Irresberger v Republic of Austria

Date20 Mayo 1953
CourtCourt of Appeal of Vienna (Austria)
Austria, Landesgericht of Vienna.
Republic of Austria.

International Law — Relation to Municipal Law — Treaty not Submitted by Government for Parliamentary Approval — Resulting Inability of Individuals to Enforce Claims under Treaty — Whether Government Liable to Individuals for Failure to Submit Treaty to Parliament — The Law of Austria.

Treaties — Operation and Enforcement of — Claims of Individuals on Basis of Treaty — Claims Settlement Agreement between Austria and United States of America — Contents of Treaty Not Enacted as Municipal Law — Failure of Government to Submit Treaty to Parliament for Purpose of Enactment — Whether Individuals Entitled to Claim Damages for Failure of Government — The Law of Austria.

The Facts.—By a judgment dated February 20, 1952, the Austrian Supreme Court held that Austrian nationals who had suffered damage as a result of torts committed by members of the United States armed forces were not entitled to recover compensation for such damage from the Republic of Austria, which, by virtue of the “Claims Settlement Agreement” of June 21, 1947, concluded between Austria and the United States of America (U.N.T.S., vol. 67, p. 89), had received a global sum of money from the United States Government and in consideration thereof had undertaken to satisfy all claims of Austrian nationals in respect of such damage (if caused before July 1, 1947).1 The reason given by the Supreme Court for the dismissal of individual claims of this nature against the Republic of Austria was the absence of any Austrian law embodying the contents of the Agreement. It appeared, in fact, that the Austrian Government had never submitted the Agreement to the Austrian Parliament (as required by Article 50 of the Constitution) in order that it may be enacted as part of Austrian municipal law, and in the present action the plaintiff claimed damages from the Republic of Austria, his contention being that the Austrian Government had failed in its constitutional duty and was guilty of a violation of Austrian law.

Held: that the Austrian Government, in failing to submit the Agreement to the Austrian Parliament, had failed in its constitutional duty and had acted contra bonos mores, and that the plaintiff was accordingly entitled to damages.

The Court said: “In so far as concerns a legal duty to act, the provisions of civil law must be applied, as provided in section 1...

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