CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 8 octobre 2024

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Behrens of the Federal Ministry of Justice, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1 .     The application concerns the determination of a flight path at Berlin Brandenburg Airport. The planning approval procedure concerning the development of that airport and subsequent developments are set out in detail in Büttner and Krebs v. Germany ((dec.), no. 27547/18, §§ 5-20, 27 June 2024). The applicants are homeowners in Berlin’s Friedrichshagen district, on the northern shore of lake Müggelsee, north-east of the airport’s northern runway. The outline plan presented in 1998 was based on projected flight paths which did not entail noise pollution for Friedrichshagen. The planning decision approving the development of the airport, which was adopted in 2004, stated that the flight paths as set out in the outline plan represented a persuasive concrete basis for determining the airport’s noise impact, that the determination of the flight paths was not the subject of the planning approval procedure and that such determination was to be made by the Federal Supervisory Authority for Air Navigation Services (“BAF”) by a separate decision immediately before the airport started operating (see ibid., § 15). In 2012 the BAF issued the 247 th Ordinance Implementing Air Traffic Regulations (“the 247 th DVO”) by which it determined the final flight paths (see ibid., § 20). One flight path set by the BAF overflew the Müggelsee area (“the Müggelsee flight path”). The applicants submitted that they were affected by aircraft noise from the Müggelsee flight path, contrary to the initially projected flight paths. 2.     The applicants brought actions in court by which they sought a finding that the 247 th DVO was unlawful and that the determination of the Müggelsee flight path breached their rights. The authorities had failed to conduct a new environmental impact assessment for the Müggelsee flight path and accordingly failed to respect their participatory rights which formed part of such assessment. The 247 th DVO was also based on a deficient balancing of interests. In particular, that ordinance failed to consider that there had been no indication during the planning approval procedure that the Müggelsee area would be overflown and their legitimate expectation to that effect had been unlawfully frustrated. The Müggelsee flight path exposed them to unreasonable aircraft noise. 3 .     The Berlin-Brandenburg Court of Appeal dismissed the applicants’ actions as ill-founded, finding that the Müggelsee flight path set by the 247 th DVO was lawful and did not infringe the applicants’ rights. During the planning approval procedure, the planning authority had examined the entirety of the area surrounding the airport which could be affected by noise from it, as it had to consider the possibility that flight paths other than those projected in the outline plan might be set later. There were no indications that the Müggelsee flight path entailed an environmental impact which had not been assessed during the planning approval procedure; the results of the environmental impact assessment that had been conducted were also relevant for the Müggelsee flight path. The planning decision had contained no prohibition on the Müggelsee being overflown, nor ruled out such overflights de facto . 4 .     With regard to the substantive legality of the determination of the Müggelsee flight path, the Administrative Court of Appeal further found that the balancing performed by the BAF had not been deficient. As the applicants themselves had submitted, the projected noise levels to which they were exposed by the Müggelsee flight path were below the threshold entitling individuals to noise protection measures under domestic law; in other words, the noise impact to which they were exposed was reasonable. Given that the noise impact on the applicants was below the said threshold, the scope of judicial review of the determination of the flight paths was limited: it was sufficient to conclude that the BAF had not overstepped its margin of appreciation, if there was a plausible reason for the chosen flight path and the BAF had not disregarded an alternative flight path that was clearly preferable in terms of noise impact while ensuring essential aviation safety requirements. These requirements were satisfied in the present case. In particular, the BAF had explained that, compared to the initially projected flight paths, the Müggelsee flight path resulted in fewer persons being affected by unreasonable noise levels; this justified a larger number of persons, including the applicants, being affected by low noise levels. In so far as the applicants had pointed to a specific alternative flight path, they had failed to rebut safety concerns. 5 .     Finally, the Administrative Court of Appeal found that the applicants could not rely upon a breach of the principle of legitimate expectations imposed by the rule of law: during the planning approval procedure, the determination of flight paths which differed from those projected in that procedure had never been ruled out and uncertainty as to the noise impact was inherent in that procedure because flight paths were, at that time, not yet determined. 6 .     By a judgment of 18 December 2014, the Federal Administrative Court dismissed the applicants’ appeal on points of law. It considered, in particular, that the Administrative Court of Appeal had rightly found that the determination of the Müggelsee flight path by the 247 th DVO had not breached any binding obligations arising from the planning decision and that the BAF’s balancing of the competing interests had not been deficient and had not infringed the applicants’ rights. The Administrative Court of Appeal had correctly established that the noise levels to which the applicants were subjected by the Müggelsee flight path were below the threshold of unreasonableness which would entitle them to noise protection measures and had rightly concluded that the BAF had not overstepped its margin of appreciation. The Federal Administrative Court further endorsed the Administrative Court of Appeal’s finding that the determination of the Müggelsee flight path had not breached the principle of legitimate expectation imposed by the rule of law. It added that the BAF was obliged, ex officio , to monitor future developments and, if need be, to review its balancing of the competing interests. If the number of flights exceeded the projections, a balancing of interests which had initially not infringed residents’ rights could infringe them later on account of an increase in the number of flights and corresponding noise impact. As residents could choose the moment of such subsequent judicial review, they were not at risk of a gap in legal protection. 7.     By a decision of 19 August 2019 the Federal Constitutional Court declined to accept the applicants’ constitutional complaint for adjudication, without providing any reasons. The decision was served on the applicants’ counsel on 2 September 2019. 8 .     Relying on Article 6 § 1 of the Convention, as well as on Article 13 of the Convention in conjunction with Article 8 and Article 1 of Protocol No. 1 to the Convention, the applicants complained of lack of an effective remedy against the determination of the Müggelsee flight path, alleging that the scope of judicial review exercised by the domestic courts had been too narrow. They further alleged a violation of their rights under Article 8 and Article 1 of Protocol No. 1 because their legitimate expectations that the final flight paths would correspond to the projected flight paths as set out, in particular, in the planning approval procedure and the planning decision, had not been respected; this rendered the interference with their rights disproportionate. THE COURT’S ASSESSMENT 9.     In so far as the applicants alleged that they did not have at their disposal an effective remedy to challenge the Müggelsee flight path, the Court reiterates that the expression “effective remedy” used in Article 13 of the Convention cannot be interpreted as a remedy that is bound to succeed; it simply means an accessible remedy before an authority competent to examine the merits of a complaint (see Nationaldemokratische Partei Deutschlands (NPD) v. Germany (dec.), no. 55977/13, § 23, 4 October 2016). In the present case, the domestic courts examined the substance of the applicants’ complaints concerning the determination of that flight path and explained why that measure had been lawful and, in particular, why the balancing of interests on which that measure had been based had not been deficient and had not infringed the applicants’ rights. Having regard to the reasons given by the domestic courts for their findings (see paragraphs 3-6 above), the Court considers that there are no indications that the extent of their review of the determination of the Müggelsee flight path was not sufficient to comply with Article 13 of the Convention (compare and contrast Hatton and Others v.   the   United Kingdom [GC], no. 36022/97, §§ 141 and 142, ECHR   2003 ‑ VIII). The applicants’ complaint under Article 13 of the Convention in conjunction with Article 8 and Article 1 of Protocol No. 1 to the Convention is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. 10.     In so far as the applicants’ identical complaint under Article 6 § 1 of the Convention is concerned, it is likewise manifestly ill-founded ( Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 179, 6 November 2018). In essence, the applicants’ complaint is directed at the application of domestic law by the domestic courts. Having regard to the reasons given by the domestic courts (see paragraphs 3-6 above) and to the documents in its possession, the Court considers that there are no indications that their findings were arbitrary or manifestly unreasonable (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, § 149, 17   October 2019). It follows that the applicants’ complaint under Article   6   §   1 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. 11.     As regards the applicants’ complaint under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, the Court notes that they argued that their legitimate expectations that the final flight paths would correspond to the projected flight paths as set out, in particular, in the planning approval procedure and the planning decision, had not been respected and that this rendered the interference with their rights under those provisions disproportionate (see paragraph 8 above). The Court observes that the planning decision stated that the determination of the flight paths was not the subject of the planning approval procedure and that such determination was to be made at a later stage in separate proceedings (see paragraph 1 above). It is therefore doubtful whether the applicants can be said to have had legitimate expectations as to specific flight paths based on the planning approval procedure and the planning decision. Even assuming that the applicants can be said to have had such legitimate expectations, the Court notes that the domestic courts assessed whether the Müggelsee flight path constituted a disproportionate interference with the applicants’ rights. Having regard to the reasons advanced by the domestic courts (see paragraphs 4-6 above), there are no indications that the domestic courts failed to strike a fair balance between the competing interests. It follows that the applicants’ complaint under Article 8 and Article 1 of Protocol No. 1 is manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. 12.     In view of the foregoing, the Court concludes that the application is manifestly ill-founded and that, as such, it must be rejected pursuant to Article   35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 7 November 2024.     Simeon Petrovski   Faris Vehabović   Deputy Registrar   President       Appendix List of applicants: Application no. 12974/20 No. Applicant’s Name Year of birth Nationality Place of residence 1. Sondang Frieda SIMATUPANG HERMANN 1965 German Berlin 2. Antje HRDINA 1960 German Berlin 3. Stephanie IHLE 1979 German Berlin 4. Helmut Wilfried Julian JAHNE 1961 German Berlin 5. Konrad KOBEL 1962 German Berlin