Athanasios Gromitsaris, Expropriations, Takings - ius-publicum

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ally still as tax. Beyond this unusual and extreme case two seminal rulings deal with the
question of defining a constitutional limit to taxation. 70
The Federal Constitutional Court introduced in 1995 a fifty-percent rule that was
finally abandoned in 2006 by the Court itself. 71 According to this rule which was based on
Article 14.2 of the Basic Law dealing with the social obligation imposed by constitutionally
protected property, the tax load on assets should be limited to 50% of the yield on those as-
sets. 72 The rule was understood as a defence of private property and a means of warding off
excessive taxation by actually defining the upper limit of taxation and, at the same token,
the minimum of subsistence and material welfare of an individual person that is allowed to
be kept unencumbered by taxes. However, the fifty-percent rule could not be established as
a general principle of tax law, let alone of all forms of public charges. In its 2006 ruling the
Federal Constitutional Court abandoned the effort to find any a priori-standard for taxes
and to derive any fixed limit of taxation from article 14.2 of the Basic Law. 73 By contrast, it
held that limitations on the tax legislature result from the application of the proportionality-
test (reasonableness). The Court adjusted the application of the principle of proportionality
to taxation. According to the principle of proportionality, any state interference with the
right to property must serve a legitimate purpose, must be the least intrusive means to serve
this purpose, and must have a reasonable and adequate impact on the legal position of the
70 See for ex. the reasoning of the claimant in BVerfG, 2 BvR 1387/04 vom 24.11.2009, Absatz-Nr. (1 - 98),
http://www.bverfg.de/entscheidungen/rs20091124_2bvr138704.html; and further BVerfG, 1 BvR 1924/07 vom
7.4.2008, Absatz-Nr. (1 - 37), at para 35, http://www.bverfg.de/entscheidungen/rk20080407_1bvr192407.html.
71 BVerfG, 2 BvR 2194/99 vom 18.1.2006, Absatz-Nr. (1 - 50),
http://www.bverfg.de/entscheidungen/rs20060118_2bvr219499.html.
72 Andreas von Arnauld/Klaus W. Zimmermann, Regulating government (´s share): The fifty-percent rule of the
Federal Constitutional Court in Germany, Working paper series, No. 100, Helmut Schmidt University Hamburg,
März 2010, 1-29.
73 BVerfGE 115, 97 (114); BVerfGE 82, 159 (190).
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