THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a German national born in 1897 and at present resident
in Freiburg.

The Applicant has brought a previous Application, No 2045/63 against
the Federal Republic of Germany, relating to the decrease in value of
a pension received from Austria as a result of the revaluation
(Aufwertung) of the German mark. This Application was declared
inadmissible by the Commission by its decision of 10 December 1965.
During the occupation of Austria, the Applicant's flat was
requisitioned and occupied by the local Commander of the French troops
who he states chose it because of the unusually high standard of the
furnishings. The flat was released from requisition on .. August 1948,
and following the Financial Agreement of 11 October 1962, between
Austria and the Federal Republic of Germany, the Applicant and his wife
entered a claim for compensation under the Occupation Damages Act
(Besatzungschadengesetz) of 25 June 1958.

These damages were fixed at 10,645 schillings by a decision of the
State Finance Administration (Finanzlandesdirektion) for Tyrol in
Innsbruck on .. February 1964. The Applicant was not satisfied and
appealed to the Federal Compensation Commission
(Bundesentschädigungskommission) which, on .. September 1965, fixed the
compensation at 11,369.24 schillings. It was stated that no
administrative appeal against this judgement was possible.

The Applicant complains that this decision offends against Article 8
(2) of the Occupation Damages Act which provides that the amount of
compensation shall be calculated with reference to the level of prices
at the time when the amount of the damages was fixed. Since, therefore,
the price index had risen by 300 % since the date of the release of the
premises from requisition the compensation awarded should have been
34,110 schillings and not 11,369.24 schillings as was actually awarded.
Furthermore, the Applicant states that he was awarded average rates of
compensation based on the general standard of furnishing, whereas in
fact his flat had been furnished to a much higher standard. By way of
example he refers to a Persian carpet worth DM 3,500 for which the
compensation awarded amounted to DM 524.

The Applicant invokes Articles 8 and 14 of the Convention and in
particular Article 1 of the Protocol.

THE LAW

Whereas the decision of which the Applicant complains was taken by
virtue of the Occupation Damages Act, 1958; whereas under the
provisions of Article 64, paragraph (1) (Art. 64-1) of the Convention
and Article 5 of the First Protocol (P1-5) any State may, when signing
the Convention or depositing its instrument of ratification, make a
reservation in respect of any particular provision of the Convention
or the First Protocol to the extent that any law then in force in its
territory is not in conformity with that provision; whereas, further,
under paragraph (2) of Article 64 (Art. 64-2), any ice reservation
shall contain a brief statement of the law concerned;

Whereas, in depositing its instrument of ratification, the Austrian
Government made, inter alia, the following reservation:

(The Federal President) " ... being desirous of avoiding any
uncertainty concerning the Application of Article 1 of the Protocol
(P1-1) in connection with the State Treaty of 15 May 1955, for the
Restoration of an Independent and Democratic Austria, declares the
Protocol ratified with the reservation that there shall be no
interference with the provisions of part IV 'Claims arising out of the
War' and part V 'Property, Rights and Interests' of the above-mentioned
State Treaty."

Whereas under the Austrian Constitution the State Treaty of 15 May
1955, is considered to be a law and the aforesaid reserve, which refers
expressly to parts IV and V of the said Treaty, appears to contain "a
statement of the law concerned" sufficient for the purposes of Article
64 (Art. 64) of the Convention;

Whereas, in the present Application, the Applicant's complaints refer
not to the State Treaty but to the Occupation Damages Act, 1958, which
is not expressly mentioned in the Austrian reservation concerning the
First Protocol (P1); whereas it is therefore necessary to consider the
question whether the reservation relating to Parts IV and V of the
State Treaty is sufficient to exclude the provisions of the Act of 1958
from the scope of the First Protocol (P1);

Whereas, according to Article 1 of the Act of 1958, the object of that
Act is "the attribution of indemnities to persons who have acquired
rights against the Allied and Associated Powers on account of damage,
other than war damage, arising in Austria";

Whereas paragraph (2) of Article 24 of the Austrian State Treaty
provides:

"... The Austrian Government agrees to make equitable compensation in
schillings to persons who furnished supplies or services on requisition
to the forces of Allied or Associated Powers in Austrian territory and
in satisfaction of non-combat damage claims against the forces of the
Allied or Associated Powers arising in Austrian territory";

Whereas it is clear from the above-cited provisions that the Act of
1958 makes provision for the same subject matter as that dealt with by
Article 24, paragraph (2) of the State Treaty and whereas Article 24,
paragraph (2) of the State Treaty forms part of Part IV of the said
Treaty which was expressly made the subject of the Austrian reservation
to the First Protocol (P1);

Whereas in the opinion of the Commission, in making a reservation with
respect to Parts IV and V of the State Treaty, Austria must necessarily
have had the intention of excluding from the scope of the First
Protocol everything forming the subject-matter of Parts IV and V of the
said Treaty; whereas it follows that the Austrian reservation relating
to Parts IV and V of the said Treaty must be interpreted as intended
to cover all legislative and administrative measures directly related
to the subject-matter of Parts IV and V of the State Treaty; whereas
this follows in particular from the fact that Parts IV and V of the
said Treaty merely lay down general principles which could not be given
practical effect without being completed by other legislative and
administrative measures;

Whereas it follows from what has already been said that a different
interpretation would deprive the reservation of all practical effect
though it is clear that in making it Austria intended to exclude from
the application of Article 1 of the First Protocol (P1-1) the whole
subject-matter of "Claims arising out of the War" contained in Part IV
of the State Treaty; whereas, moreover, in accordance with the general
principles of international law, when a clause has 2 possible meanings
it must be given the interpretation which would lead to its having some
effect rather than an interpretation which would give it none, which
would be the case here if the reservation did not cover the Act of
1958;

Whereas, therefore, the Act of 1958 falls under the Austrian
reservation relating to Parts IV and V of the State Treaty and is
thereby excluded from the sphere of application of the First Protocol
(P1);

Whereas it follows that insofar as the Applicant invokes Article 1 of
the First Protocol (P1-1), that his Application does not come within
the scope of that Article as it applies in the case of Austria and is
therefore incompatible with the provisions of the Convention and must
be rejected under Article 27, paragraph (2) (Art. 27-2), of the
Convention;

Whereas the Applicant also alleges a violation of Articles 8 and 14
(Art. 8, 14) of the Convention; whereas, however, this complaint also
relates to the application of the Occupation Damages Act, 1958, and
therefore, for the reasons set out above likewise falls within the
reservation made by the Austrian Government with regard to the First
Protocol (P1) since in the circumstances it cannot be divorced from
object of the reservation and the Commission could not accept this
complaint without deliberately ignoring the clear purpose of the
reservation; whereas in this connection the Commission refers to its
decision in Application No 473/59 - X v. Austria - Yearbook II, page
400; whereas it follows that the Application is incompatible with the
provisions of the Protocol (P1) as applicable in the case of Austria
and must therefore be rejected under Article 27, paragraph (2)
(Art. 27-2), of the Convention.

Now therefore the Commission declares this Application inadmissible.