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Judgment in the “Garzweiler opencast lignite mine” case - Legal protection for persons affected by expropriation and resettlement strengthened

Press Release No. 76/2013 of 17 December 2013

Judgment of 17 December 2013
1 BvR 3139/08

The First Senate of the Federal Constitutional Court has strengthened the legal protection against major projects that involve resettlement and expropriation. Already at the stage of the official approval of the project, it is necessary to conduct an overall assessment of all public and private interests that exist in favour of, or against, the project. This overall assessment is the responsibility of the competent authorities, and it is primarily for the regular courts to review it; the Federal Constitutional Court is limited to conducting a review under constitutional law. The persons affected must already be granted legal protection against the official approval of the project. While the official approval of the framework operating plan (Rahmenbetriebsplan) for the Garzweiler opencast mine meets the constitutional requirements, this is not the case for the specific expropriation of a nature conservation association that is based on this plan. The Court does not go beyond a declaration of the violation of fundamental rights in this case, because even if the complaint were remitted to the regular courts, it could not have any further success.

Facts of the Case and Course of the Proceedings:

1. The Garzweiler opencast lignite mine in the federal state of North Rhine-Westphalia is based on lignite plans (Braunkohlenpläne) from 1984 and 1994/1995. By notification of 22 December 1997, the Düren Mining Office officially approved the "framework operating plan for the Garzweiler I/II opencast mine".

2. The complainant in the proceedings 1 BvR 3139/08 owns a piece of land in the mining area, namely in the Immerath part of the town of Erkelenz. He lives in a residential house built on this land. His constitutional complaint challenges the official approval notification of the Düren Mining Office, as well as the decisions by the authorities and administrative courts that confirmed it.

3. The complainant in the proceedings 1 BvR 3386/08 is a nature conservation association that is recognised in North Rhine-Westphalia. In 1998, it bought a piece of land, which had been scheduled to be utilised for the mining project. By order of 9 June 2005, the Arnsberg district government expropriated the association and transferred the property to the project developer. The complainant's constitutional complaint challenges the order of condemnation (Grundabtretungsbeschluss) by which the Arnsberg district government exercised the power of eminent domain, as well as the court decisions that confirmed this order.

Key Considerations of the Senate:

1. The constitutional complaint in the proceedings 1 BvR 3386/08 is, to the extent that it is admissible, also well-founded. The complainant has been expropriated by the challenged condemnation of its land; its fundamental rights under Art. 14 sec. 1 sentence 1 and Art. 19 sec. 4 sentence 1 of the Basic Law (Grundgesetz - GG) have been violated.

a) Pursuant to Art. 14 sec. 3 GG, an expropriation can only be justified by a sufficiently weighty public interest objective, the determination of which is reserved for the parliamentary legislature. For this determination, the legislature has a margin of appreciation which is subject to limited review by the Constitutional Court. The law must stipulate sufficiently precisely for which purpose, under what conditions, and for what kind of projects expropriations are permissible. In case of expropriations for the benefit of private parties which only indirectly serve the common good stricter requirements have to be met.

The expropriation is only permissible if it is necessary to achieve the public interest objective. In this context, one must distinguish between the necessity of the individual expropriation and the project's necessity for the common good. A project is necessary within the meaning of Art. 14 sec. 3 GG if it may reasonably be required for the public good because it substantially contributes to achieving the public interest objective. The expropriation itself, however, is only necessary if the expropriated good is indispensable for the realisation of the project.

The guarantee of effective legal protection against violations of the right to property is only sufficient if legal protection against the taking of property is available so early that, with regard to preliminary determinations or the actual execution of the project, one can still realistically expect an open-ended review of all expropriation requirements.

b) § 79 sec. 1 of the Federal Mining Act (Bundesberggesetz - BBergG) is in accordance with Art. 14 sec. 3 GG, as long as its public interest provision is interpreted in conformity with the Constitution. The wording suggests that in general, a condemnation (Grundabtretung) is permissible if it "benefits the public good," and that the expropriation purposes that are mentioned after the words "in particular" should only be considered as examples. Under such a broad interpretation, the provision would not be compatible with the Basic Law. However, the list of examples of expropriation purposes can also be understood as exhaustive. Under such an interpretation in conformity with the Basic Law, § 79 sec. 1 BBergG is consistent with Art. 14 sec. 3 GG, in so far as it refers to the "supply of the market with raw materials" as a public interest objective.

c) Partially inadequate are the expropriation provisions of the Federal Mining Act with respect to the required overall assessment and the necessary effective legal protection.

The provisions of the Federal Mining Act do not explicitly prescribe an overall assessment for the decision on the official approval of the framework operating plan. However, by its judgment of 29 June 2006 (BVerwGE 126, 205), which was rendered in the initial proceedings on the constitutional complaint 1 BvR 3139/08, the Federal Administrative Court has meanwhile responded to these shortcomings of the approval provisions for mining companies, and it has demanded that via § 48 sec. 2 BBergG the interests of the affected landowners are balanced against the legitimate interests of the mining industry. This understanding of statutory law leaves room for the constitutionally required overall assessment during the official approval of a framework operating plan.

Furthermore, the Act does not clearly stipulate whether the overall assessment is in any case required in the context of the respective condemnation. The overall assessment in the approval procedure for the framework operating plan does not render unnecessary the overall assessment in the order of condemnation, even if substantively, they are very similar. The framework operating plan does not provide any formal binding effect, especially no advance effect for an expropriation, with regard to the condemnation. According to the well-established case-law of the administrative courts, however, an expropriation for the extraction of mineral resources is in individual cases only permissible on the basis of an overall assessment; the legal situation has thus been sufficiently clarified.

d) The challenged decisions by the authorities and courts violate the complainant's rights under Art. 14 sec. 1 and 3 GG, because they have not made the required overall assessment with regard to the Garzweiler opencast mine, and because they are based on an interpretation of the Federal Mining Act which, at that time, had a structural deficit with regard to legal protection. Since the decision on the condemnation arises from a circumscribed power, the overall assessment can generally still be rendered in the course of the court proceedings. However, in the challenged judgment, the Higher Administrative Court (Oberverwaltungsgericht) refers with regard to numerous determinations and assessments of the facts, and without making its own examination of the facts, to what it considers the binding findings of its judgment on the complainant's previous legal action, which challenged the framework operating plan. In this earlier ruling, however, the Higher Administrative Court had adopted the view - in accordance with what used to be the case-law of the Federal Administrative Court - that the official approval of the framework operating plan cannot violate the rights of affected third parties. It held that only in the condemnation proceedings was there an interference with the right to property. Thus, the complainant is denied sufficient judicial review of the challenged condemnation.

e) Despite the success of the constitutional complaint, the Court only states the violations of the Constitution. A reversal of the challenged decisions is unnecessary, since a new decision on the merits could not confer on the complainant an advantage that would go beyond the declaration. The land has meanwhile been claimed by the opencast mine and returning it to the complainant would be without value. Furthermore, it is clearly foreseeable that, in case of an additional decision on the merits, the regular courts would arrive at the conclusion that the Garzweiler opencast mine could be considered as reasonably required to secure the energy supply, and that the overall assessment of the opencast mine would also stand up to an examination by the courts (see below under 2.).

2. The constitutional complaint in the proceedings 1 BvR 3139/08 is admissible, but unfounded.

a) The challenged official approval of the framework operating plan for the Garzweiler opencast mine does not interfere with the complainant's fundamental right to freedom of movement (Art. 11 GG).

Art. 11 GG also protects the right to remain at the place chosen in one's exercise of the right to freedom of movement, and thus generally protects against forced resettlements. However, it does not grant a right to take up residence and to remain in places in those parts of the Federation's territory where regulations on real estate or land use conflict with a permanent residence. At least when they apply generally and are not intended to specifically target the freedom of movement of certain persons or groups of persons, such provisions do not affect the scope of Art. 11 sec. 1 GG. An independent right to a homeland (Recht auf Heimat) is not guaranteed by Art. 11 sec. 1 GG. This does not result in a gap in protection. The affected persons' particular hardships, which result from the loss of social, regional and urban relations, can be considered in the context of the fundamental rights protection under Art. 14 sec. 1 and 3 GG, insofar as interferences with the right to property are concerned, and otherwise under Art. 2 sec. 1 GG.

b) The interference with the complainant's right to property (Art. 14 GG) as a result of the official approval of the framework operating plan is justified under the Constitution.

aa) Art. 14 GG protects the specific existence of residential property. Its existence also includes the established social and urban relations. This protection also applies to condominiums and to the right of possession of tenants of residential premises.

bb) While the official approval of the framework operating plan does not deprive the complainant of the ownership of his property, it does interfere with it. It contains, to his disadvantage, the finding that the opencast mine project is, in general, approvable. Another reason why the official approval of the framework operating plan interferes with the complainant's real estate is that, at least after this decision, a migration process starts in the communities affected by the opencast mining, which changes the social and urban environment in an increasingly massive way. Finally, the official approval also has advance legal effects with regard to the complainant's legal protection options against a subsequent condemnation. With the official approval of the framework operating plan, it is a given that at least the land in the middle of the area being mined will eventually be used. Insofar as the owner bases his arguments on the illegality of the project, the chances of success of an action against the condemnation diminish with increasing realisation of the opencast mining project.

cc) (1) Because of these advance effects, the interference with the right to property which follows from the official approval of the framework operating plan is only justified if the conditions for an expropriation are met at least in principle. This is the case if the public interest objective pursued by the opencast mining project derives from a sufficiently precise statutory public interest provision, if the project is reasonably required to achieve the public interest objective, if the decision-making process complies with minimum constitutional requirements, and if the official approval is reasonably based on a comprehensive overall assessment.

(2) The mining of lignite implements a public interest objective which is sufficiently defined by law and sufficiently viable. With which energy sources and in what combination of available energy sources the Federation and the federal states want to ensure a reliable energy supply is first and foremost an energy-policy decision. For this purpose, the Federation and the federal states have considerable flexibility in designing and a wide margin of appreciation. The Basic Law does not provide a standard which determines what kind of energy policy is the only constitutional option, or even the constitutionally preferable option, at a given point in time for the Federation or a federal state. The Federal Constitutional Court can thus only review fundamental decisions on energy policy with regard to whether they are obviously and clearly incompatible with the values of the Constitution, values embodied in particular in the fundamental rights or in the provisions on fundamental national objectives, here in particular the protection of the environment (Art. 20a GG).

The constitutional complaint proceedings have not shown that the fundamental energy-policy decision of North Rhine-Westphalia, favouring the continuation of lignite extraction in the medium term - including the way this relates to the specific decision in favour of the Garzweiler opencast mine - are constitutionally objectionable. The state government provides weighty public interest arguments for its approach, which emphasises the constant availability of a traditional raw material for a secure energy mix. Its assessment of the serious impact on people and the environment which follows from the mining of lignite and the generation of electricity from it are in any case not clearly incorrect. Whether this concept is also the best energy supply concept regarding energy policy, economy and ecology is not to be decided by the Federal Constitutional Court.

(3) The Garzweiler opencast lignite mine is necessary for the public interest objective to significantly contribute to the desired energy mix for the state of North Rhine-Westphalia through lignite extraction and its transformation into electricity. It is sufficient that the lignite extraction from this opencast mine substantially contributes towards achieving this public interest objective.

(4) The statutory provisions for the official approval of an opencast lignite mine project have shortcomings. What is not sufficiently clearly regulated are, first, the relationship between lignite planning under the North Rhine-Westphalian planning law and the approval of the framework operating plan under the Federal Mining Act, and second, the necessity of a uniform overall assessment. Nevertheless, the provisions, as interpreted by the Federal Administrative Court, still meet the constitutional requirements for a transparent and clear legal structure of the procedure and of the substantive decision making process, as well as the requirement for a clear allocation of responsibility.

The actual steps in the procedure that led to the official approval of the framework operating plan for the Garzweiler opencast lignite mine do not violate the constitutional minimum requirements.

In the case of the Garzweiler opencast lignite mine, the necessary overall assessment was made in a way that is ultimately not objectionable under the Constitution. In reviewing the decisions of the regular courts and the specialised authorities, the Federal Constitutional Court is limited to assessing whether they made considerable mistakes of constitutional relevance during the determination of facts, or whether they fundamentally misjudged in their overall assessment the importance of the affected fundamental rights - in particular those of Art. 14 sec. 1 GG - or of other values enshrined in the Constitution.

Based on the expected lignite quantities in the scheduled mining period 2001 to 2045, the Higher Administrative Court predicted that the mining project would considerably contribute to the generation of electricity. It went on to consider the mining project with respect to the leading policy decisions of the state government of North Rhine-Westphalia from 1987 to 1991, assessed its compatibility with the climate policy of Germany and the European Union as well as with the fundamental national objective in Art. 20a GG to protect the environment, and found the project to be, as a whole, sufficiently important.

The interests of the persons whose property is affected and who are to be relocated constitute a particularly weighty public interest, which conflicts with the opencast mine. One may very well doubt whether the Higher Administrative Court adequately stressed this major concern in the overall assessment. Such doubts, however, are ultimately not compelling. The Higher Administrative Court was clearly aware of the dimension of the resettlement, both with regard to the number of people affected and the specific hardships associated with the resettlement. The high number of around 7,000 people affected by the resettlement had been discussed from the very beginning of the planning as a central problem of this project. Accordingly, the lignite planning for the Garzweiler opencast mine, on which the decision of the Higher Administrative Court was also based, intensively and thoroughly collected information on the hardships of the resettlement and strived to minimise the consequences of the resettlement.