Wandel des Eigentums

In dealing with the question of what actually changes when it comes to »the structural change of property«, I have come to the conclusion that often, when something is labelled as »structural change«, there is no such structural change to be found. However, I identified two processes concerning the development of property which actually deserve to be designated a »structural change«: on the one hand, the introduction of so-called share ownership (Anteilseigentum), signifying a form of ownership that is mediated by company law, and on the other hand, the process of dematerialisation of property, which still is in full process in the course of digitalisation. Nevertheless, the expression »functional change of property« is misleading, because the basic function of property – securing freedom with regard to assets – has not changed; what has changed instead is the scope of property protection, due to the fact that the significance of property diminished and was to some extent functionally replaced by other legal positions. The phenomena of a »open access movement« and a »sharing economy«, which have been largely discussed in recent years, are actually bear witness to such change in the valuation of property – as the formula from »must have« to »share« so vividly puts it. In the course of writing this article, however, it became increasingly unsatisfactory for me to »stow« the different forms of property change in one of the three boxes – structural, functional or conceptual change. A way out is to turn the attention towards the astonishing »plasticity« of property, i. e. its entierly dynamic structure. This dynamic structure is the consequence of the fact that numerous socio-political conflicts are fought out as a struggle over the substance of property, paradigmatically the eternal conflict between private utility of property on the one side and its social obligations on the other. This is exemplified with regard to three battlegrounds, namely the conflict of interests in copyright law, in the relationship between landlords and tenants and between investor ownership and financial market stabilisation. Finding a balance between those conflicting interests is continuous task for the legislator but also for the Federal Constitutional Court as an »agent of change".