Facts
Wander AG owns spring rights in the Aumatte in Neuenegg and extracts significant quantities of groundwater, some of which it supplies to the municipality of Neuenegg. At the request of Wander AG, the Cantonal Government of Bern approved the establishment of a protection zone, whereby 49,343 m2 of land were subject to an absolute building ban. Eight landowners whose properties were affected by this building ban filed a lawsuit against Wander AG for payment of judicially determined compensation, as they considered the restrictions to be a material expropriation.
The President of the Court of Laupen initially affirmed his jurisdiction, but dismissed the claim due to lack of passive legitimation of Wander AG. The plaintiffs appealed against this decision, with the Canton of Bern joining as an intervenor, and requested the affirmation of Wander AG's passive legitimation. Wander AG disputed the subject-matter jurisdiction of the President of the Court through a cross-appeal.
The Court of Appeal of the Canton of Bern upheld the appeal and dismissed the cross-appeal. It affirmed the jurisdiction of the President of the Court to assess the claims for material expropriation and stated that in the case of material expropriation, not the state, but the party for whose benefit the protection zone was established, must be liable for the damage. Since the protection zone in Neuenegg was established at the request and primarily for the benefit of Wander AG, it is liable for compensation if a material expropriation has occurred.
Considerations
Wander AG simultaneously filed an administrative court appeal regarding water protection and a constitutional appeal due to arbitrariness and violation of the guarantee of property rights against this decision of the Court of Appeal.
Wander AG argued that the contested decision violates Articles 2-6 of the Water Protection Act (GSchG), as it makes the protection of water provided for therein dependent on the user…