## Facts

- After major storm-floods, Hamburg enacted a 1964 statute reorganizing dike and flood-protection property and administration to ensure effective flood control.
- The statute transferred specified dikes and flood-protection installations into “public ownership” of Hamburg automatically by operation of law.
- The statute provided a compensation system for affected owners, including fixed per-square-meter compensation for certain categories of land and adjustments.
- The statute also authorized boundary and parcel readjustments in dike areas with balancing and compensation mechanisms.
- Multiple private landowners and a dike association filed consolidated constitutional complaints challenging the statute under the German Basic Law, including property protection, formal limitations rules, and legislative competence.

## Issues

1. Whether a constitutional complainant may challenge an expropriation statute on the ground that the legislature lacked competence to enact it.
2. Whether statutory creation of “public ownership” in flood-protection installations is compatible with constitutional protection of property, including the institutional guarantee of property.
3. Whether expropriation statutes “restrict” a fundamental right in a manner that triggers formal requirements applicable to rights limitations (e.g., prohibition on single-case laws and citation requirements).
4. What constitutional standards govern expropriation by statute, including public-interest justification, proportionality, and judicial review.
5. Whether the legislature may prescribe flat-rate compensation and whether compensation may fall below market value while remaining constitutional.

## Decision

- The court rejected the constitutional complaints and upheld the challenged provisions.
- The court held that competence-based objections to an expropriation statute may be raised in a constitutional complaint.
- The automatic statutory transfer of specified flood-protection installations into public ownership was constitutional.
- Expropriation statutes do not constitute “restrictions” of property within the meaning of the Basic Law’s general formal constraints on limitations of rights; those constraints therefore did not apply.
- Expropriation by statute is permissible only in narrowly confined situations and remains subject to proportionality review.
- The court held that whether an expropriation serves the public good and whether expropriation is necessary are subject to constitutional judicial review, not insulated by legislative judgment.
- The compensation framework, including flat-rate per-square-meter valuation and compensation below market value, satisfied constitutional requirements on the facts presented; defective compensation would invalidate the expropriation statute as a whole.

## Legal Principles

- Property is constitutionally protected both as an individual right and as an institution; the institutional guarantee bars removing from private-law ordering those subject matters that belong to the elemental core of constitutionally protected patrimonial activity.
- Expropriation by statute is constitutionally permissible only in narrowly limited circumstances and must satisfy proportionality.
- Whether expropriation serves the public good and whether it is required for the project are fully reviewable constitutional questions.
- Expropriation statutes are governed by expropriation-specific constitutional conditions and are not treated as ordinary “limitations” subject to general formal requirements for restricting fundamental rights.
- Compensation provisions are constitutionally inseparable from the validity of an expropriation statute; if the compensation scheme fails constitutional standards, the entire expropriation law is unconstitutional.
- The legislature may set a uniform statutory compensation rate when value-determining factors do not materially differ among affected parcels.
- Constitutional compensation need not equal market value in all cases; the legislature may set compensation below market value if the statutory balance between public and private interests is justified.

## Conclusion

The court upheld Hamburg’s statutory transfer of flood-control infrastructure into public ownership and its compensation scheme, holding that narrowly confined expropriation-by-statute can be constitutional when justified by the public good, proportionate, and paired with constitutionally adequate compensation that may be flat-rate and, in appropriate circumstances, below market value.


Hamburg Flood Control Case (F.R.G.), 24 BVerfGE 367 (BVerfG 1968)