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Case:
BVerfGE 6, 290 1 BvR 65/54 German assets in Switzerland Artt. 3, 14 GG
Date:
21 March 1957
Judges:
Dr. Wintrich, Dr. Scheffler, Dr. Heiland, Dr. Scholtissek, Dr. Drath, Dr. Stein, Wessel, Ritterspach, Lehmann
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. Acts of assents to treaties may be challenged by constitutional complaint.

2. The Act on the three Agreements between the Federal Republic of Germany and the Swiss Confederation on German Assets in Switzerland, on the Settlement of the Swiss Confederation's Claims Against the Former German Reich and on Equalization of German War Burdens of 7 March 1953 (BGBl. II p.15) and the Agreement between the Federal Republic of Germany and the Swiss Confederation on German Assets in Switzerland of 26 August 1952 (BGBl. 1953 II p.17) do not infringe Articles 3 and 14 Basic Law.

Order of the First Senate of 21 March 1957 -- BvR 65/54 --
in the proceedings on the constitutional complaint by tax inspector retd. L. against:

1. The Act on the three Agreements between the Federal Republic of Germany and the Swiss Confederation on German Assets in Switzerland, on the Settlement of the Swiss Confederation's Claims Against the Former German Reich and on Equalization of German War Burdens of 7 March 1953 (BGBl. II p.15) and the Agreement between the Federal Republic of Germany and the Swiss Confederation on German Assets in Switzerland of 26 August 1952 (BGBl. 1953 II p.17).

DECISION:
The constitutional complaint is rejected.

EXTRACT FROM GROUNDS:

I.

1. In the so-called Washington Agreement of 25 May 1946 (text in "German Assets Abroad" I p.390 ff.) Switzerland had made undertakings to the United States of America, Great Britain and France on the liquidation of assets deposited in Switzerland of Germans resident in Germany.

These assets had already been frozen by Switzerland by decision of the Executive National Council of 16 February 1945 (reprinted in "German Assets Abroad", I p.377 ff.). Only some of them were liquidated, since Switzerland made total liquidation dependent on a satisfactory settlement of the compensation issue.

On 26 August 1952 three Agreements were concluded between the Federal Republic and the Swiss Confederation:

1. On German Assets in Switzerland,
2. On Settlement of the Swiss Confederation's Claims Against the Former German Reich,
3. On the Equalization of German War Burdens.

These three interconnected Agreements were assented to by the Bundestag in an Act of 7 March 1953 (BGBl. II p.15).

The Agreement on German Assets gave owners of German assets impounded in Switzerland the possibility of regaining free disposal of these assets. Switzerland undertook to release them against payment of a redemption amount of 121.5 million Swiss francs by the Federal Republic of Germany. This amount was to be covered by contributions from the owners concerned, amounting as a rule to one-third of the value of the assets to be released. Payment of the contribution was taken as discharging the equalization levies under the Act on Equalization of War Burdens (para.3(1) of the Act of 7 March 1953)....

2. The complainant, totally bomb-damaged in Germany, is the owner of a small housing property in Switzerland. To avoid liquidation, he paid the required amount of 3,786.90 Swiss francs.

Waiving oral proceedings, he is applying for a declaration that the Act on the three Agreements of 7 March 1953 (BGBl. II p.15) and the Agreement of 26 August 1952 on German Assets in Switzerland (BGBl. 1953 II p.17) are null and void. He asserts that both contravene the guarantee of ownership and the principal of equality of the Basic Law and of the Swiss Federal Constitution, and general principles of international law on the safeguarding of private property and the guarantee of ownership in the additional protocol of 20 March 1952 to the European Convention on Human Rights . . . .

3. The Federal Government regards the petition as inadmissible because an assenting Act enacted in accordance with Article 59 (2) Basic Law is a non-justiciable executive act in the area of foreign powers, and cannot be challenged by a constitutional complaint before the Federal Constitutional Court.

The Federal Government also regards the constitutional complaint as unjustified . . . .

II.

The constitutional complaint is admissible.

1. The Federal Constitutional Court has already repeatedly decided that Acts assenting to treaties with foreign states, so called Treaty Acts, are subject to constitutional judicial review in judicial proceedings on the constitutionality of law (BVerfGE 1, 396 [410]; 4, 157 [162]). The legal significance of such Acts is not exhausted in the fact that constitutional adoption of the Treaty is dependent upon the enactment. They simultaneously transform the content of the Treaty into domestic law by making it binding both on the organs of State and also - should it relate to the legal conduct of citizens - on them too. Over and above assent to the Treaty the same Act might, as is the case here, directly establish rights and duties of the individual. In both cases fundamental rights may be infringed by the Treaty Act. Accordingly, they are subject to constitutional review also by way of the procedure of constitutional complaint, intended to provide the citizens with effective protection of fundamental rights. This is true even where the Federal Government is assenting to a Treaty which, as here, is to be implemented abroad, since the fundamental rights are binding on the German public authorities even insofar as effects of their activities arise abroad.

Constitutional review of the Treaty Act is not ruled out by the fact that the Treaty has since become effective in international law. It is conceivable for a Treaty Act to infringe the Constitution while the treaty to which it refers is binding in international law. In such cases, while the State may be obliged in international law to implement the treaty concluded, it may also have the obligation to remove the unconstitutional situation thereby created insofar as that is possible.

2. Admissibility of the constitutional complaint is not opposed by the fact that the treaty still presupposes implementing acts such as determination of the contribution, call for payment and, should the case arise, liquidation of the assets. Where an Act presupposes legally necessary implementing acts or ones influenced according to de facto administrative practice by the will of the implementing authority, then the constitutional complaint can as a rule admittedly be directed only against the implementing act as being the immediate interference with the rights of the individual (BVerfGE 1, 97 [102 f.]). But the agreement is, apart from exceptions not under consideration here, to be implemented by Swiss authorities whose decisions cannot, as non-German sovereign acts, be reviewed by the Federal Constitutional Court (BVerfGE 1, 10 [11]). In such cases constitutional complaint against the Treaty Act must be possible.

III.

1. The complainant cannot invoke alleged infringement of the Human Rights Convention of the Council of Europe. Article 1 of the additional protocol to the Human Rights Convention of 20 March 1952, ratified by the Federal Republic on 20 December 1956 (BGBl. II p.1879) does admittedly contain a guarantee of ownership. But since the provision does not have retroactive force, it is not applicable to proceedings concluded before it entered into force (cf. BVerfGE 2, 237 [246]).

2. The Swiss Federal Constitution is not a criterion of review in these proceedings either; the Federal Constitutional Court has merely to verify whether or not German constitutional law has been infringed.

IV.

1.A constitutional evaluation of the German-Swiss Agreement from the viewpoint of the ownership guarantee and of the equality principle must start from the legal position in which German owners of assets in Switzerland were at the time the Agreement was concluded. What took place earlier were interventions by foreign sovereign powers, which cannot be measured against the Basic Law. This initial position must be compared with the position created by the Agreement (cf. BVerfGE 3, 58 [136]; and 2, 105 [110]). In this comparison it is not only the possibility chosen by the complainant that can be taken into consideration, namely avoiding liquidation by paying the contribution to the redemption amount; instead it is primarily the liquidation (commutation) as the severer intervention that is decisive.

2. The complainant's view that the danger of liquidation no longer seriously existed in 1952 is incorrect. German property in Switzerland was frozen pursuant to the decision of 16 February 1945 of the National Executive Council and was since the entry into force of the Washington Agreement subject to the danger of liquidation. Switzerland had no objections in constitutional or international law to the proposed commutations, insofar as full compensation of the German owners was guaranteed; it merely wished no measures to be taken against German owners living in Switzerland (cf. the message from the National Executive Council to the Federal Convention on ratification of the Washington Agreement of 14 June 1946, "German Assets Abroad" I p.393); the complainant is not one of these. Switzerland saw the commutation of German assets from the viewpoint of a compulsory clearing (see the report by the National Executive Council to the Federal Convention of 13 April 1949, "German Assets Abroad" I p.400). It was resolved to implement the Washington Agreement as soon as the question of compensation had been satisfactorily resolved. The Allies too were at no point prepared to waive their rights arousing out of the Agreement (see the message from the National Executive Council to the Federal Convention of 29 August 1952, "German Assets Abroad" III p.513); since they wished neither to compensate owners of German assets in Switzerland from the occupation budget nor to impose a compensation obligation on the German government, implementation of the Washington Agreement was for a time in question (see message of the National Executive Council to the Federal Convention of 29 August 1952, "German Assets Abroad" III p.510, 513). But it does not follow from this that the German owners could expect release of their assets without further ado, since in Switzerland the tendency was to continue the liquidations and to use the proceeds for a compulsory clearing, should no agreement come about between the States involved (cf. Schütte, Nachrichten der Studiengesellschaft für privatrechtliche Auslandsinteressen [NStG] Heft 12/13 p.15). The German study association for private interests abroad at any rate assessed the position as extremely serious and for this reason resolved in 1951 to submit a redemption plan of its own - which ultimately became the basis for the Agreement (cf.Schütte, NStG Heft 12/13 p.13, 15; Thomä, NStG Heft 15 p.16). It is therefore to be presumed that owners of German assets in Switzerland had to continue to expect them to be liquidated.

3. It is accordingly doubtful whether the Agreement of 26 August 1952 can at all be regarded as assent by the Federal Government to commutation in the sense of collaboration or whether the liquidation was only being accepted as an unavoidable measure. It may further be doubted whether this liquidation is to be seen as expropriation within the meaning of Article 14 Basic Law. Even if this is assumed, the arrangement arrived at in the German-Swiss Agreement cannot be objected to on constitutional grounds, since the requirements of Article 14 Basic Law were in any case met.

The Agreement was meant for the good of the generality. The Federal Government thereby secured a conditional release of industrial property rights and of assets up to 10,000 Swiss francs, considerable concessions by Switzerland on the question of clearing claims and the possibility for all owners of assets of more than 10,000 Swiss francs to have their impounded assets released, even if on certain sacrifices.

The liquidation proceedings ought also to be regarded as equitably balanced compensation within the meaning of Article 14 (3), third sentence, Basic Law, since the liquidation procedure contains guarantees against under-valuation of the property to be liquidated. Insofar as the liquidation proceedings are subject to substitute property levy this is not curtailment of expropriation compensation by a special levy, but inclusion of the liquidation proceedings in the equalization of war burdens by way of a property-related levy the admissibility of which remains unaffected by the ownership guarantee of the Basic Law (BVerfGE 4, 7 [17]).

4. Nor do the nature and amount of the substitute property levy infringe Article 3 (1) Basic Law. Insofar as the substitute property levy is higher than the equalization of war burdens levy due on similar domestic assets, this is objectively justified. The foreign assets are by comparison with domestic ones and from one country to another subject to special opportunities and special risks. Special treatment within certain limits, which have here certainly not been exceeded, is therefore not arbitrary in connection with the equalization of burdens.

The complainant would therefore not have had his fundamental rights under Articles 13 and 14 Basic Law infringed even had he let the liquidation of his property come about. Accordingly, he has had them infringed even less by having made use of the possibility allowed him of averting liquidation of his property by paying the contribution. Since his property was worth less than 50,000 Swiss francs, his contribution was, having regard to the exemption limit of 10,000 Swiss francs, even less than one-third of the value of the property.

5. There remains the complainant's objection that Article 10 of the Agreement contravenes Article 14 Basic Law, since it has taken a legal position away from him.

a) Insofar as the Federal Republic declares in Article 10 (1) of the Agreement that it does not wish to make any objections of any nature whatsoever against commutations that have taken place or are to take place, this means firstly that it will not grant German owners of assets in Switzerland any diplomatic protection in connection with this property. Fundamental rights of the complainant cannot have been infringed by this, since the Federal Republic has manifestly not arbitrarily ignored its duty of protection, but on the contrary met it by concluding the Agreement.

b) The Swiss Federal Court has admittedly concluded from Article 10 (1) of the Agreement that it has also taken away from German owners all objections to commutations (judgment of 12 July 1955 - BGE 81 II 366). But even from this standpoint no fundamental rights of the complainant would have been infringed, for even previously he did not under Swiss law have any possibility of raising any objections to a liquidation or asserting any claim to compensation going beyond the proceeds of liquidation. Accordingly, Article 10 (1) of the Agreement has not taken away from the complainant anything he previously had, even if the waiver of claim is interpreted as broadly as the Swiss Federal Court does.

The actionability of any claims under German law before German courts was ruled out by Article 3 of Law 63 of the Allied High Commission (ABl. AHK No. 64 p.1107), and claims in international law can in any case not be asserted by the complainant as a private person.

6. If there is no infringement of Article 14 Basic Law, then it follows that no general rule of international law on the protection of private property can have been infringed either, for no such general rules going further than the property protection of the Basic Law can be seen. Accordingly, it can be left undecided whether a constitutional complaint can at all be based on Article 25 Basic Law.

The constitutional complaint is therefore to be rejected.

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