Housing is a human right
The right to housing is a human right, enshrined in Article 11 of the International Covenant on Economic, Social and Cultural Rights (UN Social Covenant). Germany is obliged to protect and promote the right to adequate housing. This includes laws that regulate the housing and rental market and protect against excessively high rents.
In its decision on the so-called rent brake, the Federal Constitutional Court already made it very clear that it serves the common good to preserve affordable housing and to prevent low-income tenants from being forced out of their homes. According to the previous case law of the Federal Constitutional Court, the interest of landlords in high rents must take a back seat.
The decision of the Federal Constitutional Court
The Law on Rent Restrictions in the Housing Sector in Berlin (MietenWoG) came into force on February 23, 2020. Numerous landlords as well as a group of members of the Bundestag from the CDU and FDP went to the Federal Constitutional Court against the Berlin rent cap. Several Berlin courts also appealed to the Federal Constitutional Court. On April 15, the second senate of the Federal Constitutional Court ruled that the state of Berlin did not have the legislative authority to limit rent levels. In the view of the Federal Constitutional Court, the federal government has conclusively regulated rent law. This is constitutionally justifiable. However, the better arguments speak in favor of a state competence.
As an exceptional and special law, the rent cap serves to temporarily combat a social emergency on Berlin's housing market and supplements the social tenancy law under civil law. The state of Berlin has the legislative competence for the public-law rent cap. Until the 1970s, it was common for the legislature to impose public-law rent requirements to address social distress in the housing market. For this purpose, the legislature was able to rely on the competence title housing, for which the German states have been responsible since the federalism reform.
The Federal Constitutional Court confines itself to the question of legislative competence and does not comment on the question of the proportionality of the rent cap. The opinion of the GFF comes to the conclusion that rent regulation as provided for in the Berlin rent cap does not disproportionately interfere with the fundamental rights of landlords. In the balancing process, the public interest in affordable housing outweighs the landlords' interest in high rents.
The GFF as Amicus Curiae
Our opinion takes the form of an amicus curiae brief. This instrument originates from the US legal system. Although the amicus curiae, i.e. the friend of the court, does not acquire any independent procedural rights, they raise new perspectives on the legal dispute as well as further legal issues through an external opinion. The amicus curiae brief is not yet widespread in Germany and much of Europe, whereas in the United States it has long contributed to a more fundamental and human rights-friendly jurisprudence. We have set ourselves the goal of establishing this means of procedural participation in the interest of fundamental and human rights here as well.