Rechtscheck: Was das Grundgesetz zur Berliner Vergesellschaftung sagt

Berlin's community property debate has been reignited as the city approaches a potential coalition government. The federal government intends to complicate Berlin's plans through an Investment Protection Act. However, such legislation is as contentious legally as the community property itself. The primary issue in the debate centers on Article 15 of the Basic Law, which permits the transfer of land and property "for the purpose of community ownership or other forms of collective ownership, upon enactment of a law detailing the type and extent of compensation."

Yet, this article has never been applied, which has led to a lack of legal precedent and a disputed interpretation. Thorsten Schmidt, a law professor at the University of Potsdam, posits that any community property legislation should be measured against the principle of proportionality, meaning it must serve a legitimate purpose and be suitable, necessary, and appropriate to achieve that purpose.

Schmidt believes that the proposed community property plans in Berlin do not meet this criterion. The issue of moderate alternatives to achieve affordable housing also arises. The Land constitution of Berlin also plays a role in these plans, as it contains provisions for the protection of property, unlike the Basic Law, which does not have a corresponding provision.

The federal constitution allows both the Bund and the Land to enact regulations on community property, but the Bund must demonstrate that a federal law is necessary. The Bund may only use its legislative competence to positively regulate, such as protecting property rights with investment guarantees while also considering the interests of tenants.

It is uncertain whether community property will be implemented in Berlin, but if it does, the compensation for affected businesses would likely amount to several billion euros.