Intervention equivalent to expropriation

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The expropriation-equivalent interference is an institute of German state liability law . The claim from encroachment equivalent to expropriation is aimed at compensation for property infringements through unlawful sovereign interference .

A distinction is to be made between expropriation-like interference from expropriation , from expropriating interference and the constitutional content and limitation provisions .

Derivation

The expropriation-like encroachment was first applied by the Federal Court of Justice in 1952 as part of the legal development from Article 14 of the Basic Law. To this day, there is no legal standardization; rather, the legal institution continues to be based on judicial legal education . Currently, the encroachment equivalent to expropriation is derived from the customary continued validity of the claim for compensation for sacrifice (§§ 74, 75 introduction to PrALR ), but still has its roots in the protection of property from Article 14 of the Basic Law.

The institute of expropriation-like encroachment is intended to close the liability loophole that results from unlawful and innocent behavior, although this reason is not undisputed. Claims from infringement of property due to unlawful sovereign action cannot be asserted by way of official liability claims according to § 839 BGB , Art. 34 GG , since there is no fault on the part of the sovereign. In the case of illegal and culpable action, however, the claim from expropriation-like interference is not superseded by the official liability claim, but is available alongside this as a basis for a claim.

The objects of protection of the encroachment equivalent to expropriation are the legal interests of the fundamental rights holders concerned that are protected by Article 14.1 of the Basic Law and Article 2.2 of the Basic Law .

scope of application

The scope for compensation for encroachment equivalent to expropriation is narrowly tailored. The prerequisite is that the damage suffered by the person affected by the intervention cannot be averted by administrative court measures. This means that claims from the legal institution do not come into consideration if state action provides for targeted intervention without a legal basis or compensation regulation; There is only room for non-targeted interventions.

The expropriation-like intervention is used within this framework if the administration unlawfully enforces a formally constitutional law and thereby affects property . This can happen through misunderstanding of the factual requirements for authorization to intervene , but also through incorrect exercise of discretion . An example of the illegal enforcement of a constitutional law is, for example, the delay in issuing a building permit, which is simply to be granted by the building administration on the basis of the development plan.

Interventions equivalent to expropriation also apply if the administration can be accused of property violations through simple (unlawful) administrative acts in the form of real acts . The Federal Court of Justice ruled that compensation had to be paid for damage that occurred in the course of a Bundeswehr maneuver. The holding of the maneuver, as well as the target practice (shooting with cannons), was unobjectionable and lawful, but the damage caused by it was to be assessed as unlawful sovereign action. The expropriation-like intervention was used as the basis for claims for compensation because other special or customary claims for sacrifice were not evident. Even in the case of hostile greens , i.e. a simultaneous green sign for intersecting streets, the Federal Court of Justice has recognized a claim for compensation from interference equivalent to expropriation.

Typically, the expropriation-like interference is also used in so-called normative injustice (illegal enactment of sub-legal norms). On the other hand, the Federal Court of Justice rejects liability for legislative injustice (illegal parliamentary laws), because the legislative authority (within the framework of the principle of separation of powers ) is subject to the legislature.

Basis for claims and their requirements

In principle, special statutory compensation regulations apply as a basis for claims . Customary claims based on the principles of self-sacrifice apply subsidiary. In order to assert impairment of property in the context of the expropriation-like intervention , the following elements must be present:

Encroachment on an asset right within the meaning of Article 14.1 of the Basic Law

The encroachment, equivalent to expropriation, comes into play not only when the substance of the property has been violated, but also whenever a legal position protected by Article 14.1 of the Basic Law is affected.

Sovereign measure

Furthermore, this impairment must have been caused by a sovereign measure. Predominantly, sovereign measures are carried out through administrative acts. If the administration intervenes in the property by means of an illegal administrative act, it is not a case of administrative expropriation according to Art. 14 Para. 3 S. 2 Alt. 2 GG, which might have to be compensated through the joint clause . In addition, pure (unlawful) real files can trigger claims from encroachment equivalent to expropriation. On the other hand, mere omission is generally not sufficient to justify a claim from encroachment equivalent to expropriation. Exceptionally, this is still accepted if it is a so-called qualified omission. This is usually the case when the citizen has a right to act and this is not granted by the authorities, as in the case of unlawfully denied or delayed building permits . The enactment of sub-statutory norms is also to be understood as a sovereign act in this sense. Illegal parliamentary laws (as already described) do not give rise to any claim for compensation.

immediacy

The effect of the interference must result as a direct consequence of the sovereign measure. In the opinion of the Federal Court of Justice, however, a solely causal and attributable connection between the sovereign measure and the impairment is not sufficient ; rather, an additional evaluating factor is required, an “internal connection”, which is why an “evaluative allocation of the consequences of damage according to areas of responsibility and risk” is to be determined is. The question to be checked is therefore whether the actual risk set by the acting sovereign was realized in the consequence of the interference. Although this can be specified in the abstract using case groups of attribution , it is difficult to determine in individual cases .

Special offerings

For the person concerned, the impairing effect of the intrusion into his property must be presented as a special sacrifice. According to the general opinion, this is already indicated by the illegality of the measure and is therefore mostly unproblematic.

Subsidiarity

Claims from encroachment equivalent to expropriation are subject to fundamental subsidiarity . The Federal Constitutional Court had clarified this in its so-called wet gravel ruling from 1981 by pointing out that the injured party must always try in advance to obtain primary legal protection in order to prevent damage. On the other hand, this can only apply without restriction if primary legal protection is at all possible and reasonable for the injured party.

Legal consequence

The legal consequences are derived from the expropriation law . The same damage law requirements must be checked as in civil law , in particular contributory negligence within the meaning of Section 254 of the German Civil Code. According to established case law, claims for pain and suffering are excluded . There is competition for official liability claims from Section 839 of the German Civil Code (BGB) in conjunction with Article 34 of the Basic Law (GG). They are conceivable side by side in the event of unlawful culpable interventions from simple administrative action.

See also

literature

Individual evidence

  1. ↑ BGHZ 7, 296 (297).
  2. ↑ BGHZ 37, 44.
  3. ↑ BGH NJW 1987, 1945.
  4. ↑ BGH MDR 1964, 656; BGHZ 37, 44 (46).
  5. ↑ BGHZ 55, 229
  6. ↑ BGH NJW 1987, 2573 (2574).
  7. ↑ BGHZ 125, 19.
  8. ↑ In this respect, see representative: BGHZ 32, 208.
  9. ↑ BVerfGE 58, 300.