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Constitutional Court Strengthens Legal Protection of Persons Affected by Expropriation and Resettlement

In a judgement on RWE’s open lignite mining project in Garzweiler in North Rhine-Westphalia, the Federal Constitutional Court (BVerfG) strengthened the protection of persons affected by expropriation and resettlement. The approval of the framework operating plan (Rahmenbetriebsplan) for the Garzweiler opencast mine by the competent authorities, however, met the constitutional requirements. Hence, RWE is able to continue mining.

Already at the stage of the official approval of the project it is necessary to conduct an overall assessment of all public and private interests that exist in favour of, or against, the project, BVerfG held. “This overall assessment is the responsibility of the competent authorities, and it is primarily for the regular courts to review it”, the Court said, pointing out that its own powers were limited to conducting a review under constitutional law.

While the official approval of the framework operating plan (Rahmenbetriebsplan) for the Garzweiler opencast mine met the constitutional requirements, this was not the case for the specific expropriation of the nature conservation association BUND that was based on this plan, the Court said. The Court did, however, not go beyond a declaration of the violation of fundamental rights, because even if the complaint were remitted to the regular courts, it could not have any further success. The Court pointed out that the land had meanwhile been claimed by the opencast mine and returning it to the complainant would be without value. Furthermore, it was “clearly foreseeable that, in case of an additional decision on the merits, the regular courts would arrive at the conclusion that the Garzweiler opencast mine could be considered as reasonably required to secure the energy supply, and that the overall assessment of the opencast mine would also stand up to an examination by the courts”, BVerfG said.

A second constitutional complaint which challenged the official approval notification of the Düren Mining Office, as well as the decisions by the authorities and administrative courts that confirmed it was dismissed as the approval was found to meet constitutional requirements. In this context, BVerfG held that Article 11 of the Basic Law that protects the fundamental right to freedom of movement did not give an independent right to a homeland (Heimat).

BVerfG further said that “The mining of lignite implements a public interest objective which is sufficiently defined by law and sufficiently viable. With which energy sources and in what combination of available energy sources the Federation and the federal states want to ensure a reliable energy supply is first and foremost an energy-policy decision. For this purpose, the Federation and the federal states have considerable flexibility in designing and a wide margin of appreciation. The Basic Law does not provide a standard which determines what kind of energy policy is the only constitutional option, or even the constitutionally preferable option, at a given point in time for the Federation or a federal state. The Federal Constitutional Court can thus only review fundamental decisions on energy policy with regard to whether they are obviously and clearly incompatible with the values of the Constitution, values embodied in particular in the fundamental rights or in the provisions on fundamental national objectives, here in particular the protection of the environment (Art. 20a GG).” “”The constitutional complaint proceedings have not shown that the fundamental energy-policy decision of North Rhine-Westphalia, favouring the continuation of lignite extraction in the medium term – including the way this relates to the specific decision in favour of the Garzweiler opencast mine – are constitutionally objectionable”, the Court found.

Source: Federal Constitutional Court  [1]