Athanasios Gromitsaris, Expropriations, Takings - ius-publicum

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object of property. Nowadays, however, "Situationsgebundenheit" is considered as a circu-
lar concept “Zirkelbegriff”. 81 “`Situation´ ist Beurteilungsgegenstand nicht Beurteilung-
skriterium”. “Situation” is the subject, not the criterion of the assessment. The norms are
not inherent in the situation. In order to find out where the limits on the power of using and
disposing of the property asset are to be set, an assessment of the conflict between the af-
fected public interests and the relevant private property interests of the owner is neces-
sary. 82
The doctrine of the intensity of the encroachment or the severity of the burden im-
posed upon property (Schweretheorie) has been developed by the Federal Administrative
Court: When the burden placed upon the property is so onerous that it goes beyond the bor-
der of the general reasonable limits on property, it is no longer bearable and should be con-
sidered as a material expropriation, and this without regard to the number of the affected
owners and without the need of any comparison with other owners. 83
In the wake of the abandonment of a wide ranging concept of expropriation by the
Federal Constitutional Court these theories of distinction between expropriation and legisla-
tive determination of property have become irrelevant for defining expropriation. Neverthe-
less, they have not become obsolete, but they have found a new area of application in so far
as they provide guidance in evaluating the permissibility and constitutionality of the legisla-
tive determination of property under Article 14.1 sentence 2 of the Basic Law. Although it
is true that according to the case law of the Federal Constitutional Court a content determi-
nation of property rights can never turn into expropriation, such content determinations are
81 Walter Leisner, Eigentum, in: Isensee/Kirchhof (eds), Handbuch des Staatsrechts, 3. Auflage, Band VIII, C.F.
Müller, Heidelberg 2010, p. 370, para 176, 178.
82 Walter Leisner, Situationsgebundenheit Des Eigentums: Eine Uberholte Rechtssituation, de Gruyter, Berlin,
1990.
83 See for instance BVerwGE 32, 173 (179).
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