In the shadow of the German elections

It had been a major day in terms of elections in Germany, going far beyond the elections to the German parliament, which marked the stepping down of Angela Merkel after 16 years as Chancellor. In Berlin there had been four votes, three for the different levels of the federate system, and one that is especially outside of Berlin perhaps not even known: the referendum concerning the expropriation of the Deutsche Wohnen& Co, i.e. major real estate groups. Looking at the figures, it had been a referendum about more than 200.000 flats. As the rbb-website knows:

Everyone who was also allowed to vote in the elections to the House of Representatives was allowed to vote in the referendum. That was around 2.47 million Berliners. The referendum is successful if the majority of those voting ticked “yes”.

And this is what happened: though the final results are not yet available, there had been a clear majority.The vote had not been about the expropriation as such, but about forcing the senate (the Parliament of Berlin) to elaborate a plan for the expropriation. In legal terms a more or less tricky thing, as the referendum referred to article 15, not 14 of the German Basic law – and the term expropriation is far from being clear (— at the end of this blog-post I paste a passage from a text I wrote in a completely different context, to be published soonish).

Here and now I only want to make the vote, or even the fact of the referendum known, and congratulate the initiators.What is going to happen? It is far from being clear; and that means that major work, including campaigning for accommodation as Human Right — this is standing at the bottom line as affordable housing does not exist, not least due to speculation – will be necessary. Not least, if we look at the results of the election. – Again, the rbb-website

Since the referendum “Expropriate Deutsche Wohnen & Co.” will also elect a new House of Representatives, the result of the vote is more or less a basis for consultation for the parties that will negotiate a coalition after the election – probably led by Franziska Giffey (SPD), who recently clearly opposed the referendum.

**********

Interesting aspects had been discussed in the early 1950s by German public and constitutional law. Helmut K.J. Ridder, in a prominent presentation during the annual conference of the public policy and international law academics, engaged in the topic expropriation and socialisation, aiming on specifying the terms.[1] Although his contribution had been very much of the employed by discussing specific issues of the German basic law and it it’s articles 14 and 15, it is of general interest. Summarising the highly differentiated analysis, we have to point on two fundamentally different forms: the one aims on specifying the use of property, without actually changing the legal title whereas the other changes the property title. However, this is only part of the difference. Another, and more important, aspect becomes clear when we follow Ridder’s reflection on the motives. The following quote marks the fundamental difference:

In the case of expropriation, the de-privatisation of property is also seen on the part of the expropriating state or the state granting the right of expropriation, as it were, with an expression of regret for the affected party, necessary for the sake of the administrative project, because a free contractual settlement was or would be rejected by the affected party or would be practically impossible to implement for other reasons.

In the case of social devaluation, the de-privatisation of the assets of the person effected is decisive, because the private character of the assets is thought to be currently or potentially harmful to society. Compared to this negative purpose of social devaluation, the positive aspects of a general nature (new impulses for the national economy, raising the standard of living of broad strata, etc.) are at most of secondary importance and those of a special nature (increasing the profitability in a certain branch of the economy, etc.) are almost insignificant … .[2]

In short, we see in the one case a measure, that intervenes in an individual case, thus making a specific ‘project’ possible; in the other case we are witnessing a kind of system change that is independent of an individual case, aiming on a change of a structural issue. It may be in one case, the intervention allowing to build a road, in the other case it would an intervention that allows to structurally influence the availability of accommodation. Another aspect is occasionally added, also in some way proposed by Ridder: the latter case is distinct from nationalisation, transferring ownership – responsibility for care and use – directly to citizens.

Finally, he suggests that subsequently the social devaluation – unlike expropriation is not a legal institution but a legal form, as such part of a fundamental change:

Cases, regulated by expropriation, can recur randomly. The state uses expropriation ad hoc. That is why its focus is also … on the individual act.

The social devaluation has a unique aim; it fulfils the mission of socialisation. The Basic Law expressly permits, as is appropriate to the matter, only the legislative path for social devaluation according to Article 15. And it is a condition that these laws are not only applied do not only cover a part of the enterprises of a certain branch of industry.[3]

As much as all this is crucially a matter of the economy, it is important to note, that with this the establishment of a mindset is going hand in hand. We can easily see that for instance health related behaviour, health services, and related issues are influenced by this mindset: the question would then be, if health is considered as something that is secured by society or that must be secured by individuals themselves; the question is also, if the individual has in case of transmittable diseases main responsibility towards others.

To conclude, we may say that appropriation should in its definition be linked to an elaborated understanding of appropriateness. Politically this can only be realised by developing a multilateral and global approach towards democracy, on the one hand referring to the fact that we are dealing with the global economy, on the other hand equally accepting the diversity when it comes to the mode of production.


[1] Ridder, Helmut, 1951: Enteignung und Sozialisierung; in: Ungeschriebenes Verfassungsrecht. Enteignung und Sozialisierung. Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu Göttingen am 18. und 19. Oktober 1951. Mit einem Auszug aus der Aussprache. With contributions by: Ernst von Hippel, Alfred Voigt, Hans P. Ipsen and Helmut K. Ridder Volume 10 in the series Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer; 124-147; https://doi.org/10.1515/9783110900750; 22.09.21

[2] Supra 14: 140

[3] Supra 14: 142

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