- BVerfGE 58, 1 2 BvR 1107/77 and 195/79 "Eurocontrol I"
- 23 June 1981
- Judge Hirsch retired from judicial office after formulation of the decision - Rinck, Rinck, Wand, Dr. Rottmann, Steinberger, Träger
- © Nomos Verlagsgesellschaft
1.a) Article 19(4) Basic Law is intended to bind the German public authority by the Constitution.
Provisions regulating legal protection in relation to action by an international institution within the meaning of Article 24(1) Basic Law are not to be measured directly by Article 19(4) Basic Law, since they do not concern legal protection against German public authority. Only in that case would infringement of Article 24(1) Basic Law come into consideration.
b) Article 19(4) Basic Law does not guarantee subsidiary jurisdiction of German courts for the case that transfer of sovereign powers to an international institution may have been - formally or substantively - erroneous according to domestic law.
c) According to Article 19(4) Basic Law, in particular, no international buffer capacity of German courts is guaranteed, should legal protection against actions of the international institution be inadequate, measured by domestic requirements.
2.a) Article 24(1) Basic Law does not open up a way to encroach upon the basic structure of the Constitution. The fundamental legal principles recognized and guaranteed in the fundamental rights under the Basic Law are an indefeasible part of the constitutional structure.
b) Article 24(1) Basic Law allows the legislature broad discretion as to whether and to what extent sovereign powers are granted to an international institution and in what way that institution should be legally and organizationally structured. This does not in principle rule out the power to adopt special arrangements as regards the pattern of legal protection against actions of the legal institution.
3.a) Constitutionally, there is in principle no objection to the fact that for legal protection against acts of Eurocontrol, the (international) competence of courts of a Member State was established.
b) The possibilities of legal protection, in relation to Eurocontrol's charge demands, open to the users concerned, meet the requirements of comprehensive, effective legal protection.
4. In the context of its jurisdiction, the Federal Constitutional Court has in particular to take care that infringements of international law lying in the faulty application of or failure to comply with norms of international law by German courts and possibly establishing responsibility of the Federal Republic of Germany under international law, are as far as possible prevented or eliminated. This may in individual cases require comprehensive scrutiny.
Order of the Second Senate of 23 June 1981 -- 2 BvR 1107, 1124/77 and 195/79 --
in the proceedings on the constitutional complaints 1. of Firm X... against a) the judgment of the Federal Administrative Tribunal of 16 September 1977 - VII C 72.75 - b) the judgment of the Bavarian Higher Administrative Court of 22 September 1975 - 98 VII 74 - c) the judgment of the Munich Administrative Court of 8 October 1973 - M 3181/72 - 2 BvR 1107/77-, 2. of Firm Y... against a) the judgment of the Federal Administrative Tribunal of 16 September 1977 - VII C 66.75-, b) the order of the Federal Administrative Tribunal of 10 October 1977 - VII C 66.75-, c) the judgment of the Düsseldorf Administrative Court of 18 December 1973 - 10 K 203/73 - 2 BvR 1124/77-, d) the order of the Federal Administrative Tribunal of 8 January 1977 - 7 CB 104.78-, e) the judgment of the Higher Administrative Tribunal for Land North Rhine-Westphalia of 28 September 1978 - XIII A 2244/77 - 2 BvR 195/79 --.
The constitutional complaints are dismissed.
EXTRACT FROM GROUNDS:
The object of the constitutional complaints is the question whether for legal disputes about charge demands of the European Organization for the Safety of Air Navigation (Eurocontrol) the international competence of the German courts is constitutionally guaranteed.
1. By the "EUROCONTROL" International Convention relating to Cooperation for the Safety of Air Navigation (Eurocontrol Convention, ECC) of 13 December 1960 the Federal Republic of Germany, the Kingdom of Belgium, the French Republic, the United Kingdom of Great Britain and Northern Ireland, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands agreed to strengthen their cooperation in the sphere of air navigation and in particular to provide for the common organization of the air traffic services in the upper air space (Article 1(1) ECC). For this purpose they established the European Organization for the Safety of Air Navigation (Eurocontrol); the Republic of Ireland acceded to the Convention with effect from 1 January 1965 (see Proclamation of 8 March 1968, BGBl. II p.164). The Bundestag, with Bundesrat assent, assented to the Convention by Article 1, first sentence, of the Act on the "EUROCONTROL" International Convention of 13 December 1960 relating to Cooperation for the Safety of Air Navigation, of 14 December 1962 (BGBl. II p.2273 - Assenting Act). The Convention entered into force for the signatory States on 1 March 1963 (see Proclamation of 18 May 1963, BGBl. II p.776).
Eurocontrol is an international organization having legal capacity (Article 4, first sentence, ECC) with its seat in Brussels (Article 1(3) ECC). The organization, according to Article 4, second sentence, ECC, also possesses, in the territory of the Contracting Parties, the fullest legal capacity to which corporate bodies are entitled under national law. Its organs are the Permanent Commission for the Safety of Air Navigation and the Air Traffic Services Agency (Article 1(2), second sentence, ECC). The Commission is composed of representatives of the Contracting Parties (Article 5, first sentence, ECC). It adopts main policy guidelines for the organization (see esp. Articles 6 and 7 ECC). The Agency is administered by a Committee of Management and a Director (Article 3 of the Statute of the Agency, annexed to the Eurocontrol Treaty). It is responsible in particular for carrying out the practical operations for which the organization is made responsible (see esp. Article 2 of the Statute of the Agency).
2. In relation to air traffic control services, the States party adopted the following provisions in particular:
a) air traffic services in the upper airspace (that is, above 7500 metres) are to be jointly organized (see Article 1(1) ECC); they are entrusted to the Agency (Article 14, taken together with Articles 6(2)(d) and Article 38 ECC; cf. also Article 2 of the Statute of the Agency). It follows from Article 6(2)(e) and Article 20 ECC that the organization has the power to set and collect user charges for this area. The Commission is accordingly mandated to determine the agency's policy in respect of any collection of user charges and, where applicable, to approve the tariffs and conditions of application of charges established by the Agency (Article 6(2)(e) ECC). The Agency, in application of the directives formulated by the Commission, where applicable, establishes the tariffs and conditions of application of those charges which the Organization is entitled to collect from users (Article 20, first sentence, ECC). By Article 2 of the German Assenting Act, the user charges, set in accordance with Article 20 ECC, are to be made known by the Federal Minister for Transport in the Federal Gazette.
On 16 June 1971 the Agency, in accordance with Directives nos.11 and 14 adopted by the Commission, of 7 December 1967 and 3 July 1969, adopted the "Resolution setting the tariffs and conditions of application for the charges the organization is entitled to collect from users". The decision was published in para. 1 of the Order on the collection of charges for the utilization of air traffic services and installations (Air Traffic Services (Charges) Order - FSGebVO) of 27 October 1971 (BGBl. II p.1153, 1160) by the Federal Minister for Transport. The decision was altered by a decision of 2 February 1972; the amendment was published in the Second Order on the collection of charges for use of air traffic services and installations of 27 March 1972 (BGBl. II p.249); other amendments do not concern the payment period involved in the dispute. Article 1(1) and (2) of the payment conditions for user charges attached as Annex 2 to the Tariffs and Conditions of Application (BGBl. II p.1166) read:
1. The charges billed are, pursuant to Article 3(1) of the "Tariffs and Conditions of Application for User Charges" payable at the seat of the organization in Brussels.
2. The organization shall however regard payments into the accounts it maintains in Member States of the organization and the Treaty States at banks indicated by it as discharging the debt. This is however to be regarded merely a facilitation granted the debtor, in no way limiting the locational jurisdiction of the Belgian courts arising from the designation of Brussels as place of performance. A user making use of this facilitation shall, where necessary, explicitly recognize the competence of the Belgian courts - without prejudice to the competence of other courts arising from relevant statutory provisions.
b) Air traffic services in the lower airspace (i.e. below 7500 metres) are not organized jointly; they continue to come under the responsibility of the individual Contracting Party. Article 2(1) ECC, however, provides the possibility for any one of the Contracting Parties to request a decision from the Commission that the air traffic services for the whole or part of its lower airspace be entrusted to the Organization or to another Contracting Party.
The Contracting Parties regarded it as desirable that "in the case of flights involving take-offs or landings or of straightforward overflights... there should be a single charge, relating to all the facilities and services provided by a State or a group of States for the flight in question..." (the first consideration in the Multilateral Agreement Relating to the Collection of Route Charges of 8 September 1970). To this end they concluded the Multilateral Agreement Relating to the Collection of Route Charges of 8 September 1970 (BGBl. 1971 II p.1154 - Multilateral Agreement) and, supplementing it - each concluded a Bilateral Agreement with Eurocontrol relating to the Collection of Route Charges. For the Federal Republic of Germany, the Bilateral Agreement of 8 September 1970 applies (BGBl. 1971 II p.1158 - Bilateral Agreement).
Articles 1 and 2 of the Multilateral Agreement read:
(a) The Governments shall establish charges for the use of route air navigation facilities and services in the airspace falling within their competence, in accordance with the measures unanimously agreed by their representatives acting in their dual 1 capacities as national authorities and as members of the Commission.
(b) These charges shall constitute the remuneration for services rendered.
(c) The charges relating to the use of air navigation facilities and services in the upper and lower airspaces shall constitute a single charge.
The proceeds in respect of the charges shall be entered in a special budget statement and recorded in separate accounts and shall be refunded to the States after deduction of collection costs.
Articles 1-3 of the Bilateral Agreement read:
The government shall entrust to the Organization the collection from users, on its behalf, of the charges established pursuant to Article 1 of the Multilateral Agreement and shall provide the Organization with the information required for the purpose of calculating the said charges.
With a view to the application of Article 1, the Government undertakes to adopt the necessary measures to require users of navigation facilities and services in the airspace falling within its competence to pay the said charges to the Organization.
The amount of the charges actually collected by the Organization in respect of the airspace of the Federal Republic of Germany and the airspace in which the Federal Republic of Germany provides air traffic services by international agreement shall be paid to the Government as soon as possible, and in any case not later than six months after collection. Such payment shall be subject to deduction of the costs of collection as approved by the Commission.
On the execution of the Bilateral Agreement, paras. 2 and 3 FSGebVO provide:
For use of the lower airspace of the Federal Republic of Germany, charges shall be made for recourse to air navigation services and facilities; the rates and conditions, including the collection procedure of the... Decision of 16 June 1971 shall apply mutatis mutandis to the collection of these charges.
The charges for the use of route air navigation facilities and services when using the lower airspace shall be combined with the charges indicated in para. 1 and collected by Eurocontrol as a single charge. They shall be payable in Brussels as the seat of the Organization, in the monetary unit set by Eurocontrol.
The Air Navigation Charges Order was issued on the basis of para. 32(1), first sentence, no.14 of the Air Traffic Act (LuftVG). This empowerment, introduced into the Air Traffic Act by Article 27(1) (c) of the Act to amend charge empowerments, social security and other provisions of 23 June 1970 (BGBl. I p.805), reads:
(1) The Federal Minister for Transport shall, with the assent of the Bundesrat, issue the legal orders necessary to implement this Act, on
14. The costs (charges and expenses) for using air navigation facilities and services.... The Order may provide that the rates of charge for the use of air navigation facilities and services in the upper airspace and also for the use of air navigation facilities in the lower airspace of the Federal Republic of Germany established in accordance with Article 20 of the "Eurocontrol" International Convention Relating to Cooperation for the Safety of Air Navigation taken together with the Act of 14 December 1962 on that Convention (BGBl. II p.2273) shall apply. The Order may further lay down that the costs may be collected by the Federal Institution for Air Navigation or by Eurocontrol.
The Air Navigation Charges Order, the Multilateral Agreement and the Bilateral Agreement entered into force on 15 December 1971 (see Proclamation of 14 March 1972, BGBl. II p.244).
The complainants are air tourism enterprises. They object to the imposition on them by Eurocontrol of charges for the use of air navigation facilities and services.
The constitutional complaints... object to infringement of Article 19(4), first sentence, Basic Law.
1. The Federal Minister for Transport regards the constitutional complaint as unjustified.
2. Eurocontrol regards the decisions challenged as not unconstitutional. Its acts could not be challenged by constitutional complaint. Nor did it collect the charges on behalf of the Contracting States, but on its own behalf. The complainants had unrestricted judicial protection through the Belgian courts. The sole international competence of the Belgian courts agreed effectively in international law did not infringe Article 19(4), first sentence, Basic Law. The transfer of sovereignty for collecting charges to Eurocontrol was also in line with Article 24(1) Basic Law. The transfer had been effectively assented to by the Assenting Act and by the Air Navigation Charges Order based on para. 32(1), first sentence, no.14 LuftVG. By it, the Federal Republic of Germany had renounced the competence of German Administrative Courts for disputes relating to charges.
In sofar as they are admissible, the constitutional complaints are unjustified.
1. The decisions challenged do not infringe Article 19(4) Basic Law. The requiring of charges by Eurocontrol is not a measure of "public authority" within the meaning of that constitutional provision. Accordingly, the guarantee of legal protection in Article 19(4) Basic Law does not apply in relation to this act.
a) The wording of Article 19(4) Basic Law does not by itself say anything as to whether non-German sovereign authority can also be considered as "public authority". In principle, to be sure, the Basic Law applies only to the State power constituted by it, confined to the "structure of the German State organization" (BVerfGE 22, 293 ). This argues against extending the guarantee of legal protection in Article 19(4) Basic Law to the action of public authorities that do not belong to this structure. Article 19(4) Basic Law means the "German public authority bound by the Constitution".
Correspondingly, the Federal Constitutional Court has decided that only acts of the national, German public authority bound by the Basic Law are to be regarded as "public authority" within the meaning of para. 90(1) BVerfGG (and now also of Article 93(1)(4)(a) Basic Law); BVerfGE 1,10; 6,15 ; 6,290 ; 22,91 ; 22,293 ). Acts of a special public authority, created by international treaty and separate from the State authority of the Member States, of an international institution within the meaning of Article 94(1) Basic Law do not come under this. An agency standing outside the structure of German State organization in principle does not exercise German State authority. The Federal Constitutional Court has accordingly found a constitutional complaint directed directly against a regulation of the European Economic Community to be inadmissible (BVerfGE 22,293 [295ff.]; this legal view was kept to in BVerfGE 37,271 [283, 285f.]). Where it deals with the question, the literature too very predominantly takes it that Article 19(4) Basic Law guarantees legal remedies only against (alleged) measures by the German public authority bound by the Basic Law (cf. Randelzhofer, in: Festschrift für Schlochauer, 1981, p.531 [533ff, with further references]). This view is taken specifically in connection with the question whether domestic legal protection is to be guaranteed against acts of the European Community.
b) Over and above these general considerations, there may in detail be further grounds for limiting domestic legal protection to acts of the German public authority. For acts of international institutions there at any rate follows from the meaning and purpose of the empowerment under Article 24(1) Basic Law, whereby the Federal Government may transfer sovereign rights to such institutions, that, to that extent, legal protection by German courts is not guaranteed constitutionally. This constitutional provision opens up the German legal system in such a way as to withdraw the Federal Republic of Germany's exclusive claim to govern in the area to which the Basic Law applies and allow room for the direct validity and applicability of law from another source within the national sovereign territory (BVerfGE 37,271 ). The actions of the international institution do not proceed from German public authority. To be sure, the granting of domestic legal protection against the application and effect of acts of an international institution may not be a priori "logically" excluded; it does, however, run against the meaning and purpose of the empowerment under Article 24(1) Basic Law. The functionality of the international institution could be hampered by it, particularly if it feared the risk of uneven legal protection in the individual Member States (cf. BVerfGE 22,293 ). Article 24(1) Basic Law grants the legislator broad discretion as to whether and to what extent an international institution may be granted sovereign powers and in what way this institution is to be given legal and organizational shape. In principle this also includes the power, in respect of the shaping of legal protection against actions of the international institution, to adopt special provisions. It need not be gone into in this connection whether and to what extent the empowerment under Article 24(1) Basic Law is limited by the basic principles of the Constitution. Nor does it, at any rate in connection with the guarantee of legal protection in Article 19(4) Basic Law, experience any absolute limitation to the effect that legal protection by domestic (German) courts must be guaranteed in all cases against actions of the international institution.
This result follows from domestic law, irrespective of the separate question whether general rules of international law of immunity or - in individual cases - norms of special international treaty law oppose the granting of domestic legal protection against actions by an international institution.
c) For the question whether an organ of non-German public authority has become active, the decisive point is not that the public power of the international institution has come about through the collaboration of German State power. Were one on the basis of such collaboration to regard every type of supra-national or international public authority established through Article 24(1) Basic Law as German public authority, then the distinction between "German" and "non-German" public authority, decisive for the competency of the German court, would be largely lost, since supra-national or international authority, apart from special positions such as occupation conditions, cannot operate in the territory of the Federal Republic of Germany without some involvement, or at least without toleration, by German public authority (cf. BVerfGE 22,293 ; also 6,15 ).
Nor is it relevant - in this connection - whether the "transfer" of sovereign rights to the international institution, and its legal and organizational patterning in detail, are valid in accordance with German constitutional law. The decisive point is that the institution was created by an act effective in international law and has not, in the case at issue, become wholly detached from its basis of competency in international law. Even then its actions are those of non-German public authority, in relation to which at any rate the guarantee of legal protection in Article 19(4) Basic Law does not operate. Article 19(4) Basic Law does not guarantee a "subsidiary" jurisdiction of German courts for the case that the transfer of sovereign powers to the international institution has - formally or substantively - been faulty according to domestic law. By Article 19(4) Basic Law, there is in particular no guarantee of international "buffer" competence of German courts should legal protection against actions of the international institution be inadequate, measured by domestic requirements (cf. also BVerfGE 22,293 ). Correspondingly, the Federal Constitutional Court has stated in respect of a direct challenge to an EEC Regulation that it did not do to regard the system of protection of the European Economic Community as inadequate and therefore to be supplemented or improved through German jurisdiction; this would also have had a blurring of the boundaries between national and supra-national jurisdiction as a consequence (BVerfGE 22,293 ).
The question whether the legal protection provided in relation to the action of an international institution is adequate accordingly does not directly involve the guarantee of Article 19(4) Basic Law. Provisions regulating legal protection in relation to action by an international institution are not directly to be measured against this constitutional provision, since they do not concern legal protection against German public authority. Accordingly, at most infringement of Article 24(1) Basic Law could come into consideration. The bounds set to that transfer of powers by basic principles of the Constitution might be exceeded where in the foundation of an international institution and its legal and organizational pattern the basic principle - embodied in the very principle of the rule of law - of effective legal protection were impaired.
d) Eurocontrol is, in the relationship of the Contracting Parties to each other, an international organization with legal capacity in international law, and an international institution within the meaning of Article 24(1) Basic Law. It has been granted sovereign powers by acts in international law (the Eurocontrol Convention, the Multilateral Agreement, the Bilateral Agreement). In relation to the effectiveness in international law of these acts, no objections can be seen. Eurocontrol exercises public authority of its own, which is non-German.
Pursuant to Article 4 ECC, it also has legal capacity for the law of the Federal Republic of Germany. Its powers are also in fact exercised by its organs, the Commission and the Agency (Article 1(2) ECC).
The air traffic facilities provided by Eurocontrol are public tasks of a sovereign nature; they are also exercised in sovereign fashion in German domestic territory. Also sovereign is the levying of charges for the use of air navigation facilities and services on firms concerned, particularly since it is binding and exclusive and the charges and conditions of payment are set unilaterally on the basis of legal provisions. The form of validation and the pattern of the performance relationship between Eurocontrol and the users does not come into it.
The Federal Administrative Tribunal has shown in detail the extent to which the tasks of air traffic control and the regulation and collection of corresponding charges have been assigned to Eurocontrol (cf. BVerwGE 54,291 [294ff.]). There are no constitutional objections to this assessment (further details).
These provisions show sufficiently clearly that Eurocontrol handles the setting and collection of charges in individual cases and the regulation of the relevant procedure on its own account and as a task of its own also insofar as air traffic services in the lower airspace are concerned, irrespective of the circumstance that air navigation safety services here are not incumbent on it. Euocontrol had the limited task of setting and collecting charges in individual cases and regulating the appropriate procedure here assigned to it; as such, this is a sovereign task of its own. Eurocontrol is accordingly not exercising German public authority here either. This finding is confirmed by the domestic provisions adopted to implement the international agreements: para. 32(1), first sentence, no.14 LuftVG empowers the minister giving the order to lay it down that the charge may be "collected by Eurocontrol". Accordingly, para. 3 FSGebVO provides that the charges for using air navigation facilities and services when using the lower airspace are to be combined, collected by Eurocontrol as a single charge and payable at its seat in Brussels.
2. The decisions challenged do not infringe the Basic Law either in starting from the basis that for disputes over the charges, as at issue, exclusively the Belgian courts are competent internationally and that the exclusion of German administrative legal remedies is constitutionally unobjectionable.
a) The interpretation and application of the provisions of the Eurocontrol Convention and associated documents and the competency rules of German law relevant to the determination of international competence were a matter primarily for the specialized courts. The Federal Constitutional Court accordingly tests, in constitutional complaint proceedings, only whether federal constitutional law has been infringed here (cf. BVerfGE 18,85 ; consistent case law). In the context of its jurisdiction, the Federal Constitutional Court has certainly to pay particular attention here that infringements of international law that may lie in faulty application of or failure to comply with international norms by German courts and may establish responsibility of the Federal Republic of Germany under international law are as far as possible to be prevented or eliminated. This may in an individual case require comprehensive scrutiny.
Neither having regard to the ban on arbitrariness following from Article 3(1) Basic Law nor having regard to Article 24(1) Basic Law do the decisions challenged meet ultimately with constitutional objections. The Federal Administrative Tribunal could without thereby infringing the Constitution take it as a basis that Eurocontrol had competency to collect charges conveyed to it in respect of the lower German airspace too, and that this power included accompanying the collection procedure with unified legal controls and establishing, to the extent that this was up to Eurocontrol, the exclusive international competency of the Belgian courts for this (cf. BVferwGE 54, 291 [300ff.]).
b) Article 24(1) Basic Law does not oppose domestic application of this provision.
Eurocontrol's power to collect charges for services in the lower airspace of the Federal Republic of Germany follows, by contrast with what applies to the upper airspace, not from the Eurocontrol Convention itself but from the Bilateral Agreement taken together with the Multilateral Agreement. They transferred to Eurocontrol sovereign powers within the meaning of Article 24(1) Basic Law, namely the power to set charges in the individual case and to collect them, and to regulate the collection procedure normatively. These Agreements were not assented to in a separate Act; the charge arrangements embodied in them were instead given a special application order in domestic law by the Order on the collection of charges for use of air navigation services and facilities of 27 October 1971 (BGBl. II p.1153) issued by the Federal Minister for Transport on the basis of the statutory empowerment of para. 32(1), first sentence, no.14 LuftVG (cf. para. 3 FSGebVO). This did not infringe the reservation as to enactment in Article 24(1) Basic Law.
(1) For a transfer of sovereign powers to be taken into account domestically, it is necessary for it to come about "by legislation", Article 24(1) Basic Law. This constitutional requirement should be interpreted strictly. This is suggested even by the wording. In the Basic Law as in German constitutional legal tradition the distinction between the terms "by law" and "on the basis of law" has solid outline; the legislator's assent to an act of transfer within the meaning of Article 24(1) Basic Law can therefore not be brought about by a ministerial order. Article 24(1) Basic Law does not distinguish either between objects of transfer important to government and legislator and other ones, as is comparably the case for international treaties as regards the requirement for assent pursuant to Article 59(2) Basic Law, where the focus is on the regulation of political relations and on matters of federal legislation. Above all, however, the meaningful context in which Article 24(1) Basic Law is located requires the strict interpretation of this requirement. The transfer of sovereign rights brings about an intervention in and a change to the constitutionally established ordering of competences, and therefore substantively a constitutional amendment. Moreover, Article 24(1) Basic Law makes possible the granting of sovereign powers to institutions whose legal system, policy formation and modes of action are not directly subject to the Basic Law and therefore also not to the decisive influence of the German legislator, but may simultaneously - depending on their powers - be able to intervene in sovereign fashion in the German legal system with direct effects to those subject to that law. The weight of these factors requires a strict interpretation of the reservation as to enactment in Article 24(1) Basic Law. Its point is to allow such a procedure, which changes the structure of functions and distribution of powers embodied in the Basic Law, only by formal assent of the legislator "by law", if indeed a formal constitutional amendment pursuant to Article 79 Basic Law is not required.
The substantive scope of the reservation as to enactment in Article 24(1) Basic Law is on the other hand also to be determined with an eye to the way in which institutions within the meaning of that provision are set up and function at international level. This typically comes about within the framework of an integration process, in the course of which numerous individual implementing Acts are required in order to bring about the situation aimed at in the treaty establishing them. The legal forms in which that comes about may be manifold; they range from additional treaty instruments through forms of decision by the international institution and regulatory acts with dual function up to the actual employment of a power in the case of concurrent competency positions as the decisive point in time for the actual accrual of power to the international institution.
Even where the founding treaty itself has not already laid down each of these processes according to content, form and time, there is not an a priori need in each case for a separate Act within the meaning of Article 24(1) Basic Law for each of these implementing steps. Such an Act can be dispensed with where the foundation treaty, assented to by statute, has adequately definitely normed this future course of implementation. Certainly, this sort of implementing step must be sufficiently definitely embodied in the founding treaty and the documents associated with it or in the Act adopted in relation to it; essential changes to the integration programme embodied therein and to its implementation are, for instance, no longer covered by the original assenting Act pursuant to Article 24(1) Basic Law. Part of this may, depending on the nature of the international institution, also be the timing of the accrual of competency to the international institution. In the present proceedings it need not be gone into where, accordingly, the general bounds are set to the substantive scope of an Act pursuant to Article 24(1) Basic Law. Here it is sufficient to state that the more technical is the sovereign power to be conveyed, the more it constitutes, against the total structure of sovereign powers already transferred, a merely technical and instrumental addition having regard to the effective accomplishment of tasks already taken over and competencies exercised, the less is an additional transferring Act required within the meaning of Article 24(1) Basic Law. This is true particularly when, in such cases, the transfer of sovereign powers has been assented to by statute and the point is merely to make the regulations adopted within its powers by the international institution applicable domestically, or to clarify their applicability.
(2) Measured against this, the granting of the right to collect charges to Eurocontrol in respect of lower German airspace by the Multilateral agreement taken together with the Bilateral Agreement does not require any separate Act pursuant to Article 24(1) Basic Law; it was already covered constitutionally by the Assenting Act to the Eurocontrol Convention itself. It does not have to be decided here whether the possibility provided for in Article 2(1) ECC of entrusting to the organization air traffic control services for the whole or part of the lower airspace would, should use be made of it, require a special Act pursuant to Article 24(1) Basic Law. For the power to collect charges, the only one at issue in the present case, of Eurocontrol is in the closest material connection with the powers already exercised by it. It corresponds to the "practical operational requirements", already sufficiently definably covered by Article 2(1) ECC; explicit reference is made to them in the first consideration of the Multilateral Agreement. These practical operational requirements become particularly clear on the basis of Article 1(c) of the Multilateral Agreement, according to which the charges relating to use of the upper and lower airspaces shall constitute a single charge. Even insofar as it is not in any case covered by the power to levy charges of the organization pursuant to Article 1(1), Article 6(2) (e) and Article 20, first sentence, ECC, this is a narrowly limited technical and instrumental addition to the effective fulfilment of powers already otherwise exercised by Eurocontrol; it is not by contrast a case of a granting of a new type of power that would constitute an essential change to, or extension of, the integration programme set out in the foundation treaty. In view of this, a new Act pursuant to Article 24(1) Basic Law was needless.
Moreover, para. 32(1), first sentence, no.14 LuftVG in the version of 23 June 1970 contains an unambiguous, definite empowerment to transfer the right to collect charges for lower German airspace to Eurocontrol. It regulates the admissibility of the imposition of charges, defines the principles for setting the rates of charge and provides for the possibility that the charges "may be levied" by Eurocontrol. This empowerment is further fleshed out by reference to an existing charge system (pursuant to Article 20 ECC) of an international institution. The provision accordingly empowers a transfer of sovereign powers as already explicitly foreseen as a possibility in Article 2(1) taken together with Article 20 ECC.
The Federal Government's official explanatory memorandum on the draft Charge Empowerment Amending Act (BTDrucks. VI/329, p.33, 46) further shows that the legislator had already timeously taken this transfer into account in formulating para. 32(1), first sentence, no.14 LuftVG. Enactment of the empowerment order was closely connected in time with the negotiation and conclusion of the Multilateral Agreement and the Bilateral Agreement; it was in relation to these that the empowerment was incorporated in the Act. The empowerment order accordingly constitutes assent of the legislator pursuant to Article 24(1) Basic Law. The fact that the Act itself did not determine the time at which the regulation for collection of charges adopted by Eurocontrol within its powers would be applicable domestically, but left this to be determined by a ministerial order, does not meet here with constitutional objections on the basis of either Article 24(1) Basic Law nor Article 80(1), second sentence, Basic Law.
The transfer of the fee collection power at issue to Eurocontrol has accordingly been assented to by law. The requirements of Article 24(1) Basic Law have accordingly been met. The transfer was not made "on the basis of a law" through the Air Traffic Services (Charges) Order; this brought about only the domestic applicability of the regulations on collection of charges already adopted in accordance with competencies at the level of the international institution. The Federal Administrative Tribunal could accordingly, without infringing Article 24(1) Basic Law, assume the domestic applicability of Eurocontrol's provisions for collecting charges.
(c) The transfer of the competence to collect charges to Eurocontrol does not infringe Article 24(1) Basic Law in content either.
(1) Certainly, this constitutional provision does not allow the unrestricted transfer of sovereign powers to international institutions. Article 24(1) Basic Law must, like every constitutional provision of a similarly fundamental nature, be understood and interpreted in the context of the whole Constitution. It does not open up a way to impugn the basic structure of the Constitution. One indefeasible part of the Constitutional structure is the fundamental legal principles recognized and guaranteed in the fundamental rights in the Basic Law. Accordingly, Article 24(1) Basic Law does not allow the fundamental rights part of the Basic Law to be made relative without reservation (BVerfGE 37, 271 [279f., 291, 296]).
As an essential rule-of-law guarantee, Article 19(4) Basic Law guarantees the individual legal protection, without lacunae, against alleged illegal interference by the public authority with his rights. The overwhelming importance attaching to this "basic norm for the whole legal system" in the constitutional structure of the Basic Law must be taken into account in transferring sovereign rights to an international institution. The same applies to the other basic rule-of-law requirements in the sphere of legal protection. This does not admittedly mean that in relation to acts of public authority of an international institution set up with the involvement of the Federal Republic of Germany a system of legal protection would have to be provided that in extent and effectiveness in every respect equalled the system of legal protection as constitutionally guaranteed in relation to acts of the German public authority. Such a far-reaching orientation of the legal shape of an international institution on the domestic provisions of one of the States involved would ultimately run counter to the "constitutional decision in favour of international cooperation" expressed in Article 24(1) Basic Law; it would be hard to impose on the other States involved and not rarely make the Federal Republic of Germany de facto "incapable of making treaties" in the sphere of institutions within the meaning of Article 24 Basic Law.
The Eurocontrol Convention does not, to be sure, contain any provisions in relation to legal protection against Eurocontrol's actions in making charges. But explicit regulations in this connection are not needed. It can be deduced from the treaty and documents accompanying it and from Eurocontrol's own provisions that for disputes of the organization, with its seat in Brussels (cf. Article 1(3) ECC), the Belgian courts are to be internationally competent (cf. Article 3(1) of the tariffs and terms for charges to users and Article 1(2) of the terms of payment for charges to users); this has been set forth by the Federal Administrative Tribunal in detail (cf. BVerwGE 54, 291 [300ff.]. This model of legal protection is also adequately recognizable to users, especially since Eurocontrol attaches the relevant provisions to its accounts.
The fact that for legal protection against acts of Eurocontrol (international) competence of the courts of a Member State was established does not in principle meet with any objections on constitutional grounds. Nor is it unreasonable for users concerned to be expected to seek their rights before the courts of a Western European State. The constitutional admissibility of this arrangement follows ultimately from the possibility provided for in Article 24(1) Basic Law of transferring sovereign powers to an international institution, which may in given circumstances be located outside the Federal Republic of Germany. The difficulties bound up with seeking one's rights abroad are as a rule to be put up with, as long as effective legal protection is not thereby called in question. That this is the case in disputes on Eurocontrol's demands for charges cannot be seen.
The Belgian courts grant the legal protection provided. The Brussels Commercial Tribunal has affirmed its competence for disputes in connection with Eurocontrol charges. The legal protection provided by the Belgian court to those owing charges to Eurocontrol is adequate; moreover, the additional possibilities of legal protection according to German law are to be taken into account.
Fundamental objections that Belgian courts do not satisfy rule-of-law requirements or for other reasons grant only inadequate legal protection do not exist. Nor have the complainants submitted anything to that effect.
The competent Belgian courts evidently subject fees disputes brought before them to comprehensive legal examination. This is confirmed by the decisions taken in corresponding cases by the Brussels Commercial Tribunal of 7 March 1974. Certainly, the Commercial Tribunal did not regard itself as empowered to decide whether the relevant German legal provisions are unconstitutional. It referred to the fact that Belgian law (in principle) rules out any such verification, since verification of the constitutionality of statutes is reserved to parliament. It found that the foreign Act was accordingly, by reason of its existence and on the basis of the effect of the international treaties and agreements applying in the area concerned, binding on the parties; it was, accordingly, a legal fact that the court had to take into account. On the basis of this legal position in Belgium, the users concerned are barred from asserting the unconstitutionality of a German legal provision of relevance to Eurocontrol charge demands before the Belgian courts with any prospect of success. But this does not constitute any lasting curtailment of their legal protection, if only because sufficient possibilities are open to them - without prejudice to the exclusive international competence of the Belgian courts for disputes as to charges - of having this question clarified by a German court; this has been set forth in detail by the Federal Administrative Tribunal (see BVerwGE 54, 291 [304ff.]).
The circumstance that the performance relationship between Eurocontrol and the users has a civil-law form and that accordingly Belgian Commercial Tribunals are competent for disputes about its demands manifestly does not impair the legal protection of those concerned. They are in this connection rather in a favourable position because they do not have to endure a sovereign act, enforceable under circumstances without judicial decision, but instead Eurocontrol has to take legal measures to secure its demands.
Judges: Judge Hirsch retired from judicial office after formulation of the decision - Rinck, Rinck, Wand, Dr. Rottmann, Steinberger, Träger
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