Athanasios Gromitsaris, Expropriations, Takings - ius-publicum

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sive limitation on the private usability of property assets. The guarantee of protection of the
right holder against state interference (Bestandsgarantie) under Article 14.1 sentence 1 of
the Basic Law requires first and foremost that a disproportionate impingement on property
is avoided by means of transitional provisions, exemption clauses, derogations or variances.
Pecuniary measures are only admissible when non-pecuniary mitigating measures are not
possible or would only be possible with an unreasonable amount of effort and time. Apart
from compensatory payments, pecuniary measures also include providing for the possibility
to give the owner the right to require a takeover of the property holdings on the part of the
state at their fair value. 48 On top of that, it is necessary to supplement the substantive
clauses concerning the measures alleviating the impact on property with procedural provi-
sions ensuring that the owner will really be able to choose between challenging a ruling of
an administrative authority that implements the legal enactment, and accepting that ruling
on the grounds that it is connected with a reasonable compensatory measure. The law must
make such a choice procedurally possible.
Safeguarding (or validity protective) clauses (salvatorische Klauseln) that make it possible
to escape the invalidity of a property regulation measure by paying a sum of money, do not
constitute a linking clause in the sense of article 14.3 of the Basic Law. A compensation
provision is compatible with the spirit and purpose of the linking clause only when the con-
ditions under which such compensation could be paid are explicitly determined. However,
norm validity safeguarding compensatory clauses can be interpreted (in conformity with the
Article 14.1 sentence 2 of the Basic Law) as measures associating the determination of the
content and limits of the right to property with the introduction of a claim for an equalisa-
tion payment for disproportionately aggrieved parties. 49
48 BVerfGE 100, 226, para 101.
49 Papier, Maunz/Dürig, Grundgesetz Juli 2010 Lfg. 59, at para 378 c.
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