POZNANSKI AND OTHERS v. GERMANY
Inadmissible
Peer Lorenzen
The application was lodged with the Court by Mr Mordechai Poznanski, Mr Jakob Silberstein, Mrs Erna Stasiak and in the name of Mr David Handwohl. Mr Poznanski and Mr Silberstein, born in 1925 and 1924 respectively, are Israeli nationals and reside in Israel. Mr Handwohl, who was born in 1923 and died on 29 May 2005, was a U.S. national. Mrs Stasiak is a Polish national and resides in Poland. They are represented before the Court by Ms S. Reppenhagen, a lawyer practising in Berlin. The respondent Government are represented by their agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. During the Second World War Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak’s late husband Leon Stasiak, then Polish nationals, were subjected to forced labour in the Auschwitz-Monowitz concentration camp which was operated by the I.G. Farbenindustrie Corporation (I.G. Farbenindustrie AG). The forced labourers had to carry out physically hard work for 84 hours a week without receiving adequate nutrition. Once they were no longer physically capable of working, the forced labourers were sent to the Auschwitz-Birkenau extermination camp to be killed. Mr Poznanski, Mr Silberstein and Mr Handwohl, who are of Jewish faith, and Mrs Stasiak’s late husband had been arrested by the German army following the occupation of Poland. Having been detained in several concentration camps, they were finally transferred to the Auschwitz-Monowitz concentration camp, where they remained until their liberation by the Red Army in January 1945. Following the end of the Second World War, the allied forces split up the I.G. Farbenindustrie Corporation inter alia into the companies Bayer, Hoechst and BASF. Legal successor to the corporation was the I.G. Farbenindustrie Corporation in liquidation (I.G. Farbenindustrie AG in Abwicklung, “IG Farben”). The Federal Republic of Germany, after its foundation on 23 May 1949, did not establish any compensation schemes for forced labourers. Under the London Agreement on Germany’s External Debts (London Debt Agreement) of 27 February 1953, the regulation of compensation claims was deferred until the final settlement of reparation. Subsequently many actions brought by former forced labourers against German companies were rejected with reference to the London Debt Agreement. Nevertheless, the Federal Republic of Germany paid compensation to victims of the Nazi regime, mostly to those who were living in Israel, the Federal Republic of Germany and other Western European States, in particular pursuant to the provisions of the Federal Act on Compensation for Victims of Nazi Persecution (Bundesentschädigungs-gesetz), which entered into force on 1 October 1953. It provides inter alia compensation for the detention in a concentration camp and the resulting damage to the health of the former detainees. Forced labour as such was not covered by the existing legislation. Mr Poznanski received payments of 8,100 Deutschmarks (DEM) in 1957 and 21,705 DEM in 1964, as well as a monthly pension of 136 DEM as of 1 June 1964. In 1989 he received additional payments of 3,271 and 10,365 DEM and his monthly pension was increased from 580 to 723 DEM. As of August 2004 the applicant has been in receipt of a monthly pension of 526 euros (EUR). Mr Silberstein received a payment of 10,050 DEM in 1959. On 6 February 1957 IG Farben and the Conference on Jewish Material Claims against Germany (“Jewish Claims Conference”) entered into a friendly settlement during the course of a lawsuit brought by a former forced labourer (the so-called Wollheim case). Pursuant to that settlement I.G. Farben undertook to pay 30 million DEM to its former forced labourers. Mr Poznanski and Mr Silberstein received 5,000 DEM each under that settlement. Although the settlement stipulated that the recipients were to waive all further claims against I.G. Farben, it is not clear whether the applicants signed such a waiver. After 1990 the Federal Republic of Germany paid lump sums to several Eastern European States, which then created funds for victims of the Nazi regime. The Federal Republic of Germany paid 500 million DEM to a Polish foundation, which then granted compensation to former detainees of concentration camps. That Polish foundation granted Mrs Stasiak’s late husband benefits amounting to 3,780 new Polish zlotys (PLN) on 19 March 1993 and 4,301 PLN on 9 June 1997. However, individual compensation for forced labour as such was still not provided by the Federal Republic of Germany. Many of those former forced labourers brought actions against German companies, in particular class action suits in the United States of America. Against that background the Government of the Federal Republic of Germany and the Government of the United States of America concluded a treaty that envisaged the creation of the foundation “Remembrance, Responsibility and Future” (Stiftung “Erinnerung, Verantwortung und Zukunft” - hereinafter called “Foundation”) which would provide individual compensation for former forced labourers. Russia, Poland, the Czech Republic, Ukraine, Byelorussia, the Jewish Claims Conference, legal representatives of former forced labourers and representatives of German industry had participated in those negotiations. In 1999 Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak’s late husband brought actions for compensation for non-pecuniary damages and actions for restitution of the unjustified enrichment (Klage auf Herausgabe der ungerechtfertigten Bereicherung) against the I.G. Farben requesting between 40,000 DEM (20,452 EUR) and 70,000 DEM (35,790 EUR) each. On 12 August 2000 the “Law on the Creation of the Foundation “Remembrance, Responsibility and Future” (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft” – hereinafter called “Foundation Law”) entered into force (see “Relevant domestic law and practice” below). The Foundation was subsequently set up and both the Government of the Federal Republic of Germany and the German companies provided for the Foundation’s funding. I.G. Farben did not make any contributions. The Frankfurt Regional Court rejected the actions stating that claims against I.G. Farben were excluded by the Foundation Law. Rejecting the claimants’ appeal the court held that their claims were excluded by the Foundation Law. Nevertheless, the court came to the conclusion that some of their claims had not been time-barred when the Foundation Law entered into force. At the outset the court recalled that the statute of limitations (Verjährung) for claims relating to forced labour during the Second World War had been suspended (gehemmt) by the London Debt Agreement. That suspension had been lifted with the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty). As regards the claims for compensation for non-pecuniary damages the court applied a prescription period of three years, holding that the claims had become time-barred in the end of 1993. In respect of their claims of restitution of the unjustified enrichment (Anspruch auf Herausgabe der ungerechtfertigten Bereicherung) the court found that, contrary to the case-law of the Federal Court of Justice (see “Relevant domestic law and practice” below), those claims were not time-barred. Instead of applying a prescription period of two or four years as the Federal Court of Justice had done, the Court of Appeal applied a prescription period of thirty years. In its reasoning the court stressed that before the Foundation Law had entered into force the question whether claims for forced labour were time-barred had not been finally settled. Leave to appeal on points of law was refused. The Federal Court of Justice rejected the complaint against the refusal of leave to appeal on points of law. The court stated that the Court of Appeal’s holding that claims of restitution of the unjustified enrichment were not time-barred deviated from the existing case-law of the Federal Court of Justice. However, the court found it unnecessary to rule on that issue because the claims were excluded by the Foundation Law in any event. During the proceedings before the Federal Constitutional Court Mr Stasiak died and his widow pursued the proceedings. The Federal Constitutional Court refused to admit the constitutional complaint against the aforementioned decisions and section 16 of the Foundation Law, holding that they did not violate the complainants’ rights under Article 14 of the German Basic Law (right of property). The court found that Article 14 was applicable, because the complainants had had claims for restitution of the unjustified enrichment prior to the Foundation Law’s entry into force, as held by the Court of Appeal; the findings of which were binding as a starting point for the constitutional review insofar the question of prescription was concerned. The Federal Constitutional Court went on to say that although there had been an interference with the complainants’ right of property, it did not constitute an expropriation. It found that the exclusion of claims under the Foundation Law was not undertaken for public purposes (zur Erfüllung öffentlicher Aufgaben). On the contrary, the exclusion of claims was meant to balance the purely private interests of the former forced labourers on the one hand and German industry on the other hand. Therefore, section 16 of the Foundation Law determined the extent of the right of property and its limitations (Inhalts- und Schrankenbestimmung). The court concluded that the Foundation Law was an overall settlement (Gesamtregelung) which had struck a fair balance between those competing interests. The court held that both the creation of a compensation scheme on the one hand and the achievement of legal certainty for German companies and the State on the other hand pursued legitimate interests. The court acknowledged that the amount of compensation under the Foundation’s scheme was in some cases inferior to the claims the former forced labourers had had under German civil law. However, the court pointed out that the overall settlement as set up by the Foundation Law had several advantages that balanced its shortcomings. First, the court noted that the Foundation Law created legal certainty for former forced labourers by replacing their claims against companies which were bankrupt or no longer existed with claims against a foundation endowed with sufficient funds. Moreover, the Federal Constitutional Court highlighted that, before the Foundation Law had entered into force, it had been open whether the Federal Court of Justice would change its case-law regarding the prescription of claims for forced labour. Hence the former forced labourers did not have to bring proceedings before the German courts, which would have entailed considerable financial risks and would have been time-consuming. In this respect the court stressed that all former forced labourers were well advanced in years and that only the Foundation’s compensation scheme guaranteed that they would receive compensation within their lifetime. The decision was served on 4 January 2005. On an unknown date Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak, as her late husband’s heir, were granted payments under the Foundation Law amounting to the equivalent of 7,669 EUR each. On 29 May 2005 Mr Handwohl died. According to the preliminary sixth report of the Federal Ministry of Finances on the activities of the Foundation, which covers its activities until 31 March 2006, about 2,330,000 applications for compensation had been lodged with the Foundation’s partner organisations. In approximately 1,650,000 cases the partner organisations rendered positive decisions, while about 678,000 requests were denied. Approximately six thousand cases were still pending before the partner organisations’ appeals boards. All partner organisations combined had awarded payments amounting to about 4.3 billion EUR. In about 22,400 cases the partner organisations were still in the process of making the payments. According to the judgment of the Federal Court of Justice of 22 June 1967, claims against a company for the restitution of the unjustified enrichment or claims for compensation for non-pecuniary damages for forced labour carried out during the Second World War were time-barred. The court found that tort claims were prescribed after three years, while claims for restitution of the unjustified enrichment became time-barred after either two or four years (no. VII ZR 181/65, Decisions of the Federal Court of Justice in Civil Matters (BGHZ) vol. 48, pp. 125 et seq.). In decisions rendered after the year 2000 several Courts of Appeal held that the statute of limitations for claims relating to forced labour during the Second World War had been suspended (gehemmt) by the London Debt Agreement. That suspension had been lifted with the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty) because that treaty was considered a final settlement of reparation. However, applying the prescription periods (Verjährungsfristen) as determined by the Federal Court of Justice in its aforementioned judgment, the courts concluded that the claims against the respondent companies had become time-barred before the actions were brought (see the judgment of the Stuttgart Court of Appeal of 20 June 2000, no. 12 U 37/00; the decision of the Court of Appeal of Schleswig-Holstein of 19 January 2001, no. 4 W 47/99; the decision of the Koblenz Court of Appeal of 30 October 2000, no. 10 W 542/00; decision of the Bamberg Court of Appeal of 17 October 2000, no. 3 W 86/00). There has never been a final judgment confirming the existence of claims arising from forced labour carried out during the Second World War. The Foundation Law stipulates that the Foundation should be endowed with 10 billion DEM (5.11 billion EUR), to be provided equally by the Government of the Federal Republic of Germany and German companies. The sum of 8.1 billion DEM was intended for the compensation of forced labour. The remaining funds inter alia aimed at compensating the loss of property or were granted as humanitarian aid to the Jewish Claims Conference and the International Commission on Holocaust Era Insurance Claims which finance social programmes for Holocaust survivors. All German companies which exploited forced labourers during the Second World War are protected by the Foundation Law, regardless of whether they actually contributed to the Foundation. Requests for compensation are not processed by the Foundation itself, but by its regional partner organisations in several European countries. The highest amount of compensation - for forced labour in a concentration camp - is 15,000 DEM (7,669 EUR). That amount can be reduced if the funds do not suffice to fully compensate all individuals entitled under the Foundation Law. The compensation is made in two instalments. First, 35 % or 50 % of the total sum is paid out, while the second instalment is made after all requests have been processed, provided that the funds suffice. As a matter of principle, only the forced labourers themselves are entitled to compensation. Heirs are only eligible if the forced labourer died after 15 February 1999. According to section 16 of the Foundation Law all further claims against the German State or German companies are excluded. That provision reads as follows: “Exclusions from Claims (1) Payments from public funds, including social security, and from German business enterprises for injustice suffered under National Socialism as defined in Section 11 may be claimed only under the terms of this Law. Any further claims in connection with National Socialist injustices are excluded. This applies also to cases in which claims have been transferred to third persons by operation of law, transition, or a legal transaction. (2) On receipt of a payment under this Law, each claimant shall provide a statement ... irrevocably renouncing, without prejudice to Sentences 3 to 5, after receipt of a payment under this Law any further claim against the authorities for forced labour and property damage, all claims against German enterprises in connection with National Socialist injustice, and forced-labour claims against the Republic of Austria or Austrian enterprises. The renunciation becomes effective upon receipt of a payment under this Law. ...”