Decision no. 482/2008

In 1938 the original property, which constituted a single unit with an area of around 8,200 m², was owned by the Yugoslavian industrialist Arthur D. Although he was a member of the Evangelical Religious Community, he was subjected to persecution by the National Socialist regime due to his Jewish ancestry. For this reason, Arthur D. betook himself to London shortly before of shortly after the Anschluss of Austria to the German Reich. After the outbreak of the Second World War, he left the British Isles and, via Brazil, emigrated to the USA.

In the meantime, the National Socialist authorities had appointed the provisional administrator Josef K. for Arthur D.'s property in Austria. After a private prospective buyer had initially wanted to acquire the property, the German Reich Railway announced its interest in the predominantly empty area of land. As it cited company purposes as the motive for the purchase, the Reich Railway was favored as purchaser by the National Socialist authorities. It was thus able to acquire the property in January 1940 for around 71,000 Reichsmark.

At the end of 1947, Vera B., the only daughter and universal successor of Arthur D, who had died in New York in 1943, claimed for the restitution of the property from the German Reich at the Restitution Commission Vienna. As this property was considered "German Property", negotiations concerning this restitution claim were for the time being only possible with the consent of the four allied occupying powers. During this time, however, it was not possible to obtain a consent of this kind.

As the property had been used by the Austrian Federal Railways since 1945, Vera B's attorney-at-law also sought to enter into negotiations with the Austrian Railway Administration. The Railway Administration disputed, on the one hand, that a seizure of property was present, as the property had been acquired for Railway purposes and therefore could have been expropriated at any time in accordance with the Austrian Railway Expropriation Law, which had been in effect since 1878. However, the Railway Administration responded positively to a settlement proposal put forward by Vera B.'s attorney in summer 1948, under the condition that the property be transferred into the ownership of the Republic of Austria upon payment of the proposed compensation amount, as this property was urgently required for railway purposes. A settlement concluded in 1951 between Vera B., the German Reich and the Republic of Austria settled the matter in this way. As compensation for her restitution claim, Vera B. received a payment of 25,000 Schilling from the Republic of Austria.

Soon after the conclusion of the restitution proceedings, the Austrian Federal Railways commenced the planning work for the construction of company housing on the property. For this purpose, two construction sites were created, on which the Railway Administration built 13 housing blocks consisting of a total of 233 apartments between 1954 and 1959.

Both applicants before the Arbitration Panel, heirs of Vera B., asserted the extreme injustice of the settlement concluded in 1951. On the basis of the documents made available by the Federal Railways, it was possible for the Arbitration Panel to reconstruct in detail the course of the settlement discussions at the end of the 1940s between Vera B. and the Railway Administration. In doing so, the Arbitration Panel had to recognize that although the Railway Administration regularly stressed that the property was required for railway purposes, at the same time no concrete evidence could be found which could have suggested a (planned) construction of railway systems. The doubts were substantiated by the incipient planning work for the construction of housing estate directly after the conclusion of the restitution proceedings. Therefore, the recourse to the expropriation provisions of the Railway Expropriation Law had to be recognized as inadmissible.

In this specific case, this restricted the scope to negotiate of the restitution claimant, who was additionally prevented from earlier implementation of her restitution claim through the courts due to the declaration of consent from the allies which was to be provided. The Arbitration Panel assessed this to be a situation of structural imbalance effected by the public owner to the disadvantage of the former restitution claimant Vera B. and the resulting settlement conclusion with the small compensation amount of 25,000 Schilling to be "extremely unjust".

For this reason, the Arbitration Panel recommended the restitution of the built on property with a total area of 5,400 m², although the recommendation does not include the 13 housing blocks with apartments, as these are assigned to a private housing association by means of a building lease. The difference in area to the original property area of 8,200 m² is essentially divided into access roads. The Arbitration Panel was unable to award any compensation for these, as the construction of these streets had no connection to the National Socialist regime.