P.N. v. SWITZERLAND

THE FACTS

The applicant, a Swiss citizen born in 1957, is a trustee

administrator (Treuhänder).

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant lives, and owns real property, in the Dornach

community approximately 12 km south of the airport Basel-Mulhouse.

Following the creation of a new flight path over the Basel

agglomeration, the applicant and his wife in 1991 filed a complaint,

in respect of his property at Dornach, with the Federal Office for

Civil Aviation (Bundesamt für Zivilluftfahrt), requesting in

particular:

1. the complete prohibition of direct take offs (Direktstarts)

over Basel and its agglomeration;

2. the complete prohibition of flights at night, in particular

of nightly take offs over densely populated areas;

3. the publication of night flight statistics and of the

spread of noise (Lärmkataster) in the security zones;

4. prohibitions or limitations of take offs in case of

transgression of the limits of the Clean Air Ordinance

(Luftreinhalteverordnung);

5. the prohibition of domestic flights;

6. no authorisation for additional take offs;

7. the prohibition of private and entertainment flights over

densely populated areas, in particular on Sundays and

holidays;

8. the institution of an environmental expert commission to

survey and control the Clean Air Ordinance.

The Federal Office replied to the applicant by letter of 26 April

1991, explaining the legal situation of Basel-Mulhouse airport.

The applicant and his wife thereupon filed an objection

(Einsprache). On 21 June 1991 the Federal Office formally decided not

to enter into the applicant's complaints. In its decision, the Federal

Office dealt with each of the applicant's requests. In respect of

request no. 1 it stated:

<Translation>

"The applicants do not have their residence ... in the

agglomeration of Basel which is directly affected by such

flights; rather their residence is in Dornach which is

approximately 12 km south of Basel-Mulhouse airport. At such a

distance from the place of take off, the aeroplanes which have

been authorised to use the new flight path will have already

reached altitudes of more than 1,000 m above the ground. Flights

in this altitude are nothing extraordinary. Thus, the applicants

lack the status of being particular victims of the so-called

direct take offs over the town of Basel. ... The request is

therefore inadmissible."

<German>

"Die Gesuchsteller haben jedoch ihren Wohnsitz nicht in der

unmittelbar von solchen Überflügen betroffenen Agglomeration von

Basel, sondern im ungefähr 12 Kilometer südlich vom Flughafen

Basel-Mülhausen entfernten Dornach. In dieser Distanz vom

Startort haben die für die Benützung der neuen Flugroute

zugelassenen Flugzeuge bereits Höhen von mehr als tausend Metern

über Grund erreicht. Ein Überflug in dieser Höhe stellt nichts

aussergewöhnliches dar; mithin mangelt es den Gesuchstellern an

einer besonderen Betroffenheit durch die sogenannten Direktstarts

über die Stadt Basel. ... Auf das Begehren ist nicht

einzutreten."

In respect of request no. 2, the Federal Office referred to the

above considerations. In respect of requests nos. 3 and 8, it found

that legislation would be called for, and in respect of request no. 4

the applicant and his wife should have approached the cantonal

authorities. In respect of requests nos. 5 and 7, the Federal Office

found that the applicant and his wife lacked the status of victims

(besondere Betroffenheit) as they were not more affected than anybody

else in Switzerland. Request no. 6 could not be made the object of an

order.

The applicant's appeal (Beschwerde) was declared inadmissible on

2 September 1992 by the Federal Department for Transport and Energy

(Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement). The

decision stated that an administrative law appeal (Verwaltungsgerichts-

beschwerde) could be filed with the Federal Court (Bundesgericht).

In its decision the Federal Department dealt with the applicant's

individual points. In respect of his request no. 1, the Federal

Department explained the legal situation of the Basel-Mulhouse airport

(see below, Relevant international and domestic law and practice). It

considered that the direct take offs, of which the applicant

complained, had been decided by the French authorities and therefore

lay outside the jurisdiction of the Swiss authorities. Before

determining the new flight paths, however, the French authorities had

consulted the Swiss authorities.

In respect of the authorisation of additional take offs and the

complete prohibition of flights at night, of domestic flights and of

private and entertainment flights (requests nos. 2, 5, 6 and 7), the

Federal Department found that this would require general-abstract

legislation for which the Department was not competent. The

publication of night flight statistics and the institution of expert

commission (requests nos. 3 and 8), on the other hand, could not be

made the object of an order. Similarly, request no. 4 fell into the

jurisdiction of the Cantons.

The applicant filed an administrative law appeal with the Federal

Court. In its decision of 14 April 1994, the Court found that doubts

had arisen as to its jurisdiction according to S. 99 (e) of the Federal

Judiciary Act (Organisationsgesetz) and that it had conducted informal

consultations with the appeals service of the Federal Council

(Abteilung für Beschwerden an den Bundesrat). As a result, the Court

considered that it would refer the applicant's case to the Federal

Council (i.e. the Swiss Government) which was the competent body.

On 9 November 1994 the Federal Council dismissed the applicant's

appeal.

In its decision the Federal Council recalled that in 1991 the

Swiss Government had agreed to the new flight path on condition that

it would only be used by certain aircraft, complying with the strictest

noise nuisance levels.

The decision then mainly confirmed the grounds given by the

Federal Office for Civil Aviation of 21 June 1991 and the Federal

Department for Transport and Energy in its decision of 2 September

1992. However, in particular in respect of the applicant's request

no. 1 the Federal Council found that the applicant could not claim a

practical interest therein as the night take offs in Basel occurred in

a northerly direction not affecting Swiss territory.

On the whole the Federal Council found it unnecessary to examine

whether the prohibitions invoked by the applicant were compatible with

the Swiss-French Treaty concerning Basel-Mulhouse airport. The Federal

Council's decision continued:

<Translation>

"If the Federal Office for Civil Aviation imposed a prohibition

of direct take offs over Basel under Swiss environmental law,

this might lead the French authorities to invoke the arbitration

clause stated in the Treaty. If in such an arbitration a

prohibition of direct take offs over Basel were to be declared

inadmissible, this would lead in view of the primacy of

international law ... in this area to the non-application of

Swiss environmental law; or, on the other hand, Switzerland would

have to give notice of the Treaty, which the Federal Council

considers out of question in view of the importance of the Basel-

Mulhouse airport."

<German>

"Würde das Bundesamt für Zivilluftfahrt - gestützt auf das

schweizerische Umweltrecht - ein Verbot von Direktstarts über

Basel erlassen, so könnte dies zur Anrufung der im Staatsvertrag

enthaltenen Schiedsklausel durch die französischen Behörden

führen. Würde in einem solchen Schiedsverfahren ein Verbot von

Direktstarts über Basel als unzulässig erklärt, so führte dies

angesichts des Primats des Völkerrechts ... in diesem Bereich zur

Nichtanwendung des schweizerischen Umweltrechts beziehungsweise

müsste die Schweiz den Vertrag kündigen, was indes für den

Bundesrat angesichts der Bedeutung des Flughafens Basel-Mülhausen

ausser Betracht fiele."

The decision concluded:

<Translation>

"The question can remain open whether the quality of victim of

the applicant - solely in respect of the legal requests to be

decided here, not in respect of civil law claims - could also

have been based on the mere fact of the real property being

situated in the vicinity of the airport, since the appeal must

already be dismissed for other reasons."

<German>

"Die Frage, ob die Legitimation des Beschwerdeführers sich -

allein in bezug auf die hier zu beurteilenden Rechtsbegehren,

nicht aber hinsichtlich zivilrechtlicher Ansprüche - allein auch

auf das blosse Wohnungseigentum in der Nähe des Flughafens hätte

stützen lassen, kann hier offenbleiben, da die Beschwerde bereits

aus anderen Gründen abzuweisen ist."

Basel-Mulhouse airport which is situated on French territory is

governed by the Swiss-French Treaty of 4 July 1949 concerning its

construction and operation. The airport's governing body is the

Airport Administration in which both States (on the Swiss side also the

Cantons of Basel-Stadt and Basel-Landschaft) are represented.

According to S. 4 of the Treaty, the flight control is secured

by the French Government which, according to SS. 6 and 14 of the

Treaty, will apply French law. Insofar as the flight control concerns

technical-operational aspects, it falls outside the jurisdiction of the

Airport Administration.

In application of S. 28 of the 1944 Chicago Convention on

International Civil Aviation, Switzerland has delegated part of her air

space over Basel to France in order to permit an efficient flight

control. In this air space the French authorities are authorised to

determine the flight routes for take offs and landings.

Swiss environmental law remains applicable on Swiss territory in

the vicinity of Basel-Mulhouse airport, though it is subject to the

Swiss-French Treaty of 1949.

According to S. 96 of the Federal Judiciary Act

(Organisationsgesetz) an administrative law appeal (Verwaltungs-

gerichtsbeschwerde) can be filed against decisions of Federal

authorities relying on Federal law. However, S. 99 (e) of the Act

excludes such an appeal if it is directed against permits for the

operation of facilities or installations of a technical nature.

S. 679 of the Swiss Civil Code (Zivilgesetzbuch) states as

regards relations between private neighbours that "(w)hoever is damaged

or threatened with damage by a proprietor who abuses his property right

can file an action in order to have the damage set aside or to obtain

protection against imminent damage and to obtain compensation".

S. 684 para. 2 of the Swiss Civil Code prohibits, inter alia,

interferences by means of smells, noise or vibrations which are

damaging and unjustified according to the situation and nature of the

real properties.

The Federal Act on Expropriation (Enteignungsgesetz) envisages

in S. 1 the right to expropriation in the interest of the Confederation

or in favour of another public interest. S. 5 of the Federal

Expropriation Act has, for instance, been invoked by neighbours to busy

national roads who feared hazardous exhaust substances (cf. ATF 118 Ib

205). According to the Federal Court's case-law, compensation will be

granted if the nuisance was not foreseeable; if it specially concerns

the proprietor; and if it results in serious damage (cf. loc. cit.

205). The foreseeability will depend inter alia on whether the

neighbour, at the time when he obtained the property, could reasonably

be aware of the forthcoming nuisance (cf. ATF 111 Ib 234).

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that he has been denied access to court in respect of his complaints

about noise nuisance emanating from Basel-Mulhouse airport. He

complains that the Federal Court transferred his administrative law

appeal to the Federal Council. The authorities dealing with his case

were not independent and impartial in that they were all bound into the

administration.

The applicant submits that he is invoking a "civil right" within

the meaning of Article 6 in that Swiss law determines a right to

property and also defence rights (Abwehrrechte). These rights no

longer apply in the case of the Basel-Mulhouse airport. The individual

is left with damage claims. He is thus obliged to tolerate the serious

interference of aeroplanes flying over his real property at low

altitudes. These flights entail considerable noise nuisance,

particularly on weekends. As a result, this situation contradicts the

basic principles of property.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 August 1994 and registered

on 19 January 1995.

On 1 July 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

20 December 1996. The applicant replied on 3 April 1997, after an

extension of the time-limit fixed for that purpose.