AS TO THE ADMISSIBILITY OF
Application No. 36713/97
by Geschäftshaus GmbH
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 June 1997 by
Geschäftshaus GmbH against Germany and registered on 25 June 1997 under
file No. 36713/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant company is a company in liquidation. Its
registered address is in Berlin. All shares are held by the Warenhaus
Wertheim GmbH as successors of the AWAG Grundstücksgesellschaft mbH.
In the fifties, the applicant company was struck off the commercial
register due to insolvency (Vermögenslosigkeit). In the proceedings
before the Commission, the applicant company is represented by its
official liquidators Messr. H. Kreuz and M. Müller, Berlin, and by
Mr D. Gerhardt, a lawyer of a Düsseldorf law firm.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
A. Particular circumstances of the case
Since 1911 the applicant company owned real property in Berlin.
The estates concerned were expropriated, without compensation, under
the Expropriation of Assets of Nazi Criminals and War Activists Act of
8 February 1949 (Gesetz zur Einziehung von Vermögenswerten der
Naziverbrecher und Kriegsaktivisten vom 8. Februar 1949) and by
operation of the Decree on further Expropriations under the Act of
8 February 1949 (list no. 3) of 14 November 1949 (Bekanntmachung über
weitere Einziehungen nach dem Gesetz vom 8. Februar 1949 (Liste 3).
The Decree was published in the official gazette on 2 December 1949.
On 3 April 1950 the land register was amended to the effect that the
estates were recorded as "state-owned property" (Volkseigentum).
On 5 October 1990 the Warenhaus Wertheim GmbH applied with the
Berlin Office for the Regulation of Unresolved Property Questions
(Landesamt zur Regelung offener Vermögensfragen Brandenburg) for the
restitution of part of the real property previously owned by the
applicant company.
On 5 November 1991 the Berlin Office for the Regulation of
Unresolved Property Questions, upon the request of the Warenhaus
Wertheim GmbH, issued a declaratory decision according to which the
Warenhaus Wertheim GmbH was in a legal position to file claims within
the meaning of S. 2 para. 1 (defining the persons entitled to file
claims) and S. 6 para. 1(a) (defining the persons entitled to file
claims for the restitution of firms) of the Act Regulating Unresolved
Property Questions (Gesetz zur Regelung offener Vermögensfragen)
regarding the former assets of the AWAG Grundstücksgesellschaft mbH.
Subject to agreement by the Federal Ministry for Finance
(Bundesministerium der Finanzen) that the Act Regulating Unresolved
Property Questions applied to property expropriated under the Berlin
list no. 3, the assets in question could be restituted, if restitution
was not excluded for other reasons, pursuant to the said Act.
On 29 September 1992 the Berlin Office for the Regulation of
Unresolved Property Questions rejected the applicant company's request
for restitution of the estates.
The decision was based on S. 1 para. 8 (a) of the Act Regulating
Unresolved Property Questions, excluding the restitution of property
expropriated under Soviet occupation law or the authority resulting
from the occupational power between 1945 and 1949.
The Office found that S. 1 para. 8 (a) of the said Act was
applicable to the real property in question as it had been expropriated
under German legal provisions which had been enacted on the basis of
authority resulting from occupational power. In particular, the
Municipality of Great Berlin had decided upon the further
expropriations (list no. 3) on 10 November 1949, whereas the
administrative competences had been transferred from the Soviet
Commandant to the Municipality only on 11 November 1949.
On 4 May 1994 the Berlin Administrative Court (Verwaltungs-
gericht), upon the applicant company's action challenging this
decision, partly quashed the decision of 29 September 1992 and ordered
the Office to grant restitution of the real property in question in
accordance with the relevant provisions of the Act Regulating
Unresolved Property Questions.
In its decision, the Administrative Court found that the
applicant was entitled to restitution, in particular that S. 1
para. 8 (a) of the said Act did not extend to the expropriation which
had taken place in the applicant company's case. In this respect, the
Court considered that the property had been expropriated under legal
provisions enacted by German authorities. The Court found that it
could not be established whether the expropriations of list no. 3 had
been effected on behalf of the Soviet occupational powers and were,
therefore, based on the sovereign power of the occupation force. The
Court noted that the preparatory works concerning list no. 3 originated
in the Expropriation of Assets of Nazi Criminals and War Activists Act
of 8 February 1949, which inter alia provided for the preparation of
a third list of proposals on how to realize assets placed under forced
administration, which had not been included in the first and second
list already. At that time, Soviet influence on the preliminary votes
and negotiations could have taken place. Moreover, the decision had
been taken on 11 November 1949, i.e. before the transfer of
administration to German authorities. However, these elements were not
sufficient to show direct Soviet influence, the more as the loss of
property took effect only on 2 December 1949, when the Decree in
question was published. The burden of proof was on the defendant,
relying on a provision stipulating an exception to the rule of
restitution.
On 13 February 1995 the Federal Administrative Court
(Bundesverwaltungsgericht), upon the defendant's appeal on points of
law (Revision), quashed the judgment of 4 May 1994 and dismissed the
applicant company's action.
In its decision, the Federal Administrative Court found that the
applicant company was not entitled to restitution of the real property
in question. Contrary to the opinion of the lower instance, S. 1
para. 8 (a) of the Act Regulating Unresolved Property Questions
excluded the restitution claimed by the applicant company. In this
respect, the Federal Administrative Court considered that the real
estate in question had been expropriated on the basis of the authority
resulting from the occupational power.
Referring to its own case-law and the case-law of the Federal
Constitutional Court (Bundesverfassungsgericht), the Federal
Administrative Court recalled that S. 1 para. 8 (a) of the said Act
pursued the aim of protecting the Soviet Union against any reproach of
wrongdoing regarding expropriations carried out under the
responsibility of the occupational power. Accordingly, any
expropriations based upon wishes or suggestions of the Soviet
occupational powers or corresponding to their general or particular
wishes were regarded as expropriations carried out on the basis of
occupation law or the authority resulting from occupational power. The
German practice regarding expropriations within the former Soviet
occupied zones was imputable to the Soviet occupational powers as the
highest public authority.
Expropriations initiated and carried out by German authorities
following the creation of the former German Democratic Republic on
7 October 1949 were generally no longer imputable to the Soviet
occupational powers. Nevertheless, expropriations implemented after
7 October 1949 were still covered by S. 1 para. 8 (a) of the said Act,
where these measures had been prepared under the authority of the
Soviet occupational powers and with their general agreement to the
effect that the further implementation by the German authorities fell
within their sphere of responsibility.
The expropriations according to list no. 3, as published on
2 December 1949, formed part of the latter group of expropriations
imputable to the Soviet occupational forces and therefore excluded from
restitution. In this respect, the Federal Administrative Court
examined in detail the legal instruments underlying the expropriations
in question. The assets concerned had, as a rule, been placed under
sequestration, pursuant to a decree of the Soviet military
administration of 30 October 1945. The Expropriation Act of 8 February
1949 had been enacted against this factual and legal background, and
the assets released from Soviet sequestration shortly before had been
partly expropriated (list no. 1) or been returned to their owners (list
no. 2). As regards the remainder of assets, the Great-Berlin
Municipality instructed its services to elaborate proposals as to their
realization. The Soviet occupational powers had endorsed these
measures and thereby assumed responsibility for the implementation of
the 1949 Expropriation Act. The question whether or not they had
approved each of the expropriations under the Expropriation Act was
irrelevant.
According to the Federal Administrative Court, this result,
namely excepting the expropriations under list no. 3 from restitution,
was in line with the genesis of S. 1 para. 8 (a) of the Act Regulating
Unresolved Property Questions, as already established in the case-law
of the Federal Constitutional Court. Thus, the Soviet Union had
requested that the legality and legitimacy of the expropriations
effected between 1945 and 1949 with the consent or upon decision of the
Soviets should not be put into question.
The Federal Administrative Court finally established that there
were no reasons to conclude that S. 1 para. 8 (a) of the said Act
should exceptionally not apply in the applicant company's case.
On 19 November 1996 the Federal Constitutional Court refused
acceptance of the applicant company's constitutional complaint
(Verfassungsbeschwerde).
In the Federal Constitutional Court's view, the complaint
regarding the non-restitution of assets expropriated in the Soviet
sector of Berlin pursuant to the so-called Berlin list no. 3 did not
raise any fundamental issues of constitutional law. In this respect,
the Federal Constitutional Court referred to and confirmed its
established case-law confirming the constitutionality of the relevant
provisions of the Unification Treaty and S. 1 para. 8 (a) of the Act
Regulating Unresolved Property Questions.
Moreover, the Federal Constitutional Court considered that,
against this background, acceptance of the complaint was not necessary
for securing the rights invoked by the applicant company. In
particular, there was no indication of discrimination against the
applicant company, as the Federal Administrative Court's reasoning was
conclusive and did not disclose any appearance of arbitrariness.
B. Relevant law and practice
I. Unification Treaty and Joint Declaration
According to the Joint Declaration on outstanding property issues
(Gemeinsame Erklärung zur Regelung offener Vermögensfragen) made on
15 June 1990 by the Governments of the Federal Republic of Germany and
the German Democratic Republic, which is a constituent part of the
Treaty on German Unification of 31 August 1990 (Einigungsvertrag),
"expropriations carried out on the basis of occupation law or the
authority resulting from occupational power (1945 and 1949)"
("Enteignungen auf besatzungsrechtlicher bzw. besatzungshoheitlicher
Grundlage (1945-1949)") shall not be reversed.
The international matters concerning German unification were
agreed upon in negotiations between the two German States and the four
Allied Powers. In the Treaty of 12 September 1990 on the Final
Settlement with respect to Germany, the sovereignty of a united Germany
was recognised. In connection with the signing of this Treaty the
Ministers for Foreign Affairs of the former German Democratic Republic
and of the Federal Republic of Germany addressed a Joint Letter
(Gemeinsamer Brief) to the Foreign Ministers of the Four Powers
confirming the property regulation reached in the Joint Declaration of
15 June 1990 and aimed at being incorporated in the Unification Treaty.
II. Act Regulating Unresolved Property Questions and related
legislation
The Act Regulating Unresolved Property Questions (Gesetz zur
Regelung offener Vermögensfragen) of 12 September 1990, as amended in
particular in March 1991, December 1994 and August 1997, reaffirms the
principle that there should be no restitution of property expropriated
on the basis of occupation law or the authority resulting from
occupational power in S. 1 para. 8 (a). With regard to other
expropriations effected in the German Democratic Republic without
compensation, this Act provides, in principle, for the return of
confiscated property, including businesses, where this is still
possible and does not violate user rights acquired in good faith. If
a return is excluded compensation has to be paid in accordance with
SS. 6(7) and SS. 9 et seq., while for certain cases mentioned in
S. 4(1) and (2) new legislation was envisaged.
On 27 September 1994 the Federal German Parliament adopted two
laws regulating the legal consequences of expropriations in the
territory of the former German Democratic Republic in respect of which
the restitution of property was excluded. Both laws entered into force
on 1 December 1994. They are the Compensation Act (Entschädigungs-
gesetz) concerning expropriations effected in the German Democratic
Republic after 1949 in respect of which the 1990 Act regulating
unresolved property questions had reserved further legislation; and the
Equalisation Act (Entschädigungs- und Ausgleichsleistungsgesetz)
providing for equalisation payments to natural persons who had been
expropriated on the basis of occupation law or the authority resulting
from occupational power between 1945 and 1949.
III. Case-law of the Federal Constitutional Court
The Federal Constitutional Court, in leading decisions of
23 April 1991 and 18 April 1996, respectively, held that the amendments
to the German Basic Law on the basis of the German Unification Treaty,
including the Joint Declaration, excluding restitution of property
expropriated on the basis of occupation law or the authority resulting
from occupational power, were compatible with Article 79 para. 3 of the
Basic Law concerning the limits to permissible amendments to the Basic
Law.
IV. Expropriations under Berlin list no. 3
As regards legal classification, for the purposes of S. 1
para. 1 (a) of the Act Regulating Unresolved Property Questions, of
expropriations under Berlin list no. 3 (Liste 3), pursuant to the 1949
Expropriation Act, the applicant company has submitted various
documents issued by Federal and Berlin authorities.
In a letter of 27 June 1991, the Federal Minister of Justice
stated that S. 1 para. 8 (a) of the Act Regulating Unresolved Property
Questions did not apply to expropriations on the basis of occupational
law which only took effect after the creation of the German Democratic
Republic on 7 October 1949 and that this opinion was in line with the
Federal Constitutional Court's decision on the constitutionality of the
Unification Treaty. The expropriation [under Berlin list no. 3] having
only taken effect on 2 December 1949, restitution under the Act
Regulating Unresolved Property Questions was in principle possible.
Any claims for restitution should, accordingly, be filed with the
Berlin Office for the Regulation of Unresolved Property Questions.
In a letter of 10 September 1991 the Federal Minister of Justice
(Bundesminister der Justiz), stated that, in his - though not legally
binding - opinion, expropriations under Berlin list no. 3 did not
constitute expropriations on the basis of occupational law or the
authority resulting from the occupational power and that accordingly
the assets concerned could, as a rule, be restored.
In a letter dated 18 September 1991, the Federal Office for
Regulating Unresolved Property Questions (Bundesamt zur Regelung
offener Vermögensfragen) stated that it shared the legal opinion
expressed by the Federal Minister of Justice, and, as regards the
procedure, referred to the competent Berlin authorities.
It follows from a letter sent on 23 April 1992 by the Berlin
Office for the Regulation of Unresolved Property Questions in another
case to the legal representative of third persons in another case that
on 1 April 1992 former owners of property expropriated under list no. 3
had been free to proceed with claims for restitution under the Act
Regulating Unresolved Property Questions and that the Office had
started to examine their request for restitution.
In its session of 2 June 1992 the Berlin Senate (Senat), having
regard to a legal opinion of the Senator for Justice (Justizsenator)
in Berlin, according to which expropriations under list no. 3 had been
effected on the basis of the authority resulting from the occupational
power, decided that property expropriated under list no. 3 were not to
be restored to their previous owners.
In a letter dated 19 August 1993, the Federal Minister of Justice
observed that the question whether or not property expropriated under
list no. 3 could be restituted was in dispute (umstritten). S. 1
para. 8 (a) of the Act Regulating Unresolved Property Questions,
excluding expropriations under occupational law or the authority
resulting from the occupational power could militate against
restitution. As regards its own legal position, the Ministry of
Justice observed that, in the official explanations (amtliche
Erläuterungen) of the Federal Government on the Act Regulating
Unresolved Property Questions of 12 September 1990 (BT-11/7831) the
field of application of S. 1 para. 8 (a) of the said Act was defined
as "expropriations on the basis of occupational law or the authority
resulting from the occupational power in the period between the end of
war (8 May 1945) and the creation of the German Democratic Republic
(7 October 1949)". Accordingly, the legislator had intended to exclude
from restitution only those properties expropriated before the creation
of the German Democratic Republic. To the extent that the German
Democratic Republic had, after 6 October 1949, applied legal
instruments enacted previous to its creation, it had done so in
adopting such law as its own law, i.e. law of the German Democratic
Republic. Measures taken on this legal basis could not be regarded as
measures on the basis of "occupation law or the authority resulting
from the occupational power". Expropriations under the Berlin list
no. 3 had not become effective before the creation of the German
Democratic Republic, but only on 2 December 1949 when the list was
published. Accordingly, such expropriations were generally not
expropriations on the basis of occupational law or the authority
resulting from the occupational power within the meaning of S. 1
para. 8 (a) of the above Act and restitution was not in principle
excluded. The Minister noted that this opinion was shared in legal
writing as well as by the Berlin Administrative Court. The Minister
further observed that, according to the contrary view taken by the
Berlin Municipality, these expropriations had been based on
occupational law or the authority resulting from the occupational power
and the property could not be restored. The Minister concluded that
the legal opinion stated was not binding for the authorities competent
to implement the Act Regulating Unresolved Property Questions and that,
in case of dispute, the competent courts were called upon to take a
final decision.
COMPLAINTS
1. The applicant company complains that the refusal of the German
authorities, after German unification, to return the previously owned
property which had been expropriated under the Berlin list no. 3,
pursuant to the 1949 Expropriation Act, amounts to a breach of
Article 1 of Protocol No. 1 to the Convention.
In this respect, the applicant company, referring to the above
official statements, inter alia, by the Federal Ministry of Justice and
to the Berlin Administrative Court's decision in the present case,
submits that initially a legal opinion prevailed, according to which
Article 1 para. 8 (a) of the Act Regulating Unresolved Property
Questions was not applicable. The applicant company had, therefore,
a "legitimate expectation" of obtaining restitution of the previously
owned property which has in the meantime been held by the Berlin
Municipality and the Federal Republic of Germany.
2. The applicant company further complains under Article 14 of the
Convention, in conjunction with Article 1 of Protocol No. 1, that both
the refusal of restitution and the exclusion from compensation amount
to discrimination.
THE LAW
1. The applicant company complains that the non-restitution of its
property expropriated under the Berlin list no. 3 violates its right
to peaceful enjoyment of its possessions under Article 1 of Protocol
No. 1 (P1-1) to the Convention.
This provision reads as follows:
"1. Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
2. The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest to secure the payment of taxes or other
contributions or penalties."
The Commission recalls its decisions of 4 March 1996 concerning
Applications Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92
(Mayer et al. v. Germany, D.R. 85-A, p. 5) and of 24 February 1997
concerning Application No. 19918/92 (Geidel et al. v. Germany,
unpublished). Complaints under Article 1 of Protocol No. 1 (P1-1)
concerning expropriations carried out in 1945 at the instance of the
Soviet occupation authorities in Germany were declared inadmissible as
being incompatible ratione personae, ratione temporis and ratione
materiae with the Convention. The Commission found in particular that
these deprivations of property had occurred at the instance of the
Soviet occupying forces in Germany at a time when the Federal Republic
of Germany had not yet been established and neither the Convention nor
Protocol No. 1 had entered into force. There could not, therefore, have
been any interference with property rights in breach of Article 1 of
Protocol No. 1 (P1-1) which could have entailed the responsibility of
the Federal Republic of Germany. Moreover, in the Commission's view,
the regulation of property questions in the Unification Treaty did not
amount to an interference with any rights of the applicants under
Article 1 of Protocol No. 1 (P1-1) as there were no "existing
possessions" nor any legally recognized compensation claims when the
Unification Treaty came into force.
The Commission notes that the applicant company argues that its
case is distinguishable from the facts underlying the Commission's
decision of 4 March 1996.
As regards the incompatibility ratione materiae of claims that
the regulations of the Unification Treaty interfered with rights under
Article 1 of Protocol No. 1 (P1-1), the Commission held, in the above-
mentioned decisions (Nos. 18890/91, 19048/91, 19049/91, 19342/92 and
19549/92 and No. 19918/92, op. cit.), as follows:
"..., in any event the applicants could not claim to be
victims of a violation of their rights under Article 1 of
Protocol No. 1 (P1-1) unless the measure complained of affected
their 'possessions' or their 'property' within the meaning of
this provision. A person complaining of an interference with his
property must show that such right existed (No. 7694/76, Dec.
14.10.77, D.R. 12, p. 131).
In this respect, the Commission recalls the constant case-
law of the Convention organs according to which "possessions" may
be either 'existing possessions' (cf. Eur. Court HR, Van der
Mussele v. Belgium judgment of 23 November 1983, Series A no. 70,
p. 23, para. 48) or valuable assets, including claims, in respect
of which the applicant can argue that he has at least a
"legitimate expectation" that they will realise (cf. Eur. Court
HR, Pine Valley Developments Ltd and Others v. Ireland judgment
of 29 November 1991, Series A no. 222, p. 23, para. 51, and
Pressos Compania Naviera S.A. and Others v. Belgium judgment of
20 November 1995, Series A no. 332, p. 21, para. 31). By
contrast, the hope of recognition of the survival of a former
property right which has not been susceptible of effective
exercise for a long period (Nos. 7655-7657/76, Dec. 4.10.77,
D.R. 12, p. 111) or a conditional claim which has lapsed as a
result of the non-fulfilment of the condition (No. 7775/77,
Dec. 5.10.78, D.R. 15, p. 143) are not to be considered as
'possessions' within the meaning of Article 1 of Protocol No. 1
(P1-1).
It is clear that the present case does not concern any
'existing possessions' of the applicants. The applicants'
properties were expropriated a long time ago and the applicants
have been unable for decades to exercise any owners' rights in
respect of the property concerned. Despite the applicants' claim
that the expropriations were contrary to international law and
thus unlawful, it appears that in the German legal order these
expropriations were being considered as legally valid even before
the conclusion of the Unification Treaty. The provisions of the
Treaty cannot therefore be seen as legalising the deprivation of
the applicants' property and thereby as being the source of the
deprivation for the purposes of German law.
It remains to be examined whether the applicants could have
any 'legitimate expectation' to realise claims, either based on
a right to compensation for the loss of their property which
continued to exist until the entry into force of the Unification
Treaty and was affected thereby, or created by the fact that
public-law bodies of the Federal Republic of Germany acquired
part of the expropriated estates by virtue of the unification.
As regards any possible compensation claim generated by the
loss of the property, the Commission refers to its constant
jurisprudence according to which it is not competent ratione
temporis and ratione materiae to examine complaints relating to
the refusal or denial of compensation claims based on facts that
occurred prior to the entry into force of the Convention with
respect to the State concerned (cf. No. 7694/76, Dec. 14.10.77,
D.R. 12, p. 131; No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146). The
Commission would add with regard to the particular facts of the
present case that the Federal Republic of Germany was not
responsible for the expropriations in question and that therefore
any compensation claims which might have existed prior to the
Unification Treaty would not have been directed against that
State.
As regards the existence of any claim based on the fact
that, in consequence of the unification, part of the property
concerned passed into the hands of public-law bodies of the
Federal Republic of Germany, the Commission notes the Federal
Constitutional Court's finding that despite this fact there
existed no claim under German law for the restitution of the
available properties and that this situation was, from the
viewpoint of constitutional law, unobjectionable. There is
nothing to show that this finding is arbitrary and incompatible
with the applicable provisions. In particular it does not appear
that the Federal Constitutional Court's conclusion was based on
the Unification Treaty itself and that, without the provisions
of that Treaty, the situation under German constitutional law
would have been judged otherwise. Therefore it cannot be said
that the Treaty interfered with any pre-existing legal position
of the applicants in this respect either."
The Commission finds that the circumstances of the present case
do not justify any other conclusions.
The Commission considers in particular that the refusal of
restitution did not concern any of the applicant company's "existing
possessions", given that the property had been expropriated in 1949 and
that, for a period of more than 40 years, the applicant company had no
factual possibility to exercise any powers or control regarding the
estate. The expropriation in 1949 is not imputable to the Federal
Republic of Germany and the question of its lawfulness is not within
the Commission's jurisdiction ratione personae and temporis.
The Commission is further of the opinion that, given the facts
that the applicant company, and the shareholding companies, had not
been able to exercise any ownership rights in respect of the property
concerned for more than forty years and did not have any legally
recognised compensation claim at the time of the conlusion of the
German Unification Treaty, there could not have been, at that time, any
"legitimate expectation" of the revival of the former property right.
The question, however, arises whether or not after views
expressed by German administrative authorities after German
reunification against the background of the developing case-law on the
constitutionality of the legal instruments concerned, including the
interpretation of the notion "expropriations on the basis of occupation
law or the authority resulting from occupational power", gave rise to
a "legitimate expectation" that property expropriated pursuant to the
Berlin list no. 3 was to be restituted (cf., mutatis mutandis, Eur.
Court HR, Pine Valley Developments Ltd and Others judgment, op. cit.,
pp. 23-24, paras. 51-52; Pressos Compania Naviera S.A. and Others
judgment, op. cit., pp. 20-21, paras. 29-31).
On this point, the Commission notes that the German authorities
were called upon to apply the provisions of the Act Regulating
Unresolved Property Questions and had to interpret the notion of
"expropriations carried out on the basis of occupation law or the
authority resulting from the occupational power (1945 until 1949)".
The Commission finds that decisions taken in other expropriation
cases or general public statements concerning the application of S. 1
para. 8 (a) of the said Act, including its possible application to
expropriations under the Berlin list no. 3 could not anticipate a
decision by the competent authorities on the applicant company's
request for restitution. In the instant case, the Berlin Office of the
Regional Office for the Regulation of Unresolved Property Questions,
in its decision of 29 September 1992, refused the applicant company's
request for restitution on the ground that, in its view, the
expropriation in question had been carried out on the basis of
authority resulting from occupational power. In this situation, the
applicant company was aware that there was a dispute regarding the
restitution of the properties expropriated under the 1949 Expropriation
Act and the Berlin list no. 3. Irrespective of the favourable first
instance decision, the applicant company was not entitled, prior to the
final determination of the issue by the Federal Administrative Court
and the Federal Constitutional Court, to assume that it would obtain
restitution of its previously owned assets.
The Commission further recalls that it is in the first place for
the national authorities, notably the courts, to interpret and apply
domestic law (cf. Eur. Court HR, Pine Valley Developments Ltd and
Others judgment, op. cit., p. 24, para. 52).
The Commission notes that the Federal Administrative Court, as
confirmed by the Federal Constitutional Court, concluded in a very
detailed reasoning that the expropriations under the so-called Berlin
list no. 3, such as the expropriation in the applicant company's case,
constituted expropriations effected on the basis of the authority
resulting from occupational power. In the Commission's view, such
conclusion does not disclose any arbitrariness.
In such circumstances, the Commission finds that the applicant
company did not establish that it had a "legitimate expectation" that
its claim for restitution would be granted.
This part of the application is therefore incompatible ratione
materiae with the provisions of the Convention and must be rejected
under Article 27 para. 2 (Art. 27-2).
2. The applicant company further complains that the above decisions
amounted to discrimination contrary to Article 14 of the Convention,
in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and its Protocols. It
has no independent existence, since it has effect solely in relation
to the rights and freedoms safeguarded by those provisions. Although
the application of Article 14 (Art. 14) does not presuppose a breach
of one or more of those provisions - and to this extent it is
autonomous -, there can be no room for its application unless the
facts at issue fall within the ambit of one or more of the latter (Eur.
Court HR, Inze v. Austria judgment of 28 October 1987, Series A no.
126, p. 17, para. 36).
As the Commission has found above that Article 1 of Protocol
No. 1 (P1-1) is not applicable to the facts of which the applicant
company complains, it cannot claim to have been discriminated against
in the enjoyment of its property rights within the meaning of this
provision (cf. Eur. Court HR, Marckx v. Belgium judgment of 13 June
1979, Series A no. 31, p. 23, para. 50; Nos. 18890/91, 19048/91,
19049/91, 19342/92, 19549/92 (joined), Dec. 4.3.96, D.R. 85, p. 5; No.
19918/92, Dec. 24.2.97, unpublished)).
This part of the application must therefore also be rejected,
according to Article 27 para. 2 (Art. 27-2), as being incompatible with
the provisions of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy