As expropriation (in the 19th century borrowed from French. Expropriation , to lat. Proprius "own, peculiar") refers legal withdrawal of the property at a fixed or moveable thing by the State , under the laws and against compensation. In colloquial language, confiscation , withdrawal without compensation, is often referred to as expropriation. The expropriation of means of production or companies is usually referred to as nationalization (according to Article 15 of the Basic Law as socialization ), the expropriation of land on a large scale as land reform or land reform (land as a synonym for property). An overriding purpose serving the common good is cited as the justification for expropriations for traffic, military and other reasons related to state tasks. This is usually the reason for individual expropriations too.
There are widespread confiscations ("expropriations"), for example, after wars of conquest , when the winners take everything away from the losers, or after major domestic political changes such as revolutions .
Since ownership in market- authored democracies to the fundamental rights heard expropriations are there only in certain legally regulated exceptional cases. In central administrative economies , on the other hand, the state is usually the main owner and administrator of the means of production, so that their expropriation has become general law.
It was not until the 18th century that expropriation was rediscovered as a legal institution. In 1743, for example, the possibility of expropriation for road and path construction was created in Sweden . The French Law on Expropriation of 1810 had a major influence on the international development of the law of expropriation.
In Marxism it is called the economic law of capitalism that the wage earners (workers) are expropriated by alienated work by depriving them of the majority of the surplus value they generate. This situation can only be overcome by the revolutionary appropriation of the means of production by the proletariat . (This appropriation means confiscation.)
Karl Marx uses the Latin foreign word for expropriation in his main work Das Kapital : expropriation . He understands this to mean, on the one hand, the exploitation of human labor in class societies , and on the other hand, the expropriation of the expropriators , i.e. the expropriation of the owners of the means of production through economic or political violence in the interests of a social class .
Historically, the expropriation of the peasants from their land was at the beginning of capitalism. Because only large masses of “doubly free” wage workers , who were “liberated” from feudal fetters as well as from ownership of the means of production, were forced to sell their labor to the owners of the means of production for whatever wages, no matter how low , in the emerging capitalism because of their lack of means . Marx called this epoch, which began in the 16th century and in which capitalism was still heavily dependent on robbery, the " original accumulation ".
That is why Marx considered the expropriation of the owners of capital without compensation to be inevitable, necessary and inherent in the historical development itself. Therefore he programmatically called for an "expropriation of the expropriators". Through the solidarity and class consciousness of the wage-dependent proletarians, a social revolution should be prepared, in the course of which the mass of the working population should acquire not only political but also and above all economic power. The expropriators were supposed to be expropriated, who had previously expropriated the producers of all essential goods and the non-alienated enjoyment of their products.
In doing so, he translated the dialectical three step of Hegel's philosophy into social progress : the first expropriation of the craftsmen and peasants by capital abolished ( negation ) small private property (mostly parceled land ) and thus the necessary capitalist preconditions for the future expropriation of capitalists created the proletariat. This negation of negation makes socialism possible or is realized through it.
Real socialist states
In real socialism , expropriation of the means of production was accordingly justified as a necessary countermeasure to the exploitation of the majority of the population who did not have capital or land and could only offer their labor for a living on the market. Therefore real socialist regimes mostly established themselves with land reforms and expropriations of companies .
The first comprehensive regulations of the law of expropriation in German-speaking countries can be found in the Prussian General Land Law of 1794 and in the Austrian General Civil Code (ABGB) of 1811. Baden in 1835 and Bavaria in 1837 were the first German states to enact separate laws on expropriation.
The most important field of application for individual expropriations at that time were the construction of railways and shipping canals, where for technical reasons the property of owners unwilling to sell could not and cannot be avoided. Road construction was added later.
In the Weimar Republic , the subject of the expropriation of princes was hotly debated for years. The legal basis for the dispute with the families of the former rulers became state, not imperial, laws.
time of the nationalsocialism
During the time of National Socialism , state expropriation measures primarily affected Jews , but also “anti-subversive” organizations and people, including communist and social democratic organizations as well as emigrants whose German citizenship had been revoked. The expropriation of the Jews in Germany and Austria was justified on a racist basis. It was an essential part of the persecution of Jews in the Third Reich and a prerequisite for the Holocaust of the expropriated, ghettoized and deported Jews. It not only affected doctors 'or lawyers' practices, craft businesses, factories and other businesses, but also apartments, their facilities and property.
Cases in which the transfer of ownership took place formally on the basis of sales contracts and similar agreements were also to be regarded as confiscations. Because these agreements were not made voluntarily by the Jews. The "agreed" purchase prices were set ridiculously low, the amounts paid were deposited in blocked accounts inaccessible to the Jews before they were confiscated by the Reich. However, for decades, the new owners often relied on “having bought properly”. Only after international pressure were such cases subjected to restitution in the 1990s .
post war period
After the Second World War , the victorious powers had numerous industrial plants dismantled as part of the measures adopted in the Potsdam Agreement . Some of these measures were declared as reparations ; partly as measures to demilitarize Germany. In the Soviet Zone , industrial plants and agricultural land were confiscated - sometimes by force - until 1949 ; Institutions of the GDR , founded in 1949, continued these expropriations for many years (see, for example, state-owned enterprise and provisional administration and open property issues ).
In West Germany has been mining industry partly placed under state supervision, partly reorganized by a participation model (see Montan co-determination , Montan Co-Determination Act , Montan Co-Determination Amendment Act ).
After the entry into force of the Basic Law, the permissibility of expropriations is based on Imperial Court of Justice , this initially assumed that expropriation is characterized by the fact that it encroaches on the property rights of the individual in a particularly difficult manner. The Federal Constitutional Court clearly turned away from this jurisprudence in the wet pebble decision of 1981 by redefining expropriation as the targeted deprivation of property in order to fulfill a public task. In doing so, the court wanted to eliminate the legal uncertainty to which the earlier focus on the criterion of severity of interference led, and to enable a clear assessment of property encroachments as expropriation.Paragraph 3 of the Basic Law. The Basic Law also does not define the requirements for expropriation, which is why the content of the term is shaped by case law. In connection with the
According to Article 14, Paragraph 3, Sentence 2 of the Basic Law, expropriation may only take place by law or on the basis of a law. The former is referred to as legal, the latter as administrative expropriation. The law on which expropriation is based must provide for a compensation scheme . Legal expropriations are not inadmissible individual laws within the meaning of Paragraph 1 GG, but are specifically regulated in Art. 14 Paragraph 3 GG.
Expropriation is provided for by law, particularly in building law and infrastructure law . Corresponding regulations include, for example, the Building Code (BauGB), the Federal Trunk Road Act (FStrG), the Land Procurement Act (LBG), the Aviation Act (LuftVG), the General Railway Act (AEG), the Energy Industry Act (EnWG), the Federal Waterways Act (WaStrG), the land appropriation laws , the state road laws and the state water laws.
The expropriation of land presupposes that this land could not be acquired by the public consumer through voluntary, amicable agreements. German law does not recognize the expropriation of movable property by administrative act. As confiscation without compensation is collection of murder weapons materials and articles with those crimes to be considered to have been committed. Here the criminal code forms the legal basis. It is called requisition when armed forces seize goods for the war (e.g. motor vehicles) during a war.
According to land , natural resources and means of production can be transferred into common property or other forms of public economy for the purpose of socialization through a law that regulates the type and extent of compensation . This rule has never been applied before.GG,
After the land reform of 1945 and the industrial reform from 1946 to 1949, there were several waves of expropriation of business and real estate for various reasons. In the early 1960s, e.g. B. Rubble land expropriated for urban planning reasons. The events surrounding the so-called wall plots have become known through the press . The last major nationalization took place in 1972 when the private middle class in the GDR was socialized. Since then, private property has been limited to small businesses and non-commercial areas. From 1990 the property rights to the socialized property of the GDR were transferred back by the Treuhandanstalt to the original private owners or their family descendants or communities of heirs or preferably sold to them. Otherwise regular privatization took place. In individual cases, the process was made more difficult or impossible by the Investment Priority Act and the Property Rights Consolidation Act. In principle, however, the motto "reprivatisation before privatization" applied.
Relatively small compensation payments were typically made for expropriated assets. For the expropriated people who had left the territory of the GDR, these payments were invested in so-called "foreign currency accounts" without interest. These accounts could only be used in a regulated and restricted manner after the conclusion of the "Eastern Treaty" during the reign of Willy Brandt . The beneficiaries were pensioners and GDR visitors, who were allowed to withdraw around 10M per day and person. Under the Unification Treaty of 1990 these accounts could be freely used after the balances were reduced by inflation to about 25% of the original value (if the compensation was paid in the early 1960s).
With the reunification of Germany , some of the Soviet measures before 1949 were recognized; the then expropriated property fell to the Federal Republic of Germany . The type and extent of the compensation to be paid are still controversial today. The case of the First Thuringian Biscuit Factory made headlines . In 2005 the European Court of Human Rights ruled in the last instance that the Land Reform Management Act of 1992 was legal and did not violate the European Convention on Human Rights .
In March 2009, as part of the measures to counter the financial crisis, the Rescue Takeover Act was passed, according to which the expropriation of banks was possible until June 30, 2009 if an impending bankruptcy posed a threat to the stability of the financial market as a whole. The law was signed by Federal President Horst Köhler on April 7, 2009 , published in the Federal Law Gazette the following day and has therefore come into force. Since the nationalization of Hypo Real Estate aimed at by the law succeeded without expropriation, the temporary expropriation option expired without being used.
Since 2009 there have been 1647 proceedings in the Federal Republic of Germany for the expropriation of landowners who were or are needed for a road construction project in federal trunk road construction . 448 of these proceedings were completed by August 2020. Paragraph 19 of the Federal Highways Act permits expropriations “insofar as they are necessary for the execution of an established or approved building project” and, in accordance with Article 14 of the Basic Law, for the benefit of the general public.
Debate about the expropriation of housing associations
Because of rising rents in Berlin , the citizens' initiative "Expropriate Deutsche Wohnen und Co" was founded in 2018 . She has called for the expropriation of housing companies , including that of the listed Deutsche Wohnen SE . This triggered a federal political debate in Germany in 2019. Christine Lambrecht , politician ( SPD ) and Federal Minister of Justice and Consumer Protection in the Merkel IV cabinet , said in July 2019 that expropriations of private housing companies should be possible as a last resort.
In Austria, expropriation is regulated in a similar way to that in Germany. In 1919 the Habsburg Law ordered the confiscation of the Habsburg- Lorraine family fund, d. H. the confiscation of foundation assets of the former ruling family (which had served to support needy family members) in favor of the care of victims, widows and orphans of the First World War. The private property of individual members of the dynasty and other property of the (title-abolished) nobility remained untouched. The Habsburg law was relaxed in the corporate state before 1938 and the Schuschnigg government began a partial return, but the confiscation was immediately renewed by the Nazi regime (which is why Habsburgs fighting for the family fund also see themselves as victims of the Nazi regime).
After the “Anschluss” to the “Third Reich”, from 1938 to 1941 40 villages with their entire property, well over 200 km², were recruited from the Reich for a new military training area in the Lower Austrian Waldviertel ; the residents were evacuated. The Red Army took over the German property in 1945 and continued to use the space; it was followed by the Austrian Armed Forces after 1955, so that a return discussion remained fruitless. Today the Allentsteig military training area is the largest military training area in Central Europe; Foreign associations also practice on it. The former owners were never adequately compensated.
The restitution ( restitution ) of de facto or de jure confiscated Jewish property in Austria after 1945 took place hesitantly and half-heartedly and has not yet been completed with regard to confiscated works of art.
The Republic of Cyprus became a member of the EU on May 1, 2004 and introduced the euro as a means of payment on January 1, 2008 . It became part of the euro zone . This, in connection with the fact that Cyprus is a low-tax country and probably does not follow illicit money transactions as intensively as other EU countries, favored the strong growth of many Cypriot banks. In the course of the sovereign debt crisis in the euro area , which has been publicly aware since 2009 , the three major rating agencies downgraded Cyprus' creditworthiness several times.
In June 2012, the Republic of Cyprus submitted a request for assistance to the EU; you are threatened with insolvency (= national bankruptcy ). On March 16, 2013, the finance ministers of the euro zone and the IMF reached an agreement with Cyprus on the basic lines of a rescue package. In this context, the Republic of Cyprus is to receive loans amounting to around 10 billion euros (i.e. 11,300 euros per inhabitant). The aid package can only be finally sealed if the German Bundestag has approved it.
Under pressure from the EU, Cyprus wants savers to share in the costs of bailing out the Cypriot banks: Investors with more than 100,000 euros in Cypriot accounts should lose 9.9 percent of their deposits; below this threshold it should be 6.75 percent. The parliament of Cyprus will vote on this regulation on Monday, March 18, 2013 .
Above all, the German government insisted on a contribution from the rich foreigners who hold accounts in Cyprus. The Cypriot government, on the other hand, did not want to burden this group excessively for fear of jeopardizing Cyprus' reputation as a tax haven. The government preferred to extend the tax to the entire population. After furious protests, she is apparently considering taxing assets over 500,000 euros at 15 instead of just 9.9 percent. The load on credit balances under 100,000 euros could be reduced to three percent. Parliament approved the aid with a narrow majority (first tranche of 3 million euros), but under the provisions introduced by the ESM to reform the banking sector in Cyprus, as news from Deutschlandfunk dated May 6, 2013 confirmed. In doing so, measures of outsourcing become effective, as they are carried out with toxic papers (i.e. worthless, because non-repayable loans). Through a recapitalization of the country jointly refinanced through bonds and ESM aid, the toxic papers used in an interim bank are continuously being reduced. This mechanism is successful in its first phase - as already tested in Greece - insofar as a national bankruptcy and the collapse of the Greek banking system (and thus a total loss of savings) could be avoided and which it is expected that it will also be in Cyprus Effect will be able to develop.
The Union does not have its own uniform set of legal instruments for expropriations. Each Member State applies its own legislation in this regard. Any obligation based on antitrust law (prescribed by Union organs) to outsource and sell parts of a company does not constitute expropriation, since the affected parts of the assets do not become Union property, but rather into the hands of private buyers.
The separation of electricity grids and energy companies proposed by the EU antitrust authorities is denounced by them as "expropriation". This is a polemic, not a legal claim.
In connection with the global and European financial crisis, structures of international and European cooperation are now becoming visible, which resolve regulations and / or enforce conditions in a largely informal cooperation. The G-20 , OECD , World Bank , IAIS , Basel (banking) , IOSCO and the IMF should be mentioned in particular .
In Switzerland, expropriation is always an interference with the fundamental right to guarantee property (Art. 26 Federal Constitution ). It must result in a full claim for compensation. Expropriation grounds are in accordance with Legislation, above all, public infrastructure projects. This is a so-called "formal expropriation" in which the state becomes the new owner of the property.
There is also the "material expropriation", in which the property remains, but the owner loses essential rights. Examples can be found especially in planning law : If a lot of regional planning reasons with a permanent ban on building occupied, so this represents a "material expropriation" represents According to case law of the. Federal Court in such cases the payment of compensation if the property already extensively developed infrastructure is.
In the case of seizures, a judge has been able to expropriate third parties since 1997 in summary proceedings (Art. 265a Para. 3 DEBA).
- Ignaz Seidl-Hohenveldern : International law of confiscation and expropriation. = Right of confiscation. de Gruyter, Berlin a. a. 1952 ( Contributions to Foreign and International Private Law 23, ), (Reprint. Schmidt Periodicals, Bad Feilnbach 1996).
- Karin Ambrosch-Keppeler: The recognition of foreign state expropriations. A comparative law study. Hartung-Gorre, Konstanz 1991 ( Konstanzer Schriften zur Rechtswissenschaft 36), (At the same time: Konstanz, Univ., Diss., 1991).
- Markus Huwyler: Foreign legal entities in international expropriation law in Switzerland. With special consideration of the corporations. Helbing & Lichtenhahn, Basel u. a. 1989, ISBN 3-7190-1045-7 ( series of publications by the Institute for International Law and International Relations 42), (also: Basel, Univ., Diss., 1988).
Federal Republican Law
- Manfred Aust, Rainer Jacobs, Dieter Pasternak: Compensation for expropriation. 6th revised edition. de Gruyter Recht, Berlin 2007, ISBN 3-89949-323-0 .
- Literature by and about expropriation in the catalog of the German National Library
- Constanze Paffrath: Power and Property; The expropriations 1945 - 1949 in the process of German reunification, Böhlau Verlag Köln Weimar Vienna, 2004, ISBN 3-412-18103-X
- Brigitte Bailer-Galanda : The Origin of Restitution and Compensation Legislation. The Republic of Austria and the assets seized during the Nazi era . Oldenbourg, Vienna a. a. 2003, ISBN 3-486-56690-3 ( publications of the Austrian Commission of Historians 3), full text .
- Rudolf Kappeler: The federal court compensation practice in the event of material expropriation as a result of building prohibition zones. Dike, Zurich a. a. 2007, ISBN 978-3-03751-007-0 .
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- Karl Marx on the "so-called original accumulation"
- Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 155-156 .
- BVerfGE 58, 300 (330-331): decision on wet gravel .
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- BVerfGE 45, 297 (333) .
- BVerfG, judgment of December 18, 1968 - 1 BvR 638, 673/64 and 200, 238, 249/65
- Hans Jarass: Art. 15 , Rn. 1. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
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- ZIP 1991, 62, The reprivatisation of the companies expropriated in the GDR between 1949 and 1972
- on compensation for the owners of "exempted" shares in expropriated businesses see p. Ordinance on the compensation of former shareholders for shares in expropriated companies and the satisfaction of long-term liabilities from the period after May 8, 1945, of August 23, 1956 and Malte von Bargen: "Expropriations of shares and occupation rights" in the journal for open property issues, 1994, 454 -461 as well as Federal Administrative Court, decision of 05.03.1998, Ref .: 7 B 345/97
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- Welt Online , Köhler signs HRE expropriation law , April 7, 2009
- Press release of the financial market stabilization fund , SoFFin holds 90 percent of Hypo Real Estate Holding AG (HRE) after the capital increase. The complete takeover of the company is being prepared. , June 2, 2009
- tagesspiegel.de August 12, 2020: "Scheuer is an expropriation minister"
- Housing shortage: Association of cities and municipalities warns of the consequences of the expropriation debate . In: Spiegel Online . April 8, 2019 ( spiegel.de [accessed April 8, 2019]).
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- Stuart E. Eizenstat: Imperfect Justice (original title: Imperfect Justice ), Bertelsmann, Munich 2003 ( ISBN 3-570-00680-8 ), p. 352 ff.
- spiegel.de: Summit in Brussels: Euro countries agree on aid for Cyprus The approval of the Bundestag is probably required with a view to a judgment of the Federal Constitutional Court from 2012.
- spiegel.de: Partial expropriation of bank customers: Cyprus deal horrifies Greek savers
- spiegel.de: Ran to the savings of bank customers (one comment)
- sueddeutsche.de: Breaking taboos to the detriment of savers (comment)
- spiegel.de: The turmoil in Cyprus weighs on the stock exchanges
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- News from mid-October 2019
- The deficit is shrinking significantly. In: nzz.ch. May 10, 2013, accessed October 14, 2018 .
- SPIEGEL January 10, 2007: DESTRUCTION OF THE MONOPOLIES - Energy companies fear expropriation
- Matija Nuic: The EU in the international financial market architecture , pp 14-16 in: The Zurich Globalist 2012: Europe - Quo vadis?
- cf. also the illustration in: Matija Nuic: The EU in the international financial market architecture , p. 14.
- HR Schwarzenbach: Outline of administrative law