Decision no. 33/2006

In 1938, the claimed real-estate properties belonged to the farming community which - being a use community of house-possessing Ottensheimer citizens - had existed next to the political municipality of Ottensheim since the 19th century. On the one hand, the farming community’s assets as well as its proceeds benefited its members. On the other hand, the community assets were used for public local needs – as for example, the installation and maintenance of lighting, water pipes, streets and squares. Upon introduction of the German municipality code in Austria in October 1938, municipality-similar “associations, corporations and organizations” were dissolved. Their assets fell under the ownership of the political communities. Due to this, also the municipality of Ottensheim became the owner of the assets previously administered and used by the farming community. For the purpose of realization and regulation of the transition of property, the farming community reached an agreement with the municipality of Ottensheim. This agreement intended the conversion of the farming community’s real-estate property into so-called “municipality-member property”. The community members’ yield use, which already existed before the dissolution of the farming community, was to be upheld for this part of the municipality property.

The former real-estate property of the farming-community Ottensheim remained under the property of the municipality of Ottensheim also after the annulment of the German Reich laws and – being “municipality-member property” – was attributed with special rights of use. According to the 1949 municipality code of Upper Austria from then on the “municipality-member property” was to be administered as a special estate of the municipality. In Upper Austria a legal basis for the resurrection of dissolved farming communities had not been constituted. Restitution proceedings concerning the real-estate property in Ottensheim formerly owned by the farming community, on which the Arbitration Panel was to produce a decision, had not taken place.

The Arbitration Panel examined whether reasons of persecution were decisive for the transition of the former real-estate property of the farming community to the municipality of Ottensheim. Since no concrete acts of persecution regarding the members of the farming community were documented, the Arbitration Panel examined whether the actual handling of the property transition to the municipality as well as its legal basis – the German municipality code – give evidence of a persecution of the farming community. The Arbitration Panel denied the existence of factual persecution. Following the jurisdiction of the Constitutional Court, the Arbitration Panel referred to the fact that the regulations of the German municipality code had been decisive for the property transition to the municipality. These regulations had only been implemented by the agreement. Also, the responsibility of the administrative bodies, which according to the applicants in 1938 had been obliged to consent to the property transition, was denied by the Arbitration Panel. Already prior to 1938, in accordance with the applying Upper Austrian municipality code, the municipality as well as the provincial government had been responsible for the regulation of this farming-community property. The German municipality code went on from this regulation in reference to “associations, corporations and organizations of a municipality-legal nature”, which were to be dissolved. Referring to this regulation of the German municipality code, the Arbitration Panel points out that it was not an expression of NS-ideology nor did its objective represent a discrimination. The Arbitration Panel conceded that it had come to encroachments on prior legal positions during the implementation of the new municipality law and that some regulations of the German municipality code had been given an undemocratic and National Socialist character, which was in the spirit of the “Gleichschaltung” and of the “Fuehrer” principle. However, this is not to be applied to the newly created municipality-member property which has also been updated by the (Upper) Austrian legal system.