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Cite as: [2007] ECHR 304

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FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32901/04
by UNILEVER BETEILIGUNGS GMBH
against Germany

The European Court of Human Rights (Fifth Section), sitting on 13 March 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 10 September 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, the Unilever Beteiligungs GmbH, is a limited liability company registered under German law and is based in Hamburg.
The applicant is represented before the Court by Mr C. Lenz, a lawyer practising in Stuttgart.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

The applicant company is the legal successor of a corporation (Aktiengesellschaft) which was registered under German law and was owned, through a German subsidiary company, by the Dutch corporation Unilever N.V. In 1929 the predecessor of the applicant company acquired property of a size of approximately 6,000 square metres in the centre of Berlin for a price of 9,100,000 Reichsmark for the purpose of the construction of the headquarters of the German subsidiaries of Unilever N.V. Those companies were mainly involved in the production of inter alia margarine, oil and other foodstuffs.

Several important shareholders as well as many employees of the Dutch corporation Unilever N.V. were of Jewish faith.

In 1938 the aforementioned property in Berlin was expropriated. The plot of land was supposed to serve as a site for the new building of the Chamber of Industry and Commerce and should furthermore allow the enlargement of an adjacent street. The expropriation was based on the Prussian “Act on the Expropriation of Property” of 11 June 1874 and the “Act on the Simplified Procedure of Expropriation” of 26 July 1922. The predecessor of the applicant company received a payment of “preliminary compensation” amounting to 2.5 million Reichsmark in 1939 and 1940. However, following the payment the expropriation procedure was no longer pursued. As a consequence the land register (Grundbuch) remained unchanged at that time.

The buildings on the property in question were partly demolished or destroyed during the Second World War.

In 1941 the German Government placed a commissioner (Reichs-kommissar) with the German subsidiaries of Unilever N.V. to ensure the protection of the interests of the German Reich and to secure those companies’ services for the German food, oil and fat industry.

Following the end of the Second World War and the foundation of the German Democratic Republic (“GDR”) the property was put under the administration of the City of (East-) Berlin. In 1976 and 1977 the property and neighbouring plots of land were used for the construction of a hotel pursuant to an order of the President of the cabinet of the GDR (Ministerrat). In 1987 the City of Berlin transferred the property into public property (Volkseigentum) pursuant to the “Act on Building Land” (Baulandgesetz) and the land register was changed to that effect.
The compensation under GDR law amounting to 597,000 marks of the GDR was set off against the compensation which had already been paid out to the predecessor of the applicant company in 1939 and 1940. The GDR authorities did not notify the predecessor of the applicant company of the decision to expropriate its property.

Following the end of the Second World War the predecessor of the applicant company changed its legal form (Rechtsform) and name several times, for the last time in 2001, but its successor companies remained registered in the Federal Republic of Germany, where they were based.
Its shares were held directly or indirectly by the Dutch corporation Unilever N.V.

2. The decisions rendered by the domestic authorities and courts

Following German Unification on 3 October 1990 the applicant company filed a request for restitution of the property with the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung Offener Vermögensfragen – hereinafter referred to as “Regional Office”)
on 4 October 1990 and 22 November 1990.

(a) The decision of the Regional Office of 13 December 1994 and the applicant’s action in the Administrative Court

The Regional Office rejected the request finding that the expropriation had already occurred in 1938. Moreover, even assuming that the expropriation had been carried out by the GDR authorities, the Regional Office found that the property had been expropriated for compensation and that there was no indication that the compensation had been too low. Hence it concluded that the requirements of sections 1(1a) and 1(1b) of the Property Act (see “Relevant domestic law and practice” below) were not met. Lastly, the Regional Office pointed out that the restitution of the property would have been in any event impossible, since it had been merged with neighbouring plots of land for the construction of the hotel.
The decision was served upon the applicant company on 16 December 1994.

On 16 January 1995 the applicant brought an action for restitution in the Berlin Administrative Court.

(b) The judgment of the Berlin Administrative Court of 17 November 1999 and the applicant’s complaint to the Federal Administrative Court

The Administrative Court confirmed the decision of the Regional Office, but added the following considerations. In respect of section 1 (1a) of the Property Act the court recalled that this provision solely concerned expropriations in respect of which GDR law had excluded any form of compensation. The court pointed out that in the present case the GDR authorities had expropriated the land according to the “Law on Building Land” which prescribed compensation for each act of expropriation.
The court furthermore reiterated that according to the case-law of the Federal Administrative Court it was irrelevant that the compensation had been set off against the compensation already paid to the applicant’s predecessor (see the first judgment of the Federal Administrative Court of 24 March 1994 under “Relevant domestic law and practice” below).

Secondly, the court found that the requirements of section 1(1b) of the Property Act were not met. It explained that according to the Federal Administrative Court’s case-law that provision had to be interpreted restrictively. Contrary to its wording, the amount of compensation alone was not decisive. It applied only to those expropriations which had been carried out by the GDR authorities pursuant to a discriminatory State practice. As an example the court mentioned the decision of the GDR cabinet (Ministerratsbeschluss) of 28 July 1977, which had fixed a lesser amount of compensation for real estate which was owned by persons residing in West-Berlin and other “capitalist States”. The court found no indication for such a discriminatory State practice in the present case
(see the second judgment of the Federal Administrative Court of 24 March 1994).

Furthermore, the court elaborated on the requirements of section 1(3) of the Property Act. At the outset it reiterated that, according to the Federal Administrative Court’s case-law, “arbitrary” or “manipulative” expropriations also fell within the ambit of that provision. However, “arbitrary” or “manipulative” meant more than a mere violation of GDR law. The court recalled that an expropriation was arbitrary if there had been either no legal basis for the purpose of the expropriation under GDR law or if the GDR authorities had falsely indicated a purpose while secretly pursuing a different one (see the judgment of the Federal Administrative Court of 31 August 1995). As regards the present case the court found that the expropriation of the property in 1987 had had a legal basis under GDR law and that the GDR authorities had actually pursued the indicated purpose. Furthermore, the court reiterated that the failure to notify the applicant of the decision to expropriate did not render it “arbitrary” or “manipulative” according to the case-law of the Federal Administrative Court.

Lastly, the Court also concluded that the requirements of section 1 (6) of the Property Act (see “Relevant domestic law” below) concerning certain types of property losses between 30 January 1933 and 8 May 1945 were not fulfilled either. The court found that there was no indication that the predecessor of the applicant company itself or as a part of the Unilever group had been persecuted by the Nazi regime. The court concluded that the expropriation had been solely carried out in connection with the remodelling of the centre of Berlin as the new capital “Germania” as planned by Albert Speer. It found that the placement of a commissioner with the German subsidiary companies of Unilever had aimed at breaking the economic power of the Unilever group and at benefiting from its fortune. From the court’s point of view this move was unrelated to the persecution of persons of Jewish faith.

Moreover, the court held the opinion that there were no rules of customary international law which would prescribe the restitution of the property or any compensation therefor. The court refused the applicant leave to appeal on points of law.

The judgment was served upon the legal representative of the applicant company on 28 January 2000.

On 28 February 2000 the applicant lodged a complaint against the refusal of leave to appeal on points of law with the Federal Administrative Court.

(c) The decision of the Federal Administrative Court of 21 June 2000 and the applicant’s constitutional complaint

The court rejected the applicant’s complaint as ill-founded holding that the impugned judgment did not raise any questions which needed to be examined by the court upon an appeal on points of law. The decision was served upon the legal representative of the applicant company on 10 July 2000.

On 10 August 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court focusing in particular on the question whether there was a right to compensation under customary international law. In this respect the applicant furthermore complained that the Administrative Court had failed to submit that question to the Federal Constitutional Court out of its own motion during the proceedings pursuant to Article 100 § 2 of the German Basic Law (see “Relevant domestic law” below).

(d) The decision of the Federal Constitutional Court of 11 March 2004

The Federal Constitutional Court refused to admit the applicant’s complaint stating that it was inadmissible for non-exhaustion of remedies. The court found that the applicant had failed to sufficiently raise the question whether there was a right to compensation under customary international law before the lower courts.

As regards the question whether the Administrative Court had failed to make use of the procedure pursuant to Article 100 § 2 of the German Basic Law, the court found that the applicant had failed to raise this issue in its complaint against the refusal of leave to appeal on points of law.

The decision was served upon the legal representative of the applicant company on 26 March 2004.

B. Relevant domestic law and practice

1. The Joint Declaration of the Federal Republic of Germany (“FRG”) and the GDR on the Resolution of Outstanding Property Issues

“...

3. Expropriated real estate is in principle to be returned to the former owners or their heirs, having regard to the type of case specified in sub-paragraphs (a) and (b) below.

(a) It is not possible to restore rights of ownership over land and buildings whose use or purpose has been altered, in particular by being dedicated to public purposes, used for housing developments, for commercial purposes or incorporated into new business units.

Compensation will be paid in these cases, in so far as it has not already been made pursuant to the laws and regulations applicable to citizens of the German Democratic Republic. ...”

2. The Resolution of Outstanding Property Issues Act / Property Act

The Resolution of Outstanding Property Issues Act of 23 September 1990, also known as the Property Act, entered into force on 29 September 1990 and was also part of the German Unification Treaty. Under the terms of the Treaty, the Property Act was to continue to subsist in the unified Germany after the unification of the two German States on 3 October 1990. The aim of the Act was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable in order to achieve permanent legal order in Germany. The pertinent provisions read as follows.

Section 1

“(1) This Act settles claims to property,

(a) which was expropriated without compensation and transferred to public property (Volkseigentum);

(b) expropriated for a lesser amount of compensation than citizens of the German Democratic Republic were entitled to; ...

(3) This act shall also apply to rights in or over immovable property and usufructary rights acquired by unfair dealings, such as abuse of power, corruption, duress or deception by the purchaser, the State authorities or third parties....

(6) This act applies accordingly to claims to property of individuals and associations, who were persecuted between 30 January 1933 and 8 May 1945 for racist, political, religious or ideological (weltanschaulich) reasons and therefore lost their property as a consequence of forced sales (Zwangsverkäufen), expropriations or through other measures. ...”

Section 2

“(1) Entitled under this act are natural persons, legal entities and commercial partnerships whose property has been affected by sanctions within the meaning of section 1, as well as their legal successors.... “

In its annotation of the bill the German Government made the following comments on the Property Act’s purpose and meaning.

“... For the time after the foundation of the German Democratic Republic (7 October 1949) this Act provides for restitution, if owners were deprived of their property assets (Vermögenswerte) in a way which is incompatible with the rule of law. This Act does not intend to amend any interference with private means (Privatvermögen) which took place during the last 40 years pursuant to GDR law on the basis of a socialist economic and social order. ...”

3. The German Unification Treaty

Article 19

“Administrative Acts of the German Democratic Republic which were issued before the accession takes effect remain in force. They can be revoked if they are incompatible with the rule of law of the provisions of this treaty. ...”

4. The Federal Administrative Court’s interpretation of the Property Act

(a) The first judgment of 24 March 1994

Regarding the interpretation of section 1 (1a) of the Property Act the Federal Administrative Court held that restitution was excluded, even if the prescribed compensation, although provided under GDR law, had not been fixed, had not been paid out, had been set off or had been withheld for other reasons by the GDR authorities. Furthermore, the court elaborated that the Property Act provided only for the revocation of certain cases of expropriations. It pointed out that the first sentence of Article 19 of the Unification Treaty stipulates that all administrative acts of the GDR authorities remain in force. Only administrative acts which were incompatible with the principle of the rule of law (rechtsstaatliche Grundsätze) and the principles of the Unification Treaty were to be revoked. The court held that the legislator had not intended to grant restitution in a case in which the compensation payment was actually not made, but only in cases in which GDR law did not provide for compensation at all. Only those expropriations reached a level of injustice that justified restitution.

(b) The second judgment of 24 March 1994

In a second judgment of the same day the Federal Administrative Court elaborated the following on the scope of section 1 (1b) of the Property Act. It stated that, contrary to its wording, that provision required more than just an expropriation for a lesser amount of compensation than citizens of the GDR were entitled to. The court held that section 1 (1b) had to be read in conjunction with section 1 (1a). The court said that, if the fact that compensation was fixed, but not paid out, did not entitle to restitution under section 1 (1a), it could not be that a lesser amount of compensation was in itself sufficient under section 1 (1b) to justify restitution. It followed that only those expropriations fell within the ambit of section 1 (1b) which had been conducted pursuant to a discriminatory State practice. As an example for such a discriminatory State practice the court mentioned the decision of the GDR cabinet (Ministerratsbeschluss) dated 28 July 1977 which fixed a lesser amount of compensation for real estate which was owned by persons residing in West-Berlin and other “capitalist States”.

(c) The judgment of 31 August 1995

Regarding the interpretation of section 1 (3) of the Property Act, the Federal Administrative Court held that “manipulative or “arbitrary” expropriations also fall within the ambit of that provision. However, it is not sufficient that the expropriation was unlawful under GDR law. It is necessary that the threshold of arbitrariness was crossed. The Federal Constitutional Court stated that an expropriation was arbitrary or manipulative if the GDR authorities had falsely indicated a legitimate purpose for the expropriation, but secretly pursued a different purpose. Furthermore, an arbitrary or manipulative expropriation was given if there had been no legal basis for it under GDR law.

5. The German Basic Law (Grundgesetz)

Article 25

“The general rules of international law are part of the federal law. They override Acts of Parliament and create rights and obligations directly for the inhabitants of the federal territory. “

Article 100

“...

(2) If there are doubts during a lawsuit as to whether a rule of international law is part of the federal law and whether it creates rights and obligations for the individual (Article 25), the court has to obtain a decision to that effect by the Federal Constitutional Court....”

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 about the refusal of restitution or compensation, maintaining that it was entitled to restitution or compensation under the Property Act as well as international law. In respect of the former the applicant argued that the requirements under sections 1 (1a), (1b), (3) and (6) were fulfilled. It submitted that either its predecessor had been expropriated by the authorities of the Third Reich based inter alia on the fact that important shareholders of Unilever N.V. were of Jewish faith, or that its predecessor had been arbitrarily deprived of its property by the authorities of the GDR in 1976 de-facto or formally in 1987. In this connection the applicant argued that the actions and decisions taken by the GDR authorities had been an abuse of power, for they had been in violation of GDR law. The applicant further stressed that the GDR authorities had intentionally not involved the applicant’s predecessor in the expropriation procedure.

In respect of its claim under international law the applicant maintained that its predecessor had been a foreign legal entity and that the expropriation had thus been contrary to international law.

Invoking Article 1 of Protocol No. 1 in conjunction with Article 14 the applicant furthermore held the opinion that it had been discriminated against compared to other foreign natural persons or legal entities whose property had been returned or compensated.

Lastly, invoking Article 6 of the Convention the applicant complained about the length of the proceedings.

THE LAW

A. Article 1 of Protocol No. 1

The applicant complained that the refusal of restitution or an according compensation violated its right of property under Article 1 of Protocol
No. 1, which reads:

“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.

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 or to secure the payment of taxes or other contributions or penalties.”

The Court recalls the principles that have been established by the case-law of the Court under Article 1 of Protocol No. 1, recently re-stated in the v. Maltzan and Others v. Germany decision ([GC], no. 71916, 71917/01 and 10260/02, §§ 74 - 77, ECHR 2005 -...).

An applicant can allege a violation of Article 1 of Protocol No. 1 only insofar as the impugned decisions related to his or her “possessions” within the meaning of this provision. “Possessions” can either be “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right.

The Court recalls that the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused by another State. That also applies to the legal situation of a State such as the Federal Republic of Germany, which is the legal successor of the German Democratic Republic. Similarly, Article 1 of Protocol No. 1 does not restrict the freedom of the Contracting States to choose the conditions under which they agree to restore property rights to dispossessed persons or to determine the arrangements whereby they agree to pay indemnification or compensation to the persons concerned.

In particular, the Contracting States enjoy a wide margin of appreciation with regard to the exclusion of certain categories of former owners from such entitlement. Where categories of owners are excluded in this way, their claims for restitution cannot provide the basis for a “legitimate expectation” attracting the protection of Article 1 of Protocol No. 1.

In the present case the Court must first consider whether Article 1 of Protocol No. 1 is applicable. Therefore, it has to be examined whether the applicant had “possessions” within the meaning of Article 1 of Protocol No. 1, i. e. “existing possessions” or a “legitimate expectation” of obtaining the effective enjoyment of a property right.

The Court notes that the predecessor’s property had been expropriated either in 1938 or 1987 and the applicant company has thus been unable to exercise its ownership rights since then. The applicant company therefore did not have “existing possessions”. Hence the Court has to determine whether the applicant had a “legitimate expectation” of restitution or compensation. In this respect the Court recalls that a legitimate expectation must be based either on a legal provision or have a solid basis in the domestic case-law (see von Maltzan and Others, cited above, § 112).

At the outset the Court notes that the present case does not regard the expropriation of an alien legal entity. The applicant company as well as its predecessor companies were always registered under German law and were based in Germany.

Prior to German Unification the Federal Republic of Germany and the German Democratic Republic issued the Joint Declaration of 15 June 1990 on Outstanding Property Issues, which laid down the fundamental principles in this respect. Those principles were then implemented by the German legislature in the Property Act of 29 September 1990. The Property Act became part of the Unification Treaty and subsisted after the reunification. Therefore, the Court has to examine whether there was a basis for a right to restitution or compensation either in the legal provisions of the Property Act or in the case-law pertaining thereto.

The Court notes that the Berlin Administrative Court found that the applicant did not meet the requirements of section 1 (1a), (1b) and (3) referring to the case-law of the Federal Administrative Court.

Although the Federal Administrative Court interprets those provisions very restrictively, the Court recalls that their interpretation cannot be considered arbitrary, taking into account the legislator’s intentions,
the court’s clear and consistent case-law and the unique circumstances of German Unification (see Ballerstedt v. Germany (dec.), no. 54998/00, 17 November 2005).

Concerning the requirements of section 1(6) of the Property Act the Court notes that the Berlin Administrative Court found no indication that the expropriation of the property was part of the persecution of the population of Jewish faith. According to the court’s findings, the expropriation had been part of the larger plan to remodel Berlin. Insofar the applicant maintained the contrary and challenged the establishment of the facts by the Administrative Court, the Court reiterates that, as a general rule, the assessment of the facts and the taking of evidence and its evaluation is a matter which necessarily comes within the appreciation of the national courts. It therefore cannot be reviewed by the Court unless there is an indication that the judges have drawn grossly unfair or arbitrary conclusions from the facts before them (see mutatis mutandis, Tamminen v. Finland,
no. 40847/98, § 38, 15 June 2004; García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I). This cannot be said of the conclusions drawn by the domestic courts in the present case.

The Court therefore finds that the applicants did not meet the requirements for restitution or compensation under the Property Act.
It follows that there were neither legal provisions nor domestic case-law which might create a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1. Hence Article 1 of Protocol No. 1 is inapplicable.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto.

B. Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention

The applicant submitted under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 that it had been discriminated against by the refusal of restitution or compensation compared to foreign nationals or companies whose property had been returned.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in the 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.”

As the Court has consistently held, Article 14 of the Convention 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 enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach 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 (see Hans-Adam von Liechtenstein v. Germany [GC], no. 42527/98, § 91, ECHR 2001-VIII).

Having regard to the finding that Article 1 of Protocol No. 1 is not applicable, the Court holds that Article 14 of the Convention cannot be taken into account.

It follows that the applicants’ complaints under Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention are incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 of the Convention.

C. Article 6 § 1 of the Convention

The applicant complained under Article 6 § 1 of the Convention about the overall length of the proceedings. That provision, as far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President