AS TO THE ADMISSIBILITY OF

                      Application No. 36265/97

                      by Z.

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 23 April 1997 by

Z. against Germany and registered on 26 May 1997 under file

No. 36265/97;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an insurance company registered under Swiss law.

In the proceedings before the Commission, the applicant company is

represented by Mr K. Kleinlein, a lawyer practising in Berlin.

     The facts of the case, as submitted by the applicant company, may

be summarised as follows.

A.   Particular circumstances of the case

     Since 1931 the applicant company owned real property in Berlin.

In 1951, the authorities of East Berlin, where the property was

located, placed it under forced State administration as "foreign

property".  By order of 3 December 1959 the Municipality of Great

Berlin (Magistrat von Gross-Berlin) expropriated the estate under the

Construction Decree of 18 December 1951 (Aufbauverordnung).  On

11 November 1966 the compensation was fixed according to the relevant

provisions of the Compensation Act of 25 April 1960 (Entschädigungsge-

setz) and the implementing regulations thereto of 30 April 1960

(1. Durchführungsbestimmung zum Entschädigungsgesetz).  After deduction

of certain debts towards the State, arrears of land tax and an

administrative fee, the remainder to be paid to the applicant company

amounted to 242,721 Marks.  In 1970 the applicant company's claim was

set off against property tax arrears owed by the applicant company for

the years 1961 - 1968 (amounting to 244,926 Marks).

     On 10 October 1994 the Berlin Regional Office for the Regulation

of Unresolved Property Questions (Landesamt zur Regelung offener

Vermögensfragen Berlin) rejected the applicant company's request for

restitution of the estate.  The Office found that the Act Regulating

Unresolved Property Questions (Gesetz zur Regelung offener

Vermögensfragen) did not apply to requests for the restitution of

property expropriated by the authorities of the former German

Democratic Republic under the Construction Decree because these

expropriations had generally been carried out against compensation.

Citizens of the German Democratic Republic, the Federal Republic of

Germany and third States had been treated equally until 1976 when new

legislation in this field had been enacted.  The Office did not share

the applicant company's view that the law of the German Democratic

Republic had prohibited the setting off of a compensation claim against

tax arrears not resulting from the same real property.

     On 9 November 1995 the Berlin Administrative Court (Verwaltungs-

gericht) dismissed the applicant company's suit against this decision,

confirming the reasoning of the Office.

     The Administrative Court regarded as decisive the question

whether the legal system of the former German Democratic Republic had

generally excluded compensation for a given category of expropriations,

or whether in an individual case compensation assessed had not been

paid to the expropriated owner for some reason, e.g. following a set-

off.  Only in the first case were the provisions on restitution in S. 1

para. 1 (a) of the Act Regulating Unresolved Property Questions

considered to be applicable, while the applicant company's case was

considered as belonging to the second group.  The Court pointed out

that the applicant company had not even claimed that the property tax

arrears had not existed.  The mere circumstance that the relevant legal

provisions did not provide for a compensation claim to be set off

against claims not related to the property in question was not

sufficient to consider the expropriation as having occurred without

compensation.  In this respect, the expropriation and the reasons for

subsequent non-payment of the compensation, in the Court's view, had

to be considered separately.

     Moreover, the Administrative Court did not find any indication

that the applicant company had been discriminated against, compared to

citizens of the former German Democratic Republic in similar cases. The

fact that the latter had been paid interest upon their compensation

claims did not concern the real property in question but only the

compensation. The Court observed that the proceedings brought before

it by the applicant company only regarded the question of restitution

as such.  As to the payment of compensation, the suit was dismissed as

being inadmissible for non-exhaustion of administrative proceedings.

     Furthermore, the Administrative Court found that the

expropriation had not been brought about by unfair machinations

(unlautere Machenschaften).  In particular, there was no obvious breach

of the Construction Decree suggesting that its provisions had only been

used as a pretext for expropriation.  The real property had in fact

been expropriated for the intended construction of an office building

for the public administration, and subsequently this building had been

erected.

     On 27 August 1996 the Federal Administrative Court (Bundesverwal-

tungsgericht) dismissed the applicant company's request for leave to

appeal on points of law (Nichtzulassungsbeschwerde), in essence

confirming the reasoning of the lower Court.  The Federal

Administrative Court also considered that the Administrative Court, on

the basis of the material before it, had not arbitrarily delegated the

case to a single judge.

     On 24 October 1996 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to entertain the applicant company's

constitutional complaint (Verfassungsbeschwerde).

B.   Relevant law

     The Act Regulating Unresolved Property Questions (Gesetz zur

Regelung offener Vermögensfragen) of 12 September 1990, as amended in

particular in March 1991, December 1994 and August 1997, stipulates the

principle that there should be no restitution of property expropriated

on the basis of occupation law or the authority resulting from the

occupational power in S. 1 para. 8 (a).  With regard to other

expropriations effected in the German Democratic Republic without

compensation, this Act provides, in principle, for the return of

confiscated property, including businesses, where this is still

possible and does not violate user rights acquired in good faith.  If

a return is excluded compensation has to be paid in accordance with

SS. 6(7) and SS. 9 et seq., while for certain cases mentioned in

S. 4(1) and (2) new legislation was envisaged.

     On 27 September 1994 the Federal German Parliament adopted two

laws regulating the legal consequences of expropriations in the

territory of the former German Democratic Republic in respect of which

the restitution of property was excluded.  Both laws entered into force

on 1 December 1994.  They are the Compensation Act (Entschädigungs-

gesetz) concerning expropriations effected in the German Democratic

Republic after 1949 in respect of which the 1990 Act regulating

unresolved property questions had reserved further legislation; and the

Equalisation Act (Entschädigungs- und Ausgleichsleistungsgesetz)

providing for equalisation payments to natural persons who had been

expropriated on the basis of occupation law or the authority resulting

from occupational power between 1945 and 1949.

     The Federal Constitutional Court, in leading decisions of

23 April 1991 and 18 April 1996, respectively, held that the amendments

to the German Basic Law on the basis of the German Unification Treaty,

including the Joint Declaration, excluding restitution of property

expropriated on the basis of occupation law or the authority resulting

from occupational power, were compatible with Article 79 para. 3 of the

Basic Law concerning the limits to permissible amendments to the Basic

Law.

COMPLAINTS

1.   The applicant company complains that the refusal of the German

authorities, after German unification, to return the unlawfully

expropriated property amounts to a breach of Article 1 of Protocol

No. 1 to the Convention. According to the company, the expropriation

was contrary to public international law because it was not linked to

prompt and effective payment of compensation. The applicant company

therefore considers that it could legitimately expect restitution or

compensation, already during the existence of the German Democratic

Republic but all the more so after the unification of Germany.

2.   The applicant company further complains that the interpretation

of S. 1 para. 1 (a) and (b) of the Act Regulating Unresolved Property

Questions by the German judicial and administrative authorities amounts

to discrimination and thus to a violation of Article 14 of the

Convention. The company explicitly limits its application to the

enactment and application of the said Act, thus excluding the

expropriation itself, carried out by the authorities of the former

German Democratic Republic in 1959, from the scope of the application.

3.   Moreover, the applicant company complains under Article 6 para. 1

of the Convention that the Administrative Court delegated the case to

a single judge before the applicant company had submitted reasons for

its action, and that the Federal Administrative Court did not deal with

all of its arguments concerning discrimination and the non-payment of

compensation. Furthermore, the company complains that the Federal

Constitutional Court did not give any reasons for its decision.

THE LAW

1.   The applicant company complains that the non-restitution of its

property expropriated by the authorities of the German Democratic

Republic in 1959 violates its right to peaceful enjoyment of its

possessions under Article 1 of Protocol No. 1 (P1-1) to the Convention.

     This provision reads as follows:

     "1.   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.

     2.    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 to secure the payment of taxes or other

     contributions or penalties."

     The applicant company argues in essence that the expropriation

was contrary to public international law because it was not linked to

the prompt and effective payment of compensation.  The applicant

company therefore considers that it could legitimately expect

restitution or compensation, already during the regime of the German

Democratic Republic but all the more after the unification of Germany.

     The Commission recalls its decisions of 4 March 1996 concerning

Applications Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92

(Mayer et al. v. Germany, D.R. 85-A, p. 5) and of 24 February 1997

concerning Application No. 19918/92 (Geidel et al. v. Germany,

unpublished). Complaints under Article 1 of Protocol No. 1 (P1-1)

concerning expropriations carried out in 1945 at the instance of the

Soviet occupation authorities in Germany were declared inadmissible as

being incompatible ratione personae, ratione temporis and ratione

materiae with the Convention. The Commission found in particular that

these deprivations of property had occurred at the instance of the

Soviet occupying forces in Germany at a time when the Federal Republic

of Germany had not yet been established and neither the Convention nor

Protocol No. 1 had entered into force. There could not, therefore, have

been any interference with property rights in breach of Article 1 of

Protocol No. 1 (P1-1) which could have entailed the responsibility of

the Federal Republic of Germany.  Moreover, in the Commission's view,

the regulation of property questions in the Unification Treaty did not

amount to an interference with any rights of the applicants under

Article 1 of Protocol No. 1 (P1-1) as there were no "existing

possessions" nor any legally recognized compensation claims when the

Unification Treaty came into force.

     The Commission notes that the applicant company, in the light of

the Commission's decision of 4 March 1996, explicitly limits its

complaint to the decisions refusing restitution, taken by the

authorities of the Federal Republic of Germany after 1990.

     As regards the incompatibility ratione materiae of claims that

the regulations of the Unification Treaty interfered with rights under

Article 1 of Protocol No. 1 (P1-1), the Commission held, in the above-

mentioned decisions (Nos. 18890/91, 19048/91, 19049/91, 19342/92 and

19549/92 and No. 19918/92, op. cit.), as follows:

           "..., in any event the applicants could not claim to be

     victims of a violation of their rights under Article 1 of

     Protocol No. 1 (P1-1) unless the measure complained of affected

     their 'possessions' or their 'property' within the meaning of

     this provision. A person complaining of an interference with his

     property must show that such right existed (No. 7694/76, Dec.

     14.10.77, D.R. 12, p. 131).

           In this respect, the Commission recalls the constant case-

     law of the Convention organs according to which "possessions" may

     be either 'existing possessions' (cf. Eur. Court HR, Van der

     Mussele v. Belgium judgment of 23 November 1983, Series A no. 70,

     p. 23, para. 48) or valuable assets, including claims, in respect

     of which the applicant can argue that he has at least a

     "legitimate expectation" that they will realise (cf. Eur. Court

     HR, Pine Valley Developments Ltd and Others v. Ireland judgment

     of 29 November 1991, Series A no. 222, p. 23, para. 51, and

     Pressos Compania Naviera S.A. and Others v. Belgium judgment of

     20 November 1995, Series A no. 332, p. 21, para. 31). By

     contrast, the hope of recognition of the survival of a former

     property right which has not been susceptible of effective

     exercise for a long period (Nos. 7655-7657/76, Dec. 4.10.77,

     D.R. 12, p. 111) or a conditional claim which has lapsed as a

     result of the non-fulfilment of the condition (No. 7775/77,

     Dec. 5.10.78, D.R. 15, p. 143) are not to be considered as

     'possessions' within the meaning of Article 1 of Protocol No. 1

     (P1-1).

           It is clear that the present case does not concern any

     'existing possessions' of the applicants. The applicants'

     properties were expropriated a long time ago and the applicants

     have been unable for decades to exercise any owners' rights in

     respect of the property concerned. Despite the applicants' claim

     that the expropriations were contrary to international law and

     thus unlawful, it appears that in the German legal order these

     expropriations were being considered as legally valid even before

     the conclusion of the Unification Treaty. The provisions of the

     Treaty cannot therefore be seen as legalising the deprivation of

     the applicants' property and thereby as being the source of the

     deprivation for the purposes of German law.

           It remains to be examined whether the applicants could have

     any 'legitimate expectation' to realise claims, either based on

     a right to compensation for the loss of their property which

     continued to exist until the entry into force of the Unification

     Treaty and was affected thereby, or created by the fact that

     public-law bodies of the Federal Republic of Germany acquired

     part of the expropriated estates by virtue of the unification.

           As regards any possible compensation claim generated by the

     loss of the property, the Commission refers to its constant

     jurisprudence according to which it is not competent ratione

     temporis and ratione materiae to examine complaints relating to

     the refusal or denial of compensation claims based on facts that

     occurred prior to the entry into force of the Convention with

     respect to the State concerned (cf. No. 7694/76, Dec. 14.10.77,

     D.R. 12, p. 131; No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146). The

     Commission would add with regard to the particular facts of the

     present case that the Federal Republic of Germany was not

     responsible for the expropriations in question and that therefore

     any compensation claims which might have existed prior to the

     Unification Treaty would not have been directed against that

     State.

           As regards the existence of any claim based on the fact

     that, in consequence of the unification, part of the property

     concerned passed into the hands of public-law bodies of the

     Federal Republic of Germany, the Commission notes the Federal

     Constitutional Court's finding that despite this fact there

     existed no claim under German law for the restitution of the

     available properties and that this situation was, from the

     viewpoint of constitutional law, unobjectionable. There is

     nothing to show that this finding is arbitrary and incompatible

     with the applicable provisions. In particular it does not appear

     that the Federal Constitutional Court's conclusion was based on

     the Unification Treaty itself and that, without the provisions

     of that Treaty, the situation under German constitutional law

     would have been judged otherwise. Therefore it cannot be said

     that the Treaty interfered with any pre-existing legal position

     of the applicants in this respect either."

     The Commission finds that the circumstances of the present case

do not justify any other conclusions.

     The Commission considers that the refusal of restitution did not

concern any of the applicant company's "existing possessions", given

that the property had been expropriated by the authorities of the

German Democratic Republic in 1959 and that, for a period of more than

30 years, the applicant company had no factual possibility to exercise

any powers or control regarding the estate.  The expropriation in 1959

is not imputable to the Federal Republic of Germany and the question

of its lawfulness is not within the Commission's jurisdiction ratione

personae and temporis.  Furthermore, in view of the political situation

until 1990, the applicant company could not have had, at that time, any

"legitimate expectation" of the revival of its former property right.

     On this point, the Commission notes that the German

administrative courts, called upon to apply the provisions of the Act

Regulating Unresolved Property Questions, had to interpret the notion

of "expropriations without compensation" in S. 1 para. 1 of that Act.

The courts considered that this notion only covered expropriations for

which the legal system of the former German Democratic Republic had

generally excluded compensation. A situation where, like in the case

of the applicant company, amounts of compensation had not been paid to

the expropriated owner for some reason such as a set-off did not,

according to the Federal Administrative Court, amount to no

"expropriation without compensation" within the meaning of S. 1

para. 1 (b) of the said Act. The Commission finds that these

conclusions do not disclose any arbitrariness.

     This part of the application is therefore incompatible ratione

materiae with the provisions of the Convention and must be rejected

under Article 27 para. 2 (Art. 27-2).

2.   The applicant company further complains about discrimination

against it as, unlike citizens of the former German Democratic Republic

expropriated by the authorities of that State after 1949, it did not

receive any interest on the compensation, in particular for the period

between the expropriation in 1959 and the set-off in 1970.

     Assuming compliance with Article 26 (Art. 26), the Commission has

examined this complaint under Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1 (P1-1). Article 14

(Art. 14) of the Convention reads as follows:

     "The enjoyment of the rights and freedoms set forth in this

     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."

     The Commission recalls that Article 14 (Art. 14) 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 rights and freedoms safeguarded by those provisions. Although

the application of Article 14 (Art. 14) does not presuppose a breach

of one or more 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 (Eur.

Court HR, Inze v. Austria judgment of 28 October 1987, Series A no.

126, p. 17, para. 36).

     As the Commission has found above that Article 1 of Protocol

No. 1 (P1-1) is not applicable to the facts of which the applicant

company complains, it cannot claim to have been discriminated against

in the enjoyment of its property rights within the meaning of this

provision (cf. Eur. Court HR, Marckx v. Belgium judgment of 13 June

1979, Series A no. 31, p. 23, para. 50; Nos. 18890/91, 19048/91,

19049/91, 19342/92, 19549/92 (joined), Dec. 4.3.96, D.R. 85, p. 5; No.

19918/92, Dec. 24.2.97, unpublished).

     This part of the application must therefore also be rejected,

according to Article 27 para. 2 (Art. 27-2), as being incompatible with

the provisions of the Convention.

3.   With regard to the applicant company's further complaints about

the court proceedings, the Commission finds no appearance of a breach

of the right to a fair hearing, as guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention.  The Federal Administrative Court

confirmed the procedure and its decision not to accept the applicant

company's contention that the legal conditions for delegation had not

been met does not disclose any indication of arbitrariness.  On the

whole, there is nothing to suggest that the applicant company,

represented by counsel, could not duly present all arguments regarding

material and procedural issues or that the proceedings were otherwise

unfair.  With regard to the proceedings before the Federal

Constitutional Court, the Commission notes that the Federal

Constitutional Court, referring to S. 93b, in conjunction with S. 93a

of the Federal Constitutional Court Act, decided to refuse acceptance

of the applicant company's case.  In these circumstances, it was

sufficient to refer to the relevant legal provisions (No. 8769/79, Dec.

16.7.81, D.R. 25, p. 240; No. 29753/96, Dec. 27.11.96, unpublished)

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                            M.P. PELLONPÄÄ

        Secretary                                 President

   to the First Chamber                      of the First Chamber