Anonymous v. Austria

The instant case is a constitutional complaint brought before the Constitutional Court of Austria against the decision delivered by the Arbitration Panel for in rem restitution in a dispute between Austria and a private party regarding the restitution of a property located in Austria and unlawfully acquired by the Nazi regime. Specifically, the Arbitration Panel was established by the Federal Law on the Establishment of a General Settlement Fund for Victims of National Socialism and on Restitution Measures Federal Legal (‘General Settlement Fund Law’), adopted pursuant to a bilateral agreement concluded between Austria and the United States in 2001, the Washington  Agreement.

The Constitutional Court rejected the complaint, stating that the decisions adopted by the Arbitration Panel were not subject to the judicial control of domestic courts. The Constitutional Court qualified the Arbitration Panel as an inter-State institution possessing international legal personality. The Court affirmed that the customary rule, according to which international organizations enjoy immunity before domestic courts, equally applied to inter-State institution such as the Arbitration Panel. In this regard, the Supreme Court reminded the case of AS v Iran-United States Claims Tribunal, in which the Dutch Supreme Court held that the Iran-United States Claims Tribunal enjoyed immunity from the jurisdiction of national courts.

As it appears, the Court considered the jurisdictional immunities of international organizations as having a customary legal basis. In support of its conclusion, the Constitutional Court mentioned the decision of the Belgian Conseil d’Etat in the case of Dalfino vs. Governing Council of European Schools and European School of Brussels and the decision of the  Queen’s Bench Division in the case of Lenzing AGs v. European Patent Organization.

The Constitutional Court also underlined that jurisdictional immunity of international organizations and bodies is a necessary mean to protect them from external interference and safeguard their proper functioning. In particular, referring to the case of Waite and Kennedy v. Germany before the European Court of Human Rights, the Constitutional Court affirmed that the recognition of international organizations’ immunity is compatible with the obligations flowing from the European Convention on Human Rights (and, particular, with the right to a legal remedy), insofar as alternative remedies are available for private parties.