Open property questions

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The unsolved question between the Federal Republic of Germany and the German Democratic Republic (GDR) of how expropriations in the GDR are to be dealt with as far as the assets of citizens of the Federal Republic of Germany are concerned are referred to as the open property question .

In the course of German reunification , the GDR passed a regulation with the law regulating open property issues, which usually provided for a return of the expropriated property. In cases where retransfer is not possible, the law provides for compensation.

Expropriations in the Soviet occupation zone, GDR and Berlin

In accordance with the socialist state idea in East Germany during the Soviet occupation, initiated by the Soviet occupying power , as part of the so-called industrial reform and the so-called land reform, means of production were expropriated on a large scale without compensation and transferred to public property.

Even after the GDR was founded, there were expropriations. While citizens of the GDR were normally entitled to compensation for this, the expropriation of assets located in East Germany often took place without compensation or for less compensation than was usually due to GDR citizens. Furthermore, real estate of owners from the Federal Republic of Germany was deliberately overindebted through state measures in order to be able to transfer them to public property without compensation.

The expropriation was based, for example, on the “Ordinance on the Protection of Assets” of July 17, 1952, and the “Order No. 2 of August 20, 1958 on the treatment of the property of people who leave the German Democratic Republic after June 10, 1953 "And the" Ordinance of September 6, 1951 on the Administration and Protection of Foreign Property in the German Democratic Republic ". Was initially expropriated without compensation (according to the GDR understanding, "transferred to the protection of public property"), from June 11, 1953, the GDR only appointed state administrators, some of whom ensured that the property was transferred to public property as quickly as possible ("Ordinance of December 11 1968 on the rights and obligations of the administrator of the property of owners who have illegally left the German Democratic Republic ”). The arrangement of the state administration meant that the property was formally retained, but the powers of the property including the confiscation of income were exercised by the state administrator (income was mostly transferred to the state budget of the GDR). Some of these state administrations still existed at the end of the GDR. The principle of "return before compensation" was justified by the fact that this was necessary to treat those who had already been expropriated equally with those who were still affected by state administration, because the latter received their property back with the abolition of state administration.

Origin of the term "unresolved property issues"

At the beginning of the 1970s, the GDR was particularly keen to gain diplomatic recognition, which in 1972 led to the " Basic Treaty " between the GDR and the FRG. The treatment of the expropriated property was not regulated at that time. The GDR negotiator, State Secretary Michael Kohl , stated in a unilateral "protocol note on the contract" of December 21, 1972: "Because of the different legal positions on property issues, these could not be regulated by the contract." (Journal of the GDR 1973 II No. 5, p. 27)

The western states, whose diplomatic recognition the GDR sought, made it a prerequisite for the mutual opening of embassies that the GDR undertook to conduct negotiations on open property issues. The main aim was to compensate for the interests of members of the western states who had been affected by the expropriations in the Soviet Zone. The USA in particular was also concerned with the damage caused by the Nazi persecution of people who were US nationals at the time of the negotiations.

In the period that followed, the GDR entered into contractual agreements with other states on property law issues (Republic of Finland: Agreement of October 3, 1984; Kingdom of Sweden: Agreement of October 24, 1986; Republic of Austria: Agreement of August 21, 1987; Kingdom of Denmark: Agreement of October 3, 1987). These agreements provided for lump-sum compensation from the GDR to the respective contracting partner states. The contracting partner states distributed the severance payments on their own responsibility to the citizens and legal entities affected by expropriation. Negotiations with the other western states came to no result. The GDR wanted to delay the negotiations as long as possible.

A global compensation agreement for outstanding property issues from the Nazi and occupation periods in the accession area, which the GDR and the USA had negotiated since 1974, came about in 1992 between the federal government and the USA.

However, such an agreement did not come about between the GDR and the Federal Republic of Germany. It was only in the course of reunification that the two German states agreed in principle on how to deal with open property issues (“Joint Declaration by the Governments of the Federal Republic of Germany and the German Democratic Republic on the settlement of unresolved property issues of June 15, 1990”). In contrast to the compensation regulations with other states, the two German states agreed on a general transfer of the expropriated property. The victorious powers of World War II agreed on September 12, 1990 in the “ two-plus-four talks ”.

Regulation of outstanding property issues

On the basis of this joint declaration, the GDR first issued the “Ordinance on the Registration of Property Claims” of July 11, 1990. This ordinance clarified the scope, form and deadline of the registrations and blocked property traffic in the GDR as far as property subject to registration was concerned.

On September 23, 1990, the People's Chamber of the GDR passed the law regulating unresolved property issues - Property Law - (VermG). Since German reunification , this law has been the law of the former German Democratic Republic in unified Germany.

Regulations (basics)

The main purpose of the Property Act is to redress “division-specific injustices”. Essentially, it is about losses suffered by people who were discriminated against by the GDR. Losses of assets, which were common in the GDR even without discriminatory character, are not recorded. The law regulates primarily (§ 1 para. 1) property claims to assets that

  • were expropriated without compensation and transferred to public property;
  • were expropriated for less compensation than citizens of the former German Democratic Republic were entitled to;
  • have been sold to third parties by state administrators or after transfer to public property by the person entitled to dispose;
  • on the basis of the decision of the Presidium of the Council of Ministers of February 9, 1972 and related regulations were transferred to public property.

This includes, for example, certain cases of economic coercion (for example in the case of former owners of apartment buildings who could no longer bear the maintenance costs because of the low rents in the GDR) and the loss of property due to unfair machinations, for example through abuse of power, corruption , coercion or Deception on the part of the purchaser, government agencies or third parties (classic example: forced sale upon departure).

According to the Property Act, assets that have been confiscated under (partition-specific) coercion are to be transferred back if they have been expropriated without compensation or if the expropriation was made for less compensation than GDR citizens were normally entitled to. If an asset is transferred back, services from the burden sharing must be repaid.

If a return transfer is not possible because, for example, private individuals have "honestly" acquired ownership of the property in the meantime or the injured party has chosen compensation, the law provides for compensation from the compensation fund.

The law also regulates the abolition of state administration of assets that belonged to persons in the old Federal Republic and foreigners and that had not been expropriated in the GDR (Section 1, Paragraph 4 and Section 11 et seq. Property Act).

The law is expressly inapplicable to expropriations on the basis of occupation law or occupation sovereignty, in particular by orders of the Soviet military administration (SMAD) 1945 to 1949. The ordinances of the countries or provinces of the Soviet occupation zone at that time, in particular the land reform and the Industrial reform . The inapplicability of the VermG and thus also of the EntG to such expropriations is politically very controversial.

The Federal Government gave reservations by the victorious powers of the Second World War as justification for the exclusion of restitution and compensation. To compensate for the fact that the property law provides for neither the return nor compensation, the federal government has passed the Compensation and Compensation Act (EALG). It provides for welfare state-based payments to the injured party that are very low in relation to the loss.

Expropriations in the Soviet Zone and the GDR, which were liable to compensation but for which no compensation was paid, as well as expropriations from companies in which foreigners were involved, are regulated by the GDR Compensation Law passed in December 2003.

Because there were no corresponding regulations in the GDR - in contrast to the Federal Republic or the western zones of occupation - the law extends the scope of application to property losses caused by Nazi persecution (Section 1 (6) Property Act). In favor of the injured party, a loss of property caused by persecution is presumed in accordance with Section II of the order BK / O (49) 180 of the Allied Command Office Berlin of July 26, 1949 (VOBl. Für Groß-Berlin I p. 221). If the restitution of an asset that has been seized in this way is excluded, the compensation is not based on the EntG, but rather the NS-VEntschG. It provides for significantly higher compensation.

See also

literature

Intergovernmental Treaties
Legal texts and administrative instructions
  • Gerhard Fieberg (editor), Harald Reichenbach (editor): Expropriation and unresolved property issues in the former GDR , Volumes I and II, Publisher: RWS Communication Forum Law, Economy, Taxes, ISBN 3-814-51856-X (detailed compilation of legal texts incl . Expropriation regulations of the GDR and the Soviet zone of occupation)
  • Rudi Scholz (editor), Walter Werling (editor), treatment of the property in the former GDR by entitled persons outside this area , series of publications of the Federal Office for the regulation of open property issues, Volume 1 (printed as a manuscript, can be viewed by the Federal Office or the subordinate offices detailed compilation of administrative instructions and guidelines of the GDR on the transfer of assets into public property, in particular on the discriminatory treatment of owners outside the GDR).
Legal comments (selection)
  • Property Act (VermG). Law to regulate open property issues (ring binding) by Gerhard Fieberg (editor), Harald Reichenbach (editor), Burkhard Messerschmidt (editor), publisher: CH Beck (April 2000), ISBN 3-406-50007-2 , ISBN 978-3-40650 -007-7 .
General literature

Web links

  • Federal Ministry of Finance Unresolved Property Issues - The Legal Basis 15.09.2013

Individual evidence

  1. ↑ on compensation for the owners of “exempted” shares in expropriated businesses, see p. Ordinance on the compensation of former shareholders for stakes 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 magazine for open property issues, 1994, 454 –461 and Federal Administrative Court, decision of 05.03.1998, Ref .: 7 B 345/97
  2. ↑ Full text at Wiki Source and Wikimedia Commons , see also First Implementation Provisions for the Ordinance on the Administration and Protection of Foreign Property in the German Democratic Republic , Ordinance on Compensation for Former Shareholders for Shares in Expropriated Companies and the Satisfaction of Long-Term Liabilities from the time May 8, 1945, August 23, 1956
  3. ↑ For negotiations with the USA: Dissertation - Philip Alexander Matthes: Puppet Regime vs. Lead Nation, 2010 , p. 352
  4. ↑ printed in: Rädler / Raupach / Bezzenberger (eds.): Vermögens in der alten DDR, Herne / Berlin 1991, ISBN 3-927935-50-6 , part 5 B IX .; Fieberg / Reichenbach, Law for the Regulation of Open Property Issues, Munich, ISBN 3-406-35950-7 , Anh II 5.
  5. ↑ Therese Steffen Gerber: The question of nationalization in Swiss GDR policy: compensation for recognition? In NZZ from January 25, 2003.
  6. ↑ Law on the Agreement of May 13, 1992 between the Government of the Federal Republic of Germany and the Government of the United States of America on the regulation of certain property claims ( Federal Law Gazette II p. 1222 )
  7. ↑ Annex III Joint Declaration by the Governments of the Federal Republic of Germany and the German Democratic Republic on the settlement of outstanding property issues of June 15, 1990
  8. ↑ Law to regulate open property issues at juris
  9. ↑ Property Act as published on February 9, 2005 ([https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl105s0205.pdf BGBl. I p. 205 ), which was last published by Article 3 of the law of 23 May 2011 ( Federal Law Gazette I p. 920 ) has been changed]
  10. ↑ (BT-Drucks. 12/2480 of April 28, 1992 I. No. 13 c; Fieberg / Reichenbach in Fieberg / Reichenbach / Messerschmidt / Neuhaus, VermG, introduction marginal no. 35, BGH, judgment of October 6, 1998 - XI ZR 36/98 -, BGHZ 139, 357-368, Rn. 16
  11. ↑ § 4 Law on Compensation in accordance with the Law on the Regulation of Unresolved Property Issues (Compensation Law - EntG)
  12. ↑ Section 1 (8) of the Property Act, cf. z. B. Federal Administrative Court, judgment of June 30, 1994 - 7 C 58/93 - "Brambacher Sprudel" and Federal Administrative Court, judgment of April 13, 2016 - 8 C 10/15 -
  13. ↑ Udo Madaus: ... so that the truth is not forgotten! Collection of quotations on the expropriations / confiscations 1945–1949 in the Soviet zone of occupation in Germany and the consequences after 1990. Frieling-Verlag, Berlin 2014, ISBN 978-3-8280-3180-7 .; Constanze Paffrath: Power and Property. The expropriations 1945–1949 in the process of German reunification. Böhlau, Cologne et al. 2004, ISBN 3-412-18103-X (At the same time: Duisburg, Univ., Diss .: The "exclusion of restitution" in the process of reunification.)
  14. ↑ Law on state compensation payments for expropriations on the basis of occupation law or occupation sovereignty, which can no longer be reversed (Compensation Act)
  15. ↑ Law regulating unfulfilled claims for compensation from expropriation in the German Democratic Republic (DDR Compensation Act - DDR-EErfG) ; s. for example BVerwG, decision of March 19, 2009 - 5 B 106.08 - (ECLI: DE: BVerwG: 2009: 190309B5B106.08.0) and BVerwG, decision of September 24, 2015 - 5 C 13.14 - (ECLI: DE: BVerwG: 2015 : 240915U5C13.14.0)
  16. ↑ NS-tracked compensation law (NS-VEntschG)