Decision no. 651/2010

On 21 April 2010, the Arbitration Panel for In Rem Restitution rejected an application for the restitution of properties in the cadastral district Markgrafneusiedl. The properties had been acquired by the Reich Treasury Aviation during the course of the creation of the airfield Deutsch-Wagram in 1940. As the sale of the property had not been connected to a political persecution of the former owners by the National Socialists, a property seizure pursuant to the Entschädigungsfondsgesetz ("General Settlement Fund Law – GSF Law") did not exist. Moreover, the heirs of the former owners had received compensation for these properties from the Lower Austrian provincial government in the 1960s.

In 1938, the properties subject of the application had been owned by Theresia P. In 1940, the Reich Treasury Aviation had acquired the properties for the creation of the airfield Deutsch-Wagram by means of a barter agreement. In exchange, Theresia P. received a nearby comparable property that the Reich Treasury Aviation had previously acquired from the Jewish farmers Samuel and Marie D.  

After the end of the war, the heirs of Samuel and Marie D. filed a claim for restitution against Theresia F., the daughter and heir of the late Theresia P., and the seized properties were restituted to them in 1951. In January 1956, Theresia F. and, in October 1958, her sister Friederike W. filed claims at the Financial Directorate for Vienna, Lower Austria and Burgenland for the restitution of the properties transferred to the Air Force by her mother in 1940 and then owned by the Republic of Austria. In 1958, the Financial Directorate dismissed the claim of Theresia F. for the reason that there had not been a seizure in the meaning of the Dritte Staatsvertragsdürchführungsgesetz ("Third State Treaty Implementation Act"). The claim of Friederike W. was dismissed as it was not filed within the deadline. In May 1959, the restitution claimants lodged appeals against these decisions which were not granted by the Federal Ministry of Finance due to formal errors in the restitution applications.

After Theresia F. and Friederike W. had consequently submitted an application for a preferential re-purchase of properties of the former military training area Bruck/Kaisersteinbruch-Sommerein, which were of equal value, on behalf of the Federal Ministry, the Lower Austrian provincial government paid Theresia F. monetary compensation of 226,000 Schilling for the properties subject of this application and Friederike W. 75,000 Schilling. The compensation was paid from the proceeds of the sale of land from this military training area. These amounts were paid in instalments between November 1965 and July 1968.

In its juridical appraisal, the Arbitration Panel initially examined whether political persecution had been decisive for the transfer to the properties subject of the application to the German Air Force in 1940, as the applicants Rosa and Ernst H. had submitted that the two requested properties had been seized from the former owner Theresia P. and that they were therefore to be considered victims of National Socialism. The Arbitration Panel reached the conclusion that the creation of the air filed per se did not constitute persecution and that the way in which the property transaction was carried out also demonstrated no indications of the political persecution of Theresia P. Moreover, the compensation payments received by Theresia F. and Friederike W. also stood in the way of a restitution in rem.