Expropriating intervention

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The expropriating intervention is a legally not regulated instrument of the German state liability law . The basis is the property sacrifice of the customary rules of §§ 74, 75 Introduction of the General Land Law for the Prussian States (ALR). Since compensation payments from expropriating interference are subsidiary , special statutory compensation regulations always have priority.

The expropriating intervention applies to circumstances in which the property is impaired to such an extent as a result of lawful administrative action - in contrast, the expropriation-equivalent intervention is indicated in the case of unlawful administrative action - and the occurrence of unforeseen atypical side effects of this administrative action to such an extent that it is unreasonable for the owner concerned is to accept this intervention without compensation. What is decisive is the impairment of a legal position protected by Article 14 of the Basic Law (GG) . In contrast to this, in the case of a sovereign measure not relating to Art. 14 GG, there is the possibility of a right to sacrifice .

Eligibility requirements

It is characteristic of the expropriating interference that liability is not based on the lawful administrative act itself, but on the unreasonable burdens of the owner concerned that develop from this lawful act. The prerequisite for the assertion of compensation for the damage incurred in accordance with the expropriating interference is that there is a lawful sovereign interference with directly expropriating effect, which presents itself as a special victim in his legally protected position for the person concerned.

Sovereign measure

In order for a claim from the expropriating intervention to be asserted, an intervention must have taken place through active sovereign action. Thus, the main applications that come into consideration are those that are caused by a real act . Example: The expropriating intervention is used, for example, in the event that road construction work is carried out on the basis of a development plan , which in itself is lawful, but leads to traffic obstructions and leads to blatant sales losses on the part of the businesses on the road in question, because the required walk-in customers are missing. Although the sovereign measure (here urban construction measure) can be seen legally, as it is covered by a development plan, it represents an unacceptable interference in the established and exercised commercial operations.

If the administration finally encroaches on the property of the person concerned by means of a lawful administrative act , there is an administrative expropriation according to Art. 14 Paragraph 3 Sentence 2 Alt. 2 GG, which is to be compensated according to the fundamental rules of the joint clause . Unlike today are the rules regarding unlawful administrative acts because since Nassauskiesungsbeschluss the Federal Constitutional Court is no longer subject to the requirements of the confiscatory intervention compensated. Rather, the owner concerned must turn against the property-restricting measure himself.

immediacy

The immediacy of the disputed measure is to be assumed if there are damaging effects of the intervening administrative action, which are typical for the specific activity of the administration and result from the nature of the sovereign measure (administrative act, real act). There must be a causal link between the administrative action and the impairment of property . Immediate intervention can therefore be assumed if there are no other causes or if the actions of the sovereign caused a dangerous situation and the damage that occurred corresponds to the sovereign measure.

Special offerings

The administrative act must have led to an impairment of the protected position of the owner, which demands a special sacrifice from the person concerned. Such a special sacrifice can be assumed to exist if the affected person's protected property position was severely and unbearably encroached on in terms of duration, type, intensity and impact. For this, however, the victim limit must be assessed on the basis of the circumstances of the individual case. Thus, the existence of a special sacrifice is to be assumed if the lawful measure interferes more than results from the laws regulating and limiting property. The Federal Court of Justice and the Federal Administrative Court have developed various theories to determine such a special sacrifice . In particular, the Federal Court of Justice has supplemented and developed the special sacrifice theory with the concept of situation-relatedness. The Federal Administrative Court has consistently ruled on the gravity theory, which aims in particular at the severity and scope of the impairment of property.

Legal consequence

The legal consequences are derived from the expropriation law . The compensation claims go to monetary compensation. As an exception, if the context indicates, the compensation can also take place in the form of an equivalent piece of land. Otherwise, the same damage law requirements must be checked as in civil law , in particular contributory negligence within the meaning of § 254 BGB. According to established case law, claims for pain and suffering are excluded .

Legal process

The claim for compensation from the expropriating interference must be asserted in the civil courts because of the sacrificial character ( Section 40 (2) sentence 1 VwGO ) (although this is partially disputed).

literature

Individual evidence

  1. ↑ BVerfG, decision of July 15, 1981, Az. 1 BvL 77/78, BVerfGE 58, 300 - Naßauskiesung
  2. ↑ On this, OLG Schleswig , judgment of September 2, 1999, Az. 11 U 154/97, full text = NordÖR 2000, p. 128 ff.
  3. ↑ BVerwG, judgment of June 27, 1957, Az. IC 3.56, BVerwGE 5, 143, full text .