Case Summary and Outcome

The First Senate of the German Federal Constitutional Court decided that publicly owned private corporations have to respect fundamental rights. According to the Court, the complainant’s right to freedom of expression under Art. 5 para 1 sent. 1 of the German Basic Law (Grundgesetz, GG) and her freedom to assembly under Art. 8 para 1 GG were violated because she was prohibited from distributing leaflets, protesting deportations, at Frankfurt airport. This prohibition was issued by Fraport Aktiengesellschaft (Fraport AG), a stock corporation majority-owned by the state, operating Frankfurt airport. The Court reasoned that Fraport AG is directly bound by fundamental rights since a public authority has a controlling influence on the company. It stressed that the use of private law to form companies does not exempt the state from respecting fundamental rights under Art. 1 para 3 GG.

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Facts

On March 11, 2003, the complainant and five other activists against deportations entered Frankfurt Airport. They spoke to Lufthansa Airlines employees and distributed leaflets about a forthcoming deportation. Employees of Fraport AG ended the activities.

On March 12, 2003, Fraport AG sent a letter to the complainant. It banned them from entering the airport and said that it would initiate criminal proceedings against them for unlawful entry if they were found at the airport premises without justification.

On November 07, 2003, Fraport AG sent an explanatory letter stating that a demonstration could not be held at the airport without being coordinated with it beforehand to guarantee smooth operations and safety.

Thereupon, the complainant filed a lawsuit before the Local Court of Frankfurt am Main, Germany (Amtsgericht), against Fraport AG seeking to lift the ban on demonstrations and expression at the airport.

The local court dismissed the action on December 20, 2004. It found that Fraport AG as “owner of the airport was entitled to rely on its right to undisturbed possession” and did not consider it “to be directly bound by fundamental rights.” [para. 11]

Following the court’s dismissal, the complainant filed an appeal to the Regional Court of Frankfurt am Main, Germany, which dismissed the action on May 20, 2005. It referred to the reasons argued by the local court and added that the defendant did not perform any tasks related to the public sector.

The complainant filed a subsequent appeal to the Federal Court of Justice which on January 20, 2006, dismissed the action as well.

On March 15, 2006, the complainant brought a constitutional complaint to the German Federal Constitutional Court claiming a violation of their fundamental rights to freedom of expression under Art. 5 para 1 sent. 1 GG and freedom of assembly under Art. 8 para 1 GG.

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Decision Overview

On 22 February 2011, the First Senate of the German Federal Constitutional Court issued a decision on the matter. The main issues the Court addressed were whether Fraport AG was directly bound by fundamental rights and whether the complainant’s fundamental rights to freedom of expression and freedom of assembly were violated by the company by banning them from entering the airport and limiting demonstrations in it.

According to the complainant, Fraport AG is bound by fundamental rights because the majority of its shares are owned by the state. Thus, “the state cannot avoid the binding force of fundamental rights by seeking refuge in private law.” [para. 21] In addition, they argued that private entities are bound by fundamental rights “if they cause a danger to autonomous areas protected by the fundamental rights which is similar to the dangers to freedom in the relationship between the state and its citizens.” [para. 21] Furthermore, the complainant argued that the operation of the airport was a public service of general interest performed on behalf of the state.

Regarding freedom of expression, they claimed that the airport was a significant publicly accessible space for strolling and shopping. According to them, the distribution of leaflets in this space would not exceed the bounds of the general traffic permitted by Fraport AG. Moreover, they stressed “the close connection between the criticism being expressed and the airport location.“ [para. 24] Hence, the complainant considered the interference to their freedom of expression disproportionate.

Regarding the right to freedom of assembly, the plaintiff argued that Fraport’s “provision of an area for communicative purposes gives rise to duties to tolerate.” [para. 23] In their opinion, Fraport AG could not “escape with a blanket assertion that airport operations would be disrupted.” [para. 23]

For its part, Fraport AG argued that the constitutional complaint was unfounded, both regarding the violation of the complainant’s right to freedom of expression and freedom of assembly. The defendant said it was not directly bound by fundamental rights because the composition of shareholders could not be decisive regarding the duties of a company towards fundamental rights. Otherwise, According to Fraport AG, its relationship with passengers and airport customers was not regulated by public law and the public nature of its task would not change that. In addition, it claimed not to be responsible for the direct geographical connection between the airport and the subject of the protest.

Concerning the alleged violation of freedom of expression it considered that the scope of protection of this right did not cover the complainant’s action. According to Fraport AG, the protection afforded to freedom of expression presupposes that the place of expression is “in principle freely accessible to the holder of fundamental rights.” [para. 34] However, if it was true that the airport was operated by the state, it would be operated as a public institution for a particular purpose. Hence, the use of the airport would be limited to the purpose for which it was established. The dissemination of opinions, according to Fraport AG, instead, would be a special use outside of this purpose. Fraport AG considered that freedom of expression only applies to public streets and places, not to public or private institutions “in a manner that goes beyond the functions and purposes for which they were established.” [para. 34]

Fraport AG also mentioned that in June 2004, the complainant urged passengers not to turn off their mobile phones on board to prevent deportation, and therefore incited them to commit a crime. Thus, Fraport AG held that even if the distribution of leaflets was covered by freedom of expression, incitement to crimes was not. On these grounds, the defendant held that the interference with freedom of expression was justified. The company also mentioned that  “opening of the airport for various expressions of opinions would lead to a politicization of transport facilities” which is not “compatible with the safety duties of an airport operator.” [para. 38]

Furthermore, Fraport AG held that the fundamental right to freedom of assembly “is tailored solely to the requirements of public street space” [para. 40] and said that the airport cannot be compared with a public street because “it is an institution especially sensitive to disruption, which can only function if all of the parties involved are extremely disciplined.” [para. 41] Thus special safety concerns and requirements in the airport justified a general ban on demonstrations.

In a 7 to 1 vote, the Court decided that the complainant’s fundamental rights to freedom of expression—under Art. 5 para 1 sentence 1 GG—and to freedom of assembly—under Art. 8 para 1 GG—were violated. Therefore, it annulled the contested civil court decisions. Moreover, the Court held that Fraport AG is directly bound by fundamental rights.

According to it “the use of a private law form does not release state authority from being bound by the fundamental rights under Art. 1 para 3 GG“ [para 46],  which binds the legislature, the executive, and the judiciary directly. The Court emphasized that “while the citizen as a matter of principle is free, the state as a matter of principle is bound.” [para. 48] Thus, the state cannot seek refuge in private law because “as soon as the state assumes responsibilities, it will also be bound by fundamental rights.” [para. 48]

For the Court, this applied not only to public companies but to enterprises owned both by private owners and the state (gemischtwirtschaftliche Unternehmen) over which the state has a controlling influence. The Court considered there is a “controlling influence,” as a general rule, when “more than half of the shares are publicly owned.” [para. 52] The Court concluded that in those circumstances, “not only the shareholders but also the respective enterprise itself are directly bound.” [para. 52] Furthermore, it pointed out that private shareholders are free to decide “whether or not to participate in an enterprise over which the public authority has a controlling influence.” [para. 55]

Additionally, the Court stated in an obiter dictum that “[d] epending on the content of the guarantee and the circumstances of the case, the indirect binding force of the fundamental rights on private persons may […] come closer to—or even be the same—as the binding force of the fundamental rights on the state.” This is of particular importance for the realm of communication technologies, as in this context private enterprises “assume functions which were previously allocated to the state as part of its general interest services.” [para. 55]

Subsequently, the Court held that the contested lower courts’ decisions violated the complainant’s freedom of expression, as protected under Art. 5 para 1 GG. The Court rejected Fraport AG’s argument that freedom of expression applies only to public streets and places. Even though it clarified that freedom of expression “does not grant an individual a right of access to places,” [para. 98] the Court stated that “as a right of the individual, citizens are fundamentally entitled to it wherever they happen to be at a given moment.” [para. 98] Hence, the Court concluded that the exercise of freedom of expression “is not in and of itself restricted to public forums that serve communication purposes” and does not “entail a particular need for space.” [para. 98] Moreover, according to the Court, the exercise of freedom of expression “does not necessarily initiate situations that typically result in nuisance.” [para. 98]

Regarding the ban on distributing leaflets without previous permission from Fraport AG, the Court determined it to be disproportionate. It emphasized that Fraport AG was directly bound by fundamental rights. Therefore, the Court opined that while guaranteeing the safety and functioning of airport operations is a legitimate interest to restrict the exercise of freedom of expression, “the wish to create a feel-good atmosphere” [para. 103] and “to prevent certain expressions of opinion for the sole reason that the defendant does not share them,” [para. 103] was not.

Thus, the Court concluded that a general prohibition on the distribution of leaflets—or conditioning the distribution to Fraport’s authorization—was not proportionate. However, it also pointed out that restrictions on certain places, or moments in time were not excluded in principle. Nevertheless, the Court found that the contested decisions were not proportionate.

Hence, the Court also found that the contested decisions violated the complainant’s freedom of assembly as protected by Art. 8 para 1 GG. Like freedom of expression, the Court noted, freedom of assembly is not restricted to public streets although it “does not grant citizens a right of access” [para. 65] either. Instead, “it guarantees fundamental rights holders the right to themselves determine when, where, and under what conditions an assembly will take place.” [para. 64]

To underscore this point, the Court referred to the supreme courts of Canada and the USA, and their concept of public forum, to answer the question of whether a space whose access is not open to the general public can be considered a public space for expression or communicative purposes (Supreme Court of Canada, judgment of January 25, 1991, Committee for the Commonwealth of Canada v. Canada , (1991) 1 S. C. R. 139; Supreme Court of the United States, judgment of June 26, 1992, International Society for Krishna Consciousness Inc.  v. Lee , 505 U.S. 672 (1992)). Ultimately, in light of the case law cited, the Court concluded that public forums are characterized “by the fact that [they] can be used to pursue a variety of different activities and concerns leading to the development of a varied and open communications network.” [para. 70] The Court ascertained that areas of Frankfurt Airport are designed as places of general traffic for communications purposes and hence fall within the area of protection of freedom of assembly.

Moreover, the Court held that Fraport AG’s ban concerning the complainant was disproportionate and unjustified. It stressed that an assembly can only be banned if there is a “direct danger—which can be ascertained from identifiable circumstances—to fundamental legal interests that are of equal rank to freedom of assembly.” [para. 90] Even though the Court recognized the fact that an airport is especially sensitive to disruptions, it held that the ban imposed on the complainant to organize any assembly in every area for an unlimited period was not compatible with freedom of assembly.

Based on these considerations, the Court decided that the complainant’s fundamental rights to freedom of expression and freedom of assembly were violated. It annulled the contested civil court decisions and referred the matter back to the Local Court (Amtsgericht) of Frankfurt am Main for a new ruling.

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