Prince Hans-Adam II v Municipality of Cologne [Federal Republic of Germany, Court of Appeal of Cologne]

CourtCourt of Appeal of Cologne (Germany)
Docket Number(Case No 22 U 215/95)

Federal Republic of Germany, Court of Appeal of Cologne

(Oehler, Presiding Judge; Eickmann-Pohl and Caliebe, Judges)

(Case No 22 U 215/95)

Prince Hans-Adam II
and
Municipality of Cologne1
(Pieter van Laer Painting Case)

Relationship of international law and municipal law Treaties Effect in domestic law Federal Republic of Germany Postwar treaties Treaty on the Final Settlement with respect to Germany, 1990 Constitutional status Whether part of German law

States Germany Status under allied occupation Resumption of full sovereignty by united Germany Effect on postwar treaties Convention on the Settlement of Matters Arising out of the War and the Occupation, 1952

Treaties Application Termination Convention on the Settlement of Matters Arising out of the War and the Occupation, 1952 Effect in German law Relationship with Treaty on the Final Settlement with respect to Germany, 1990 Termination by exchange of notes, 1990

War and armed conflict Reparations Seizure of German external assets Convention on the Settlement of Matters Arising out of the War and the Occupation, 1952 Definition of German a matter for the law of the confiscating State Persons of German ethnic origin possessing nationality of neutral State Whether assets liable to seizure Whether German courts entitled to adjudicate upon claims The law of Germany

Summary:2The facts:In 1991, a painting by the artist Pieter van Laer was lent by a museum in the Czech Republic to a museum in Cologne for exhibition. The painting had been confiscated by the Government of Czechoslovakia from the then reigning Prince of Liechtenstein in 1945 under a decree confiscating the property in Czechoslovakia of persons of German and Hungarian origin irrespective of their nationality. The painting had been kept in a castle in Czechoslovakia which had been part of the private property of the Prince. A challenge to the legality of its seizure had been rejected by a court in Czechoslovakia in 1951. Prince Hans-Adam II of Liechtenstein, the reigning prince in the 1990s and son of the prince from whom the painting had been taken, brought proceedings in the German courts for the recovery of the painting. He maintained that the confiscation had been unlawful, because Liechtenstein had been neutral during the Second World War and the decree should not, therefore, have been applied to the property of the Liechtenstein royal family.

In 1952, France, the United Kingdom and the United States of America concluded with the Federal Republic of Germany the Convention on the Settlement of Matters Arising out of the War and the Occupation (the Settlement Convention). As amended, the Settlement Convention provided, in Article 3 of Chapter 6, that the Federal Republic would raise no objection against the measures carried out with regard to German external assets and that no action against persons acquiring property as a result of such measures would be admissible.3 Article 5 of Chapter 6 provided that the Federal Republic would ensure that the former owners were compensated. This legal regime was expressly stated to be temporary until the problem of reparation was finally settled by a peace treaty. The Settlement Convention entered into force in 1955. The Treaty on the Final Settlement with respect to Germany, concluded in 1990 and entering into force in 1991, between France, the USSR, the United Kingdom, the United States of America, the Federal Republic of Germany and the German Democratic Republic constituted a final settlement of matters arising out of the Second World War so far as Germany was concerned. It was accompanied by an exchange of notes between the parties to the Settlement Convention terminating that Convention but providing that paragraphs 1 and 3 of Article 3 of Chapter 6 would remain in force.

The Regional Court of Cologne dismissed the proceedings. Prince Hans-Adam II appealed to the Court of Appeal.

Held:The appeal was dismissed. Recourse to the German courts was precluded by Article 3(3) of Chapter 6 of the Settlement Convention.

(1) Article 3 of Chapter 6 of the Settlement Convention had not been abrogated by the Final Settlement Treaty of 1991 and the termination of the quadripartite occupation regime for Germany, which provided for the resumption of full sovereignty by the united Germany (pp. 810).

(2) The exchange of notes of 2728 September 1990 was an independent international treaty and not merely an instrument for the interpretation of the Final Settlement Treaty. With the exception of paragraphs 1 and 3 of Article 3 of Chapter 6, which the exchange of notes expressly retained in force, the exchange of notes terminated the Settlement Convention. It was not necessary that the termination of a treaty was effected by the same kind of legal instrument as the treaty itself (p. 10).

(3) The exchange of notes was effective in the domestic law of Germany as a treaty. No particular formality was required for an international agreement concluded by the Federal Government to take effect in German law, nor was legislative consent a requirement in this case. No violation of basic rights was involved (pp. 1013).

(4) Article 3(3) of Chapter 6 was part of the system of liquidation of German external assets for the purpose of reparation. Its effect was to exclude the jurisdiction of the German courts and debar them from ruling on the Prince's claim that the confiscation of the painting was unlawful (pp. 1317).

(5) It was not contested that the Prince and his father had at all relevant times been citizens of Liechtenstein, a neutral State, and had not held German nationality. However, the question whether particular property was to be considered as German external assets within the terms of the Settlement Convention was to be examined on the basis of the law of the expropriating State, in this case Czechoslovakia. The law of Czechoslovakia had treated property as German if the owner was of German ethnic origin, even if he or she was not a national of Germany. It was not open to the German courts to question that judgment. The German ethnic origin of the Prince and his father was common knowledge (pp. 1720).

(6) The painting was part of the agricultural property to which the decree applied and had been seized because of the state of war and for the purpose of reparation measures (pp. 214).

The following is the text of the judgment of the Court:

The appellant's appeal against the judgment of the 5. Zivilkammer des Landgerichts Kln (5th Section for Civil Matters of the Regional Court of Cologne)5 O 182/92is dismissed.

The costs of the appellate proceedings and the extra-judicial costs of the intervening third party shall be recoverable from the plaintiff.

The judgment is provisionally enforceable.

The plaintiff may avert execution by the defendant and the intervening third party by providing a security to the amount of DM 25,000.00 for each party, unless security to the same amount was provided prior to execution.

The respective securities may also be provided by way of an absolute guarantee to be assumed by a major German bank or public savings bank.

STATEMENT OF THE FACTS

The plaintiff is the heir of his father, the former Prince of Liechtenstein. Until the end of 1944, his father was the owner of the painting at issue by Peter van Laer, Der groe Kalkofen, that had been part of the Liechtenstein family's collection since 1767 at least. At the end of the Second World War, the painting was to be found in one of the castles of the Liechtenstein family on the territory of today's Czech Republic. In 1991, the defendant received the painting from the intervening third party as a loan for an exhibition. By virtue of an interlocutory injunction of the Regional Court of Cologne dated 11 November 19915 O 388/91sequestration of the painting was effected on 17 December 1991.

The plaintiff demands the defendant's consent that the painting be returned to him. In his opinion, he has become the owner of the painting in his capacity as heir of his father. He claims that the painting had not been the object of expropriation measures in Czechoslovakia, and in any case, such measures were invalid or ineffective on the grounds that they represent a violation of the ordre public of the Federal Republic of Germany.

The plaintiff filed the motion that

The defendant and the third party intervening in his support filed the motion that

The defendant and the intervening third party stated that the plaintiff's father had lost his title to ownership with respect to the painting as a result of an expropriation effected in Czechoslovakia. The party intervening in support of the defendant submits in this respect that the painting at issue was expropriated by the 12th Presidential Decree dated 21 June 1945. The legality of such expropriation was constituted by judgment of the Administrative Court of Bratislava on 21 November 1951.

By its judgment of 10 October 19955 O 182/92 LG Kln (Regional Court of Cologne)which is referred to here with respect to all specific details, the Regional Court dismissed the case. In its reasons for the decision, the court stated that the claim was inadmissible, [and] recourse to German courts was excluded. This ensues from Article 3 of Chapter 6 of the Convention on the Settlement of Matters Arising out of the War and the Occupation (Settlement Convention) dated 23 October 1954, which is still in force today. The Court further states that the prerequisites of this regulation are fulfilled. The expropriation of the plaintiff's father by way of the 12th Decree of the President of Czechoslovakia as of 21 June 1945 represented a measure within the meaning of Chapter 6 Article 3 paragraph 1 of the Settlement Convention.

With the pleading received on 15 November 1995, the plaintiff appealed against this judgment served on him on 20 October 1995, and he delivered a statement of grounds for his appeal which was received by the court on 27 February 1996, after an extension of time for filing such...

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