Decision no. 736/2011

During the First Republic, the property had belonged to the Austrian Association of Jewelers, Gold and Silversmiths and related Professions, a social democratic organization. In 1934, the association was dissolved, its assets confiscated by the "corporate state" and transferred to the newly established Federation of Trade Unions for Austrian Laborers and Salaried Employees, which then, in 1935, sold the property to two lawyers, the brothers Dr. Maximilian R. and Dr. Adolf R. After the Anschluss, the new owners were persecuted for being Jewish as defined by the Nuremberg Laws of 1935 and murdered in Auschwitz and Maly Trostinec respectively. The property was forfeited to the German Reich on the basis of the Elfte Verordnung zum Reichsbürgergesetz (“Eleventh Decree to the Reich Citizenship Law”) but the transfer of ownership was not recorded in the land register.  

After 1945, the representative in absentia for the two Jewish owners, represented by Dr. Anton L., sought the restitution of the property from the Financial Directorate for Vienna, Lower Austria and Burgenland. However, these proceedings were never concluded due to differences between Dr. L. and the authority regarding the administration of the property. In December 1948, the Financial Directorate declared that it was no longer able to deal with the restitution claim.

In the meantime, the Restitution Fund of the Free Trade Unions, which had been established to reverse politically motivated transfers of property during the time of the corporate state, filed an application for restitution of the property with the Restoration Commission at the Provincial Court for Civil Matters Vienna. The application was directed against the R. brothers, who continued to be recorded as owners in the land register. They were again represented by their representative in absentia, who entrusted Dr. L. with conducting the proceedings. By decision of 31 August 1948, the Restoration Commission granted the application of the Restitution Fund on the basis of the provisions of the First Restoration Act. The request of the R. brothers’ representative for the reimbursement of the purchase price was rejected. As an appeal by the adverse party was also unsuccessful, the decision became legally binding on 23 July 1949.

In 1954 the City of Vienna became the owner of the property.

Efforts by Elise R., the wife of Dr. Maximilian R., who had succeeded in fleeing to the USA after the Anschluss, to receive compensation for the purchase price paid for the property by the R. brothers in 1935 remained unsuccessful.

The applicant in the proceedings before the Arbitration Panel is entitled to succeed both Dr. Maximilian R. and Dr. Adolf R. as he is the testamentary heir of Elise R. Although a seizure pursuant to the Entschädigungsfondsgesetz (“General Settlement Fund Law – GSF Law”) exists in the present case and the property was not restituted to the heirs of the R. brothers, the Arbitration Panel had to reject the application. A recommendation of restitution would be in contravention of the First Restoration Act, which explicitly states that a claim for the restoration of property that was seized from democratic organizations during the time of the corporate state has to be given priority over a claim for restitution of the same property that was seized during the National Socialist era. It cannot be inferred from the GSF Law that the legislator wished to rescind the prioritizations resulting from the First Restoration Act. Although the heirs of the R. brothers suffered damages in that the purchase price paid for the property was not reimbursed to them, people who were not persecuted by the National Socialist regime also suffered such damages in similar cases. The application therefore had to be rejected by the Arbitration Panel.