-rights commitment of 
Fraport AG, in its capacity as a stock corporation owned both by private 
owners and the state (gemischtwirtschaftliche Aktiengesellschaft), due 
to the controlling influence held by several holders of public 
authority, which, seen individually, are only minority shareholders 
besides private shareholders, can only be justified if the public 
shareholders have subjected their added participations in the share 
capital to a legally binding coordination of their influence potential, 
or if a synchronisation of interests is otherwise ensured. In the 
instant case, this prerequisite of the assumption of a controlling 
influence will probably be satisfied by the consortium agreement between 
the Federal Republic of Germany, the Land and a holding company of the 
City of Frankfurt. The Senate, however, does not make the coordination 
of influence potentials, which is recognised in company law as the 
standard for assuming a controlling influence, a requirement even though 
the “public shareholders” may, depending on the political majority, 
pursue divergent, possibly even opposite interests with regard to the 
airport. Furthermore, with its assumption that company-law powers of 
influence alone are unable to replace the fundamental-rights commitment 
of such com-panies even if the majority of added shares is more than 50 
%, the Senate majority creates a contradiction: if there were indeed 
shortcomings with regard to influence, the stock corporation itself for 
this very reason would not be permitted to be assigned to the executive 
power (Article 1.3 GG). Furthermore, the executive power as exercised 
state power is tied to its legitimisation by the people (Article 20.2 
GG), which would not be sufficiently ensured if the possibilities of 
exerting an influence on the part of the state authorities responsible 
were insufficient. 

2. The Senate majority extends the area of protection of the freedom of 
assembly, and in doing so, the right to obtain access for assemblies to 
so-called “public (meaning publicly accessible) forums”. It 
distinguishes them from locations which according to the external 
circumstances are available to the general public only for specific 
purposes, or which predominantly serve one specific function. The 
terminals of a major airport would have had to be exempted from the area 
of protection already according to this definition because they 
predominantly serve one specific function, namely the check-in of air 
passengers. To the extent that they at the same time provide shopping 
possibilities for travelling requisites, the “airport function” 
nevertheless remains the absolutely dominant one. 

The only consideration which the Senate puts forward in favour of the 
extension of the area of protection is basically that “today, the 
communication function of public streets and places” is “complemented” 
to an increasing extent by public forums within the meaning of the 
Senate majority’s definition. At present, however, the actual 
circumstances do not justify this evaluation. Shopping centres and 
restaurants have been integrated into major train stations or airports 
for a long time without them having been regarded as a considerable 
“competition” to public street space as a place for assemblies and 
without them even bringing about a devaluation of public street space as 
a place for assemblies. At present, there is therefore no reason to fear 
that the communication function of the street spaces which are 
conventionally used by the general public is undermined or even 
systematically reduced by the creation of “public forums” within the 
meaning of the judgment. 

Apart from this, the grounds of the judgment promote an understanding 
which suggests integrating also forums that are exclusively borne 
privately into the area of protection of the freedom of assembly as 
extended by the Senate majority. This would constitute a prior decision 
with regard to the conflicting situation between the fundamental right 
to property and the fundamental right of the freedom of assembly which 
would be taken at the level of the area of protection, and which would 
from the outset be in favour of Article 8 GG. 

3. It is true that in its examination of proportionality with regard to 
Article 8 GG, the Senate recognises the special sensitivity of the space 
for assemblies which it has opened. However, the conclusions which the 
Senate draws from this do not go far enough: In the terminals of a major 
airport, an interference that is merely slight can rapidly turn into a 
considerable, far-reaching disruption of operations, in particular if 
certain areas must be closed, which may, due to the tight network of air 
traffic, have effects on many other airports and their passengers. With 
regard to the number of passengers and the intensity of the disruptions, 
air passengers who want to exercise their freedom of movement and their 
general freedom of action can be affected much harder by disruptions of 
the operating procedures and possible closures than is generally the 
case with assemblies in public streets and places. It is exactly because 
of these specific features that the airport as one of major significance 
requires particular protection. The Senate would have had reason to give 
more specific indications with regard to location-specific possibilities 
of restricting the organisation of assemblies (e.g. restrictions in 
numbers so as to allow only small groups, and the exclusion of 
processions in the airport premises). Apart from this, it would also 
have been necessary to make it clear that the legislature has authority 
to introduce more restrictive rules in the law of assembly for such 
fragile “forums”. 

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