Öffentliche Sachen im digitalen Zeitalter

The law of public property has long been regarded as a field that lacks a sufficiently developed doctrinal foundation. Since the well-known Hamburg City Seal case in the 1990s, the prevailing view that public property under state administration constitutes a modified form of private ownership has lost considerable support, as critics argue that it violates the principle that administrative action requires a statutory basis. Marvin Gülker demonstrates that such an approach fails to do justice to this complex body of law, whose roots extend back to the ius commune . He refines the traditional doctrine by eliminating its rule-of-law deficiencies and identifies the pre- and post-constitutional legal norms from which public control over property may be derived. To this end, he develops a conceptual framework for the notion of "public property" and distinguishes the law of public property, which primarily serves a protective function, from the law governing public institutions, which focuses on use and access. He situates this field of law within the allocation of competences between the Federation, the Länder, and the European Union, and demonstrates why the central absolute public-law right and its constitution through dedication ( Widmung ) do not violate Article 14 of the German Basic Law.
The analysis is not confined to the objects traditionally associated with this area of law. Rather, it ranges from the Imperial Regalia, public roads, and res sacrae to virtual spaces and internet domains. Drawing on numerous examples, the author explores manifestations of public control over property in areas that have so far received little attention, including civil protection law under the Federal Performance Act ( Bundesleistungsgesetz , BLG) and the Civil Defence Act ( Schutzbereichsgesetz , SchBG), archival law, and the law of classified information. In the digital sphere, he shows that the systematized doctrine of public property presented in this study can also provide the foundation for a public law of intangible assets.