What is Article 14 constitutionally
Test scheme for Article 14 I 1 GG
Structural assistance in the examination of Article 14 I 1 GG
The following article tries to offer a short structure for the examination of Art. 14 I 1 GG in the exam. The focus is on the representation of the justification of the intervention, i.e. the barrier level.
A. Examination of Article 14 I 1 GG
I. Scope of protection
1. Personal protection area
2. Material scope of protection
Property is the property of the BGB according to § 903 BGB. Since the concept of property in Article 14 I 1 GG is defined by the legislature, here in the form of § 903 BGB, it is said that Article 14 GG is a "standardized" basic right.
Public law entitlements, such as pension payments, also belong to the objective area of protection.
The expectations of profit are not covered by Article 14 I 1 of the Basic Law, so Article 14 I of the Basic Law does not cover any chances of winning.
The encroachment on Article 14 I 1 GG can take place through sovereign action in the form of administrative acts, real actions, ordinances, statutes and formal laws.
III. Justification of the intervention (limit)
For the justification of a state interference in the material protection area of Article 14 I 1 GG, it depends on whether an interference exists in the form of an expropriation or in the form of a content and limitation determination.
1. Barrier to expropriation
The barrier to expropriation is based on Article 14 III GG. An expropriation according to Article 14 III GG is only justified if it takes place for the common good and was carried out by or on the basis of a law. The type and extent of the compensation for the owner concerned must be regulated by law.
2. Barrier for content and limit determination
The limit to a content and limitation determination is regulated in Art. 14 I 2, II GG. A content and limitation determination is permissible according to Article 14 I 2 GG if it is carried out by law and has a reference to the common good according to Article 14 II GG.
3. Theories of delimitation
Since Article 14 of the Basic Law, as just shown, sets different requirements for the admissibility of a restriction of its scope of protection, depending on whether it is an expropriation or a content and limitation determination, it remains questionable how it can be determined whether the respective one State intervention represents an expropriation or a content and limitation determination.
The gravity theory and the special sacrifice theory, which were previously represented for the delimitation, have led to uncertainties in the delimitation, as it was difficult to determine in individual cases whether the intervention was so serious for the person concerned that it was sufficient for expropriation. For this reason, the prevailing doctrine today follows the formal concept of expropriation, according to which expropriation always exists and only if it is designated as such. If there is any uncertainty, there is a content and limitation determination.
If it was determined during the check of the bar that it is an expropriation, there is no need to check the principle of proportionality at the level of the bar. This is because the property was completely confiscated by the state during the expropriation and the question of the milder measure can no longer be raised. If you will, the requirements which Article 14 III GG places on legal expropriation and which are to be checked at the barrier level are already an intended proportionality test.
If it was determined during the barriers check that the content and limits are determined, the proportionality check follows at this point. It should be noted here that at the level of “appropriateness”, i.e. when weighing legal interests, it can be determined in individual cases that the intervention is only appropriate if compensation is paid to the person concerned.
B. Comments on Article 14 of the Basic Law:
The focus in the examination of Article 14 I GG is on the examination of the barrier level. This is because Article 14 of the Basic Law allows both a complete deprivation of property in the form of expropriation as well as the content of the property. Depending on whether the state is expropriating or regulating the content of property, different requirements must be placed on the barrier. The demarcation between expropriation and determination of the content and limits is purely formal, i.e. if in the circumstances the regulation restricting property is not expressly referred to as expropriation, it is a content and limitation determination. A precise and possibly difficult check as to whether the state intervention in the facts actually concerns the content of the property can thus be dispensed with. After the demarcation between expropriation and determination of the content and limits has been made, it is clear whether the limit must be examined according to Article 14 I 2, II GG or Article 14 III GG.
If Article 14 of the Basic Law comes up in the exam, it is more likely in the form of a content and limitation determination so that the principle of proportionality can be examined.
C. General Notes
An in-depth crash course can be booked or coaching can take place in the revision course on the topic of this article and on fundamental rights as well as on all other public law topics.
Find out more about constitutional law: "Three-step theory - Art. 12 GG", "State liability law", "Religious freedom - slaughter", "Practical concordance", "Religious freedom - school prayer", "Suffrage principles", "Temporary injunction according to § 32 BVerfGG "," Sample structure constitutional complaint "
See also article on administrative law: "Immediate execution of a VA", "Withdrawal of administrative files", "Ancillary provisions according to § 36 VwVfG"
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