One reform project in the new amendment to the German Building Code is currently generating a lot of discussion: in future, municipalities are to be given the opportunity to prevent the acquisition of properties by extremists or organised crime groups - by extending the municipal pre-emption right under Section 24 of the German Building Code (BauGB). A new pre-emption right is to be introduced in Section 24 (1) sentence 1 no. 9 BauGB. According to the draft bill, this is intended to „prevent social grievances (...) that arise due to the spatial impact of organised crime as well as right-wing, left-wing or religiously motivated extremist movements.“ In particular, reference is made to the phenomenon of „junk properties“ and the deliberate dominance of right-wing extremist groups in certain neighbourhoods through property acquisitions.

The municipal right of first refusal in accordance with Section 24 BauGB is already a key instrument of urban development law. It enables municipalities to enter into property purchase agreements and thereby exert a targeted influence on the use and development of properties with the aim of securing urban development plans, avoiding undesirable developments and ensuring orderly urban development. As the right of first refusal interferes with the private autonomy of the contracting parties, it is subject to strict legal requirements. According to Section 24 (1) sentence 1 BauGB, this only applies to properties within the scope of development plans that are intended for public use, in designated redevelopment areas and urban development areas or for nature conservation reasons. The right of first refusal, which is at the discretion of the municipality, may only be exercised if it is justified by the public good.

Extension of the right of first refusal raises legal questions

The planned extension of the pre-emption right to include the new Section 24 (1) sentence 1 no. 9 BauGB is suitable for extending the scope of the pre-emption right beyond its previous purely urban planning function. However, this also raises fundamental legal questions. This is also due to the fact that the proposed elements of the offence are broadly formulated and are highly open to interpretation. The municipalities therefore have considerable room for manoeuvre in their assessments. This is true even if the hurdles for the new pre-emption right are likely to be higher than some critics assume. For example, both the objective of a socially stable resident structure under building planning law or the suitability of the area to satisfy the social and cultural needs of the population must be jeopardised and the specific efforts of the buyer against the free and democratic basic order must be proven. According to the explanatory memorandum to the law, there must at least be factual evidence „that the buyer is encouraging the criminal structure or is subsequently supporting the unconstitutional endeavours whose (imminent) dominance triggers the aforementioned negative urban development effects“.

In order to determine whether these requirements for the right of first refusal are met, the municipalities are to be given the opportunity to make an enquiry with the relevant security authorities in accordance with Section 5 (5) sentence 1 of the German Weapons Act (WaffG) through a new Section 208a BauGB. As the local authorities themselves are unlikely to have any relevant information, they are reliant on such information. In this context, there is a particularly controversial debate about whether the municipalities should also be allowed to make enquiries to the constitution protection authorities. Consequently, the transfer of personal data by the Federal Office for the Protection of the Constitution to domestic public authorities should also be adapted accordingly. Accordingly, the Federal Office for the Protection of the Constitution should also be allowed to transmit personal data so that the municipalities can check whether the requirements for the new extended right of first refusal are met in the first place. According to the draft law, a concrete danger is not necessary at this point; suspicions and some indications are sufficient. The collection, transmission and utilisation of data, some of which is sensitive, associated with the request to the security authorities constitutes state information processing that can no longer be controlled by the individual. Courts may doubt whether this interference with the right to informational self-determination protected by the German Basic Law is justified by the - possible - prevention of extremist and criminal structures through urban planning.

Instrument to strengthen „defensive democracy“

And yet: it is right that the legislator should provide a set of instruments to counteract undesirable developments at local level too. If the slogan of „defensive democracy“ is not to remain an empty phrase, efforts to make all levels of government more defensible must not fail due to abstract legal concerns in advance. After all, the creation of the legal instruments does not say anything about whether its requirements are actually met in specific individual cases. In addition, those affected by the extended pre-emption right have the right to take legal action so that the actions of the municipalities can be reviewed by the courts.