Decision no. 303/2006

Since 1883, the claimed real estate was owned by an association, established in 1882, whose purpose was providing education and care for mentally handicapped children. The concerned real estate including the building structure in Biedermannsdorf had been donated to the association by a private individual. The association established a home for the accommodation and education of children and juvenils in the buildings and managed it until 1938. The activities of the association were financed by numerous members of the association, predominantly private individuals, but also by the provinces of Vienna and Lower Austria.

The association’s bylaws of 1923 provided that especially children from the provinces of Vienna and Lower Austria were to be admitted into the establishment, which was conducted by the association in Biedermannsdorf. The mentioned provinces were entitled to a right of proposal regarding vacant nursing places in the home. It was provided in the bylaws that in case of a dissolution of the association, possibly still remaining assets would be given to a foundation for needy children of the provinces Vienna and Lower Austria. However, a formal dissolution of the association never took place since it was dissolved in 1938 by the National Socialist Stillhaltekommissar and the association’s property was introduced to the municipality of Vienna. After 1945, the home and the real estate remained under the ownership and administration of the City of Vienna. A restitution procedure regarding the property of the dissolved association was not initiated.

The Arbitration Panel had to examine whether the applicant, a public-law body corporate, could be regarded as a legal successor as defined by Sec. 27 para. 2 of the General Settlement Fund Law. The dissolved association was not re-established in accordance with the Association Reorganization Law after 1945. A dedication of property to a foundation, which could have been regarded as a legal successor, foreseen in the bylaws in the case of a dissolution of the association, did not take place. Beyond this, no further establishments concerning a possible legal succession could be gathered from the association’s bylaws. In this connection, also the division of competences of the Federal Constitution as stated by the applicant does not in the opinion of the Arbitration Panel offer a basis of regulation. This is because on account of the division of competences concerning a certain subject (youth welfare), a legal succession of the concerned bodies corporate (provinces) to a dissolved legal entity cannot be deducted; even if the public authorities might have profited within their sphere of operation from the association’s activities. The application for restitution was to be dismissed since the applicant cannot be regarded as the legal successor to the dissolved association.