Athanasios Gromitsaris, Expropriations, Takings - ius-publicum

_____________________________________________________________
interested in paying the costs for saving the financial system as such. The banking sector
would not endogenize those costs without state intervention.
3. OLD EXPROPRIATION DOCTRINES AND THE NEW NARROW EXPRO-
PRIATION CONCEPT
3.1 The role of the German judicial system
The public-private law divide that characterises the German legal order has had an
impact on the evolution of the case law and the conceptual framework in the realm of prop-
erty law. The judicial review of administrative regulatory measures and actions pertaining
to expropriation fall within the jurisdiction of administrative courts. In case of dispute re-
specting the amount of compensation for expropriation, however, recourse is had to the
civil courts (Article 14.3 sentence 3 of the Basic Law). Both courts have to deal with prop-
erty law and to consider when a legal violates the fundamental right to property and when
compensation must be paid. Additionally, as the Federal Constitutional Court has jurisdic-
tion on questions about whether statutes, court decisions and administrative measures are
consistent and in conformity with the Basic Law, the Federal Constitutional Court has to
deal in particular with the constitutional concept of property and the function of private
property as an indispensable legal institution. The obligation incumbent on the Federal
Constitutional Court to act as a guardian over the Basic Law exists vis-à-vis all measures of
German public authority, in principle also to those which give rise to the domestic applica-
tion of Community and Union law 79 transpose 80 or perform Community and Union law.
Therefore, all three jurisdictions have had to develop their own interpretation of the consti-
79 See BVerfGE 89, 155 ; 123, 267 ),
80 See BVerfGE 113, 273 ; 118, 79 ; BVerfG, judgment of the First Senate of 2 March 2010 - 1 BvR
256/08, 1 BvR 263/08, 1 BvR 586/08 -, NJW 2010, p. 833 .
______________________________________________________________________________
Copyleft – Ius Publicum
42