MEYER v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
1. The applicant, Mr Christian Meyer, is a German national who was born in 1951 and lives in Berlin. He was represented before the Court by Mr S. von Raumer, a lawyer practising in Berlin. 2. The German Government (“the Government”) were represented by their Agents, Ms K. Behr and Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The housing estate company “Gemeinnützige Siedlungsgesellschaft Kleinmachnow GmbH” (GSK), subsequent to its foundation in 1927, acquired a large area of land just outside Berlin. The aim of the company was to develop and divide up the land and sell it to prospective dwellers. The sale of the first plots of land began in 1930. The Jewish entrepreneur A.S., a German national, personally held 50% of GSK’s shares and owned – directly or indirectly – 58.8% of the shares in another company holding the other 50% of the shares in GSK. 5. In 1933, after the National Socialist Party came to power, A.S. was forced to leave Germany and to hand over, inter alia, his shares in GSK, amounting to 79.4% of all shares, to representatives of the new regime. By 1943 almost all of the total of about 1500 plots had been sold by GSK. 6. After 1949 the community of Kleinmachnow became part of the former German Democratic Republic (GDR). No mechanism for restitution of land property was available to A.S. at that time. 7. In 1950 A.S. obtained the reassignment of his shares in West Germany, although at that time GSK no longer owned any property of significance. 8. In 1990, upon Germany’s reunification, the Resolution of Outstanding Property Issues Act (Property Act, Gesetz zur Regelung offener Vermögensfragen/Vermögensgesetz,) was introduced and subsequently amended several times, offering the possibility of restitution claims regarding property situated on the territory of the former GDR (see relevant domestic law and practice, paragraphs 19-22 below). 9. In 1995 the Conference on Jewish Material Claims against Germany, Inc. (Jewish Claims Conference - JCC) specified a global application for restitution under the Property Act with the aim of regaining 79.4% of the ownership of a large number of plots of land formerly owned by GSK. The application was made under Section 2 § 1, third sentence, of the Property Act (see paragraph 20 below). A.S.’s heirs had not asserted their potential claims. 10. On 20 August 1997 the JCC transferred all rights concerning the relevant plots of land to the applicant. 11. On 12 March 1999 the competent Brandenburg Office for the Settlement of Open Property Issues (Landesamt für offene Vermögensfragen) rejected the applicant’s restitution and compensation requests, which had originally been filed by the JCC. 12. The applicant brought 1,388 cases before the Potsdam Administrative Court. Some of these concerned restitution, others compensation claims since the plots of land concerned had undisputedly been acquired in good faith by third parties after 8 May 1945 and restitution was thus ruled out by law, to protect the new owners. One of the restitution cases was chosen as a pilot case. The corresponding plot had been sold in 1934 and was never resold. Ownership had been passed on by inheritance. 13. On 18 August 2005 the Administrative Court dismissed the applicant’s action in the pilot case. It held that the JCC counted as the legal successor of A.S. and had lawfully ceded the relevant rights to the applicant. Notwithstanding, a restitution claim was ruled out by section 3 § 1, eleventh sentence, of the Property Act, because the plots had previously been owned by a housing estate enterprise (“Siedlungsunternehmen”). The Administrative Court accepted the applicant’s argument that he was treated differently to other groups of victims in the past, because the users or owners who had acquired property before 8 May 1945 had never been protected. Furthermore, other companies which had divided up land into plots but did not qualify for the narrow definition of “housing estate enterprise” were entitled to restitution. However, the Administrative Court considered that the State had a wide margin of appreciation as to how victims of the National Socialist regime should be compensated, and could not find that section 3 § 1, eleventh sentence, of the Property Act violated Article 3 of the Basic Law (see paragraph 18 below). 14. On 21 June 2007 the Federal Administrative Court rejected the applicant’s appeal on points of law, mainly endorsing the Administrative Court’s findings. It further held that section 3 § 1, eleventh sentence, of the Property Act did not infringe Article 14 of the Basic Law (see paragraph 17 below) since the applicant’s legal predecessor had not previously acquired property rights. It referred to a previous ruling, delivered on 7 March 2007 (see paragraph 24 below), stating that the relevant 1992 version of the Property Act had not afforded compensation rights to shareholders of a company owning real estate, but only to the owner company itself. Making reference to the spirit and purpose of the amendment in 1997 the Federal Administrative Court, in the instant case, took the view that shareholders’ compensation claims had been made possible for the first time in 1997 by amending section 3 § 1, fourth sentence, of the Property Act (see paragraph 22 below). Even assuming that the applicant’s legal predecessor had already been entitled to compensation claims when the 1997 amendment came into force, the legislator had struck a fair balance between the interests concerned. 15. On 16 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (case no. 1 BvR 2275/07). It shared the Federal Administrative Court’s view that section 3 § 1, eleventh sentence, of the Property Act did not infringe the applicant’s right under Article 3 of the Basic Law. It further came to the conclusion that the applicant’s right to property under Article 14 of the Basic Law was not violated either. With regard to the legal situation before 1997, the Federal Constitutional Court pointed out that it was subject to legal debate whether not only companies but also their shareholders had been entitled to immediate restitution claims to property which had been detached from the company in the past. While some legal authors and the Federal Administrative Court, in a judgment of 26 June 1997, saw this entitlement already guaranteed in the 1992 version of the Property Act, the Federal Administrative Court, in a judgment of 7 March 2007, thereby supported by other legal authors, took the view that shareholders were given this right to immediate restitution only in 1997. The Federal Constitutional Court considered that the determination of whether a claim existed was the responsibility of the lower courts (Fachgerichte) and that the change of case-law was neither arbitrary nor unreasonable. Although the reasons given by the Federal Administrative Court in this regard had been very short and without further illustration of the amendment’s spirit and purpose, it had to be observed that a considerable number of legal authors agreed to its interpretation and for these reasons alone it could not be viewed as untenable (“unter keinem denkbaren Aspekt mehr rechtlich vertretbar”). 16. On 2 February 2010 the Potsdam Administrative Court dismissed the applicant’s action in 225 restitution cases which had remained pending. On the same day, in a separate judgment, it also dismissed his action in 489 cases in which the applicant had filed for compensation. On 23 March 2010 the Administrative Court found against the applicant in another 26 compensation cases. In all three judgments the Administrative Court, in its reasoning on the merits, merely referred to its own judgment and the decision of the Federal courts in the pilot case (see paragraphs 13-15 above). 17. Article 14 of the Basic Law reads as follows: “(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. (2) Property entails obligations. Its use shall also serve the public good. (3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute regarding the amount of compensation, recourse may be had to the ordinary courts.” 18. Article 3 § 1 of the Basic Law reads as follows: “All persons shall be equal before the law.” 19. The Property Act of 1990 (Vermögensgesetz) provides that persons whose property was unlawfully expropriated during the time of the GDR are in principle entitled to restitution, unless the property was purchased in good faith by a third party. In such cases, the former owners have a right to financial compensation. 20. Section 1 § 6 extends the applicability of the Property Act in favour of persons persecuted on racial, political, religious or ideological grounds during the time of National Socialist rule and who, in this context, lost their property by expropriation or sales under duress. Section 2 § 1, third sentence, provides that where Jewish beneficiaries do not assert a claim, the JCC acts as legal successor in respect to the claim. 21. In 1992 a fourth sentence was added to section 3 § 1, which, at the given time, provided as far as relevant: “If assets, of which an enterprise has been deprived, which are to be returned or have already been returned according to section 1 § 6 ... do not belong to the enterprise’s property any more, the beneficiary may claim, by the means of individual restitution, that he or she be granted ownership of these objects in fractional shares equivalent to the stakes of which he or she was deprived; ...” (“Gehören Vermögensgegenstände, die mit einem nach § 1 Abs. 6 ... zurückzugebenden oder einem bereits zurückgegebenen Unternehmen entzogen ... worden sind, nicht mehr zum Vermögen des Unternehmens, so kann der Berechtigte verlangen, dass ihm an diesen Gegenständen im Wege der Einzelrestitution in Höhe der ihm entzogenen Beteiligung Bruchteilseigentum eingeräumt wird; ...”) According to the written motivation to the bill, this amendment was made to avoid enterprises expropriated between 1933 and 1945 being returned only after having been stripped of their assets (see German Federal Parliament documents (BTDrucks), no. 12/2480, p. 40). 22. The Federal Parliament (Bundestag) passed further amendments to the Property Act which came into force on 24 July 1997. Section 3 § 1, fourth sentence, was supplemented by, inter alia, another half sentence, which – as far as relevant – provides: “...such claim shall also exist if the subject-matter of the act of deprivation according to section 1 § 6 was a direct or indirect stake in an enterprise...” (“...dieser Anspruch besteht auch, wenn eine unmittelbare oder mittelbare Beteiligung an einem Unternehmen Gegenstand der Schädigung nach § 1 Abs. 6 ist...”) Likewise, a new eleventh sentence was introduced which ruled out the application of the fourth sentence, inter alia, with regard to real estate property used for housing purposes sold for market prices to natural persons by a “housing estate enterprise” (“Siedlungsunternehmen”) before 8 May 1945. 23. In its judgment of 26 June 1997 (case no. 7 C 53/96), the Federal Administrative Court held that the 1992 version of section 3 § 1, fourth sentence, of the Property Act already enabled direct claims by company shareholders. While it found that the wording of the provision was unclear, it referred to the purpose of the law, in particular that those who had lost property due to persecution by the National Socialist regime, with the property remaining on the territory of the former GDR, should receive compensation equal to that awarded to property owners under Western Allied law after World War II. It took the view that comprehensive compensation for the so-called “aryanisation” of Jewish companies was only possible by granting immediate restitution claims. 24. On 7 March 2007 the Federal Administrative Court found in another judgment (case no. 8 C 26/05) that until 1997, shareholders of companies subject to National Socialist persecution could not have acquired claims protected under Article 14 of the Basic Law. It held that the typical National Socialist method of depriving Jewish shareholders of their property had not been addressed in the 1992 version of the law. Taking as its basis the purpose of the amendment of 24 July 1997 and the unclear wording in the 1992 version of the law, the court concluded that the new provision entitled shareholders of such companies to restitution claims for the first time. It also found that if a right had already existed in 1992 which had been taken away by the new legislation, the legislator had managed to find a fair balance between the rights involved. The Federal Administrative Court did not make a reference to its judgment of 26 June 1997 (see paragraph 23 above).