AS TO THE ADMISSIBILITY OF

                      Application No. 36713/97

                      by Geschäftshaus GmbH

                      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 11 June 1997 by

Geschäftshaus GmbH against Germany and registered on 25 June 1997 under

file No. 36713/97;

     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 company is a company in liquidation.  Its

registered address is in Berlin.  All shares are held by the Warenhaus

Wertheim GmbH as successors of the AWAG Grundstücksgesellschaft mbH.

In the fifties, the applicant company was struck off the commercial

register due to insolvency (Vermögenslosigkeit).  In the proceedings

before the Commission, the applicant company is represented by its

official liquidators Messr. H. Kreuz and M. Müller, Berlin, and by

Mr D. Gerhardt, a lawyer of a Düsseldorf law firm.

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

be summarised as follows.

A.   Particular circumstances of the case

     Since 1911 the applicant company owned real property in Berlin.

The estates concerned were expropriated, without compensation, under

the Expropriation of Assets of Nazi Criminals and War Activists Act of

8 February 1949 (Gesetz zur Einziehung von Vermögenswerten der

Naziverbrecher und Kriegsaktivisten vom 8. Februar 1949) and by

operation of the Decree on further Expropriations under the Act of

8 February 1949 (list no. 3) of 14 November 1949 (Bekanntmachung über

weitere Einziehungen nach dem Gesetz vom 8. Februar 1949 (Liste 3).

The Decree was published in the official gazette on 2 December 1949.

On 3 April 1950 the land register was amended to the effect that the

estates were recorded as "state-owned property" (Volkseigentum).

     On 5 October 1990 the Warenhaus Wertheim GmbH applied with the

Berlin Office for the Regulation of Unresolved Property Questions

(Landesamt zur Regelung offener Vermögensfragen Brandenburg) for the

restitution of part of the real property previously owned by the

applicant company.

     On 5 November 1991 the Berlin Office for the Regulation of

Unresolved Property Questions, upon the request of the Warenhaus

Wertheim GmbH, issued a declaratory decision according to which the

Warenhaus Wertheim GmbH was in a legal position to file claims within

the meaning of S. 2 para. 1 (defining the persons entitled to file

claims) and S. 6 para. 1(a) (defining the persons entitled to file

claims for the restitution of firms) of the Act Regulating Unresolved

Property Questions (Gesetz zur Regelung offener Vermögensfragen)

regarding the former assets of the AWAG Grundstücksgesellschaft mbH.

Subject to agreement by the Federal Ministry for Finance

(Bundesministerium der Finanzen) that the Act Regulating Unresolved

Property Questions applied to property expropriated under the Berlin

list no. 3, the assets in question could be restituted, if restitution

was not excluded for other reasons, pursuant to the said Act.

     On 29 September 1992 the Berlin Office for the Regulation of

Unresolved Property Questions rejected the applicant company's request

for restitution of the estates.

     The decision was based on S. 1 para. 8 (a) of the Act Regulating

Unresolved Property Questions, excluding the restitution of property

expropriated under Soviet occupation law or the authority resulting

from the occupational power between 1945 and 1949.

     The Office found that S. 1 para. 8 (a) of the said Act was

applicable to the real property in question as it had been expropriated

under German legal provisions which had been enacted on the basis of

authority resulting from occupational power.  In particular, the

Municipality of Great Berlin had decided upon the further

expropriations (list no. 3) on 10 November 1949, whereas the

administrative competences had been transferred from the Soviet

Commandant to the Municipality only on 11 November 1949.

     On 4 May 1994 the Berlin Administrative Court (Verwaltungs-

gericht), upon the applicant company's action challenging this

decision, partly quashed the decision of 29 September 1992 and ordered

the Office to grant restitution of the real property in question in

accordance with the relevant provisions of the Act Regulating

Unresolved Property Questions.

     In its decision, the Administrative Court found that the

applicant was entitled to restitution, in particular that S. 1

para. 8 (a) of the said Act did not extend to the expropriation which

had taken place in the applicant company's case.  In this respect, the

Court considered that the property had been expropriated under legal

provisions enacted by German authorities.  The Court found that it

could not be established whether the expropriations of list no. 3 had

been effected on behalf of the Soviet occupational powers and were,

therefore, based on the sovereign power of the occupation force.  The

Court noted that the preparatory works concerning list no. 3 originated

in the Expropriation of Assets of Nazi Criminals and War Activists Act

of 8 February 1949, which inter alia provided for the preparation of

a third list of proposals on how to realize assets placed under forced

administration, which had not been included in the first and second

list already.  At that time, Soviet influence on the preliminary votes

and negotiations could have taken place.  Moreover, the decision had

been taken on 11 November 1949, i.e. before the transfer of

administration to German authorities.  However, these elements were not

sufficient to show direct Soviet influence, the more as the loss of

property took effect only on 2 December 1949, when the Decree in

question was published.  The burden of proof was on the defendant,

relying on a provision stipulating an exception to the rule of

restitution.

     On 13 February 1995 the Federal Administrative Court

(Bundesverwaltungsgericht), upon the defendant's appeal on points of

law (Revision), quashed the judgment of 4 May 1994 and dismissed the

applicant company's action.

     In its decision, the Federal Administrative Court found that the

applicant company was not entitled to restitution of the real property

in question.  Contrary to the opinion of the lower instance, S. 1

para. 8 (a) of the Act Regulating Unresolved Property Questions

excluded the restitution claimed by the applicant company.  In this

respect, the Federal Administrative Court considered that the real

estate in question had been expropriated on the basis of the authority

resulting from the occupational power.

     Referring to its own case-law and the case-law of the Federal

Constitutional Court (Bundesverfassungsgericht), the Federal

Administrative Court recalled that S. 1 para. 8 (a) of the said Act

pursued the aim of protecting the Soviet Union against any reproach of

wrongdoing regarding expropriations carried out under the

responsibility of the occupational power.  Accordingly, any

expropriations based upon wishes or suggestions of the Soviet

occupational powers or corresponding to their general or particular

wishes were regarded as expropriations carried out on the basis of

occupation law or the authority resulting from occupational power.  The

German practice regarding expropriations within the former Soviet

occupied zones was imputable to the Soviet occupational powers as the

highest public authority.

     Expropriations initiated and carried out by German authorities

following the creation of the former German Democratic Republic on

7 October 1949 were generally no longer imputable to the Soviet

occupational powers.  Nevertheless, expropriations implemented after

7 October 1949 were still covered by S. 1 para. 8 (a) of the said Act,

where these measures had been prepared under the authority of the

Soviet occupational powers and with their general agreement to the

effect that the further implementation by the German authorities fell

within their sphere of responsibility.

     The expropriations according to list no. 3, as published on

2 December 1949, formed part of the latter group of expropriations

imputable to the Soviet occupational forces and therefore excluded from

restitution.  In this respect, the Federal Administrative Court

examined in detail the legal instruments underlying the expropriations

in question.  The assets concerned had, as a rule, been placed under

sequestration, pursuant to a decree of the Soviet military

administration of 30 October 1945.  The Expropriation Act of 8 February

1949 had been enacted against this factual and legal background, and

the assets released from Soviet sequestration shortly before had been

partly expropriated (list no. 1) or been returned to their owners (list

no. 2).  As regards the remainder of assets, the Great-Berlin

Municipality instructed its services to elaborate proposals as to their

realization.  The Soviet occupational powers had endorsed these

measures and thereby assumed responsibility for the implementation of

the 1949 Expropriation Act.  The question whether or not they had

approved each of the expropriations under the Expropriation Act was

irrelevant.

     According to the Federal Administrative Court, this result,

namely excepting the expropriations under list no. 3 from restitution,

was in line with the genesis of S. 1 para. 8 (a) of the Act Regulating

Unresolved Property Questions, as already established in the case-law

of the Federal Constitutional Court.  Thus, the Soviet Union had

requested that the legality and legitimacy of the expropriations

effected between 1945 and 1949 with the consent or upon decision of the

Soviets should not be put into question.

     The Federal Administrative Court finally established that there

were no reasons to conclude that S. 1 para. 8 (a) of the said Act

should exceptionally not apply in the applicant company's case.

     On 19 November 1996 the Federal Constitutional Court refused

acceptance of the applicant company's constitutional complaint

(Verfassungsbeschwerde).

     In the Federal Constitutional Court's view, the complaint

regarding the non-restitution of assets expropriated in the Soviet

sector of Berlin pursuant to the so-called Berlin list no. 3 did not

raise any fundamental issues of constitutional law.  In this respect,

the Federal Constitutional Court referred to and confirmed its

established case-law confirming the constitutionality of the relevant

provisions of the Unification Treaty and S. 1 para. 8 (a) of the Act

Regulating Unresolved Property Questions.

     Moreover, the Federal Constitutional Court considered that,

against this background, acceptance of the complaint was not necessary

for securing the rights invoked by the applicant company.  In

particular, there was no indication of discrimination against the

applicant company, as the Federal Administrative Court's reasoning was

conclusive and did not disclose any appearance of arbitrariness.

B.   Relevant law and practice

I.   Unification Treaty and Joint Declaration

     According to the Joint Declaration on outstanding property issues

(Gemeinsame Erklärung zur Regelung offener Vermögensfragen) made on

15 June 1990 by the Governments of the Federal Republic of Germany and

the German Democratic Republic, which is a constituent part of the

Treaty on German Unification of 31 August 1990 (Einigungsvertrag),

"expropriations carried out on the basis of occupation law or the

authority resulting from occupational power (1945 and 1949)"

("Enteignungen auf besatzungsrechtlicher bzw. besatzungshoheitlicher

Grundlage (1945-1949)") shall not be reversed.

     The international matters concerning German unification were

agreed upon in negotiations between the two German States and the four

Allied Powers.   In the Treaty of 12 September 1990 on the Final

Settlement with respect to Germany, the sovereignty of a united Germany

was recognised.  In connection with the signing of this Treaty the

Ministers for Foreign Affairs of the former German Democratic Republic

and of the Federal Republic of Germany addressed a Joint Letter

(Gemeinsamer Brief) to the Foreign Ministers of the Four Powers

confirming the property regulation reached in the Joint Declaration of

15 June 1990 and aimed at being incorporated in the Unification Treaty.

II.  Act Regulating Unresolved Property Questions and related

     legislation

     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, reaffirms the

principle that there should be no restitution of property expropriated

on the basis of occupation law or the authority resulting from

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.

III. Case-law of the Federal Constitutional Court

     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.

IV.  Expropriations under Berlin list no. 3

     As regards legal classification, for the purposes of S. 1

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

expropriations under Berlin list no. 3 (Liste 3), pursuant to the 1949

Expropriation Act, the applicant company has submitted various

documents issued by Federal and Berlin authorities.

     In a letter of 27 June 1991, the Federal Minister of Justice

stated that S. 1 para. 8 (a) of the Act Regulating Unresolved Property

Questions did not apply to expropriations on the basis of occupational

law which only took effect after the creation of the German Democratic

Republic on 7 October 1949 and that this opinion was in line with the

Federal Constitutional Court's decision on the constitutionality of the

Unification Treaty.  The expropriation [under Berlin list no. 3] having

only taken effect on 2 December 1949, restitution under the Act

Regulating Unresolved Property Questions was in principle possible.

Any claims for restitution should, accordingly, be filed with the

Berlin Office for the Regulation of Unresolved Property Questions.

     In a letter of 10 September 1991 the Federal Minister of Justice

(Bundesminister der Justiz), stated that, in his - though not legally

binding - opinion, expropriations under Berlin list no. 3 did not

constitute expropriations on the basis of occupational law or the

authority resulting from the occupational power and that accordingly

the assets concerned could, as a rule, be restored.

     In a letter dated 18 September 1991, the Federal Office for

Regulating Unresolved Property Questions (Bundesamt zur Regelung

offener Vermögensfragen) stated that it shared the legal opinion

expressed by the Federal Minister of Justice, and, as regards the

procedure, referred to the competent Berlin authorities.

     It follows from a letter sent on 23 April 1992 by the Berlin

Office for the Regulation of Unresolved Property Questions in another

case to the legal representative of third persons in another case that

on 1 April 1992 former owners of property expropriated under list no. 3

had been free to proceed with claims for restitution under the Act

Regulating Unresolved Property Questions and that the Office had

started to examine their request for restitution.

     In its session of 2 June 1992 the Berlin Senate (Senat), having

regard to a legal opinion of the Senator for Justice (Justizsenator)

in Berlin, according to which expropriations under list no. 3 had been

effected on the basis of the authority resulting from the occupational

power, decided that property expropriated under list no. 3 were not to

be restored to their previous owners.

     In a letter dated 19 August 1993, the Federal Minister of Justice

observed that the question whether or not property expropriated under

list no. 3 could be restituted was in dispute (umstritten).  S. 1

para. 8 (a) of the Act Regulating Unresolved Property Questions,

excluding expropriations under occupational law or the authority

resulting from the occupational power could militate against

restitution.  As regards its own legal position, the Ministry of

Justice observed that, in the official explanations (amtliche

Erläuterungen) of the Federal Government on the Act Regulating

Unresolved Property Questions of 12 September 1990 (BT-11/7831) the

field of application of S. 1 para. 8 (a) of the said Act was defined

as "expropriations on the basis of occupational law or the authority

resulting from the occupational power in the period between the end of

war (8 May 1945) and the creation of the German Democratic Republic

(7 October 1949)".  Accordingly, the legislator had intended to exclude

from restitution only those properties expropriated before the creation

of the German Democratic Republic.  To the extent that the German

Democratic Republic had, after 6 October 1949, applied legal

instruments enacted previous to its creation, it had done so in

adopting such law as its own law, i.e. law of the German Democratic

Republic.  Measures taken on this legal basis could not be regarded as

measures on the basis of "occupation law or the authority resulting

from the occupational power".  Expropriations under the Berlin list

no. 3 had not become effective before the creation of the German

Democratic Republic, but only on 2 December 1949 when the list was

published.  Accordingly, such expropriations were generally not

expropriations on the basis of occupational law or the authority

resulting from the occupational power within the meaning of S. 1

para. 8 (a) of the above Act and restitution was not in principle

excluded.  The Minister noted that this opinion was shared in legal

writing as well as by the Berlin Administrative Court.  The Minister

further observed that, according to the contrary view taken by the

Berlin Municipality, these expropriations had been based on

occupational law or the authority resulting from the occupational power

and the property could not be restored.  The Minister concluded that

the legal opinion stated was not binding for the authorities competent

to implement the Act Regulating Unresolved Property Questions and that,

in case of dispute, the competent courts were called upon to take a

final decision.

COMPLAINTS

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

authorities, after German unification, to return the previously owned

property which had been expropriated under the Berlin list no. 3,

pursuant to the 1949 Expropriation Act, amounts to a breach of

Article 1 of Protocol No. 1 to the Convention.

     In this respect, the applicant company, referring to the above

official statements, inter alia, by the Federal Ministry of Justice and

to the Berlin Administrative Court's decision in the present case,

submits that initially a legal opinion prevailed, according to which

Article 1 para. 8 (a) of the Act Regulating Unresolved Property

Questions was not applicable.  The applicant company had, therefore,

a "legitimate expectation" of obtaining restitution of the previously

owned property which has in the meantime been held by the Berlin

Municipality and the Federal Republic of Germany.

2.   The applicant company further complains under Article 14 of the

Convention, in conjunction with Article 1 of Protocol No. 1, that both

the refusal of restitution and the exclusion from compensation amount

to discrimination.

THE LAW

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

property expropriated under the Berlin list no. 3 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 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 argues that its

case is distinguishable from the facts underlying the Commission's

decision of 4 March 1996.

     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 in particular that the refusal of

restitution did not concern any of the applicant company's "existing

possessions", given that the property had been expropriated in 1949 and

that, for a period of more than 40 years, the applicant company had no

factual possibility to exercise any powers or control regarding the

estate.  The expropriation in 1949 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.

     The Commission is further of the opinion that, given the facts

that the applicant company, and the shareholding companies, had not

been able to exercise any ownership rights in respect of the property

concerned for more than forty years and did not have any legally

recognised compensation claim at the time of the conlusion of the

German Unification Treaty, there could not have been, at that time, any

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

     The question, however, arises whether or not after views

expressed by German administrative authorities after German

reunification against the background of the developing case-law on the

constitutionality of the legal instruments concerned, including the

interpretation of the notion "expropriations on the basis of occupation

law or the authority resulting from occupational power", gave rise to

a "legitimate expectation" that property expropriated pursuant to the

Berlin list no. 3 was to be restituted (cf., mutatis mutandis,  Eur.

Court HR, Pine Valley Developments Ltd and Others judgment, op. cit.,

pp. 23-24, paras. 51-52; Pressos Compania Naviera S.A. and Others

judgment, op. cit., pp. 20-21, paras. 29-31).

     On this point, the Commission notes that the German authorities

were called upon to apply the provisions of the Act Regulating

Unresolved Property Questions and had to interpret the notion of

"expropriations carried out on the basis of occupation law or the

authority resulting from the occupational power (1945 until 1949)".

     The Commission finds that decisions taken in other expropriation

cases or general public statements concerning the application of S. 1

para. 8 (a) of the said Act, including its possible application to

expropriations under the Berlin list no. 3 could not anticipate a

decision by the competent authorities on the applicant company's

request for restitution.  In the instant case, the Berlin Office of the

Regional Office for the Regulation of Unresolved Property Questions,

in its decision of 29 September 1992, refused the applicant company's

request for restitution on the ground that, in its view, the

expropriation in question had been carried out on the basis of

authority resulting from occupational power.  In this situation, the

applicant company was aware that there was a dispute regarding the

restitution of the properties expropriated under the 1949 Expropriation

Act and the Berlin list no. 3.  Irrespective of the favourable first

instance decision, the applicant company was not entitled, prior to the

final determination of the issue by the Federal Administrative Court

and the Federal Constitutional Court, to assume that it would obtain

restitution of its previously owned assets.

     The Commission further recalls that it is in the first place for

the national authorities, notably the courts, to interpret and apply

domestic law (cf. Eur. Court HR, Pine Valley Developments Ltd and

Others judgment, op. cit., p. 24, para. 52).

     The Commission notes that the Federal Administrative Court, as

confirmed by the Federal Constitutional Court, concluded in a very

detailed reasoning that the expropriations under the so-called Berlin

list no. 3, such as the expropriation in the applicant company's case,

constituted expropriations effected on the basis of the authority

resulting from occupational power.  In the Commission's view, such

conclusion does not disclose any arbitrariness.

     In such circumstances, the Commission finds that the applicant

company did not establish that it had a "legitimate expectation" that

its claim for restitution would be granted.

     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 that the above decisions

amounted to discrimination contrary to Article 14 of the Convention,

in conjunction with Article 1 of Protocol No. 1 (Art. 14+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.

     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