Decision no. 735/2011

In 1938, the farmer Samuel D. owned a farm in Markgrafneusiedl in the District of Gänserndorf, covering just under 30 hectares. Soon after the Anschluss, the Air Force of the German Reich began to plan the construction of a military airfield in territories in the Municipalities of Markgrafneusiedl and Deutsch-Wagram. Samuel D. had to contribute 6.6 hectares of arable land towards the airport, which had an area of 117 hectares.

While the German Reich provided or procured replacement land for the other affected land owners, because he was Jewish, Samuel D. had to sell his entire property to the Air Force – including the farmhouse which was around three kilometers away from the airport site. Soon after the sale in summer 1938, Samuel D. and his wife Marie were expelled from Markgrafneusiedl. Both died in Vienna in 1941.

After the war, the Soviet occupying power laid claim to the airport as “German property”. In June 1951, the heirs of Samuel D. applied for the restitution of the property which had been lost in 1938. However, it was only possible to resume the proceedings after the withdrawal of the Allied troops in 1955. In the same year, upon the conclusion of the State Treaty of Vienna, the ownership of the requested properties passed over to the Republic of Austria.

In the restitution proceedings, the Republic contested the existence of a property seizure. Both the Financial Directorate for Vienna, Lower Austria and Burgenland and the Federal Minister of Finance supported this view and rejected the restitution claim in 1959 and 1960. They based their decisions on the Drittes Staatsvertragsdurchführungsgesetz (“Third State Treaty Implementation Act”), according to which acquisitions for military purposes only constituted a seizure when “in isolated cases, the laws applicable at the time were misused or the owner was forced to sell solely on the basis of political persecution”. In the opinion of the restitution authorities this was not the case for Samuel D. as other people’s land had also been incorporated in the airfield.

In the juridical appraisal of the case, the Arbitration Panel first reached the conclusion that the sale of Samuel D.’s property in 1938 had constituted a seizure pursuant to the GSF Law: other landowners had also had to sell to the Air Force; however, Samuel D.’s transaction was decidedly characterized by the fact that he was persecuted by the National Socialist regime for being Jewish. He did not have the option of negotiating with the Air Force, did not receive any replacement land and furthermore, was not able to freely dispose of the purchase price like the other vendors.

The Financial Directorate and the Finance Minister’s rejections of the restitution applications did not constitute an “extreme injustice” pursuant to the GSF Law, as they were based on a justifiable legal opinion which was in accordance with the legislation at the time. However, the examination carried out by the Arbitration Panel revealed that the narrow definition of seizure in the Third State Treaty Implementation Act was derogated by the later GSF Law. As the definition of seizure in the Third State Treaty Implementation Act is therefore repealed, the decisions passed on the basis of this act could remain insignificant. Taking into account the general purpose of the GSF Law – the resolution of open property matters – the Arbitration Panel recommended the restitution.

The application, filed by a grandchild, five great-grandchildren and another heir of Samuel D., related to around 24 hectares of his former property in Markgrafneusiedl. Of these, seven hectares had already been restituted in the 1950s; approximately 10 further hectares were no longer publicly-owned on the cut off day pursuant to the GSF Law, 17 January 2001. The remaining area of 66,642 m² was owned by the following public owners on the cut off day: the Bundesimmobiliengesellschaft, the Province of Lower Austria and the Company for the Construction of the Marchfeldkanal.