Fraport May Lose Night-Flights Effort, German Court Says

Fraport AG (FRA) and the state of Hesse may lose their bid to operate 17 night flights on a new Frankfurt runway, a judge said at a hearing today because of concern from local residents.

The plan for 17 flights between 11 p.m. and 5 a.m. at the hub’s new north-west runway may violate residents’ rights to noise protection, Presiding Judge Ruediger Rubel said in a preliminary assessment at the Federal Administrative Court in Leipzig. The law requires a heightened demand for express freight to justify night flights, he said.

“The trial court found that the numbers didn’t show that there was such a heightened demand for express freight flights,” said Rubel. “We would be bound by those findings.”

The runway and night flights are being challenged by local residents, neighboring cities and businesses. The state of Hesse, where Frankfurt is located, in 2007 approved Fraport’s plan to build an additional runway and a third terminal, enabling Europe’s No. 3 airport to handle more flights. The state allowed an average of 150 night flights while capping the number between 11 p.m. and 5 a.m. at 17.

While allowing the runway to be completed and used, a lower court in October temporarily blocked flights between those hours because it said the residents were likely to prevail on that part of their case.

Threshold Questions

Volker Gronefeld, a lawyer for Hesse, said the top court should overrule the trial court, because the findings weren’t convincing. While the trial court recognized in principal that there is a demand for night flights, it required too high a threshold to approve them, he said.

The court may also require changes to Fraport’s operation of an average of 150 flights from 10 p.m. to 11 p.m. and 5 a.m. and 6 a.m., said Judge Rubel. Using a calendar year as the reference period to calculate the average allowed more flights on some days during seasonal peaks, he said.

“You cannot turn the night into day,” said Rubel. “The law says you have to pay special attention to the residents’ interests in having a night’s rest.”

Lufthansa Appeal

Deutsche Lufthansa AG (LHA) lost a separate bid in the lower court to increase the number of flights between 11 p.m. and 5 a.m. It has asked the top court for permission to appeal and Leipzig judges still have to decide on that request. That case isn’t part of today’s hearing.

Gronefeld told the court it should have added the carrier’s cases to today’s hearing to take their arguments into account. Lufthansa, TUI AG and Thomas Cook AG’s Condor are affected by the current preliminary ban on night flights, according to Fraport.

Rubel said at the first day of hearings yesterday that the state’s decision to allow the 17 night flights may already be flawed because local residents and communities weren’t adequately heard on the issue.

Lufthansa, TUI AG (TUI1) and Thomas Cook AG’s Condor are affected by the current preliminary ban on night flights, according to Fraport.

The Leipzig court will issue its rulings on April 4 at 10:00 a.m. local time, the court said in an e-mail today.

The cases are BVerwG, 4 C 8/09 et al.

To contact the reporter on this story: Karin Matussek in Berlin at kmatussek@bloomberg.net

To contact the editor responsible for this story: Anthony Aarons at aaarons@bloomberg.net

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