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13143 Austria - Agreement Relating the the Agreement of October 24, 2000 Concerning the Austrian Fund "Reconciliation, Peace and Cooperation"


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13143

 

 

 

CLAIMS

 

 


Agreement Between the
UNITED STATES OF AMERICA
and AUSTRIA


Relating to the Agreement of October 24, 2000

Effected by Exchange of Notes
Dated at Vienna January 23, 2001

with

Attachment

 

 

 

 

 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

AUSTRIA

Claims

Relating to the agreement of October 24, 2000.
Effected by exchange of notes
Dated at Vienna January 23, 2001;
Entered into force June 6, 2001.
With attachment.

Federal Ministry
for Foreign Affairs
No 2140.02/0044e-BdSB/2001
Note Verbale
The Federal Ministry for Foreign Affairs of the Republic of Austria presents its
compliments to the Embassy of the United States of America and has the honor to
refer to the Preamble and to Articles 1(4), 2(2), 2(3) and 3(3) of the Agreement
between the Austrian Federal Government and the Government of the United States
of America concerning the Austrian Fund "Reconciliation, Peace and Cooperation"
(Reconciliation Fund)("Agreement"), signed October 24, 2000.
Noting the correspondence between the President of the United States and
the Federal President of the Republic of Austria, in connection with the Agreement,
Recalling the relevant provisions of the 1955 State Treaty for the Re-
establishment of an Independent and Democratic Austria, the 1959 Exchange of
Notes Constituting an Agreement between the United States of America and Austria
relating to the Settlement of Certain Claims under Article 26 of the Austrian State
Treaty of May 15, 1955, as well as the contents of the letter dated December 19,
1961 from Dr. Nahum Goldman, the Chairman of the Committee for Jewish Claims
on Austria, to Dr. Josef Klaus, the Austrian Federal Minister of Finance.
To the
Embassy of the United States of America
Vienna
A -1014 Vienna • Ball hausplatz 2 • Phone 43/1/53115-0 • Fax 43/1/5354530 DVR 0000060
The Austrian Federal Government shall provide immediate compensation for
survivors pursuant to Annex A, paragraph 1, propose legislation to the Austrian
Parliament by April 30, 2001 to establish a General Settlement Fund ("GSF")
(providing for a Claims Committee and an Arbitration Panel) in conformity with the
principles set forth in Annex A, paragraphs 2 and 3, and seek changes in the laws
that address social benefits for victims of National Socialism in conformity with Annex
A, paragraph 4.
The Austrian Federal Government shall make good faith progress on the
implementation of the additional measures for victims of National Socialism set forth
in Annex A, paragraphs 5-9.
The Austrian Federal Government welcomes the commitment of the United
States to consider the provision of immediate compensation for survivors pursuant to
Annex A, paragraph 1, the General Settlement Fund, established in conformity with
the principles set forth in Annex A, paragraphs 2 and 3, the changes in the laws that
address social benefits for victims of National Socialism in conformity with Annex A,
paragraph 4, and the making of good faith progress on the implementation of the
additional measures for victims of National Socialism set forth in Annex A,
paragraphs 5-9,to constitute a "suitable potential remedy", as understood by Articles
2(2) and 3(3) of the Agreement, for all claims that have been or may be asserted
against Austria and/or Austrian companies, as defined in Annex B, arising out of or
related to the National Socialist era or World War II, excluding claims covered by the
Reconciliation Fund, in respect of which the Agreement shall continue to govern, and
further excluding in rem claims for works of art and, subject to the provisions of
Annex A, paragraph 10, claims for in rem restitution of property owned by Austrian
provinces and municipalities.
The Austrian Federal Government welcomes the commitment of the United
States, upon fulfillment of the commitments of the Austrian Federal Government
referred to above, to support all-embracing and enduring legal peace for the above-
mentioned claims, as provided for in the Agreement and herein.
The Austrian Federal Government agrees that this exchange of notes and the
establishment of the GSF shall not affect unilateral decisions or bilateral or
multilateral agreements that dealt with the consequences of the National Socialist
era or World War II.
This Note and the United State's affirmative note in reply shall constitute an
agreement between Austria and the United States which shall enter into force when
Austria notifies the United States, by diplomatic note, that it has implemented its
commitments referred to above.
Austria agrees that Annexes A and B shall be integral parts of this agreement.
The Federal Ministry for Foreign Affairs of the Republic of Austria takes this
opportunity to renew to the Embassy of the United States of America the assurances
of its highest consideration.
Attachment: As stated
Vienna, 23 January 2001
FINAL ANNEX 17.01.01
Annex A
The Exchange of Notes between the Government of the United States and
the Austrian Federal Government provides that the principles governing the
operation of the General Settlement Fund will be set forth in Annex A. The Exchange
of Notes also provides that Austria will make good faith progress on the
implementation of the additional measures for victims of the National Socialist era
set forth in Annex A. This Annex reflects key elements of the General Settlement
Fund ("GSF") (providing for a Claims Committee and an Arbitration Panel) and the
additional measures for victims of National Socialism that form the basis for the
Exchange of Notes between the United States and Austria.
1. Immediate Compensation for Survivors: The Austrian Government will make a US
$150 million contribution to the National Fund, which will be distributed in its entirety
on an expedited basis to all Holocaust survivors originating from or living in Austria
as defined in the Federal Law amending the Federal Law to Establish the National
Fund of the Republic of Austria for Victims of National Socialism which will include a
hardship clause. This amount will cover 1) apartment and small business leases; 2)
household property; 3) personal valuables and effects. This amount will not cover
potential claims against Dorotheum (which will be covered by the GSF, see infra
para. 2) or in rem claims for works of art. This amount will be credited against the
final cap for the GSF.
The amount of US $150 million will be allocated to the Austrian National Fund
according to the Federal Law amending the Federal Law to Establish the National
Fund of the Republic of Austria for Victims of National Socialism and the Committee
Report thereto. Payments to survivors will begin immediately after entry into force of
the Federal Law. Austria will provide such funding as may be required to enable the
Austrian National Fund effectively to process applications for and distribute these
funds to all approved applicants.
2. Establishment of a General Settlement Fund: The Austrian Federal Government
will propose the necessary legislation 1 to the National Council by April 30, 2001 to
establish a GSF. Austria will undertake its best efforts to ensure that this legislation is
passed by June 30, 2001. The legislation will enter into force once all contributions
have been made available. The GSF will be a voluntary fund that will provide ex
gratia payments to certain applicants. The GSF will include both a "claims-based"
and an "equity-based" component. The GSF will be capped at US $210 million plus
interest, at the Euribor rate, accruing to it beginning 30 days after all claims, pending
as of June 30, 2001, against Austria and/or Austrian companies arising out of or
related to the National Socialist era or World War II are dismissed with prejudice, and
such interest shall continue to accrue on the funds available at any given time until
the GSF has paid all approved claims. The US $210 million contribution by Austria
and Austrian companies (including the Austrian insurance industry)+ interest, under
1The term legislation as used in this Annex refers to Federal Laws to be passed by
the Austrian National Council, the legislative history including all explanatory notes,
and any bylaws to be adopted and governing the operation of any bodies established
under such Federal Laws.
2 FINAL ANNEX 17.01.01
the terms described supra, will be in addition to the US $150 million referred to supra
in para. 1. The distribution of payments by the GSF will be based on decisions of the
independent Claims Committee.
a. The GSF legislation will establish an independent three-member Claims
Committee ("Committee") for all property/aryanization claims, and all other claims not
covered by the Reconciliation Fund and the Arbitration Panel referred to infra in
paragraph 3 that have been or may be asserted against Austria and/or Austrian
companies arising out of or related to the National Socialist era or World War II,
excluding in rem claims for works of art. The United States and Austria will each
appoint one member; these two members will appoint a Chairperson. In the event
that the Austrian and the United States designees are unable to agree upon and
designate the Chairperson within 60 days after the entry into force of the GSF
legislation, the United States and Austria will enter into consultations to name a
Chairperson. The Committee will work under the auspices of the Austrian National
Fund, which will provide technical and administrative support to the Committee.
b. The GSF legislation will provide that 50% of the funds allocated for
distribution from the GSF will be reserved for a "claims-based" process and 50% of
such funds will be reserved for an "equity-based" process. The GSF legislation will
provide that the GSF will distribute the funds allocated for the "claims-based"
process on a pro-rata basis and the funds allocated for the "equity-based" process
on a per-household 2 basis.
c. The GSF legislation will require the Committee to establish simplified
procedures, including simplified and expedited internal appeals for decisions made
under the "claims-based" process. Such procedures will permit the attendance of
observers to the „claims-based" process under circumstances to be defined and
under strict rules of confidentiality. The GSF legislation will provide that decisions
made under the "equity-based" process are not appealable. The GSF legislation will
provide that the Committee will review all applications using relaxed standards of
proof.
d. The General Settlement Fund is intended to benefit victims of National
Socialism as defined in the Federal Law amending the Federal Law to Establish the
National Fund of the Republic of Austria for Victims of National Socialism. The GSF
legislation will provide that such persons (including their heirs, as defined infra in
paragraph 2(e)) and victims' communal organizations who/which suffered losses or
damages as a result of or in connection with events having occurred on the territory
of present-day Austria during the Nazi era or World War II are eligible to receive
payment(s) from the GSF, provided that the criteria in infra paragraphs 2(f) or 2(g)
are satisfied. The GSF legislation will also provide that the Committee will not have
the authority to reopen cases that have been finally decided by an Austrian court or
administrative body under Austrian restitution legislation or that have been settled
after 1945. However, recognizing that there may have been certain gaps and
deficiencies in the prior restitution legislation and further recognizing the ex gratia
2 Household on the present-day territory of the Republic of Austria between March
12, 1938 and May 9, 1945.
3 FINAL ANNEX 17.01.01
nature of the GSF, the Committee may award payments in the exceptional
circumstances where the Committee unanimously determines that such decision or
settlement constituted extreme injustice.
e. Definition of "heirs": The GSF legislation will provide that heirs as defined
under the Austrian General Civil Code (ABGB) are eligible for payments.
f. "Claims-Based" Process: The GSF legislation will
provide that the Committee may receive claims for payment for losses or damages
as a result of or in connection with events having occurred on the territory of present-
day Austria during the National Socialist era or World War II in the following
categories:
i . liquidated businesses including licenses and other business assets
ii. real property
iii . bank accounts, stocks, bonds, mortgages
iv. moveable property not covered by the US $150 million referred to
in paragraph 1
v. insurance policies (see infra paragraph n)
To be eligible for payment, claimant must show, under relaxed standards of proof (by
submission of supporting material; if no relevant evidence is available, the claimant's
eligibility can be made credible in some other way) the following:
i . ownership of property at time of confiscation/
aryanization/liquidation and
ii. claim was never previously decided under prior restitution
legislation or settled by agreement (if no contradictory evidence is
presented, an affidavit asserting such, including plausible
explanation for why claim was never decided or settled will be
deemed sufficient), or that such decision or settlement constituted
extreme injustice (see supra paragraph d) or
iii . claim was denied under prior legislation because of failure to
produce required evidence, where such evidence was inaccessible
to claimant but has since become available (affidavit asserting such,
including plausible reason for inaccessibility will be deemed
sufficient)
The GSF legislation will provide that the Committee may award a payment of no
more than US $2 million for any approved claim.
The GSF legislation will provide that in reviewing claims, the Committee will take into
account prior restitution and compensation measures, including the US $150 million
referred to in paragraph 1, measures under the German Foundation „Remembrance,
Responsibility and the Future," or claims paid under ICHEIC claims-handling
procedures, and the Bank Austria Settlement, to ensure that the claimant does not
receive a payment under the "claims-based" process for same property for which
compensation was paid under prior measures.
4 FINAL ANNEX 17.01.01
The GSF legislation will provide that the Committee may either award claimant pro-
rata amount of capped amount allocated for "claims-based process" or, where
Committee determines that claimant is unable to satisfy evidentiary requirements,
Committee must either reject claim or refer claim to "equity-based process" for per-
household payment.
The GSF legislation will provide that if any funds remain after all approved claims
have been paid, such excess funds will be transferred to the Austrian National Fund
to be used for programs to benefit victims of the Holocaust, including Roma.
g. "Equity-Based" Process: The GSF legislation will provide that the
Committee will make per-household, "equity-based" payments
i . for any of the categories covered by supra paragraph 3(f) where
claimant is not able to document specific claim(s), even under
relaxed standards of proof, but panel has reason to assume that
valid case of loss of property or
ii. for any of the categories covered by supra paragraph 3(f) where
claim was previously decided or settled under prior restitution
legislation, but majority of Committee has reason to believe
decision or settlement was inadequate or
iii . where majority of Committee has reason to believe claimant was
not adequately compensated for occupational or educational losses
during the Nazi era on the territory of present-day Austria or
iv . for any claims arising out of or related to the National Socialist era
or World War II not covered by the Reconciliation Fund or the
Arbitration Panel
The GSF legislation will provide that "equity-based" payments will be made on a per-
household basis. The GSF legislation will provide that the Committee will award no
more than one payment per household.
The GSF legislation will provide that applicants for "equity-based" payments must
indicate on their application, to the extent possible, the address or location of the
household for which they are seeking a payment, and the members of the
household, including the heirs of those who have not survived, who are entitled to
share the payment.
The GSF legislation will provide that "household" shall consist of survivors who lived
in the "household" during this period and the heirs, as defined supra in paragraph e,
The GSF legislation will provide that if any funds remain after all approved claims
have been paid, such excess funds will be transferred to the Austrian National Fund
to be used for programs to benefit victims of the Holocaust, including Roma.
h. Submission of Claims/Payments: The GSF legislation will provide that a
claimant may submit an application to the Committee either under the "claims-based"
process , which may include multiple properties, or under the "equity-based"
5 FINAL ANNEX 17.01.01
process. If the entire claim is rejected under the „claims-based" process claimant
may submit an application under the „equity-based" process.
i. Filing Periods: The GSF legislation will allow applications to be made to the
GSF for 24 months after the entry into force of the GSF law.
j. Waivers: The GSF legislation will provide that each applicant for a GSF
payment will be required to state that, upon receipt of a payment from the GSF, he
or she will, for him/herself and his/her heirs, waive any and all alleged claims against
Austria and/or Austrian companies arising out of or related to the National Socialist
era or World War II. Such a waiver will not preclude claimant from bringing an action
against Austria and/or Austrian companies for the in rem return of a specifically
identified piece of art or an action for in rem restitution for property owned by
Austrian provinces and municipalities in accordance with infra para. 10.
The GSF and Panel legislation will provide that nothing therein will be deemed to
waive any right of Holocaust survivors and heirs in any prior class action settlement
reached in courts in the United States.
k. Eligibility for Social Security and Other Public Benefits: The GSF legislation
will make clear that receipt of payment from GSF funds will not affect the recipient's
eligibility for social security or other public benefits.
I. Publicity: The GSF legislation will require that the GSF, in conjunction with
the Austrian National Fund, provide appropriately extensive publicity concerning the
benefits that the GSF will offer and how to apply. The Austrian National Fund will
consult with the United States regarding its proposed publicity plan. In addition, the
GSF legislation will authorize and encourage the Austrian National Fund to utilize
existing databases of Austrian survivor populations from other sources.
m. Costs: The GSF legislation will provide that the administrative costs for
the „claims-based" and „equity-based" processes will be covered from the budget
provided for the Austrian National Fund and the GSF.
n. Insurance: The GSF legislation will reaffirm the commitment of the Austrian
Federal Government to ensure that all insurance claims that come within the scope
of claims-handling procedures adopted by the International Commission on
Holocaust Era Insurance Claims (including those concerning valuation, standards of
proof, and decisions of the Chairman) and are made against Austrian insurance
companies not defined as „German companies" within the German Foundation Law,
and not otherwise covered under ICHEIC, will be solely decided by the Committee
and distributed by the GSF on the basis of such procedures. The Austrian Insurance
Association will make the lists of Holocaust era policy holders publicly accessible, to
the extent available.
The GSF legislation will provide that when an insurance claim is approved for
payment, the Committee will promptly notify the Austrian National Fund. The
Austrian National Fund will authorize the payment of that claim from the GSF funds
6 FINAL ANNEX 17.01.01
(at a capped amount of US $ 25 million within the GSF, which amount includes
interest on US $ 210 million) allocated for such payments out of the GSF.
In the event that the amount allocated for insurance claims under this paragraph is
exhausted, and the Claims Committee certifies, in consultation with representatives
of the plaintiffs' attorneys recommended by the United States, an amount of up to US
$ 5 million from the amount allocated to the „claims-based" process, as set forth
supra in para. 2 (b), may be used to pay insurance claims under this paragraph. All
funds used to pay approved insurance claims will be distributed on a pro rata basis.
The GSF legislation will provide that if any funds allocated for insurance remain after
all approved claims have been paid, such excess funds will be transferred to the
Austrian National Fund to be used for programs to benefit victims of the Holocaust,
including Roma.
3. Arbitration Panel for In Rem Restitution of Publicly Owned Property:
a. Austria will seek to provide, in accordance with the
procedures described below, on a case by case basis, in rem restitution of publicly-
owned property. Particular attention will be given to the issue of property formerly
owned by Jewish communal organizations, taking into account the particular
situation of the Austrian Jewish Community.
b. In connection with the establishment of the GSF,
the Austrian Federal Government will propose the necessary legislation to the
Austrian Parliament by April 30, 2001 to establish, fund, and authorize a three-
member Arbitration Panel ("Panel") to address the in rem return of publicly-owned
property, including property formerly owned by Jewish communal organizations.
Austria will undertake its best efforts to ensure that this legislation is passed by June
30, 2001.
c. The implementation of in rem restitution of publicly-owned property will have
to be in conformity with Austrian constitutional law and Austria's international
obligations.
d. The Panel legislation will provide that the United States, with prior
consultation with the Conference on Jewish Material Claims, the Austrian Jewish
Community, and attorneys for the victims, and Austria will each appoint one member;
these two members will appoint a Chairperson. All members of the three-person
panel should be familiar with the relevant regulations both under Austrian and
international law (in particular, the European Convention on the Protection of
Fundamental Freedoms and Human Rights). In the event that the Austrian and the
United States designees are unable to agree upon and designate the Chairperson
within 60 days after the entry into force of the Panel legislation, the United States
and Austria will enter in to consultations to name a Chairperson. The Panel
legislation will provide for an expert to serve as a liaison between the Panel and the
Austrian Historical Commission.
e. The Panel legislation will provide that the Panel will consider, on a case by
7 FINAL ANNEX 17.01.01
case basis, claims for the in rem restitution of publicly-owned property.
f. The Panel legislation will provide that the Panel will not have the authority to
reopen or reconsider cases that were previously decided under prior restitution
legislation, or settled by agreement, or where claimant or relative has otherwise
received compensation or other consideration for the property in question, except in
the limited circumstances described infra in paragraph 3(g).
g. For the purposes of restitution in rem, the notion of "publicly-owned
property" covers exclusively real estate/ immovable property/buildings which:
i . between March 12, 1938 and May 9, 1945 was taken from the
previous owners, whether without authorization or on the basis
of laws or other orders, on racial, national, or, alternatively, other
grounds in connection with the assumption of power by National
Socialism; and
ii . was never subject of a claim that was previously decided by an
Austrian court or administrative body under prior restitution
legislation or a settlement by agreement, or where claimant or
relative has never otherwise received compensation or other
consideration for the property in question, except in exceptional
circumstances where the Panel unanimously determines that
prior settlement constituted an extreme injustice; and
iii. on January 17, 2001, was exclusively and directly, owned by
the Federation ("Bund") or any legal person, agency, or
subsidiary wholly-owned, directly or indirectly, by the Federation
h. The Panel legislation will provide that the Panel will make
recommendations on the basis of evidence submitted by the claimant and
submissions of the Austrian Federal Government, as well as any relevant findings of
the Austrian Historical Commission. A representative of the Austrian Federal
Government will ask the Austrian Historical Commission, as a matter of high priority,
to examine, identify and report to the Panel such information as it may obtain
concerning property and other assets that may be the subject of in rem restitution.
i. The Panel legislation will provide that the Panel will make recommendations
to the competent Austrian Federal Minister for in rem restitution. The Panel
legislation will provide that where in rem restitution, although merited, is not practical
or feasible, the Panel may make recommendations that the claimant be awarded a
comparable property to be recommended by the Panel, in consultation with the
competent Austrian Federal Minister. The Panel legislation will provide that such
recommendations will be made publicly available (e.g., on the internet).
j. The Austrian Parliament will pass a resolution indicating its expectation that
the recommendations will be expected to be approved by the competent Austrian
Minister(s). The Austrian Federal Government will support such a resolution.
8 FINAL ANNEX 17.01.01
k. The Panel legislation will provide that the Panel will make its
determinations within six (6) months of receiving any claim.
I. The Panel legislation will provide that the Panel will establish its own rules of
procedure.
m. The Panel legislation will provide that individual claimants (former owners
or their heirs, as defined supra in paragraph 2(e)) are eligible to receive in rem
restitution (or another appropriate remedy referred to supra in paragraph 3(h))
provided that the following criteria are satisfied:
i. property is currently publicly-owned as defined supra in paragraph
3(g); and
ii. proof of ownership of property at time of loss; and
iii. claim was never previously decided or settled under prior restitution
legislation or claimants or relative has never otherwise received
compensation or other consideration for the property in question
except in the exceptional circumstances where the Panel
unanimously determines that prior settlement constituted extreme
injustice; or
iv. claim was denied under prior legislation because of failure to produce
required evidence, where such evidence was inaccessible to
claimant but has since become accessible
n. The Panel legislation will provide that Jewish communal organizations,
including the Israelitische Kultusgemeinde ("IKG"), are eligible to receive restitution
in rem (or another appropriate remedy referred to supra in paragraph 3(i)) for losses
of immovable and tangible moveable property (e.g. cultural or religious items)
provided that the following criteria are satisfied:
i. property is currently publicly-owned as defined supra in paragraph
3(g)(i)-(iii); and
ii. property was owned, at the time of loss, by the Jewish communal
organization or in case of defunct Jewish communal organization,
its legal predecessor; and
iii. claim was never previously decided or settled under prior restitution
legislation or claimants or relative has never otherwise received
compensation or other consideration for the property in question
except in the exceptional circumstances where the Panel
unanimously determines that prior settlement constituted extreme
injustice; or
iv. claim was denied under prior legislation because of failure to produce
required evidence, where such evidence was inaccessible to
claimant but has since become accessible.
o. The Panel legislation will allow applications to be made to the Panel for 24
months after the enactment of the Panel legislation or until one year after the date
the Austrian Historical Commission issues its final report, whichever date is later.
9 FINAL ANNEX 17.01.01
p. The Austrian Federal Government will undertake its best efforts to identify
publicly owned property as defined supra in paragraph 3(g).
q. The Austrian Federal Government will undertake its best efforts to ensure
the adoption of similar procedures and processes at the provincial and municipal
levels and to secure such restitution at said levels.
r. The in rem return of works of art will be excepted from the scope of the
Panel legislation.
s. The Government of the United States and the Government of Austria will
consult on a regular basis concerning the implementation of the Panel
recommendations.
4 . Additional Social Benefits to Survivors:
a. Austria will pass the necessary legislation to allow disbursement of
"Pflegegeld" of categories up to 7 to victims of National Socialism living abroad as
soon as possible.
b. Austria will, as soon as possible, make the following changes in the laws
that address social benefits for victims of National Socialism:
i . amend the Victims Assistance Act so as to abolish the six years'
age limit provided for in §1(2) lit f of the Victims Assistance Act;
ii . amend paragraph 11 of the Victims Assistance Act to allow for
pensions for persons who were Austrian citizens as of March 13,
1938, or who had during the period of 10 years prior to that date
their residence on the territory of the Republic of Austria and were
not Austrian citizens if they fulfill the other requirements of the
Victims Assistance Act.
iii . amend the definition of "imprisonment" in §1(1) of the Victims
Assistance Act to include those who were confined in concentration
camp-like facilities, e.g., Sammellager ("Collection Camps);
iv. amend § 502(6) of the General Pension Law (ASVG) to the effect that
all those born on the present-day territory of the Republic of Austria
between January 1, 1933 and March 12, 1938 will be eligible to buy
into the Austrian pension system under the conditions of §
502(1,4,6).
5. Restitution of Works of Art: Art restitution will proceed on an expedited basis
pursuant to the Federal Law of December 4, 1998 concerning the works of art from
Austrian Federal Museums and Collections. The Austrian Federal Government will
undertake its best efforts to address the issue of the return of works of art from
Austrian companies and Austrian public entities not covered by the Federal Law.
The Austrian Federal Government will undertake its best efforts to encourage the
adoption of similar procedures at the municipal and provincial levels. To this end,
the Austrian Federal Chancellor will write a letter to governors and mayors urging
10 FINAL ANNEX 17.01.01
them to adopt such measures, recalling the resolution by the Austrian Parliament of
1998 urging provincial and municipal museums to research the provenance of the art
works in their possession and to return all such art looted during the National
Socialist era to the rightful owners.
6. Hakoah Sports Club: The former Hakoah sports field was a leasehold property of
the Hakoah Sport Club located in the Prater in Vienna. The City of Vienna is
prepared to offer to lease to the IKG, on a reasonable and mutually acceptable long-
term basis similar to that of the original lease, a similar piece of land in the vicinity of
the former location. A contribution of US $8 million will be made available for the
construction of an appropriate sports facility. This will be the final amount for this
purpose.
7. State Archives: Austria will provide additional resources to the Austrian State
Archives to allow better access to the files. Austria will do its utmost to ensure that
requests to the Austrian State Archives for information are handled in an expedited
and non-bureaucratic manner.
8. Jewish Cemeteries: Austria will provide additional support for the restoration and
maintenance of Jewish cemeteries, known or unknown, in Austria.
9. Subsidies to the Annual Holocaust Education Program at the Salzburg
Seminar: Austria will contribute to such a program.
10. Legal Closure: The establishment of the GSF in conformity with the principles set
forth in supra paragraphs 2 and 3, the passage of the legislation necessary to
provide victims of National Socialism with the additional benefits referred to supra in
paragraph 4, and the good faith progress in the implementation of the commitments
referred to supra in paragraphs 5 to 9, confirmed by a diplomatic note from Austria to
the United States, will lead to the dismissal with prejudice of all claims arising out of
or related to the National Socialist era or World War II that have been or may be
asserted against Austria and/or Austrian companies, excluding claims covered by
the Reconciliation Fund, in respect of which the Agreement shall continue to govern,
and further excluding in rem claims for works of art, by the plaintiffs' attorneys who
have signed the Joint Statement and to the United States taking appropriate steps in
accordance with Articles 2(2), 2(3) and 3(3) of the Agreement between the
Government of the United States of America and the Austrian Federal Government
concerning the Austrian Fund "Reconciliation, Peace and Cooperation"
(Reconciliation Fund) to assist Austria and Austrian companies in achieving legal
closure for all such claims. The term „works of art" is understood to include tangible
movable cultural or religious objects.
Austrian provinces and municipalities will not benefit from legal closure, as set forth
in Article 3(3) of the Agreement, in relation to claims for in rem restitution of publicly-
owned property, applying mutatis mutandis, the principles set forth in supra para.
3(g), unless or until the Austrian Federal Government notifies the Government of the
United States that such province or municipality has adopted similar procedures for
in rem restitution of publicly-owned property or agrees to accept recommendations of
the Arbitral Panel established supra in paragraph 3.
ANNEX B FINAL Rev.1 17.01.2001
Annex B
Definition of "Austrian Companies"
„Austrian companies" as used in this Joint Statement and the Annexes thereto are
defined as follows:
1. Enterprises that, at any given time, had or have their headquarters within the
borders of the present-day Republic of Austria as well as their parent
companies (past or present, direct or indirect), even when the latter had or have
their headquarters abroad.
2. Enterprises situated outside the borders of the present-day Republic of Austria
in which Austrian enterprises as described in Sentence (1), at any given time,
had or have a direct or indirect financial participation of at least 25 percent.
3. a. An „enterprise" or „company„ means any entity, whether organized
under public or private law as a corporation, partnership, sole proprietorship,
association of business entities, society, community, cooperative, non-profit
organization or otherwise as well as any municipality, private or other public law
entity. Any enterprise (in the above meaning) incorporated or otherwise
organized under Austrian law shall be deemed for all purposes of this definition
to have its headquarters in Austria. An enterprise (in the above meaning)
includes its successors, predecessors, former parents, assigns, officers,
directors, employees, agents attorneys, heirs, executors, administrators,
personal representatives, and current or former shareholders. Any branch
office, place of business, establishment or place of work of a non-Austrian
company or enterprise (in the above meaning) located within the borders of the
present-day Republic of Austria shall be deemed to be a company or enterprise
(in the above meaning) that had or has its headquarters in Austria, and any
such non-Austrian company or enterprise (in the above meaning) shall be
deemed to be a parent or former parent as the case may be, with respect to
actions or inactions of such branch or place of business.
b. A „parent company" means any company that owns or owned a direct
or indirect participation of at least 25 percent in any enterprise that had or has
its headquarters in the present-day Republic of Austria.
The definition of „Austrian companies" does not include foreign parent companies
with headquarters outside the present-day territory of the Republic of Austria in
which the sole alleged claim arising from National Socialist injustice or World War II
has no connection with the Austrian affiliate and the latter's involvement in National
Socialist injustice, unless there is a pending discovery request by plaintiff(s), of which
the United States is provided by the defendant with copy to plaintiff(s), seeking
discovery from or concerning National Socialist or World War II actions of the
Austrian affiliate.
ANNEX B FINAL Rev.1 17.01.2001
The definitions in the Exchange of Notes and the Joint Statement are meant to be
identical (as are the words „company" and „enterprise") and should be interpreted in
an identical manner.
No. 14
The Embassy of the United States of America presents its compliments to
the Federal Ministry for Foreign Affairs of the Republic of Austria, and has the honor
to refer to the Preamble and to Articles 1(4), 2(2), 2(3), and 3(3) of the Agreement
between the Government of the United States of America and the Austrian Federal
Government concerning the Austrian Fund "Reconciliation, Peace and Cooperation"
(Reconciliation Fund)("Agreement"), signed October 24, 2000.
Noting the correspondence between the President of the United States and
the Federal President of the Republic of Austria, in connection with the Agreement,
Recalling the relevant provisions of the 1955 State Treaty for the Re-
establishment of an Independent and Democratic Austria, the 1959 Exchange of
Notes constituting an Agreement between the United States of America and Austria
relating to the Settlement of Certain Claims under Article 26 of the Austrian State
Treaty of May 15, 1955, as well as the contents of the letter dated December 19,
1961 from Dr. Nahum Goldman, the Chairman of the Committee for Jewish Claims
on Austria, to Dr. Josef Klaus, the Austrian Federal Minister of Finance,
The United States welcomes the commitment of the Austrian Federal
Government to provide immediate compensation for survivors pursuant to Annex A,
paragraph 1, to propose legislation to the Austrian Parliament by April 30, 2001 to
establish a General Settlement Fund ("GSF") (providing for a Claims Committee and
an Arbitration Panel) in conformity with the principles set forth in Annex A,
paragraphs 2 and 3, and to seek changes in the laws that address social benefits for
victims of National Socialism in conformity with Annex A, paragraph 4.
The United States further welcomes the commitment of the Austrian Federal
Government to make good faith progress on the implementation of the additional
measures for victims of National Socialism set forth in Annex A, paragraphs 5-9.
The United States considers the provision of immediate compensation for
survivors pursuant to Annex A, paragraph 1, the General Settlement Fund,
established in conformity with the principles set forth in Annex A, paragraphs 2 and
3, the changes in the laws that address social benefits for victims of National
Socialism in conformity with Annex A, paragraph 4, and the making of good faith
2
progress on the implementation of the additional measures for victims of National
Socialism set forth in Annex A, paragraphs 5-9, to constitute a "suitable potential
remedy," as understood by Articles 2(2) and 3(3) of the Agreement, for all claims
that have been or may be asserted against Austria and/or Austrian companies, as
defined in Annex B, arising out of or related to the National Socialist era or World
War II, excluding claims covered by the Reconciliation Fund, in respect of which the
Agreement shall continue to govern, and further excluding in rem claims for works of
art and, subject to the provisions of Annex A, paragraph 10, claims for in rem
restitution of property owned by Austrian provinces and municipalities.
Upon fulfillment of the commitments of the Austrian Federal Government
referred to above, the United States will support all-embracing and enduring legal
peace for the above-mentioned claims, as provided for in the Agreement and herein.
The United States agrees that this Exchange of Notes and the establishment
of the GSF shall not affect unilateral decisions or bilateral or multilateral agreements
that dealt with the consequences of the National Socialist era or World War II.
Austria's Note and this affirmative reply shall constitute an Agreement
between the United States and Austria, which shall enter into force when Austria
notifies the United States, by diplomatic note, that it has implemented its
commitments referred to above.
The United States agrees that Annexes A and B shall be integral parts of this
Agreement.
The Embassy of the United States of America takes this opportunity to
renew to the Ministry of Foreign Affairs of the Republic of Austria the assurances of
its highest consideration.
Attachment: As stated
Embassy of the United States of America,
Vienna, January 23, 2001.
Annex A
The Exchange of Notes between the Government of the United
States and the Austrian Federal Government provides that the
principles governing the operation of the General Settlement Fund
will be set forth in Annex A. The Exchange of Notes also provides
that Austria will make good faith progress on the implementation of
the additional measures for victims of the National Socialist era
set forth in Annex A. This Annex reflects key elements of the
General Settlement Fund ("GSF") (providing for a Claims Committee
and an Arbitration Panel) and the additional measures for victims of
National Socialism that form the basis for the Exchange of Notes
between the United States and Austria.
1. Immediate Compensation for Survivors: The Austrian Government
will make a US $150 million contribution to the National Fund, which
will be distributed in its entirety on an expedited basis to all
Holocaust survivors originating from or living in Austria as defined
in the Federal Law amending the Federal Law to Establish the
National Fund of the Republic of Austria for Victims of National
Socialism which will include a hardship clause. This amount will
cover 1) apartment and small business leases; 2) household property;
3) personal valuables and effects. This amount will not cover
potential claims against Dorotheum (which will be covered by the
GSF, see infra para. 2) or in rem claims for works of art. This
amount will be credited against the final cap for the GSF.
The amount of US $150 million will be allocated to the Austrian
National Fund according to the Federal Law amending the Federal Law
to Establish the National Fund of the Republic of Austria for
Victims of National Socialism and the Committee Report thereto.
Payments to survivors will begin immediately after entry into force
of the Federal Law. Austria will provide such funding as may be
required to enable the Austrian National Fund effectively to process
applications for and distribute these funds to all approved
applicants.
2. Establishment of a General Settlement Fund: The Austrian Federal
Government will propose the necessary legislation1 to the National
Council by April 30, 2001 to establish a GSF. Austria will undertake
its best efforts to ensure that this legislation is passed by June
30, 2001. The legislation will enter into force once all
contributions have been made available. The GSF will be a voluntary
fund that will provide ex gratia payments to certain applicants.
The GSF will include both a "claims-based" and an "equity-based"
component. The GSF will be capped at US $210 million plus interest,
at the Euribor rate, accruing to it beginning 30 days after all
claims, pending as of June 30, 2001, against Austria and/or Austrian
companies arising out of or related to the National Socialist era or
World War II are dismissed with prejudice, and such interest shall
continue to accrue on the funds available at any given time until
the GSF has paid all approved claims. The US $210 million
contribution by Austria and Austrian companies (including the
Austrian insurance industry)+ interest, under the terms described
supra, will be in addition to the US $150 million referred to supra
1 The term legislation as used in this Annex refers to Federal Laws to be
passed by the Austrian National Council, the legislative history including
all explanatory notes, and any bylaws to be adopted and governing the
operation of any bodies established under such Federal Laws.
2
in para. 1. The distribution of payments by the GSF will be based
on decisions of the independent Claims Committee.
a. The GSF legislation will establish an independent three-
member Claims Committee ("Committee") for all property/aryanization
claims, and all other claims not covered by the Reconciliation Fund
and the Arbitration Panel referred to infra in paragraph 3 that have
been or may be asserted against Austria and/or Austrian companies
arising out of or related to the National Socialist era or World War
II, excluding in rem claims for works of art. The United States and
Austria will each appoint one member; these two members will appoint
a Chairperson. In the event that the Austrian and the United States
designees are unable to agree upon and designate the Chairperson
within 60 days after the entry into force of the GSF legislation,
the United States and Austria will enter into consultations to name
a Chairperson. The Committee will work under the auspices of the
Austrian National Fund, which will provide technical and
administrative support to the Committee.
b. The GSF legislation will provide that 50% of the funds
allocated for distribution from the GSF will be reserved for a
"claims-based" process and 50% of such funds will be reserved for an
"equity-based" process. The GSF legislation will provide that the
GSF will distribute the funds allocated for the "claims-based"
process on a pro-rata basis and the funds allocated for the "equity-
based" process on a per-household2 basis.
c. The GSF legislation will require the Committee to establish
simplified procedures, including simplified and expedited internal
appeals for decisions made under the "claims-based" process. Such
procedures will permit the attendance of observers to the "claims-
based" process under circumstances to be defined and under strict
rules of confidentiality. The GSF legislation will provide that
decisions made under the "equity-based" process are not appealable.
The GSF legislation will provide that the Committee will review all
applications using relaxed standards of proof.
d. The General Settlement Fund is intended to benefit victims
of National Socialism as defined in the Federal Law amending the
Federal Law to Establish the National Fund of the Republic of
Austria for Victims of National Socialism. The GSF legislation will
provide that such persons (including their heirs, as defined infra
in paragraph 2(e)) and victims' communal organizations who/which
suffered losses or damages as a result of or in connection with
events having occurred on the territory of present-day Austria
during the Nazi era or World War II are eligible to receive
payment(s) from the GSF, provided that the criteria in infra
paragraphs 2(f) or 2(g) are satisfied. The GSF legislation will
also provide that the Committee will not have the authority to
reopen cases that have been finally decided by an Austrian court or
administrative body under Austrian restitution legislation or that
have been settled after 1945. However, recognizing that there may
have been certain gaps and deficiencies in the prior restitution
legislation and further recognizing the ex gratia nature of the GSF,
the Committee may award payments in the exceptional circumstances
where the Committee unanimously determines that such decision or
settlement constituted extreme injustice.
2
Household on the present-day territory of the Republic of Austria between
March 12, 1938 and May 9, 1945.
3
e. Definition of "heirs": The GSF legislation will provide
that heirs as defined under the Austrian General Civil Code (ABGB)
are eligible for payments.
f. "Claims-Based" Process: The GSF legislation will
provide that the Committee may receive claims for payment for losses
or damages as a result of or in connection with events having
occurred on the territory of present-day Austria during the National
Socialist era or World War II in the following categories:
i. liquidated businesses including licenses and other
business assets
ii. real property
iii. bank accounts, stocks, bonds, mortgages
iv. moveable property not covered by the US $150 million
referred to in paragraph 1
v. insurance policies (see infra paragraph n)
To be eligible for payment, claimant must show, under relaxed
standards of proof (by submission of supporting material; if no
relevant evidence is available, the claimant's eligibility can be
made credible in some other way) the following:
i. ownership of property at time of confiscation/
aryanization/liquidation and
ii. claim was never previously decided under prior
restitution legislation or settled by agreement (if no
contradictory evidence is presented, an affidavit
asserting such, including plausible explanation for why
claim was never decided or settled will be deemed
sufficient), or that such decision or settlement
constituted extreme injustice (see supra paragraph d)
or
iii. claim was denied under prior legislation because of
failure to produce required evidence, where such
evidence was inaccessible to claimant but has since
become available (affidavit asserting such, including
plausible reason for inaccessibility will be deemed
sufficient)
The GSF legislation will provide that the Committee may award a
payment of no more than US $2 million for any approved claim.
The GSF legislation will provide that in reviewing claims, the
Committee will take into account prior restitution and compensation
measures, including the US $150 million referred to in paragraph 1,
measures under the German Foundation "Remembrance, Responsibility
and the Future," or claims paid under ICHEIC claims-handling
procedures, and the Bank Austria Settlement, to ensure that the
claimant does not receive a payment under the "claims-based" process
for same property for which compensation was paid under prior
measures.
The GSF legislation will provide that the Committee may either award
claimant pro-rata amount of capped amount allocated for "claims-
based process" or, where Committee determines that claimant is
unable to satisfy evidentiary requirements, Committee must either
reject claim or refer claim to "equity-based process" for per-
4
household payment.
The GSF legislation will provide that if any funds remain after all
approved claims have been paid, such excess funds will be
transferred to the Austrian National Fund to be used for programs to
benefit victims of the Holocaust, including Roma.
g. "Equity-Based" Process: The GSF legislation will provide
that the Committee will make per-household, "equity-based" payments
i. for any of the categories covered by supra paragraph
3(f) where claimant is not able to document specific
claim(s), even under relaxed standards of proof, but
panel has reason to assume that valid case of loss of
property or
ii. for any of the categories covered by supra paragraph
3(f) where claim was previously decided or settled
under prior restitution legislation, but majority of
Committee has reason to believe decision or settlement
was inadequate or
iii. where majority of Committee has reason to believe
claimant was not adequately compensated for
occupational or educational losses during the Nazi era
on the territory of present-day Austria or
iv. for any claims arising out of or related to the
National Socialist era or World War II not covered by
the Reconciliation Fund or the Arbitration Panel
The GSF legislation will provide that "equity-based" payments will
be made on a per-household basis. The GSF legislation will provide
that the Committee will award no more than one payment per
household.
The GSF legislation will provide that applicants for "equity-based"
payments must indicate on their application, to the extent possible,
the address or location of the household for which they are seeking
a payment, and the members of the household, including the heirs of
those who have not survived, who are entitled to share the payment.
The GSF legislation will provide that "household" shall consist of
survivors who lived in the "household" during this period and the
heirs, as defined supra in paragraph e,
The GSF legislation will provide that if any funds remain after all
approved claims have been paid, such excess funds will be
transferred to the Austrian National Fund to be used for programs to
benefit victims of the Holocaust, including Roma.
h. Submission of Claims/Payments: The GSF legislation will
provide that a claimant may submit an application to the Committee
either under the "claims-based" process , which may include multiple
properties, or under the "equity-based" process. If the entire claim
is rejected under the "claims-based" process claimant may submit an
application under the "equity-based" process.
i. Filing Periods: The GSF legislation will allow applications
to be made to the GSF for 24 months after the entry into force of
the GSF law.
5
j. Waivers: The GSF legislation will provide that each
applicant for a GSF payment will be required to state that, upon
receipt of a payment from the GSF, he or she will, for him/herself
and his/her heirs, waive any and all alleged claims against Austria
and/or Austrian companies arising out of or related to the National
Socialist era or World War II. Such a waiver will not preclude
claimant from bringing an action against Austria and/or Austrian
companies for the in rem return of a specifically identified piece
of art or an action for in rem restitution for property owned by
Austrian provinces and municipalities in accordance with infra para.
10.
The GSF and Panel legislation will provide that nothing therein will
be deemed to waive any right of Holocaust survivors and heirs in any
prior class action settlement reached in courts in the United
States.
k. Eligibility for Social Security and Other Public Benefits:
The GSF legislation will make clear that receipt of payment from GSF
funds will not affect the recipient's eligibility for social
security or other public benefits.
l. Publicity: The GSF legislation will require that the GSF,
in conjunction with the Austrian National Fund, provide
appropriately extensive publicity concerning the benefits that the
GSF will offer and how to apply. The Austrian National Fund will
consult with the United States regarding its proposed publicity
plan. In addition, the GSF legislation will authorize and encourage
the Austrian National Fund to utilize existing databases of Austrian
survivor populations from other sources.
m. Costs: The GSF legislation will provide that the
administrative costs for the "claims-based" and "equity-based"
processes will be covered from the budget provided for the Austrian
National Fund and the GSF.
n. Insurance: The GSF legislation will reaffirm the commitment
of the Austrian Federal Government to ensure that all insurance
claims that come within the scope of claims-handling procedures
adopted by the International Commission on Holocaust Era Insurance
Claims (including those concerning valuation, standards of proof,
and decisions of the Chairman) and are made against Austrian
insurance companies not defined as "German companies" within the
German Foundation Law, and not otherwise covered under ICHEIC, will
be solely decided by the Committee and distributed by the GSF on the
basis of such procedures. The Austrian Insurance Association will
make the lists of Holocaust era policy holders publicly accessible,
to the extent available.
The GSF legislation will provide that when an insurance claim is
approved for payment, the Committee will promptly notify the
Austrian National Fund. The Austrian National Fund will authorize
the payment of that claim from the GSF funds (at a capped amount of
US $ 25 million within the GSF, which amount includes interest on US
$ 210 million) allocated for such payments out of the GSF.
In the event that the amount allocated for insurance claims under
this paragraph is exhausted, and the Claims Committee certifies, in
consultation with representatives of the plaintiffs' attorneys
6
recommended by the United States, an amount of up to US $ 5 million
from the amount allocated to the "claims-based" process, as set
forth supra in para. 2 (b), may be used to pay insurance claims
under this paragraph. All funds used to pay approved insurance
claims will be distributed on a pro rata basis.
The GSF legislation will provide that if any funds allocated for
insurance remain after all approved claims have been paid, such
excess funds will be transferred to the Austrian National Fund to be
used for programs to benefit victims of the Holocaust, including
Roma.
3. Arbitration Panel for In Rem Restitution of Publicly Owned
Property:
a. Austria will seek to provide, in accordance with the
procedures described below, on a case by case basis, in rem
restitution of publicly-owned property. Particular attention will
be given to the issue of property formerly owned by Jewish communal
organizations, taking into account the particular situation of the
Austrian Jewish Community.
b. In connection with the establishment of the GSF,
the Austrian Federal Government will propose the necessary
legislation to the Austrian Parliament by April 30, 2001 to
establish, fund, and authorize a three-member Arbitration Panel
("Panel") to address the in rem return of publicly-owned property,
including property formerly owned by Jewish communal organizations.
Austria will undertake its best efforts to ensure that this
legislation is passed by June 30, 2001.
c. The implementation of in rem restitution of publicly-owned
property will have to be in conformity with Austrian constitutional
law and Austria's international obligations.
d. The Panel legislation will provide that the United States,
with prior consultation with the Conference on Jewish Material
Claims, the Austrian Jewish Community, and attorneys for the
victims, and Austria will each appoint one member; these two members
will appoint a Chairperson. All members of the three-person panel
should be familiar with the relevant regulations both under Austrian
and international law (in particular, the European Convention on the
Protection of Fundamental Freedoms and Human Rights). In the event
that the Austrian and the United States designees are unable to
agree upon and designate the Chairperson within 60 days after the
entry into force of the Panel legislation, the United States and
Austria will enter in to consultations to name a Chairperson. The
Panel legislation will provide for an expert to serve as a liaison
between the Panel and the Austrian Historical Commission.
e. The Panel legislation will provide that the Panel will
consider, on a case by case basis, claims for the in rem restitution
of publicly-owned property.
f. The Panel legislation will provide that the Panel will not
have the authority to reopen or reconsider cases that were
previously decided under prior restitution legislation, or settled
by agreement, or where claimant or relative has otherwise received
compensation or other consideration for the property in question,
7
except in the limited circumstances described infra in paragraph
3(g).
g. For the purposes of restitution in rem, the notion of
"publicly-owned property" covers exclusively real estate/ immovable
property/buildings which:
i. between March 12, 1938 and May 9, 1945 was taken
from the previous owners, whether without
authorization or on the basis of laws or other
orders, on racial, national, or, alternatively,
other grounds in connection with the assumption of
power by National Socialism; and
ii. was never subject of a claim that was previously
decided by an Austrian court or administrative body
under prior restitution legislation or a settlement
by agreement, or where claimant or relative has
never otherwise received compensation or other
consideration for the property in question, except
in exceptional circumstances where the Panel
unanimously determines that prior settlement
constituted an extreme injustice; and
iii. on January 17, 2001, was exclusively and directly,
owned by the Federation ("Bund") or any legal
person, agency, or subsidiary wholly-owned, directly
or indirectly, by the Federation
h. The Panel legislation will provide that the Panel will make
recommendations on the basis of evidence submitted by the claimant
and submissions of the Austrian Federal Government, as well as any
relevant findings of the Austrian Historical Commission. A
representative of the Austrian Federal Government will ask the
Austrian Historical Commission, as a matter of high priority, to
examine, identify and report to the Panel such information as it may
obtain concerning property and other assets that may be the subject
of in rem restitution.
i. The Panel legislation will provide that the Panel will make
recommendations to the competent Austrian Federal Minister for in
rem restitution. The Panel legislation will provide that where in
rem restitution, although merited, is not practical or feasible, the
Panel may make recommendations that the claimant be awarded a
comparable property to be recommended by the Panel, in consultation
with the competent Austrian Federal Minister. The Panel legislation
will provide that such recommendations will be made publicly
available (e.g., on the internet).
j. The Austrian Parliament will pass a resolution indicating
its expectation that the recommendations will be expected to be
approved by the competent Austrian Minister(s). The Austrian
Federal Government will support such a resolution.
k. The Panel legislation will provide that the Panel will make
its determinations within six (6) months of receiving any claim.
l. The Panel legislation will provide that the Panel will
establish its own rules of procedure.
8
m. The Panel legislation will provide that individual claimants
(former owners or their heirs, as defined supra in paragraph 2(e))
are eligible to receive in rem restitution (or another appropriate
remedy referred to supra in paragraph 3(h)) provided that the
following criteria are satisfied:
i. property is currently publicly-owned as defined supra
in paragraph 3(g); and
ii. proof of ownership of property at time of loss; and
iii. claim was never previously decided or settled under
prior restitution legislation or claimants or relative
has never otherwise received compensation or other
consideration for the property in question except in
the exceptional circumstances where the Panel
unanimously determines that prior settlement
constituted extreme injustice; or
iv. claim was denied under prior legislation because of
failure to produce required evidence, where such
evidence was inaccessible to claimant but has since
become accessible
n. The Panel legislation will provide that Jewish communal
organizations, including the Israelitische Kultusgemeinde ("IKG"),
are eligible to receive restitution in rem (or another appropriate
remedy referred to supra in paragraph 3(i)) for losses of immovable
and tangible moveable property (e.g. cultural or religious items)
provided that the following criteria are satisfied:
i. property is currently publicly-owned as defined supra
in paragraph 3(g)(i)-(iii); and
ii. property was owned, at the time of loss, by the Jewish
communal organization or in case of defunct Jewish
communal organization, its legal predecessor; and
iii. claim was never previously decided or settled under
prior restitution legislation or claimants or relative
has never otherwise received compensation or other
consideration for the property in question except in
the exceptional circumstances where the Panel
unanimously determines that prior settlement
constituted extreme injustice; or
iv. claim was denied under prior legislation because of
failure to produce required evidence, where such
evidence was inaccessible to claimant but has since
become accessible.
o. The Panel legislation will allow applications to be made to
the Panel for 24 months after the enactment of the Panel legislation
or until one year after the date the Austrian Historical Commission
issues its final report, whichever date is later.
p. The Austrian Federal Government will undertake its best
efforts to identify publicly owned property as defined supra in
paragraph 3(g).
q. The Austrian Federal Government will undertake its best
efforts to ensure the adoption of similar procedures and processes
at the provincial and municipal levels and to secure such
restitution at said levels.
9
r. The in rem return of works of art will be excepted from the
scope of the Panel legislation.
s. The Government of the United States and the Government of
Austria will consult on a regular basis concerning the
implementation of the Panel recommendations.
4. Additional Social Benefits to Survivors:
a. Austria will pass the necessary legislation to allow
disbursement of "Pflegegeld" of categories up to 7 to victims of
National Socialism living abroad as soon as possible.
b. Austria will, as soon as possible, make the following
changes in the laws that address social benefits for victims of
National Socialism:
i. amend the Victims Assistance Act so as to abolish the
six years' age limit provided for in §1(2) lit f of the
Victims Assistance Act;
ii. amend paragraph 11 of the Victims Assistance Act to
allow for pensions for persons who were Austrian
citizens as of March 13, 1938, or who had during the
period of 10 years prior to that date their residence
on the territory of the Republic of Austria and were
not Austrian citizens if they fulfill the other
requirements of the Victims Assistance Act. -
iii. amend the definition of "imprisonment" in §1(1) of the
Victims Assistance Act to include those who were
confined in concentration camp-like facilities, e.g.,
Sammellager ("Collection Camps");
iv. amend 502(6) of the General Pension Law (ASVG) to the
effect that all those born on the present-day territory
of the Republic of Austria between January 1, 1933 and
March 12, 1938 will be eligible to buy into the
Austrian pension system under the conditions of §
502(1,4,6).
5. Restitution of Works of Art: Art restitution will proceed on an
expedited basis pursuant to the Federal Law of December 4, 1998
concerning the works of art from Austrian Federal Museums and
Collections. The Austrian Federal Government will undertake its
best efforts to address the issue of the return of works of art from
Austrian companies and Austrian public entities not covered by the
Federal Law. The Austrian Federal Government will undertake its
best efforts to encourage the adoption of similar procedures at the
municipal and provincial levels. To this end, the Austrian Federal
Chancellor will write a letter to governors and mayors urging them
to adopt such measures, recalling the resolution by the Austrian
Parliament of 1998 urging provincial and municipal museums to
research the provenance of the art works in their possession and to
return all such art looted during the National Socialist era to the
rightful owners.
6. Hakoah Sports Club: The former Hakoah sports field was a
leasehold property of the Hakoah Sport Club located in the Prater in
Vienna. The City of Vienna is prepared to offer to lease to the
IKG, on a reasonable and mutually acceptable long-term basis similar
10
to that of the original lease, a similar piece of land in the
vicinity of the former location. A contribution of US $8 million
will be made available for the construction of an appropriate sports
facility. This will be the final amount for this purpose.
7. State Archives: Austria will provide additional resources to the
Austrian State Archives to allow better access to the files.
Austria will do its utmost to ensure that requests to the Austrian
State Archives for information are handled in an expedited and non-
bureaucratic manner.
8. Jewish Cemeteries: Austria will provide additional support for
the restoration and maintenance of Jewish cemeteries, known or
unknown, in Austria.
9. Subsidies to the Annual Holocaust Education Program at the
Salzburg Seminar: Austria will contribute to such a program.
10. Legal Closure: The establishment of the GSF in conformity with
the principles set forth in supra paragraphs 2 and 3, the passage of
the legislation necessary to provide victims of National Socialism
with the additional benefits referred to supra in paragraph 4, and
the good faith progress in the implementation of the commitments
referred to supra in paragraphs 5 to 9, confirmed by a diplomatic
note from Austria to the United States, will lead to the dismissal
with prejudice of all claims arising out of or related to the
National Socialist era or World War II that have been or may be
asserted against Austria and/or Austrian companies, excluding claims
covered by the Reconciliation Fund, in respect of which the
Agreement shall continue to govern, and further excluding in rem
claims for works of art, by the plaintiffs' attorneys who have
signed the Joint Statement and to the United States taking
appropriate steps in accordance with Articles 2(2), 2(3) and 3(3) of
the Agreement between the Government of the United States of America
and the Austrian Federal Government concerning the Austrian Fund
"Reconciliation, Peace and Cooperation" (Reconciliation Fund) to
assist Austria and Austrian companies in achieving legal closure for
all such claims. The term "works of art" is understood to include
tangible movable cultural or religious objects.
Austrian provinces and municipalities will not benefit from legal
closure, as set forth in Article 3(3) of the Agreement, in relation
to claims for in rem restitution of publicly-owned property,
applying mutatis mutandis, the principles set forth in supra para.
3(g), unless or until the Austrian Federal Government notifies the
Government of the United States that such province or municipality
has adopted similar procedures for in rem restitution of publicly-
owned property or agrees to accept recommendations of the Arbitral
Panel established supra in paragraph 3.
Annex B
Definition of "Austrian Companies"
"Austrian companies" as used in this Joint Statement and the Annexes
thereto are defined as follows:
1. Enterprises that, at any given time, had or have their
headquarters within the borders of the present-day Republic of
Austria as well as their parent companies (past or present,
direct or indirect), even when the latter had or have their
headquarters abroad.
2. Enterprises situated outside the borders of the present-day
Republic of Austria in which Austrian enterprises as described
in Sentence (1), at any given time, had or have a direct or
indirect financial participation of at least 25 percent.
3. a. An "enterprise" or "company" means any entity, whether
organized under public or private law as a corporation,
partnership, sole proprietorship, association of business
entities, society, community, cooperative, non-profit
organization or otherwise as well as any municipality, private
or other public law entity. Any enterprise (in the above
meaning) incorporated or otherwise organized under Austrian law
shall be deemed for all purposes of this definition to have its
headquarters in Austria. An enterprise (in the above meaning)
includes its successors, predecessors, former parents, assigns,
officers, directors, employees, agents attorneys, heirs,
executors, administrators, personal representatives, and current
or former shareholders. Any branch office, place of business,
establishment or place of work of a non-Austrian company or
enterprise (in the above meaning) located within the borders of
the present-day Republic of Austria shall be deemed to be a
company or enterprise (in the above meaning) that had or has its
headquarters in Austria, and any such non-Austrian company or
enterprise (in the above meaning) shall be deemed to be a parent
or former parent as the case may be, with respect to actions or
inactions of such branch or place of business.
b. A "parent company" means any company that owns or owned a
direct or indirect participation of at least 25 percent in any
enterprise that had or has its headquarters in the present-day
Republic of Austria.
The definition of "Austrian companies" does not include foreign
parent companies with headquarters outside the present-day territory
of the Republic of Austria in which the sole alleged claim arising
from National Socialist injustice or World War II has no connection
with the Austrian affiliate and the latter's involvement in National
Socialist injustice, unless there is a pending discovery request by
plaintiff(s), of which the. United States is provided by the
defendant with copy to plaintiff(s), seeking discovery from or
concerning National Socialist or World War II actions of the
Austrian affiliate.
The definitions in the Exchange of Notes and the Joint Statement are
meant to be identical (as are the words "company" and "enterprise")
and should be interpreted in an identical manner.



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