Safeguarding Laws – Definition, Legal Framework and Significance
The safeguarding laws form a crucial component of Germany’s emergency and crisis law. They regulate the powers of government agencies to secure and requisition assets, services, and rights in special hazard and crisis situations. The provisions of the safeguarding laws take effect particularly during internal or external emergencies, states of defense, states of tension, disaster situations, or for civil protection purposes. The aim is to maintain the security of supply for the population and the operability of the state during exceptional times.
Definition and Scope of Application
Definition
Safeguarding laws refer to federal legal provisions that enable the temporary governmental control of movable or immovable property (e.g., vehicles, real estate, machinery) as well as rights or services of natural and legal persons. Safeguarding is generally executed by administrative act and is limited in scope and duration to crisis situations.
Function within the Rule of Law
These laws provide an exceptional legal basis for encroachments on property and certain freedoms. Their primary purpose is to protect the public from significant dangers and to ensure the safeguarding of supplies and critical infrastructure.
Legal Basis of the Safeguarding Laws
Constitutional Basis
The authority for safeguarding measures is derived from Article 14(3) of the Basic Law (GG), which permits expropriation “for the public good,” as well as from Article 12a GG regarding the obligation to provide services in the event of defense.
Key Federal Law Provisions
Numerous safeguarding laws exist in German law, covering various areas of protection and ministries:
- Civil Protection and Disaster Protection Act (ZSKG)
- Transport Safeguarding Act (VerkSiG)
- Food Security Act (ErnVorsG)
- Energy Safeguarding Act (EnSiG)
- Economic Safeguarding Act (WiSiG)
- Postal and Telecommunications Safeguarding Act (PTSVG)
- Medical Products Insertion Act (MedEG), among others.
Additionally, there are state-level provisions for safeguarding at sub-legislative levels, for example within the framework of disaster protection.
Requirements and Procedures
Safeguarding may only be implemented under the conditions specified in the respective laws. These include in particular:
- Existence of a specific need or emergency
- Necessity and proportionality of the measure
- Legal order issued by a competent authority
- Provision for compensation
The process is usually designed as an administrative procedure with corresponding legal remedies.
Instruments and Types of Safeguarding
Types of Safeguarding
Safeguarding may apply to various types of objects and services:
- Objects: Vehicles, fuels, real estate, machinery, consumer goods
- Rights: Rights of use and disposal
- Services: Labor, services provided by certain professions or companies
Order and Implementation
Safeguarding is effected by administrative act. Generally, affected individuals or companies are informed and required to surrender or provide the relevant assets. In special situations, immediate requisition may occur without prior consent.
Safeguarding in Cases of Tension and Defense
A particular area of application of the safeguarding laws is in cases of tension and defense (§ 115a GG et seq.) as well as in emergency situations. Here, extensive safeguarding obligations for citizens, companies, and organizations can arise based on specific legal regulations.
Important measures include:
- Safeguarding of transport, supply, and operational resources
- Safeguarding of production goods for supplying the population or the armed forces
- Safeguarding of telecommunications and energy infrastructure
- Obligation to provide labor and services in supply-critical sectors
Compensation and Legal Protection
Compensation Provisions
The safeguarding laws require the state to adequately compensate for economic losses resulting from safeguarding or requisition. The amount of compensation is determined either by law, statutory instrument, or in individual cases by estimation or valuation (§ 14(3) GG). In disputes over the amount of compensation, legal recourse to ordinary courts is available.
Legal Remedies
Affected persons may challenge safeguarding orders, especially by lodging an objection or filing suit before the administrative courts. In urgent cases, temporary legal protection is also possible. Safeguarding lapses if the legal requirements are not met or subsequently disappear.
Distinction from Other State Measures
Safeguarding differs from other governmental interventions such as expropriation (permanent deprivation of ownership), seizure or police law (immediate, often temporary safeguarding to avert danger), and voluntary service provision or compulsory administration.
Significance and Practical Application
The safeguarding laws are central instruments of governmental provision in exceptional situations. They enable authorities to quickly and efficiently access vital resources if needed. Their practical importance is particularly apparent during military crises, disaster response, and in cases of widespread supply shortages.
Literature and Further Resources
- German Bundestag: Papers and Materials on Safeguarding Laws
- Handbook of Disaster Law
- BeckOK GG, Commentary on Art. 14 and Art. 12a GG
- Federal Office of Civil Protection and Disaster Assistance (BBK)
- Federal Ministry of the Interior: Publications on Civil Protection and Legislation
This comprehensive overview presents all legal aspects of safeguarding laws in Germany. The regulations are central to maintaining supply, security, and public order in any crisis situation.
Frequently Asked Questions
When and under what conditions may measures based on safeguarding laws be implemented?
Measures under safeguarding laws may in principle only be taken when there is a specific hazard to public safety and order, particularly in the case of tensions or a state of defense pursuant to Art. 80a and Art. 115a GG, or in disasters and significant disruptions of essential state functions. Determining this situation is usually the responsibility of the federal government or an authorized authority. Furthermore, a formal legal act, such as a safeguarding order specifying the nature, scope, and duration of the measure, is required. The measure must also be proportionate, suitable, necessary, and appropriate. This means that no less severe means must be available and the measure must serve the protection of key legal interests, such as life, limb, supply of the population, or maintaining the functionality of state institutions.
What rights and obligations do individuals or companies affected by a safeguarding measure have?
Individuals or companies whose assets, properties, or resources are requisitioned under a safeguarding law are generally obliged to tolerate the measure. For example, they must allow the use of assets or report their whereabouts. Typically, there is also a duty to manage or maintain the secured object until its transfer to the state or a third party is ordered. In return, they are entitled to appropriate compensation, which is usually calculated according to the rules on expropriation or the value of the requisitioned good. Further, safeguarding measures must not result in the permanent deprivation of ownership, but must, in principle, be limited to the duration of the particular hazard situation.
To what extent are legal remedies available against safeguarding measures?
Even for measures under safeguarding laws, the administration is subject to the principle of effective legal protection under Art. 19(4) GG. Measures imposed can therefore be reviewed by the courts. Those affected have the right to file objections against safeguarding orders or bring an action before the competent administrative court. In cases of immediate enforcement, an application for interim relief may be filed (see e.g. § 80(5) VwGO). Courts will scrutinize in particular the formal and substantive legality of the measure, including observance of the principle of proportionality. In exceptional cases, legal remedy options may be restricted, but must at least be guaranteed retroactively.
How is compensation provided for safeguarding measures and how is the amount determined?
Compensation for safeguarding is governed by statutory compensation rules, such as the Safeguarding Act (SichStellG) or special legislative provisions (e.g. Federal Performance Act, Economic Safeguarding Act). The amount of compensation is generally based on the market value or on any loss or profit generated during the safeguarding period. A request must be made by the affected party, after which the relevant authority will conduct an administrative procedure to assess and pay the compensation. In the event of disputes, the compensation amount may be reviewed by a court. For longer-term interventions, regular advance payments are often made.
What legal bases exist for safeguarding measures under German law?
The central legal bases are the Law on Safeguarding of Services for Defense Purposes (Safeguarding Act – SichStellG), the Federal Performance Act (BLG), the Transport Safeguarding Act (VerkSiG) as well as further provisions in the Federal Supply Act and the Economic Safeguarding Act (WiSiG). There are also state-specific rules, ordinances, and sub-legislative norms clarifying certain processes or jurisdictions. The laws generally require the establishment of a state of tension or defense, and, exceptionally, special crisis situations such as natural disasters or large-scale accidents. Legality also requires constant observance of the Basic Law, especially property protection and the principle of proportionality.
What control mechanisms exist to limit the discretion of authorities?
The implementation and ordering of safeguarding measures are subject to various controls. First, there is administrative supervision exercised by higher authorities. Parliamentary committees are often involved; for example, the determination of a defense or tension situation is made only by the Bundestag. There is also a documentation and justification obligation for the authorities, which ensures that every measure is transparent and reviewable. Finally, those affected have the aforementioned legal remedies available to obtain correction in cases of abuse of discretion or incorrect weighing of interests.
How long may safeguarding measures last, and how are they terminated?
The duration of safeguarding measures is generally limited to the duration of the underlying special hazard situation—e.g. state of tension or defense or the existence of a disaster. As soon as the prerequisites for safeguarding cease, the measures must be lifted. The return of secured items or the termination of restrictions is carried out ex officio or on application by those affected. There is also an obligation for authorities to regularly review the necessity and legality of ongoing measures. In practice, the termination is established and documented by written decision, with the option of judicial review remaining possible in such cases as well.
