Application for judicial review submitted by Bavaria and Hesse concerning the Aviation Security Act partially successful

Press Release No. 27/2013 of 18 April 2013

Order of 20 March 2013
2 BvF 1/05

The Second Senate of the Federal Constitutional Court has reached a decision in the abstract judicial review proceedings initiated by the Bavarian State Government and the Hesse Land Government concerning provisions of the Aviation Security Act (Luftsicherheitsgesetz – LuftSiG). The application concerned, firstly, the provisions of the Aviation Security Act on the deployment of the armed forces in the event of a particularly grave accident emanating from an aircraft (§§ 13-15 LuftSiG). Secondly, review was also requested of the statutory provisions that allow the Federation to reclaim, by means of a decision by the Federal Ministry of the Interior, control over aviation security tasks that had been transferred to the Länder to perform on the Federation’s behalf (§16(3) second and third sentences in conjunction with §16(2) LuftSiG and Art. 2 no. 10 of the Act on the Reorganisation of Aviation Security Tasks (Gesetz zur Neuregelung von Luftsicherheitsaufgaben) of 11 January 2005).

As regards §14(3) LuftSiG, which governs the direct use of armed force against aircraft, the application was declared moot following the Judgment of the First Senate of 15 February 2006 – 1 BvR 357/05 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 115, 118), in which this provision was declared void. The proceedings on this point were therefore discontinued.

In the Order of 20 March 2013, published today, the Court held that §13(3) second and third sentences of the Aviation Security Act, which provides for the Federal Minister of Defence to take urgent decisions on the deployment of the armed forces in inter-regional disaster emergencies, was incompatible with the Basic Law and was void. The rest of the provisions reviewed were held to be constitutional.

Today’s Order follows an examination of some of the issues by the Plenary of the Federal Constitutional Court. The Plenary, in its decision (Order of 3 July 2012 – 2 PBvU 1/11 – see Press Release No. 63/2012 of 17 August 2012, in German only), ruled on three constitutional issues regarding which the Second Senate sought to deviate from a 2006 judgment of the First Senate. The present Order had to be based on the legal view expressed by the Plenary on these issues.

This decision is essentially based on the following considerations:

1. Four Justices have retired from the Senate since the initial deliberations took place on 24 November 2009. Pursuant to §15(3) second sentence of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsricht – BVerfGG) the deliberations must begin anew, since the Justices who have joined the Senate, Justices Huber, Hermanns, Müller and Kessal-Wulf, may not step in to continue the ongoing deliberations and the four remaining Justices from the original panel do not constitute a quorum. A new oral hearing was not required because the applicants waived their right thereto.

2. §13(3) second and third sentences LuftSiG is incompatible with Art. 35(3) first sentence of the Basic Law (Grundgesetz – GG) and is void.

The provisions on the emergency competence of the Federal Minister of Defence are incompatible with Art. 35(3) first sentence GG, which only permits the armed forces to be deployed on the basis of a decision taken by the Federal Government as a collegial body, even in the event of an emergency. This follows from the Plenary Order of 3 July 2012 (cf. section 3 of the operative part and paras. 52 et seq.)

3. The rest of the provisions reviewed are compatible with the Basic Law.

a) The legislative competence of the Federation is based on Art. 73 no. 6 GG in its former version (now Art. 73(1) no. 6 GG), which gives the Federation exclusive legislative power with respect to air transport (cf. Plenary Order, section 1 of the operative part and paras. 14 et seq.), and as regards the provisions on the transfer of administrative functions back to the Federation, on Art. 87d(2) GG.

The consent of the Bundesrat was not required, as the Federal Constitutional Court decided in a separate case (cf. BVerfGE 126, 77).

b) Substantively, §§ 13 and 14 LuftSiG are constitutional.

aa) Provided certain specified conditions are met, the armed forces are permitted under §14(1) in conjunction with §13 LuftSiG to forcibly divert aircraft in airspace, force them to land, threaten the use of arms, or fire warning shots. Deployments of the armed forces with specifically military resources and equipment are thus permitted. This is not precluded by the limits imposed by Art. 87a(4) GG, which governs the use of the armed forces in the event of emergencies on German territory. In exceptional situations that are not of the kind governed by Art. 87a(4) GG, deployments of the armed forces on the basis of Art. 35(2) and (3) GG may also be permissible to combat aggressors (cf. Plenary Order, para. 46). The countering of threats under §§13 and 14 LuftSiG constitutes such an exceptional situation.

bb) The fact that an event of catastrophic proportions was caused deliberately does not preclude the event from being classified as a particularly grave accident (cf. Plenary Order, para. 46).

cc) Nor is it unconstitutional to stipulate that such a deployment is permissible not only after a particularly grave accident has occurred, but already, as the provision under review states, when it “is imminent” (§13(1) LuftSiG), provided certain specified conditions are met, and operations intended to “prevent the occurrence” of a particularly grave accident (§14(1) LuftSiG) are necessary. The provisions are worded in line with the judgment of the First Senate of 2006. They do not deviate in substance from the constitutional requirements for deployment as construed by the Plenary in its Order of 3 July 2012. The Plenary Order stated that it was still possible to speak of an accident if the expected harm had not yet occurred, but the process of the accident had already begun and catastrophic harm was imminent. If the catastrophe had already been set in motion, and could now be averted only by deploying the armed forces, there was no need to wait until the harm had been done (para. 47). As regards whether and to what extent action may be taken before harm occurs, the prerequisites for deployment set out in the Plenary Order are thus in effect no different from those contained in the judgment of the First Senate of 2006.

dd) Since §13(1) and §14(1) LuftSiG have adopted the element of a “particularly grave accident” from Art. 35 GG, they also adopt all the limitations contained therein (cf. Plenary Order paras. 26, 43, 46, 51). The provisions therefore also satisfy the principle of specificity. There is no indication that specifying further details would be a suitable way of significantly and usefully improving the guidance provided by the statutory provisions.

ee) The provisions also observe the strict constitutional limits restricting the use of the armed forces to what is necessary, as regards both if and how they are deployed, including the specific resources and equipment to be used (cf. Plenary Order, para. 48).

c) If interpreted in conformity with the Constitution, §15 LuftSiG is also compatible with the Basic Law.

Pursuant to §15(1) second sentence LuftSiG, the armed forces may, at the request of the authority responsible for air traffic control, “check, divert or warn” aircraft in airspace. The legislature framed this measure as a case of simple administrative assistance (Art. 35(1) GG).

This is in accordance with constitutional limits. Art. 87a(2) GG does not require that every use of the armed forces’ personnel and facilities be expressly constitutionally authorised, but rather restricts only their use as an instrument of the executive in the context of an operation involving interference with fundamental rights. Responding to air incidents in a purely technical support function remains within the bounds of Art. 35(1) GG and is therefore not affected by the restrictions that apply to deployments of the armed forces under Art. 35(2) and (3) GG (cf. Plenary Order, para. 50).

However, operations by the armed forces are not only classified as being in a context involving interference with fundamental rights where they use force, but also where their personnel or facilities are used to threaten or intimidate (cf. Plenary Order, para. 50). Where it is determined that an aircraft is intended to be used as a means of attack, a deployment can no longer be construed as mere support; action can then only be viewed as a case of military resources and equipment being used to threaten or intimidate. Such action may accordingly no longer be carried out on the basis of §15 LuftSiG, but may only be further pursued – once the necessary decision has been taken – as a deployment pursuant to §§13 and 14 LuftSiG.

d) §16(3) second and third sentences in conjunction with §16(2) of the Aviation Security Act (LuftSiG) and Art. 2 no. 10 of the Act on the Reorganisation of Aviation Security Tasks are likewise compatible with the Basic Law.

The fact that the substantive conditions for a transfer of tasks back to the Federation are only set out in general terms does not violate the constitutional principle of specificity. This principle only requires the legislature to make provisions as specific as possible with regard to the particular nature of the subject matter concerned and in consideration of the legislative objective pursued.

The duty to engage in “federalism-friendly conduct” is likewise not violated by the fact that the legislature did not, in contrast to past practice, link the option of transferring tasks back to the Federation to a request by the Land concerned. The Federation cannot violate this duty merely by making use of a power granted to it by the Basic Law; to violate this duty, such power must be exercised in a way that constitutes an abuse. A statutory provision that merely creates the option of returning a competence to the Federation cannot be considered an abusive exercise of power or a violation of the procedural requirements deriving from the principle of “federalism-friendly conduct”.