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UNCLAS SECTION 01 OF 02 FRANKFURT 000218 
 
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PARIS FOR FAA 
 
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E.O. 12958: N/A 
TAGS: EAIR ECON EIND ENRG PGOV SENV EU GM
 
SUBJECT: FUTURE OF NIGHT FLIGHTS AT FRANKFURT AIRPORT REMAINS 
UNCERTAIN, WHILE LEGAL CASE LUMBERS ON. 
 
REF: 
 
¶1. SUMMARY: In December, the Hesse Administrative Court published 
its August 2009 decision dismissing all claims against further 
expansion of the Frankfurt airport.  The ruling, however, left the 
future of night flights at the airport unclear.  The court advised 
the State of Hesse to "revisit" its plan to allow 17 exceptions to 
the promised "night flight ban."  Given the lack of certainty 
inherent in this ruling, the Hessen government appealed to the 
Federal Administration court by the January 4 deadline.    Lufthansa 
additionally appealed again, seeking a higher number of exceptions 
to a night flight ban, or its cancellation.  Current operations at 
the airport, in which 50 flights land during the night, will proceed 
while the legal battle, estimated to last up to 2 years, continues. 
END SUMMARY 
 
 
NIGHT FLIGHT EXCEPTIONS TO BE REVIEWED 
------------------------- 
¶2. Ever since the Frankfurt airport enlargement plan was published 
on December 18, 2007, the proposal has been caught up in legal 
challenges.  Two main issues have been at stake: 1)the right for the 
airport to expand to the extent desired; and 2)the right for night 
flights to continue.  The August 2009 decision, with the full text 
published in December, reinforced an earlier January 2009 decision 
in which the Court eliminated challenges against the overall 
expansion. The company that runs the airport, Fraport, can now 
continue building an additional runway (construction already 
underway) and a new terminal (construction to begin next year.) The 
question of whether night flights can continue, however, remains 
unresolved. The court ruled that the State of Hesse must "review" 
and "revisit" its current practice of allowing 17 exceptions to the 
night flight ban, but did not specify what this review must entail. 
According to Hesse Economic Minister Dieter Posch, the government 
decided to appeal the decision by the January 4 deadline, to achieve 
legal certainty for the project. With a positive ruling by the 
federal court, no further appeals will be possible. However, this 
appeal can potentially also be dangerous for Hesse, if the Federal 
Administrative Court rules against all night flights. 
 
 
'ALMOST' AN ABSOLUTE NIGHT FLIGHT BAN 
------------------------- 
¶3. The night flight ban goes back to the beginning of planning for 
the Frankfurt airport expansion, more than 10 years ago. Originally, 
the state government decided on a quid pro quo arrangement with 
local interest groups. The airport would expand, going from 500,000 
flights to 700,000 flights in 2020, while banning flights between 11 
and 5 am, thereby assuring neighboring municipalities worried by the 
prospect of increased airport noise and pollution. Hesse Minister 
President, Roland Koch (CDU) supported this plan, stating "I cannot 
imagine further enlargement of an airport in an urban area like this 
without a night flight ban." However, when the airport plan was 
published in 2007, the promised "night flight ban" included "17" 
exceptions during the core night time of 11 pm to 5 am. (Between the 
adjacent time of 10 pm to 6 am, the airport envisions around 150 
more flights.) Citizens groups- who opposed any night flights- and 
airline companies- who oppose any ban- immediately balked and 
subsequently filed legal challenges. 
 
¶4. Lufthansa has been the primary and most important critic of a 
night flight ban.  Lufthansa's cargo hub is in Frankfurt and it has 
threatened to move its cargo business if only 17 exceptions are 
allowed (there are currently close to 50 flights per night.) If they 
shift, Lufthansa would follow Fed Ex who decided in 2008, due to the 
proposed ban, to move to the Cologne-Bonn airport beginning in 2010. 
Lufthansa Cargo's chairman Carsten Spohr has stated that the ban 
would "bring a healthy industry to its knees" at the same time that 
the government is trying to rescue the economy, while Willi Rorig 
from Lufthansa Cargo's corporate work council said that it will 
"jeopardize thousands of jobs in Frankfurt." Employees in 
Lufthansa's cargo operations made their voices heard by engaging in 
a several hour "work stoppage" in November and also delivering a 
petition with 4,000 signatures opposing the ban to 
Minister-President Roland Koch. The federal government has taken 
notice. In November, Chancellor Merkel spoke about creating 
legislation preventing individual cities from passing night flight 
bans at their airports. This effort, so far, has not proceeded. 
 
 
WHY THE NUMBER 17? 
----------------------- 
¶5. The Hesse Court ruled that Hesse must "revisit" and "review" its 
 
FRANKFURT 00000218  002 OF 002 
 
 
17 exceptions because the number 17 appears to have been arbitrarily 
chosen and because the plan's originally stated intention was  a 
full night flight ban.  According to Holger Sewering, head of the 
Project Planning in the Hesse State Chancellery, the court ruled 
that the exceptions may not be legally supportable, because the 
state did not prove the necessity for these exceptions.  Regarding 
the number 17, Sewering explained that the state initially thought 
that 10 night flights would be needed, but also speculated that 7 
more might become necessary in coming years, which led to the number 
¶17.  Despite the recent ruling, Dr. Sewering, in prior conversations 
with Consulate representatives, had noted that the government took 
pains to carefully word the plan to survive legal challenges.  He 
therefore remains optimistic. 
 
 
POLITICAL RAMIFICATIONS 
------------------ 
¶6. The Social Democratic (SPD) and Green Parties have highlighted 
the Hessen government's current actions as a symbol of their lack of 
credibility, since M-P Koch and the Christian Democrat Party (CDU) 
are now acting against a promise they once made.  At a December 
state-level parliamentary debate on the night flight question, SPD 
Chair Thorsten Schaefer-Guembel stated that the government's appeal 
shows that they never meant to impose an absolute night flight ban 
at all.  Tarek Al-Wazir, caucus chief of the Hessen Greens Party 
further hypothesized that the government wants to force the courts 
to decide the issue, so that the responsibility (and any fallout 
amongst the public) will fall on the courts, instead of the CDU. 
Despite the critique, it is unclear how much of the political debate 
has reached the general public in Hesse. As Policy Planning Chief 
Sewering stated, "the whole issue is legally so complicated that 
it's not possible to explain it to the voters in a comprehensible 
way." 
 
¶7. COMMENT: The legal fight over the Frankfurt airport now enters 
its next round. It is true, as opposition parties point out, that 
Roland Koch's government may have lost some political credibility by 
now moving against their original stated intention of an absolute 
night flight ban. However, the public's attention is currently 
focused on the fragile economy and it may be more forgiving of some 
night flights, especially if they are characterized as maintaining 
employment and industry in the region.  Overall, given Germany's 
reliance on its export economy, a move to reduce cargo shipments in 
and out of the country may be imprudent. Europe wide statistics show 
that 40 percent of all European cargo flights take place at night 
and that cargo transport by planes is growing exponentially. The 
Frankfurt airport will lose business to other localities if the 
Federal Court rules against the Hesse government.  However, if that 
is the case, based upon the November statement of Chancellor Merkel, 
the federal government may try and get involved to keep some night 
flights operational. END COMMENT 
 
 
¶8.  ThisQble was coordinated with Embassy Berlin. 
 
ALFORD