Italy v German Federal Republic

CourtObsolete Court (Germany)
Date14 Noviembre 1959
Arbitral Commission on Property, Rights and Interests in Germany, Second Chamber.

(Sauser-Hall, Schwandt, Sperduti.)

Italian Republic
Federal Republic of Germany.

Treaties Interpretation of Principles and rules of

Reliance on text Natural and ordinary meaning When insufficient Literal and grammatical analysis of words of complicated provision Teleological interpretation.

Relevance of prior general practice concerning subject-matter of treaty.

Multilingual treaty Comparison of official texts.

Treaties Interpretation of Consideration of preparatory work In relation to purpose of treaty Meaning of a preparatory document Distinction between preparatory and preliminary documents Interpretation of multilateral treaty Admissibility of preparatory work against acceding State which did not take part in negotiations leading to conclusion of treaty Discretion of tribunal and circumstances of case as criteria for admissibility of preparatory work against such State.

Treaties Special kinds of Treaties of peace Analogous instruments Convention on the Settlement of Matters Arising out of the War and Occupation, 19521954 Nature of Convention Approximation to peace treaty Whether negotiated or imposed settlement Relationship between Convention and Treaty of Peace with Italy, 1947.

Arbitration Evidence Unfettered discretion of arbitration commission in admitting evidence.

Treaties of peace Performance of Analogous instruments Convention on the Settlement of Matters Arising out of the War and Occupation, 19521954 Restitution under Article 4, paragraph 1, of Chapter Five of Convention Conditions for restitution or for compensation in lieu under that provision Basis of right to restitution Continuance of private property rights of residents of occupied countries Restitution distinguished from reparation Provisions of Treaty of Versailles, 1919, and Settlement Convention compared Identification of restitutable property Whether distinction to be drawn between formal and substantial identification Whether identification possible of property no longer existing Postponement of payment of compensation for unrestitutable property to future Treaty of Peace with Germany.

The Facts (as stated by the Commission).(1) On December 1, 1956, the complainant lodged with the Arbitral Commission a complaint against the Federal Republic of Germany with a view to obtaining the sum of 34,200 DM in compensation for 10,000 kgs. of non-ferrous metals (bronze, lead, aluminium) which were removed from Italy by the German forces after September 3, 1943 (Article 5 of Chapter Five of the Settlement Convention of October 23, 1954[1]) and which have not been returned.

(2) According to a letter of the Industriebeteiligungsgesellschaft to the Bundesamt fr ussere Restitutionen (hereinafter called Bundesamt), dated November 16, 1956, lists of non-ferrous metals were submitted by letter of September 19, 1947, and by request of the British Military Government in occupied Germany by the German Organization for the distribution of materials from occupied countries(called Roges). On November 21, 1947, the Reparation, Deliveries and Restitution Division, Detmold (called R.D.R. Division, Detmold), which was the authority competent for restitution cases in the British Zone of Occupation in Germany, then directed the following communication to the Italian Restitution Mission at Bielefeld:

Bronze, lead, aluminium (Holzminden dump)

10,000 kgs.

Scrap brass (Holzminden dump)

14,430 kgs.

As early as November 20, 1947, the Italian Restitution Mission submitted Claim No. 70 in respect of these two items of 10,000 kgs. and 14,430 kgs. (records of the Bundesamt, p. 1). By letter of December 2, 1947, of the R.D.R. Division, Detmold, the R.D.R. Branch, Hanover, the German Restitution Office, was then asked to make the necessary investigations in the following terms:

Would you please investigate this matter and report to this Office. (Original text.)

This first inquiry ordered by the R.D.R. Division, Detmold, led to a Hrmann report of the German Restitution Office (Annexes to the records of the Bundesamt, p. 8a), dated February 4, 1948, the conclusions of which are uncertain; the rapporteur infers that the goods claimed have been identified as being of Italian origin, but adds that the 14,430 kgs. of scrap brass bear no markings of Italian origin; as regards the 10,000 kgs. of bronze, lead and aluminium, the report states that they had already been despatched to the firm [of] Henry Wieland K.G., of Brunswick, before September 19, 1947; that firm re-sold them to small foundries until the end of October 1947 at the latest, and these German firms utilized them, as is confirmed by the letter of the R.D.R. Division, Detmold, of April 21, 1948, to the Italian Restitution Mission (records of the Bundesamt, page 4).

The Hrmann report was communicated to the R.D.R. Division, Detmold, on March 23, 1948, and on April 13, 1948, the latter issued an authority for release in favour of Italy for the 14,430 kgs. of scrap brass (Annexes to the records of the Bundesamt, page 9). As regards the 10,000 kgs. of bronze, lead and aluminium, the British authorities could only state that they had long ago ceased to exist. In fact, in the letter of the R.D.R. Division, Detmold, of April 21, 1948, to the Italian Restitution Mission, Bad Salzuflen (Annexes to the records of the Bundesamt, page 4), it says:

The authority for release formed the subject of a letter of June 23, 1948 (Annexes to the records of the Bundesamt, page 11), directed to the R.D.R. Division, Detmold, by the Property Control Section, Hanover, stating that there was neither bronze nor lead nor aluminium in the Roges dumps, those metals having been carried away in waggons by the American forces at the beginning of the occupation, without the co-operation of the firm with which they were stored. The letter contains the following passages:

The letter further points out that it had been discovered that the metals deposited in the dumps in 1944 were by no means identical with those still figuring in the stocks, that they were often lawfully bought and paid for and not looted in Italy, which is said to have been confirmed by Mr. Hustede, the representative of Roges at Milan, who was questioned on this point. The British Office arrives at the conclusion that the Italian claim cannot be established by the mere production of documentary evidence, but that, in view of the variety of sources of supply of these dumps, investigations must be conducted concerning the metals themselves.

Taking into account these observations, the R.D.R. Division, Detmold, thereupon stayed the execution of its decision of April 13, 1948, and ordered new investigations to be made with the cooperation of an Italian officer, as appears from its letter of July 28, 1948, to the Property Control Section, Hanover. These new investigations once more led to a negative result in respect of the 10,000 kgs. of bronze, lead and aluminium, which were confirmed to be nonexistent in the Roges dumps by the report of the said British office of August, 12, 1948 (Annexes to the records of the Bundesamt, p. 32, Case No. 35). The investigations made by inspection on the spot concerning the 14,300 kgs. of scrap brass gave rise to the following observation in the said report:

According to the communications of the British authorities charged with the conduct of the investigations, these metals were thus not physically identified. By letter of September 24, 1948, the R.D.R. Division, Detmold, nevertheless rescinded the stay of execution of its decision of April 13, 1948, which it had ordered on July 28, 1948, and the 14,300 kgs. in question were restored to Italy (Annexes to the records of the Bundesamt, p. 14, Case No. 34). No reasons were given for the restitution of this parcel of metals.

(3) By letter of August 30, 1949, the R.D.R. Division, Detmold (records of the Bundesamt, p. 8) invited the Italian Restitution Mission to submit a claim for compensation for the metals which had not been returned. The application of December 1, 1956 (ibid., p. 2) stated that compensation had been requested by Italy as early as September 14, 1949, but there is no copy of this request in the files. It is, however, certain that, by letter of October 9, 1952 (attached to the application), claims for payment of compensation (inter alia, for the claim bearing the number 70) were submitted to the British High Commission in Germany by the Italian Mission before the entry into force of the Settlement Convention.

The defendant does not contest the physical fact of the removal from Italy of the non-ferrous metals in the present case. It appears to be an established fact that the quantity of 10,000 kgs, of bronze, lead and aluminium arrived in the dumps of Roges at Holzminden in November 1944, but, in the absence of documents, it is impossible to determine for certain how they were acquired by that German organization. The parcel claimed appears in the inventories of Roges as Italien-Kauf, but the files contain no precise statements on the question whether it was a normal purchase or whether it was imposed on prejudicial conditions.

Held: that the twelve documents described as travaux prparatoires, a list of which was annexed to the minutes of the hearing of January 21, 1959, could not, in spite of the complainant's submissions, be eliminated from the record of the case. Consequently, the Arbitral Commission arrived at the conclusion that the claim of the Italian Government for the payment of compensation for 10,000 kgs. of non-ferrous metals which were removed from Italy by the German forces after September 3, 1943, must be rejected as it did not fulfil the conditions set forth in Article 4 of Chapter Five of the Convention on the Settlement of Matters Arising out of the War and the Occupation, 19521954. The property in question had not been the subject of a formal identification during restitution proceedings...

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