of the Second Senate of 14 May 1968 - 2 BvR 544/63 -
in the proceedings on the constitutional complaint of A. et al against the judgment of the Federal Fiscal Court of 26 April 1963 - II 237/58U -, the judgment of the Lower Saxon Fiscal Court of 25 April 1958 - VI (1b) 159/57 -, the ruling on objection by the Tax Office of the city of Brunswick of 15 February 1957 - list of appeals no. 42 VA - and the property-levy decision of the Tax Office of the city of Brunswick of 27 April/11 May 1956 - tax no. 69/493 -.
The constitutional complaint is rejected.
EXTRACT FROM GROUNDS:
The complainant …, deceased on 27 February 1966, was a Finnish national and had his residence in Finland. He was assessed for property levy for landed property of his located in Brunswick, as restrictedly subject to levy pursuant to para.17 of the Equalization of War Burdens Act (LAG). The objection and appeal against the assessment failed, as did his appeal on points of law, rejected as unjustified by the Federal Fiscal Court in its judgment of 26 April 1963 (BStBl. III p.413 ff.). The constitutional complaint is directed against this judgment, the appeal judgment of the Lower Saxon Fiscal Court and the underlying decisions of the Tax Office of the city of Brunswick: imposition of the property levy is held to be unjustified inter alia because a general rule of public international law prevents the burdens resulting from an aggressive war contrary to international law being devolved on foreigners.
The constitutional complaint was continued by the heirs and heirs of heirs.
1. Article 6 (1) of the Tenth Part of the Treaty on Settlement of Questions arising out of War and Occupation [Transference Convention] of 26 May 1952/23 October 1954 (BGBl. 1955 II p.405 ; hereinafter ÜbV Teil X) is as follows:
Until final settlement of the claims against Germany arising out of the war, the persons more specifically defined in Clause 2 of this Article and their assets shall be free of all special taxes, levies or impositions de facto affecting assets and imposed for the specific purpose of meeting burdens arising out of the war or reparations or restitutions to one of the United Nations.
Article 6 (2), first sentence, ÜbV Teil X provides that:
If a such a tax, levy or imposition is imposed only in part for the purposes mentioned in Clause 1 of this Article, then the exemption to be granted shall in principle be guided by the extent to which the taxes, levies or impositions serve the purposes mentioned…(the further relevant legal provisions are mentioned; no special agreements have been reached with Finland).
The constitutional complaint is justified in detail as follows:
1. The complainants claim to have had their fundamental rights arising out of Article 2 (1) Basic Law infringed.
By para.17 LAG, foreigners and their assets located in the Federal Republic of Germany including Berlin are to be called upon for the property levy. The special arrangements of para.56 a LAG in favour of nationals of the United Nations do not apply to the complainants. The property levy was intended to create a balancing out of the consequences of the Second World War, begun by Germany as an aggressive war contrary to international law. This was not acknowledged by the Federal Fiscal Court. According to a general rule of public international law within the meaning of Article 25 Basic Law, a State that has waged an aggressive war contrary to international law is alleged not to be entitled to devolve the consequences of the international offence committed by it even partially on persons lying outside its State legal organization, i.e. non-nationals. In its regulations on the consequences of war, Finland had kept strictly to this rule of international law….
The complainants presented an expert opinion by Professor Dr. Seidl-Hohenveldern. This opinion concludes that the property levy is for purposes of classification in international law to be regarded as a measure of social reform and not as a tax. The Equalization of War Burdens Act was aimed at a transfer of assets; the property levy alienated 50 % of assets as at 21 June 1948 without compensation, which amounted to confiscation. Such intrusion was according to rules of international law on protection of private property which went further than Article 14 Basic Law inadmissible….
2. The judgment of the Federal Fiscal Court challenged contravened Article 3 Basic Law for several reasons…(more detailed explanations).
3. If there were infringement of the principle of equality, then according to the case law of the Federal High Court the property guarantee of Article 14 Basic Law had also been contravened.
4. In the proceedings before the Federal Fiscal Court it had already been submitted that a submission pursuant to Article 100 (2) Basic Law must be made where a party to the proceedings had justified doubts as to the existence and direct validity of a general rule of public international law. Such doubts have been expressed and a submission pursuant to Article 100 (2) Basic Law accordingly applied for. However, the Federal Fiscal Court, in the judgment impugned in the constitutional complaint, put forward the view that an obligation for submission pursuant to Article 100 (2) Basic Law existed only where the Court was in doubt as to whether a rule of public international law was an integral part of Federal law. The Federal Fiscal Court had no such doubts and consequently did not make a submission to the Federal Constitutional Court. The Federal Fiscal Court had thereby denied the deceased complainant … his legally competent judge.
The Federal Fiscal Court was not competent to find as to whether the general rule of public international law invoked by the complainant existed. The question whether this rule existed or not was a constitutional question, decision of which was by Article 100 (2) Basic Law reserved exclusively to the Federal Constitutional Court; there was no other legally competent judge for decision of this question.
The special nature of proceedings pursuant to Article 100 (2) Basic Law had the consequence that its prerequisites were different from those of the judicial proceedings on the constitutionality of law pursuant to Article 100 (1) Basic Law. Since only the Federal Constitutional Court was competent to decide whether a general rule of public international law existed and had become an integral part of Federal law, submission was necessary even in the event of dubiety as to such a rule … (more detailed explanation).
5. Finally, the Federal Fiscal Court had also disregarded the entitlement to a fair hearing….
For the Federal Government, the Federal Minister of Finance made the following statements … (he regards the constitutional complaint as unjustified).
The constitutional complaint is admissible.
1. While a constitutional complaint cannot be directly based on infringement of Article 25 Basic Law (BVerfGE 6, 389 ; 18, 441 ), it can nevertheless be used to assert that provisions of the Equalization of War Burdens Act obliging the payment of property levy are in contradiction with a general rule of public international law and overridden thereby.
Because of Article 25 Basic Law, it is part of the constitutional order that in the shaping and application of Federal law the general rules of international law incorporated into Federal law by Article 25 Basic Law be taken account of. A Federal Act that clashes with such a rule is therefore not a legally effective basis for taxation and cannot restrict the rights of the complainant guaranteed by Article 2 (1) Basic Law (cf. BVerfGE 6, 32 ; 6, 389 [432 f., 440]; 7, 111 ; 9, 3 ).
2. The constitutional complaint was continued following the death of complainant … by his heirs and following the death of one of these heirs by the latter’s heirs too. To that extent, however, there are no objections to the admissibility of the constitutional complaint. It is financial entitlements that are at issue (cf. BVerfGE 17, 86 [90 f.]).C.
The constitutional complaint is not justified.
There is no general rule of public international law preventing foreigners being called upon for property levy pursuant to the Equalization of War Burdens Act on assets located in the Federal Republic of Germany.
1. The property levy is not a confiscatory seizure of assets in the course of social reform, contrary to international law, but a tax.
a) According to para.1 LAG the object of the equalization of war burdens is indemnification of damage and losses arising as a result of the expulsions and destructions of the war and post-war period, and the alleviation of hardship arising as a result of the reorganization of the currency….
para.4 LAG the following equalization benefits are granted:
1. Basic compensation
2. Integration loan
3. War indemnification pension
4. Indemnification for household effects
5. Housing assistance
6. Benefits from the Hardship Fund
7. Benefits on the basis of other promotion measures
8. Currency conversion compensation for savings of displaced persons
9. Compensation under the Pre-war Savings Revaluation Act
10. Loans … for further encouragement of refugee settlement….
Accordingly, the funds collected under the Equalization of War Burdens Act serve various purposes, namely on the one hand indemnification for damage resulting from the war, on the other the alleviation of social hardship on the parts of the population particularly affected by the war and the currency reorganization and in particular the social and economic integration of those displaced from their homeland. In both purposes, the equalization of war burdens is aimed at bringing about greater social justice.
It is evident that the equalization of war burdens, to the extent that it serves the indemnification of war damage from social viewpoints, does not have a reshaping of the social order as its object. But also insofar as the equalization of war burdens pursues the goal of alleviating social hardship and in particular integrating the millions of persons displaced from their homelands both socially and economically, the equalization of war burdens does not constitute a measure of social reform and does not pursue the goal of restructuring the social order by transferring assets. Instead, the equalization of war burdens serves the maintenance and assuring of the existing social and economic order, by providing for measures to integrate groups particularly affected by the war and the currency reform into this social and economic order. The equalization measures are of a conservative nature; social reformist features are absent from them. Not least, accordingly, they serve the maintenance of ownership in its economic value and utility.
It cannot be calculated but only globally estimated in what proportion to each other are the resources brought in by the property levy allocated to one or other purpose pursued by the equalization of war burdens. As the Arbitration Commission for Goods, Rights and Interests in Germany rightly found in its judgment of 23 March 1962 in re Gilis (Entscheidungen der Schiedskommission, vol. V p.40), Article 6 ÜbV Teil X takes as a basis that one-fifth of the funds serve the purpose of indemnifying damage resulting from the war and four-fifths serve to alleviate social hardship. The Arbitration Commission, using the materials available to it of the signatory States of Article 6 ÜbV Teil X, exhaustively set out in this judgment the circumstances that make it impossible to determine the proportions serving the various purposes exactly. The decision states that the Arbitration Commission regards it as important to stress these circumstances "in order to show how cleverly the signatory States acted in recognizing a flat rate of 20 % for damage resulting from the war and one of 80 % for damage which is the consequence of social hardship…" (loc.cit. p.63).
The equalization of war burdens does not pursue social reformist goals either by indemnifying war damage or by alleviating social hardship to the sections of the population particularly affected by the war and the currency reorganization.
b) The levies under the Equalization of War Burdens Act, including the property levy, are in international law to be classified as taxes. This follows from Article 6 ÜbV Teil X and from other international agreements binding in the Federal Republic of Germany in its relationship with a number of States.
The Arbitration Commission’s judgment of 23 March 1962 rightly takes as its basis that the equalization levies pursuant to Article 6 ÜbV Teil X are to be regarded as taxes. Article 6 (1) concerns taxes explicitly imposed for the purpose of covering burdens arising out of the war or out of reparations or restitutions. Article 6 (2) concerns the levies serving "mixed purposes". Article 6 (2), first sentence, is a necessary supplementation of Clause 1; by contrast, Clause 2, second sentence, serves merely to implement the first sentence and regulate its positive implications for the specific case of equalization of war burdens, the levies of which serve on the one hand to indemnify war damage and on the other to compensate for social hardship, in particular in favour of displaced persons (loc.cit. p.59).
The judgment accordingly sees Article 6 ÜbV Teil X as a treaty arrangement on collection of taxes, not as one on measures to reshape the social order. This is to be agreed with.
According to Article 6 ÜbV Teil X, therefore, the property levy counts in the relationship of the Federal Republic of Germany with the United States of America, Britain and France and with the United Nations within the meaning of AHC Act no.54 as a tax. The same is true for the States that have acceded to the Statutes of the Arbitration Commission, that is, for Italy, the Netherlands, Greece, Belgium, Luxembourg, Norway and Denmark (see A II 3 b above) 1and for the States which - like Switzerland, Sweden, Portugal, Spain and Austria - have by special agreements or treaties secured the same treatment for their nationals in the equalization as for nationals of the most-favoured nation in this area (see A II 3 c above) 2. The property levy is, moreover, regarded as a tax in the following agreements and treaties:
Additional Protocol of 21 July 1959 on application of the Agreement of 21 July 1959 between the Federal Republic of Germany and the French Republic on avoidance of dual taxation and on mutual administrative and legal assistance in the area of taxation of incomes and assets and of trade taxes and land taxes in the case of una tantum levies on assets (Treaty Act of 14 April 1961, BGBl. II p.397);
Agreement between the Federal Republic of Germany and the Kingdom of the Netherlands to avoid dual taxation in the area of taxes and income and assets and various other taxes and to regulate other questions in the fiscal area of 15 June 1959, taken together with the additional protocol thereon of 16 June 1959 (Treaty Act of 10 June 1960, BGBl. II p.1781);
Treaty between the Federal Republic of Germany and the Kingdom of Belgium on correction of the German-Belgian frontier and other questions affecting the relationship between the two countries of 24 December 1956 (Treaty Act of 6 August 1958, BGBl. II p.262);
Treaty between the Federal Republic of Germany and the Grand Duchy of Luxembourg of 11 July 1959 (Treaty Act of 8 August 1960, BGBl. II p.2077).
In view of this treaty practice in international law, it is indubitable that the property levy is to be regarded as a tax in international law. That it is a tax according to German domestic law clearly follows from Article 106 (1) (5) Basic Law.
c) If the property levy is to be classified as a tax in international law too, then the regulation of this tax cannot be in contradiction with general rules of public international law, which forbid seizure without compensation of assets of foreigners in the course of social reform.
2. Even in amount the property levy does not constitute confiscation inadmissible in international law. While the amount is 50 % of assets subject to levy (para.31 LAG), it must nevertheless be taken into account that payment of the levy is spread over a very long period. It is to be paid in equal quarterly amounts representing interest and redemption payments by 31 March 1979. The assets subject to levy are during a redemption period of 27 years from 1952 charged, depending on the type of assets, with only 2.5 % to 3.4 % of their value annually. Nor should it be ignored that in the case of real property it is the so-called assessment unit value, not the as a rule higher real value of the property, that is taken as the basis for taxation. The taxpayer is therefore not compelled to squander his assets in order to meet his tax debt. The conditions for paying the property levy have been so arranged that the levy can as a rule, even if not in every case, be met from the yields on the assets (thus the Arbitration Commission’s judgment of 23 March 1962, loc.cit.p.55).
The property levy is thus not a tax with confiscatory effect the collection of which could clash with rules of international law on taxation of foreigners.
3. The general rule of public international law which on the view of the complainants opposes their being called upon for the property levy could only be a rule of customary international law. There is however no customary international law nor any recognized general principle of law supplementing this law (cf. BVerfGE 15, 25 [34 f.]; 16, 27 ) which would prevent foreigners from being taxed to cover the burdens resulting from a war.
The Seidl-Hohenveldern expert opinion explains that foreigners have in a large number of bilateral international treaties been exempted from exceptional war taxes and that a rule of customary law has emerged, which since the Paris Peace Treaties of 1947 also opposes the taxation of foreigners to cover burdens resulting from war. It cannot however be found that such a rule applies.
a) A comprehensive assessment of the treaty practice of States, of case law and of the opinions of scholars of international law in the period up to the start of the Second World War shows that in that period the taxation of foreigners to cover war burdens and those resulting from war was not restricted by customary international law and that such a rule was not in the process of coming about either. On this the following should be pointed out:
aa) Article 276 (c) of the Versailles Peace Treaty of 1919 obliged Germany only not to subject nationals of the Allied and associated powers to any other or higher direct or indirect charges, levies or taxes than were or would be imposed on their own nationals (on the transitional provision of Article 297 j cf. Stier-Somlo, NiemeyersZ, vol.29 (1921), p.263 [291 ff.]).
In the Convention on right of settlement and jurisdiction, an additional agreement to the Peace Treaty of Lausanne concluded between the Allies and Turkey on 24 May 1923, it is provided that nationals of Turkey’s contracting parties settled in Turkey or exercising their activity there may not have compulsory loans or other extraordinary property measures imposed on them even in the event of a war. This tax exemption is explained by the replacement of the obsolete capitulation system by a modern system of right of settlement for foreigners in Turkey. It is likewise on the basis of this purpose that the reference to "modern international law", which according to the preamble of the Convention regulating conditions of settlement by nationals of the Allies in Turkey is to be decisive, is to be understood (see the Arbitration Commission’s judgment of 23 March 1962, loc.cit. p.57).
bb) The Reich Fiscal Court took two decisions on the calling upon foreigners for war levies and burdens arising out of war. In the Decision of 27 April 1920 (RFH 3, 10 ff.) the question was whether calling upon an Argentinian national for the 1918 war levy was compatible with the friendship, commerce and navigation Treaty with Argentina of 19 September 1857; Article 10 of this Treaty exempted Argentinian nationals from compulsory loans, requisitions and war contributions. The Reich Fiscal Court stated that it could not be excluded that Article 10 of the Treaty was meant to bring nationals of either side only under levies raised in normal times and for peaceful purposes, but that by contrast the duty to bear a part of exceptional war burdens, arising out of special rights of citizens, was to be excluded (loc.cit. p.12 f.). But the decision gives no basis for the idea that even apart from the Treaty arrangement any exemption of foreigners from the 1918 war levy could arise from general international law. The appeal on points of law was rejected because the Treaty, in the Reich Fiscal Court’s view, at most established an obligation in international law on the Contracting States, while for the Court any contradictory national law remained decisive.
To redeem the German reparation debts arising out of the Versailles Peace Treaty, a burden was imposed on German industry to make interest on redemption payments for an amount of five thousand million gold marks. Collection of these funds was regulated by the Act on the raising of industrial taxation of 30 August 1924 (RGBl. II p.269). A legal person claiming Italian nationality was also called on to make payments under this Act, and appealed on the grounds that by generally recognized principles of international law he was not subject to the obligation to contribute. Aliens had on the one hand no entitlement to the granting of citizens’ rights, but were on the other not subject to citizens’ obligations in the narrower sense; it was contrary to international law to call on them for military service, defence tasks or other war services. The Reich Fiscal Court’s Decision of 8 August 1958 (RFH 24, 69 [72 f.]) states that there could be no notion that the raising of the industry tax belonged among "war services"; war services were only services connected with the waging of war. The contributions at issue here served at any rate indirectly to cover the war indemnities imposed on the German Reich and were therefore a consequence of the war. "There is no generally recognized principle of international law that such burdens may not be imposed on aliens".
Article 4 (2) of the Franco-Spanish Settlement Treaty of 7 January 1862 exempted Spaniards resident in France from "any war contribution and any other extraordinary contribution". On the basis of an Act of 1 July 1916, a war profit tax was raised in France, which Spaniards resident in France were also called on for. To arbitrate the resulting differences, France and Spain appointed as arbitrator the Swiss Gustav Ador. He decided in an arbitral award of 15 June 1922 (reprinted in "Reports of International Arbitral Awards, ed. United Nations, Leyden, vol.I , p.302 ff.), that Spaniards might not be called on to pay war profits tax. The war profits tax was a "war contribution or other extraordinary contribution" within the meaning of the Treaty on establishment.
According to this arbitral award, exemption from French war profits tax was based on the bilateral Treaty. The award is clearly not based on the conviction that the exemption from this tax in the Treaty corresponded to a general rule of international law.
A war profits tax was again dealt with by the Decision of the joint Bulgaro-Belgian Arbitration Court of 13 November 1923 (reprinted in: Recueil Des Décisions Des Tribunaux Arbitraux Mixtes, ed. Presidents of the Arbitration Courts, Paris, vol.III  p.830 ff.). Article 177 (e) of the Neuilly Peace Treaty prohibited Bulgaria from "war measures" (mesures de guerre) against nationals of the Allies. A Belgian joint-stock company was called on in Bulgaria for the war profits tax raised there too, and therefore called in the Arbitration Tribunal for decision. The latter declared itself incompetent. The Bulgarian war profits tax, affecting all inhabitants of the country, was not an act of economic warfare and therefore not a prohibited "war measure". Similar taxes had been raised without dispute even by neutral States. The decision offers no bases for the idea that collection of such a tax was to be regarded as incompatible with general international law.
cc) From the statements of scholars of international law it can be seen that according to general international law it was to be regarded as inadmissible to call on foreigners for taxes in lieu of military service, that is, for financial compensation for exemption from military service. It was however the prevailing view that as regards taxation of foreigners there were no limits in international law on the use of the taxes and that therefore foreigners could also be called on for general levies arising out of a war or to eliminate the consequences of war, insofar as there were no bilateral agreements against this.
Cf. Niemeyer, Internationales Finanzrecht, in: NiemeyersZ, vol.29 (1921), p.49 (58 ff.); Lippert, Handbuch des internationalen Finanzrechts, 2nd ed., Vienna 1928, p.443 (460); Isay, Internationales Finanzrecht, Stuttgart/Berlin 1934, p.67 f.; Griziotti, L’Imposition Fiscale Des Étrangers, in Recueil Des Cours De L’Académie De Droit International De La Haye, vol. 13/III (1926), p.5 ff. (66); Allix, La Condition Des Étrangers Au Point De Vue Fiscal, in: Recueil Des Cours, vol. 61/III (1937, p.545 (603), with references.
b) In the period since the start of the Second World War too, no general rule of public international law of the content alleged by the complainant has formed.
It cannot be concluded from the complainants’ statements on the property levy in Finland that the financial legislation whereby foreigners were exempted from this levy was decisively based on the consideration that general international law required such exemption. It seems instead to have been essential that bilateral agreements, and in particular the Finno-Swedish Trade Treaty, exempted nationals of Finland’s partner States from compulsory loans and contributions of any kind for war purposes and that regard had to be had to this.
The Peace Treaties concluded in Paris in 1947 by the Allies with Germany’s former allies exempted nationals of the United Nations and their property from all special taxes and levies imposed on their capital assets between the cease-fire and the entry into force of the Peace Treaty for the special purpose of covering burdens arising out of the war or costs of occupation troops or reparations.
Cf. the Peace Treaty with Italy Article 78 (6), with Romania Article 24 (7), with Bulgaria Article 23 (6), with Hungary Article 26 (7), with Finland Article 25 (6); likewise Article 25 (6) of the Austrian State Treaty of 15 May 1955.
On Article 78 (6) of the Peace Treaty with Italy, the Franco-Italian Arbitration Commission decided on 29 August 1949 that the exceptional property levy raised to combat inflation in Italy pursuant to an Act of 11 October 1947 fell under this provision and accordingly freed United Nations nationals from the levy.
See Recueil Des Décisions De La Commission De Conciliation Franco-Italienne, ed. the French representative to the Franco-Italian Arbitration Commission, no date or place indicated, vol. I p.95 ff., Decision no.32.
The importance in international law of these provisions of the 1947 Peace Treaties was exhaustively set out by the legal adviser to the British delegation to the Paris Conference of 1946-7, Fitzmaurice, (The Juridical Clauses of the Peace Treaties, in: Recueil Des Cours, vol. 73/II ): it had not been clarified whether foreigners in time of war could also be called on for war taxes and levies. It seemed to be the case that, at any rate in a war not against his own country, an alien could have specific war taxes imposed on him. It was not however clear whether this was true even where the war was waged against the alien’s homeland. After the end of hostilities, special taxes for indemnification of war damages and payment of occupation costs were often raised. The settlement in the 1947 Peace Treaties did not provide nationals with any exemption from taxes and levies raised during hostilities. It did however take account of the fact that it would be unacceptable for nationals of the United Nations and their property in the former hostile States to be called on during the period of armistice for taxes the yield of which was intended for occupation costs, reparations or other war purposes. But it was thereby also tacitly recognized that nationals of the United Nations could following entry into force of the Peace Treaties no longer lay claim to special tax exemption but were subjected to all general taxation (loc.cit. p.259 ff.).
According to these statements, the provisions of the 1947 Peace Treaties cannot be interpreted as an expression of a general rule whereby foreigners may not be called on for burdens arising out of war. Instead, these provisions lay down an exception, limited in time, to the general principle that foreigners, apart from the special case of tax in lieu of military service, can also be called on for war taxes and taxes to meet burdens arising out of war (likewise Ciurea, Le Traité de Paix avec la Roumanie du 10 Février 1947, Paris 1954, p.160).
Article 6 (1) ÜbV Teil X must be looked at in the context of the corresponding provisions of the 1947 Peace Treaties (see the letter from the Chairman of the Allied High Commission, John McCloy, of 23 May 1952 to the Federal Chancellor, reproduced in the Arbitration Commission’s Decision of 23 March 1962, loc.cit. p.50). Article 6 (1) ÜbV Teil X too was an exceptional arrangement limited in time until the entry into force of a peace treaty and favouring only nationals of the Allies and the United Nations, as had similarly been agreed with Germany’s allies, among them Finland. It would be hard to justify were nationals of the Allies and the United Nations to be called on for taxes imposed for the special purpose of covering burdens arising out of the war or out of reparations or restitutions to one of the United Nations.
For the period since the start of the Second World War, then, no usage practised by the large majority of States in an awareness of their legal obligations over a long period not to tax foreigners for purposes of covering war burdens and burdens arising out of war can be found. Only a particular group of States, namely the nations defeated in the Second World War, accepted, in the 1947 Peace Treaties and the Transference Convention, a time-limited restriction of their fiscal sovereignty in respect of the calling upon nationals of the Allies and the United Nations to meet war burdens and burdens arising out of war. These few arrangements, which presented themselves as exceptions, cannot establish a new general usage practised in an awareness of legal obligations.
Again, the assertion that war burdens and burdens arising out of war ought at any rate not to be devolved on foreigners by way of taxation where the burdens arise out of an aggressive war contrary to international law cannot be regarded as confirmed. The development of the consequences of the Second World War, which was an aggressive war by Germany, did not, as shown, lead to the emergence of a general rule of the content alleged by the complainants.
The complainants can therefore be called upon as foreigners to pay the property levy. Article 2 (1) Basic Law taken together with Article 25 Basic Law is not infringed (cf. BVerfGE 16, 276; 18, 441).
Calling upon the complainants to pay property levy manifestly does not contravene the equality principle on any of the viewpoints presented by them.
It does not constitute a "non-differentiation" contrary to equality for foreigners having their residence abroad but subject to German fiscal sovereignty in respect of their real assets in the country to be called on just like Germans meeting the same preconditions to pay the property levy as restrictedly subject to it pursuant to para. 17 LAG. It is in accordance with both constitutional law and international law that foreigners can in respect of real property in a country and the liens on it be called upon for levies (BVerfGE 18, 441  referring to the Arbitration Commission’s judgment of 23 March 1962, loc.cit. p.53 ff.). There is no general rule of international law forbidding calling on foreigners for a tax like the property levy under the Equalization of War Burdens Act. As regards the restricted liability to levy there is no distinction between foreigners and Germans that should have induced the legislator to make a differentiated arrangement (cf. BVerfGE 18, 441 ).
Not is there any infringement of the equality principle in the fact that the legislator has not granted all foreigners the concessions that some foreigners, namely nationals of the United Nations and of those States that have acceded to the Statutes of the Arbitration Commission or with which special agreements on equalization of burdens have been concluded, enjoy in respect of the property levy. These privileges are justified solely by the special relationships in international law between the Federal Republic of Germany and those States.
Again, insofar as the complainants submit that foreigners are discriminated by several individual provisions of the Equalization of War Burdens Act, the constitutional complaint cannot succeed. The complainants have not shown that these provisions interfere with their rights. The regulations they complain of are in any case compatible with Article 3 Basic Law.
It is not improper that foreigners receive no compensation for displacement damages. The legislator took it that the displacement measures in the eastern territories were directed against the Germans resident there. It may be that the property levy on foreign assets applies primarily to foreigners liable without restriction to the levy who live in Germany. This is however based on the fact that the foreign assets of German nationals were during the war and thereafter confiscated in many - though by no means all - States. It is not improper for those subject to levy and seeking to claim a reduction in the property levy because of war damage to be obliged for calculating the reduction to furnish information on their foreign assets. This affects foreigners and Germans equally, since the special exemption amounts pursuant to paras. 29, 53 LAG are not granted to those liable restrictedly to the levy.
Finally, it cannot be seen that the "homeland" of the deceased complainant … had any significance or could be legally relevant to his being called on for property levy.
Calling on the complainants to pay property levy pursuant to the Equalization of War Burdens Act is clearly not in contradiction with Article 14 Basic Law. With the property levy, a duty of monetary payment in the form of a tax is imposed. Such duties leave the property guarantee of Article 14 Basic Law in principle untouched (BVerfGE 4, 7 ; 6, 290 ; 8, 274 ; 10, 89 ; 10, 354 ; 11, 105 ; 14, 221 ; 18, 441 ). Contravention of Article 14 Basic Law can come into consideration at most if the monetary payment obligations were an excessive burden on those liable and would fundamentally encroach upon their asset positions (BVerfGE 14, 221 ), thereby constituting confiscation. But this is not the case with the property levy.
The complaint that the Federal Fiscal Court deprived the deceased complainant … of his legally competent judge is unjustified. While the Federal Fiscal Court was pursuant to Article 100 (2) Basic Law obliged to make a submission to the Federal Constitutional Court, it did not arbitrarily contravene this obligation; Article 101 (1), second sentence, Basic Law is therefore not infringed.
1. a) By Article 100 (2) Basic Law the Court must secure the decision of the Federal Constitutional Court when in the course of litigation doubt exists whether a rule of public international law is an integral part of Federal law and whether it directly creates rights and duties for the individual. The question when it is doubtful in a legal dispute whether a rule of international law is part of Federal law has not yet been decided by the Federal Constitutional Court. It is disputed in legal doctrine. On the one hand the view is put forward that the adjudicating court is obliged to make a submission to the Federal Constitutional Court only where it itself has doubts as to the existence and scope of the general rule of public international law.
Cf. Mosler, Das Völkerrecht in der Praxis der deutschen Gerichte, 1957, p.46 f.; Stern, Bonner Kommentar, Zweitbearbeitung, Rdnr. 235 zu Art. 100 Basic Law; Münch, JZ 1964, 1633 (164); Ipsen, Deutsche Verwaltung 1949, 489.
On the other hand, even serious doubts brought forward by the parties are regarded as enough to bring in the obligation to submit pursuant to Article 100 (2) Basic Law.
Cf. Friesenhahn, Die Verfassungsgerichtsbarkeit in der Bundesrepublik Deutschland, 1962, p.65 (Sonderdruck aus: Die Verfassungsgerichtsbarkeit in der Gegenwart); Geiger, Bundesverfassungsgerichtsgesetz, Note 3 on para.83; Aubin, JZ 1954, 120; Wengler, JZ 1965, 24; see also Mann, SJZ 1950, 547 and Kraus, Der deutsche Richter und das Völkerrecht, in: Gegenwartsprobleme des internationalen Rechts und der Rechtsphilosophie, Festschrift für Rudolf Laun zum 70. Geburtstag, p.225 and Tomuschat, ZaöRV vol. 28 (1968), p.61.
b) A submission to the Federal Constitutional Court pursuant to Article 100 (2) Basic Law is required even where the adjudicating court, in considering the question whether and with what scope a general rule of internal law applies, meets with doubts deserving serious consideration, and not only when the court itself has doubts.
In favour of this interpretation is the very tenor of Article 100 (2) Basic Law. According to Article 100 (1) Basic Law what is needed is for the Court to be convinced that a law is unconstitutional. Were the Court’s opinion also to be decisive for submission pursuant to Article 100 (2) Basic Law, then a version corresponding with Clause 1 would have suggested itself.
Only the interpretation that even doubts worthy of serious consideration as regards the existence and scope of the general rule of public international law bring about the obligation to make the submission does justice to the meaning and purpose of Article 100 (2) Basic Law.
With the incorporation of general rules of public international law into Federal Law brought about by Article 25 Basic Law, with precedence over the laws, the Constitution compels a shaping of Federal law in line with general international law. The point of the direct validity of general rules of international law is to override domestic law that clashes with them or bring about their application in conformity with international law. Since the general rules of international law are in constant development, the number of possible clashes between general international law and domestic law is not foreseeable. The process of reshaping of domestic law through the international law incorporated into Federal law comes about outside the formal legislative procedure foreseen in the Constitution. The general rules of international law are in the main universally valid customary international law, supplemented by recognized general principles of law (BVerfGE 15, 25 [32 f., 34 f.]; 16, 27 ). They are obvious only in a few cases; in many cases their existence and scope (BVerfGE 15, 25 [31 f.]; 16, 27 [32 f.]; 18, 441 ) must first of all be established.
The constitutional legislator accepted the hazards arising out of incorporation of the general rules of public international law into Federal law with precedence over the laws for the authority of the legislator and for legal security - both of them part of the foundation of the constitutional order - insofar as these hazards lie in the nature of things. The procedure pursuant to Article 100 (2) Basic Law is aimed primarily at limiting the hazards arising out of incorporation of international law for the authority of the legislator and for legal security to the unavoidable minimum. In the event of doubts as to the existence and scope of a general rule of public international law, only the Constitutional Court is to decide, though with general validity and with force of law. Except for the case of obviousness, only the Federal Constitutional Court is to be competent to decide as to the existence or non-existence and as to the scope of a general rule of public international law.
An interpretation of Article 100 (2) Basic Law whereby in the case of objectively doubtful general rules of public international law the duty to make a submission would depend on the subjective opinion of the adjudicating court would not do justice to this purpose of Article 100 (2) Basic Law.
If only the opinion of the adjudicating court in each case were of relevance, then there would be a danger that courts might decide differently as to the existence of a particular - non-obvious - rule of public international law and as to its scope; it is precisely this, however, that Article 100 (2) Basic Law wishes as far as possible to prevent, in the interests of legal security (cf. BVerfGE 15, 25 ).
Para. 83 (2) BVerfGG grants the constitutional organs involved in legislation the right to make statements in proceedings before the Federal Constitutional Court and to join the proceedings. In the initial proceedings, by contrast, the constitutional organs, unless they happen to be involved in the proceedings, have no occasion to take part in discussions on the existence and scope of general rules of public international law. The Federal Constitutional Court decides in procedures pursuant to Article 100 (2) Basic Law, para. 83 BVerfGG not directly whether a Federal law is compatible with a general rule of public international law, but only whether a rule exists; the procedure of Article 100 (2) Basic Law serves to verify the existence of norms, not check constitutionality. Since however the decision can also extend to the "scope" of the general rules of public international law (BVerfGE 15, 25 [32 f.]; 16, 27 [32 f.]; 18, 441 ), the Federal Constitutional Court can in the individual case also consider whether a particular general rule of public international law is by its scope capable of acting upon domestic law. The verification procedure pursuant to Article 100 (2) Basic Law in the outcome replaces the legislative procedure; the tenor of the Federal Constitutional Court’s decision has force of law (Article 94 (2) Basic Law, para. 13 (12) and para.31 (2) BVerfGG). Particularly where a court is tending to affirm the existence of an objectively doubtful general rule of public international law that overrides Federal law, the constitutional organs of the Federation must be given a chance to state their position.
Having regard to the incorporation of the Federal Republic into the community of nations, it is no less important for the constitutional organs involved in the handling of foreign relations to have a possibility of presenting their view, so that the courts do not fail to recognize the existing general rules of public international law. On an interpretation of Article 100 (2) Basic Law whereby submission would depend solely on the court’s opinion, the constitutional organs involved in legislation are — apart from exceptions — excluded from participation in verifying doubtful general rules of public international law in all cases where the adjudicating court does not doubt or overcomes its doubts.
The arguments brought forward for the contrary view cannot convince. The reference to the principle "iura novit curia" overlooks the fact that this principle rules out a non liquet in legal questions and that were this principle decisive, the case of doubt on which Article 100 (2) Basic Law is based ought not to exist. But the Basic Law rightly takes it that the general rules of public international law must be determined in the individual case; their verification in cases of objective doubt is by Article 100 (2) Basic Law concentrated with the Federal Constitutional Court.
c) Doubts deserving serious consideration as to whether and if so with what scope a general rule of public international law applies exist where the court would depart from the opinion of a constitutional organ or from the decisions of high German, foreign or international courts or from the doctrine of recognized authors on international law (cf. BVerfGE 7, 18 [23 f.]; 8, 186 ; 9, 153 ; 11, 89 ; 13, 367  on Article 126 Basic Law and para.86 (2) BVerfGG).
The Federal Fiscal Court had before it the Seidl-Hohenveldern opinion, which supported the complainants’ assertions with arguments on international law that deserve serious consideration. The question whether the general rule of international law claimed by the complainants exists was therefore objectively doubtful. The Federal Fiscal Court ought therefore not to have decided this question itself, but pursuant to Article 100 (2) Basic Law to have secured the decision of the Federal Constitutional Court.
2. a) The legally competent judge may be denied also if a court neglects a statutory duty to make a submission to another court (cf. BVerfGE 3, 359 [363 f.]; 9, 213 ; 13, 132; 17, 99 ; 18, 441 ; 19, 38 [42 f.]).
Measures, omissions or decisions by a court deny the legally competent judge, however, only where the measure, omission or decision of the court is based on arbitrariness (cf. BVerfGE 19, 38 , with references).
This applies even where the duty to make a submission arises not from "simple law" but from the Constitution, through a provision establishing exclusive competence for the Federal Constitutional Court. Article 100 (2) Basic Law is a procedural prescription without the character of a fundamental right, addressed to the adjudicating court in each case. Article 101 (1), second sentence, Basic Law offers no basis for checking a court decision to see whether the adjudicating court has applied procedural law without judicial error.
With regard to the hitherto controversial interpretation of Article 100 (2) Basic Law, not yet resolved by case law of the Federal Constitutional Court, it cannot be assumed in the present case that the Federal Fiscal Court contravened Article 101 (1), second sentence, Basic Law by failing to make a submission to the Federal Constitutional Court. This question will however as a rule be judged differently where a court in future - now that the interpretation of Article 100 (2) Basic Law has been clarified - fails to make a submission to the Federal Constitutional Court, misapprehending the meaning and purpose of Article 100 (2) Basic Law, although doubts as to the existence or scope of a general rule of public international law that are objectively considered worthy of serious consideration exist.
Article 103 (1) Basic Law grants the parties a right to make a statement on the facts and circumstances underlying a court decision before the decision is taken. This right has clearly not been infringed here by the fact that the Federal Fiscal Court failed to follow the suggestion to summon Professor Seidl-Hohenveldern to appear as an expert to explain his expert opinion orally.
This decision was adopted by five votes to three as regards Article 2 (1) taken together with Article 25 Basic Law and Article 3 (1) Basic Law, by six votes to two as regards Article 101 (1), second sentence, Basic Law, and otherwise unanimously.