THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a German national born in 1897 and at present resident

in Freiburg.

The Applicant has brought a previous Application, No 2045/63 against

the Federal Republic of Germany, relating to the decrease in value of

a pension received from Austria as a result of the revaluation

(Aufwertung) of the German mark. This Application was declared

inadmissible by the Commission by its decision of 10 December 1965.

During the occupation of Austria, the Applicant's flat was

requisitioned and occupied by the local Commander of the French troops

who he states chose it because of the unusually high standard of the

furnishings. The flat was released from requisition on .. August 1948,

and following the Financial Agreement of 11 October 1962, between

Austria and the Federal Republic of Germany, the Applicant and his wife

entered a claim for compensation under the Occupation Damages Act

(Besatzungschadengesetz) of 25 June 1958.

These damages were fixed at 10,645 schillings by a decision of the

State Finance Administration (Finanzlandesdirektion) for Tyrol in

Innsbruck on .. February 1964. The Applicant was not satisfied and

appealed to the Federal Compensation Commission

(Bundesentschädigungskommission) which, on .. September 1965, fixed the

compensation at 11,369.24 schillings. It was stated that no

administrative appeal against this judgement was possible.

The Applicant complains that this decision offends against Article 8

(2) of the Occupation Damages Act which provides that the amount of

compensation shall be calculated with reference to the level of prices

at the time when the amount of the damages was fixed. Since, therefore,

the price index had risen by 300 % since the date of the release of the

premises from requisition the compensation awarded should have been

34,110 schillings and not 11,369.24 schillings as was actually awarded.

Furthermore, the Applicant states that he was awarded average rates of

compensation based on the general standard of furnishing, whereas in

fact his flat had been furnished to a much higher standard. By way of

example he refers to a Persian carpet worth DM 3,500 for which the

compensation awarded amounted to DM 524.

The Applicant invokes Articles 8 and 14 of the Convention and in

particular Article 1 of the Protocol.

THE LAW

Whereas the decision of which the Applicant complains was taken by

virtue of the Occupation Damages Act, 1958; whereas under the

provisions of Article 64, paragraph (1) (Art. 64-1) of the Convention

and Article 5 of the First Protocol (P1-5) any State may, when signing

the Convention or depositing its instrument of ratification, make a

reservation in respect of any particular provision of the Convention

or the First Protocol to the extent that any law then in force in its

territory is not in conformity with that provision; whereas, further,

under paragraph (2) of Article 64 (Art. 64-2), any ice reservation

shall contain a brief statement of the law concerned;

Whereas, in depositing its instrument of ratification, the Austrian

Government made, inter alia, the following reservation:

(The Federal President) " ... being desirous of avoiding any

uncertainty concerning the Application of Article 1 of the Protocol

(P1-1) in connection with the State Treaty of 15 May 1955, for the

Restoration of an Independent and Democratic Austria, declares the

Protocol ratified with the reservation that there shall be no

interference with the provisions of part IV 'Claims arising out of the

War' and part V 'Property, Rights and Interests' of the above-mentioned

State Treaty."

Whereas under the Austrian Constitution the State Treaty of 15 May

1955, is considered to be a law and the aforesaid reserve, which refers

expressly to parts IV and V of the said Treaty, appears to contain "a

statement of the law concerned" sufficient for the purposes of Article

64 (Art. 64) of the Convention;

Whereas, in the present Application, the Applicant's complaints refer

not to the State Treaty but to the Occupation Damages Act, 1958, which

is not expressly mentioned in the Austrian reservation concerning the

First Protocol (P1); whereas it is therefore necessary to consider the

question whether the reservation relating to Parts IV and V of the

State Treaty is sufficient to exclude the provisions of the Act of 1958

from the scope of the First Protocol (P1);

Whereas, according to Article 1 of the Act of 1958, the object of that

Act is "the attribution of indemnities to persons who have acquired

rights against the Allied and Associated Powers on account of damage,

other than war damage, arising in Austria";

Whereas paragraph (2) of Article 24 of the Austrian State Treaty

provides:

"... The Austrian Government agrees to make equitable compensation in

schillings to persons who furnished supplies or services on requisition

to the forces of Allied or Associated Powers in Austrian territory and

in satisfaction of non-combat damage claims against the forces of the

Allied or Associated Powers arising in Austrian territory";

Whereas it is clear from the above-cited provisions that the Act of

1958 makes provision for the same subject matter as that dealt with by

Article 24, paragraph (2) of the State Treaty and whereas Article 24,

paragraph (2) of the State Treaty forms part of Part IV of the said

Treaty which was expressly made the subject of the Austrian reservation

to the First Protocol (P1);

Whereas in the opinion of the Commission, in making a reservation with

respect to Parts IV and V of the State Treaty, Austria must necessarily

have had the intention of excluding from the scope of the First

Protocol everything forming the subject-matter of Parts IV and V of the

said Treaty; whereas it follows that the Austrian reservation relating

to Parts IV and V of the said Treaty must be interpreted as intended

to cover all legislative and administrative measures directly related

to the subject-matter of Parts IV and V of the State Treaty; whereas

this follows in particular from the fact that Parts IV and V of the

said Treaty merely lay down general principles which could not be given

practical effect without being completed by other legislative and

administrative measures;

Whereas it follows from what has already been said that a different

interpretation would deprive the reservation of all practical effect

though it is clear that in making it Austria intended to exclude from

the application of Article 1 of the First Protocol (P1-1) the whole

subject-matter of "Claims arising out of the War" contained in Part IV

of the State Treaty; whereas, moreover, in accordance with the general

principles of international law, when a clause has 2 possible meanings

it must be given the interpretation which would lead to its having some

effect rather than an interpretation which would give it none, which

would be the case here if the reservation did not cover the Act of

1958;

Whereas, therefore, the Act of 1958 falls under the Austrian

reservation relating to Parts IV and V of the State Treaty and is

thereby excluded from the sphere of application of the First Protocol

(P1);

Whereas it follows that insofar as the Applicant invokes Article 1 of

the First Protocol (P1-1), that his Application does not come within

the scope of that Article as it applies in the case of Austria and is

therefore incompatible with the provisions of the Convention and must

be rejected under Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Whereas the Applicant also alleges a violation of Articles 8 and 14

(Art. 8, 14) of the Convention; whereas, however, this complaint also

relates to the application of the Occupation Damages Act, 1958, and

therefore, for the reasons set out above likewise falls within the

reservation made by the Austrian Government with regard to the First

Protocol (P1) since in the circumstances it cannot be divorced from

object of the reservation and the Commission could not accept this

complaint without deliberately ignoring the clear purpose of the

reservation; whereas in this connection the Commission refers to its

decision in Application No 473/59 - X v. Austria - Yearbook II, page

400; whereas it follows that the Application is incompatible with the

provisions of the Protocol (P1) as applicable in the case of Austria

and must therefore be rejected under Article 27, paragraph (2)

(Art. 27-2), of the Convention.

Now therefore the Commission declares this Application inadmissible.