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Cablegate: Future of Night Flights at Frankfurt Airport Remains

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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

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