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No right on the part of Berlin to a revision of the retransfer rules for land that was previously a part of Reich assets

Press Release No. 15/2008 of 08 February 2008

Order of 15 January 2008
2 BvF 4/05

The German Reich acquired land from the Länder (states) and municipalities without compensation or for a nominal fee in order to be able to use it for military purposes. Upon entry into force of the Basic Law (GrundgesetzGG) all Reich assets became federal assets (Article 134.1 GG). On the other hand, Article 134.3 GG provides that assets that were placed at the disposal of the Reich by the Länder and municipalities without compensation should revert to the Länder and municipalities insofar as the Federation does not require them for its own administrative purposes. § 5 of the 1961 Reich Assets Act (Reichsvermögen-Gesetz – RVermG) details the treatment of what is known as reversionary property. According to the section, retransfer of land to its original owners should be the rule and consideration of federal requirements should be the exception. The Reich Assets Act sets the Länder and municipalities a one-year time limit from its entry into force for the assertion of reversionary claims. The legislature inserted a “Berlin clause” in the Reich Assets Act so that it would also apply in Berlin. However, § 19.1 RVermG excludes the application of § 5 RVermG in (West) Berlin; thus the legislature reserved the right to make special provision for (West) Berlin. At the time the Act was enacted it was not yet foreseeable that it would not be possible to adopt the Reich Assets Act in (West) Berlin because of objections from the Allied Command there. The Reich Assets Act first took effect in the former western part of the Land Berlin after the termination of the rights reserved to the allies through the entry into force of the Sixth Transference Act (Sechstes Überleitungsgesetz) on 3 October 1990.

The Land Berlin claims as reversionary property approximately 6.8 million square metres of land located in (West) Berlin (encompassing, among other places, the Tegel and Tempelhof airports) with a total value of EUR 226 million. It also claims EUR 52 million which the Federation realised from the sale of reversionary property. The Federation is of the opinion that Berlin’s claims have extinguished since the one-year period for asserting reversionary claims has elapsed.

The Berlin Senate was unsuccessful in its application for judicial review of a statute in which it sought a declaration that the legislature had not yet enacted a law governing the reversion of property in the former western part of the Land Berlin. The Second Senate of the Federal Constitutional Court found that the Sixth Transference Act transferred the application of the entire Reich Assets Act including the provision governing reversions in § 5 thereof to (West) Berlin and that the latter has applied there since 3 October 1990. Nor is § 5 RVermG objectionable as regards its content.

In essence, the decision is based on the following considerations:

I. The Sixth Transference Act transferred the application of the Reich Assets Act to (West) Berlin with effect from 3 October 1990. At the same time, the provision on the reversion of property in § 5 RVermG took effect in Berlin. No specific legislative act was necessary for this thanks to the insertion of the clause in § 19.1 RVermG reserving rights and responsibilities in relation to Berlin.

When enacting the Reich Assets Act, the legislature expressed its opinion that reversion proceedings in Berlin should first be permissible when it was possible to ascertain with accuracy what the Federation’s requirements in relation to reversionary property would be. Since this was not possible at the beginning of the nineteen sixties, reversionary proceedings as provided for in § 5 RVermG could not have been reasonably conducted at this time. The legislature’s sole objective in including the reservation in relation to Berlin in § 19.1 RVermG was to suspend § 5 RVermG for a limited period. On the other hand, there is nothing to support the assumption that the legislature might have thought that a provision governing reversionary proceedings in (West) Berlin should differ in its terms from § 5 RVermG.

An additional reason for postponing the allocation of reversionary property in (West) Berlin was the special legal situation which existed in the western sector of the city. The three Western occupying powers reserved their rights with the approval of the Basic Law. One of their declared reservations was that Berlin should not be governed by the Federation. In view of continuing international tensions it was thought that the direct organisational integration of Berlin into Germany should initially be postponed. In light of this there was a high risk that the allies would reject an allocation of property in accordance with Article 134.3 GG. Reversionary proceedings cover the possibility that the Federation could claim assets which it requires for the execution of its administrative tasks. Such measures could be regarded as an exercise of governmental power which the Federation was not permitted to exercise in Berlin. § 19 RVermG excludes conflicts in this respect and can thus also be understood as a means employed by the legislature of ensuring the Western Allies’ consent to the rest of the Reich Assets Act.

II. There are no constitutional objections to § 5 RVermG. In particular, the legislature had no reason to create requirements for the reversion of property in the former western part of Berlin that were different to those applicable in the rest of the federal territory. In this respect the Sixth Transference Act gave Berlin equal legal status with the rest of Germany. Nor are there any constitutional objections to the exclusion periods regulated in § 5 RVermG. The imposition of a one-year time limit for the assertion of reversionary claims ensures that legal relationships are clarified within a reasonable length of time and that rights are not suspended for many years. According to the wording of § 5 RVermG the one-year time limit begins upon entry into force of the Act. In line with the legislature’s intent to place the Land Berlin on an equal footing with the rest of the federal territory, the time limit should be understood as beginning in (West) Berlin at the same time as the law took effect there on 3 October 1990.