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Freedom of assembly also applies at Frankfurt Airport

Press Release No. 18/2011 of 22 February 2011

Judgment of 22 February 2011
1 BvR 699/06

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".