Zum Anspruch öffentlicher Sachherrn auf Herausgabe entzogener öffentlicher Sachen kraft öffentlichen Sachenrechts

Abstract

In case the civil claim for return doesn’t help the public archive to recover dispossessed public archive material, it’s in question if the archive versus the material’s possessor has got a public-law claim for return by virtue of the public law of things. That’s generally not the case, contrary to a now as ever held opinion: If the archive - precisely: the public subject of the archive - has lost not only the possession but also the property right of the archive material, the archive is able to realize the recovery of the archive material neither by administrative action nor by action for performance through the administrative court. The same applies in case the archive hasn‘t lost its property right of the archive material but isn‘t able to realize the civil claim for return because of its statutory limitation. Here, too, a public-law request for return based only on the presumed public law of things is unsuccessful.

Something different applies to the Free State of Saxony and the Free State of Thuringia: Recently the state legislator has conceded a public-law claim for return to the public archives versus the possessor of dispossessed public archive material - a novelty in the entire public law of things. However, because of the constitutional property guarantee (Article 14, section 1 of the German Basic Law) the relevant state law (Section 8, paragraph 2, sentence 3 Saxon Archives Act; Section 2, paragraph 1, sentence 4 Thuringian Archives Act) has to be interpreted in conformity with the constitution: The state law grants the archives a public-law claim for return which is cognizable by action for performance through the administrative court. But only, although at least, versus the archive material’s possessor who isn’t the material’s proprietor.

This applies mutatis mutandis to other (i. e. non-archival) public things. In so far, however, because of the property guarantee (Article 14, section 1 of the German Basic Law) legislative amendments can be taken into consideration at most and only concerning unique specimens which are irreplaceable for public purposes: cultural assets with a unique character.