When a three-judge German appeals court ruled recently about the ownership of unclaimed Jewish property in East Germany, it might have opened the door for Holocaust survivors and their heirs to claim their property now held by the Claims Conference.
A German lawyer, Fritz Enderlein, believes the German Federal Administrative Court did just that in its decision of April 24, and a civil suit has been filed against the Claims Conference in Germany on behalf of Jewish heirs seeking their property back. (Enderlein said he is precluded by German law from discussing the case.) If successful, it could spark perhaps hundreds of claims by survivors and heirs seeking property worth billions of dollars.
But the Claims Conference, which is formally called the Conference on Jewish Material Claims Against Germany, and two lawyers in Germany and New York who studied the court decision, see it differently.
“The decision very clearly states that if you have not filed a claim by the deadline, you have no claim to the property — period,” said a spokeswoman for the Claims Conference.
A successful suit could hamstring the Claims Conference, which has already sold or received compensation for more than $1 billion worth of formerly Jewish East German property. That money has been given out in grants primarily to social welfare agencies worldwide to help the neediest and most vulnerable Jewish Holocaust survivors, to provide a “social safety net” for them, as well as for Holocaust research, education and documentation, according to the Claims Conference’s website.
The Claims Conference itself has set several deadlines for Jewish property owners and heirs to reclaim property it was awarded after the owners failed to file timely claims for it with Germany. Under the German Property Act, claimants seeking restitution had until Dec. 31, 1992 to file real estate claims and by June 30, 1993, to file for movable property claims. The property had been seized or sold under duress during the Nazi era.
Beginning in 1994, the Claims Conference established a Goodwill Fund through which survivors and heirs could claim the property it held, less an administrative fee of about 20 percent. Through Dec. 31, 2011, that fund had paid out about $843 million to survivors and heirs — about one-third of the money it received from East German property.
The suit filed by Enderlein hinges on the interpretation of a law that established the Claims Conference as the legal beneficiary of unclaimed Jewish property, and property of dissolved Jewish communities and organizations. Enderlein has long insisted that the law simply made the Claims Conference the trustees of the property and not its sole owner — a position the German government has refuted.
But Enderlein told The Jewish Week he believes the recent German court decision interpreted the law as he sees it. And he cited these passages from the decision: “Since the JCC [Jewish Claims Conference] itself was neither persecuted nor does it assume the function or duties of those actually persecuted, it is not entitled to freely dispose of the assets which accrue to the institution. … The law intended to endow the JCC only with a temporary eligibility in order to prevent a situation in which the German government would become an heir.”
In addition, Enderlein pointed out that although the court said survivors and heirs are precluded from suing the Claims Conference under the Property Law, it did not foreclose a civil suit. He noted that the court said the legal right to unclaimed Jewish property “does not affect the legal position of the actual heirs; from a legal point of view they continue to remain the successors in law.”
But Matthias Druba, a German lawyer who is an expert in matters relating to restitution and the Claims Conference, said in an e-mail interview with The Jewish Week that “the complete German version [of the decision] does not contain anything which opens civil lawsuits against the JCC in Germany by Jewish heirs who missed the filing date under the German restitution laws and were denied participation in the proceeds realized by the JCC.”
“To my mind, it simply is Mr. Enderlein’s strong wish to find such statements which replaces reality,” he added. “The [court] simply has no authority to decide such issues. It simply had to decide whether the heirs could file a claim under German restitution laws, albeit having missed the filing date, and [it] found that they cannot do so.
“It is clear German case law that the JCC is holder of restitution title by its own right, and the inner dealings between JCC and heirs who missed the filing date for their own claims do not touch upon that. That is all to the decision at stake.”
Louis Solomon, an international practice partner at Cadwalader, Wickersham & Taft in Manhattan, agreed, saying he found nothing in the court’s opinion to suggest that “the Claims Conference loses its right as legal successor” to the property.
He agreed with Enderlein that the rightful heirs “remain the successors in law,” but added “that does not mean they get their property back. There may be other entitlements they have, and the court is saying they are not cut off. But when their claim to the property lapsed, the Claims Conference could assert claims for the purpose of collective compensation benefiting the Jewish people.”
This is not the first time the Claims Conference has been sued by the heirs of East German property who have missed deadlines to get their property back.
In June 2012, the Engel and Lichtenstein families filed suit in Tel Aviv District Court claiming that the Claims Conference was wrongly holding more than $500,000 it had raised through the sale of their properties. The suit claimed that the Claims Conference had “maliciously” seized their assets even though they were living and could be located.
“The Claims Conference and its representatives failed to take the most elementary actions and that creates great concern as to its good faith,” according to the complaint as reported by the Jerusalem Post. “The Claims Conference did not try to locate the heirs, nor to return to the heirs of the Lichtenstein and Engel families what was appropriated from them during the Holocaust.”
The Claims Conference has insisted that it published in numerous news outlets worldwide the deadlines of the Goodwill Funds before they expired. The last Goodwill Fund expired in 2004. But since then there has been a steady drumbeat of protests by survivors and heirs who want their property back.
The British Board of Jewish Deputies in 2010 commissioned a report on the Claims Conference by Jeffrey Gruder that said the “Jewish community is entitled to expect that the Claims Conference acts, and appears to act, ethically and with the highest possible standards of integrity, transparency and sensitivity.”
Nevertheless, it said, the Claims Conference did not publish or disclose details of the heirless property it recovered or claimed from Germany even though it is was in “possession of information that may have been of assistance to owners and heirs in making a valid claim on their own behalf.”
The report noted that the Claims Conference said it has no legal duty to help heirs make claims for their property, and that once it became owner of the property “it owed no duties to the previous owners or their heirs under German law.”
The report found, however, that the Claims Conference had a “moral duty to publicize the information it had and seek to assist and identify heirs who were rightful claimants.”
Jerusalem Post columnist Isi Leibler, writing about the British report in 2010, noted that the German government said it had no objection with the Claims Conference helping heirs reclaim their property.
“It would appear that it simply did not occur to the German Government that in the absence of any legal obligation, the Claims Conference, one of whose principal objectives is restitution, would not view itself under any duty to the rightful heirs,” Leibler wrote.
He added that the report found that the Claims Conference did not simply refuse to release information about the heirless property it held, but actively took steps to prevent heirs from seeking the relevant information of their property recovered by the Claims Conference “on the grounds of protection of intellectual property rights and trade secrets.”
The Claims Conference earlier this year agreed to create a Late Applications Fund whereby all eligible survivors and heirs could again claim their East German property. But this time, it capped the amount it is prepared to return at $67 million and it said this would be the final payment to those who missed earlier deadlines. It said it did so in order to know for sure how much money it had available to distribute to needy survivors around the world.
The Claims Conference also posted on its website, www.claimscon.org, a list of the owners and properties it still holds. It did not list the value of that property.
Under the Late Applications Fund, whose expiration is the end of next year, should several hundred valid applicants owning property worth hundreds of millions of dollars file claims, they would share in only $67 million the Claims Conference is offering.