FEDERAL CONSTITUTIONAL COURT

– 1 BvR 995/95 –

– 1 BvR 2288/95 –

– 1 BvR 2711/95 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

– 1 BvR 995/95 –

– 1 BvR 2288/95 –

– 1 BvR 2711/95 –

the Federal Constitutional Court – First Senate –

with the participation of Justices

Vice-President Papier,

Grimm,

Kühling,

Jaeger,

Haas,

Hömig,

Steiner

Hohmann-Dennhardt

held on 14 July 1999:

1. 1. a) § 14 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory dated 21 September 1994 (BGBl I p. 2538) is incompatible with Article 14.1 of the Basic Law and void to the extent that it affects contractual relationships pursuant to § 1.1 number 1 and their premature termination pursuant to § 23.2 sentence 1 number 1, also in conjunction with § 23.6 sentence 1, and pursuant to § 23.3 of the Act.

2. b) § 20.1 and 20.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in conjunction with § 3.1 of the Payment for Use Ordinance dated 22 July 1993 (BGBl I p. 1339), also in the version dated 24 July 1997 (BGBl l p. 1920), is incompatible with Article 14.1 of the Basic Law to the extent that it excludes having the user carry a reasonable share of the public expenses for the land.

3. § 23.1 to 3, 23.5 and 23.6 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is incompatible with Article 14.1 of the Basic Law to the extent that it does not allow for the termination of contracts in respect of a portion of the land in cases where land used for purposes of recreation and leisure time activities is especially large.

4. The unconstitutional provisions shall be replaced by constitutional provisions by 30 June 2001 at the latest.

5. c) Otherwise, the constitutional complaint of the first complainants is rejected as unfounded.

6. d) The Federal Republic of Germany shall reimburse the first complainants for half of their necessary expenses.

7. 2. a) § 23.6 sentences 1 and 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is incompatible with Article 14.1 of the Basic Law and void to the extent that during the period from 1 January 2000 to 31 December 2002 it restricts the owners of pieces of land with garages on them to the reasons for termination in § 23.2 and 6 sentence 3 of such Act.

8. b) Otherwise, the constitutional complaints brought by the second and third complainants are rejected as unfounded.

1. c) The Federal Republic of Germany shall reimburse the second and third complainants for three-eighths of their necessary expenses.

REASONS:

A.

The constitutional complaints are directed immediately against the provisions of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory whose purpose it was to transfer legal relationships regarding the usage of third party land where the legal relationships had been established in the German Democratic Republic to the application of the law of the German Civil Code (Bürgerliches Gesetzbuch – BGB).

I.

1. a) In the German Democratic Republic land had to be used for a societal function in the service of the socialistic social order (cf. on this and on the following Bundestag document, Bundestagdrucksache – BTDrucks 12/7135, pp. 26 et seq ., 35 […]). This was accomplished by the creation of what was known as socialist property, which besides the property of the cooperatives mainly included collective state-owned property, which could be neither transferred nor encumbered. As regards the usage of land, the state grant and assignment of the rights of use to state-owned and cooperative used land grew in significance at the same time (cf. also Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 98, p. 17 [at p. 19]). In addition, land was also handed over to private users, for example for the purpose of recreation or leisure time activities, on the basis of a contractual agreement. To the extent that the land was under the administration of the state, the administrative authority concluded contracts in many cases without the consent or even against the will of the owner of the land.

b) The legal foundations for the contractual use of land for the purposes of recreation and leisure changed in the course of time.

aa) Up to the end of 1975, the [West] German Civil Code, in particular the provisions concerning commercial leases, served as its main foundation. In addition, regarding land which belonged to owners living in the old federal Laender (states) or in West Berlin and was subject to state administration, in particular land in the countryside surrounding Berlin, the state concluded what were known as contracts on transfer of possession. These contracts provided for the transfer of possession of land for 20 or 30 years (in some cases for life). The transferee had rights and duties similar to an owner and was not obliged to pay for the use of the land.

bb) On 1 January 1976, the Code of Civil Law (Bürgerliches Gesetzbuch) was replaced in the German Democratic Republic by the Civil Code of the German Democratic Republic (Zivilgesetzbuch) dated 19 June 1975 (Law Gazette of the German Democratic Republic - Gesetzblatt I p. 465). In §§ 312 et seq. it regulated the contractual use of land for inter alia the purposes of recreation and leisure time activities.

Pursuant to § 313.2 of the Civil Code of the German Democratic Republic the agreement could grant the transferee the right to build on the piece of land transferred a weekend cottage or other constructions which served the purposes of recreation or leisure time activities. To the extent that nothing else was agreed, pursuant to § 296.1 sentence 1 of the Civil Code of the German Democratic Republic, the transferee owned these buildings or constructions independent of the ownership of the land.

The law did not prescribe payment for the use, but as a rule this was part of the agreement […]. The payments were considerably less than the prices which would have been demanded under market conditions (cf. BTDrucks 12/7135, p. 52).

Pursuant to § 314.3 of the Civil Code of the German Democratic Republic the transferor could only terminate the owner and user relationship for societally justified reasons, in particular, when the transferee repeatedly and grossly violated his or her obligations, significantly aggravated other transferees or behaved in another manner which created a disturbance for the community; if the land was not part of a small gardeners’ community, it was also possible to terminate the contract in the event of urgent personal requirements. If, in the course of exercising his or her right to use the land, the transferee built a weekend cottage or garage, a court decision was required to terminate the owner and user relationship against the transferee’s will (§ 314.4 sentence 2 of the Civil Code of the German Democratic Republic). Here as well, the prerequisite was that reasons in accordance with § 314.3 of the Civil Code of the German Democratic Republic were to be found.

If the owner of the land claimed an urgent personal requirement, the case-law of the Supreme Court of the German Democratic Republic (Oberstes Gericht der Deutschen Demokratischen Republik) placed strict demands on the urgency of the requirement. The owner’s personal requirement was seen to be of particular importance when the owner of the land needed it to build an owner-occupied home. However, even in this case, the interests of both parties were to be examined with consideration of the specific local conditions and weighed against each other (cf. Supreme Court of the German Democratic Republic, Neue Justiz 1978, p. 360 [at p. 361]). The building of a weekend cottage for the purposes of the landowner’s recreation was not considered of the same societal value as an owner-occupied home. The needs of the landowner and the transferee for recreation were seen as fundamentally equal; however, as a rule, the fact that the transferee was already in possession of the land and had incurred related expenses usually resulted in a decision in his or her favour. If the claim on the part of the owner of the land to a personal requirement referred to only a portion of the land, the land’s size and type of use was to be examined under consideration of the interests of both of the involved parties to determine whether it was possible to divide the land and suitably amend the use and occupation contract in accordance with § 78 of the Civil Code of the German Democratic Republic (cf. Supreme Court of the German Democratic Republic, Neue Justiz 1978, p. 362; Neue Justiz 1983, p. 507; Neue Justiz 1987, p. 209 [at p. 210]).

[…]

c) It is estimated that 53% of all households in the German Democratic Republic had property which was used for recreational purposes. After deducting the parcels of land which were used in the small gardeners’ communities there were still about one million contracts which are subject to the adjustment of contractual rights (cf. BTDrucks 12/7135, p. 28).

2. With the accession of the German Democratic Republic to the Federal Republic of Germany, the federal parliament was confronted with the task of transferring the land usage relationships tailored to the socialist system of property ownership in the accession territory to legal forms, which conform with the [West] German Civil Code. This was done in several steps.

a) The Act dated 23 September 1990 (BGBl II p. 885) regarding the Treaty of 31 August 1990 between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity, Unification Treaty (Vertrag vom 31. August 1990 zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands) made in largest part only provisional regulations and extended for this purpose the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) that was also put into force in the accession territory pursuant to Annex 1 chapter III subject area B part II number 1 of the Unification Treaty with special provisions for this area. In the process, the use and occupation contracts pursuant to §§ 312 et seq. of the Civil Code of the German Democratic Republic were classified under the law of obligations. For these, pursuant to Article 232 § 4.1 of the Introductory Act to the Civil Code, the provisions in §§ 312 et seq. of the Civil Code of the German Democratic Republic should continue to apply until other statutory provisions take force; however, the right to use land in small gardeners’ communities was, pursuant to Annex 1 chapter XIV part II number 4 of the Unification Treaty, included in the area of application of the Federal Small Gardens Act (Bundeskleingartengesetz) dated 28 February 1983 (BGBl I p. 210). Regarding other owner and user relationships, in Article 232 § 4.2 of the Introductory Act to the Civil Code, the federal government was authorised to enact provisions covering the adequate payment for use by decree. If independent ownership of a construction originated in accordance with the laws of the German Democratic Republic, it continued to exist and could on a transitional basis also be newly established (Article 231 § 5.1 EGBGB).

b) The owner and user relationships pursuant to §§ 312 et seq . of the Civil Code of the German Democratic Republic were further guaranteed by Article 13 of the Act for the Expedition of Registration Proceedings (Registerverfahrenbeschleunigungsgesetz) dated 20 December 1993 (BGBl I p. 2182) until the final revision of the law on use and occupation contracts. The provision inserted as §1a in Article 232 of the Introductory Act to the Civil Code was intended to clarify that the contracts for the transfer of possession of land are valid (cf. BTDrucks 12/5553, p. 128). The addition of subsection 4 to Article 232 § 4 of the Introductory Act to the Civil Code extended the continued application of §§ 312 et seq . of the Civil Code of the German Democratic Republic to contracts concluded before 1 January 1976 which transferred land that was not used for forestry or agriculture to citizens for the purpose of non-commercial gardening, recreation and leisure time activities. Furthermore, Article 232 § 4a of the Introductory Act to the Civil Code introduced a moratorium on contracts. Afterwards, use and occupation contracts pursuant to §§ 312 et seq. of the Civil Code of the German Democratic Republic including those contracts which were concluded prior to 1 January 1976, or, to the extent that they involved garages, up to the end of 1994 could pursuant to § 554 of the [West] German Civil Code only be terminated in the event that the user was late in payment.

c) These contracts were transferred to the jurisdiction of the [West] German Civil Code by the Act to Adjust Contractual Rights of Use to Land in the Accession Territory which entered into force on 1 January 1995 as Article 1 of the Act to Amend Contractual Rights of Use (Schuldrechtsänderungsgesetz) dated 21 September 1994 (BGBl I p. 2538).

aa) Pursuant to § 1.1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory , this applies inter alia to contracts involving land in the accession territory which was transferred to serve the purposes of recreation or leisure time activities or for the construction of garages. To the extent that there is no contrary statutory provision, pursuant to § 6.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, the provisions of the German Civil Code regarding private and commercial leases are to be applied to these contracts. In accordance with § 11.1 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, the continuing ownership of constructions on the land shall be transferred to the land owner upon the termination of the contractual relationship which was established under the laws of the German Democratic Republic. In this case, the owner of the land is obliged to compensate the user. In this context, the relevant provisions are:

§ 12

Compensation for the Building

(1) After the contractual relationship is terminated, the owner of the land must compensate the user for a building erected in accordance with the legal provisions valid in the German Democratic Republic pursuant to the following provisions. The right of the user to claim compensation for a building erected illegally pursuant to the provisions on restoration of property in the case of unjust enrichment shall remain unaffected.

(2) If the contractual relationship is terminated by the owner of the land, the compensation due must be determined on the basis of the value of the building on the land at the time the land is returned. Sentence 1 shall not be applied, if through his or her behaviour the user has given cause for termination for an important reason or the contractual relationship terminates after the period of time after which the owner of the land is entitled to terminate the contract under the special preconditions named in this Act (time limit for protection against termination) has elapsed for at least seven years.

(3) In cases other than those named in subsection 2, the user can claim compensation, if, at the time the land is returned, its market value is greater thanks to the presence of the building.

(4) The user is entitled to remove the building […]

(5) (…)

§ 14

Compensation for the Pecuniary Loss

If the contractual relationship is terminated by the owner of the land before the expiry of the time limit for protection against termination, the user can claim, in addition to compensation for the building in accordance with § 12, compensation for the pecuniary loss he or she suffered as a consequence of the premature termination of the contractual relationship. A claim in accordance with sentence 1 does not exist, if the user’s own behaviour gave cause for a termination for an important reason.

bb) The owner of the land can demand payment from the user for the use of the land until the end of the contractual relationship. In this context, §§ 20.1 and 20.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory specifies:

Payment for Use

(1) The owner of the land can demand that the user pay for its use. The amount of the payment shall be in accordance with the currently valid version of the Payment for Use Ordinance dated 22 July 1993 (BGBl I p. 1339).

(2) Contracts to transfer possession which were previously gratuitous shall be subject to the provisions of the Payment for Use Ordinance. The owner of the land shall be entitled to demand the sum which the user would be required to pay in the event that the use was billed in accordance with §§ 3 to 5 of the Payment for Use Ordinance.

Regarding the amount of payment, § 3.1 and 3.2 of the Payment for Use Ordinance in the version dated 24 July 1997 (BGBl I p. 1920) states the following:

Incremental increase in payment for use up to the amount usual in the area

(1) The price may (…) be increased incrementally up to the amount usual in the area. The payment demanded for use of the land may be increased in the following increments to achieve an appropriate price structure:

1. from 1 November 1993 to twice the amount permitted on 2 October 1990, but to at least 0.15 German Marks, in the case of land on which a construction has been built to 0.30 German Marks per square meter of land per year,

2. from 1 November 1994 to twice the amount resultant from number 1,

3. from 1 November 1995 to twice the amount resultant from number 2,

4. from 1 November 1997 by a maximum of half of the amount resultant from number 3,

5. from 1 November 1998 onwards annually by a maximum of a third of the amount resultant from number 3,

(2) The “amount usual in an area” is the price agreed upon for similarly used land in the municipality or comparable municipalities after 2 October 1990. The decisive factor in assessing whether or not land is similarly used is the actual use to which it is put; this assessment must include consideration of the type and extent of the construction on it.

With the exception of subsection 1 sentence 2 number 5, the content of this regulation corresponds to the provision in its original version dated 22 July 1993 (BGBl I p. 1339).

cc) Pursuant to § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory contracts within the meaning of § 1.1 number 1 are subject to different degrees of protection against termination. The provision has the following wording:

Time Limit for Protection Against Termination

(1) The owner of the land shall not be entitled to terminate the contract before the expiration of 31 December 1999.

(2) From 1 January 2000 onwards, the owner of the land shall only be entitled to terminate the contract,

1. if he or she requires the land for the erection of a free-standing house or a duplex for him or her to live in or for persons in his or her household to live in or for relatives to live in and if it would not be reasonable to exclude him or her from the right to terminate in view of such private requirements and his or her other justified interests and provided the interests of the user have been adequately considered or

2. wishes to immediately implement or make preparations for a different use laid down in a building plan.

In the cases in sentence 1 number 2, the contract may be terminated before the building plan becomes legally binding, if the municipality has decided on the preparation, modification or extension of a building plan, when it seems safe to assume that based on the state of the planning that the planned other use will be approved and that there are urgent reasons in the public interest which require the preparation or implementation of the planned other use before the building plan is legally binding.

(3) From 1 January 2005 onwards, the owner of the land shall also be entitled to terminate the contract, if he or she requires the land

1. for the erection of a free-standing house or a duplex for him or her to live in or for persons in his or her household to live in or for relatives to live in or

2. for the purposes of his or her own small garden, for the purposes of recreation or leisure and if it would not be reasonable to exclude him or her from the right to terminate in view of such recreation requirements and his or her other justified interests even after giving consideration to the interests of the user.

(4) From 4 October 2015 onwards, the owner of the land shall be entitled to terminate the contract pursuant to the general statutory provisions.

(5) If the user has completed the 60th year of his or her life on or before 3 October 1990, the owner of the land shall not be permitted to terminate the contract while the user still lives.

(6) For contracts in accordance with § 1.1 number 1 regarding land on which, as of the end of 16 June 1994, the user had still not built, and for use and occupation contracts for land with a garage on it, the special protection against termination pursuant to subsections 1 and 2 expires as of 31 December 2002. Subsection 5 shall not be applicable. The owner of the land shall also be entitled to terminate these contracts if he or she wishes to use the land for a special investment purpose in accordance with § 3.1 of the Investment Priority Act (Investitionsvorranggesetz) .

(7) (…)

II.

The complainants are owners of land in the accession territory.

1. Complainant number I 1, who was born in 1913, had not been able to use his land with the weekend cottage since 1952. In the course of time, the weekend cottage was replaced by a new one. In 1987 the administrative authority concluded a use and occupation contract for the land with the current user. The complainant claims the land for himself and his family and is considering the erection of a free-standing house. He paid connection costs in the amount of DM 6,112.66 for a potable water line. He received notice of charges in the amount of another DM 38,000 for the sewage line, paving the road and street lights.

Complainant number I 2, who was born in 1908, is a joint owner of land which was administered by the state since 1963. In 1979 the administrative authority concluded use and occupation contracts for a portion of a piece of land with a married couple as well as their son. On their portion of the piece of land, the married couple (the wife had already completed her 60th year of life on 3 October 1990) uses the summer house, which belongs to the owner of the land. On the other portion of the piece of land, the son built a weekend cottage. In 1995 the couple and their son paid together a total of DM 395.98 for the use of the land. In 1994 the owner of the land had to pay DM 53.09 for property taxes and the charges owed to the water and land association. The charges notified for the connection and usage of a sewerage system, which would amount to a sum ranging from DM 5,000 to 6,000, have not yet been levied.

Complainant number I 3, who was born in 1931, is joint owner of a 2,668 square metre piece of land for which the administrative authority concluded a use and occupation contract in 1981 with a married couple where the husband had already completed his 60th year of life on 3 October 1990. The user built a weekend cottage on the land. On 1 November 1994 the payment for the use of the land was DM 1,600.80, the property tax was DM 84.60 annually. A local improvement assessment in the (expected) amount of DM 22,650 was discussed, but not yet levied.

Complainant number I 4, who was born in 1931, is joint owner of a piece of land on the waterfront, for which the administrating authority concluded in 1972 a contract to transfer possession for the purposes of recreation, which was transferred in 1989 to the granddaughter of the original user. In 1995 she paid DM 876 for the use of the land. The complainant was levied a charge in the amount of DM 5,000 for connecting the property to the potable water supply. The charges for the planned sewerage connection will supposedly amount to another DM 25,000.

Complainant number I 5, who was born in 1917, owns two pieces of land for which the administrative authority concluded contracts to transfer possession in 1984. The complainant wishes to have returned at least one of the pieces of land for the recreational purposes of himself and his family.

2. Complainant number II owns a piece of land for which the administrative authority concluded a lease in 1973 to allow construction of a row of garages. There are now 19 garages on the land. Complainant number III is also joint owner of a piece of land in relation to which a contract was concluded which allowed the user to build several garages. The complainant wishes to build a building with offices and apartments in accordance with the proposed building plan.

III.

1. In proceedings 1 BvR 995/95, the complainants appeal against § 14 sentence 1 and § 20.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in conjunction with § 3 of the Payment for Use Ordinance and against § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. In this context, the constitutional complaint refers to the Payment for Use Ordinance in its currently valid form also in the 1997 version of the Amending Ordinance (Änderungsverordnung) due to the reference in § 20.1 of the Act to Adjust Contractual Rights. In a similar manner, the complainants also contest § 12 and § 20.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. They allege a violation of their rights under Article 14.1 of the Basic Law and, in view of §§ 14 and 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, also those under Article 3.1 of the Basic Law.

[…]

2.In the proceedings 1 BvR 2288/95, the complainant alleges a violation of her rights under Article 2.1, Article 3 and Article 14 of the Basic Law especially by § 23.1, but also in view of the facts of this case by § 23.2 and 23.6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory.

[…]

3.The complainant in the proceedings 1 BvR 2711/95 contests § 23.6 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. He alleges a violation of his fundamental rights under Article 3.1 and Article 14.1 of the Basic Law.

[…]

IV.

The Federal Ministry of Justice (Bundesministerium der Justiz) has stated its opinion for the Federal Government with regard to the constitutional complaints; regarding constitutional complaint 1 BvR 995/95, the Ministry of Justice and for Federal and European Affairs (Ministerium der Justiz und für Bundes- und Europaangelegenheiten) for the Land of Brandenburg and the Ministry of Justice (Justizministerium) for the Land of Mecklenburg-West Pomerania have stated opinions for their respective Länder governments.

1.In the opinion of the Federal Ministry of Justice, the contested provisions are in accordance with Article 14.1 and Article 3.1 of the Basic Law.

[…]

2.The Ministry [of Justice] in Brandenburg […] in any event considers the constitutional complaint 1 BvR 995/95 to be unfounded.

[…]

3.The Ministry in Mecklenburg-West Pomerania is in largest part of the same opinion as the Land government of Brandenburg.

B.

The constitutional complaints are admissible.

I.

The complainants are personally, presently and directly affected by the challenged provisions in § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory and by §§ 12, 14 sentence 1 as well as § 20.1 and 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in conjunction with § 3 of the Payment for Use Ordinance against which the constitutional complaint I BvR 995/95 is additionally directed. (cf. on this requirement BVerfGE 1, p. 97 [at p. 101]; 90, p. 128 [at p. 135]; consistent case-law).

[…]

II.

The subsidiarity principle does not stand in the way of the admissibility of the constitutional complaints. They are of general significance within the meaning of the correspondingly applicable § 90.2 sentence 2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) . The question whether the challenged provisions are constitutional affects a large number of the owner and user relationships in the new Laender […] . There is no need for a prior decision by the civil courts on the facts or the law.

C.

The constitutional complaints are founded in part.

I.

1. The basis for the court’s review is first and foremost the constitutional guarantee of property in Article 14 of the Basic Law. Recourse to the general freedom of action in Article 2.1 of the Basic Law which the second complainant considers violated does not come additionally into question (cf. BVerfGE 79, p. 292 [at p. 304]; 85, p. 219 [at p. 223]).

The owner’s right to a private benefit from his or her own land and his or her fundamental rights of disposition in respect of it are an inherent part of the guarantee of property in Article 14.1 of the Basic Law which also covers land ownership (cf. BVerfGE 52, p. 1 [at p. 30]; 98, p. 17 [at p. 35]). The right to use one’s own land oneself and the right to exclude third parties from possession and use of it, as well as the freedom to dispose of the land and to receive rent under a contractual licence for its use as financial support for one’s own living expenses, are subject to protection under the Basic Law (cf. BVerfGE 79, p. 292 [at pp. 303-304]; 98, p. 17 [at p. 35]).

The specific scope of protection provided by the property guarantee arises from the provisions on the content and limits on property which are a matter for the legislature pursuant to Article 14.1 sentence 2 of the Basic Law. BVerfGE 95, p. 48 [at p. 58]). The challenged provisions are concerned with the content and the definition of limits of the property guarantee and not expropriation within the meaning of Article 14.3 of the Basic Law; the complainants also assume that this is the case. In fulfilling the task assigned to it in Article 14.1 sentence 2 of the Basic Law, parliament must take into consideration both the constitutionally guaranteed legal position of the owner as well as the requirement which flows from Article 14.2 of the Basic Law that property serve the public good. It must ensure that the interests worthy of protection of the parties concerned, even if those interests are not protected by the constitution, are fairly compensated and evenly balanced. One-sided preferential treatment or discrimination is not in accordance with the constitutional concept of social obligations attached to private ownership; since the binding of the use of property to the general public good pursuant to Article 14.2 of the Basic Law includes a duty to take into account the needs of persons actually dependent on the use of the land owned (cf. BVerfGE 37, p. 132 [at p. 140]; 52, p. 1 [at p. 29]; 91, p. 294 [at p. 308]).

The limits on parliament’s legislative powers are not the same, however, for all subject areas. To the extent that ownership safeguards an individual’s personal freedom in the area of pecuniary rights, it enjoys particularly well-developed protection. On the other hand, the greater the social relevance of the land owned, the greater will parliament’s legislative discretion be […] . In addition, fundamental changes to the economic and social conditions can expand parliament’s legislative discretion. Therefore, parliament is also entitled to take into account difficulties which are accompanied by the transfer of a socialist legal and ownership system, and the legal positions obtained under it, to the legal system of the Federal Republic of Germany as well as to take into account the time needed for this to occur. This has consequences for the evaluation of the set of regulations passed in each case. Individual burdensome provisions may neither be singled out from a set of regulations nor assessed without taking into account that the legal situation strived for could only be achieved step by step (cf. BVerfGE 91, p. 294 [at p. 309]).

2. According to these standards the challenged provisions are not completely compatible with the property guarantee in Article 14.1 of the Basic Law.

a) The protection against termination provision in § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory which is at the core of the constitutional complaints only partially meets the standards set for a fair settlement of conflicting interests.

aa) The provision serves, however, a legitimate regulation objective. It is one of the provisions through which the use and occupation contracts concluded in the German Democratic Republic were supposed to be incorporated in the part of the German Civil Code on private and commercial leases in such a way as to cushion the social effect for the user and to allow for a gradual incorporation. The users should be granted different degrees of protection for their continued use vis-à-vis the land owners which at the same time ensures that step by step the land owners are given the chance to use their own land once again (cf. BTDrucks 12/8035, at pp. 23-24.).

bb) In the first phase of the application of this regulatory concept which lasted until the end of 1999, ordinary termination by land owners was totally excluded (cf. § 23.1 and 6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory); thereafter the rights of termination of land owners were extended in several stages (cf. § 23.2 to 4 and 23.6 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory), but this did not lead, however, always to a reasonable balance of conflicting interests in a way which sufficiently took into account the needs of the land owners. This applies to the protection against termination in favour of users of land for purposes of recreation and leisure time activities where the users had improved the land before 16 June 1994 (aaa) or had not improved it (bbb), as well as for the protection of the continued rights of use in favour of the users of land with garages on it (ccc).

aaa) (1) Fundamentally, however, § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is not constitutionally objectionable to the extent that it affects the owners of land which was used for the purposes of recreation and leisure time activities and was improved by the users before 16 June 1994.

(a) There are essentially no constitutional objections to the complete exclusion of termination in § 23.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory for the period until the end of 1999 in view of the special nature of the subject being regulated and the other provisions which were made for improved land used for the purposes of recreation and leisure time activities in the accession territory.

(aa) Parliament’s task at the time of reunification of transferring contracts dealing with land used for purposes of recreation and leisure time activities (which had been established under the law of the German Democratic Republic and the conditions prevailing in a socialist system of ownership) to the legal system of the Federal Republic of Germany, was particularly difficult and it affected a highly sensitive area.

Compared to the owners of land, the users of land with constructions on it were in a very strong legal position under the law in the German Democratic Republic and in legal reality. Applications from the owners of land to the courts to cancel the owner and user relationships were only granted in a few exceptional cases. The use and occupation contracts which were in principle unlimited were more or less impossible to terminate. The users relied therefore on the long-term or in fact permanent existence of their rights of use; due to such reliance they often made considerable investments in the building and extension of constructions, in particular of country cottages (Datschen ), and became the owners of these irrespective of their ownership of the land. As a consequence, they started to regard themselves as the owners of the land. This feeling was strengthened even more by the fact that the users were able to dispose of the building erected by them with state approval. This was also reflected in the large social significance, which, in particular, pieces of land with country cottages on them acquired in life in the German Democratic Republic (cf. BTDrucks 12/8035, pp. 26-27).

The owners of the land on the other hand essentially did not have any rights to exploit or use their land until reunification. They also could not expect to ever again recover these rights. The land was encumbered with the contractual rights of use in the legal form applicable in the German Democratic Republic at the time the German Basic Law took effect in the accession territory. Through the guaranteed continual application of §§ 312 et seq . of the Civil Code of the German Democratic Republic until the end of 1994 - ordered at first by Article 232 § 4.1 sentence 1 of the Introductory Act to the Civil Code and then secured in particular in accordance with Article 232 § 4a of the Introductory Act to the Civil Code - the owners of land were not deprived of any rights which they had previously exercised or could have previously exercised . They simply received less than they might have hoped for after the unification process had gotten off the ground (cf. BVerfG, Order of the First Chamber of the First Senate of the Federal Constitutional Court dated 26 July 1993, Deutsch-Deutsche Rechtszeitschrift 1993, p. 309).

(bb) The same applies to the exclusion of termination pursuant to § 23.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. The economic and social conditions in the new Laender had not yet changed substantially at the time this provision came into force. Parliament could, therefore, exercise its wide discretion with regard to the transitional legislation related to the reunification so as to extend the legal situation which it found prevailing in the accession territory by an additional five years.

Even after reunification, the land which the users had improved for the purposes of recreation and leisure time activities continued to be highly important in the everyday life of the people of the German Democratic Republic. Even if the main justification for it - the massive travel restrictions on the inhabitants of the German Democratic Republic - ended when the wall came down, living standards in the eastern Laender are influenced by the experience of the previous life style and economic conditions which differ from those in the West. Thus parliament was acting within its prerogative to make assessments when it assumed that the land in question would continue to have great social significance for its users (cf. BTDrucks 12/7135, p. 28, at p. 54).

It is not constitutionally objectionable in view of this significance and the investments made by users who were relying on having their rights of use continue that parliament during a transitional phase gave absolute precedence to the users’ interest in the maintenance of those rights of use over the owners of the land’s interest in using their own land; it is also not constitutionally objectionable that the owners for reasons of legal clarity and legal certainty were deprived of rights of termination (cf. on this BTDrucks12/8035, p. 27). This can be reasonably expected of land owners. The continued ownership of their land is safeguarded. They can demand payment for use from users pursuant to § 20 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory and the Payment for Use Ordinance. Moreover, since the entry into force of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory all of the reasons for termination without notice of owner and user relationships are again available to land owners; previously due to the moratorium on contracts under Article 232 § 4a of the Introductory Act to the Civil Code, only termination due to delay in payment by the user pursuant to § 554 of the German Civil Code was expressly allowed (see subsection 1 EGBGB).

(b) Even the restrictions on termination, which continue to remain in force for the period from 1 January 2000 to 31 December 2004 and for the subsequent period from 1 January 2005 to 3 October 2015 as a result of § 23.2 and 23.3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory provide an essentially fair balance between the opposing interests of the users and owners of land without restricting the vested interests of the owners to an unreasonable extent.

(aa) Parliament extended the rights of land owners to a not insignificant degree to the detriment of land users in § 23.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory.

According to sentence 1 number 1 of the provision, after 1 January 2000, the land owner can terminate the use and occupation contract in relation to land used for the purposes of recreation and leisure time activities where it was improved before 16 June 1994 (cf. § 23.6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory), if he or she requires the land for the erection of a free-standing house or a duplex for him or her to live in or for persons in his or her household to live in or for relatives to live in (in other words for reasons of his or her own private housing requirements) and if it would not be reasonable to exclude him or her from the right to terminate in view of such private requirements and his or her other justified interests and provided the interests of the user have been adequately considered.

In enacting this provision parliament took into consideration on the one hand the time which had expired since the accession of the German Democratic Republic and on the other hand a particularly important interest for the owners without completely neglecting the interests of the users. The interests of the users should instead be assessed according to the necessary weighing of interests pursuant to § 23.2 sentence 1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory which occurs on a case-by-case basis. However, this does not exclude the need for paying reasonable attention to the private housing requirements of land owners when applying the provision; doing so is necessary for the proper settlement of conflicting interests. In view of the fact that the restriction on termination whose purpose it is to take into account user interests only affects a period of ten to fifteen years from reunification, in determining whether it is unreasonable to exclude the right to terminate for the owners of the land the requirements may not be excessive; when weighed against the interests of the users, the housing requirements and other justified interests of owners must increase in significance as the period of time for protection from termination under § 23.2 sentence 1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory comes closer to expiring.

Pursuant to § 23.2 sentence 1 number 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory it is possible from 1 January 2000 onwards to give ordinary notice to terminate a use and occupation contract in respect of land used for recreational purposes which was improved by the user before 16 June 1994, if its owner wishes to immediately implement or make preparations for a different use laid down in a building plan; notice of termination can be given in this case under the prerequisites in § 23.2 sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory prior to the building plan’s becoming legally binding.

This reason for termination which does not require weighing the interests of the owners against those of the users is primarily intended to ensure in the public interest that urban development is not impaired by the limited protection given to users’ existing interests (cf. BTDrucks 12/7135, p. 55). At the same time, however, the powers of owners are also considerably strengthened by § 23.2 sentence 1 number 2 and sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. The owner of land is not just granted the right to terminate a contract, but rather if he or she exercises this right, then he or she is as a rule given the chance at the same time to sell his or her land at a particularly lucrative price. This means that the owner’s private benefit from his or her ownership and his or her powers of disposal are fully brought to bear in this area.

Parliament was not obliged constitutionally to relax the prohibition on termination over and beyond the termination requirements in § 23.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory from the period of time from 1 January 2000 until 31 December 2004. In particular, it did not already have to give the land owner the opportunity to terminate even for his or her own recreational needs during this time. Since the rights of use in respect of improved land used for recreation and leisure time activities had as a rule existed for a long time and the users had made considerable investments in the constructions on the land in reliance on the continuation of their legal position under the law of the German Democratic Republic, parliament (cf. BverfGE 81, p.228 [at p. 237], 96, p. 330, [at pp. 344-355]) which was authorised, when dealing with a large number of cases, to generalise and define circumstances which could be regarded as typical, was not prevented from generally continuing to grant the users’ interest in continued free use until the end of 2004 priority over the land owners’ interest in recreation. In view of the continuing importance of the users’ interests, allowing them priority can be reasonably expected of the land owners who may demand pursuant to § 20 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory and § 3 of the Payment for Use Ordinance payment for use for the period during which they cannot use their own land (the amount of such payment has been increased several times); land owners can also be expected to defer their other interests which were not taken into account by § 23.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory.

(bb) In view of the total length of the time limit for protection against termination in the case of improved land used for the purposes of recreation and leisure time activities until 3 October 2015 (cf. § 23.4 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory), it was certainly necessary under constitutional law to further strengthen the termination rights of the land owners in an additional adjustment step at an appropriate point in time.

This occurred firstly in § 23.3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory with effect from 1 January 2005 where it is stated that the owner of land is entitled from this time on to terminate by giving ordinary notice because he or she personally requires the land for housing purposes; there is no need to weigh his or her interests against those of the user of the land (number 1). Secondly, the land owner is granted the opportunity to terminate the contract from the time named onwards, if he or she requires the land for the purposes of his or her own small garden, for the purposes of recreation or leisure and if it would not be reasonable to exclude him or her from the right to terminate in view of such recreational requirements and his or her other justified interests even after giving consideration to the interests of the user (number 2). Like § 23.2 sentence 1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory this provision also allows the circumstances of the individual case to be weighed whereby not only the interests of the user of the land are taken into consideration, but also the interests of the land owner as is required under Article 14.1 of the Basic Law. This means that in weighing the interests, more weight should be attached to the interests of the land owner as the transition period fixed by § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory continues to near its end and correspondingly it should be more rarely that the exclusion of the owner of the land’s right to terminate is reasonable.

§ 23.3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory adds this stipulation to those already contained in § 23.2 sentence 1 number 2, sentence 2 and 23.2 sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, which remains unchanged for the period up to 3 October 2015. As a result, the land owner has available to him or her from 1 January 2005 - in addition to the unlimited possibility of terminating without notice under the German Civil Code for the reasons regulated therein -three circumstances which allow termination; these three circumstances give special consideration to the land owner’s interest in the personal or different use of his or her land. This ensures together with the payment for use provision in § 20 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in conjunction with § 3 of the Payment for Use Ordinance that the core of the private benefit of the land and the land owner’s power of disposal over it are in principle also maintained during the transitional phase lasting until 3 October 2015. The fact that still no reasons other than those named entitle the use and occupation contract to be terminated by ordinary notice is something which can reasonably be expected from the owner of the land in the interests of the land user. The interest of the land user in the maintenance of his or her legal position was worthy of protection and could be taken into account by parliament pursuant to § 23.2 sentence 1 number 2, 23.2 sentence 2, 23.3 and 23.4 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory .

The vote on the decision on the constitutionality of the restrictions on termination pursuant to § 23.2 and 23.3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory (C I 2 a bb aaa <1> <b>) was six in favour and two against.

(c) The fact that the regulations on protection against termination in § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in respect of improved land used for the purposes of recreation and leisure time activities seek to ensure that the interests worthy of protection of land owners and users are evenly balanced in principle, is not jeopardised by § 23.5 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory which provides that the owner of land shall not be entitled to terminate a use and occupation contract in respect of such land (cf. § 23.6 sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory) during the lifetime of the user if he or she has completed the 60th year of his or her life on or before 3 October 1990.

This regulation means that some land owners, such as the first complainants who are over 60 years of age, will not be able to enjoy the use of their own land because the regulation makes no provision for exceptions and, in particular, does not contain a hardship clause. This leads to considerable hardship for the person concerned which is possibly incomprehensible to him or her. However, § 23.5 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory can prove to be a considerable burden even for younger land owners. In spite of this, parliament’s decision to grant older users complete protection for their continued use and therewith legal certainty until the end of their lives is in principle still acceptable under the constitution.

For users of the age specified in § 23.5 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, the land used for recreational purposes was often improved at considerable financial expense and as a rule had been used for many years and was thus of special value. The land and building erected on it are usually the location where they spend the majority of their old age. Most people and especially pensioners would not have the financial means to take out a commercial lease on another piece of land. The associated change could be too much for older people. Therefore, parliament could assume that users who had already completed their sixtieth year of life on the day that the accession of the German Democratic Republic to the Federal Republic of Germany became effective would find it very difficult to cope with the loss associated with the termination of their use and occupation contracts and that, therefore, it was unreasonable to expect them to reorientate themselves completely (cf. BTDrucks 12/8035, p. 27). This was all the more true since the owners of the land had not been able to use it for years and thus no comparable social tie to the land had developed. Therefore, they were not being expected to reorientate themselves, rather they were being denied the establishment of a new focal point for their lives. In spite of the associated hardship, this can be reasonably expected of the land owners because of the high need to protect the older users.

(2) However, § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is unconstitutional to the extent that it does not give the owners of especially large pieces of land the opportunity of a partial termination where the land was improved by 16 June 1994 and used for the purposes of recreation and leisure time activities.

Especially when land owners can in principle reasonably be expected to relinquish the use and other exploitation of their own land, possibly for life, in the interests of users, it will be necessary under constitutional law to allow them access to such use and exploitation to the extent that this can be done without lasting impairment to the users’ interests or the public good. It makes no difference that the law of the German Democratic Republic did not contain a limitation on the size of improved land used for the purposes of recreation and leisure time activities, although it did for the provision of land for the erection of owner-occupied homes (cf. for this § 2.1 of the Ordinance on the Provision of Ground Area Used by Cooperatives for the Erection of Owner-Occupied Homes in the Countryside (Verordnung über die Bereitstellung von genossenschaftlich genutzten Bodenflächen zur Errichtung von Eigenheimen auf dem Lande) dated 9 September 1976 (Law Gazette of the German Democratic Republic I p. 426) and § 7.2 of the Owner-Occupied Home Ordinance (Eigenheimverordnung) dated 31 August 1978 (Law Gazette of the German Democratic Republic I p. 425). This situation is no justification for leaving the user to occupy the whole of the land improved by him or her until the expiration of the relevant time limit for the protection of user interests and, as a consequence, excluding the owner of the land from every use when parts of the land are separable and could be used by the land owner independently and the remaining areas would still be so large that the user could continue the previous use without any unreasonable losses.

This all the more true since where there were large pieces of land used for recreational purposes and the owner only needed to use a partial area, it was possible under the law of the German Democratic Republic to divide the land; a corresponding amendment was made to the use and occupation contract pursuant to § 78 of the Civil Code of the German Democratic Republic, if the circumstances, in particular the size of the land in question allowed “the interests of both parties to be fairly treated” through such a regulation (Supreme Court of the German Democratic Republic, Neue Justiz 1983, p. 507; […]). There is no recognisable reason which could justify assessing the parties’ needs differently when applying Article 14 of the Basic Law and the requirement that conflicting interests are settled fairly and reasonably.

The resulting finding that § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is unconstitutional to the extent that it does not provide for a partial right of termination in the instances named, cannot be avoided by interpreting the provision in conformity with the constitution. The possibility of upholding the maximum amount sought to be achieved by parliament through such an interpretation does not exist if the interpretation contradicts the wording of the norm and the clearly recognisable will of parliament (cf. BVerfGE 98, p. 17 [at p. 45] with further references.). For this reason, the provision cannot be interpreted as complying with the constitution in this case.

§ 25 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory also permits partial termination of use and occupation contracts under the conditions set out therein where those contracts were concluded in connection with the creation of a right of use to erect an owner-occupied home. If the land owner makes use of this opportunity, termination will be pursuant to subsection 1 sentence 1 of the provision “instead of § 23". It can be clearly seen from this that parliament did not wish to grant the owners of land a partial right of termination for cases within § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory.

(3) On the other hand, it is possible and necessary to interpret § 23.1 to 3 and 23.5 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in another respect as being in conformity with the constitution.

(a) It is not justified to deny an owner of land the right to terminate a contract in respect of land improved prior to 16 June 1994 which is used for the purposes of recreation and leisure time activities or only allow such owner to terminate pursuant to § 23.2 and 23.3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, if the user no longer actually regularly uses the land transferred. If users permanently cease to use [the land], they show that they no longer wish to make use of the land or no longer can use it. Under these circumstances there is no longer a legal position worthy of protection which deserves priority over the land owner’s interest in recovering his or her land. Consequently, land owners can no longer be expected to forego the use of their own land or other exploitation of it until the expiration of the relevant time limit for the protection of user interests laid down in § 23 of the Act to Adjust Contractual Rights. Therefore, they should have the chance of terminating the use and occupation contract pursuant to the general provisions (cf. § 23.4 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory) as soon as it is certain that the user no longer uses the piece of land in question.

The wording, purpose and meaning of § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory do not stand in the way of an interpretation which restricts the protection against termination in this way for improved land used for the purposes of recreation and leisure time activities. The term “user” which is defined in § 4 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is understood by legal writers as relating only to the right to use, but not requiring the actual exercise of use (cf. Göhring, in: Kiethe, Kommentar zum Schuldrechtsanpassungsgesetz, § 4 marginal note 2 [as at: 1995]; Kühnholz, in: Neues Schuld- und Sachenrecht im Beitrittsgebiet , 1997, § 4 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory marginal note 1). Nonetheless, this understanding of the term, as § 7.1 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory shows, is not strictly adhered to in the area of protection against termination. Apart from that, § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is only concerned with the question whether the person who was entitled to use until the relinquishment of the actual use should still retain the right to use if he or she is no longer prepared or in a position to continue the use. The above can be answered in the negative in accordance with the objective of § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory because the previous user is no longer worthy of protection after he or she relinquishes use.

(b) An additional restriction on the protection against termination for the users of land used for the purposes of recreation and leisure time activities, which was improved before 16 June 1994, is required by the constitution if the user undertook the improvement without being entitled to do so pursuant to the underlying use and occupation contract.

From the point of view of § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory’s objective, namely to grant the user different degrees of protection for his or her continued use over time ..., the special protection against termination which § 23.2 and 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory and § 23.5 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory provide for users after 31 December 2002 (cf. § 23.6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory) who have completed their 60th year on or before 3 October 1990 is only justified if the users were entitled vis-à-vis the owners of the land under the contract applicable to their legal relationship to erect a construction ... . Only an interpretation of this kind is able to ensure an even balance of the parties’ interests. Therefore, users who in breach of contract have improved the land transferred to them should be treated in the same way as those who have not erected a building on the land before 16 June 1994. Accordingly, unless the owner is anyway entitled to terminate the owner and user relationship for an important reason because the user’s use of the land was in breach of contract, the land owner is restricted by § 23.6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory to the reasons for termination in § 23.2 of the same Act only until 31 December 2002 and at the expiration of this time limit he or she can terminate pursuant to the general provisions of the German Civil Code; such provisions also apply to a user who has completed the 60^th year of his or her life on or before 3 October 1990.

This interpretation is neither excluded by the wording of the statute nor by a clearly recognisable intention on the part of parliament. The user is only entitled to use the land, as indicated by § 4.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, on the basis of his or her contract. This applies both to the use of the land as such as well as the type of use – in this case the use for the purposes of erecting a construction to facilitate recreation and leisure time activities. The interpretation required by the constitution is in keeping with this understanding.

bbb) The protection against termination provision for land used for the purposes of recreation and leisure time activities which was improved by the user before 16 June 1994 achieves a proper settlement of conflicting interests; the same can be said in principle about the regulation enacted by parliament in § 23.6 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory for land which was not improved or not improved by the user prior to the aforementioned time (hereinafter referred to as “unimproved land”).

(1) This is evident essentially from the reasons which have already been given with reference to the protection against termination for improved land.

In the German Democratic Republic the users of unimproved land which had been transferred to them for the purposes of recreation and leisure time activities also enjoyed protection against termination pursuant to § 314.3 and 314.4 sentence 1 of the Civil Code of the German Democratic Republic. Like the users of improved land they could, therefore, in principle assume that the use and occupation contracts would continue to exist for a long time and plan their lives accordingly. By way of contrast, use and exploitation by the land owner was for the most part excluded for the foreseeable future. Unimproved land used for the purposes of recreation and leisure time activities also had considerable social, in particular emotional importance; this is essentially still the case today.

In the cases which the statute equated there were constructions erected by the land owner on the land and the users had also invested in the buildings if, and to the extent that, they had maintained, repaired or extended such buildings. Nonetheless, they did not acquire ownership of the buildings. In addition, the investments made in existing buildings were usually less than those made by users in new buildings. Parliament took this into account in that it fixed the end of the time limit for the expiration of the protection against termination in § 23.6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory as the 31 December 2002; it thus shortened the time limit by almost 13 years as compared to the time limit applicable to those users who had improved land for the purposes of recreation and leisure time activities (cf. BTDrucks 12/8035, p. 27). Land owners are thus entitled to terminate use and occupation contracts in the cases covered by § 23.6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory already from 1 January 2003 pursuant to the general provisions contained in the German Civil Code. In principle this properly takes into account both the interests of the land owners as well as the interests of the users. Therefore the protection against termination regulation in § 23.6 in conjunction with subsections 1 und 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is in principle reasonable for both of them.

(2) This, however, presupposes that when § 23.2 sentence 1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is applied and the necessary weighing of interests required by the provision is carried out, the failure of the user to improve the land will as a rule be a factor in the land owner’s favour. The interests of the users who have not improved the land transferred to them for the purposes of recreation and leisure time activities prior to 16 June 1994 are not worthy of protection in the same way as those users who have made use of their contractual right to improve the land. As a rule, the weight of their interests is so slight in comparison to those of the land owner that it would not be reasonable to exclude the land owner’s termination right based on reasons of his or her own private housing requirements. Only when the circumstances are atypical, for example, if the user’s interest in the continued use of the land for recreation and leisure time activities is particularly worthy of protection due to health reasons or because he or she made exceptionally high investments in the land, can an exception be made and the user given priority over the land owner’s private housing requirements.

(3) On the other hand, it is not necessary to make the termination reason in § 23.6 sentence 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, which covers unimproved land for recreation and leisure time activities in the period from 1 January 2000 until 31 December 2002, available, in addition to the termination reasons in § 23.2 of the same Act, to the land owner for the period from 1995 until to the end of 1999 and thereby break the total prohibition on termination contained in § 23.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory.

§ 23.6 sentence 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory allows the land owner to terminate the use and occupation contract also when the land is to be used for special investment purposes as provided for in § 3.1 of the Investment Priority Act; it serves primarily to provide conditions for closing building gaps as part of the public interest in an economic upturn in the new federal Laender (cf. BTDrucks 12/7135, p. 55; 12/8035, p. 27). At the same time, however, this regulation like § 23.2 sentence 1 number 2, 23.2 sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory generally allows the land owner to exploit his or her land lucratively. In view of the protection necessary for the user’s interest in continued use, it was not possible for land owners to demand that they be given exploitation opportunities as from the statute’s coming into force. This also applies even if one takes into account that according to the third complainant’s submissions tax concessions for certain investments in the new federal Laender could not be taken advantage of as a result of the coming into effect of § 23.6 sentence 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory as of 1 January 2000. Parliament is not bound by the constitution to make investments attracting tax concessions possible for the owners of land in the accession territory regardless of the conflicting interests of land users.

(4) However, it is only possible to achieve a fair settlement of conflicting interests between the owners and users of land if, in the case of particularly large pieces of land that have areas which can be separated from the rest of the land and used by the land owner independently, a partial right of termination is created and the statute is interpreted in conformity with the constitution so that contracts relating to land used for the purposes of recreation and leisure time which the current user no longer uses can be terminated pursuant to the general provisions of the German Civil Code. The statements made above regarding improved land also apply to land which the user did not improve for the purposes of recreation and leisure time activities before 16 June 1994. Reference is thus made to these statements.

ccc) In relation to pieces of land with garages built on them the protection against termination in § 23.6 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is only in conformity with Article 14 of the Basic Law in that it excludes in conjunction with § 23.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory termination for the time from when the statute entered into force on 1 January 1995 until the expiration of 31 December 1999. The owners of such pieces of land are by contrast unreasonably burdened by the restrictions on termination which apply according to § 23.2 in conjunction with subsection 6 sentence 1 and 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory for the period thereafter until the end of 2002.

(1) §§ 312 et seq. of the Civil Code of the German Democratic Republic, as is clear from § 314.4 sentence 2 of the Civil Code of the German Democratic Republic, was also applicable to the transfer of land for the construction of garages. The users of pieces of land with garages on them also enjoyed the same protection against termination and protection of their interest in continued use as did the users of improved and unimproved land used for the purposes of recreation and leisure time activities. As a result, they too could rely on the long-term or even permanent continuation of their rights of use and based on this reliance make investments in the construction and maintenance of garages in respect of which they acquired separate ownership. This is sufficiently taken into account by the fact that the users of pieces of land with garages built on them, like the users of land used for the purposes of recreation and leisure time activities, are granted pursuant to § 23.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory complete protection against termination until the expiration of 31 December 1999. It is only just reasonable to impose the associated burden on the land owner under the named circumstances.

(2) Parliament’s decision over and beyond this to restrict the land owner to the termination grounds in § 23.2 and 23.6 sentence 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory for another 3 years until 31 December 2002 (cf. § 23.6 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory), leads on the other hand to one-sided preferential treatment of the land user which does not sufficiently take into account the interests of the land owner. It leaves out of consideration the fact that the significance of land with garages built on it was clearly less than the significance of land used for the purposes of recreation in everyday life in the German Democratic Republic. Pieces of land with garages built on them did not serve as a refuge for personal space in socialist day to day life. Thus they did not have and do have, as was also assumed by parliament (cf. BTDrucks 12/8035, p. 27), a high social importance. Therefore, there is insufficient constitutional justification for the restriction on termination until the end of 2002.

The vote on the decision on the unconstitutionality of the restrictions on termination of pieces of land with garages built on them in the period from 1 January 2000 until 31 December 2002 (C I 2 a bb ccc <2>) was five in favour and three against.

b) Of the payment for use regulations in §§ 12 and 14 sentence 1 of the Act to Adjust Contractual Rights only § 12 of the Act to Adjust Contractual Rights satisfies constitutional requirements (aa). With regard to sentence 1 of § 14 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory this is only partly the case (bb).

aa) aaa) The provision in § 12 of the Act to Adjust Contractual Rights regulates in subsection 1 sentence 1 in conjunction with subsections 2 and 3 the owner of land’s duty of compensation in those cases where a building for which payment of compensation might be payable if ownership was transferred (cf. § 11 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory) and where the building was erected in accordance with the legal provisions valid in the German Democratic Republic and the user has not exercised his or her right pursuant to § 12.4 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory to remove the building. At the same time pursuant to § 12.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory the user shall be entitled to demand as compensation the current value of the building at the time that the land is returned, if the owner of the land gives due notice of termination of the use and occupation contract in the case of land used for the purposes of recreational and leisure time activities between 1 January 2000 and 3 October 2022, in the case of land on which a garage has been built between 1 January 2000 and 31 December 2009 (cf. Rövekamp, Schuldrechtsanpassung , 1995, pp. 151-152); in view of the unconstitutionality of § 23.6 sentence 1 in conjunction with subsection 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory the date last given must be replaced by 31 December 2006, if the land was used for garages (cf. C I 2 a bb ccc <2> above), unless it is amended by parliament through a new regulation, if the effectiveness of § 12.1 sentence 1 in conjunction with subsection 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is not to be neutralised for such land. Since the user’s investment in the construction of the building, whose amortisation should be ensured by this regulation (cf. BTDrucks 12/7135, p. 46), benefits the owner of the land once the use and occupation contract is terminated, it is appropriate that the user be reimbursed in the amount of the value of the building at the time that the land is returned.

The same also applies for the compensation regulation in § 12.3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. It defines in the case in which a contractual relationship is terminated for reasons other than those listed in § 12.2 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory (cf. on this BTDrucks 12/7135, p. 47) and the user does not remove the building erected on the land before relinquishing possession of the land pursuant to § 12.4 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory that the user shall be entitled to demand compensation if the market value of the land is greater at the time the land is returned due to the presence of the building. Since this prerequisite can only exist when the owner of the land actually receives a realisable value (cf. BTDrucks 12/7135, p. 47), it is reasonable to oblige the owner of the land to reimburse the user in this amount, since the user is the one who created this additional value.

bbb) Finally under constitutional law there is nothing objectionable in the fact that § 12.1 sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory leaves unaffected the right of the user to claim compensation pursuant to the provisions on restoration of property in the case of unjust enrichment for a building erected illegally, in other words not in accordance with the legal provisions of the German Democratic Republic. It would be unreasonable to refuse the user a claim on account of unjust enrichment due only to the illegality of the erection of the building and to thus leave the owner of the land the material benefit gained (cf. on BTDrucks 12/7135, pp. 46-47) gratuitously. Therefore, § 12.1 sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory ensures a fair balance of interests.

bb) However, this is only in part true for the regulation in § 14 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory regarding the obligation of the owner of the land to provide compensation for the pecuniary loss suffered by the user as a consequence of a premature termination of the contractual relationship.

Parliament gave as its justification for this regulation the expectation of the users in the continued existence of their owner and user relationships, which was further strengthened for contracts pursuant to § 1.1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory by the interim adoption of §§ 312 et seq. of the Civil Code of the German Democratic Republic as part of the law of the Federal Republic of Germany. The arrangements made by the user relying on this state of affairs should be protected by the statutory time limit for the protection against termination for a transitional period of time. If this protection cannot be achieved due to a termination that is by way of exception permissible prior to the expiration of the time limit for giving notice, the user should at least receive compensation for the resultant pecuniary loss (cf. BTDrucks 12/7135, p. 48).

These considerations can justify the statutory regulation only in those cases in which the premature termination was based on § 23.2 sentence 1 number 2, sentence 2 und subsection 6 sentence 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. By availing him or herself of this reason for terminating the contract, the owner of the land takes advantage of his or her right to use the land within the scope of a building plan or for a special investment purpose as provided for in § 3.1 of the Investment Priority Act. As a general rule, this results in substantial economic advantages for the owner. In view of the fact that the owner benefits from the associated capital gains while the user suffers the premature loss of his or her right to use the land together with as a consequence other pecuniary losses, it is reasonable to grant the user a claim against the owner of the land for compensation of this disadvantage. Otherwise, the owner of the land would – compared to the user – be awarded preferential treatment.

It is a different situation, on the other hand, if the premature termination of the contractual relationship is based on a termination in accordance with § 23.2 sentence 1 number 1, also in conjunction with subsection 6 or subsection 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. In these cases, § 14 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory results in a one-sided discrimination against owners of land used for recreation or leisure time activities. The loss of the right to use the land and the consequential pecuniary losses on the side of the user are not contrasted with a corresponding special advantage for the owner of the land. As a consequence of the permissible termination, the owner of the land does indeed regain the possession of the land so that he or she can use it for his or her own purposes. However, in view of the property guarantee in Article 14.1 sentence 1 of the Basic Law, constitutional law requires that this opportunity be provided. The restructuring of the right of termination to the advantage of the owner of the land provides for the balance of interests required in Article 14.1 sentence 2 of the Basic Law and grants the owner of the land no preferential treatment, which would require or justify compensation for the user.

An interpretation of the provision that is in conformity with the constitution cannot avoid the conclusion that § 14 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is unconstitutional to the extent named. Due to its explicit wording and the will of the legislature expressed in it, there is no room for such an interpretation.

c) Finally, also the compensation regulation, which was passed in § 20.1 and 20.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in conjunction with § 3 of the Payment for Use Ordinance for land used for the purpose of recreational and leisure time activities in accordance with the contract, does not fully satisfy the standards set in Article 14.1 of the Basic Law.

aa) However, this regulation is not constitutionally objectionable to the extent that it handles reimbursement for the transfer of the land itself.

aaa) The regulation serves a legitimate goal. On the one hand, the owner should regain the opportunity of a reasonable economic exploitation of his or her land (as already stated in the reasons for the Payment for Use Ordinance dated 1993; cf. BTDrucks 344/93, pp. 10-11). Pursuant to § 20.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory this should also apply in cases in which a payment was previously not provided for in the use and occupation contract or in the contract to transfer possession (cf. BTDrucks 12/7135, p. 52). On the other hand, it was intended that the rent should be adjusted to the new conditions resulting from the introduction of the market economy in the accession territory in a manner that is as considerate as possible of the user so the rental prices were not decontrolled immediately, rather were raised in several increments to the amount usual in the area for rent (cf. BTDrucks 344/93, p. 11; BTDrucks 12/7135, p. 52).

bbb) This is handled in a manner which represents reasonable treatment of the owners of the land.

(1) Provisions controlling prices which pursue socio-political goals are not prohibited by constitutional law. The property guarantee does not guarantee the most profitable utilisation of the property. This applies in particular for pieces of land, which cannot be increased, which have great social significance and with regard to which it may be necessary to enact statutory provisions to serve the interests of the public and whose utilisation cannot be completely left to market forces and the preferences of an individual (cf. BVerfGE 87, 114 [at p. 146]; 91, 294 [310]).

These considerations also apply for pieces of land, which are used for the purposes of recreation and leisure time activities, on the basis of contracts that were concluded in accordance with the laws of the German Democratic Republic. In adjusting the associated payment owed for the use of the land to market economy conditions, parliament may take into consideration that in the German Democratic Republic the rents were very low and could not be increased by the transferor unilaterally. Furthermore, incomes in the accession territory were prior to reunification substantially lower than those in the territory of the Federal Republic of Germany. Even today, the harmonization is still not fully achieved. According to the Federal Government’s information, up to the enactment of the Payment for Use Ordinance, rents in the amount of 0.03 to 0.10 DM were charged per square metre and year for unimproved pieces of land and for pieces of land with buildings rents were charged in the amount of 0.08 to 0.20 DM (cf. BTDrucks 344/93, p. 20). In view of their incomes, an immediate increase of the rents to a level that gave full consideration to the interests of the owners of the land in its economic exploitation, would not have been financially bearable for most users and would have had the likely consequence that many of them would have been motivated to give up their rights of use. In the interest of the required socially acceptable harmonisation of legal provisions, the legislature and respective authority which is competent for issuing ordinances provided for an incremental increase in rents.

Pursuant to § 3.1 of the Payment for Use Ordinance, these increases began with an initial increment on 1 November 1993. From this point in time onwards, the contractually agreed rent could be increased to double the amount permissible on 2 October 1990, but to at least 0.15 DM or, in the case of land with buildings on it, to 0.30 DM per square meter of land annually. The next two increments permitted the rent to be doubled (based on the previously charged rent) on 1 November 1994 and again on 1 November 1995. From 1 November 1997 onwards the maximum increase was set at half the previous rent, from 1 November 1998 onwards - pursuant to the [Payment for Use] Ordinance in force since 1997 - an annual increase of up to one third of the amount of the rent resultant after the third increment is permissible. Since, in the case of use and occupation contracts and agreements on transfer of possession that were gratuitous, there was no initial rent to serve as a basis for the incremental increases, the owner of the land could, since 1 January 1995, pursuant to § 20.2 of the Act to Adjust Contractual Rights demand double the minimum rent due from 1 November 1994 pursuant to § 3.1 sentence 2 number 1 of the Payment for Use Ordinance; the further increases would then be in accordance with § 3.1 sentence 2 number 3 to 5 of the Payment for Use Ordinance (cf. BTDrucks 12/7135, p. 52). Pursuant to this regulation, the first complainants must - on the basis of the information they provided - be permitted to demand rents since 1 November 1998 far higher than the amounts which were payable on the basis of the contracts in force at the time of reunification. However, it is not permissible for these rents to exceed those common for the area.

This limitation is not constitutionally objectionable. § 3 of the Payment for Use Ordinance ensures the owner of the land a rent in accordance with that common in the local market (cf. subsection 2), which as a rule guarantees the profitability of the owner’s property. Furthermore, until the expiration of the time limit for the protection against termination pursuant to § 20.3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory the owner can demand additional increases in the rent, if, the rent has not been increased for one year after the rent has been raised to the amount common in the area and the rent common in the area has in the meantime increased by more than 10 %. The fact that the limitation of the rent increase simultaneously hinders the exploitation of shortages in the relevant real estate market and cuts off the peaks in the rental prices is not questionable, since, in view of the social significance for the user of the land used for the purposes of recreation, such a utilisation of the land enjoys no protection under constitutional law (cf. BVerfGE 37, 132 [at p.142]).

(2) In fact the rent increase, as provided for in the statute and ordinance, which as stated in an expert opinion dated February 1996 obtained from the Federal Ministry of Justice regarding how the Payment for Use Ordinance had been applied could in many cases no longer be realized from 1 November 1997 because it would have exceeded the limit of the prices common in the area. In large parts of the accession territory the limits for pieces of land that have been improved range between 0.90 and 1.50 DM per square meter of ground annually. It is only in conurbations - in particular in the greater Berlin area - that the circumstance that , in a market with a large number of wealthy potential users, only a limited number of pieces of land (used for the purposes of recreation) become available has in some cases, namely for new leases, resulted in rents of up to 8 DM per square meter being agreed upon (cf. BTDrucks 381/97, pp. 6-7). Rent increases permitted in § 20.1 and 20.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in conjunction with § 3.1 of the Payment for Use Ordinance do not only prevent an unreasonable burdening of the user of the land. Rather, fundamentally they also allow the land owners an economic utilisation of their land within a reasonable transition period and thus represent for them, in principle, an acceptable limitation.

bb) On the other hand, the fact that neither § 20 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory nor the Payment for Use Ordinance provide a possibility of having the users of improved land used for the purposes of recreation and leisure time activities share in the public expenses for these pieces of land to an appropriate extent is clearly not compatible with constitutional law.

aaa) The Payment for Use Ordinance follows the gross payment system, as was normally the case in the use and occupation contracts. Therefore besides the payments in accordance with the Payment for Use Ordinance, the user may only be levied the public expenses for the land, if the use and occupation contract, by way of exception, provides for this (cf. Rövekamp, loc. cit ., p. 86; Schilling, in: Kiethe , loc. cit ., § 1 of the Payment for Use Ordinance, marginal note 39 et seq. , [Edition: 1995]). Users, whose rights of use are based on a contract to transfer possession, are pursuant to § 28 sentence 1 in conjunction with § 36 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory to be made exempt from the obligation to assume such expenses, as soon as the first demand for payment of rent pursuant to the Act to Adjust Contractual Rights of Use to Land in the Accession Territory is made; the user shall in any case not bear one-time public expenses (§ 28 sentence 1 in conjunction with § 36.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory).

With this legal situation, it is possible - and this also assumed by the Federal Government - that land owners could suffer economic losses, if high public duties were levied on them. The regulation’s objective of adjusting the rent to market economy conditions in a socially acceptable manner, does not justify placing such burdens [on the land owners]. This adjustment is intended to also provide land owners, as compensation for the long time limits for the protection against termination, the possibility of a reasonable economic utilisation of their land. This is, however, jeopardised by the types of losses discussed. Since they exclude users of improved land used for the purposes of recreation and leisure time activities - out of consideration for the economic conditions in the accession territory - from carrying a reasonable share of the public expenses levied on the land, the payment for use regulations lead to a one-sided discrimination against the owners of the land. This is not in conformity with Article 14.1 of the Basic Law.

bbb) It is not possible to include the user in sharing the burden [of public expenses] by way of an interpretation of § 20 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory and the Payment for Use Ordinance, which is in conformity with constitutional law. The gross payment principle at the foundation of the existing laws is contrary to this. Even with a similar application of § 135.4 sentence 3 of the Town and Country Planning Code (Baugesetzbuch) it is not possible to achieve a result that is in conformity with constitutional law. In accordance with this provision, the local improvement contributions for pieces of land, which are used as small gardens within the meaning of the Federal Small Gardens Act, should be deferred without interest. The lessee of such pieces of land are - apparently in view of the social function of the small garden - to be, in the public interest, spared of sharing in the burden of the local improvement contributions (cf. BTDrucks 12/6154, p. 10 in conjunction with p. 6). A corresponding application of this regulation in favour of the owner of improved land used for the purposes of recreation and leisure time activities, which falls under the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, cannot be extended to public expenses such as property tax, street cleaning fees and fees levied for the extension of roads, since these are not included in § 135.4 sentence 3 of the Town and Country Planning Code. For these § 5.5 of the Federal Small Gardens Act (cf. BTDrucks 12/6154, p. 9) is applicable, which allows the lessor of a piece of land used for a small garden to demand reimbursement of the expenses mentioned above from the lessee. In view of the gross payment principle incorporated in the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, it is not possible to apply by analogy this regulation to owner and user relationships pursuant to § 1.1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory.

II.

§§ 14 and 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory are, to the extent that they are in compliance with the requirements in Article 14.1 of the Basic Law, also compatible with the general principle of equality in Article 3.1 of the Basic Law.

1. The general principle of equality before the law sets parliament different limits depending on the object being regulated and its distinguishing features; these range from a mere prohibition of arbitrariness to strict compliance with proportionality requirements. Parliament is usually subject to strict compliance in the case of unequal treatment of groups of persons. This also applies if the unequal treatment of facts directly result in the unequal treatment of groups of persons. The Federal Constitutional Court then examines [the provision] in detail to verify whether there are any significant reasons for the differentiation which might justify the unequal legal consequences (cf. BVerfGE 88, p. 87 [at pp. 96-97]; 95, 267 [at pp. 316-317]).

2. Judged by the above standard, §§ 14 and 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory are also not objectionable from the perspective of the principle of equality. This applies not only to the extent that the complainant challenges the unequal or equal treatment of groups of persons within the area regulated by § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory (a). Instead it also applies, to the extent the complainants assert that the owners of improved land used for the purposes of recreation and leisure time activities which is located within the accession territory suffered disadvantages without sufficient legal justification compared to other owners of such pieces of land (b).

a) On the other hand, to the extent that the first complainants challenge the preferential treatment given to older users as compared to older owners of land by the protection against termination concept in § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory and, in particular by § 23.5, and the third complainant is of the opinion that, in view of the protection against termination (until the end of 1999) there is no justification for the owner of a piece of land used for garages to be treated in exactly the same way as an owner of improved land used for the purposes of recreation and leisure time activities, the general principle of equality includes no obligations which exceed those in Article 14.1 of the Basic Law.

b) The constitutional challenges of the complainants are also not otherwise successful.

aa) It cannot be advanced as a reason for the prohibition on termination in § 23.6 sentence 1 in conjunction with subsection 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory being incompatible with Article 3.1 of the Basic Law that it discriminates against owners of pieces of land with garages in the accession territory as compared to owners of similar pieces of land within the territory of the Federal Republic of Germany prior to reunification where the section of the German Civil Code on private and commercial leases provides the users of the land no special protection against termination. Since this discrimination is, up until the end of 1999, based on the user’s interest, which is worthy of protection, in the continued use of the land where the corresponding owner and user relationship was established under the laws of the German Democratic Republic and a need for such protection did not exist within the territory of the Federal Republic of Germany prior to reunification, the different initial conditions are by themselves sufficient justification for unequal treatment.

bb) § 14 sentence 1 and § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory are, to the extent that they are compatible with Article 14.1 of the Basic Law, also in accordance with Article 3.1 of the Basic Law, although the owners of improved land used for the purposes of recreation and leisure time activities, which are covered under the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, are treated less favourably afterwards in accordance with this provision than owners of pieces of land, which were used for small gardeners’ communities within the accession territory and which are therefore covered by the regulations of the Federal Small Gardens Act.

There is no regulation in the Federal Small Gardens Act corresponding with § 14 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory which makes provision for this. § 9 of the Federal Small Gardens Act also regulates the right of termination differently to § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory. Nevertheless, the consequentially different treatment of the groups of persons named is justified by the facts. It is explained by the different situations of the owners who have been assigned pieces of land at individual or collective locations as well as by the fact that, in the Unification Treaty, parliament itself took into account the unusual features of the pieces of land with a collective location which served as small gardeners’ communities and assigned these to the provisions of the Federal Small Gardens Act [...]. This is a permanent right, which is why the owners of the pieces of land are permanently subject to the restrictions on termination defined in the Federal Small Gardens Act. In contrast, the provisions providing protection against termination pursuant to § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory and the associated compensation regulation in § 14 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory are part of the cushioning of the social consequences and the transfer law covering for a fixed period of time the contracts related to individual pieces of improved land used for the purposes of recreation and leisure time activities in the accession territory. In this manner they differ so substantially from the permanent rights regulations in the Federal Small Gardens Act that the necessarily associated temporary disadvantages do not lead to a violation of the general principle of equality.

cc) Finally with regard to the principle of equality, there are no doubts to the extent that the provisions providing protection against termination pursuant to § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory deviate from the provisions providing protection against termination in other legal circumstances, which had also been established in the German Democratic Republic and had to be transferred into the law of the German Civil Code.

These provisions providing protection against termination, which the complainant mentioned in particular for rented apartments (cf. Article 232 § 2 EGBGB) and contracts for the transfer of possession for housing purposes (cf. §§ 38 and 39 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory), are in comparison to those in § 23 of the Act to Adjust Contractual Rights in part substantially more favourable to the affected owner. Thus in tenancy relationships involving residences if the specific provisos of Article 232 § 2.3 of the Introductory Act to the Civil Code are taken account of, the owner has long had the right to terminate for reasons of his or her own private housing requirements, while, pursuant to § 23.2 sentence 1 number 1 and subsection 3 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, this is first possible from 1 January 2000 for the improved land used for the purposes of recreation and leisure time activities discussed here. Also pursuant to § 38.1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, the prohibition of an ordinary termination of contracts for the transfer of possession for housing purposes only applied up to 31 December 1995, while for contracts pursuant to § 1.1 number 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, the possibility of an ordinary termination is barred until the end of 1999. On the other hand, the owner may only terminate contracts for the transfer of possession, which were concluded for housing purposes, pursuant to § 38.2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory until 31 December 2000, under the prerequisites in § 39 sentence 1 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory even until the end of 2010, if he or she claims the termination is for reasons of his or her own private housing requirements and if it would not be reasonable to exclude him or her from the right to terminate. Other reasons for terminating a contract, such as those provided for in § 23.2 sentence 1 number 2, sentence 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory, are not available in addition.

The wording of these provisions shows that parliament decided on an independent transition concept for the incorporation of the legal relationships established in the German Democratic Republic into the law of the German Civil Code to take into account the special aspects of each of these legal relationships (cf. for contracts to transfer possession of improved land used for the purposes of recreation, contracts for the transfer of possession of land for housing purposes and the other contracts to transfer possession: BTDrucks 12/8035, p. 24). With such objectives, different regulations, which in part favour and in comparison to the other group in part discriminate against the affected groups of persons, are at least to be expected, if they are not indeed unavoidable. They are adequately justified in view of the unique situation in which parliament found itself in coping with the consequences of the reunification, the objectives it strived for and the peculiarities involved in the reorganisation of legal relationships on a transitional basis.

III.

1. To the extent that the challenged regulations are incompatible with the property guarantee in Article 14.1 of the Basic Law, this leads to their being declared null and void only with regard to § 14 sentence 1 and - for pieces of land with garages on them - with regard to § 23.6 sentence 1 and 3 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory to the extent visible from the tenor [of the text] in accordance with § 95.3 sentence 1 of the Federal Constitutional Court Act. In this respect parliament need not enact new regulations to create laws in conformity with the constitution, since determination of the nullity of the provisions named suffices to ensure that the legal position of the owner of the land will not be subjected to further burdens.

2. On the other hand, the partial unconstitutionality of § 20.1 and 2 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory in conjunction with § 3.1 of the Payment for Use Ordinance, which results from the lack of a regulation providing for the sharing of the public expenses levied on a piece of land by the user of the aforesaid land, which is used for the purposes of recreation and leisure time activities, and of § 23.1 to 3, 5 and 6 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory resulting from the lack of a partial right of termination does not result in the nullity of these provisions.

The manner and amount in which the user of improved land used for the purposes of recreation and leisure time activities should share in the public expenses for this piece of land must remain for the legislature or for the respective authority which is competent for issuing ordinances to decide. Their legislative powers are, however, limited to the degree that it must in any case be ensured that the users of the pieces of land named above share in the public expenses to a reasonable degree. The new regulation, which the legislature must enact by 30 June 2001, must also consider the cases where - as was the case for complainants I 1 and 4 - high public expenses have already been levied, which at best the rent would only cover if the owner used all revenue resulting from the transfer of the land. An exception to this can only be considered to the extent that legal proceedings brought by the owners of the land to have the users of the land share in the public expenses are finally dismissed (cf. § 79.2 sentence BVerfGG).

Parliament must decide on the details of the partial right of termination within the framework of § 23 of the Act to Adjust Contractual Rights of Use to Land in the Accession Territory for the period of time that the restrictions on termination in this provision remain in force. It seems reasonable to require this decision to be made by 30 June 2001.

D.

This decision was, unless otherwise stated, made unanimously.