Decision no. 5/2004

The Arbitration Panel for In Rem Restitution was established with the General Settlement Fund based on the Washington Agreement, which was concluded between the USA and the Republic of Austria in January 2001. It examines applications for in rem restitution of public property which was seized from the original owners during the National Socialist Regime in Austria.

Three groups of applicants from the circle of the Habsburg-Lothringen family, which was disowned in 1919 due to the Habsburg Law, applied for restitution of estate properties being part of the former Habsburg-Lothringen „Familienfonds“ (“Family Fund”). The Habsburg Law was elevated to constitution law rank in 1920 and downgraded to a common law in 1934. This downgrading facilitated the restitution of real estates and other assets to the Habsburg-Lothringen family during the period of the “Ständestaat” (the authoritarian period of the first Austrian Republic). Exclusively for this reason the “Familienversorgungsfonds des Hauses Habsburg-Lothringen“ (“Habsburg-Lothringen Family-Provision Fund”) was established in 1936 to which a major part of the before mentioned properties was handed over. The assets in concern were: the properties Mattighofen, Orth an der Donau including castle Eckartsau, Pöggstall including Spitz an der Donau, Vösendorf, Laxenburg including castle, park and the “Lanzendorfer Au”, Krampen, Mannersdorf/Leitha, five rent-houses in Vienna as well as securities.

These assets were seized by the National Socialist Regime in 1939. The property was devolved in parts upon the German Reich and in parts upon the City of Vienna. The “Habsburg-Lothringen Family-Provision Fund” was dissolved. Due to the restitution legislation the real estate became property of the Republic of Austria after 1945. Because of a waiver by the Republic of Austria the real-estate property which had already belonged to the City of Vienna remained in the ownership of the City of Vienna.

On 1 May 1945 the Austrian Constitution according to its version as of 5 March 1933 was put into force along with the Habsburg Law.

Regarding the personal property which they had possessed in 1938 and which had also been disowned by the National Socialist Regime several members of the Habsburg-Lothringen family had applied successfully for restitution after 1945. The property from the “Habsburg-Lothringen Family-Provision Fund” though was subjected to the “Stiftungs- und Fondsreorganisationsgesetz” (“Foundation and Fund Reorganization Law”) of 1954. This law did not foresee the reestablishment of the Family-Provision Fund; the Republic of Austria was exclusively entitled to raise restitution claims regarding the property of the Family-Provision Fund.

Up to the present day the properties of the former Family-Provision Fund belong to the Republic of Austria and the City of Vienna.

The Habsburg Law was embodied in international law in 1955 together with the Austria State Treaty. Article 10 of the Austria State Treaty obligates Austria to the maintenance of the Habsburg Law. In 1964 this provision was incorporated into the constitution.

Having thoroughly examined the status of the applications for in rem restitution in question the Arbitration Panel rejected them as not lying within its jurisdiction since Austrian constitutional law and Austria’s international obligations currently in effect prohibit a restitution of the properties applied for.

The Arbitration Panel bases its three decisions on the fact that the Habsburg Law, being part of the Austrian Constitution since its adoption in 1919 until the constitution of 1934, included an upright ban on restitution. Also with this same content the Habsburg Law became again part of the Austrian Constitution in 1945.

Up to the present day the constitutional legislator of the Second Republic has not annulled the Habsburg Law, which is in the rank of constitutional law. Rather, the validity of the Habsburg Law was repeatedly confirmed by legislation and case-law since 1945. Among other things the restitution claims for these properties were reserved for the Republic of Austria due to the Foundation and Fund Reorganization Law. Furthermore, Austria is bound by international law to maintain the Habsburg Law due to Article 10 of the State Treaty of 1955.

On account of the Washington Agreement and of the General Settlement Fund Law the Arbitration Panel is obligated to observe Austrian (constitutional) law and Austria’s international obligations in its decision making. It cannot be implied that the legislator enabled a decision making panel through provisions in the rank of a common law to make an unconstitutional recommendation for property-restitution. Being a common law the General Settlement Fund Law cannot assign to the Arbitration Panel an examination on the merits of an application for in rem restitution, if the result, in this case the rejection of the application, is already anticipated since contemporary Austrian constitutional law and Austria’s international obligations would conflict with restitution. For these reasons, the Arbitration Panel declared to lack jurisdiction over the applications in question.