- BVerfGE 27, 253 1 BvR 624/56 Occupation damages
- 03 December 1969
- Dr. Müller, Dr. Stein, Ritterspach, Dr. Haager, Rupp-v.Brünneck, Dr. Böhmer, Dr. Brox, Dr. Zeidler
- © Nomos Verlagsgesellschaft
1. The Federal Republic of Germany did not have to answer for damage caused by the Allied Forces in occupying German territory at the end of the Second World War and the post-war period (occupation damages) in the same way as if it had been caused by German State organs.
2. a) The value system of the Basic Law requires, particularly as regards the Social State principle (Article 20 (1) Basic Law), that the national community share in burdens arising out of a fate that has to be borne by the collectivity and only randomly affects a particular group of persons. There follows from this initially only the obligation of compensation within the State, the detailed shape of which is largely left up to the legislator. Only such statutory arrangements can establish specific compensation claims of individuals who have suffered damage.
b) Occupation damage is part of the great complex of war and war-induced burdens; the constitutional principles developed for settling these (cf. BVerfGE 15, 126 [140 ff.]; 23, 153 [176 f.]) apply here too.
3. a) It is not an infringement of either Article 14 or Article 3 (1) Basic Law for the Act on Indemnification of Occupation Damage (BSAG) to compensate material damage caused before the currency reform in a proportion different from 1 RM : 1 DM.
b) The demarcation of the cases where higher compensation is due for material damage than in the ratio of 10 RM : 1DM (paras.26 ff. BSAG) is based on social considerations to which the legislator is both entitled and obligated in the context of distribution of burdens within the State. This is also true of the gradation of compensation in accordance with the principle of social degression.
Order of the First Senate of 3 December 1969 - 1 BvR 624/56 -
in the proceedings on constitutional complaints A. et al.
a) against para.21 (3) and (4) of the Act on Indemnification of Occupation Damage of 1 December 1955 (BGBl. I p.734);
b) against the Decisions of the Office for Defence Burdens of Münster (Westphalia) of 20 May 1957 - 23/2 300 - (complainant no.1); of 11 June 1957 - 23/2 1020 - (complainant no.2); of 28 March 1957 - 23/2 (Im) 451 - (complainant no.3); of 8 November 1956 - 23/2 (Im) 387 - (complainant no. 4; of 20 August 1956 -23/2/Abg.Ges. 941 - and 20 March 1957 - 23/2 (Im) 941 - (complainant no.5); of 2 November 1956 - 23/2 (Im) 368 - (complainant no.6).
The constitutional complaints are rejected.
EXTRACT FROM GROUNDS:
In the years from 1945 to 1947 the complainants suffered damage as a consequence of the occupation of German territory by the Allied Forces. They feel that their fundamental rights have been infringed since they did not receive full compensation in value for this under the Act on Indemnification of Occupation Damage of 1 December 1955 - BGBl. p.734 (hereinafter Indemnification Act or BSAG), because this law, for damage caused before the currency reform of 21 June 1948, provides for compensation of in principle only one-tenth of the amount of damage established, though in some cases more but at most 80 % of the amount of damage.
The occupation of German territory at the end of the war and in the post-war period by foreign troops inevitably considerably restricted the inhabitants in their private legal sphere, leading in many cases to loss of assets or even damage to the person. The provisions of occupation law and of German law enacted for the settlement of such damage regularly distinguished between requisitions and personal and material damage outside requisition law. Among requisitions (occupation contributions) are the utility, material and labour contributions to be furnished to the occupying powers for their purposes on due request. Personal and material damage outside requisitions are on the terminology that has become customarily termed occupation damage in the narrower sense or simply occupation damage; this is the sense in which the term is used below. This group of damage includes on the one hand damage of a criminal nature directly caused by measures of the occupying powers and persons associated with them, and on the other so-called utilization damage, that is, damage to things duly claimed by the occupying powers for utilization or use, particularly real property and its stock. In the case of utilization damage it is in principle irrelevant whether it is caused by criminal acts or in another manner; only the normal use of things claimed does not as a rule come under it, as representing an occupation contribution indemnified by the utilization compensation.
1. As regards compensation for occupation damage there were initially only divergent provisions of the individual occupying powers, mostly in the form of internal instructions. On the basis of the reservation in Point 2 e of the Occupation Statute in the version of 12 May 1949 (ABlAHK p.13), the Council of the Allied High Commission for the British, American and French occupation zones enacted Act no.47 on Compensation for Occupation Damage of 8 February 1951 (ABlAHK p.767) - hereinafter AHC Act no.47 - and implementing Orders no.1 and no.2 thereunder, of 6 February and 6 March 1952 (ABlAHK p.1498 and 1548). In Article 1 of the Act "the occupying authorities assent to payment of compensation in German marks for occupation damage", specifically "pursuant to the following provisions" (cf. Articles 2 - 4, Article 5 (1), Article 6 (1) (a) of the Act and Article 3 of Implementing Order no.1). For damage for the period before the currency reform the provisions are:
2. Compensation for loss or damage by acts or omissions that took place before 21 June 1948 is to be determined in accordance with the value at the time of the act or omission in Reichsmarks and is
a) where death or bodily injury with lasting consequences has been caused, to be paid at the rate of one German mark per Reichsmark and
b) in the case of other loss or damage to be converted at a ratio of one German mark to every ten Reichsmarks.
In supplementation of the occupation law provisions, the Federal Minister of Finance, by administrative decrees of 19 March and 28 Junly 1954 (II C-BL 1514 - 3/54 and 16/54) provided for the granting of hardship compensation in the case of damage to household effects and objects of personal use.
The compensation was financed exclusively from the German side, partly from funds from the occupation costs and agency expenses budget which was at the disposal of the occupying powers and partly from general Federal funds.
In the set of agreements concluded with the United States, Briatin and France to replace the occupation regime, the Federal Republic of Germany took over responsibility for settling occupation damage. The ninth part of the Convention to settle questions arising out of war and occupation of 26 May 1952 (BGBl. 1955 II p.405 - the so-called Transference Convention) provides as follows:
(1) The provisions of this Article shall apply until the entry into force of a peace settlement with Germany.
(2) The Federal Republic recognizes that it or the persons subject to its rule will assert no claims of any kind against the three powers or any one of them or against organizations or persons that acted in their name or on their authority, for actions or omissions that the three powers or one of them or organizations or persons acting in their name or on their authority perpetrated between 5 June 1945 and the entry into force of this Convention with reference to Germany, German nationals, German property or in Germany.
(3) The Federal Republic shall assume responsibility for deciding as to claims for compensation for occupation damage arising between 1 August 1945 and the entry into force of this Convention for which, pursuant to the provisions of Act no.47 of the Allied High Commission (as amended by Act no.79 of the Allied High Commission) compensation is due, and for meeting these claims. The Federal Republic shall determine which further claims mentioned in Clause 2 of this Article and arising on Federal territory it is appropriate to meet and shall take the measures necessary to define and satisfy these claims.
2. To implement this Treaty provision, the Indemnification Act was adopted, which when it came into force (4 December 1955) replaced the relevant provisions of occupation law (paras. 61, 62 BSAG). It concerns occupation damage that arose in the period from 1 August 1945 to 5 May 1955, noon (end of the occupation regime). Damage caused after that time by forces stationed in the Federal Republic of the now allied powers (damage by stationed forces) does not come under this. For occupation damage the Act provides, under conditions regulated in it in more detail, for compensation to which there is a legal entitlement. The claim to compensation for utilization damage arises from para.5 BSAG. Additionally, the Federal Minister for Finance may grant compensation for hardship and in certain circumstances Federal loans to reinstate or reacquire damaged property (paras. 40, 41 BSAG). Compensation is granted only on application (para.42 BSAG); the decisions of the Defence Burdens Administration - formerly Occupation Burdens Administration - competent for implementation, can be challenged only by complaint and by recourse to administrative tribunals (paras.49, 52 BSAG)... (there follows an exhaustive description of the compensation arrangements in detail).
On 1 April 1945 the British occupying power seized houses and flats belonging to the complainants or their legal predecessors, to set up a camp for so-called displaced persons. The houses and flats were released again in May 1947. In connection with the seizure, furniture and personal effects of the complainants or of their legal predecessors were lost; further, there was damage to the houses and premises. For the damage to furniture, the District Ascertainment Office of Münster administrative district issued the damaged persons in 1947-8 with certificates as to the ascertainment of the compensation. The amount of compensation was entirely or largely paid in Reichsmarks, in most cases only shortly before the currency reform, and the remainder after the currency reform, converted at the rate of 10 RM : 1 DM. For the damage to objects of personal use, the damaged persons filed applications for additional compensation with the occupation authorities, which were however rejected for failure to observe the time limit of Article 8 of AHC Act no.47. However, for this damage and - except for complainant no.3 - also for the hardship brought about by the currency conversion they secured compensation for hardship in accordance with the above-mentioned administrative orders of the Federal Minister of Finance, by order of the Occupation Costs Office. For the damage to houses and premises, some damaged persons were also granted contributions from the so-called Housing Emergency Programme.
Following entry into force of the Indemnification Act, the Office for Defence Burdens in Münster re-established compensation on the basis of the provisions of the Act, applying paras. 21 and 26 ff. BSAG; the authority in every case found the prerequisites for additional compensation to be present. It took as a basis the compensation amount remaining following deduction of the payments made before the currency reform; according to the amount of damage, it calculated compensation pursuant to para. 30 BSAG of between 60 and 80 % of this amount and established the compensation still to be paid following deduction of the compensation and hardship compensation payments made after the currency reform. In detail the following decisions were handed down to the complainants:
1. Complainant no.1:
Establishment of compensation of 1,065 DM
2. Complainant no.2:
Establishment of compensation of 403 DM
3. Complainant no.3:
Establishment of compensation of 1,765 DM
4. Complainant no.4:
Establishment of compensation of 580 DM
5. Complainant no. 5:
Establishment of compensation of 847 DM
6. Complainant no. 6:
Establishment of compensation of 474 DM
With their constitutional complaints, the complainants object
a) directly to para. 21 (3) and (4) BSAG because according to these occupation damage to things arising before the currency reform is not to be fully compensated,
b) and simultaneously against the administrative decisions based on these provisions.
The complainants feel that their fundamental rights under Article 14 and Article 3 (1) Basic Law have been infringed, justifying this in detail ... (a detailed justification follows).
For the Federal Government, the Federal Minister of Finance made a statement. He regarded the constitutional complaint as being inadmissible, or at any rate as unjustified... (arguments).
The object of all the constitutional complaints is the question whether the regulation in the Indemnification Act on compensation of material damage that arose before the currency reform is compatible with the property guarantee and the general principle of equality (Article 14 and Article 3 (1) Basic Law). The complainants attack this regulation both directly and indirectly, insofar as they object to particular administrative Acts because they are based on regulations which in their view are unconstitutional.
At any rate the constitutional complaints of complainants nos. 4 and 6 are admissible, insofar as they concern the administrative decisions enacted against these complainants... (justification).
The constitutional complaints of complainants nos. 4 and 6 against the administrative decisions are unjustified. The statutory regulation these administrative decisions were based on does not infringe the complainants' constitutional rights under Articles 3 (1) and 14 Basic Law.
The Indemnification Act neither denied the complainants entitlement to full restitution of value for material damage suffered that would have been due them without the statutory arrangement nor did it curtail such entitlements. The Federal Republic was not obliged to take responsibility fully for such damage in the same way as if it had been caused by German State organs or government officials; nor has it taken over any corresponding restitution obligation of the tortfeasor. Insofar as community of fate of all citizens and social justice require that burdens arising out of a fate to be borne by the collectivity and only randomly affecting a particular group of persons should in part be borne by others, having regard to the special situation brought about by the total collapse of the German Reich, it cannot be deduced from this that there is a requirement that the damage be devolved on the newly established State; all that is justified is the demand for equalization of burdens within the State, for the shaping of which the legislator is to be allowed very broad leeway, under the given circumstances. Occupation damage is part of the whole range of war and war-induced burdens that the National Socialist regime left the bearer of the new constitutional order after its catastrophic end. The regulation of any partial area had to have regard to the vast total extent of these burdens and at the same time take account of the tasks arising from the reconstruction of political and economic life, as well as the limits to the Federal Republic's financial capacity. The legislator had also to take the legal and factual situation created by the occupation powers as a basis and give social viewpoints preference. Accordingly, the statutory regulation of material damage arising before the currency reform cannot on the whole be complained of constitutionally, despite undeniable hardship.
It is not an infringement of Article 14 Basic Law for the Indemnification Act not to compensate material damage caused before the currency reform at a ratio of 1 RM to 1 DM but in principle only to provide for compensation in a ratio of 10 RM : 1 DM, and under the special provisions of paras. 26 ff. BSAG a socially graded higher compensation of at most 80 % of the amount of damage.
The infringement of this fundamental-rights provision asserted by the complainants presupposes that the Act had deprived those damaged under the occupation of an asset position or had curtailed it, that this interference affected protection of an asset value eligible for the protection of Article 14 Basic Law and is to be regarded as expropriation and that any such expropriation did not meet the requirements of Article 14 (3) Basic Law. In the present case even the first precondition is absent, so that no further discussion is required as to whether the other preconditions might be met. For before enactment of the law those damaged by the occupation had no legal entitlement to full value restitution against the Federal Republic, which could have been curtailed by the regulation challenged.
1. Firstly, the damage suffered by the complainants has not itself established any such obligation on the Federal Republic.
a) On this the complainants are of the opinion that the destruction or damaging of their property allowed, besides claims against the occupying power, claims also arising out of expropriation, intrusions similar to expropriation, denial or breach of official duty directly against the German public authority. This could already be opposed by the fact that the events causing damage occurred, in the underlying cases here, before the setting up of the Federal Republic, so that at most the obligation of another bearer of German State power (the German Reich, the Länder) and its transfer to the Federal Republic could come into consideration. But this is not the point, because the events that caused the damage did not establish entitlements to compensation against the German public power on any of the legal viewpoints mentioned. Admittedly, those affected by utilization damage had a particular sacrifice imposed on them by comparison with other citizens; but claims based on this presume that the special sacrifice was based on intervention by a German agency. But the occupation damage was caused exclusively by acts or omissions of the Allied Forces, including the persons attached to them. These were not subject to the German legal order; instead, what was decisive for them was international law and the occupation law laid down by the Allies, which overlay German law. The German public authorities can in principle not be made responsible for their intrusions (cf. BVerfGE 3, 4 [11 f.]; BGHZ 12, 52 [56 ff.]; BGH, NJW 1970, 191 ; BVerfGE 8, 4 [6,8]).
An obligation on the German side to take responsibility for these intrusions cannot be founded either on the notion that the occupation of Germany did not only have the nature of an occupatio bellica, but also that of a political intervention, and the Allies were besides their powers in international law as occupation powers at the same time exercising German State power as trustees (on this cf. Stoedter, Deutschlands Rechtslage, 1948, p.185 ff.; Schmoller-Maier-Tobler, Handbuch des Besatzungsrechts, 1957, para.7, p. 1 ff.). For such exercise in trusteeship of the powers of the occupied State attributable to the latter itself could come into consideration at most insofar as it concerned the "normal" exercise of State power in the exclusive interest of the State it represented and for its purposes, for instance in measures to secure the feeding and accommodation of the population (cf. BGH, NJW 1970, 191  and the decisions cited therein). The seizure of houses and flats for purposes of the Allied Forces and damage caused thereby fall however within the province of the sovereign powers due the Allies as occupying powers in virtue of occupatio bellica under international law (cf. also BVerfGE 6, 290  for other Allied interventions by force).
Nor can any direct responsibility of the German public authorities for the damage be derived from the fact that, for the utilization of premises and for determining and paying compensation pursuant to AHC Act no.47, in part German offices were involved. In every case the German authorities acted only as executive organs for the occupying powers; their involvement did not alter the nature of the process as a matter of occupation law.
Finally, the actions causing the damage cannot be attributed to the German State power as its own under international law either. There is no legal principle of international law according to which the occupied State is, irrespective of the legal position within the country, obliged to take responsibility for the damages caused to inhabitants by occupation of its territory (cf. Scheuner, DÖV 1957, p.681 ; BGH, NJW 1970, p.191 ).
Nothing any different results from Article 25 Basic Law and its predecessor, Article 4 of the Weimar Constitution, either. Erler-Kruse (Rechtsgutachten des Instituts für Völkerrecht an der Universität Göttingen, herausgegeben vom Bund der Landesverbände der Besatzungsverdrängten und Besatzungsgeschädigten der US-Zone, Seeheim a.d. Bergstrasse, p. 15 ff.) and Laun (Gutachten über die Berechtigung von Vergütungsansprüchen der Besatzungsgeschädigten gegen die Bundesrepublik Deutschland, herausgegeben vom Bund der Landesverbände der Besatzungsverdrängten und Besatzungsgeschädigten der US-Zone, Heidelberg-Rohrbach, p.16 ff.) present the thesis that in the case of damage in the international sphere, which on a general rule of international law, here the prescriptions of The Hague Ordinances on Land Warfare, and therefore pursuant to Article 25 Basic Law also in virtue of domestic law, must in principle be put up with, a claim for restitution can be derived from the provisions of international law mentioned, taken together with Article 14 (3) Basic Law. This view is not correct. Article 25 Basic Law equips the general rules of international law with validity in the Federal Republic, with precedence over German laws, and gives the inhabitants of Federal territory the right to appeal to this domestic validity of the rules. But it does not change anything in the content of the rules of international law or of any claims that may derive from it, in particular not their addressees (cf. BVerfGE 18, 441 ). Insofar as the provisions of international law establish claims for restitution of damage resulting in connection with the accommodation of the occupation army, these are directed exclusively against the occupying power (on this cf. C I 3 (a) below).
b) The complainants adduce as a further legal basis for a direct claim to restitution the provisions of the German Civil Code (BGB) on unjustified enrichment and uncommissioned conduct of business. In their view the taking over of the houses and flats by private persons disencumbered the German State, obliged in international law to accommodate the occupation troops, and thereby enriched it; at the same time the persons concerned had attended to business of the German State organs.
However, any claim under direct or analogous application of paras.812 ff BGB already fails because the actions causing damage had the consequence merely of loss of assets for the property owners concerned, but did not bring about any enrichment, that is improvement in asset position, on the German side. Similarly, claims based on uncommissioned conduct of business fail simply because mere toleration of an interference cannot be seen as "conduct of business". Additionally, neither toleration of the utilization nor toleration of the damage was a "business" of the German public power, but processes falling within the province of the occupying power.
2. Direct claims of those damaged under occupation for full restitution of value for material damage suffered cannot be based either on the ground that the Federal Republic, in Article 3 (3), first sentence, of the Ninth Part of the Transference Convention, took over responsibility for settling the occupation damage specified there in more detail. It may be left out of account here whether out of this Treaty provision, in virtue of a "third-party effect", individual claims of those damaged under occupation can be derived or whether it merely created rights and duties among the Contracting States. For the obligation on the Federal Republic relates, according to the clear tenor of the provision, apart from the time limitation, not relevant here, only to the indemnifications provided for in AHC Act no.47. Additionally, Clause 3, second sentence, of this Treaty Article explcitly empowers the Federal Republic to "determine which other of the claims mentioned in Clause 2 of this Article that have arisen on Federal territory [for occupation damage etc.] it is appropriate to meet". The challenged provision of the Indemnification Act at any rate suffices for the treaty agreement, since the extent of indemnification is not less than what was provided under occupation law. AHC Act no.47 provided in Article 6 (2) (b) for indemnification only in the ratio of 10 RM : 1 DM in the case of material damage from the period before the currency reform, just like para.21 (4) BSAG, and like Article 1 (2) (2), second sentence, of Implementing Order no.1 under AHC Act no.47. By contrast the Indemnification Act has considerably improved the position of those damaged through the additional indemnifications pursuant to paras. 24, 26 ff. Accordingly, the question at issue, whether AHC Act no.47 granted the individual person suffering damage a legal entitlement against the occupying power, can be left open here.
3. Finally, it is erroneous for the complainants to seek to derive from the Federal Republic's conduct in concluding the Transference Convention, particularly from the renunciation of all claims for occupation damages declared in Article 3 (2) of the Ninth Part of the Convention, an obligation on the Federal Republic now to indemnify them by paying full-value restitution of the extinguished claims against the occupying powers. At first sight, there might be doubt whether the legal bases of public liability, expropriation and denial adduced by the complainants for such a claim, but developed with regard to processes within the State, can without further ado be applied to the action of external power in concluding international treaties. But this does not require any decision, since the renunciation declared by the Federal Republic, as far as it extends to individual claims of the persons under its rule, has not deprived them of any legal positions of asset value. When the Transference Convention was concluded the injured parties were at most entitled to enforceable claims to indemnification against the Allies under AHC Act no.47; but these claims have as explained been taken over by the Federal Republic and account has been fully taken of them through enactment of the Indemnification Act.
a) In international law the Fourth Hague Convention on the Laws and Usages of Land Warfare of 18 October 1907 (RGBl. 1910 p.107) and its Annex, The Hague Land Warfare Ordinance (HLWO) might come into consideration as a basis for an obligation on the occupying powers to indemnify. Article 52 HLWO provides, for the case of military occupation:
"Payments in kind and services may be demanded of the inhabitants only for the needs of the occupying army..."
"Contributions in kind are as far as possible to be paid for in cash. Otherwise acknowledgements of receipt are to be issued for them; payment of the sums owed should be effected as soon as possible."
Article 3 of the Fourth Hague Convention is as follows:
"A belligerent that contravenes the provisions of the Ordinance mentioned [meaning the HLWO] is in that event to be obliged to pay compensation for damages. It shall be responsible for all actions perpetrated by persons belonging to its armed forces".
Article 3 of the Fourth Hague Convention applies to all damage contrary to international law to the objects of legal protection mentioned in Article 46 HLWO, among them property, by those attached to the war-waging power. As to application of the provisions mentioned to the utilization damages at issue here there are a number of differences of opinion in principle and in detail, for instance as to whether they applied without further ado to the occupation of Germany (on this see Hedwig Maier, Besatzungsregime nach dem zweiten Weltkrieg, in Strupp-Schlochauer, Wörterbuch des Völkerrechts, vol.1, 1960, p.190 ff.; Zinn-Stein, Verfassung des Landes Hessen, Ausgabe 1963, Intro. p.54 ff.) and whether in line with prevailing doctrine (cf. Partsch, Individuum im Völkerrecht, in Strupp-Schlochauer, op.cit., vol. 2, 1961 p. 12 ff.) they establish only claims from State to State or also individual claims of the persons affected, as the complainants think. But these questions are not relevant to decision of the constitutional complaints.
Firstly, the starting point is that the Allies at least de facto recognized their obligation to compensate for occupation damage through enactment of AHC Act no.47 and its predecessors, and sought to specify this through these regulations. Accordingly, insofar as the damage was settled before the currency reform, assessment of the extent of indemnification granted in principle corresponded, even in the complainants' view, to the provisions of international law: the value of damage was set in the then valid currency, in Reichsmarks, and indemnification paid in that amount.
The complainants feel however that for settlements of damage after the currency reform the conversion arrangements arrived at in AHC Act no.47 have manifestly infringed the duty of the occupying powers under international law mentioned to make full restitution of the damage caused. At the same time, they are held to contravene general principles of international law, in particular the principle of bona fides and of protection of private property. Accordingly, despite the settlement pursuant to occupation law, there existed a further claim in international law against the occupying powers for supplementation of the indemnification, which the Federal Republic ought to have respected in concluding the Transference Convention.
This can in the first place be opposed by pointing out that the occupation-law conversion provision complained of in the Allies' eyes constituted an admissible arrangement necessitated by the general currency reform. Against the proposals from the German side pressing for compensation for material damage too in a ratio of 1 : 1, the Allied High Commission declared that the conversion in the ratio of 10 RM : 1 DM provided for in AHC Act no.47
"is entirely compatible with the principles and underlying ideas of the laws on the currency conversion, and that any kind of procedure that was not in line with these principles and ideas would have severe repercussions which would worsen the Federal Republic's financial difficulties"
(cited in BTDrucks. I/3017).
Similarly, a letter from the United States High Commissioner of 24 July 1953 to the League of Länder Associations of persons displaced or damaged under occupation in the US zone (reprinted in Laun, op.cit. p.4 f.):
"The legal nature of the indemnifications for occupation damage is determined not by German law but by international law. In enacting the provision of which you complain, the Allied High Commission took it that according to international law indemnifications for occupation damage are to be set in money terms, so that the commitments in question here were according to the regulations applying before the entry into force of the Currency Act to be met in Reichsmarks (para.13 (3) of the Conversion Act). In our view the incorrectness of this legal view has not been shown".
The general currency reform of 1948 can on the whole certainly not be regarded as an intrusion of the occupying powers, contrary to international law. It was intended, as a means of national monetary policy, to restore a sensible relationship between quantity of money and circulation of money on the one hand and supply of goods on the other, thereby serving the goal of creating the bases for economic reconstruction and sound State finances (cf. BVerfGE 23, 153 [176 ff.]). The Allies'currency and conversion legislation was therefore in principle in harmony with Article 43 HLWO, according to which the occupying power may take measures to "restore and maintain public order and public life [in the occupied territory]".
The conversion Acts contain no special provisions for indemnification for occupation damage. According to the general provisions for pecuniary claims existing at the time of the currency reform (cf. paras. 13, 16 of the Conversion Act of 20 June 1948 - WiGBl. Annex 5 p.13) all claims under the law of obligations directed from the outset towards payment of a pecuniary amount were converted in the ratio of 10 RM : 1 DM. The German literature and case law has developed from this the systematic distinction between "claims for pecuniary sums" and "claims for monetary value", the latter claims being understood as those to be paid in money but not at an amount set as a particular number of currency units. Claims for compensation of damages are regularly counted among claims for monetary value if they have not already been "stabilized" through conversion to a claim for pecuniary amount or for other reasons moved to payment of a pecuniary amount (cf. Harmening-Duden, Die Währungsgesetze, Kommentar zum Umstellungsgesetz, 1949, para.13 Notes 13 and 16). The treatment of indemnification claims based on German law arising out of expropriation or intrusions resembling expropriation was initially disputed. It was only with the decision of the Grand Senate for Civil Matters of the Federal High Court of 16 November 1953 that it was clarified that such claims were not as claims for monetary value subject to the conversion, since in the Court's view meeting them only in the ratio of 10 RM : 1 DM would intolerably infringe the principle of distributive justice (BGHZ 11, 156 ; see also BGHZ 7, 96 ; with a different view, BGHZ 6, 91 [96 f.]).
If the Allies by contrast took a different view and de iure and de facto treated the indemnifications for occupation damage, in German law to a certain extent comparable with the indemnification claims mentioned, as claims for pecuniary amounts, this cannot at any rate be seen as contravention of fundamental principles of international law. The reorganization of the currency had necessarily also to cover pecuniary claims and claims in monetary value against the occupying powers themselves; the latter were also empowered to supplement the general provisions through a special regulation - taken, moreover, before the Federal High Court decision mentioned. As the difference of opinion over the to some extent comparable indemnification entitlements in German law shows, it cannot be said that the mere nature of the matter to be regulated required an exception from the general conversion, especially since the very summary and rather concretely oriented conversion laws of the Allies themselves did not distinguish between claims for pecuniary amounts and claims in monetary value. The occupying powers' decision was, additionally, possibly influenced by legal conceptions from their own national law (cf. Pabst, Gesetztes und gesprochenes Recht in Widerstreit mit höheren Rechtsgrundsätzen bei der währungsmässigen Behandlung von Besatzungsschäden und ähnlichen Schäden, 1952, p.7 ff.). It might also have counted that a large part of the damage that had arisen before the currency reform had already been indemnified in Reichsmarks and that a further part of the indemnification had already been set in Reichsmarks and to that extent "stabilized" into a claim for a pecuniary amount. It is however important above all that the special conversion regulation which indubitably in many cases brought considerable hardship with it did not serve, for instance, a fiscal interest of the Allies' own, but in their view benefited German finances, because the means for the indemnifications were in any case to be raised by the Federal Republic.
All these circumstances speak in favour of the notion that the conversion arrangement for material damage under occupation law not only corresponded in principle with the general principles of international law, but, having regard to Article 43 HLWO, was also in harmony with the specific provisions to protect private property on occupation of foreign territory.
b) Even if one did not wish to recognize this, it nevertheless follows from the facts presented that even before the renunciation declaration in the Transference Convention there was no prospect of asserting any further-reaching indemnification claims against the occupying powers, irrespective of whether they were due to individual persons injured by the occupation or could be asserted only by the Federal Republic. The repeated approaches by the Federal Government, the Bundestag, the interest associations and other agencies had remained without success. The Allies had explicitly rejected indemnification going beyond the regulations of AHC Act no.47; they were still less prepared to provide any funds of their own for this. According to the de facto political situation when the Treaty was concluded, the Federal Republic was, moreover, facing the victor powers as a conquered, subjected State. It was to regain its sovereignty only through the set of treaties of which the Transference Convention formed an essential component, and along with it the status of a contracting partner on an equal footing. There was an overwhelming interest of the German national community in arriving at the treaties, particularly in replacing the occupation regime and freeing the German legislator from the restrictions of occupation law. It is clear, however, that the Allies saw the renunciation declaration as an essential precondition for ending occupation rule. In these circumstances the German State organs cannot be reproached for accepting renunciation of claims that might exist but could not be asserted in practice, in order by concluding the set of treaties as a whole to reach a legal position that was considerably "closer to the Basic Law" than the starting position (cf. BVerfGE 4, 157 [168 ff.]). But there cannot be any notion either that this renunciation imposed on those injured by the operation a special sacrifice in the general interest, since their position in relation to the occupation powers was at least de facto not worsened thereby. Moreover, domestically the conclusion of the Treaty benefited them: only through it did the way towards a German statutory regulation become open, which for the whole range of people suffering damage from the occupation meant considerable improvements over occupation-law arrangements and also made possible to some extent additional benefits for material damage that had arisen before the currency reform, which would not have been granted had the occupation regime continued.
4. Altogether, then, the occupation-damaged had before enactment of the Indemnification Act no claims against the Federal Republic for full-value restitution for material damage caused before the currency reform. Instead, direct claims to indemnification against the Federal Republic for such damage were first established with the Indemnification Act, at any rate as regards payments going beyond the indemnification under AHC Act no.47. This alone means that there was no infringement of Article 14 Basic Law.
1. This admittedly does not mean that it was within the discretion of the German legislator whether or not to adopt any such regulation, or that its content could be shaped entirely freely. The obligation to enact the regulation followed from the treaty agreement in Article 3 (3) of the Ninth Part of the Transference Convention; it could, however, additionally be justified on general legal ideas. The value system of the Basic Law, which sets the free human being developing in the community at the centre of the State order, requires, particularly having regard to the principle of the social State expressed in Article 20 (1) Basic Law, that the national community as a rule share burdens arising from a fate to be borne by the generality, especially through intrusions from outside, and more or less randomly affecting only a few citizens or particular groups. This does not mean any automatic devolvement of such burdens onto the State, with the effect that the latter would now be directly bound to make full compensation to those involved; instead, all that can follow from the legal principles mentioned is initially only the obligation to equalize burdens, to arrive at a balancing out of burdens within the nation in accordance with statutory arrangements. It is only such statutory arrangements that can establish specific claims to compensation by individuals suffering damage (cf. BVerfGE 11, 50 ; see also BVerfGE 17, 210 ; 19, 354 ). What form such compensation is to take depends on the circumstances in each case, particularly on the nature and extent of the special burden, and on the extent to which involvement of the generality is required by social justice and seems defensible in the general interest. Assessment of these factors is largely left up to the legislator.
2. For the arrangement at issue here, it is primarily of importance that the compensation within the nation for occupation damage is part of the general liquidation of war damage and war-induced damage which the Federal Republic found facing it when it was set up as a legacy of National Socialist rule. The complainants would like to deny this, because their occupation damage arose only a considerable time after the end of military combat. But this objection does not hold water. It is of course humanly understandable for a citizen to perceive damage to his property through direct military action, such as bombing, differently from intrusion by occupying troups, taking place several years after the end of military conflict and the restoration of orderly relationships. Nevertheless, the occupation damage was in direct connection with the war and the political and military defeat of the German Reich. The occupation of German territory came about initially in the course of direct combat action; it served the purpose of ending the war militarily, preventing continuation or resumption of hostilities by the German side and ensuring that the National Socialist regime was replaced by a new State order guaranteeing peaceful co-existence of the German people with the other European peoples.
Damage arising in connection with the occupation thus belongs among the great complex of war and war-induced damage (cf. BVerwGE 8, 4 [8 f.]; cf. also BGHZ 12, 52 [60 f.]), embracing inter alia care of war victims, equalization of burdens on displaced persons and those suffering material damage from the war, and indemnification of the repatriated. The enormous volume of this damage, and the economic and financial situation brought about by the complete collapse of the German Reich, made full compensation for damage a priori impossible. The legal principles that the Federal Constitutional Court has developed for meeting already legally established obligations, namely the debts of the German Reich, by the Federal Republic (cf. BVferfGE 15, 126 [140 ff.]; 19, 150 [163 ff.]; 23, 153 [166, 188]), must mutatis mutandis properly apply to the equalization of burdens within the nation at issue here. According to them, the Federal legislator was bound only to take account of damage within the limits of the possible, that is, to the extent that the necessary consolidation of the State and the reconstruction of economic, social and private life allowed a financial burden. The legislator had the duty and the necessity in individual arrangements to take account on the one hand of the total volume of war and war-induced damage and the other obligations caused by the National Socialist regime, particularly for reparations, and on the other to pay heed to carrying out the new tasks resulting from the reconstruction of State and economy; the decision as to priorities here was in principle within its discretion (cf. BVerfGE 15, 126 [141 f.]). No special rights can apply in this connection to occupation damage. The view that having regard to Article 14 (3) Basic Law damage to property or other material values ought under all circumstances to be compensated fully would lead to the result, incompatible with the value system of the Basic Law, that in view of the not unlimited funds available, compensation for such measurable material damage should take primacy over compensation for non-measurable non-material damage (to life, health, liberty etc.).
It therefore does not follow either from the general mandate to equalize burdens within the nation that there is an obligation to compensate for all occupation damage to the full amount. The legislator cannot be reproached for having provided for compensation for only particular types of damage and having asssessed their extent differently. All that has to be verified is whether the selection and differentiation made can stand up to the general principle of equality (Article 3(1) Basic Law) (cf. BVerfGE 15, 126 ; 23, 153 ).
The impugned regulation of the Indemnification Act does not contravene Article 3 (1) Basic Law.
If it follows in general terms from the catastrophic situation following the collapse of the German Reich described that the legislator must be allowed very broad discretion in shaping the arrangements for war and war-induced burdens (cf. BVerfGE 15, 167 ; 23, 153 ), then it is also true for the form, in nature and amount, of the entitlements to compensation or indemnification granted in the parts of the settlement. The war and its consequences led to material and non-material damage in millions of diverse cases. It is not possible to find legal arrangements for this whole area that in the upshot place every citizen in an equal position and justly balance out the blows of fortune in every individual case. It must instead suffice for the legal arrangement to correspond in broad lines with the precept of justice. In particular, the legislator was entitled, having regard to the size of the "State bankruptcy" to limit compensation for damage to property or assets to certain extreme consequences in order to guarantee or restore the absolutely necessary basis for the economic existence of those affected; in other words, it was entitled to give social considerations primacy.
1. The difference in principle between damage arising before and after the currency reform does not contravene Article 3 (1) Basic Law.
a) In all monetary or pecuniary claims the origin of which lies before the currency reform the question of conversion arises. This is true also for indemnification claims granted by the State after the currency reform for a damaging event that occurred before that date. It certainly appears to those affected a great hardship that material damage caused after the currency reform is compensated at the full value of the damage, while for similar damage caused before the currency reform only a fraction of the value of the damage in German marks is allowed. On the other hand, it is not justified to indemnify material damage arising before the currency reform but more or less randomly settled only after that date higher, while those whose damage was settled earlier have to make do with the payment in Reichsmarks and its devaluation through the currency reform, insofar as its employment at stable value was not possible because of the then economic situation. The hardships arising are therefore at bottom not different from those arising otherwise too from the typical currency losses consequent upon the crudely schematic nature of the conversion arrangement.
It need not be gone into whether the link with the appointed day for the currency reform, particularly the consequent relative favouring of damage arising later, would have been appropriate had the German legislator been able to settle occupation damage in the first instance in free discretion. The legislator had, however, as in other areas, forcibly to start from the measures of the occupying powers and their economic outcome (cf. BVerfGe 23, 153 ) and was also bound through the agreement in the Transference Convention to take into account the indemnification arrangements created by occupation law and practised for many years. According to these arrangements, most cases of damage from the period before the currency reform had already been settled - according to indications from the Federal Minister of Finance, some 150,000 cases by 5 August 1955 - with only a relatively small residue - according to the indications of the Federal Minister of Finance some 7000 cases - still unsettled. This circumstance alone could justify the German legislator in adopting in principle the conversion arrangement of AHC Act no.47. The legislator was not obliged to make subsequent full compensation for the consequences of measures by the occupying powers, even where these manifestly conflicted with the Basic Law (cf. BVerfGE 2, 181 ); indemnifying only the residual cases on a basis of 1 RM : 1 DM would however have been evidently unjust in relation to the cases already concluded. Equal treatment of all cases of damage from the period before the currency reform so as to indemnify even already settled cases behindhand in a ration of 1 RM : 1 DM, moreover, met with considerable financial reservations. On indications from the Federal Minister of Finance, the Federation had by 1960 made available 1.125 billion DM for indemnification of occupation damage since 1950 (the date when these burdens were taken up by the Länder), and some 808 million DM of that was out of the occupation-costs budget until the end of the occupation regime on 5 May 1955. Accordingly, it was at any rate not arbitrary for the competent German agencies to regard such a new settlement for already concluded cases for the purpose of full compensation as financially untenable.
This is not necessarily in contradiction with earlier German efforts vis-à-vis the Allies. For these steps were able primarily to aim at ensuring that the funds brought up by the German side but outside the disposal of the German constitutional organs in the occupation budget could as far as possible directly benefit the German population. In any case this is not the point; the decisive thing is instead that the German legislative organs, following assumption of responsibility, legitimately took financial viewpoints into account and that the decision on their basis was at any rate in the situation of the times not manifestly improper (cf. BVerfGE 3, 4 ).
Nor can the complainants appeal to the fact that the then assessment of the financial position proved in hindsight to have been too pessimistic and that the Federal Republic had in the meantime by its favourable economic development been put in a position to make higher compensation for damage for the period before the currency reform. Even were this true, there still does not follow a duty for retrospective change of the settlement which from the viewpoint of the time had not been improper. Any different view would lead to the intolerable outcome that the legislator would be compelled on every improvement in the financial situation to bring out all indemnification arrangements concluded in the past again; this would rule out any effective planning of State activity for the future. A restriction could come into consideration where damage of lasting effect directly affecting personal existence was involved, such as with war victims; but damage of this kind is not present in the case of material damage resulting from occupation.
b) Nor is it arbitrary for the provision for the operative date in respect of damage to things taken over for use by the occupying powers to relate pursuant to para.12 BSAG not to the date of damage but to that of release of the thing. It is in the nature of such damage that its precise date of occurrence can often not be determined, especially in the case of damage through prolonged use extended beyond the normal.
c) The question whether the Act bindingly orders damage settled after the currency reform to be regarded as remedied insofar as indemnification has been paid in Reichsmarks or whether a different interpretation might be possible involves the application of ordinary law, not subject to constitutional review. Constitutionally, even the first interpretation cannot be objected to, because it fits in with the legislator's general conception linked to the apponted day for the currency reform. Nor is it arbitrary for it to be supposed that typically payments before the currency reform will have been used to some extent to repair the damage, or at any rate could have been so used. To the extent that there were actual difficulties in the way of that, particularly the shortage of building materials and other economic goods, these were drawbacks brought about by the general economic position, affecting all those with only financial resources available equally.
d) Nor is it subject to constitutional review whether the Federal Minister of Finance has made proper use of his power to grant compensation for hardship, particularly whether the time limitation of the concessions in the circular of 21 February 1956 (cf. A I 2 above) was appropriate or too limited.
2. Since there were objectively understandable reasons why the legislator in principle took over the system of occupation law settlements including the special provisions on conversion, it is of no importance whether comparable claims for indemnification under German law were regarded by German practice and case law as pecuniary claims and therefore excepted from conversion at 10 RM : 1 DM (cf. C I 3 above). Moreover, both groups of claims show considerable differences, allowing differentiated treatment (cf. also BVerwGE 10, 290 [291 f.]; BGHZ 12, 52 [56 ff.]). Damage to private property in war and from occupation directly connected therewith can in general not be compared either qualitatively or quantitatively with the individual cases in which in peacetime under normal circumstances indemnification has to be paid for an intrusion by the authorities on the legal ground of expropriation, intrusion equivalent to expropriation or denial. Here too the most important point is that the occupation damage did not depend on intrusions by German agencies but on acts or omissions by the occupying powers and that they belong among war and war-induced damage.
3. Article 3 (1) Basic Law is not contravened either by the fact that the Act does not place all occupation damage arising before the currency reform on an equal footing, but compensates particular types of damage in full and treats some cases of material damage notably more favourably.
a) The privileging of personal damage (cf. para.21 (2), paras.15 - 20 BSAG) followed from the conception of occupation law, taken over by the German legislator on considerations that were not improper. It is, moreover, appropriate, because such damage, because of the nature of the intrusion and because of the often lasting effect, typically hits much harder than material damage (cf. also BVerfGE 15, 126 [150 under no.4b]).
b) The granting of increased or additional compensation for the cases of material damage mentioned in para.26 BSAG is based essentially on social considerations to which the legislator is both entitled and obliged in the context of the equalization of burdens within the nation (cf. C II above; see also BVerfGE 15, 126 [150 ff.]; 13, 248 ).
Insofar as damage to furniture and fittings, personal necessities or real property up to a particular individual value have been favoured (Para. 26 (1) and (4) BSAG), this concerns the ensuring of elementary needs of life. Those damaged were to be helped to find a replacement for lost or damaged goods they urgently needed to carry on their lives and households in a manner appropriate to their circumstances. The higher compensation for damage to fixtures and fittings of small businesses necessary to the business and for livestock and deadstock of family farms (para.26 (2) (3) BSAG) manifestly serves the object of guaranteeing in these cases the necessary economic basis of existence for the injured party and family. It was not improper for the legislator here to confine this help to smaller businesses, because in general these were regarded as more in need of protection than larger ones; in particular, there was no obligation to extend compensation to all cases of loss of a former basis for existenece. The demarcation of firms in detail based on this underlying idea (para.27 BSAG) is within the limits of legislative freedom.
The assessment of indemnification too is decisively determined by social viewpoints. Firstly, higher indemnification is granted only where and insofar as the damage has not yet been overcome economically; this depends on the income position of the sufferer, particularly the relationship between damage and annual income (para.26 taken together with paras. 28, 29 BSAG). Above all, however, the amount of indemnification is graded on the principle of so-called social degression, which also largely underlies indemnification under the Equalization of War Burdens Act (cf. para.246 LAG): that is, indemnification, while higher in absolute terms with rising amount of damage, is lower as a percentage (para. 30 BSAG). The underlying idea of this arrangement is that while less well-off sections of the population suffered only damage for a smaller amount in the mass of cases, they are as a rule relatively harder hit thereby than are the economically stronger by damage greater in absolute terms. At the same time, a certain minimum standard is to be guaranteed to as many as possible of the socially weaker who have suffered damage, while equal percentage indemnification (on a quota basis) would have largely used up the limited funds available on compensating for individual cases of higher damage. On the whole, then, the arrangement permissibly serves to bring about social justice (cf. BVerfGE 11, 50 ; 23, 288 ).
4. Those suffering occupation damage are, finally, not improperly put in a worse position than other groups of people who also secured compensation payments for war or war-induced damage.
a) The same considerations as justify the distinction in principle between cases of damage before and after the currency reform (see III 1 above) may also adequately justify the departures of this arrangement from the Equalization of War Burdens Act. Since in the case of occupation damage the legislator found an existing pre-formed body of law the application of which had created facts that could no longer be made reversible, it was impossible to adopt the basically different system of the Equalization of War Burdens Act. Moreover, the two arrangements differ so radically from each other that no real comparison is possible. It cannot be said that the Equalization of War Burdens Act invariably put those entitled in a better position that the Indemnification Act. Thus, for the main compensation the non-converted Reichsmark value is in principle taken as a basis, but this is to be restored in full in German marks only in the case of minor damage; with higher damage, the percentage of damage to be met falls, lying well below 10 % of the amount of damage for very great damage (para.246 LAG). For indemnification for household goods special provisions apply, which do not focus at all on the amount of damage but on annual income and assets (para.295 LAG). The differing systems in the two indemnification arrangements also justify the calculation of payments from the period before the currency reform in the Equalization of War Burdens Act only in the ratio of 10 RM : 1 DM (cf. para.249 (2), para.296 (1) LAG).
b) Nor does comparison with the arrangement under the General War Consequences Act of 5 November 1957 (BGBl. I p.1747 - hereinafter AKG) show any contravention of Article 3 (1) Basic Law. Certainly, para. 19 (2) (2) AKG makes claims against the German Reich and equivalent legal entities dischargeable where they are based on impairment or damage to property or other rights in things that took place after 31 July 1945. The general conversion provisions apply to these claims. They are accordingly, where the damage occurred before the currency reform, treated in accordance with the above-mentioned case law as pecuniary claims where not already consolidated into a claim for a monetary figure. But this arrangement presumes that in the cases indicated no direct or necessary connection with the collapse of the Reich any longer exists, but that there have been Acts by German authorities after a certain consolidation of German State power. The decisive point for the comparison to be drawn here is by contrast that para.19 (2) (2) AKG explicitly excludes cases where the impairment or damage "has resulted at the instance of the occupying powers". To these cases the general principle of extinguishment of claims pursuant to para.1 (1) AKG applies, so that those involved are dependent solely on indemnification under the Indemnification Act (cf. para.1 (2) AKG). The arrangements under the General War Consequences Act and under the Act on Indemnity for Occupation Damage thus come to the same outcome for comparable cases.D.
The constitutional complaints of complainants nos. 4 and 6 are therefore unjustified.
The constitutional complaints of complainants nos. 1, 2, 3 and 5 correspond verbatim in the object they impugn and the arguments they bring forward with the constitutional complaints dealt with above. Accordingly, they can have no success, for the same reasons.
Judges: Dr. Müller, Dr. Stein, Ritterspach, Dr. Haager, Rupp-v.Brünneck, Dr. Böhmer, Dr. Brox, Dr. Zeidler
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