Decision no. 643/2010

The case before the Arbitration Panel concerned the remaining 13,664 m² of a total of 73,051 m² of arable land which the Jewish owner Salomon W. had been forced to sell to the German Air Force in 1941. After the Anschluss, the Air Force had commenced the construction of a shooting range on the territory of the Municipality of Süßenbrunn, which had formerly belonged to Lower Austria. For this purpose it had laid claim to numerous arable areas belonging to private owners. In contrast to Salomon W., these owners were able to successfully resist the sale/transfer of their properties to the German Air Force until the fall of the National Socialist regime.

At the time, the purchase price of around 18,000 Reichsmark was used in 1942 to "pay" the so called Sühneabgabe ("Atonement Tax"). Salomon W., who had gone into hiding in Vienna as a result of the persecution by the National Socialist regime, received none of it.

In May 1948, Salomon W. filed for the restitution of the arable land seized from him by the German Reich. As these properties were considered Deutsches Eigentum ("German Property") by the Allied occupying powers, the Austrian courts refused to negotiate the restitution claim until the conclusion of the State Treaty 1955. The State Treaty rendered Austria the owner of the claimed areas.

In the restitution proceedings, which Salmon W. had continued to conduct against the Republic of Austria from 1956, the Republic employed considerable delaying tactics and ultimately contested that a property seizure had even taken place. After protracted negotiations, in a settlement of 1959 the sons of Salomon W., who had in the meantime passed away, had to content themselves with the restitution of around 60,000 m² of the originally sold area of over 73,000 m². They waived the right to the remainder; an area of 13,664 m² therefore remained in the ownership of the Republic of Austria.

The three applicants before the Arbitration Panel, grandchildren of Salomon W., asserted the extreme injustice of the settlement concluded in 1959 with regard to the area that had not been restituted. In its juridical appraisal, the Arbitration Panel reached the conclusion that the sale in 1941 had constituted a National Socialist related property seizure, in accordance with both the restitution acts valid after 1945 and with the GSF Law. In its assessment of the restitution proceedings conducted between 1948 and 1959, the Arbitration Panel determined that the Republic of Austria had exploited its legal and factual room for maneuver to the detriment of the aggrieved owner Salomon W. to such an extent that the waiver of the 13,664 m² had constituted an extreme injustice.

However, the Arbitration Panel was only able to recommend the restitution of a little over 9,000 m² of this area; the remainder of around 4,500 m² was not publicly-owned on the cut off day cited by the GSF Law, 17 January 2001.