VERDICT
BVerwG 6 C 9.20
OVG 15 A 3138/18
In the administrative dispute
the woman xxx
Plaintiff, appellant and respondent on appeal,
– Legal representatives:
1. Law firm Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
2. Attorney Dr. Philipp Schulte,
Grolmanstraße 39, 10623 Berlin –
against
the State of North Rhine-Westphalia,
represented by the Aachen Police Headquarters,
Trierer Straße 501, 52078 Aachen,
defendants, respondents in the appeal and appellants in the revision proceedings,
The 6th Senate of the Federal Administrative Court,
in the oral proceedings of May 24, 2022,
with presiding judge Prof. Dr. Kraft, judges Dr. Möller, Hahn and Dr. Tegethoff, and judge Dr. Gamp,
recognized as rightful:
The defendant's appeal against the decision of the Higher Administrative Court for the State of North Rhine-Westphalia of June 16, 2020 is dismissed.
The defendant shall bear the costs of the appeal proceedings.
REASONS
I.
The parties are in dispute over whether an agricultural plot of land, which was used during the “Climate Camp 2017” in the Rhenish lignite mining region for sleeping tents of camp participants and for sanitary facilities, was attributable to the climate camp as an assembly protected by Article 8 of the Basic Law and fell within the scope of application of the (federal) Law on Assemblies and Processions (Assembly Law – VersammlG) in the version promulgated on November 15, 1978 (Federal Law Gazette I p. 1789), which was still in force in North Rhine-Westphalia at the relevant time pursuant to Article 125a paragraph 1 sentence 1 of the Basic Law and had last been amended by the law of December 8, 2008 (Federal Law Gazette I p. 2366).
By letters dated July 24 and August 7, 2017, the plaintiff registered the climate camp as a public open-air assembly with the Aachen Police Headquarters, the responsible assembly authority, pursuant to Section 14 of the Assembly Act. The camp was to take place from August 18 to 29, 2017, in a meadow north of Peringsmaar, near Bedburg. The participants, through their multi-day stay, were expressing their personal and collective protest against the destruction of established communities, as well as the environment and climate, caused by the mining and burning of lignite. For several days, they were demonstrating a grassroots democratic and environmentally responsible form of coexistence as a counter-model to the prevailing destructive logic of exploitation. The "Degrowth Summer School 2017," with its various participation formats, was part of the assembly. The number of participants was expected to fluctuate, but would not exceed 6,000 people present at any one time. Circus tents, field kitchens, supply and event tents, a stage, a sound system, generators, and composting toilets would be set up. Space would also be provided for participants' tents to use as sleeping quarters and for sanitary facilities.
By order dated August 14, 2017, the Aachen Police Headquarters confirmed the climate camp as a "precautionary" assembly, referring to the preliminary legal protection granted by the Federal Constitutional Court in its chamber decision of June 28, 2017 – 1 BvR 1387/17 – (NVwZ 2017, 1374) for a so-called protest camp during the G20 summit in Hamburg in the summer of 2017. Based on a condition imposed pursuant to Section 15 Paragraph 1 of the Assembly Act, it prohibited the camp from taking place on the meadow specified in the application and instead assigned the plaintiff a former gravel pit and a sports field in Erkelenz as the assembly site. After the plaintiff had leased the agricultural property parcel 55, cadastral district xxx (hereinafter: parcel 55), she declared in a letter dated August 18, 2017, that the climate camp would take place on this property as well as on the adjacent sports field in Erkelenz. By order dated August 18, 2017, the Aachen Police Headquarters amended the local permit issued on August 14, 2017, and now designated parcel 55 and the sports field in Erkelenz as assembly areas for the plaintiff. Participants in the assembly were permitted to erect their sleeping tents on the sports field.
After the sports field in Erkelenz was occupied by sleeping tents of camp participants, the plaintiff internally released another agricultural plot she had rented – plot 65, cadastral district xxx (hereinafter: plot 65), located 800 meters from plot 55 – as additional space for setting up sleeping tents and sanitary facilities. By letter dated August 22, 2017, she informed the Aachen Police Headquarters that plot 65 was part of the climate camp. The Police Headquarters subsequently issued an order on the same day rejecting plot 65 as an assembly area. From the perspective of assembly law, there is no legal basis for declaring the area, where in fact no assembly is being held, but where sleeping tents and sanitary facilities are set up and which, unlike the sports field in Erkelenz used in the same way, is not owned by the public sector, to be part of the climate camp, which is (precautionarily) assessed as an assembly.
On March 14, 2018, the plaintiff filed a declaratory judgment action seeking a ruling that the order issued by the Aachen Police Headquarters on August 22, 2017, was unlawful insofar as it rejected parcel 65 as a site for an assembly. The Administrative Court dismissed the action. Upon the plaintiff's appeal, the Higher Administrative Court, in the form of a decision pursuant to Section 130a of the Code of Administrative Court Procedure (VwGO), amended the judgment of the court of first instance and granted the declaratory judgment sought by the plaintiff. The action was admissible as a declaratory judgment action pursuant to Section 43 Paragraph 1 VwGO. The required legal interest in a declaratory judgment existed on the grounds of the risk of recurrence. The action was well-founded because, due to its use in the given assembly situation, parcel 65 was directly—and not merely indirectly—covered by the protection afforded by Article 8 of the Basic Law (GG), and the Assembly Act was applicable. The scope of protection afforded by Article 8 GG was opened for the climate camp as such, with parcel 55 as its central event site. According to the plaintiff, the people who gathered at the camp near the Garzweiler open-cast lignite mine intended to collectively influence public opinion on the issues of climate protection, energy production, and energy supply. The fact that the climate camp was conceived as an ongoing event did not preclude this. The events of the "Degrowth Summer School 2017," integrated into the camp, predominantly had a close thematic connection to the subject matter of the climate camp and, based on its overall character, did not negate its status as an assembly. The assembly aspect of the climate camp extended to the overnight accommodation area on plot 65, which served as an infrastructural ancillary facility to the camp. Infrastructural additions to an assembly fall directly within the scope of protection afforded by the freedom of assembly if, according to the organizers' submissions, measured against an objective standard, they are functionally, symbolically, or conceptually necessary for achieving the purpose of the assembly in terms of the concrete expression of collective opinion. This requirement was met for the climate camp through the use of parcel 65, specifically for the sleeping tents of assembly participants and sanitary facilities, and thus also through parcel 65 itself. The possibility of participating in the camp as a continuous assembly depended on a temporarily established infrastructure due to its location in the rural region of the Rhenish lignite mining area, where alternative accommodation options were unavailable. This infrastructural function was fulfilled not only by the sports field in Erkelenz, but also by parcel 65, which is approximately 800 meters from parcel 55, the central event area, within walking distance, and therefore spatially part of the climate camp, by providing overnight accommodation for assembly participants. A conceptual, substantive, and spatial-functional connection existed between parcel 65 and the assembly, in that the assembly could not have taken place without the additional overnight accommodation provided on parcel 65. A more extensive thematic or conceptual connection was not required. In particular, it was irrelevant that no expression of opinion took place on the overnight accommodation itself. Furthermore, given these circumstances, additional protest actions in the form of vigils in the immediate vicinity of the open-cast lignite mine were also unnecessary.
The defendant, in his appeal admitted by the Higher Administrative Court, seeks the reinstatement of the first-instance judgment dismissing the action. He points to the spatial distance between the event area on parcel 55 and parcel 65. He argues that the "tent camp" on parcel 65 was not used for a functional, assembly-specific purpose, but merely to facilitate access to the event area. He contends that if such a camp, lacking a functional, assembly-specific character, is declared an assembly, it can only be restricted under the Assembly Act, not under general police and public order law. He fears that in similar cases, mere camping and the persistent occupation of properties could be registered as an assembly and placed under the particularly high protection of the right of assembly, regardless of whether an expression of opinion was actually being considered. In any event, he argues, the participants in this case could have arrived in the morning before the start of the day's program and departed again in the evening after its conclusion. There was also sufficient space available on plot 55 and the sports field for setting up sleeping tents and sanitary facilities.
The plaintiff seeks the dismissal of the appeal. The appellate court correctly treated her action as a general declaratory action within the meaning of Section 43 of the Administrative Court Procedure Act (VwGO) and attributed success to it accordingly.
II.
The defendant's admissible appeal is unfounded and must therefore be dismissed pursuant to Section 144 Paragraph 2 of the Administrative Court Procedure Act.
The plaintiff's action essentially sought a declaratory judgment that parcel 65, used as an overnight accommodation area for the "Climate Camp 2017" in the Rhineland, with its sleeping tents for camp participants and sanitary facilities, fell within the scope of protection of Article 8 of the Basic Law and that the provisions of the Assembly Act were applicable. The Higher Administrative Court upheld the plaintiff's appeal against the Administrative Court's dismissal of the action without violating federal law within the meaning of Section 137 Paragraph 1 of the Code of Administrative Court Procedure. It correctly deemed the general declaratory action under Section 43 of the Code of Administrative Court Procedure admissible (1.) and well-founded (2.).
1. According to Section 43 of the Code of Administrative Court Procedure (VwGO), a declaratory judgment as to the existence or non-existence of a legal relationship may be sought by way of an action if the plaintiff has a legitimate interest in a prompt determination (Section 43 Paragraph 1 VwGO) and insofar as he cannot or could not have pursued his rights by means of an action for declaratory relief or performance (Section 43 Paragraph 2 Sentence 1 VwGO). These requirements are met for the action brought by the plaintiff.
a. A legal relationship in the form of a concrete, disputed and therefore declaratory legal relationship had arisen between the parties because the Aachen Police Headquarters had determined in its order of August 22, 2017, that parcel 65, which the plaintiff had designated as part of the climate camp, was not covered by the direct fundamental rights protection under Article 8 of the Basic Law as provided for in the specific provisions of the Assembly Act. This mirrored the determination by the competent authorities of the applicability of general or other police and public order law, whereby any prior or subsequent effect of the protection under Article 8 of the Basic Law must be considered when assessing the proportionality of a measure (cf. generally: Federal Constitutional Court, Decision of December 18, 2018 – 1 BvR 142/15 – BVerfGE 150, 244 para. 136; Federal Administrative Court, Judgments of July 25, 2007 – 6 C 39.06 – BVerwGE 129, 142 paras. 30, 37 et seq. and of October 25, 2017 – 6 C 46.16 – BVerwGE 160, 169 paras. 16, 21, 24 et seq., 48; Decision of May 3, 2019 – 6 B 149.18 – Buchholz 402.41 General Police Law No. 116 Rn. 8 f.).
b. The plaintiff has the necessary legitimate interest in the requested declaratory judgment due to the risk of a repetition of comparable administrative action under essentially unchanged factual and legal circumstances (cf. regarding the risk of repetition as a recognized category of interest in a declaratory judgment: Federal Administrative Court, Judgment of October 25, 2017 – 6 C 46.16 – BVerwGE 160, 169 para. 20). The Higher Administrative Court correctly based its factual findings on the plaintiff's intention to continue holding climate camps, potentially lasting several days, at the Garzweiler open-cast lignite mine, and in this respect considered a need for an overnight accommodation area such as the one at issue here to be foreseeable. The Higher Administrative Court's subsequent prognosis that the classification of the respective area as an assembly area falling under the direct protection of Article 8 of the Basic Law will also remain in question in the future does not require correction within the framework of the court of appeal's determination of the facts of the case. Legally, a change has indeed occurred insofar as the (federal) Assembly Act in the state of North Rhine-Westphalia was replaced by the Assembly Act of the state of North Rhine-Westphalia with effect from January 7, 2022 (Article 1 of the Act Introducing a North Rhine-Westphalian Assembly Act and Amending Other Provisions of December 17, 2021, GV. NRW. 2022 p. 2). However, this change does not affect the delimitation of the comparatively narrow powers of the competent assembly authority based on the assembly law – now regulated by state law – from the official powers conferred by other police and public order law.
c. The admissibility of the declaratory action does not ultimately fail due to the principle of subsidiarity under Section 43 Paragraph 2 Sentence 1 of the Code of Administrative Court Procedure (VwGO). The plaintiff cannot be referred to a declaratory action for continued legal effect under Section 113 Paragraph 1 Sentence 4 of the Code of Administrative Court Procedure (VwGO) concerning the illegality of the order of August 22, 2017, which became moot due to the lapse of time with the termination of the climate camp at the end of August 2017 pursuant to Section 43 Paragraph 2 of the North Rhine-Westphalia Administrative Procedure Act (VwVfG NRW).
According to the jurisprudence of the Federal Administrative Court, Section 43 Paragraph 2 Sentence 1 of the Code of Administrative Court Procedure (VwGO) must be interpreted and applied restrictively in accordance with its purpose. The provision does not preclude a declaratory action if there is no risk of circumventing the special provisions for actions for annulment and actions for performance – or for declaratory actions replacing them – and the declaratory action offers more effective legal protection (Federal Administrative Court, judgments of April 29, 1997 – 1 C 2.95 – Buchholz 310 § 43 VwGO No. 127 p. 9, of May 16, 2007 – 6 C 23.06 – BVerwGE 129, 42 para. 13 and of August 22, 2007 – 6 C 22.06 – Buchholz 402.44 VersG No. 14 para. 12). Both requirements are met in the present case.
A declaratory judgment action concerning an administrative act that was completed before the action was filed and before it became legally binding is not subject to the time limit for filing an action under Section 74 of the Code of Administrative Court Procedure (see Federal Administrative Court, Judgment of July 14, 1999 – 6 C 7.98 – BVerwGE 109, 203 <206 ff.>; Kopp/Schenke, VwGO, 27th ed. 2021, Section 113, para. 128). Against this background, it is immaterial that the plaintiff filed the declaratory judgment action only on March 14, 2018, even though the order of August 22, 2017, was served on her on the day it was issued. Furthermore, the declaratory judgment action offers more effective legal protection compared to a declaratory judgment action concerning the legality of the order of August 22, 2017. It makes it possible to focus the decision on the assembly-law protection of the climate camp, including the infrastructure it uses, which is of primary interest to the parties involved, irrespective of the question of the legal basis for the order of August 22, 2017, which is not readily apparent and would have to be addressed as a priority in a declaratory judgment action (correspondingly for a structurally comparable situation: Federal Administrative Court, judgments of May 16, 2007 – 6 C 23.06 – BVerwGE 129, 42 para. 13 and of August 22, 2007 – 6 C 22.06 – Buchholz 402.44 VersG No. 14 para. 12).
2. In deciding on the merits of the action, the Higher Administrative Court, in a properly structured manner, assessed the factual and legal issues associated with the climate camp's status as a so-called protest camp (a.) in two steps (on the evidentiary value of such a procedure: Fischer, NVwZ 2022, 353 <354>). In the first step, it correctly determined that the climate camp as such possessed the legal status of an assembly within the meaning of Article 8 of the Basic Law – and thus also within the meaning of Section 1 Paragraph 1 of the Assembly Act – a status assumed by the Aachen Police Headquarters only "as a precautionary measure" (b.). In the second step, it then equally correctly decided that parcel 65, used as an overnight accommodation area, was, as an infrastructural facility of the climate camp, covered by the direct protection afforded by Article 8 of the Basic Law, as defined by the Assembly Act (c.).
a. The climate camp fell into the category of so-called protest camps. These camps represent a newer, increasingly widespread form of collective protest. They are typically held at a location related to the central issue. However, the character of protest camps is defined even more by their duration than by their location. They are events with a temporal perspective ranging from a few days to, in some cases, several years. This character as a long-term event gives rise to a specific need for infrastructure among camp participants, particularly in the form of food, accommodation, and sanitary facilities, which can occupy a considerable amount of space at the camp location (for details, see, for example: Hartmann, NVwZ 2018, 200 ff.; Friedrich, DÖV 2019, 55 <56, 60 f.>; Fischer, NVwZ 2022, 353 ff.). The Federal Constitutional Court has so far only dealt with the issue of protest camps within the framework of preliminary constitutional legal protection. It has described the issue as largely unresolved and reserved it for examination by the lower courts, with a possible subsequent main proceeding before the Constitutional Court (Federal Constitutional Court, Chamber Decision of June 28, 2017 – 1 BvR 1387/17 – NVwZ 2017, 1374, para. 21 et seq.; confirming this: Federal Constitutional Court, Chamber Decision of August 30, 2020 – 1 BvQ 94/20 – NVwZ 2020, 1508, para. 13).
b. The Higher Administrative Court correctly assumed that the classification of a protest camp as an assembly protected by Article 8 of the Basic Law and the Assembly Act, according to the standards recognized in the highest court's jurisprudence (aa.), is not fundamentally precluded by its character as a continuous event (bb.). Applying these standards, it then affirmed the assembly status of the climate camp in a manner not subject to appeal (cc.).
aa. An assembly is, at its core, a local gathering of several persons for the purpose of joint discussion or demonstration aimed at participating in the formation of public opinion (Federal Constitutional Court, decision of October 24, 2001 – 1 BvR 1190/90 et al. – BVerfGE 104, 92 <104>, judgment of February 22, 2011 – 1 BvR 699/06 – BVerfGE 128, 226 <250>; Federal Administrative Court, judgments of May 16, 2007 – 6 C 23.06 – BVerwGE 129, 42 para. 15, of August 22, 2007 – 6 C 22.06 – Buchholz 402.44 VersG No. 14 para. 14 and of October 25, 2017 – 6 C 46.16 – BVerwGE 160, 169 para. 25). The constitutionally guaranteed freedom of assembly implies the right of those exercising this fundamental right, in particular the organizer, to determine the place, time, type, and content of the assembly (Federal Constitutional Court, decisions of May 14, 1985 – 1 BvR 233/81 et al. – BVerfGE 69, 315 <343>, of December 1, 1992 – 1 BvR 88/91 et al. – BVerfGE 87, 399 <406> and of October 24, 2001 – 1 BvR 1190/90 et al. – BVerfGE 104, 92 <111>; judgment of February 22, 2011 – 1 BvR 699/06 – BVerfGE 128, 226 <251>; Federal Administrative Court, decision of January 8, 2021 – 6 B 48.20 – NWVBl 2021, 239 para. 13). The assembly authority may restrict this right under the conditions stipulated in Section 15 of the Assembly Act (Federal Constitutional Court, decisions of May 14, 1985 – 1 BvR 233/81 et al. – BVerfGE 69, 315 <352 f.> and of October 24, 2001 – 1 BvR 1190/90 et al. – BVerfGE 104, 92 <111>; Federal Administrative Court, decision of January 8, 2021 – 6 B 48.20 – NWVBl 2021, 239 para. 13).
In its traditionally ideal form as a demonstration, an assembly consists of the joint physical display of convictions, whereby the participants, on the one hand, experience reassurance of these convictions in the community of others and, on the other hand, take a stand in the true sense of the word and bear witness to their position outwards – simply through their presence, the manner of their appearance and interaction with one another, or the choice of location (Federal Constitutional Court, decision of May 14, 1985 – 1 BvR 233/81 et al. – BVerfGE 69, 315 <345>; judgment of February 22, 2011 – 1 BvR 699/06 – BVerfGE 128, 226 <250>). The protection afforded by freedom of assembly is not limited to events where arguments and debates take place, but also encompasses those where participants express their opinions in other ways – including non-verbal forms (Federal Constitutional Court, decisions of May 14, 1985 – 1 BvR 233/81 – BVerfGE 69, 315 <343>, of December 1, 1992 – 1 BvR 88/91 et al. – BVerfGE 87, 399 <406> and of October 27, 2016 – 1 BvR 458/10 – BVerfGE 143, 161 para. 110; Federal Administrative Court, judgments of May 16, 2007 – 6 C 23.06 – BVerwGE 129, 42 para. 15 and of August 22, 2007 – 1 BvR 23.06 – BVerwGE 129, 42 para. 15). 2007 – 6 C 22.06 – Buchholz 402.44 VersG No. 14 Rn. 14).
The concept of assembly is generally open to further interpretation (cf. Federal Constitutional Court, Chamber Decision of June 28, 2017 – 1 BvR 1387/17 – NVwZ 2017, 1374 para. 22). If an event contains elements aimed at participation in the formation of public opinion as well as elements not attributable to this purpose, the decisive factor is whether such a mixed event constitutes an assembly in its overall character. If a predominance of one or the other area cannot be established beyond doubt, the high status of freedom of assembly means that the event must be treated as an assembly (Federal Constitutional Court, Chamber Decision of July 12, 2001 – 1 BvQ 28/01 et al. – NJW 2001, 2459 <2461>; Decision of October 27, 2016 – 1 BvR 458/10 – BVerfGE 143, 161 para. 112 et seq.; Federal Administrative Court, Judgments of May 16, 2007 – 6 C 23.06 – BVerwGE 129, 42 para. 16 et seq. and of August 22, 2007 – 6 C 22.06 – Buchholz 402.44 VersG No. 14 para. 14, 22).
bb. Against the background of the right of the organizer of an assembly, rooted in Article 8 of the Basic Law, to determine, among other things, its timing and thus also its duration, and the widely derived principle that there are no maximum time limits for assemblies (cf., for example: Bavarian Administrative Court of Appeal, judgment of March 8, 2022 – 10 B 21.1694 – juris para. 83; Gusy, in: v. Mangoldt/Klein/Starck/Huber/Voßkuhle)<Hrsg.> , GG, Vol. 1, 7th ed. 2018, Art. 8 para. 21; Kniesel, in: Dietel/Gintzel/Kniesel, Assembly Laws, 18th ed. 2019, Part I para. 160 et seq.; tendentially a. A.: Dürig-Friedl, in: the same/Enders, Assembly Law, 1st ed. 2016, Introduction para. 27), the mere fact that a protest camp is a long-term event does not, in principle, preclude its legal classification as an assembly.
Within the framework of the legal assessment—which lies outside the organizer's right to self-determination and is the responsibility of the competent authorities and, if applicable, the courts—of whether an event fulfills the definition of an assembly (cf. Federal Constitutional Court, Chamber Decision of July 12, 2001 – 1 BvQ 28/01 et al. – NJW 2001, 2459 <2461>), a different conclusion may be justified in the case of a camp with a foreseeably very long duration, such as many months or even years. Such an extremely long duration can be an indication that the camp does not actually pursue an assembly-specific purpose. In this context, the statements made by the organizer to the assembly authority during registration or in subsequent cooperative discussions are crucial. While the organizer of a protest camp is not required to submit a comprehensive concept with concrete program points upon registration – as if following a rigid template (cf. Federal Constitutional Court, Chamber Decision of September 21, 2020 – 1 BvR 2151/20 – NVwZ 2020, 1505 para. 17) – their statements must, from an objective standpoint, demonstrate a communicative purpose aimed at participating in the formation of public opinion. Since a protest camp is an ongoing event, the organizer is obligated to substantiate the assembly-specific purpose in the form of an overall concept related to the anticipated duration.
To prevent unacceptable infringements on the rights of third parties or public interests caused by the duration of a protest camp, it is unnecessary to alter the definition of assembly. This is because the assembly authority can appropriately restrict the organizer's right to self-determination regarding the duration of an event classified as an assembly under Section 15 Paragraph 1 of the Assembly Act (VersammlG) in cases of an immediate threat to public safety and order. Issuing an order limiting the duration of a protest camp is a suitable means of establishing a practical balance between the fundamental right of freedom of assembly exercised by such an event and the rights of third parties, as well as the affected public interests, taking into account the circumstances of each individual case. In this balancing of interests, the latter rights and interests carry greater weight the longer a protest camp is foreseeably expected to last.
cc. Based on the facts it had established as binding, the Higher Administrative Court, through an unobjectionable assessment of the individual case, came to the conclusion that the climate camp constituted an assembly within the meaning of Article 8 of the Basic Law and the Assembly Act.
In assessing whether the climate camp constituted an assembly, the Higher Administrative Court considered not only parcel 55 as the actual event site, but also the areas used for overnight stays by camp participants – the sports field in Erkelenz adjacent to the event site and parcel 65, located 800 meters away. It made the factual finding, which was not challenged by the defendant with any substantive procedural objections and is therefore binding pursuant to Section 137 Paragraph 2 of the Code of Administrative Court Procedure, that these areas formed a single spatial unit. Furthermore, the Higher Administrative Court made a binding factual finding that, according to an objective understanding of the overall concept presented by the plaintiff in connection with the assembly registration, the activities on parcel 55, throughout the entire planned twelve-day duration of the camp at the lignite mining site, were aimed at protesting the environmental and climate destruction caused by this mining and at the continuous practice of an environmentally compatible form of coexistence. The Higher Administrative Court, considering the overall character of the climate camp, deemed the purpose of participation in public opinion formation to be decisive. It found that this purpose was not significantly impaired by either the "Degrowth Summer School 2017" integrated into the camp or by the use of the sports field in Erkelenz and parcel 65 as mere overnight accommodations. This assessment reveals no violation of the established standards of applicable law.
c. An infrastructural facility of a protest camp, which is to be classified as an assembly, falls under the direct protection afforded by Article 8 of the Basic Law (GG) as defined by the Assembly Act, not only if it has a substantive connection to the expression of opinion intended by the camp. Rather, it also receives this protection if it is logistically necessary for the specific camp and spatially attributable to it. The Higher Administrative Court based its decision on this approach in accordance with applicable law (aa.). According to the lower court's correct assessment, a property used for such an infrastructural facility is equivalent to this use with regard to its protection under assembly law. This also applies to a property owned by a private individual on which such use takes place with the owner's consent (bb.). Based on these criteria, the Higher Administrative Court considered parcel 65 to be directly protected by Article 8 of the Basic Law as an infrastructural facility of the climate camp, a finding that is not subject to challenge in the appeal proceedings (cc.).
aa. To characterize the material relationship that must exist between a protest camp qualifying as an assembly on the one hand and an infrastructural facility on the other, in order for the latter to directly benefit from the protection afforded to the camp under Article 8 of the Basic Law (GG), the formula of functional or symbolic connection is widely used – especially in lower court rulings (see, for this and the following, the references in Fischer, NVwZ 2022, 353 <355 ff.>). Most courts affirm such a connection only if there is a substantive link between the infrastructural facility and the specific expression of opinion. Others, however, consider it sufficient that an infrastructural facility is logistically necessary for the organization of the camp. The Higher Administrative Court ultimately adopted the latter assessment but did not rule out the possibility that the required connection could also be of a substantive nature – in line with the former view. With this approach, the Higher Administrative Court is in accordance with applicable law.
The requirement of a substantive connection ultimately corresponds to the recognized criterion for including objects used in other forms of assembly within the direct scope of protection of the freedom of assembly (cf. Federal Constitutional Court, Chamber Decision of June 26, 2014 – 1 BvR 2135/09 – NVwZ 2014, 1453 para. 11; Federal Administrative Court, Judgment of August 22, 2007 – 6 C 22.06 – Buchholz 402.44 VersG No. 14 para. 18 et seq.). There are no objections to including infrastructural facilities that meet this criterion within the protection of a protest camp that is to be classified as an assembly. However, this cannot be the end of the matter. To prevent the classification of a protest camp as a permanent assembly protected by Article 8 of the Basic Law and the Assembly Act from becoming meaningless, this protection must also encompass those infrastructural facilities that—spatially attributable to this camp—are logistically necessary for its operation, without which the camp could not be held (in this sense, by assuming a supplement to original infrastructure protection by an accessory one: Friedrich, DÖV 2019, 55 <58 ff.>; Fischer, NVwZ 2022, 353 <358>; Höfling, in: Sachs<Hrsg.> , GG, 9th ed. 2021, Art. 8 para. 26; Hong, in: Peters/Janz<Hrsg.> , Handbook of Assembly Law, 2nd ed. 2021, B Rn. 22 ff.).
By relating the logistical necessity of infrastructural facilities to the specific protest camp in question and requiring a qualified spatial connection to it, it is precluded that infrastructure intended solely to accommodate persons wishing to participate in assemblies taking place elsewhere – outside the specific camp – is included in the assembly-law protection afforded to that camp. As the Senate has already ruled, such infrastructure can, at most, be covered by the preliminary effects of Article 8 of the Basic Law with regard to the assemblies taking place elsewhere (Federal Administrative Court, Judgment of October 25, 2017 – 6 C 46.16 – BVerwGE 160, 169, para. 27 et seq.), which – as already mentioned – does not, in principle, preclude the applicability of general or other police and public order law by the competent authorities.
bb. There is no objection to the Higher Administrative Court's assumption that a property used for an infrastructural facility included in the assembly-law protection of a protest camp shares its classification under assembly law. Likewise, there is no fault with the Higher Administrative Court's failure to consider the fact, highlighted in the Aachen Police Headquarters' order of August 22, 2017, that parcel 65 – unlike the sports field in Erkelenz, which was also used by participants of the climate camp as an overnight area – was not publicly owned but privately owned. The owner of parcel 65 had indisputably consented to the use of the property for the climate camp on the basis of a lease agreement concluded with the plaintiff. There is no doubt that the scope of the fundamental right of freedom of assembly is fully open on private property if an assembly takes place there with the consent of the owner (cf. Federal Constitutional Court, judgment of 22 February 2011 – 1 BvR 699/06 – BVerfGE 128, 226 <253>; Götz/Geis, General Police and Public Order Law, 16th ed. 2017, § 23 para. 12).
cc. The Higher Administrative Court, based on the facts it had established as binding, decided through a factually correct assessment of the individual case that parcel 65 constituted an infrastructural facility of the climate camp directly protected by Article 8 of the Basic Law.
As already explained, the Higher Administrative Court established the facts that all areas used by the climate camp formed a single spatial unit. The lower court further established that, with regard to the facts, the possibility of participating in the climate camp, conceived as a permanent assembly, depended (also) on the infrastructural function of parcel 65 as an overnight accommodation area – that is, the use of the area by camp participants' sleeping tents and by sanitary facilities – that no alternative accommodation options were available in the rural region surrounding the Garzweiler open-cast lignite mine, that the camp could not have taken place without the use of parcel 65 as an overnight accommodation area, and that, in this respect, further protest actions in the form of vigils in the immediate vicinity of the open-cast lignite mine were irrelevant. The defendant did not challenge any of these factual findings with any substantive procedural objections. Based on these findings, the Higher Administrative Court correctly concluded that parcel 65, which spatially belongs to the climate camp, was logistically necessary for the organization of the camp due to its use and was therefore included as an infrastructural facility of the camp in its direct protection under Article 8 of the Basic Law as implemented by the Assembly Act.
3. The decision on costs follows from Section 154 Paragraph 2 of the Administrative Court Procedure Act (VwGO).
Decision
The value of the subject matter of the dispute is set at €5,000 for the appeal proceedings (§ 47 para. 1 in conjunction with § 52 para. 2 GKG).
