Summary:

I.

The injunctive proceedings before the administrative courts that gave rise to these preliminary injunction proceedings are linked to actions, brought by the applicant, against orders concerning three camps set up to protest against the expansion of the A49 motorway. The applicant had registered these protest camps as assemblies and they were to be set up between 1 September 2020 and 1 March 2021.

Proceedings 1 BvR 2146/20 concern an order in which the competent authority addressed several issues. First, it stated that the protest camp at the Schweinsberg fairgrounds did not fall within the scope of protection of the freedom of assembly insofar as it involved setting up and using tents for the overnight accommodation of participants as well as for supply facilities for the participants (no. 1). Secondly, the order stated that, insofar as the registration included individual acts such as rallies, speeches and workshops, these and the mobile catering stations adjunct thereto are covered by the protection of freedom of assembly, provided that these activities are undertaken peacefully and serve the public expression of opinion (no. 2). Thirdly, the order stated, “the holding of the events under no. 2 that are protected under assembly law” was subject to compliance with a number of conditions (no. 3). Among other things, the assembly was restricted to the time between 8 a.m. and 11 p.m. from 1 September 2020 to 20 October 2020 (condition a) and setting up tents for the purpose of “permanent accommodation (e.g. sleeping facilities) or regeneration” as well as setting up and operating “supply facilities for some time” (condition d) was prohibited. Furthermore, the competent authority ordered the immediate enforceability of the order.

The Administrative Court rejected the applicant’s application for injunctive protection by restoring the suspensive effect of the action. The Higher Administrative Court partially upheld the appeal. It restored the suspensive effect of the action with regard to no. 1 of the challenged order. For the rest, it rejected the application for injunctive protection.

Proceedings 1 BvR 2152/20 are based on another order concerning two other protest camps registered by the applicant. The “Northern Protest Camp” was to be set up on grasslands owned by a special purpose association of waterworks and located in a water protection area, in which camping and other activities are forbidden. The “Eastern Protest Camp” was to be set up on the Lehrbach sports ground. The competent authority prohibited both protest camps at the planned locations. The prohibition of the “Northern Protest Camp” was based, among other things, on water protection concerns. The “Eastern Protest Camp” was prohibited because the sports ground had to be kept clear as an area for the deployment of the fire department’s rescue services effective immediately and had also been leased to the police for the use as a helipad beginning 1 October 2020, even before the protest camp was registered.

The applicant challenged the decision of the administrative courts claiming a violation of his fundamental right to freedom of assembly and of the guarantee of effective legal protection.

II.

Based on the considerations below, the Federal Constitutional Court held that the applications for preliminary injunctions are partly well-founded.

In proceedings 1 BvR 2146/20, the constitutional complaint is manifestly well-founded insofar as the Higher Administrative Court refused to grant injunctive protection with regard to the conditions set out in the order under no. 3a) –  the time limit – and 3d) – the supply facilities. The Higher Administrative Court interpreted the applicant’s request for injunctive protection by the administrative courts in a manner that violates the guarantee of legal protection under the first sentence of Article 19.4 of the Basic Law. The Higher Administrative Court’s reasoning does not reflect full and correct consideration of the claim for legal protection brought by the applicant, namely by challenging the immediate enforceability of the conditions 3a) and 3d).

The Chamber issued this preliminary injunction effective 24 September 2020 in order to give the competent authority three days to react to this decision and to (re)issue any orders it deems necessary.

In proceedings 1 BvR 2152, a preliminary injunction was not issued insofar as the applicant seeks permission to set up the “Northern Protest Camp” at the watershed. This is because the weighing of consequences is in favour of upholding the immediate enforceability of the ban on the protest camp at this location, given that a tent camp of such scope risks contaminating the drinking water.

In respect of the “Eastern Protest Camp”, the application for preliminary injunction is partly well-founded. Thus, the suspensive effect of the applicant’s action must be restored to the extent that it concerns the protest camp in the period from 24 to 30 September 2020; thus, the order will not be immediately enforceable in respect of conditions 3a) and 3d).

From 1 October 2020, the required weighing of consequences must favour upholding the immediate enforceability of the site-related ban because, according to the plausible findings of the administrative courts, the sports ground will be used from that date on by police emergency forces, rescue services and the fire department, in particular as a helipad. For the period until 30 September 2020, however, there are no relevant plausible findings.

The Chamber restored the suspensive effect of the applicant’s action also effective 24 September 2020 in order to provide the competent authority sufficient time to react to the decision and, based on tenable reasoning, to issue any orders it deems necessary.