5.  The applicant company is a German company based in Auengrund.
6.  In July 1994 the applicant company purchased land underneath which lay a limestone deposit (Kalksteinvorkommen). It acquired a mining licence (Bewilligung) to quarry the deposit for twenty-five years. Subsequently the open-cast quarrying of limestone began. It was necessary that the applicant company operated a plant directly next to the quarry in order to process the limestone into construction material. In 1997 it received permission to use the quarry as a landfill (Deponiezulassung) using waste soil from earthworks at other sites.
7.  Meanwhile, the federal authorities began the planning of a new motorway with the preferred option being a route across the quarry. From 29 October until 6 December 1993 maps and documents were disclosed for public inspection in the municipality where the quarry was located. Additionally, on 28 October 1993 information about the planning process was published in the municipality’s gazette. It was apparent from the disclosed documents that the quarrying operation would be affected by the motorway. However, the extent of the adverse effects was not entirely foreseeable because the exact route had not been finalised. The applicant company claimed that it had not been aware of the planning process when it had bought the land in 1994.
8.  On 7 November 2000, in the light of the chosen route across the quarry, the Bad Salzungen Mining Authority (Bergamt) declined to approve the applicant company’s entire operation plan (Hauptbetriebsplan) for the years 2000-02, an administrative prerequisite to operate and continue operating a quarry. Only quarrying limestone in a specific area was approved and only to the extent that the route for the new motorway was not affected. Consequently, the applicant company had to stop quarrying limestone in 2001 and transferred its activity to another nearby mining site. At the old site, 4,700,000 cubic metres of limestone (67% of the original volume) remained in the ground. The applicant company had to bear the costs of relocating the plant, including the removal of machinery and the construction of roads and buildings. An administrative objection (Widerspruch) it lodged against the decision of the Mining Authority was never decided upon.
9.  On 26 May 2003 the Land of Thuringia issued a planning decision (Planfeststellungsbeschluss) for the construction of the motorway, which stated, inter alia, that it would be too costly and time consuming to circumvent the applicant company’s land.
10.  The applicant company brought an action before the Federal Administrative Court. It requested the annulment of the planning decision; in the alternative that it be stipulated in the planning decision that the applicant company be compensated for the interference in its quarrying operation; or in the alternative that it be stipulated in the planning decision that the Land of Thuringia was obliged to take over the quarrying operation, the remaining land and the mining licence.
11.  On 2 February 2004, after the Federal Administrative Court had stated that the relevant part of the planning decision was not sufficiently precise, the Land modified it. It changed the wording that “the amount and scale of the compensation [had to] be agreed upon in a private-law agreement” and “if the parties d[id] not reach an agreement, the expropriation authorities [would] determine the compensation in separate compensation proceedings” into the wording that “the seizure [Inanspruchnahme] entitle[d] to compensation” and that “the amount and scale of the compensation w[ould] not be decided on in the planning decision”. Subsequently, the applicant company and the Land declared the matter resolved (erledigt) and the Federal Administrative Court therefore decided in 2004 to discontinue the proceedings. It split the costs of the proceedings between the applicant company and the Land.
12.  In 2005 the Federal Government seized the applicant company’s land for road construction purposes after it had reached a settlement with the applicant company during the proceedings concerning provisional seisin (vorläufige Besitzeinweisung). On 19 June 2006, following the initiation of formal expropriation proceedings, a court-sworn expert’s report recorded losses and additional costs amounting to 3,589,566.42 euros (EUR), including the value of the limestone, and forgone profits from the landfill, relocation costs and interest.
13.  On 26 March 2008 the Administrative Office of Thuringia Land (Landesverwaltungsamt) expropriated the part of the applicant company’s land on which the motorway had been built and decided that the Federal Government should compensate the applicant company by a payment of some EUR 865,000. That amount included about EUR 22,800 in compensation for the land value as farmland and some of the costs of the relocation of the plant (new infrastructure, transport of machinery and opening the ground of the new mine). There was no formal expropriation of the mining licence.
14.  Both parties requested a judicial review. The Federal Government was, in particular, of the opinion that the cost of the quarrying plant’s relocation should not be compensated. The applicant company requested compensation of an additional EUR 2,301,649.53 plus interest, specifically EUR 1,108,297.00 for the loss of landfill capacity and the respective profits, EUR 492,763.22 for further relocation costs and EUR 700,589.31 for reduced delivery capacity during the transition period. Claims for compensation regarding the value of the land and the value of the limestone were dropped.
15.  On 18 February 2009 the Meiningen Regional Court dismissed the applicant company’s request and – on the request of the Federal Government – reduced the amount of compensation to about EUR 22,800. It held that only the value of the expropriated land – not taking into account that there existed a limestone deposit underneath it – had to be compensated. Pursuant to section 124(3) of the Federal Mining Act (Bundesberggesetz, see “Relevant domestic law”, paragraph 22), mining rights under the terms of that Act were granted only on the statutory condition that they would have to yield to a public infrastructure project without compensation. Consequently, the actual right to quarry and the linked costs and losses for relocation and the impeded landfill did not generate a compensation claim. While the acquired mining rights constituted “property” under Article 14 of the Basic Law, the holder of a mining licence could not rely on making unhindered use of his or her mining rights; he or she could only operate under the limitations stipulated, inter alia, under section 124(3) of the Federal Mining Act. The planning decision was therefore merely actualising the determination of content and limits already inherent in the acquired mining right.
16.  On 27 January 2010 the Thuringia Court of Appeal dismissed a prior appeal lodged by the applicant company. It held that the construction of the motorway had not led to a loss of the applicant company’s mining rights but only to a factual impairment in the exercise of those rights which followed from the preference given to transport infrastructure projects. The relevant provisions, section 124(3) and (4) of the Federal Mining Act, excluded compensation claims. The clarification of the planning decision had not generated a claim regarding the impairment of the applicant’s mining rights and the business operation linked to it, including the landfill. Article 14 of the Basic Law (see “Relevant domestic law”, paragraph 20) had not been infringed because the measure taken had not been unreasonable, even considering that 67% of the mining right had been rendered valueless.
17.  On 14 April 2011 the Federal Court of Justice dismissed an appeal on points of law by the applicant company. It rejected the claim for compensation for the alleged interference with the mining right, mainly relying on section 124(3) of the Federal Mining Act, and in particular on the grounds that an interference with the rights of an established and operational business enterprise (Eingriff in den eingerichteten und ausgeübten Gewerbebetrieb) should not be compensated either. The enterprise could not enjoy more extensive protection under the law than the economic basis it rested on: the mining right. Referring to its case-law, it reiterated that it made no difference that the applicant company was the owner of the land and, at the same time, the holder of the mining licence. Under German mining law, both entitlements needed to be assessed separately.
18.  The Federal Court of Justice further acknowledged that quarrying was de facto no longer possible. Mentioning that for reasons of proportionality the planning decision might in a case like the present one call for a formal expropriation of the mining rights with corresponding compensation, it found that such a claim – as well as the issue of disproportionality as such – should have been raised in the proceedings concerning the planning decision before the Federal Administrative Court (see paragraph 10). Lastly, it observed that the loss of future profits from the landfill was a mere hope for future returns and could thus not be considered a “property right” under Article 14 of the Basic Law, but fell only under Article 12 of the Basic Law (right to exercise one’s profession).
19.  On 21 December 2011 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant company without providing reasons (1 BvR 1499/11).