26245/95

 AS TO THE ADMISSIBILITY OF Application No. 26245/95 by P. N. against Switzerland The European Commission of Human Rights sitting in private on 11 September 1997, the following members being present: Mrs. G.H. THUNE, Acting President Mr. S. TRECHSEL Mrs. J. LIDDY MM. E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS F. MARTINEZ C.L. ROZAKIS L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER M.A. NOWICKI I. CABRAL BARRETO N. BRATZA J. MUCHA D. SVÁBY G. RESS A. PERENIC C. BÎRSAN P. LORENZEN K. HERNDL E. BIELIUNAS E.A. ALKEMA Mrs. M. HION MM. R. NICOLINI A. ARABADJIEV Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 24 August 1994 by P. N. against Switzerland and registered on 19 January 1995 under file No. 26245/95; Having regard to: - the reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the observations submitted by the respondent Government on 20 December 1996 and the observations in reply submitted by the applicant on 3 April 1997; Having deliberated; Decides as follows: 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. A. Particular circumstances of the case 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:

"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."

"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:

"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."

"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:

"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."

"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." B. Relevant international and domestic law and practice 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. THE LAW The applicant complains under Article 6 para. 1 (Art. 6-1) 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. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as relevant: "In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by (a) tribunal ..." The Government submit that the applicant cannot claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention. Reference is made to the Commission's case-law according to which a link must be established between the applicant and any prejudice which he suffered in view of the alleged violation (see No. 28204/95, Dec. 4.12.95, Tauira v. France, D.R. 83-A, p. 112). In the present case, it transpires from the various decisions of the Swiss authorities that the applicant has not shown that he was personally affected in his property rights following the creation of a new flight path at Basel- Mulhouse airport. Thus, it was found that the applicant lived 12 km away from the airport, and the aeroplanes flew at approximately 1,000 m above his property. In fact, the new system has not aggravated the noise nuisance at all for the persons concerned, and the applicant does not even live in the noise area C where in view of the noise the construction of new buildings is limited. The present case also differs from other cases before the Commission concerning, for instance, the airports at Heathrow and Gatwick in the United Kingdom. The Government note that the applicant has not attempted to invalidate the findings of the Swiss authorities according to which he lacked a practical interest in his complaint. He also failed to complain when the new flight path was being tested. He has not produced any document according to which he was unduly suffering from noise nuisance, or showing that the value of his property was unduly diminished. An airport in the neighbourhood may well increase the value of property. The Government submit that according to Article 1 (Art. 1) of the Convention the Commission is not competent ratione personae to examine the complaint. The situation of Basel-Mulhouse differs from that of other airports situated in Switzerland. Persons living in the vicinity of Swiss airports enjoy access to a court which may, if necessary, order the noise nuisance to cease. In the case of Basel-Mulhouse airport, issues of air navigation fall entirely under French jurisdiction according to S. 4 of the relevant 1949 Swiss-French Treaty. Any opinion given by the Swiss authorities on issues of noise nuisance in the present case was purely of a consultative nature. The Government contend that Article 6 para. 1 (Art. 6-1) of the Convention does not apply in the present case as the applicant cannot claim a "right" to end the noise nuisance within the meaning of this provision. This "right" must be determined according to the rights established in the Swiss legal order. It is true that a neighbour can invoke his property rights according to S. 679 of the Swiss Civil Code. Airport neighbours have the possibility to institute expropriation proceedings in respect of their property. In the case of Basel- Mulhouse airport, the Swiss judge could only apply Swiss law to the extent that Switzerland had undertaken international obligations which supersede domestic law. In the present case, the Swiss judge would breach international law, in particular the 1949 Swiss French-Treaty; he would be deciding on a question falling exclusively under French jurisdiction; and his decision would not affect the French authorities. By concluding this treaty, the Swiss authorities deprived the property owners in the vicinity of Basel-Mulhouse airport of their right to institute proceedings according to S. 679 of the Civil Code. The Government contend that, in any event, the applicant has the possibility of bringing his case before a court. The latter will have full jurisdiction to determine, in particular, the formal expropriation of the applicant's rights as a neighbour and, if the conditions are met, to award damages. The court can also decide if the applicant's use of property has been restricted, so as to constitute material expropriation, and award damages. The applicant submits that an airport's effects on human beings, nature and property cannot be unlimited merely because it is pursuing public interests. The applicant claims that he is certainly able to distinguish between proceedings whereby he would obtain damages, and proceedings whereby he requests cessation of a nuisance. The applicant admits that, for reasons unknown to him, for the past 18 months noise nuisance over his property has been reduced during day time. Basel-Mulhouse has always been conceived as a regional airport with fewer passengers. However, it is important to stop unlawful direct flights in order to prevent the arbitrary use of Swiss air space. The applicant is directly and vehemently affected by the noise as a proprietor and as a lessor. A confirmation of his status as a victim can be seen in the fact that the Swiss authorities took formal decisions in his case. The applicant submits that he is also a victim because he has two other properties situated within 2,3 and 3,1 km from the airport. The Swiss authorities failed ex officio to inquire about these houses. He further contends that there is an increased danger of plane crashes on his properties. The applicant questions whether only serious noise levels will suffice for him to qualify as a victim. Is it not enough that the noise causes considerable damage to health. Moreover, occasionally, there are also night flights. The applicant contends that he is exercising a right which protects private property but which, unfortunately, cannot be examined by a civil judge. A judge who would examine the possible expropriation of real property does not suffice, as he would not be competent to examine the special legislation at issue. In fact, a proprietor would be left with nothing else than financial compensation. The rights under S. 679 of the Swiss Civil Code apply to any person causing noise nuisance. What counts is where the right is being breached, and in the applicant's case, this is in Switzerland. Irrelevant in the present case is the fact that Basel-Mulhouse airport is in France and not in Switzerland. Decisions on the flight path fall exclusively to the Swiss authorities which must apply all legal provisions protecting human beings, the environment, and property. In the applicant's view, the Government's submissions according to which Switzerland has no jurisdiction in the present case in view of S. 4 of the Swiss-French Treaty, are far-fetched. It cannot be possible that with this delegation to the French authorities the Swiss authorities also delegated all rights protecting human beings, the environment and property. The applicant submits that he has a "right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. He relies in particular on the respective laws of air legislation combating noise nuisance. These laws contain obligations, for instance, to publish the flight times; not to grant authorisations for airports if they do not meet security and environmental requirements; not to build hospitals in any noise area; to protect residential areas; and to adjust the flight altitudes. The Commission has first examined whether the applicant's right was "civil" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission observes that the applicant's claim was related to the use of his property as proprietor. The right to property is undoubtedly a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Consequently, the entitlement in issue was of a "civil" nature (see, mutatis mutandis, Eur. Court HR, Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 40, para. 27). The Commission must next ascertain whether there has been a dispute (contestation) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and finally, the result of the proceedings must be directly decisive for the right in question (see Eur. Court HR, Zander v. Sweden judgment, loc. cit.,

p. 38, para. 22). In the present case the applicant's main complaint is the noise nuisance which he allegedly suffers as proprietor in the Dornach community, some 12 km from the airport, from the various aeroplane movements at Basel-Mulhouse airport. While the applicant now submits that he also owns property in the more immediate vicinity of the airport, the Commission notes that the proceedings before the domestic authorities concerned his property at Dornach. In this respect, the Commission notes the decision of 26 April 1991 of the Federal Office for Civil Aviation according to which the applicant could not be considered a victim since aeroplanes flying over Dornach had reached an altitude of more than 1,000 m which was not extraordinary. The Federal Council, in its decision of 9 November 1994, found that the applicant could not claim a practical interest as the night take offs in Basel occurred in a northerly direction not affecting Swiss territory. In the Commission's opinion, while the air traffic noise may well have been noticeable for the applicant, he has not substantiated that the noise nuisance reached a level which would raise an issue under Swiss law and therefore would imply a genuine and serious dispute in respect of the applicant's property rights within the meaning of the Convention organs' case-law (see Eur. Court HR, Zander v. Sweden judgment, loc. cit.). The Commission finds a confirmation for this conclusion in the applicant's submissions according to which in the past 18 months the noise nuisance has been reduced. It is true that before the domestic authorities the applicant also raised various other complaints which were not directly related to the air movements of Basel-Mulhouse airport, i.e. the publication of night flight statistics and the institution of an environmental expert commission. However, in the Commission's opinion, these issues did not directly relate to the exercise of the applicant's property right (see Eur. Court HR, Zander v. Sweden judgment, loc. cit.). The proceedings before the Swiss authorities did not, therefore, involve "the determination" of the applicant's "rights" for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention. Article 6 para. 1 (Art. 6-1) of the Convention was not applicable in the present case, and the application is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. H.C. KRÜGER G.H. THUNE Secretary Acting President to the Commission of the Commission