CASE OF JAHN AND OTHERS v. GERMANY
No violation of P1-1
Luzius Wildhaber;Nicolas Bratza
13. The first applicant, Ms Heidi Jahn, is the sister of the second applicant, Mr Albert Thurm. They were both born in 1947 and live in Sangerhausen. The third and fourth applicants, Ms Erika Rissmann and Ms Ilse Höller, are sisters. They were born in 1942 and 1944 respectively and live in Erftstadt and Stotzheim. The fifth applicant, Ms Edith Loth, was born in 1940 and lives in Frankfurt an der Oder. 14. In September 1945, people in the Soviet Occupied Zone of Germany who owned more than 100 hectares of land were expropriated under the land reform (Bodenreform). The land became part of a pool of State-owned land (Staatlicher Bodenfond) from which parcels of land averaging eight hectares in area were redistributed to farmers who had little or no land of their own. 15. The applicants are the heirs of the new owners (then called “new farmers” – Neubauern) of the land redistributed under the land reform (Bodenreformgrundstücke) and situated in the former German Democratic Republic (GDR). 16. The 1945 Land Reform Decrees (Bodenreformverordnungen – see paragraphs 55-56 below) constituted the statutory basis of this land reform. They provided that the disposal of land acquired under the land reform was subject to restrictions (Verfügungsbeschränkungen). The certificates of allotment (Zuteilungsurkunden) stated that the land could pass to the new owner's heirs. 17. The decrees stipulated that certain portions of the land had to be used for agricultural purposes in order to provide sufficient food for the population. 18. The Change of Possession Decrees of 21 June 1951, 7 August 1975 and 7 January 1988 (Besitzwechselverordnungen – see paragraphs 57-59 below) dealt with cases where the land was returned to the pool of State-owned land or assigned to third parties, with the proviso that the latter undertook to use it for agricultural purposes. 19. After the fall of the Berlin Wall on 9 November 1989, negotiations started between the two German States and the four former occupying powers (France, the United Kingdom, the United States and the Soviet Union) and led to the reunification of Germany, which took effect on 3 October 1990. 20. As part of those negotiations, and in order to ensure a transition from a socialist economy to a market economy, the GDR parliament passed the Law of 6 March 1990 on the rights of owners of land redistributed under the land reform (Gesetz über die Rechte der Eigentümer von Grundstücken aus der Bodenreform – see paragraph 61 below), also known as the Modrow Law (after the President of the State Council (Staatsrat) at the time), which came into force on 16 March 1990. The Modrow Law lifted all restrictions on the disposal of land acquired under the land reform, whereupon those in possession of the land became owners in the true sense of the word. 21. On 18 March 1990 the first free elections took place in the GDR. 22. On 3 October 1990 the Modrow Law became an integral part of the law of the Federal Republic of Germany (FRG). 23. On 14 July 1992 the FRG legislature enacted the second Property Rights Amendment Act (Vermögensrechtsänderungsgesetz) on the liquidation (Abwicklung) of the land reform in the Länder of the former GDR. It came into force on 22 July 1992. 24. When passing that Act, the legislature inserted subsections (11) to (16) into section 233 of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch – see paragraphs 65-69 below) on the basis of the principles set out at the time in the GDR by the Land Reform Decrees and the Change of Possession Decrees. 25. The first two applicants had inherited land in the Land of Saxony-Anhalt in 1976. They had been registered in the land register as the owners of that land since 14 July 1992. 26. On 18 January 1994 they attempted to sell it. 27. On 12 July 1994 the Department of Agriculture and Rural Land Consolidation (Amt für Landwirtschaft und Flurneuordnung) of the Land of Saxony-Anhalt opposed the sale, following which a right of pre-emption in favour of the tax authorities was registered in the land register. 28. On 15 February 1995 the department in question applied to the Sangerhausen District Court (Amtsgericht) for an order requiring the applicants to reassign their property to the Land of Saxony-Anhalt without compensation. 29. In a judgment of 2 November 1995, the Sangerhausen District Court ordered the applicants to reassign their property in accordance with section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below). It held that they had had no right to inherit land that had been acquired under the land reform because neither of them had been carrying on an activity in the agriculture, forestry or food-industry sectors on 15 March 1990 or during the previous ten years. 30. The applicants appealed. 31. In a judgment of 22 March 1996, the Halle Regional Court (Landgericht) dismissed their appeal on the ground that, on inheriting the property, the applicants had not acquired title to it for the purposes of the Basic Law (Grundgesetz), because in 1946 land acquired under the land reform had already been subject to substantial restrictions in the GDR. The Land Reform Decrees of 1945 and the Change of Possession Decree of 1951 prohibited the sale of such land and provided that any decision regarding a change of possession was a matter for the State. That position had not been altered by the Change of Possession Decree of 1975. 32. On 24 April 1996 the applicants appealed to the Federal Constitutional Court on the grounds that they were the legitimate heirs to and owners of the land. In their submission, the GDR Change of Possession Decrees restricting the use of land acquired under the land reform had been passed after their mother had acquired the land and were therefore inapplicable in their case. 33. On 17 June 1996 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, dismissed their appeal. The Constitutional Court held, as it had previously held in its judgment of 4 October 1995 on the same issue (see paragraph 70 below), that the statutory provisions in question did not breach the applicants' right of property, or the principle that laws could not apply retrospectively, or the principle of equality. 34. The third and fourth applicants had inherited land in the Land of Mecklenburg-West Pomerania in 1978. They had been registered in the land register as the owners of that land since 1996. 35. They had leased their land to an agricultural company called Breesen for twelve years, from 1 January 1991 to 31 December 2002. 36. On 3 July 1998 the Land of Mecklenburg-West Pomerania requested that the land be transferred into its name on the ground that it had “superior title” (bessere Berechtigung) to it under section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below). 37. In a judgment of 29 October 1998, the Neubrandenburg Regional Court ordered the applicants to transfer their property to the Land of Mecklenburg-West Pomerania on the ground that on 15 March 1990 they had neither been members of an agricultural cooperative (Landwirtschaftliche Produktionsgenossenschaft) in the GDR nor applied for membership of one. 38. The applicants appealed on the ground, inter alia, that, since the leading judgment of the Federal Court of Justice of 17 December 1998 (see paragraph 71 below), it had been established that title to land acquired under the land reform could pass to the owner's heirs. 39. In a judgment of 17 August 1999, the Rostock Court of Appeal (Oberlandesgericht) dismissed the appeal, holding that the statutory provisions in question were compatible with the Basic Law. It found, inter alia, that the German legislature had thus sought to remedy the loopholes in the Modrow Law, which contained no transitional provisions for cases where changes of ownership had not been recorded in the land register. 40. The applicants appealed to the Federal Constitutional Court, alleging a breach of their property and inheritance rights, of the rule that laws could not apply retrospectively, and of the principle of equality. They submitted that there had been no constitutional justification for interfering with their right of property without compensation and that the interference had been neither proportionate nor necessary. Furthermore, they were no longer in a position to satisfy the requisite criteria, for example by becoming members of a GDR agricultural cooperative. 41. In a leading decision of 6 October 2000, the Federal Constitutional Court, ruling as a panel of three judges, dismissed the applicants' appeal on the ground that there had not been a breach of their fundamental rights. 42. The relevant extract of that decision reads as follows: “1. The decisions that are the subject of this appeal are contrary neither to Article 14 of the Basic Law nor to the principles of protection from retrospective laws, which in that provision has an autonomous meaning ... (a) The rules under section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code, which were applied by the civil courts, are compatible with the right of property enshrined in Article 14 of the Basic Law. (aa) According to the undisputed and not manifestly unconstitutional finding of the Court of Appeal, title to land acquired under the land reform in the Soviet Occupied Zone and the German Democratic Republic could pass to the owner's heirs. That is how, under inheritance law, the appellants acquired title to the land in question. Although their rights were initially subject to the restrictions set out in Article VI, no. 1, of Decree no. 19 of 5 September 1945 on the land reform in the Land of Mecklenburg-West Pomerania ... and the various Change of Possession Decrees, those restrictions were subsequently lifted when the Law of 6 March 1990 came into force. It can therefore be assumed, as it was by the Court of Appeal, that from then on title to property acquired under the land reform conferred full ownership and as such fell within the scope of the Basic Law, including in those cases where it had passed to the heirs [Alterbfälle], that is, in cases where the owner originally registered in the land register had died before 16 March 1990. (bb) Section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code has the effect of depriving the owners of land acquired under the land reform of their title to the land. That does not mean, however, that the land is expropriated within the meaning of Article 14 § 3 of the Basic Law. Expropriation is the taking by the State of an individual's property. It fully or partially deprives individuals of their personal and actual legal title guaranteed by Article 14 § 1 of the Basic Law, in order to achieve specific public aims ... Section 233(11) to (16) of the Introductory Act to the Civil Code is designed to remedy ex post facto the repeal without transitional provisions [ersatzlose Aufhebung] of the change of possession provisions [Besitzwechselvorschriften] implemented by the Law of 6 March 1990 and to clarify the position regarding title to land acquired under the land reform ... The provisions of section 233(11), paragraph 3, first sentence, taken in conjunction with section 233(12), paragraph 2, no..2, letter (c), and paragraph 3 being indirectly challenged here are part of this idea of regularisation [ist Teil dieses Regelungskonzepts] and thus amount to rules establishing the substance and limits of ownership (of land), within the meaning of Article 14 § 1, second sentence, of the Basic Law. (cc) In order to accomplish the task required of it under the said provision, the legislature has to take account of both the legal position of the owner and the requirements of the system of socially fair ownership under Article 14 § 2 of the Basic Law. It also has to strike a fair balance [gerechter Ausgleich] and proportionate relationship [ausgewogenes Verhältnis] between the legitimate interests of the persons concerned. Unilateral favourable or unfavourable treatment of some rather than others would not be in keeping with the constitutional foundations of a socially just system of private property ... In exercising its legislative power under Article 14 § 1, second sentence, of the Basic Law, the legislature can also, in certain circumstances, nullify existing legal positions protected by a property safeguard when undertaking a general reform of a particular legal area ... Moreover, fundamental changes in the economic and social situation can broaden its margin of manoeuvre when creating new legislation. The legislature can also, in enacting provisions on the basis of Article 14 § 1, second sentence, of the Basic Law, take account of the difficulties caused by the transition from the socialist legal order and its property regime, including the legal positions subsequently acquired, to the legal system of the Federal Republic of Germany and to the fact that such a transition cannot be implemented overnight. This will have implications for the interpretation of a particular law. Individual provisions imposing a burden cannot be examined in isolation regardless of their legislative context, or without regard to the fact that the desired legal position can only be put in place step by step ... (dd) Judged in the light of those criteria, the rules under section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code are compatible with Article 14 § 1 of the Basic Law. (aaa) The provisions complained of pursue a legitimate aim. According to the legal reasoning of the Federal Court of Justice, which was adopted by the Court of Appeal in the original proceedings, section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code remedies a hidden legislative loophole in the Law of 6 March 1990 regarding the inheritance of title to property acquired under the land reform, which is at the heart of the instant case. In theory, this finding binds the Federal Constitutional Court. Like the establishment and assessment of the facts relevant to the decision, the interpretation and application of the law of another State are matters for the jurisdiction of the ordinary courts. Only under certain conditions does the Federal Constitutional Court have corrective power in that regard. Those conditions would only be met here if the assessment of the law of the German Democratic Republic relating to a hidden loophole in the Law of 6 March 1990, which forms the basis of the Court of Appeal's judgment, had breached Article 3 § 1 of the Basic Law ... in so far as it prohibits arbitrariness ... This is not the case, however. In the light of the relevant statutory provisions, the Federal Court of Justice established that the deliberations in the People's Chamber [Volkskammer] on 6 March 1990 were designed to prepare the German Democratic Republic's statutory agricultural regime for adjustment to a social market-economy orientated agriculture. It noted in that connection that priority had been given to amending the Agricultural Cooperatives Act. At the same time, however, the restrictions on the disposal of land acquired under the land reform were also to be lifted and inheritance rights guaranteed in the future. In doing so, the People's Chamber apparently did not realise that the repeal (deemed necessary for that purpose) of the Change of Possession Decrees without any transitional provisions for those transfers and returns that had not been implemented also extended to cases where title to property acquired under the land reform had passed to the owner's heirs. The Federal Court of Justice found that simply transferring title to land used for agricultural purposes to the heirs of beneficiaries who had died, even where the heirs in question did not live in the German Democratic Republic or did not work in the agricultural sector ... did not contribute to the adjustment of a State agricultural system to a market one. That reasoning is understandable [nachvollziehbar] and does not in any way support the assumption that the assessment of the Federal Court of Justice – and therefore of the Court of Appeal – was based on considerations that were irrelevant to the facts of the case and thus breached the prohibition on arbitrariness contained in the Basic Law. It is not for the Federal Constitutional Court to decide whether the drafting history of the Law of 6 March 1990 and legal development in the territory that subsequently acceded to the Federal Republic up until reunification indicate that it was the legislature's intention to repeal – without any transitional provisions, including for cases where land acquired under the land reform had passed to the owner's heirs – the restrictions on the disposal of title to land acquired under the land reform and the Change of Possession Decrees. (bbb) Nor is the manner in which the legislative loophole identified by the Federal Court of Justice was remedied by the provisions in question open to criticism from the point of view of compatibility with the Basic Law. It leads, against the background of the former decrees of the German Democratic Republic on changes of possession, to an appropriate system of ownership reflecting the factual situation and one that is, moreover, acceptable to the interested parties and clarifies the position for the future. 1. Article 4 § 1 of the Change of Possession Decree of 7 August 1975, in the version set out in the Decree of 7 January 1988, provided that, on the request of an heir to land acquired under the land reform, the district council was to transfer the rights and obligations relating to the use of the land to the heir or to a member of his family designated by him, with the proviso that the heir or the member of his family concerned use the land for agricultural purposes as a member of a cooperative or as a labourer. Where there were several heirs, they had to inform the district council promptly to which heir or other member of their family the rights and obligations associated with farming the land should be transferred. If the conditions for transfer were not satisfied, the land would return to the pool of State-owned property, in accordance with Article 4 § 5 of the decree. 2. By enacting section 233(11), paragraph 3, first sentence, taken together with section 233(12) of the Introductory Act to the Civil Code, the parliament of reunified Germany transposed these legal principles wholesale. The parties have therefore been placed in the situation that they would have been in if the Change of Possession Decrees had been properly applied and implemented by the authorities of the German Democratic Republic prior to the entry into force of the Law of 6 March 1990 or if, before reunification, the legislature of the German Democratic Republic had enacted transitional provisions akin to the rules previously governing changes of possession. The provisions complained of, as the Court of Appeal rightly held, moreover, did not destroy the legitimate confidence [schutzwürdiges Vertrauen] of the heirs of owners of land acquired under the land reform. It was not generally possible to have confidence in the continued application of the laws of the German Democratic Republic at the time of the change of regime [Wende], given the possible reunification of the two German States. Such confidence would have been justified only if there were special reasons for believing that the law of the German Democratic Republic would exceptionally remain in force ... The expectation that property ownership acquired prior to the entry into force of the Basic Law in the territory that had acceded to the Federal Republic would in principle be recognised could not be as extensively protected as the expectation that the rights acquired by virtue of the Basic Law would be maintained. In any event, the only factor to be taken into consideration for the protection of this expectation is the factual and legal position the German federal legislature found to obtain in the German Democratic Republic when it ceased to exist as a State and which, in the course of reunification, was so to speak transposed as a legal element into the sphere of application of the Basic Law ... Consequently, the heirs of the owners of land acquired under the land reform could no longer legitimately expect to maintain the title they had acquired by virtue of the failure to implement the Change of Possession Decrees enacted at the time of the German Democratic Republic. Nor did the transition, in terms of both the general and the constitutional law, of the German Democratic Republic to a legal order protecting private property offer particular grounds for expecting that, where land acquired under the land reform passed to the owner's heirs, title to the land – described in the law in question as full ownership – would be maintained. Once transition had been achieved, only ownership of private property knowingly and intentionally conferred on an individual was to be protected. This was not the case regarding the ownership of land that had been acquired under the land reform and subsequently inherited from the owners, since, as observed by the Federal Court of Justice, there was a hidden legislative loophole in the Law of 6 March 1990. It therefore has to be assumed that the legislature of the German Democratic Republic would itself have enacted analogous provisions to those by which the land became State-owned property again if it had been aware of the factual and legal position regarding cases where there were no heirs satisfying the conditions by which the rights and obligations governing use of the land could be transferred to them. In these circumstances, the legislature of reunified Germany was justified in compensating, comprehensively, for provisions that had been overlooked at the material time. The fact that it did not remedy this loophole when the Unification Treaty was signed does not justify a legitimate expectation that the legal position created by the Law of 6 March 1990 would be maintained. Having regard to the multiplicity and complexity of the tasks that had to be undertaken in connection with reunification, the authors of the Unification Treaty were not in a position to enact in a single stroke of the pen, as it were, and in a definitively satisfactory manner, all the rules necessary to ensure the smooth adjustment of the law of the German Democratic Republic to that of the Federal Republic of Germany ... Thus all persons subject to the jurisdiction of the courts had to expect that legal positions initially transferred as they stood would be modified and clarified by the reunified German legislature once it had ascertained the scope of the laws enacted by the German Democratic Republic. The same also applies to ownership of land acquired under the land reform, which the legislature of the German Democratic Republic had transformed into full ownership when privatising the agricultural system.” 43. The fifth applicant had inherited land in the Land of Brandenburg in 1986. 44. From 1968 to 1979, she had been a member of an agricultural cooperative in the GDR. From 1 January 1980, she had worked as a cleaner at the Ministry of National Security (Ministerium für Staatssicherheit) in the GDR. After the dissolution of the GDR, she had been a member of the National People's Army until 31 December 1990. 45. Prior to German reunification, the town of Frankfurt an der Oder had opened a leisure centre called the Helensee on the applicant's land. After reunification, the town had leased the leisure centre to a managing company. The applicant had accordingly been paid 60,000 German marks (DEM) in rent paid to the town in error. 46. From 30 November 1991, the applicant had been registered in the land register as the owner of the land. On 3 September 1996 she signed a lease with the managing company of the leisure park for an annual rent of DEM 12,000. 47. On 28 July 1995 the Land of Brandenburg requested that the land be transferred into its name on the ground that it had superior title to it under section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below). 48. In a judgment of 16 July 1997, the Frankfurt an der Oder Regional Court ordered the applicant to transfer her land on the ground that, on 15 March 1990, she had not been carrying on an activity in the agriculture, forestry or food-industry sectors. It also ordered her to pay the Land of Brandenburg DEM 60,000 plus interest at the annual rate of 4% from 24 January 1997. 49. This judgment was upheld on 10 June 1998 by the Land of Brandenburg Court of Appeal, which held, among other things, that the mere fact that the applicant had technically always been a member of an agricultural cooperative, even after starting her job at the Ministry of National Security, did not suffice to give her valid title to the land in question. Moreover, referring to the decisions of the Federal Constitutional Court of 17 June 1996 and 4 October 1995, the Court of Appeal held that section 233(11) did not infringe the right of property or the principle that laws could not apply retrospectively even if the “new farmer” had paid a certain sum on being allotted his or her land under the land reform. 50. In a decision of 15 July 1999, the Federal Court of Justice allowed an appeal on points of law by the applicant regarding the amount she had been ordered to pay and dismissed the remainder of the appeal. 51. In a judgment of 4 February 2000, the Federal Court of Justice remitted the case to the Court of Appeal regarding the first point, on the ground that the applicant had been justified in keeping the compensation for loss of enjoyment (Nutzungsentschädigung) that she had received from the town of Frankfurt an der Oder prior to 22 July 1992. 52. In a judgment of 26 July 2000, the Brandenburg Court of Appeal ordered the applicant to repay an aggregate amount of DEM 27,000. 53. The applicant lodged a constitutional appeal with the Federal Constitutional Court, relying on a breach of her rights of property and inheritance, of the principle that laws could not apply retrospectively, and of the principle of equality. In her submission, there had been no constitutional justification for interfering with her right of property without paying her compensation, and the interference had been neither proportionate nor necessary. 54. In a leading decision of 25 October 2000, the Federal Constitutional Court dismissed the applicant's appeal on the ground that there had not been a breach of her fundamental rights (see paragraph 72 below). 55. The Land Reform Decrees of 1945 constituted the statutory basis of the land reform and imposed restrictions on the disposal of land acquired under the land reform. They provided, among other things, that land acquired under the land reform could not be divided up, sold, leased or seized and that part of the harvest had to be handed over to the State. In certain exceptional cases, the land could be divided up and leased, however, if the local administrative authorities agreed. The certificates of allotment described the land as “private property capable of passing to the owner's heirs”. 56. The decrees stipulated that certain portions of the land had to be used for agricultural purposes in order to provide sufficient food for the population. 57. The Change of Possession Decrees of 21 June 1951, 7 August 1975 and 7 January 1988 dealt with cases where land was returned to the pool of State-owned land or authorisation was obtained to assign it to third parties, with the proviso that the latter undertook to use it for agricultural purposes. 58. As the applicants had inherited their property in the GDR in 1976, 1978 and 1986 respectively, it was the decree of 7 August 1975 on changes of possession, in the version of the decree of 7 January 1988, that was applicable. 59. The relevant extracts of this decree read as follows: “Land redistributed under the land reform may be transferred through a change of possession to members of an agricultural cooperative or to persons working in the agriculture, forestry or food-industry sectors ...” “1. Where he falls into the category of persons referred to in Article 1 and is in a position to use the land in accordance with the prescribed purpose [zweckentsprechend], an heir shall assume the rights and obligations pertaining to land acquired under the land reform. ... 3. If the conditions for transfer of the right of use of land acquired under the land reform are not satisfied, the land in question shall be returned to the pool of State-owned land.” 60. Often, however, these transfers were not effected and entered in the land register in practice, with the result that discrepancies arose between the persons actually farming the land and the persons registered as owners in the land register. 61. The Law of 6 March 1990 on the rights of owners of land redistributed under the land reform, which came into force on 16 March 1990, lifted all restrictions on the disposal of that land. The Law provided: “As regards the right of possession [Besitz], use [Nutzung] or disposal [Verfügung] of land acquired under the land reform, the provisions [Bestimmungen] of the Civil Code of 19 June 1975 of the German Democratic Republic ... shall apply. The contrary restrictions on disposal contained in [other] legal provisions [Rechtsbestimmungen] are hereby lifted.” “(1) The Decree of 15 December 1977 on land transactions [Grundstücksverkehrs-ordnung] ..., in the version set out in the Decree of 14 December 1988 on the adaptation of the provisions relating to the remedies available to citizens and the determination of jurisdiction to review administrative decisions [Verordnung zur Anpassung von Regelungen über Rechtsmittel der Bürger und zur Festlegung der gerichtlichen Zuständigkeit für die Nachprüfung von Verwaltungsentscheidungen], shall apply to transactions concerning the land referred to in section 1. (2) As regards the protection of the use of agricultural and forestry land [Nutzung des land- und forstwirtschaftlichen Bodens], the Decree of 26 February 1981 ... on the use of land [Bodennutzungsverordnung] shall apply. “(1) This Law shall come into force on the date of publication. (2) On that date the following instruments shall be repealed: (i) the Decree of 7 August 1975 on implementation of the changes in possession of land acquired under the land reform [Verordnung über die Durchführung des Besitzwechsels bei Bodenreformgrundstücken] ...; and (ii) the second Decree of 7 January 1988 on implementation of the changes in possession of land acquired under the land reform.” 62. Article 1 of the State Treaty between the FRG and the GDR on the Creation of an Economic, Currency and Social Union (Staatsvertrag über die Schaffung einer Währungs-, Wirtschafts- und Sozialunion zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik) of 18 May 1990 refers to a social market economy (soziale Marktwirtschaft) and to the protection of the right of property. 63. During the negotiations on German reunification between the governments of the FRG and the GDR and the four former occupying powers (France, the United Kingdom, the United States and the Soviet Union), the two German governments issued on 15 June 1990 a Joint Declaration on the Resolution of Outstanding Property Issues (Gemeinsame Erklärung der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik zur Regelung offener Vermögensfragen), which became an integral part of the German Unification Treaty (Einigungsvertrag) of 31 August 1990. 64. In the Joint Declaration, the two German governments indicated that, in their attempt to resolve the property issues in question, they had had to establish a socially acceptable balance (sozial verträglicher Ausgleich) between competing interests, having regard to the principles of legal certainty and clarity and to the protection of property rights. 65. On 14 July 1992 the FRG legislature enacted the second Property Rights Amendment Act on the liquidation of the land reform in the Länder of the former GDR. It came into force on 22 July 1992. 66. When passing that Act, the legislature inserted subsections (11) to (16) into section 233 of the Introductory Act to the Civil Code on the basis of the principles formerly set out in the Land Reform Decrees and the Change of Possession Decrees. 67. Section 233(11), paragraph 3, of the Introductory Act to the Civil Code provides that land acquired under the land reform will, in theory, pass to the registered owner's heirs unless there are persons or institutions having “superior title” (bessere Berechtigung) to it under section 233(12). Such persons or institutions with superior title can request that the land be assigned to them without compensation. 68. Section 233(12) makes a distinction in respect of persons or institutions with superior title to that of heirs to the land, according to whether the owner registered in the land register was dead or alive when the GDR Law of 6 March 1990 on owners' rights came into force. Thus, if the owner registered in the land register was still alive on 16 March 1990, the persons having superior title are those to whom the land had been formally allotted in accordance with the Land Reform Decrees or the Change of Possession Decrees even if the appropriate details were not entered in the land register. However, if the owner registered in the land register had died before 15 March 1990, the persons with superior title are: (a) those to whom the land had been formally allotted in accordance with the Land Reform Decrees or the Change of Possession Decrees, even where there is no corresponding entry in the land register; (b) the heir of the last owner registered in the land register, on condition that he or she satisfies the conditions of allocation (zuteilungsfähig), that is, carried on an activity in the agricultural, forestry or food-industry sectors (see paragraph 69 below); (c) the tax authorities of the Land in which the property is situated. 69. Section 233(12), paragraph 3, provides that the only persons who can inherit land acquired under the land reform are those who on 15 March 1990 were carrying on an activity in the agriculture, forestry or food-industry sectors in the GDR or had carried on an activity in one of those sectors during the previous ten years. If this is not the case, title to the land in question vests in the tax authorities of the Land in which it is situated. The case-law has subsequently extended this obligation to require the person to have also been a member of an agricultural cooperative in the GDR (Reports of the decisions and judgments of the Federal Court of Justice in civil cases, vol. 136, p. 283). 70. In a judgment of 4 October 1995, the Federal Constitutional Court held that these provisions were compatible with the Basic Law, as at the time of the GDR land acquired under the land reform had not passed to the owner's heirs in accordance with the general principles of civil law, but had from the outset been subject to special rules. 71. In a leading judgment of 17 December 1998 (Rechtspfleger 1999, pp. 222 et seq.), the Federal Court of Justice indicated for the first time that on the death of a person who had acquired land under the land reform, title to the land could pass to their heirs. It added that section 233(11-16) of the Introductory Act to the Civil Code was nevertheless compatible with the Basic Law. The legislature had thereby intended to remedy the loopholes in the GDR Law of 6 March 1990, which had failed to take account of the fact that very often the GDR authorities had in practice failed to ensure that the land was returned to the pool of State-owned land and to amend the entries in the land register in accordance with the principles set out in the Land Reform Decrees and Change of Possession Decrees. 72. Similarly, in two leading decisions of 6 and 25 October 2000 (1 BvR 1637/99 and 1 BvR 2062/99), the Federal Constitutional Court also held that section 233(11-16) of the Introductory Act to the Civil Code was compatible with the Basic Law even if it had now been established that land acquired under the land reform could pass to the owner's heirs. 73. According to the figures submitted by the Government for the Land of Mecklenburg-West Pomerania, in approximately 80,000 cases land acquired under the land reform had been returned to the pool of State-owned land in the GDR before 1990. 74. The applicants disputed those figures, considering that the land in question had probably been voluntarily returned. They pointed out that for the whole of the GDR, between 1946 and 1952, approximately 80,000 parcels of land had been voluntarily returned to the pool of State-owned land on account of the difficulties in farming the land after the war (W. Bell, “Expropriations in the GDR farming industry after 1949 and the corresponding political reasons” – Enteignungen in der Landwirtschaft der DDR nach 1949 und deren politische Gründe, 1992). 75. According to the figures submitted by the Government – also for the Land of Mecklenburg-West Pomerania – in 41,000 cases heirs to land acquired under the land reform had been able to keep their land; in 3,300 cases, in the absence of any heirs, the Land had recovered it; and in 4,400 cases the Land had requested reassignment of the land of heirs who did not satisfy the conditions of allocation. 76. The applicants disputed those figures, submitting that, in all, between 50,000 and 70,000 persons who had inherited land acquired under the land reform had already been expropriated without compensation in favour of the tax authorities of the Länder. They indicated, by way of example, that the Land of Saxony-Anhalt had obtained the reassignment of land from heirs in 17,288 cases extrajudicially and in 677 cases through the courts; the Land of Brandenburg, for its part, had requested the reassignment of land from heirs in 14,500 cases extrajudicially and in 3,542 cases through the courts.