Germany: Saving Nazi-Stolen Properties To Help Holocaust Survivors

Article by Julius Berman and Roman Kent

Hal Lieberman and Daniel Kornstein conclude their recent column about the Conference on Material Claims Against Germany with a disclaimer that they do not have any clients with claims against the conference (NYLJ, March 8). Their article also reveals that they do not possess even the most basic facts about the conference or its work.

At its core, their piece reflects a fundamental misunderstanding about the legal role of the Claims Conference regarding unclaimed, formerly Jewish-owned property located in what was East Germany. Contrary to the authors' assertion, the Claims Conference does not hold any such property as a trustee. Rather, for property seized or forced to be sold by the Nazis and not reclaimed by the end of 1992—the German imposed claims deadline—the conference had the legal right to try to recover such assets, or receive related compensation, with the mission to use what was retrieved to assist Holocaust survivors in need worldwide.

Had the authors bothered to ask, or to research the matter, they would have learned it was the Claims Conference that led the lobbying efforts to amend the pertinent German law to allow Jewish Holocaust victims and their heirs to file claims for the return of property from the German government, as well as to extend the deadlines for such claims. Indeed, conference's efforts enabled thousands of such owners or their heirs to obtain property from the German government after reunification in 1990.

Lieberman and Kornstein repeatedly assert that the conference acts as a trustee, presumably without any time limit, for former owners of any recovered property. But repetition does not make it so. And, to be clear, this trustee allegation is the mantra of the attorneys, referred to in the article as the "Claimants Representative Committee," currently litigating against the Claims Conference. It is beyond the scope of this letter to identify all cases which have rejected the very trustee allegation the authors advance. But might it not be too much to ask that two lawyers, writing in the Law Journal, would have familiarized themselves with the various relevant decisions by German courts, as well as by courts in the United States? Those courts have uniformly affirmed that the Claims Conference holds title to any of the recovered property and related compensation received; not as a trustee for the former owners of the property or their heirs, but in furtherance of its mission to assist Holocaust survivors worldwide.

In 2013, for example, the State Court in Frankfurt dismissed a lawsuit (Wolff-Stirner vs. Claims Conference) maintaining that the conference acts as a trustee. And, within the past few weeks, the second appeal of that decision was dismissed by the High Federal Court. As the Frankfurt court stated:

"According to the clear and unequivocal language of Section 2(1)(3) of the Property Law, the [Claims Conference] is deemed as a 'legal successor' with respect to the claims not filed on time by the Jewish entitled persons. The Law does not refer to a trustee or a representative but to a legal successor. As a result, the real entitled party or his heirs conclusively lose their right of restitution. ... The logic and purpose of Section 2(1)(3) of the Property Law are to 'enforce Jewish claims … for the collective reparation in favor of the Jewish People. … But the logic and the purpose were not to preserve the claims of former entitled persons despite missing the deadline pursuant to the substantive law. …' This means that not only by the Property Law, but also by civil law, there is no claim for payment against the defendant."

In addition, in its decision in Kopinski, et al. vs. Claims Conference, dated September 2008, the Frankfurt District Court endorsed what the Claims Conference may do, indicating the time constraints on what it does, with any recovered property:

"The chartered role of the [Claims Conference] … is to use the resources it receives based on its legal status pursuant to the Property Law solely for concrete projects in favor of survivors. Already for biological reasons, i.e. the survivors' advanced age, the [Claims Conference] is able to realize its chartered task, which derives from its legal status in the framework of the Property Law, only if it acts within a short time. However, the [Claims Conference] cannot act within a short time and finance projects, and at the same time be exposed to property restitution claims also after years or even decades …

The role of the [Jewish Claims Conference] is to realize restitution claims of Jewish injured parties who do not file such claims, for the purpose of collective reparation in favor of the Jewish people." (Emphasis supplied)

Further, in direct response to an effort to amend German law, to make the Claims Conference (some two decades after its designation as legal successor) a trustee of unclaimed East German property for others, the chair of the German Federal Republic's Law Committee, in a January 2010 letter to a member of the very Claimants Representative Committee referred to by Lieberman and Kornstein, wrote the following:

"[Y]ou proposed an amendment to §2 of the Property Act. As the law stands, the [Claims Conference] is the legal successor to those eligible Jewish persons or their legal successors who did not submit claims prior to the [claims] deadline[.] [Y]ou indicate that the Property Act should be amended so that the [Claims Conference] would only serve as a trustee for Jewish eligible persons or their legal successors who submit a claim after the deadline has expired.

I don't feel I can support this request. The provisions regulating retransfer of property or compensation are directly related to the reunification of Germany. At the time, the legislature was faced with the difficult problem of identifying an appropriate solution for assets that were not claimed by the eligible persons or their legal successors within a reasonable period of time. In line with the restitution concept, the legislature appointed the [Claims Conference] as the legal successor of these assets. The [Claims Conference] uses the funds to support Holocaust survivors in need." (Emphasis supplied.)

Nonetheless, through its Goodwill Fund and Late Applicants Fund—programs voluntarily established by conference—the organization has distributed nearly $1 billion in ex gratia payments to former property owners or their heirs who did not or could not comply with the legal claims deadlines.

Far more egregious than the authors' numerous errors of law, however, are their misstatements of fact. They refer to funds "not returned to Nazi victims," assert that "the money is not going to Nazi victims," and charge the conference of having "chosen which groups of Jews should receive billions of dollars," as if without basis. Nothing could be further from the truth. In fact, proceeds of the sales of the recovered assets are allocated to provide support to elderly Holocaust survivors. In particular, the conference has applied over $1.5 billion since 1995 for vital social welfare assistance, including home care, medicine, food and other aid, to the poorest, most vulnerable, Holocaust survivors worldwide.

The Claims Conference board of directors has a fiduciary obligation to consider the various possible uses of the funds it holds in weighing the competing moral priorities. The board does this with a profound understanding of the need to consider the requests of former property owners or their heirs (whose legal rights lapsed years ago) and the urgent, desperate and unmet needs of Holocaust victims worldwide.

Finally, the authors' attempt to link the departure of the former conference ombudsman to these issues is similarly off-base. The ombudsman was not, as the authors aver, fired after issuing a July 2013 report; his contract was renewed months after that report. In fact, the ombudsman was not fired at all, although it is true that he did not receive a second renewal of his contract, after serving two full terms. Equally disingenuous is the authors' failure to explain that the conference was the victim of a fraud perpetrated by several former employees, which it discovered in 2010, reported to the legal authorities, and for which Southern District U.S. Attorney Preet Bharara publicly praised the conference for its extraordinary cooperation in that matter.

The Claims Conference mission includes "the relief, care, [and] maintenance of Nazi victims of persecution." In steadfastly performing that function for nearly 65 years, the Claims Conference has served the interests of Holocaust survivors faithfully and honorably, obtaining funding which has been applied to help mitigate the cry of Holocaust survivors in desperate need. In pursuing this task, criticism seeking to make this undertaking more effective is welcome. However, to paraphrase Senator Daniel Patrick Moynihan, Lieberman and Kornstein are entitled to their own opinion, but not their own facts.

Originally appeared in the New York Law Journal on March 15, 2016.

Read the full article in New York Law Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions