You are here:
Procedural challenges of temporary injunctions issued by the Hesse Administrative Court in the matter of Frankfurt/Main Airport unsuccessful
Press Release No. 18/2009 of 27 February 2009
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.