FÜRST VON THURN UND TAXIS v. GERMANY
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
1. The applicant, Mr Albert Fürst von Thurn und Taxis, is a German national, who was born in 1983 and lives in Regensburg. He was represented before the Court by Mr A. Geiger, a lawyer practising in Munich. 3. The applicant is the owner of a court library and archives dating back to the fifteenth century. In 1943 the library contained approximately 150,000 volumes; today, it contains about 204,000 volumes. The library is accessible to the public and the archives are accessible for scientific purposes. 4. The property was originally incorporated in a family trust fund (Fideikommis). Under section 1 of the Law on the Dissolution of Family Trust Funds (Gesetz über das Erlöschen der Familienfideikommisse und sonstiger Vermögen, FideiErlG, see relvant domestic law, below), which entered into force on 30 June 1938, all family trust funds were dissolved by 1 January 1939. The property contained in these funds was, as a rule, transferred into normal private property. However, section 6 of the abovementioned law allowed the authorities to impose certain protective and security measures in respect of objects of particular artistic, scientific, historical or patrimonial value. 5. By decisions of 12 July, 22 October and 30 October 1943 the Nuremberg Court of Appeal, in its capacity as a trust fund court, relying on section 6 of the above-mentioned law, placed the administration of the different parts of the court library and archives under the supervision of the director of the Bavarian State Library, and of the directors of the State Archives in Stuttgart and Amberg. The current owner and his legal successors were ordered to obtain authorisation from the supervising authority before changing, displacing, or disposing of the library or the archives or of parts thereof. Furthermore, it was ordered that the library and archives had to be maintained in an “orderly condition”. 6. On 31 January 2002 the applicant lodged a request with the Nuremberg Court of Appeal to lift the above-mentioned measures. Relying on section 6 § 8 of the Law on the Dissolution of Family Trust Funds, he argued that the measures deprived him of making use of his property in a reasonable way. Under the orders issued in 1943, he had to bear considerable expenses while being denied any possibility of profiting from his property. The applicant submitted that the factual and legal circumstances had changed since 1943. The costs of maintenance for the court library and the central archives had increased dramatically. For the year 2002, the total expenses were estimated at 295,000 euros. The applicant further argued that the limitations imposed were unconstitutional, as he did not receive any compensation for the factual expropriation. 7. On 8 December 2003 the Nuremberg Court of Appeal rejected the applicant’s request on the grounds that the applicant had not established that the factual and legal circumstances had changed since the imposition of the impugned measures in 1943. The Court of Appeal conceded that the expenses submitted by the applicant for the maintenance of the library and the archives were considerable. However, there was no indication that these expenses had not merely increased because of general inflation, but had been generated after 1943. The Court of Appeal further considered that section 6 of the Law on the dissolution of Family Trust Funds was constitutional. The court noted in this context that the court library and archives were cultural goods of exceptional importance meriting special protection. The measures imposed were justified by the public interest in the conservation of valuable goods giving testimony of German culture and history. If the measures imposed in 1943 were lifted, the conservation and accessibility of the court library and central archives could no longer be assured. 8. On 27 October 2004 the Bavarian High Court (Oberstes Landesgericht) rejected the applicant’s complaint on the grounds that the orders issued in 1943 were legally binding and that the factual and legal circumstances had not changed in a way which would justify the measures to be lifted. The court observed that the court library and central archives remained an important part of the cultural heritage which necessitated protection. Conversely, economic interests did not play a decisive role in the decision taken in 1943. Accordingly, the general change in the economic context did not justify the measures to be lifted. The Court of Appeal further considered that there was no violation of the right to equal treatment. The situation had to be seen in the context of the historical and social circumstances under which the property was acquired. These circumstances, taken in their entirety, could not be compared to the circumstances under which “civil” property was acquired. 9. On 28 October 2009 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication (1 BvR 963/05). This decision was served on the applicant’s counsel on 12 November 2009. 10. The Law on the Dissolution of Family Trust Funds (Gesetz über das Erlöschen der Familienfideikommisse und sonstiger Vermögen, FideiErlG) as in force from 30 June 1938 until 30 November 2007 read, in so far as relevant: Section 1 Date of Dissolution “(1) All remaining family trust funds are dissolved by 1 January 1939...” Section 2 The Trust Fund Property “As from the [date of] dissolution of the trust fund, the trust fund property becomes the free property of the last trust fund owner....” Section 6 Other Safeguards and Security measures “(1) If the trust fund contained objects or collections of particular artistic, scientific, historical or local value (e. g. buildings, picture galleries, archives, libraries) or charitable institutions, the Trust Fund Court has to take the necessary measures for their appropriate conservation in case the objects appear to be endangered because of the dissolution of the trust fund and if the conservation lies in the public interest. (2) The Trust Fund Court may, in particular...issue regulations on the storage and conservations of objects and may subject the change, displacement and the validity of legal dispositions to administrative authorisation. The Trust Fund Court is further obliged to ensure that objects of particular artistic, scientific, historical or patrimonial value are made accessible to the public in an appropriate way. ... ... (8) In case of a change of circumstances, the Trust Fund Court, on request of one of the parties concerned, may change or lift the measures taken under the above paragraphs...” 11. Under Section 34, measures taken under that law did not give rise to compensation claims. 12. The FideiErlG was re-published in the Federal Law Gazette of 10 July 1958 (BGBl. III 7811-2) and repealed by law of 30 November 2007 under the condition that the rights and duties established under that law remained unchanged and that the law remained applicable for rights and duties established when it was still in force.