WEBER v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mrs Susanne Weber, is a German national who was born in 1951 and lives in Barntrup. The respondent Government are represented by their Deputy Agent, Mr H.–J. Behrens, Ministerialrat, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s late father was the owner of real estate located in Hoyerswerda in Saxony. In 1944 the German Reich seized that plot of land for the purpose of railway construction, but did not expropriate the land. In 1948 the German State Railways intended to buy that plot of land, but the negotiations between the applicant’s father and the company failed. Following the foundation of the German Democratic Republic (“GDR”) on 7 October 1949 the German State Railways (Deutsche Reichsbahn) of the GDR continued to use the land. The plot has a size of 3,099 square metres. At an unknown point of time the applicant’s father left Hoyerswerda. At the time of the German reunification on 3 October 1990 the applicant’s father was listed as the real estate’s owner in the land register (Grundbuch). In 1991 the German State Railways and the applicant’s father again negotiated the purchase of the land and agreed on a purchase price of 247,920 Deutschmarks (DEM) (approximately 126,760 Euros (EUR)). However, the German State Railways of the former GDR withdrew its offer shortly before the signing of the contract. Subsequently the German State Railways of the former GDR and the German State Railways of the Federal Republic of Germany (Deutsche Bundesbahn) merged to form the German State Railways Corporation (Deutsche Bahn AG), which is a State-owned company. The German State Railways Corporation continues to use the plot of land in question. The applicant’s father passed away on 13 November 1994 and the applicant inherited the plot of land. A copy of the land register (Grundbuch) dated 3 June 2005 lists the applicant as the current owner. The applicant does not pay property tax (Grundsteuer), but the German State Railways Corporation does. The applicant brought an action for delivery of possession (Klage auf Herausgabe- rei vindicatio) against the German State Railways Corporation in the Bautzen Regional Court. On 24 March 1995 the Regional Court ordered the German State Railways Corporation to deliver (herausgeben) the real estate. The court held that the applicant’s father had never been expropriated and that the applicant was thus the owner. Furthermore, it found that the applicant’s claim had not lapsed (ist nicht erloschen) according to the “Act for the General Settlement of Damages Caused by the War and the Collapse of the German Reich” (“Gesetz zur allgemeinen Regelung durch den Krieg und den Zusammenbruch des Deutschen Reichs entstandener Schäden – Allgemeines Kriegsfolgengesetz – hereinafter called the “General Settlement of Damages Act” – see “Relevant domestic law” below). According to section 1 of that act all claims against the German Reich or the German State Railways are excluded, but according to section 19 claims of delivery of possession (Herausgabeansprüche) are to be satisfied by the successor of the German Reich and the German State Railways. However, according to the German Unification Treaty of 1990 (Einigungsvertrag) only sections 1 and 2, and not section 19, of the aforementioned act were to apply in the territory of the former GDR (neue Bundesländer - hereinafter called new Länder). Nevertheless, the Regional Court held that the aforementioned provisions had to be interpreted in conformity with the German Basic Law (Grundgesetz), and accordingly, the applicant’s claim could not be excluded. The Dresden Court of Appeal confirmed the lower court’s decision. It held that the applicant was the owner and that the German State Railways Corporation possessed the real estate within the meaning of the General Settlement of Damages Act. The court considered that the pertinent provisions of the Unification Treaty could not be interpreted in accordance with the German Basic Law. However, it found that sections 19 and following of the General Settlement of Damages Act had to be applied by analogy. It pointed out that when deciding on the Unification Treaty the German Parliament had been of the opinion that section 19 was no longer needed as no such claims existed anymore. Therefore, the Parliament had overlooked that there was still a need for regulation of cases such as the present one. Hence sections 19 and following had to be applied by analogy, as there was no objective reason for treating the applicant’s case differently from one in which the real estate in question was located on the territory of the Federal Republic of Germany (“FRG”) prior to the German reunification (alte Bundesländer- hereinafter called old Länder). The court also pointed out that the applicant was not entitled to any compensation under current German Law for her loss of possession, as the regulations which awarded compensation for acts of the Nazi Regime required an act of expropriation. While the proceedings were pending before the court, the German State Railways Corporation offered the applicant to buy the real estate for 8.00 DEM (approximately 4.09 EUR) per square metre, resulting in a purchase price of about 12,000 EUR. The applicant refused that offer. The Federal Court of Justice set aside the judgment of the Court of Appeal. It acknowledged that the applicant was the property’s owner (” die Klägerin ist Eigentümerin eines...Grundstücks”), but rejected her claim for delivery of possession. The court found that section 19 of the General Settlement of Damages Act could not be applied by analogy as this would be contrary to the legislator’s will. From the pertinent provisions of the Unification Treaty it deduced that the legislator actually intended to treat the owners of real estate located in the old or new Länder differently. It found that, according to the travaux préparatoires, those provisions of the Unification Treaty were meant to be a final settlement of the question of the damages caused by the war and the collapse of the German Reich. The court concluded that the legislator had not wished to include claims such as in the present case, because it considered that there was no further need for regulation. Furthermore, the court found that there was no indication that the legislator might have erroneously overlooked that in some particular cases the need for regulation persisted. On the contrary, the legislator had accepted that in some cases the aim of the General Settlement of Damages Act could not be achieved. The court held that the rejection of the applicant’s action for delivery of possession did not violate the German Basic Law for the following reasons. The exclusion of claims for delivery of possession did not fall within the ambit of Article 14 of the German Basic Law, which guarantees the right to property (see “Relevant domestic law” below). It doubted that the applicant still had a right protected by that provision. The real estate had been in possession (im Besitz) of the GDR for more than 40 years. Therefore, it found that the applicant’s property had become an “empty shell” (bloβe Hülse). In any event, Article 14 of the German Basic Law was not applicable as Article 135 § 2 of the German Basic Law was lex specialis in the present case (see “Relevant domestic law” below). It stipulates that the FRG can determine which liabilities of the GDR are to be satisfied. The court pointed out that in the context of the German reunification similar questions had arisen as after the end of the Second World War. In 1957 the Parliament of the FRG had passed the afore-mentioned General Settlement of Damages Act in order to determine the liabilities accumulated by the German Reich. To rectify the de facto bankruptcy of the German Reich, the FRG was in general allowed to repudiate the liabilities of the German Reich. The Federal Court of Justice held that this reasoning could be applied to the situation subsequent to the German reunification, as far as it concerned the damages caused by the war and the collapse of the German Reich with which the GDR had not dealt. Therefore, the FRG was entitled to choose which liabilities it would fulfil. The court stressed that the legislator, when assessing the State’s financial capacity in this respect, enjoyed a wide margin of appreciation. The court furthermore held that the applicant had not been discriminated against contrary to Article 3 of the German Basic Law (see “Relevant domestic law” below). It pointed out that under GDR law the applicant’s right of ownership had already been diminished, as her real estate had been in public use during the entire time. Furthermore, there had been more than 40 years between the end of the war and the German reunification. It concluded that the German legislator had had a wide margin of appreciation in this respect, in particular regarding the financing of the German reunification. Lastly it found that even the fact that the applicant permanently lost the possession of her property while remaining proprietor did not make a difference. The court held that this had to be accepted (hinnehmen) by the applicant. It further denied any compensation under civil law for the continued use of the property by the German State Railways Corporation, stating that such claims had lapsed as well according to the General Settlement of Damages Act. On 27 August 1998 the applicant lodged a constitutional complaint solely invoking Article 3 of the Basic Law (prohibition of discrimination). On 4 August 1999 the Federal Constitutional Court refused to admit the applicant’s complaint against the judgment of the Federal Court of Justice and the above-mentioned provisions of the Unification Treaty. It acknowledged that the applicant had suffered a disadvantage in comparison to owners whose property, located in the old Länder, had been seized by the German Reich during the war. However, the court found that this disadvantage did not breach Article 3 of the German Basic Law, as there were objective reasons for it. It found that the Second World War had led to the establishment of two German States with different forms of Government and social orders. Each State had dealt with the damages caused by the war and the collapse of the German Reich in a different way and was responsible for those caused in its territory. Therefore, the FRG was under no obligation to compensate for damages which had not been taken care of by the GDR. Moreover, the court found that the FRG would have been administratively and financially overstrained with that task in any event. It concluded that the disadvantage suffered by the applicant was reasonable (zumutbar), in particular because, more than 40 years after the end of the Second World War, the applicant could not expect to ever resume possession of her property again. The relevant provisions read as follows: Section 1 Forfeiture of Claims “(1) Claims against the German Reich, including the separate estates of the German Railways (Deutsche Reichsbahn) and the German Post (Deutsche Reichspost), the former Land of Prussia, the enterprise German Motorways (Reichsautobahnen) expire, unless this Act provides differently. ...” Section 2 Claims placed on a footing of equality (gleichgestellte Ansprüche) “The provisions of this Act are to be applied, as appropriate, to ... 2. Claims against the Federal Government (Bund) or public legal entities (öffentliche Rechtsträger) to delivery (Herausgabe) of property seized by the legal entities listed in section 1 paragraph 1. ...” Section 19 Claims based on rights in rem (dingliche Ansprüche) and claims based on a violation of such rights “(1) Claims (section 1) based on property or other rights in rem and aimed at delivery (auf Herausgabe der Sache) shall be honoured. ...” Appendix I Chapter IV Section A Paragraph 1 No. 12 “Federal Law will enter into force according to Article 8 of the Treaty except for the following: ... 12. Act for the General Settlement of Damages Caused by the War and the Collapse of the German Reich, ... except for sections 1 and 2.” The relevant provisions are worded as follows: Article 3 “(1) All persons shall be equal before the law. ...” Article 14 “(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. (2) Property entails obligations. Its use shall also serve the public good. (3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.” Article 135a “(1) Federal legislation enacted pursuant to paragraph (4) of Article 134 or paragraph (5) of Article 135 may also provide that the following obligations shall not be performed, or that they shall be performed only in part: 1. obligations of the Reich, of the former Land of Prussia, or of such other corporations and institutions under public law as no longer exist; 2. such obligations of the Federation or of corporations and institutions under public law as are connected with the transfer of assets pursuant to Article 89, 90, 134, or 135, and such obligations of these bodies as arise from measures taken by the bodies designated in subparagraph 1; ... (2) Paragraph (1) of this Article shall apply mutatis mutandis to obligations of the German Democratic Republic or its institutions as well as to obligations of the Federation or other corporations and institutions under public law that are connected with the transfer of assets of the German Democratic Republic to the Federation, Länder, or municipalities, and to obligations arising from measures taken by the German Democratic Republic or its institutions.”