HOLOCAUST CLAIMS PROCESSING CENTER
Badenerstrasse 141, 8036 Zurich,
Our Ref: HCPC/CRT/10.987.15
Dear Survivor ,
note 1 Equal to approximately US$17,000,000. For information about the Holocaust Victim Assets Litigation see <ww w.swissbankclaims.com> and <http:/ /www.crt-ii.org>.
note 2 The CRT is in Switzerland because that is where most of the relevant documents are. It is not a Swiss tribunal. Although its existence antedates the Global Settlement, see footnote 4 infra, it has become in effect a creature of Judge Korman's court in New York.
note 3 The next largest award that I have found is about US$24,808,943.24, In re account of Otto and you with the average award to date is about US$ 130,000,000 Swiss Banks Publish Holocaust Era Accounts, CNN New York Bureau, Friday January 14, 2005, available at <http:/ /www.cnn.com/2005/LAW/01/13/holocaust.bank.accounts/>.
The awards are paid from a fund of US$800,000,000 set aside out of the US$1,250,000,000 Settlement Fund paid by Swiss banks pursuat to the so-called Global Settlement of various class action lawsuits approved on August 9, 2000 by Judge Edward R. Korman of the United States District Court for the Eastern District of New York (and upheld by the United States Court of Appeals for the Second Circuit on July 26, 2001). The US$ 800,000,000 is for various Nazi victims: Jews (principally), Romani, Jehovah's Witnesses, homosexuals and the disabled. The remainder of the US$ 1, 250,000,000 is for so-called Looted Assets Class, Refugee Class and two Slave Labor Classes claims.
note 4 The masters were: Michael Bradfield, Judah Glibetz and Helen B. Junz. It was Michael Bradfield, Judah Glibetz and former master, Paul Volcker who promulgated the Rules Governing the Claims Resolution Process, and devised the plan of distribution of the Settlement Fund, then approved by Judge Korman and upheld by the Second Circuit, note 4 supra.
note 5 This is the same Maria Victoria Altmann who recently succeeded in the United States Supreme Court in establishing that the Foreign Sovereign Immunities Act of 1976 is sufficiently ‘retro-active’ to allow and not bar suit against Austria to recover certain paintings, by Gustav Klimt, involving events of the 1930s and 1940s. See Republic of Austria v. Altmann, 327 F.3d 1246 (2004).
note 6 Weyr, Thomas, The Setting of the Pearl: Vienna Under Hitler (Oxford University Press 2005)Google Scholar describes the time and the atmosphere
1305 note 7 Why is the bank unnamed? Was this a condition of this bank and the other Swiss banks agreeing to the Global Settlement?
1305 note 8 A quaint side-bar: the German, Clemens Auer, “a Cologne businessman with close ties to the Nazi party”, paid the socalled Aryanization tax due on such ‘purchase'; he later claimed a refund on the grounds that not all of the Bloch-Bauer partners were 100% Jewish. All facts in this Introductory Note, including quotations, are taken from the Award.
1305 note 9 See note 5, supra. There is some discussion of possible reductions in the share value due to tax claims broght against the Bloch-Bauers, which seem to have been dismissed, and of an Austrian 1956 restitution proceeding to which relatively short shrift is given.
1305 note 10 See note 3, supra.
1305 note 11 See <http:/ /www.crt-ii.org/faqs.phtm> Roger P. Alford, The Claims Resolution Tribunal and Holocaust Claims against Swiss Bank Accounts, 20 Berkeley J. Int'l L. 250 (2003). It is not clear that Mrs Altmann or her family were in such classes.
1305 note 12 The Award occasionally refers to ‘plausible’ evidence, when in fact it seems quite solid and is indeed corroborated by various sources, again and again, and the Award refers to the same again and again.
1305 note 13 Alford, supra note 11, 267 (2003); Report of the Swiss Independent Commission of Experts (Bergier Commission), see generally <http:/ /www.uek.ch/en/> Independent Committee of Eminent Persons: Report of Dormant Accounts of Victims of Nazi Persecution in Swiss Banks (ICEP or Volcker Commission report), <http:/ /www.crtii.org/ICEP/> (1999); see also In re account of Dr. Julius Homburger, available at <http:/ /www.crtii.org/case_summaries.phtm>. It is contemplated that some claimants will not be able to establish either the amount or even the existence of an account, Rules Article 22(3), but will be given a presumed amount depending on the nature (e.g. Savings Account, Safe Deposit Box) of the account, Article 29.
1306 note 14 The CRT does not have a ‘devil's advocate’ making the argument for the ‘respondent’ Swiss bank. This contrasts with some procedures elsewhere: for example in the “pre-settlement adjudication” of claims (e.g. the establishment of cases against Cuba for expropriation of property and other claims, pending some future settlement with Cuba, but Cuba not at the hearings) by the United States Foreign Claims Settlement Commission the absent government ‘respondent’ (e.g. Cuba) has advocates provided by the Commission staff.
1306 note 15 Much has been written about the behavior of the Swiss banks, other banks, companies European and even American, about bank acccounts, insurance companies, slave labor, of so-called looted property, of post-war settlements and programs of restitution, including the delicate situation of Switzerland (and Vichy France) in a Nazi dominated Europe. See, e.g., Vivian Grosswald Curran, Competing Frameworks for Assessing Contemporary Holocaust-Era Claims, 21 Fordham Int'l L. J. 107 (2001); Bazyler, Michael J., The Holocaust Restitution Movement in Comparative Perspective, 20 Berkeley Int'l L. J. 11 (2002)Google Scholar; Scholz, Adrienne, Restitution of Holocaust-Era Insurance Assets: Success or Failure?, 9 New Eng. J. Int'l & Comp. L. 297 (2003)Google Scholar. Barkan, Elazar, The Guilt of Nations: Restitution and Negotiating Historical Injustices (W. W. Norton& Co. New York 2000)Google Scholar; Michael Bazyler, J., Justice for the Collective: The Limits of the Human Rights Class Action (New York University Press 2003)Google Scholar. The propriety of the Holocaust class actions has even been challenged by prominent Holocaust survivors, see Foxman, Abraham H., The Dangers of Holocaust Restitution, Wall Street J., Dec. 4, 1998 Google Scholar, at Al. In the United States, in addition to the holocaust class action cases which led to the Global Settlement, we have the Altmann Supreme Court case, supra note 6; we have the Supreme Court Garamendi decision dealing with a Presidential agreement policy vs. a state (California) statute re insurance claims, American Insurance Association, et al, v. John Garamendi, Insurance Commissioner, State of California, 539 U.S. 396 (2003), and invocations of the Alien Tort Statute, 28 U.S.C. § 1350 (1789), and the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 (1976) already referred to. These frame the big picture. The Certified Award in Altmann gives us a specific case.
1335 note 1 In her Claim Form, the Claimant also identified other family members who held Swiss bank accounts. In separate decisions, the CRT has awarded accounts belonging to Luise Gutmann, Leopold and Antoinette Bloch-Bauer, Otto Gutmann, and Otto and Käthe Pick to their heirs, who were represented by the Claimant. See In re Accounts of Luise Gutmann (approved on 18 August 2004), In re Accounts of Leopold and Antoinette Bloch-Bauer (approved on 13 October 2004), In re Accounts of Otto Gutmann (approved on 18 November 2004), and In re Accounts of Otto and Käthe Pick (approved on 18 November 2004). The CRT did not locate an account belonging to the Claimant's relative, Ferdinand Bloch-Bauer, in the Account History Database prepared pursuant to the investigation of the Independent Committee of Eminent Persons (“ICEP” or “ICEP Investigation“), which identified accounts probably or possibly belonging to Victims of Nazi Persecution, as defined in the Rules Governing the Claims Resolution Process, as amended (the “Rules“). The Claimant should be aware that the CRT will carry out further research on her claim to determine whether an award may be made based upon the information provided by the Claimant or upon information from other sources.
1335 note 2 According to the Claimant's submissions, Ferdinand and Gustav were born Bloch, and Therese and Adele were born Bauer. When Therese and Adele's only brother died in 1917 without a son to carry on the family name, the two families changed their names to Bloch-Bauer.
1335 note 3 According to documents provided by the Claimant, when Adele Bloch-Bauer died, she left behind a short will that asked, but did not require, that her husband consider donating the two portraits and four landscapes to the Austrian Gallery. Gustav Bloch-Bauer, who was an attorney, was named the executor of Adele's estate. In the ensuing probate proceedings in Vienna, the Klimt paintings were declared to be Ferdinand's property, not Adele's. In 1926, Gustav stated that Ferdinand intended to fulfill his wife's wishes, although he was not legally required to do so. However, Ferdinand did not execute any written document confirming this alleged intention. None of Ferdinand's later wills included a bequest to the Austrian Gallery. The Bloch-Bauer heirs have been trying to recover the looted artwork since the end of the Second World War. The CRT notes that the U.S. Supreme Court recently ruled that the Claimant could pursue her legal claims in a United States court against Austria's government and national museum regarding her relative's looted art. See Republic of Austria v. Altmann, 124 S. Ct. 2240 (2004).
1335 note 4 Lillie, Sophie, Was Einmal War. Handbuch der enteigneten Kunstsammlungen Wiens, Czernin Verlag: Wien, 2003, (hereinafter, “Lillie“), pp. 821–836 Google Scholar.
1335 note 5 Lillie, p. 821.
1335 note 6 Lillie, p. 822.
1335 note 7 The Industry Report states: “That duress was involved is indicated by the fact that the son-in-law of Pick and nephew of the company's President Ferdinand Bloch-Bauer, one Leopold Bloch-Bauer, had been arrested immediately after the Anschluss and was released and given an exit permit through the intervention of the Länderbank only after he had undertaken to secure the sale of important foreign-owned blocks of shares to German interests.” Industry Report No. 6, U. S. National Archives and Records Administration, (“NARA“) Washington, D.C., RG 59, Legal Adviser, German assets in Austria/ Italy, Box 22, p. 5 (hereinafter, the “Industry Report“). According to the Perry Report, in June 1938, after his arrival in Switzerland, Leopold Bloch-Bauer, through the Bank, offered a block of 10,000 shares belonging to Otto Pick to the Länderbank Wien at RM 160.00 per share. There were no purchasers at this price and the offer lapsed. Albert Perry, Jr. Report on Brucker Zuckerfabrik Clemens Auer A.G. NARA, Washington, D.C., RG 260-M1928-USACA, German external assets, Reports on businesses, Reel 4 (hereinafter, the “Perry Report“), p. 5; Exhibit 3, “Statement by Dr. Gustav Reinisch [sic] re Clemens Auer securing control of Brucker,” Exhibit 14, “Letter dated 31 May 1946 from Karl Bloch-Bauer, alias Bentley [sic], re pressure exerted by Nazi,” (original available only in translation), and Exhibit 15, “Affidavit dated 13 December 1946 by Otto Pick re sale of Brucker shares,” (original available only in translation). The CRT notes that, according to information provided by the Claimant, Karl Bloch-Bauer did not change his name.
1336 note 8 Perry Report, Exhibit 21, “Memorandum dated 11 January 1940 by Otto Pick, re sale of Brucker shares,” (original available only in translation), p. 1.
1336 note 9 Perry Report, Exhibit 14.
1336 note 10 Perry Report, Exhibit 15.
1336 note 11 Perry Report, Exhibit 23, “Memorandum dated 17 July 1947, re disposal of shares of Dr. Gustav Bloch-Bauer,” pp. 1-2. According to Dr. Rinesch's memorandum, he filed an objection to the tax based on its high amount, and the tax was ultimately reduced to RM 35,007.00. Perry Report, Exhibit 23, p. 1.
1336 note 12 See discussion of records in the Austrian State Archive, infra, pp. 31-32. According to Dr. Rinesch's memorandum, the ÖZAG shares formerly belonging to Gustav were confiscated for partial payment of these taxes on 16 June 1939. Perry Report, p. 7, Exhibit 23, p. 2. According to Dr. Rinesch's memorandum, the shares were transferred by the Finance Office of Vienna to the Preussisches Staatshank of Berlin. After Luise Guttmann's flight tax was reduced, the value of the seized shares exceeded the value of the tax, and Dr. Rinesch submitted a demand for the return of the shares. By that time, the shares had already been transferred to Berlin, and their return was deemed impossible. Instead, German bonds, which ultimately became worthless, were issued in place of the ÖZAG shares and other shares that had been confiscated. Perry Report, p. 7. In his memorandum, Dr. Rinesch wrote: “The later facts show that the main part of these shares, i.e., 2,100 pieces were sold [sic] in October 1939 through the Dresdner Bank to Clemens Auer. Through what procedure these shares arrived at the Dresdner Bank, can not be explained by me.” Perry Report, Exhibit 23, p. 2. The CRT notes that the Claimant recalled that her mother fled Austria in late October 1938. It is not clear, from the facts as outlined in Dr. Rinesch's memorandum, how Theresia would have obtained the necessary documentation that would have allowed her to leave the Reich at this time, though it is possible that she left on a temporary travel visa and obtained official permission to emigrate only later. The CRT notes that Theresia would have had to comply with the decisions of Nazi tax authorities even if she had already left the Reich or risk forfeiture of all her assets that remained within the Reich.
1336 note 13 Industry Report, p. 2.
1336 note 14 Perry Report, p. 1.
1336 note 15 Perry Report, Exhibit 25, “Extract from balance sheet of 31 July 1937.“
1336 note 16 Industry Report, pp.
1336 note 17 “Das Aktienkapital, 80.000 Aktien à Nom. S 125.-betrug am 13. März 1938 S 10.000.000.-. Laut Auskunft der Börsenkammer war die Aktie an diesem Stichtag mit S 300.-zu bewerten, woraus sich ein Wert des Unternehmens am 13. März 1938 mit S 24.000.000.-ergibt.” Registration form for confiscated assets, dated 15 November 1946, submitted to the Vienna Magistrate District Court (das Magistratische Bezirksamt für den 3. Bezirk, Wien III) for the Brucker Zuckerfabrik Clemens Auer (the “1946 Registration“), p. 1. The CRT notes that, according to the information supplied by the Vienna Stock Exchange for this report, Ö ZAG shares were not actually quoted on the Exchange because only very few were available for trading, the bulk being held firmly.
1336 note 18 Perry Report, pp. 1-2.
1336 note 19 Perry Report, p. 1. According to Article II of the agreement, the purpose of the Syndicate was “the joint preservation and the execution of the appertaining interests and rights of the member[s] of the Oesterr. Zucker-Industrie A. G. as a sharemajority, by the joint management of the enterprise through the administration elected by the members of the syndicate, as well as the guarantee of the stable administration and management.” Perry Report, Exhibit 2, “Syndicate Voting Agreement,” p. 2 (original available only in translation).
1336 note 20 “Diese Deponierung war anfänglich als Schutzmassnahmc gedacht, dieser Schutz stellte sichjedoch im weiteren Verlaufe als wirkungslos dar.” Statement, dated 3 March 1956, submitted by Dr. Gustav Rinesch to the Vienna Restitution Commission, regarding the ownership of ÖZAG shares and in consideration of their confiscation (the “1956 Ownership Statement“), p. 4.
1336 note 21 According to the Perry Report, Sapafin A. G, of Chur, Switzerland, was wholly owned by Otto Pick. Of the 16,500 shares held by Sapafin at the Bank, 10,000 were held by Pick directly, 4,250 were held by T. E. H. Davis [sic], and 2,250 were held by J. E. Lloyd. The CRT notes that the Perry Report refers to the name “Davis,” while other documents, including a statement by Otto Pick, refer to “Davies.” Davies and Lloyd were British and, as agents for Pick, held the shares on his behalf. Perry Report, p. 6. In a statement dated 11 January 1940, Otto Pick stated that the 6,500 shares held by Col. J. E. Lloyd and Capt. T. E. H. Davies, both of Liverpool, were deposited at the Bank. In his 11 January 1940 statement, Otto Pick stated that he induced Lloyd and Davies to put the 6,500 shares at the disposal of the Mercurbank, and that they were transferred to Vienna at approximately the middle of 1939. Perry Report, Exhibit 21, “Memorandum dated 11 January 1940 by Otto Pick re sale of Brucker shares,” (original available only in translation), p. 1.
1336 note 22 Of the 7,215 shares held by the Bloch-Bauer group, 6,270 were held by Ferdinand Bloch-Bauer, 440 were held by Gusta v Bloch-Bauer, 305 were held by Robert Bloch-Bauer, and 200 were held by the Claimant.
1336 note 23 According to a memorandum, dated 17 July 1947, the 3,300 shares owned by Ferdinand Bloch-Bauer were deposited at the company's main offices in Vienna as of 13 March 1939. Perry Report, Exhibit 22, “Memorandum dated 17 July 1947, re shares of Ferdinand Bloch-Bauer.” According to the Perry Report, the shares held by Gustav Bloch-Bauer were deposited in the Creditanstalt Bankverein in Vienna. Perry Report, p. 7. The shares held by Gustav Bloch-Bauer in Vienna are severally noted as numbering 2,335 and 2,135. At 2, the Perry Report indicates that Gustav Bloch-Bauer owned 2,335 shares in Vienna, which also is shown in the translated text of the Syndicate Agreement, while at 7, it states that he held 2,135 shares in Vienna, which also is the number stated in Dr. Rinesch's memorandum regarding the disposition of Gustav Bloch-Bauer's estate and in Gustav Bloch Bauer's 1938 Census declaration. Perry Report, Exhibit 23, p. 2. See also discussion infra, pp. 31-32. In the submisssion filed on behalf of the Pick, Graetz, Bloch-Bauer and Loew interests for recognition of their restitution claim to the company, the number of shares Gusatv Bloch-Bauer held, including the 440 shares at the Bank, is given as 2,600. Perry Report, Exhibit 3, p. 2. Given these differences, the CRT has determined that it accepts the translation of the official text of the Syndicate Agreement, which shows the total number of shares held by the Syndicate as 71,246, of which Gustav Bloch-Bauer held 2,335 shares outside Switzerland, as being correct. The 3,687 shares belonging to Otto Pick likewise appear to have been held in Vienna. Perry Report, p. 2. The CRT notes that, according to the Perry Report, the number of Syndicate shares held by the Pick, Bloch-Bauer, Graetz, and Löw families total 71,182, not 71,246, which the Perry Report indicates is the total number of shares held under the Agreement. The documents do not clearly indicate the ownership of the remaining 64 shares. See discussion supra, pp. 11-12, and infra, notes 51 and 87.
1337 note 24 Article III of the Agreement states: “Each member of the syndicate loses the right of disposal, hypothecating, encumberance [sic], or to make arrangements with the shares brought into the syndicate during the period of syndication in any other manner, except without the unanimous decision of the syndicate.” Perry Report, Exhibit 2, p. 2.
1337 note 25 Shapiro, Paul A. and Dean, Martin C., “Foreword,” in the Symposium Proceedings, “Confiscation of Jewish Property in Europe, 1933-1945 New Sources and Perspectives,'’ Washington, D.C.: Center for Advanced Holocaust Studies at the United States Holocaust Memorial Museum, 2003, p. ii Google Scholar. Paul A. Shapiro is Director of the Center for Advanced Holocaust Studies of the United States Holocaust Memorial Museum. Martin C. Dean is Applied Research Scholar in the Center for Advanced Holocaust Studies of the United States Holocaust Memorial Museum, and formerly served as Senior Historian for the Nazi War Crimes Investigation Unit at Scotland Yard. Dr. Dean is author of Collaboration in the Holocaust: Crimes of the Local Police in Belorussia and Ukraine, 1941-44 (2000) and several articles on Nazi confiscation of Jewish assets. For an overview of looting generally, including measures taken toward blocked accounts and with comments from Hilberg, Raul and Barkai, Avraham, see In re Holocaust Victim Assets Litig., Plan of Allocation and Distribution of Settlement Proceeds, Vol. II, pp. G 4– G 5 Google Scholar.
1337 note 26 Feldman, Gerald D., “Confiscation of Jewish Assets, and the Holocaust,” in the Symposium Proceedings, “Confiscation of Jewish Property in Europe, 1933-1945 New Sources and Perspectives,” Washington, D.C.: Center for Advanced Holocaust Studies at the United States Holocaust Memorial Museum, 2003, p. 4 Google Scholar. Gerald Feldman is Professor of History and Director of the Institute of European Studies at the University of California, Berkeley. He has published a number of books, including Army, Industry and Labor in Germany, 1914—1918 (1966), The Great Disorder: Politics, Economics, and Society in the German Inflation, 1914-1924 (1993), Hugo Stinnes: Biographie eines Industriellen, 1870-1924(1998), and Allianz and the German Insurance Business, 1933-1945 (2001).
1337 note 27 Hayes, Peter,”Summary and Conclusions,” in the Symposium Proceedings, “Confiscation of Jewish Property in Europe, 1933-1945 New Sources and Perspectives,” Washington, D.C.: Center for Advanced Holocaust Studies at the United States Holocaust Memorial Museum, 2003, p. 147 Google Scholar. Peter Hayes is Theodore Z. Weiss Professor of Holocaust Studies at Northwestern University. He is author of Industry and Ideology: IG Farben in the Nazi Era (1987) and “Arisierung'’ im Nationalsozialismus: Volksgemeinschaft, Raub und Gedächtnis (2000). He is also editor of Lessons and Legacies III: Memory, Memorialization, and Denial (1999). Professor Hayes was the 1997-98 J. B. and Maurice C. Shapiro Senior Scholar-in-Residence at the Center for Advanced Holocaust Studies of the United States Holocaust Memorial Museum. He is also a member of the Academic Committee of the United States Holocaust Memorial Council.
1337 note 28 Weber, Fritz, Felber, Ulrike, Melichar, Peter, Priller, Markus, Unfried, Berfhold, Eigentumsdnderungen in der österreichischen Industrie 1938-1945, Historikerkommission: Vienna, 2002, p. 647 Google Scholar, (hereinafter, “Unfried“), available at <http:/ /www.historikerkommission.gv.at/deutsch_home.html> (last viewed 28 September 2004). The Historical Commission was established jointly by the Austrian Federal Chancellor, the Vice-Chancellor, the Speaker of the National Assembly and the Speaker of the Federal Council Parliament in 1998 to investigate and report on the whole complex of expropriations in Austria during the Nazi era and on restitution and/or compensation (including other financial or social benefits) after 1945 by the Republic of Austria. See also Perry Report, p. 5.
1337 note 29 The term “self indictment” is taken from the Perry Report, which later states that Ferdinand Bloch-Bauer “accepted“ responsibility for certain discrepancies in the books while, at the same time, he and Carl [sic] Bloch-Bauer “wrote to their attorney stating that they had not received illegal payment of any kind.” The term “self indictment” was therefore likely an overly literal translation of a German phrase that is more akin to pleading “nolo contendere'’ or declaring Chapter 11 bankruptcy. In a plea of nolo contendere, the target of a criminal investigation agrees to submit to the investigation, but does not agree that he/she violated the criminal law. In a Chapter 11 bankruptcy declaration, a business owner declares bankruptcy, acknowledges certain debts, and proposes a plan to meet them in an attempt to retain control of the company. In their declarations, Bloch-Bauer and Pfeiffer did not state any definite amounts of debt owed. They argued that it would take some time to review the books for the years 1930 to 1938, and it was therefore agreed that two separate detailed statements would be filed at the earliest possible date, the first to cover the years 1934 to 1937 and the second to cover the years 1930 to 1934. Subsequently, the company filed four supplemental tax declarations covering 1931 to 1937, which revealed an alleged underpayment of taxes on income amounting to a total of S 2,487,540.42 for that period. Perry Report, p. 4-5.
1337 note 30 Resume (Lebenslauf) of Guido Walcher dated 20 April 1938. Austrian State Archive, Archive of the Republic, ÖStA/AdR, 02/BMI, GA 32.482 (hereinafter the “Walcher Resume“). Obtained by the Claimant's representative and submitted to the CRT (Bates Number 006206). The Resume is attached to this Award as Exhibit E.
1337 note 31 Interim Report on the Audit of the Books of the ÖZAG (Zwischenbericht zur Überprüfung der Geschäftsbücher der ÖZAG von Guido Walcher), dated 29 April 1938, Vermögensverkehrstelle (WSt) Stat. 7881/1, OZAG (hereinafter, the “Interim Report“). Obtained from the Schiedsinstanz für Naturalrestitution (document B.6.a.l) by the Claimant's representative and forwarded to the CRT (Bates Numbers 004389-004397).
1337 note 32 Unfried, pp. 647-648.
1337 note 33 Unfried, p. 651. See supra, note 23. In addition, the Vienna Finance Ministry (Oberfinanzpräsidium Wieri) confiscated approximately 21,000 shares owned by the Löw group to cover that group's tax debt. The Löw family, like the Bloch-Bauer family, was subjected to a tax investigation relating to their agricultural and industrial interests virtually immediately after the Anschluss. As early as 18 March 1938, the two partners, Gustav and Wilhelm Löw, filed a “self indictment” with the tax authorities, but also could not avoid criminal proceedings. On 30 June 1938 they were assessed some RM 13 million in taxes and penalties and their property, including their block of 21,665 ÖZAG shares, was later confiscated and sold by the Vermögensverkehrsstelle, via the fiscal authorities, to Clemens Auer. Perry Report, p. 8.
1338 note 34 Perry Report, p. 5.
1338 note 35 Perry Report, Exhibit 13, “Letter dated 5 December 1938 to Clemens Auer from Landerbank [sic], Wien, re purchase of shares of Brucker.“
1338 note 36 Perry Report, p. 5; Exhibit 16, “Letter dated 22 December 1938 from [the Bank] to syndicate members re offer of Clemens Auer.” In its 22 December 1938 letter, the Bank asked that the Syndicate members notify the Bank in Zurich at the latest by 4:00 pm on 29 December 1938. Perry Report, Exhibit 16.
1338 note 37 Perry Report, Exhibit 16.
1338 note 38 Perry Report, Exhibit 16.
1338 note 39 Perry Report, Exhibit 16.
1338 note 40 The additional 10,567 shares included 6,500 shares held by Lloyd and Davies on Pick's behalf and, according to the Perry Report, were held at the Bank, not in Vienna. See supra, note 21. The Syndicate Agreement also indicates that 40,195 shares were held in the Bank's name and deposited at the Bank. This figure apparently includes the 6,500 shares held by Lloyd and Davies on Pick's behalf.
1338 note 41 1956 Ownership Statement, pp. 9-10.
1338 note 42 1956 Ownership Statement, p. 10. Auer did not indicate the provenance of the remaining 380 shares.
1338 note 43 Perry Report, Exhibit 17, “Letter dated 13 February 1940 from Landerbank [sic], Wien to Clemens Auer, re shares purchased for Auer.” According to Unfried, in 1939, Auer attempted to circumvent Nazi authorities in order to avoid paying aryanization tax on the ÖZAG shares he acquired. Auer maintained that, because he obtained the shares from a Swiss bank, they were not subject to an aryanization tax. The authorities maintained that the shares were “Jewish'’ shares, even if they were sold by a Swiss bank. According to Unfried, the matter was settled in a conference between Auer and Nazi authorities in February 1939, and Auer paid the taxes on the disputed shares. Unfried, p. 653. It appears that this letter was obtained in connection with that dispute. Though it appears anomalous that, if the dispute had been settled in February 1939 as Unfried contends, the Länderbank would a year later seek to support Auer's contention that the shares he bought from the Bank in Zurich were “aryan,'’ it may be that it was provided in connection with the Vermögenverkehrstelle’ s offer to cancel the tax upon submission of proof of Aryan ownership. See infra note 55. The original document upon which Unfried based his statement about the resolution of the dispute is not available to the CRT.
1338 note 44 Perry Report, p. 6.
1338 note 45 The Perry Report details the sale of these shares in a section devoted to the treatment of shares owned by Otto Pick. Perry Report, p. 6. The 13 February 1940 letter indicates that the shares held by Davies and Lloyd were sold on 31 December 1938, and incorrectly indicates that Davies held 2,450 shares, rather than the 4,250 that he actually held. The 13 February 1940 letter lists these shares as having come from “aryan” previous ownership. Perry Report, Exhibit 17, p. 1.
1338 note 46 Perry Report, p. 7.
1338 note 47 Perry Report, pp. 7-8.
1338 note 48 Perry Report, pp. 7-8; Exhibit 17, p. 1; Exhibit 22. The 13 February 1940 letter from the Länderbanklists the 3,300 block of shares twice-once as having been sold on 21 December 1938 by Ferdinand Bloch-Bauer, and once as having been sold, together with 21,665 shares belonging to the Löw group, on 28 August 1939 by the Finance Office of Vienna (Finanzamt f. Verkehrssteuern, Wien [sic]). Elsewhere in the Exhibits to the Perry Report and in the Perry Report itself, the tax authorities concerned are properly described as the Oberfinanzpraesidium.
1338 note 49 See supra, note 12.
1338 note 50 Perry Report, p. 7.
1338 note 51 According to 1 of the Länderbank's letter, Auer purchased 69,641 ÖZAG shares from December 1938 to September 1939. The letter indicates that Auer may have acquired additionals shares. Furthermore, this total appears to double count some shares. Perry Report, Exhibit 17, p. 1. See also supra, note 48. The total cited on 1 of Exhibit 17 derives from a listing that attempts to divide Auer's ÖZAG shares acquisitions according to whether they were originally “Aryan” or “non-Aryan“-owned. On 2 of the same Exhibit, Auer is reported to have acquired a total of 78,968 shares at an average price of RM 82.18. This number is consistent with the numbers reported in the Industry Report, which indicates that Auer obtained the shares as follows: A block of 33,695 shares (16,480 from Graetz; 10,000 from Pick; 7,200 from the Bloch-Bauers [sic]) for a consideration of approximately RM 2,500,000.00 in “blocked” marks (average price per share RM 75.00); 3,687 shares owned by Pick for RM 276,525.00 (average price per share RM 75.00); 6,500 shares held by Lloyd and Davies as agents for Pick for RM 486,525.00, paid into a blocked account (average price per share RM 75.00); an additional 2,100 shares of the Bloch-Bauer block from the German Ministry of Finance, which had confiscated the shares in connection with the tax proceedings, for RM 193,200.00 (average price per share RM 92.00); the Low block of 21,665 shares and the remaining 3,350 shares of the Bloch-Bauer block were confiscated by the German tax authorities in connection with criminal tax evasion proceedings against the owners and their respective business interests, which were then sold to Auer for RM 2,246,850.00 (average price per share RM 90.00); and the Patzenhofer block of 4,448 shares for RM 400,320.00 (average price per share RM 92.00). According to the Perry Report, in this transaction the last large acquisition by Auer made in October 1939 considerable pressure was exerted on the seller. Auer also obtained miscellaneous smaller blocks of shares amounting to 3,538 shares at different prices and from unknown sources. Industry Report, pp. 4-7; Perry Report, Exhibit 17. The CRT notes that the numbers of shares per shareholder provided in the Industry Report vary slightly from the number of shares attributed to the various Syndicate members in the Perry Report and Draft Settlement.
1338 note 52 The aryanization tax was that share of the “windfall profit“ that had accrued to the aryanizer through acquisition of assets at severely depressed prices that the Nazi authorities arrogated to themselves. The Vermögensverkehrsstelle in many cases would routinely calculate the so-called basic value (Sachwert), which generally was a fraction of the real value of the asset to be aryanized, and the transaction value (Verkehrswert), which generally was appreciably higher, though still below normal market values. The aryanizer would acquire the asset at the Sachwert and pay the authorities the aryanization tax, which was the difference between the Verkehrswert and the Sachwert. The calculations, as well as the eventual payment, were heavily influenced by who the aryanizer was and what connections he/she could bring to bear.
1339 note 53 “ ‘Auer behauptet nach wie vor, dass von den Schweizer Aktien der grösste Teil von einer arischen Bank gekauft sei. Ich halte es für sehr zweifelhaft, und bin der Meinung, dass diese Frage genau geprüft werden muss. Im allgemeinen pflegen Schweizer Banken nur als Vermittler für jüdische Transktionen aufzutreten.'… ‘Zu Punkt 1) bemerke ich, dass nach meinen Erfahrungen die Schweizer Banken gewöhnlich derartige Transaktionen für geflüchtete oder ausländische Juden vermitteln. Dies gilt selbst dann, wenn sie nach aussen hin als Verkäufer im eigenen Namen auftreten.’ “ 1956 Ownership Statement, p. 14 (citing Volume III, pp. 179, 184, Assessor Keune to the Industry Division of the Property Control Office).
1339 note 54 “Es sind dies die zur Interessengruppe Ing. Pick gehorigen Aktien der Liverpooler Treuhänder.” 1956 Ownership Statement, p. 14.
1339 note 55 “Die Aktien wurden von der Vermögensverkehrsstelle als jüdischer Besitz behandelt…. Die als Verkäufer auftretenden beiden Engländer waren nur Treuhänder der Sapafin AG Chur. Ihr Besitz von 16.500 Aktien im Jahre 1938 ist durch die Beilagen L4 undL5, sowie durch die Beilage 4 erwiesen.“ Partial Decision, p. 18. The referenced attachments are not available to the CRT. In its Partial Decision, the Restitution Commission noted that the Property Control Office (i.e., the Vermögensverkehrstelle) presumed that the shares had been in Jewish ownership, but was not entirely clear of their origins. Nevertheless, they were treated as Jewish-owned shares, and were subjected to aryanization tax. The Partial Decision notes that the Vermögensverkehrstelle offered to cancel the aryanization tax for these shares if Auer could provide documentation to prove that the shares did not come from Jewish ownership (as defined by the Nuremberg laws), and that Auer did not do so, even though he would have saved a substantial sum if he had done so. (“Diesen Nachweis hat Clemens Auer nicht erbracht, obwohl er dadurch einen namhaften Betrag an Arisierungsauflage erspart hätte.“) Partial Decision, pp. 18-19.
1339 note 56 1946 Registration, p. 3. There is no indication that the canceling of the second installment was due to a reclassification of any of the shares as “non-Jewish.“
1339 note 57 Perry Report, Exhibit 26, “Extract from balance sheet of 1 January 1940.“
1339 note 58 The CRT notes that this amount is equal to S 10,000,000.00, which is the value of the share capital reported in the firm's 31 July 1937 balance sheet.
1339 note 59 Perry Report, p. 9.
1339 note 60 Unfried, p. 654.
1339 note 61 Perry Report, p. 4. The CRT notes that Ferdinand Bloch-Bauer contested the legality of the tax proceedings and the finding holding him personally responsible for the firm's financial irregularities. In his penultimate will, dated 8 October 1942, which was submitted to the CRT by the Claimant's representative, Ferdinand wrote while in exile in Zurich: “In an illegal manner, a tax penalty of one million Reichsmark was imposed and my entire estate in Vienna was confiscated and sold off.” Penultimate will of Ferdinand Bloch-Bauer, 8 October 1942.
1339 note 62 Unfried, p. 655.
1339 note 63 “Obwohl sie von Elementen des NS-Jargons nicht frei sind, scheint der Sachverhalt doch nicht bloss von NS-Vorurteilen konstruiert. Es ist klar, dass ein als “jüdisch'’ qualifizierter Industrieller im Jahre 1938 auf kein faires Steuerstrafverfahren rechnen konnte. Das Verfahren wurde zweifellos dazu verwendet, den Kurs der Aktien zu drücken und damit die Arisierung zu ermöglichen. Ebenso unzweifelhaft aber lagen diesem Strafverfahren real begangene strafbare Wirtschaftsdelikte zugrunde, die den Wert der Firma unabhängig davon belasteten, dass ihre Eigentümer “Juden” waren.” Unfried, p. 655-656.
1339 note 64 Perry Report, p. 12.
1339 note 65 Perry Report, pp. 3-5.
1339 note 66 Perry Report, pp. 6-7.
1339 note 67 Pauley, Bruce F, Austria, in The World Reacts To The Holocaust, (David S. Wyman), Baltimore and London: The Johns Hopkins University Press, 1996, (hereinafter, “Pauley“), p. 493 Google Scholar. According to Pauley, on the eve of the Anschluss, 185,000 Jews (not counting the 34,500 classified as Jews by the Nazis in the Nuremberg Laws of 1935) lived in Austria, among whom just under 170,000 lived in Vienna. Shortly after the War, the country's Jewish population was little more than 11,000. In the mid-1990s, approximately 15,000 Jews lived in Vienna. At most, only 12,000 to 15,000 Jewish émigrés ever returned to Austria. Pauley, pp. 492-493. Bruce F. Pauley is a professor of history at the University of Central Florida. He is the author of Hitler and the Forgotten Nazis: A History of Austrian National Socialism and From Prejudice to Persecution: A History of Austrian Anti-Semitism.
1339 note 68 Pauley notes that a victims’ welfare law enacted by the Austrian parliament in 1945 and amended twenty-eight times thereafter at first recognized only members of the wartime Austrian resistance movement as victims. Only in 1961 were Jews recognized as victims, and then only if they had remained hidden in Austria during the War under “inhumane” circumstances. Not until 1969 were Jewish refugees recognized as victims. Pauley, p. 495.
1339 note 69 Pauley, p. 496.
1339 note 70 Id.
1339 note 71 Id.
1339 note 72 Pauley, pp. 496-497. For a general discussion of Austria's restitution and compensation programs through 2000, see In re Holocaust Victim Assets Litig., Plan of Allocation and Distribution of Settlement Proceeds, Vol. II, pp. E 73- E 76.
1340 note 73 See generally, Press Summary, Final Report, Historical Commission, (the “Final Report“) at <http://www.historikerkommission.gv.at/english_home.html> (last viewed 28 September 2004). For an example of extreme injustice in a post-War settlement, see Schiedsinstanz für Naturalrestitution, Entscheidungsnummer 3/2003, at <http://www.nationalfonds.org/aef/english/index.htm> (last viewed 28 September 2004). In that instance, the Arbitration Tribunal reviewed a claim lodged with the Austrian General Settlement Fund that had been initiated in 1948 by the heirs of real property owners. In 1957, the heirs agreed to a settlement of their claim. In the settlement, the heirs received S 618,000.00, which was approximately ten percent of the actual value of the property. The Arbitration Tribunal unanimously concluded that the settlement reached in 1957 constituted “extreme injustice.” (“Die Schiedsinstanz gelangt daher einstimmig zu der An-sicht,dassderVergleichzwischendendamaligenRuckstellung-swerberlnnen und der Republik Österreich extreme ungerecht war.“)
1340 note 74 Final Report, p. 16.
1340 note 75 Id.
1340 note 76 Final Report, pp. 17-18.
1340 note 77 “R.G. ist damit im Bereich des Rückstellungswesens ein herausragendes Beispiel an Kontinuität zwischen Entziehung und Rückstellung.” Böhmer, p. 21.
1340 note 78 Id.; Perry Report, p. 10 and Exhibit Commercial Register.“
1340 note 79 Perry Report, p. 11.
1340 note 80 According to the 1956 Ownership Statement and the Draft Settlement, Dr. Rinesch represented the heirs of Ferdinand Bloch- Bauer and Gustav Bloch-Bauer; Otto Pick, including the Sapafin A. G. Chur, Lloyd and Davies interests; the Graetz family foundation; and the Reininghaus and Patzenhofer groups. The Low group was represented by Dr. Emerich Hunna. 1956 Ownership Statement, p. 1; Draft Settlement, pp. 1-2.
1340 note 81 Unfried, p. 655.
1340 note 82 Perry Report, p. 4. The Restitution Claimants argued that, because Ferdinand Bloch-Bauer and Pfeiffer had come forward to declare the previously undeclared taxes, they had not evaded taxes and should not be subject to criminal tax proceedings. According to the Perry Report, the attorneys for the Restitution Claimants submitted the statutory provisions, including Articles 239, 240 and 241 of the Austrian Income Tax Law (Personalsteuergesetz), governing tax security proceedings as documentary support. Perry Report, Exhibit 29, “Extracts from tax law applicable to tax penalty suit,” (original available only in translation).
1340 note 83 For a general discussion of the role of the Finanzprokurator in Austria's restitution proceedings, see Böhmer, Peter, Faber, Ronald and Wladika, Michael, Die österreichische Finanzverwaltung und die Restitution entzogener Vermögen 1945 bis 1960. Die Finanzprokuratur. Historikerkommission: Vienna, 2002 Google Scholar, (hereinafter, “Böhmer“).
1340 note 84 “Im Hinblick aufden … Beitritt der Finanzprokuratur zieht der Vertreter der Rückstellungswerberin das gegen die Republik Oesterreich gerichtete Rückstellungsbegehren zurück.” Unfried, p. 655.
1340 note 85 Unfried, p. 658. As noted above, Unfried indicates that the Elisabethstrasse property was auctioned in 1938 for RM 250,000.00. The actual value of the Elisabethstrasse property and other property has not been definitively determined. Ferdinand Bloch-Bauer did not submit a declaration of his assets pursuant to the decree of 26 April 1938, by which the Nazi Regime required all Jews who resided within the Reich, and/ or were nationals of the Reich, including Austria, and who held assets above a specified level, to register all their assets as of 27 April 1938 (the “1938 Census“), nor is there an auction catalogue or other document to indicate the values. To compare 1938 with post-War values, the CRT notes that according to information at the Geldmuseum of the Austrian National Bank, on 30 November 1945, Reichsmark and “military Schillings” (used immediately after the Occupation) were exchanged for new Austrian Schillings at a rate of one to one. The “Currency Protection Law” (Währungsschutzgesetz), proclaimed in November 1947 to counter the inflationary pressures of the post-War period, inter alia devalued the Schilling by exchanging old for new Schillings at a rate of three to one. See <http://www.oenb.at/de/ueber_die_oenb/geldmuseum/oesterr_geldgeschichte/Schilling/vom_Schilling_zum_euro.jsp> (last viewed 28 September 2004).
1340 note 86 Unfried, p. 657.
1340 note 87 Unfried, p. 658, citing the audit of the newly reestablished ÖZAG conducted by Professor Dr. Bouffier dated 30 September 1957. The CRT notes that the shares held by the Bloch- Bauer group (12,850), the Löw family (21,665), the Pick group (20,187), and the Graetz family (16,480) total 71,182. The CRT notes that this number varies slightly from the number of shares (71,246) attributed to Syndicate members by the Perry Report. See discussion supra, pp. 11-13 and notes 23, 51.
1340 note 88 Unfried, p. 658.
1340 note 89 Email exchange between E. Randol Schoenberg and Berthold Unfried, 14 March 2003.
1340 note 90 Letter from Robert Bentley to his wife, Thea, 9 August 1956.
1340 note 91 Perry Report, p. 12
1340 note 92 The records contain documents alternatively referring to Dr. Gustav Bloch-Bauer's wife as Theresie, Theresia, and Therese Bloch-Bauer.
1340 note 93 The shares identified in his 1938 Census declaration appear to have been deposited in the Creditanstanlt Bankverein in Vienna. See supra, note 23. As noted above, the Perry Report, in different locations, indicates that Gustav owned 2,135 and 2,335 ÖZAG shares held in Vienna. The 2,335 number appears more reliable, as it stems from the translation of the official Syndicate Agreement, which also shows the ÖZAG shares to total 80,000.
1340 note 94 Certain documents in these records also refer to Theresia Bloch-Bauer as Therese Sara Bloch-Bauer.
1340 note 95 The records also refer to Thea Franziska Bloch-Bauer as Thea Franziske Bloch-Bauer.
1340 note 96 These documents also refer to Luise Gutmann as Louise Sara Gutmann. It is not clear why the documents pertaining to Luise Gutmann appear in Karl Bloch-Bauer's file. They were presumably misfiled as other correspondence concerning Luise Gutmann is included in Gustav Bloch-Bauer's file and as all these documents refer to her relationship to the estate of Gustav Bloch-Bauer.
1340 note 97 See supra, note 23.
1340 note 98 As noted above, according to the 1956 Ownership Statement, on 30 December 1938 the Länderbank informed Auer that it had been able to purchase for him 26,480 shares of ÖZAG that had been held at the Bank, as well as an additional 10,567 shares, including 6,500 held by Lloyd and Davies on Pick's behalf, that had been deposited at the Länderbank. Both the Perry Report and the Syndicate Agreement, however, indicate that these shares were, in fact, held at the Bank, not at the Länderbank. See supra, note 40.
1340 note 99 Pursuant to Articles II and III of the Syndicate Agreement, Pick was obligated to block the transfer of these shares by informing the place of deposit of the need for the Bank's consent, and the Bank was obligated to withhold consent to transfer shares that had been blocked at their place of deposit without the unanimous consent of the Syndicate members. The available documents do not indicate whether the shares were actually blocked at their place of deposit, or whether the Bank consented to the sale of these shares.
1340 note 100 Article VII of the Syndicate Agreement requires the management of the Syndicate to inform members of decisions to be made with the request to reply within eight days after their receipt of the management letter, and that the absence of a reply is to be considered as a positive response to the proposed decision. The Bank could not have relied on this provision because the Syndicate cancellation proposal was made by the Bank alone on its own responsibility, but the Syndicate Agreement placed management responsibility in the hands of Ferdinand Bloch-Bauer and not in the Bank. Moreover, as detailed below, even if the Bank had management authority, which it did not, it proceeded to sell ÖZAG shares subject to the Syndicate Agreement that were held in its name on deposit at the Bank on 30 December 1938, in spite of the clear acknowledgment in its own letter that there was no agreement of any kind to a sale, just eight days after its letter of 22 December 1938, and certainly less than the eight days from the time allowed under the Syndicate Agreement for members to receive the Bank's letter and respond thus allowing it to rely on the presumed agreement provisions of Article VII. Thus, when the Bank made the sale of the ÖZAG shares, it had no authority to terminate the Syndicate and acted to sell shares that it held in ÖZAG without authorization or authority in violation of the Syndicate Agreement that was still in effect in accordance with its terms.
1341 note 101 In re Holocaust Victim Assets Litig,. 302 F. Supp. 2d. 59, 63 (E.D.N.Y. 2004), as amended, 319 F. Supp. 2d. 301, 305 (E.D.N.Y. 2004).
1341 note 102 302 F. Supp. 2d. at 63-64, 319 F. Supp. 2d. at 305-306.
1341 note 103 302 F. Supp. 2d. at 71, 319 F. Supp. 2d. at 314.
1341 note 104 Meinl, Susanne,“The Expropriation of Jewish Emigrants from Hessen,” in the Symposium Proceedings, “Confiscation of Jewish Property in Europe, 1933-1945 New Sources and Perspectives,” Washington, D.C.: Center for Advanced Holocaust Studies at the United States Holocaust Memorial Museum, 2003 (hereinafter “Meinl”), p. 96 Google Scholar. Susanne Meinl is a historian at the Fritz Bauer Institute, Frankfurt am Main. Dr. Meinl is the author of Nationalsozialisten gegen Hitler (2000), as well as several scholarly articles on anti-Semitism and right-wing political organizations in Weimar Germany. She is studying the plunder and expropriation of Jewish assets in the German state of Hessen and in 2002 she worked on the exhibition “Legalized Burglaries: The Fiscal Exploitation of Jews in the State of Hesse, 1933-1945.“
1341 note 105 Meinl, p. 96.
1341 note 106 The CRT notes that in a statement of 11 January 1940, Otto Pick refers to the 6,500 shares of ÖZAG held by his agents Lloyd and Davies and states that the proceeds of the sale of these shares was to be credited to the account of Pick & Co. at the Mercurbank/Länderbank, but that this was not done, and despite diligent efforts by Lloyd and Davies to see that this was done, the transfer was not made at any time prior to the end of the Second World War. Perry Report, Exhibit 21, “Memorandum dated 11 January 1940 by Otto Pick, re sale of Brucker shares,” (original available only in translation). The CRT further notes that there is no evidence that the proceeds of the sale of the remaining 3,687 shares held by Pick were ever credited to his account or that, in fact, Pick owed a debt to the Mercurbank/Länderbank at all. The CRT notes that, given the close cooperation between the Mercurbank/Länderbank and the Nazis, as evidenced in its 5 December 1938 letter to Auer which solicited bids for the ÖZAG shares and which is signed “Heil HitlerV and in the postWar statements of Leopold Bloch-Bauer and Otto Pick, it is reasonable to conclude that Pick's alleged “debt” may well have been a pretext used to confiscate Pick's assets. See written statement by L.L.G. Bentley (“It was obvious that the Mercurbank cooperated closely with the Gestapo in 1938, to put adequate pressure upon its old and new customers“) and affidavit of Otto Pick (“In the middle of May 1938, Dr. H. Mann, at that time Syndicus of the Mercurbank, Vienna, turned up without being announced in Zuerich, where I lived at the time with my family and demanded from me a series of documents with my signature, whereby almost our entire properties and interest in Austria should have been handed over to the Mercurbank for trustworthy administration and/or liquidation after appointing Dr. Mann as plenipotentiary.“) Perry Report, Exhibits 13,14, and 15. Given these facts and circumstances, and the plausibility standard of proof adopted in the Rules Governing the Claims Resolution Process, as amended (the “Rules“), the CRT concludes that it is clearly plausible that the alleged Pick debt to the Länderbank was conceived as a cover for the reality of the well-developed, and forcefully executed, confiscatory program to deprive all of the Jewish owners of ÖZAG of their ownership without meaningful compensation, and accordingly, the benefit of the doubt should be given to the Claimant and parties she represents, who should receive compensation for all 20,187 Pick shares of ÖZAG that were seized by Nazi authorities with the full complicity of the Bank.
1341 note 107 In 1938, RM 1.00 was worth SF 1.7548 and US $1.00 was worth SF 4.37.
1341 note 108 The CRT notes that Antoinette Bentley passed away in November 2004. Her son, Peter Bentley, has submitted a copy of her will, in which his five children are named beneficiaries of Antoinette Bentley's residual estate. Peter Bentley has requested that the portion of the Award to which Antoinette Bentley would have been entitled be distributed to his children, according to her wishes as expressed in her will.
1341 note 109 Perry Report, Exhibits 25 and 26.
1341 note 110 Perry Report, p. 6.
1341 note 111 Perry Report, Exhibit 21, p. 6.
1341 note 112 The 1946 Registration identifies Sapafin A. G. Chur as the owner of a block of 16,500 shares at the Bank as of 13 March 1938, and specifies that the sole owner of all shares was Otto Pick (“Alleineigentümer sämtlicher Anteile Ing. Otto Pick“). 1946 Registration, p. 2. The Perry Report likewise identifies Sapafin A. G. Chur as the owner of a block of 16,500 shares and specifies that Sapafin A. G. Chur was “owned 100% by Otto Pick, a Czechoslovakian citizen living in Vienna.” Perry Report, p. 1. The 1956 Ownership Statement groups the 6,500 shares held by Lloyd and Davies with the remaining Pick shares. 1956 Ownership Statement, pp. 1, 3. The Partial Decision similarly identifies the 6,500 shares held by Lloyd and Davies as being held in trust for Otto Pick. Partial Decision, p. 2.
1341 note 113 “Die Aktien wurden von der Vermögensverkehrsstelle als jüdischer Besitz behandelt. … Die ah Verkäufer auftretenden beiden Engländer waren nur Treuhänder der Sapafin AG Chur. Ihr Besitz von 16.500 Aktien im Jahre 1938 ist durch die Beilagen L4 und L5, sowie durch die Beilage 4 erwiesen.'' Partial Decision, p. 18. The referenced attachments are not available to the CRT. In its Partial Decision, the Restitution Commission noted that the Property Control Office presumed that the shares had been in Jewish ownership, but was not entirely clear of their origins. Nevertheless, they were treated as Jewish shares, and were subjected to aryanization tax. The Partial Decision notes that the Property Control Office offered to cancel the aryanization tax for these shares if Auer could provide documentation to prove that the shares did not come from Jewish ownership (as defined by the Nuremberg laws), and that Auer did not do so, even though he would have saved a substantial sum if he had done so (“Diesen Nachweis hat Clemens Auer nicht erbracht, obwohl er dadurch einen namhaften Betrag an Arisierungsauflage erspart hätte“). Partial Decision, pp. 18-19.
1342 note 114 Perry Report, p. 6.
1342 note 115 Syndicate Agreement, p. 1.
1342 note 116 The CRT notes that the Partial Decision and the settlement reached in 1957 included the Patzenhofer group, which, as the Restitution Commission noted in the Partial Decision, was not Jewish. In the Partial Decision, the Restitution Commission justified the inclusion of the Patzenhofer group by noting that the company itself and the shareholders as a legal group were considered to be Jewish by the Nazi regime. Partial Decision, pp. 8-9.
1342 note 117 Unfried, p. 658.
1342 note 118 When converting amounts into Swiss Francs, the CRT uses official exchange rates prevailing at the time. In 1957, S 1.00 was worth SF 0.1682.
1342 note 119 The Industry Report quotes a share price before the Anschluss of “S 300-S 350 or RM 200 to RM 230.” The Perry Report quotes a certification by the General Secretary of the Vienna Stock Exchange finding that the value of the shares in March 1938 was “S 320-350 for a par of S 125 per share.'’ Industry Report, p. 3; Perry Report, p. 9. The full text, dated 19 May 1947, is shown in Exhibit 27 to the Perry Report and confirms that the shares were not quoted on the Stock Exchange because they “were for the most part in permanent hands and only a very small part of them was available for trade.’ Accordingly, the quotes provided were based on a few turn-overs and compared with officially quoted sugar shares. The 1946 Registration, dated 15 November 1946, cites information provided by the Stock Exchange, according to which, on 13 March 1938, the relevant date set for the registration (Stichtag), the shares were to be valued at S 300.00 each. Registration, p. 1. Unfried cites a memorandum written by Dr. Rinesch, dated 29 April 1955, in which he stated that the shares were worth S 300.00 per share in March 1938. Unfried notes that this value was used in a Finanzprokuratur report dated 5 January 1956. Unfried, at 650. The opinion of the Finanzprokuratur, dated 31 August 2004, confirms on p. 4 the share price of S 300.00 before 13 March 1938 and on p. 13 states that ÖZAG was capitalized “at the time of the Anschluss according to information provided by the Stock Exchange with RM 200.—(S 300.—) a share. In an effort to confirm this price, the CRT contacted the Vienna Stock Exchange to obtain the official quoted price for ÖZAG shares on 13 March 1938. In correspondence dated 14 October 2004, the Stock Exchange again confirmed that no official quotes were available for ÖZAG shares at the time. The CRT recognizes that the sporadic market for the few available shares may not be representative of the market for a large number of shares. As a result, however, the controlling block of shares generally commands a substantial premium.
1342 note 120 In a letter to the authorities, dated 23 May 1939, Gustav Bloch-Bauer's attorney, Dr. Gustav Rinesch, amended the asset declaration of Gustav Bloch-Bauer, who had since passed away. In that letter, Dr. Rinesch indicated that the ÖZAG shares which were originally valued at S 250.00 per share on 27 April 1938 had decreased in value to RM 75.00 per share. The CRT notes that, although neither the asset declaration nor Dr. Rinesch's letter specifically indicates the location of these shares, they appear to have been held outside of Switzerland. See supra, note 23.
1342 note 121 See, e.g., In re Accounts of Maximilian Welch, In re Account of Juliane Steiner, In re Accounts of Fanny Margulies and Serafine Margulies, In re Account of Fritz Gutfreund, and In re Account of Max Wohlmuth.
1342 note 122 See Junz, , Rathkolb, , Venus, , et al., Das Vermögen der jüdischen Bevölkerung Österreichs-NS Raub und Restitution nach 1945. Historikerkommission: Vienna, 2004, p. 63 Google Scholar.
1342 note 123 As noted above, there is a slight discrepancy in the number of shares attributed to Gustav Bloch-Bauer. See supra, note 23.
1342 note 124 While it may be impossible to determine the true value of the shares, the CRT considers Gustav Bloch-Bauer's declaration (of S 250.00 per share), as evidence that the shares were worth at least this amount.
1342 note 125 At S 300.00 or RM 200.00 per share, the company's total value would equal S 24,000,000.00 or RM 16,000,000.00. As noted above, the firm's 31 July 1937 balance sheet value was S 26,021,555.24 (equal to RM 17,347,703.00), and its 1 January 1940 balance sheet value was RM 16,508,479.80 (equal to S 24,762,718.00). Perry Report, Exhibits 25 and 26; Industry Report, pp. 3-4.
1342 note 126 Finanzprokuratur, p. 13.
1342 note 127 The multiplier is used to adjust 1945 values to present-day values. The adjustment is made in accordance with a formula established by the Special Masters with Court approval. See Rules, Article 31(1).
1342 note 128 This result exceeds the sum of the values of the various blocks of shares by SF 0.02 to compensate for the effects of rounding to two decimal places. See Exhibit F to this Award. The CRT notes that the same result is reached by calculating the shares in the aggregate. Using the figure of S 300.00 or RM 200.00 per share, the 33,037 shares belonging to the Pick and Bloch-Bauer groups were worth SF 11,594,665.52. The CRT has determined that US $28,000.00, or SF 122,360.01, was released to Otto Pick from the sale of his 10,000 shares held at the Bank and that US $22,452.61, or SF 98,117.90, was released to the Bloch-Bauer group from the sale of their 7,215 shares held at the Bank. The total amount received was SF 220,477.92, leaving SF 11,374,187.60 as the remaining value of the shares for which the original owners received no compensation during the aryanization of the company. S 55,042,260.00 or SF 9,258,108.13 is then deducted from this amount for the purchase price obtained for the restituted shares in 1957. The difference in the two values is SF 2,116,079.47. The current value of this amount is calculated by multiplying it by a factor of 12.5, to produce an amount of SF 26,450,993.375, which, adjusted for the effects of rounding to two decimal places, is equal to the total award amount of SF 26,450,993.36.
1342 note 129 The CRT notes that this Award makes no effort to compensate the sums paid by the Restitution Claimants in connection with the Nazi-era tax proceedings or any other non-ÖZAG property.
1342 note 130 The CRT notes that the Agreement between Trevor David Mantle and George Bentley refers specifically to “property recovered pursuant to the legislation currently pending in the Austrian Parliament” regarding repatriation of works of art and real property. Nevertheless, the CRT has concluded that the Agreement may be interpreted to govern the distribution of Ferdinand Bloch-Bauer's Estate under the In re Holocaust Victim Assets Litigation, as well.
* Chairman, International Law Institute and Professor of Law, Georgetown University Law Center; Of Counsel, Morgan, Lewis & Bockius, Washington, D.C.
Please Reply Urgently,
Head of Admin