Judgment of 07 April 2016 -
BVerwG 4 C 1.15ECLI:DE:BVerwG:2016:070416U4C1.15.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its decisions, is German. This translation is based on an abbreviated version of the original decision. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this decision it is recommended to indicate the court, the date of the decision, the case number and the paragraph: BVerwG, Judgment of 07 April 2016 - BVerwG 4 C 1.15– para. 16.
Construction ban in the case of interference with air traffic control services (ATCS) facilities by building structures
The decision incumbent on the Federal Supervisory Authority for Air Navigation Services (Bundesaufsichtsamt für Flugsicherung) under section 18a (1) second sentence of the German Aviation Act (LuftVG, Luftverkehrsgesetz) concerning whether the erection of building structures may interfere with air traffic control services facilities is not an administrative act.
A construction ban under section 18a (1) of the German Aviation Act is not dependent on certainty that there is interference with air traffic control services facilities; the possibility of interference is sufficient. This possibility exists if the relevant assumptions in the air traffic control services operator’s expert opinion and the decision of the the Federal Supervisory Authority for Air Navigation Services based thereon meet scientific standards and their basic assumptions, methodology and conclusions are not called into question by opposing scientific standpoints, at least not in substance.
Sources of law
German Aviation Act LuftVG, Luftverkehrsgesetz section 18a (1) first and second sentence, section 19 Chicago Convention article 37, annex 10 German Regulation on Type Certification for Air Navigation Equipment FsMusterzulV, Verordnung über Art, Umfang, Beschaffenheit, Zulassung, Kennzeichnung und Betrieb von Anlagen und Geräten für die Flugsicherung (Flugsicherungs-Anlagen- und Geräte-Musterzulassungs-Verordnung) section 4, section 6 first sentence
Summary of the facts
The claimant requests that a site-related administrative act deciding on one or several aspects of a petition beforehand (Vorbescheid) be issued under immission control legislation for the erection and operation of four wind turbines. The envisaged sites of the turbines are at a minimum distance of approx. 1,600 m from an air traffic control services (ATCS) facility owned and operated by the third party no. 2 (a third party summoned to attend the proceedings as a party whose rights may be affected (Beigeladene, referred to hereinbelow as the “summoned third party no. 2). North-east of this facility - at a distance of 2,200 to 3,200 m - there is inter alia a wind park with eight wind turbines. Furthermore, nine other wind turbines were known to exist in the building-restricted area around the ATCS facility at the time of the application.
Due to a legal amendment, as a result of which the notification of the agency responsible for air traffic control previously provided for in section 18a (1) of the German Aviation Act (LuftVG, Luftverkehrsgesetz) had been replaced by means of a decision by the newly established Federal Supervisory Authority for Air Navigation Services (Bundesaufsichtsamt für Flugsicherung), the latter initially informed the relevant authority that section 18a LuftVG only prevented the construction of three of the four wind turbines for which an application had been made. The the Federal Supervisory Authority for Air Navigation Services rejected the objection (Widerspruch) filed by the project developer against this decision as inadmissible because the decision under section 18a (1) LuftVG did not constitute an independently challengeable administrative act. The Federal Supervisory Authority for Air Navigation Services later informed the competent authority that, according to the expert opinion of the summoned third party no. 2, section 18a LuftVG prevented the construction of all four wind turbines.
The Administrative Court dismissed the action in part.
The Higher Administrative Court dismissed the claimant’s appeal, and upon the appeal of the summoned third parties no. 2 and 3, dismissed the action in its entirety since there may be an interference with ATCS facilities.
The claimant’s appeal on points of law challenges this decision.
8 The claimant’s appeal on points of law is without merit. The contested judgment does not violate federal law.
9 A. The Higher Administrative Court rightly found that a construction ban pursuant to section 18a (1) LuftVG prevents the issuance of an administrative act deciding on one or several aspects of the petition beforehand (Vorbescheid) for the erection and operation of four wind turbines.
10 1. However, the construction ban does not result merely from the fact that the claimant did not file any (further) legal remedies against the decision in which the Federal Supervisory Authority for Air Navigation Services affirmed the existence of an interference with ATCS facilities by the claimant’s project under section 18a (1) second sentence LuftVG. This is because the decision could not become legally binding as it was not an administrative act. Its effect remains internal to the administration in accordance with the statutory framework (…); it does not aim for direct external legal effect. The decision is announced - only - to the competent regional aviation authority (section 18a (1) third sentence LuftVG). In accordance with the predecessor provision that applied until 2009, an interference with ATCS facilities was to be “notified” to this authority. The amendment aimed to make binding on other authorities any detection of an interference; however, the legislator discernibly did not associate with this any amendment to the decision’s legal quality vis-à-vis anyone affected by the construction ban (cf. explanatory memorandum on the draft legislation, Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 16/11608 p. 15). Rather, also in view of the requirements for constitutional clarity and effective legal protection, administrative procedures (here: Trägerverfahren) continue to be required, enabling the decision of the Federal Supervisory Authority for Air Navigation Services to gain external effect vis-à-vis these parties concerned.
11 2. The examination thus necessary of the requirements for application of section 18a (1) LuftVG by the Higher Administrative Court is unobjectionable.
12 a) The Higher Administrative Court found that there is interference with an ATCS facility within the meaning of section 18a (1) LuftVG if it does not comply with the required error tolerance, and thus does not work with the requisite precision. The previous instance thus assumed a technical, objective definition of interference. In contrast, the claimant considers an interpretation based on article 14 of the Basic Law (GG, Grundgesetz) and on the principle of proportionality to be appropriate, which asks whether a technically detectable impact on an ATCS facility restricts its function in an unacceptable way. In substance, this criticism aims to balance air traffic control and ownership interests - which the Higher Administrative Court did not undertake to do.
13 section 18a (1) LuftVG does not leave any scope for such balancing in interpreting the concept of interference, however. It is inconceivable that the extent of the acceptable functional limitation of an ATCS facility should depend on the intensity of the ownership interests affected by a construction ban, something the claimant did not question at the hearing. Neither the provision in question nor systematic considerations provide a starting point for such an interpretation. It is correct that not every impact on an ATCS facility is to be defined as interference. Interference only occurs when impacts on ATCS facilities resulting from a building structure exceed a certain - fixed - threshold, resulting in an impairment of their function (cf. already the explanatory memorandum on section 18a LuftVG, old version, BT-Drs. 8/3431 p. 11). Whether this threshold has been reached has to be determined in consideration of the task of air traffic control as specified in section 27c (1) LuftVG (…). In accordance with this definition, interference exists if, due to a construction, the functioning of an ATCS facility is impaired to such an extent that it has an impact on the safe, orderly and smooth flow of air traffic. The Higher Administrative Court recognised this, just as it recognised the fact that in this respect, consideration has to be given not only to dangers to air safety or to the possibility of a specific occurrence of damage (for example, the dangerous approach of aircraft or a collision).
14 It is not discernible that this interpretation contradicts the constitutional protection of property rights. In refraining from relativising the concept of interference, the legislator made a conscious and conclusive decision to prioritise the concerns of air traffic control and of the protection of life and health those services aim to achieve over ownership interests. The legislator decided thus to define the content of the property rights affected by the construction ban accordingly and expressed the priority of air traffic control, which is unobjectionable in view of the far-reaching consequences of interference on the specified objects of protection, inter alia in the compensation provision in section 19 (1) LuftVG.
15 b) Due to the lack of statutory or other legal specifications, the Higher Administrative Court referred to guidelines and recommendations regarding subjects concerning aviation based on the Convention on International Civil Aviation of 7 December 1944 (Federal Law Gazette (BGBl., Bundesgesetzblatt) 1956 II p. 41) - the Chicago Convention - in order to decide the question as to whether interference with ATCS facilities is caused by building structures. It based its arguments on provisions of annex 10 of the Convention and on provisions of the European Authority of the International Civil Aviation Organisation ICAO (ICAO EUR Doc 015), which was founded as a result of the Convention. No objections are to be raised thereto. While these provisions are not directly applicable, they do reflect internationally recognised and best available rules of technology, practice and standardisation, which may be used as a guide in interpreting and applying section 18a (1) LuftVG. That corresponds to a broad consensus in the jurisprudence and literature (…) and already appears reasonable in view of article 37 of the Chicago Convention, under which the contracting states undertook to apply the guidelines, recommendations and procedures in order to achieve the highest practicable degree of uniformity in all matters in which such uniformity will facilitate and improve air navigation.
16 The plaintiff did not call this into question. However, it aims to draw different conclusions from the relevant ICAO documents from those drawn by the Higher Administrative Court. This complaint of incorrect interpretation and application is unsuccessful on account of the non-appealability of these provisions before the Federal Administrative Court.
17 Technical rules, such as those arising from ICAO documents, have only the significance of general experience, with the result that their interpretation and application are part of the assessment of facts and evidence by the court assessing the facts and thus can be contested in appeal on points of law proceedings only by means of claiming procedural irregularities under the conditions and restrictions applying thereto (cf. only BVerwG, decision of 14 August 1998 - 4 B 81.98 (...)). However, the claimant did not claim that there had been any procedural errors.
18 Contrary to the claimant’s view, the ICAO regulations were not to be regarded as administrative regulations specifying provisions, to which jurisprudence exceptionally grants legislative character, and thus appealability before the Federal Administrative Court, because they ascribe to themselves only the character of recommendations, leave scope of action that has to be filled and in any case do not make or claim any conclusive normative specification - unlike the Technical Instructions on Noise Abatement (Technische Anleitung (TA) Lärm), for instance (cf. BVerwG, judgments of 29 August 2007 - 4 C 2.07 - BVerwGE 129, 209 para. 12 and of 29 No¬vember 2012 - 4 C 8.11 - BVerwGE 145, 145 para. 18 et seq.).
19 c) Furthermore, the Higher Administrative Court correctly found that a prediction is required as to whether the planned project is likely to interfere with an ATCS facility in order for the Federal Supervisory Authority for Air Navigation Services to take a decision under section 18a (1) LuftVG. In the context of this assessment, the Higher Administrative Court’s identification of the alignment error (within the facility) was based on the error tolerance within the facility permitted on the basis of the authorisation decision pursuant to section 6 (1) first sentence and section 4 of the Regulation on Type Certification for Air Navigation Equipment (FsMusterzulV, Verordnung über Art, Umfang, Beschaffenheit, Zulassung, Kennzeichnung und Betrieb von Anlagen und Geräten für die Flugsicherung (Flugsicherungs-Anlagen- und Geräüe-Musterzulassungs-Verordnung)) and not on the facility’s actual performance, which would have been better.
20 The claimant claims that the occurrence of interference cannot be concluded from this with the necessary sufficient degree of probability. It is to be conceded to the claimant that section 18a (1) LuftVG serves to prevent specific interference with ATCS facilities, but not to protect what has been legally permitted by authorisation of the facility. If the facility’s operations surpass legal requirements, observing other binding specifications so that the relevant overall angular misalignment is reliably not exceeded, interference is unlikely and there is absolutely no reason and probably also no justification regarding the construction ban possibly associated with it to view the legally permissible error tolerance as authoritative. That does not require a final decision to be taken, however. This is because the Higher Administrative Court also provided a self-sufficient substantiation of the applicability of the permissible facility error tolerance by stating that compliance with a lower alignment error, recording the actual performance of the facility, cannot be guaranteed by the summoned third party no. 2 because the results of the flight measurements required for this are only snapshots that do not necessarily represent the worst case that is relevant for the calculation. To this extent, the claimant also did not claim there had been any procedural error, so that the Senate is bound by this assessment (section 137 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). If on this basis the Higher Administrative Court sees the legally permissible error tolerance in the present connection as the "only binding specification", this is unobjectionable, at least under Federal law.
21 d) The further objection of the claimant that, in its court examination of the decision under section 18a (1) LuftVG, the Higher Administrative Court impermissibly limited itself to simply carrying out a tenability check (Vertretbarkeitskontrolle), is also incorrect.
22 The Higher Administrative Court explicitly and rightly denied that section 18a (1) LuftVG allows a margin of appreciation for the summoned third party no. 3 covering the entire interpretation and application of the provision for the decision as to whether interference to ATCS facilities may be caused by the construction of buildings (…). To this extent, the criticism of the claimant fails to address the judgment. The Higher Administrative Court examined whether building structures exceed the tolerance values reasonably derived from the relevant ICAO documents only for the case of the ICAO provisions being inconsistent and insofar the Court limited itself in substance to a tenability check following the wording of the Federal Administrative Court on the prerogative of carrying out a nature conservation evaluation (cf. for example BVerwG, judgments of 9 July 2008 - 9 A 14.07 - BVerwGE 131, 274 para. 64 et seqq.; of 27 June 2013 - 4 C 1.12 - BVerwGE 147, 118 para. 14 et seqq. and of 21 November 2013 - 7 C 40.11 - (…) para. 16 et seqq.). However, this approach is unobjectionable with regard to the principle deriving from article 19 (4) first sentence GG that administrative activities are entirely subject to court examination (on this subject see BVerfG, judgment of 20 February 2001 - 2 BvR 1444/00 - BVerfGE 103, 142 <156>). The limited regulatory scope arising at certain points therefrom finds a sufficient statutory basis and is supported by sufficiently weighty reasons based on the principle of effective legal protection (concerning these requirements cf. BVerfG, decision of 31 May 2011 - 1 BvR 857/07 - BVerfGE 129, 1 <22>; (…).
23 Under section 18a (1) LuftVG, it is sufficient for a construction ban that there “may be an interference” with ATCS facilities as a result of the erection of a structure. Unlike the previous version valid until 2009, according to which the authoritative standard was whether there “is an interference with” ATCS facilities, the provision thus, according to the will of the legislator, does not require interference to be certain; instead, it is sufficient that it is possible. If the ICAO provisions are not helpful on account of their inconsistency, as in this case following the factual findings of the Higher Administrative Court, which cannot be contested in proceedings on points of law before the Federal Administrative Court, further-reaching insights and evaluations are necessary with regard to the possibility of interference. In view of the importance of the legally protected interests at risk and the likely intensity of damage, the authority of these insights and evaluations cannot be dependent on whether there is a general scientific consensus on them. Rather, it has to be sufficient that the relevant assumptions in the expert opinion by the German air navigation service provider Deutsche Flugsicherung (DFS), prescribed by section 18a (1) second sentence LuftVG, and the decision of the Federal Supervisory Authority for Air Navigation Services based thereon, which the law, while not guaranteeing their correctness, assigns outstanding status in comparison with other official expert opinions and decisions (…), conform to scientific standards and are at least not substantially called into question by opposing scientific positions in their basic assumptions, methodology and conclusions. This is because the possibility of interference is thus demonstrated.
24 It would exceed the functional limits of administrative jurisdiction (cf. op. cit. BVerfG, decision of 17 April 1991 - 1 BvR 419/81, 1 BvR 213/83 - BVerfGE 84, 34 <50>) if the administrative courts were expected to decide between reasonable scientific positions in such a situation (cf. in particular BVerwG, judgment of 27 June 2013 - 4 C 1.12 - BVerwGE 147, 118 para. 15). It is neither the task of the administrative courts to decide on controversial academic questions nor to commission research to facilitate or promote such a decision. Contrary to the claimant’s view, that also applies in view of the dual status of DFS as a party entrusted with performing sovereign functions (Beliehener) on the one hand and a private third party operating economically on the other, from which the claimant attempts to conclude that DFS has a private economic interest that influences its expert opinion (…). It was after all the privatisation of DFS that was the reason for the described amendment of section 18a LuftVG (cf. explanatory memorandum, BT-Drs. 16/11608 p. 15) and the legislator was thus aware of this. However, this did not prevent the legislator from amending the substantive requirements for a construction ban and strengthening the procedural importance of the expert opinion of DFS and the decision of the Federal Supervisory Authority for Air Navigation Services based thereon vis-à-vis the earlier legal situation. This connection does not raise any constitutional concern with regard to the unchanged public ownership of DFS and the superior decision-making competence of the Federal Supervisory Authority for Air Navigation Services, a public authority. In any case, there is no reason to call into question from the outset the objectivity of the expert opinion of DFS on account of other indicators not invoked and not apparent here.
25 The Higher Administrative Court has affirmed the factual preconditions for the tenability control used by the Higher Administrative Court to the extent described, namely, the existence of opposing scientific positions which cannot be further clarified on the questions of relevance to the decision which were answered inconsistently by the ICAO specifications. Following a discussion lasting several hours at the hearing, involving specialised support for the claimant, the Court concluded that in view of the openness of the scientific discussion, particularly on the question of external interference by the planned wind turbines, and on account of the fact that no more appropriate experts are available alongside the experts already involved, a reliable answer that removes existing inconsistencies cannot be found. In this respect, the claimant also did not claim that there have been any procedural errors. The Senate is therefore bound by these findings of the Higher Administrative Court (section 137 (2) VwGO). However, it points out that the justification of a mere tenability control to the extent used here by the Higher Administrative Court may lapse, particularly as a result of further developments in the relevant scientific knowledge and standards. That may be assumed, for example, if and insofar as a certain method has become established for determining possible interference with an ATCS facility or for evaluating the risk of a certain benchmark and opposing views are regarded as being no longer tenable. This has to be taken into account by DFS and the Federal Supervisory Authority for Air Traffic Control in their expert opinions or decisions and is subject to administrative court control in subsequent court proceedings (cf. BVerwG, judgment of 21 November 2013 - 7 C 40.11 - (…) para. 19).
26 B. The Higher Administrative Court was only allowed to admit the appeals on points of fact and law of the summoned third parties no. 2 and 3 against the judgment of the Administrative Court, which found partly in favour of the claimant, if these parties’ subjective legal positions were infringed by the first-instance judgment, which places a partial obligation on the defendant to issue the preliminary decision requested by the claimant (cf. for example BVerwG, judgment of 15 February 1990 - 4 C 39.86 - (…) para. 15 with further references). This is the case.
27 For the summoned third party no. 2, this results from the fact that section 18a (1) LuftVG takes effect in its favour to protect third parties, at least to the extent that the summoned third party no. 2’s function as owner and operator of the ATCS facility is concerned. This provision not only serves the interest of the general public (…). It goes beyond the function of a preventive security provision because it aims to protect ATCS facilities and in doing so also includes their privatised owners and operators as entitled persons to be distinguished from the general public (concerning this criterion, cf. for example BVerwG, judgment of 10 April 2008 - 7 C 39.07 - BVerwGE 131, 129 para. 19) and does not only reflexively favour them in any conflict with specific neighbourhood interests.
28 A subjective legal position also supports the summoned third party no. 3’s claim. This is because it is not affected merely as an authority taking part in administrative proceedings, but as an independent legal entity in the decision-making powers of its core area of responsibility, performed as a federal administration, which are binding on other authorities (cf. BVerwG, judgments of 14 April 1989 - 4 C 31.88 - BVerwGE 82, 17 <18 et seqq.> and 29 January 1991 - 4 C 51.89 - BVerwGE 87, 332 <338>), through measures by a public authority of another legal entity. Otherwise, the construction ban for which the Federal Supervisory Authority for Air Traffic Control is substantially responsible would have to come to nothing on account of the lack of joint top-level administration of the two authorities (cf. in this respect BVerwG, judgment of 22 June 1995 - 7 C 49.93 (...)).
29 The Higher Administrative Court correctly recognised and implemented both of these aspects in its decision. Thus, the appeal on points of law did not make any criticism in this regard.(…)