Decision no. WA7/2009

The requested property - a development site with an area of 5,309 m² in Vienna Favoriten, which had been owned by Gustav H., a co-founder of the company G & W H. who had died in 1937 - was inherited in 1939 by his children Margarethe R., Hans H. and Marianne W, who had died in 1938. All owners were considered Jewish pursuant to the Nuremberg Laws. Hans H. and the family of Marianne W. had to flee Austria, while Margarethe R., who lived in a "privileged mixed marriage" with an a "aryan", remained in Vienna. Beforehand, they had been forced to sell their property and their capital shares in the company G & W H. The "aryanized" company acquired the property in 1940 and sold it in 1943 to Viktor O., one of the new partners.

In 1947 and 1948, Hans H. and the heirs of Marianne W. submitted restitution applications regarding the property and their shares in the company. Their shares in the company were restituted by means of a partial decision of the Restitution Commission in May 1949. Margarethe R. had already received her share in 1948. In October 1949, the company G & W H. bought back the property from Viktor O. On the same day, in a settlement with Viktor O., Hans H. waived restitution of the property. In April 1950, the heirs of Marianne W. also waived the restitution in favour of Viktor O. The claims to the company G & W H. were finally dealt with in January and April 1950 in settlements with which the "aryanizers" were able to keep 8.75 % of the capital shares in the company as compensation for the purchase price and the investments made.

With regard to the settlements concluded concerning the property, the Arbitration Panel was unable to determine an extreme injustice in its decision no. 25/2005 of November 2005. The 2/3 owners had waived their claims to restitution because the proceeds from the sale had been used to settle inheritance tax payments. Moreover, the available documents concerning the settlement conclusion had contained no indication that the freedom of contract of the participants had been restricted.

In their applications for a reopening, the applicants submitted that Viktor O. had exploited his position as a company shareholder of G & W H. in order to prevent the restitution of the property shares to Hans H. and the heirs of Marianne W. This and their financial predicament at the time of the settlement, as well as internal family disputes, would indicate such a restriction of freedom of will that the restitution waivers submitted in 1949 and 1950 seemed extremely unjust.

The applicants were able to prove a conflict within the family with the submitted documents, however, its actual effects on the course of the restitution proceedings were not recognizable. This is because the owners and their heirs had regained control over the financially successful company after the partial decision of the Restitution Commission of May 1949, and so for this reason, from this time on, there was neither an imbalance in the favour of Viktor O. nor were Hans H. and the heirs of Marianne W. in a financial predicament.