32 No. 69 JUSTICE the Federal Supreme Court (BGH) in the late 1960s, which ruled that Jews who escaped from Nazi forces to the USSR and crossed an international demarcation line were to be regarded as Holocaust survivors. Since the deadline had passed, this important decision could not lead to a substantial new wave of recognitions. An additional issue that arose related to the wave of Holocaust survivors who fled from the Eastern to the Western Bloc. For the first time, this enabled survivors to file claims under the auspices of the BEG. Since they had been residing in territories under Soviet control, they were not permitted to receive compensation payments. Over 1,200 million DM were allocated for the creation of a special relief fund under Article 5 meant to allow ghetto victims to file claims which they were unable to do under the previous law. In the context of this fund, the German legislator created a mechanism to allocate a one-time symbolic payment to survivors. This was, however, only limited compensation relative to what would have been allocated by the original BEG (i.e., being allocated a one-time payment instead of receiving a monthly pension payment).17 Developments in the 1970s In the process of defining social security legal rights for Jews who were expelled from Germany (Vertriebende), the Federal Government implemented significant changes to legislation and created fictitious recognition of payments made to the German Social Security system. As those were never really made, legal fictions for such contributions were created by law. In doing so, social security rights could be reconstructed under various legislation such as RVO (Reichversicherungsordnung), and the FRG (Fremdrentengesetz). Survivors were not overlooked, and administrative legislation was created for their benefit: the WGSVG (Gesetz zur Regelung der Wiedergutmachung Nationalsozialistischen Unrechts in der Sozialversicherung). This legislation sought to correct the flaws of the current social security legislation so that Holocaust survivors would be able to meet the legal obligations set forth by the Federal Social Security Law and thus allow them to receive “Old Age Pension” payments (Altersrente). Crucially, periods of worktime that were completed prior to the war (including training and schooling time) could be fictitiously calculated under the RVO legislation in conjunction with the FRG, and further compensation could be allocated by the so-called substitute qualifying period (Ersatzzeiten). This worktime would be included in order to meet the legal demands of the Social Security law and thus enable the payment of an “Old Age Pension” under Federal Law.18 However, a legal fiscal problem arose under this arrangement. First, only local survivors were eligible to receive such payments. In addition, in order to calculate and allocate pension payments, a retroactive payment of social contributions had to be made (Nachentrictung). Israeli Holocaust survivors were therefore not eligible as Israeli law made it nearly impossible for foreign currency to be sent outside the country without permission from the Israeli Finance Ministry, and this was rarely given. The Creation of the Hardship Fund and the Article II Agreement In the early 1980s, the German Federal government ended its role of program administrator under the German Federal Legislation (BEG and BEGSchluß). It opted for a different way to adjudicate legal structures and administrative measures. This was largely due to the political parliamentary complexity of amending compensation laws (a process that requires consultation between the different federal states), and the criticism it faced since the 1950s, most particularly regarding a restrictive and narrow interpretation of the law that caused great delays in approving individual compensation claims. The solution was an ex-lex form, a regulation enacted by the German cabinet, triggering the creation of the “Hardship Fund” meant to replace Article 5 BEGSchluß. This fund formed the legal structure for the allocation of the one-time symbolic recognition payment for Nazi persecution, to be administered by the Jewish Claims Conference. The process would then be faster, more efficient, and less complicated as it was no longer part of the administrative mechanism that had dealt with such claims in the past. The arrangement was, however, still governed by German administrative law. Due to the limited scope of the judicial review, the fund was only permitted to deal with individual administrative mistakes, and not with adjudication of basic definitions, such as the definition 16. Richard Hebenstiert, “Sonderfonds nach Art. V BEG Schlussgestz, Das Bundesentschädigungsgesetz,” in DAS BUNDESENTSCHÄDIGUNGSGESETZ 690 (Hans Giessler, Otto Gnirs & Richard Hebenstreit, eds., 1983). 17. Aus Politik und Zeitgeschichte, June 17, 2013, available at https://www.bpb.de/system/files/dokument_pdf/ APuZ_2013-25-26_online.pdf 18. S. Simon and A. Weber, “Ghetto Pensions,” 14(9) GERMAN L. J. 1787-1815 (2013), doi:10.1017/S2071832200002509
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