22. July 2021

Recommendation of the Advisory Commission in the case of the heirs of Robert Graetz v. Stiftung Stadtmuseum Berlin

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier, decided unanimously on 12 July 2021 in the case of the heirs of Robert Graetz versus Stiftung Stadtmuseum Berli,n not to recommend restitution of the painting Portrait of Alfred Kerr by Lovis Corinth to the heirs of Robert Graetz.

  1. The subject of the proceedings is the painting Portrait of Alfred Kerr (1907) by Lovis Corinth (1858–1925). It is an oil painting on canvas, framed, measuring 103.5 x 58.5 cm.
    The painting was acquired by the Staatliche Schauspielbühnen Berlin in 1956/1957 and transferred to the Berlin Museum in 1974. It is in the holdings of the Stiftung Stadtmuseum Berlin (Inv. No. GEM 74/74). The claimants are the heirs of Robert Graetz.

  1. Robert Graetz (1878–1945) was indisputably persecuted individually and collectively under National Socialism. From 1907, together with equal partner Georg Glass, he ran the textile manufacturer Glass & Graetz oHG, based in Berlin. He had two children, Hilda (1912–2013) and Helmut (1914–1989) from his first marriage to Ella, née Wagner (1880–1926). On 28 April 1934, Robert Graetz married the widow Bluma Haas, née Brin (1899–1985), called Betty, who already had a son, Werner Haas (b. 1925). The family lived in a villa at Erdener Str. 13-15 in Berlin-Grunewald from 1919. This was also the location of the art collection, which by the mid-1930s had grown to about 245 works, including notable Impressionist and Expressionist paintings. Under the pressure of Nazi persecution, the villa had to be rebuilt and divided into several apartments around 1935/1936, one of which the Graetz family occupied while the rest was rented out.
    Eventually, on 31 March 1939, the liquidation of Glass & Graetz oHG began, and on 18 April 1940, the company was deleted from the commercial register. Also on 18 April 1940, the marriage of Robert and Bluma Graetz was dissolved. A number of statements consistently confirm that the Graetzes continued to live together despite the divorce. As a result of the divorce, Bluma recovered her Latvian citizenship, presumably in the hope of being able to better protect assets and to enable emigration to Riga. In December 1940, Robert Graetz was forced to sell his property at Erdener Strasse 13-15 to Deutsche Erd- und Steinwerke GmbH, an SS company. As a consequence, on 25 February 1941, Bluma Graetz consigned furniture, household goods and art objects to be auctioned via the firm of Gerhard Harms. From March 1941, the formally divorced couple lived together in two rooms of a four-room apartment as subtenants with their neighbor Artur Barasch (1872–1942) at Wissmannstraße 11 in Berlin-Grunewald. Barasch had already been forced to sell his property in May 1939.
    Robert Graetz’s daughter Hilda was able to emigrate to Johannesburg around 1935/1936, and his son Helmut managed to escape to Argentina on 9 December 1938. Werner, then fourteen years old, was brought to England on a Kindertransport on 22 August 1939. After the invasion of the Soviet Union on 22 June 1941, Bluma Graetz was classified as an “enemy of the state” because of her nationality and extradited to Russia via Turkey, where she had to do forced labor for six years. From 1947 she was employed as a nurse in Riga for 20 years. Only in 1969 was she able to leave Russia and emigrated via London to Buenos Aires to live with her stepson Helmut Graetz and his wife, Hilde, née Kann. Robert Graetz presumably planned to emigrate to Switzerland, but was deported on 14 April 1942, on the 14th transport to the Trawniki concentration camp near Lublin. A last message to his daughter Hilda has survived from the Warsaw Ghetto, dated 16 June 1942. He was declared dead on 31 December 1945.
  2. The painting was created in 1907 by Lovis Corinth to mark the 40th birthday of the Berlin journalist and theater critic Alfred Kerr (1867–1948). Until at least 1922 it was with the artist himself. By 1926 at the latest, it was the property of the architect Leo Nachtlicht (1872–1942). Based on a handwritten date note by Charlotte Berend-Corinth, both parties assume that Robert Graetz acquired the painting from Leo Nachtlicht on 27 May 1932. The subsequent fate of the portrait, however, is hard to trace. At the auction of 25 February 1941 by the firm of Gerhard Harms, commissioned by Bluma Graetz, only a few oil paintings were offered; the only work by Corinth among them was a drawing entitled Hände, but not the Portrait of Alfred Kerr. According to Bluma Graetz’s recollections, the auction concerned a quarter to a third of her movable property. Some remaining items, such as furniture and carpets, which could not be accommodated in the new, much smaller apartment in Wissmannstraße, were stored at the forwarding companies Hess & Co and Gebr. Inventories of these items have not survived.
    About a month after the deportation of Robert Graetz on 14 April 1942, the Reichsfinanzverwaltung visited the apartment at Wissmannstraße 11. In addition to a few items of clothing, suitcases and other paraphernalia, three unspecified paintings and two bronzes, each valued at 10 Reichsmark, were confiscated. The total value of the listed assets was estimated by the tax authorities at 118 Reichsmark. A registration sheet on 27 June 1942 for Bluma Graetz, by then already in the Soviet Union, concerning “im Inland befindliches feindliches Vermögen” [“enemy property located in Germany”] listed household effects and clothing worth 691.89 REichsmark, as well as debts for storage fees with Hess & Co in the amount of 316.50 Reichsmark.
    On 24 August 1948, Hilda Rush (Ruschkewitz), née Graetz, and Helmut Graetz filed a claim for damages against the German Reich for the unjustified seizure of valuable art objects. Among other things, the “Porträt Kerr” was listed, albeit erroneously attributed to Max Slevogt. The proceedings dragged on for several years, as the claimants were unable to provide more detailed information about the seizure process and their own legitimacy as heirs. The reparation authority subsequently declared itself unable to clarify the facts of the case and rejected the claim in September 1954. Before this decision became legally binding, the whereabouts of the painting at issue here became known. From at least February 1956, Ilse Valecka, née Kahle, div. Meyer-Thoene (1921–unknown) and Wolfgang Kahle (1925–unknown) offered the Portrait of Alfred Kerr on the art market. They were the children of the marriage of Fritz Kahle (1891–1958) and Gertrud Kahle, née Neumann (1897–1945) in 1919. The couple divorced in the spring of 1939; and in October 1940 Fritz Kahle married his second wife Gertrud Kopischke (1905–unknown). Gertrud Kahle, née Neumann, had been living at “Konstanzer Straße 10, with Schneider”, since September 1941. She was listed at this address in a declaration of assets prepared on 12 April 1942 by Robert Graetz, who stated to the Oberfinanzpräsident Berlin-Brandenburg that he was committed to make monthly payments of 50 Reichsmark to her. Shortly before submitting the declaration, on 3 April 1942, Gertrud Kahle had been arrested by the Gestapo. On 18 June 1942, she was deported to Theresienstadt. Her property was confiscated by the Gestapo on 1 May 1942; according to Ilse Valecka’s recollection, this included “3 Ölgemälde, 1 Porträt, 18. Jahrhundert, Art des Tischbein” [“3 oil paintings, 1 portrait, 18th century, Tischbein type”] and “2 Landschaften, frühes 19. Jahrhundert, Rottmann-Schule” [“2 landscapes, early 19th century, Rottmann school”].
    Gertrud Kahle survived imprisonment in a concentration camp and returned to Berlin in August 1945. There she lived with her daughter, who had married in the meantime. On 7 November 1945, she took her own life. Ilse Valecka filed an application for compensation for damage to her mother’s property and assets on 6 February 1956. On the same day, the newspaper Die Welt published an article by Friedrich Luft entitled Ein Bild will nach Berlin. Das Kerr-Portrait von Lovis Corinth wird angeboten [A painting wants to go to Berlin. The Kerr portrait by Lovis Corinth is on offer]. The Schiller Theater Berlin expressed an interest in purchasing the painting, and the acquisition was approved on 16 April 1956 for 10,500 Deutschmark. Attorney Leonhard, authorized representative of Hilda Rush, née Graetz, and Helmut Graetz in the Robert Graetz compensation proceedings, contacted the legal representative of the heirs of Gertrud Kahle after the whereabouts of the painting became known in order to negotiate a voluntary restitution. Although he achieved an interruption of the purchase process, he was only able to reach a settlement as a result. The purchase by the Schiller Theater was completed after the parties Graetz/Rush and Kahle/Valecka were able to agree on 26 April 1957 on a payment of 3,000 Deutschmark – and thus 28.5 % of the purchase price – to the heirs after Robert Graetz.
    Since 1974, the Portrait of Alfred Kerr has belonged to the Berlin Museum through transfer by the Schiller Theater.
  3. It is undisputed between the parties that Robert Graetz acquired ownership of the painting Portrait of Alfred Kerr before 1933 and included it in his collection. According to current knowledge, the portrait was neither sold at auction through Gerhard Harms in 1941 nor confiscated by the Gestapo in 1942.
    In 1956, it was owned by Ilse Valecka, née Kahle, and Wolfgang Kahle; in the course of the settlement negotiations in 1956/1957, it was claimed that the painting had come into the possession of Gertrud Kahle as a result of a donation by Robert Graetz.
  • The heirs of Robert Graetz are of the opinion that the claim of a donation was a protective assertion which was not unusual in the post-war period and which also lacked plausibility in the present case. The only comprehensible connection between Robert Graetz and Gertrud Kahle consisted in a statement about a payment of alimony made under duress shortly before the deportation. This is no evidence of a relationship between the two that proves an “Anstandsschenkung” [“gift arising from a moral duty”]. Rather, the claimants assume a loss of the painting due to its storage at the freight office Fritz Kahle. It is to be assumed that the monthly payment of 50 REichsmark to Gertrud Kahle served to camouflage the storage costs. Since Fritz Kahle was obliged to support his divorced wife, he ultimately profited from the payments made by Robert Graetz. This also explained why the Portrait of Alfred Kerr had not been among the assets seized from Gertrud Kahle. The portrait had been misappropriated by Fritz Kahle and subsequently passed on to his children Wolfgang and Ilse, who had declared it as a gift to their mother in order to conceal its origin. The claimants therefore assume that Robert Graetz did not voluntarily give up ownership of the painting, but lost it as a result of Nazi persecution. The settlement which the heirs after Graetz concluded with the heirs after Kahle in 1957 was the result of erroneous assumptions and a lack of alternatives. In the overall view, it was therefore null and void and accordingly did not stand in the way of restitution of the painting.
  • The Stiftung Stadtmuseum Berlin, on the other hand, argues that the claimants have not succeeded in proving that the painting was seized before 1945. Thus, no sufficient evidence for a delivery to the forwarding agent Fritz Kahle had been produced so far, neither for the Portrait of Alfred Kerr nor with regard to other assets of Robert Graetz. The maintenance payment obligation to Gertrud Kahle stated by Robert Graetz supported the assumption of a donation, as it had been asserted in the course of the settlement negotiations. Therefore, it could not be assumed that there had been a deprivation as a result of Nazi persecution. In any case, however, the private settlement concluded in 1957 between the heirs of Graetz and Kahle precluded restitution. Insofar as this settlement was now annulled on the basis of moral considerations, the Kahle family was implicitly being accused of criminal conduct without evidence of this being available.
  1. In the opinion of the Advisory Commission, the painting Portrait of Alfred Kerr by Lovis Corinth is not to be restituted to the heirs of Robert Graetz. The Commission assumes that Robert Graetz lost most of his art collection as a result of Nazi persecution. In the opinion of the Commission, however, it has not been demonstrated with sufficient probability that the painting in dispute was also seized from Robert Graetz as a result of persecution and that he may have been the primary victim. Furthermore, in this case, the settlement concluded in 1957 precludes a restitution to the heirs of Robert Graetz.
  • It has not yet been possible to clarify when the picture entered the collection of Robert Graetz. There is agreement among the parties that Robert Graetz acquired the painting before 30 January 1933. However, the commission does not find this convincing. In 1926, the Portrait of Alfred Kerr was part of the Gedächtnisausstellung Lovis Corinth at Nationalgalerie Berlin. The lender and owner at the time was the architect Leo Nachtlicht (1872–1942). Nachtlicht ran his own practice in Berlin from 1904. With his wife Anna Nachtlicht (1880–1942), née Levy, he had two daughters, Ursula (1909–1999) and Ilse (1912–unknown). With the onset of National Socialism, the family was subjected to repression and Nachtlicht’s professional practice became increasingly difficult. Attempts to obtain a work permit in London failed; only the two daughters managed to escape to London in April 1939. Nachtlicht himself died in September 1942 in the Jewish Hospital in Berlin. His wife Anna was deported to Riga in October 1942 and murdered.
    Leo Nachtlicht had some works of art from his extensive collection offered for sale by the Berlin auction house Max Perl as early as 6 February 1932. The auction offer included the painting Inneres einer Tiroler Bauernstube [Interior of a Tyrolean Peasant’s Parlor] as well as some drawings and prints by Lovis Corinth, but not the Portrait of Alfred Kerr. The claimants assume that the painting in dispute was sold by Leo Nachtlicht to Robert Graetz on 27 May 1932. This assumption is based exclusively on an unspecified date “27.5.32”, which Charlotte Berend-Corinth included in her manuscript for the catalog raisonné of Lovis Corinth’s paintings published in 1958. The value of this already limited information is further diminished by the fact that it was later crossed out. Nor can it be concluded from other evidence that the painting was already in Robert Graetz’s collection before 30 January 1933. Robert Graetz commissioned Leo Nachtlicht to remodel the villa in 1935, so there were connections between the two that certainly make a later purchase of the painting possible.
    In light of the couple’s history of persecution, Leo and Anna Nachtlicht, it cannot be ruled out that a sale after 30 January 1933 took place under circumstances that, from today’s perspective, could be reason for restitution. The Guidelines for implementing the statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property, of December 1999 (New edition 2019)” (hereinafter: Guidelines) are still based on the principle that of several aggrieved parties, only the first is entitled to restitution. Therefore, proof – even in the form of prima facie evidence – is required that the painting was already in the collection of Robert Graetz before 30 January 1933. An agreement between the parties cannot replace this proof.
  • In light of the persecution fate of the Graetz family, the Commission assumes that most of the family’s extensive art collection was lost during National Socialism as a result of persecution. Evidence to date includes the auctioning of assets in 1941, the storage of furniture and carpets at the Hess & Co and Gebr. Berg shipping companies, and the various confiscations by the Gestapo in 1942. Family members were able to transfer a few works of art abroad.
    The Portrait of Alfred Kerr was presumably neither among the auctioned or confiscated works of art, nor among those transferred abroad. In February 1956, it was in the possession of Ilse Valecka, née Kahle, and Wolfgang Kahle. How it got there is unknown. The Stiftung Stadtmuseum Berlin considers the claimants to be obliged to prove not only the loss but also the circumstances surrounding it, citing Allied restitution legislation. To what extent this appeal is justified can be left open here, for there are several indications in favor of the interpretation of the events put forward by the Stiftung Stadtmuseum Berlin.
    In the declaration of assets that Robert Graetz had to submit shortly before his deportation on 12 April 1942, there is a monthly maintenance payment in the amount of 50 Reichsmark listed from Graetz to Kahle. This documents a connection between Graetz and Kahle, which suggests that a transfer of ownership of the Portrait of Alfred Kerr from Robert Graetz to Gertrud Kahle or her divorced husband, Fritz Kahle, took place by 1942 at the latest, and that the picture passed from there to the Kahle children at a later date. A loss related to Nazi persecution by way of a disguised safekeeping agreement with subsequent misappropriation, as stated by the applicants, is only insufficiently supported by the submitted reports from memory. Conversely, the nature of the relationship between Robert Graetz and Gertrud Kahle cannot be deduced solely from the declaration of assets submitted immediately prior to the deportation. It should be added, however, that in the same declaration Graetz also listed alimony payments to his sister and a cousin, i.e. named recipients with whom a closer relationship may presumably have existed. Moreover, when the painting was offered for sale by the children of Gertrud Kahle in 1956, her former husband Fritz Kahle – who had remarried in 1940 – was still alive. This justifies the assumption that the picture passed from Gertrud Kahle directly to her children, which also speaks against the declaration of a concealed custody agreement with Fritz Kahle, unless one accused the entire Kahle family of collusive action at the expense of the Graetz family – and Gertrud Kahle herself.
  • Ultimately, however, the private settlement that Hilda Rush, née Graetz, and Helmut Graetz concluded with Ilse Valecka, née Kahle, and Wolfgang Kahle in 1957 regarding the painting in question stands in the way of restitution in this case. The Guidelines considers it grounds for exclusion of restitution if a former owner “reached a private settlement with the holder of the confiscated artwork after 1945 on the basis of the Allies’ restitution laws; such settlements allowed the artwork to remain in the possession of the holder if the holder paid compensation to the party entitled to restitution.” This implies the possibility of examining such agreements to determine whether, from today’s perspective, they can be granted an effect that excludes restitution. Thus, it is quite conceivable that one side entered into an unfavorable settlement only because it was still suffering from the continuing effects of National Socialist persecution.
    In the present case, too, there are indications that the settlement between the heirs of Robert Graetz and the heirs of Gertrud Kahle should not be taken into account in the assessment of an obligation to restitution. For example, the painting in dispute was – still under false attribution – part of the compensation proceedings that had been ongoing since 1948, but the settlement was reached outside of these compensation proceedings. It was, therefore, precisely not a settlement reached “on the basis of the Allies’ restitution laws” in the sense of the Guidelines. In addition, the children of Robert Graetz had difficulties with their application for compensation, among other reasons, because they were unable to prove their entitlement to inherit. This, in turn, was a direct consequence of the National Socialist persecution, under the pressure of which Robert Graetz had first transferred his assets to his second wife and then divorced her as a subterfuge. His children from his first marriage thus faced considerable problems in proving their continued legitimacy.
    As far as the settlement is concerned, however, it should be borne in mind that the donation to Gertrud Kahle, which had already been asserted at that time, could – to this day – neither be proven nor disproven. A lawsuit by the heirs of Robert Graetz against the heirs of Gertrud Kahle for the return of the painting would hardly have had any chance of success. The heirs of Gertrud Kahle, who for their part also belonged to the circle of those persecuted by the Nazis, cannot, however, be assumed to have acted immorally or even criminally, especially since the presumption rule of the Guidelines does not refer to events of the post-war period. Despite a legal situation that was favorable to them, the heirs of Gertrud Kahle agreed to a similar arrangement for “Gründe der Pietät” [“reasons of respect”] and waived 28.5 % of the purchase price achieved. This may also have been due to the fact that the purchase by the Schiller Theater was threatened with a delay due to the intervention of the heirs of Robert Graetz, which the heirs of Gertrud Kahle were keen to avoid. In this respect, the settlement was not only an expression of the legal situation at the time, but also followed an economically comprehensible logic. In the Commission’s view, there is, therefore, no reason to subject the settlement concluded at the time to an ethical and moral correction.
  • In its overall assessment, the Advisory Commission has therefore come to the conclusion that the painting is not to be restituted to the heirs of Robert Graetz. However, the commission attaches importance to the statement that the painting’s history is closely bound to the stories of three – if one adds the sitter, of four – families persecuted by the Nazis. The families of Alfred Kerr, Leo Nachtlicht, Robert Graetz and Gertrud Kahle were all victims of Nazi persecution. They were oppressed, robbed, deported, forced to flee or murdered. The Commission recommends that the Stiftung Stadtmuseum Berlin acknowledge this provenance in an appropriate manner in its future display of the Portrait of Alfred Kerr.
18. March 2021

Recommendation of the Advisory Commission in the case of the Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier, decided on 10 February 2021 in the case of the heirs of Kurt and Else Grawi versus Landeshauptstadt Düsseldorf, to recommend that the painting Füchse (Foxes) by Franz Marc be restituted to the heirs of Kurt and Else Grawi. The case was decided by a majority of six votes (with three votes against).

  1. This case concerns the painting Füchse (Foxes) (1913) by Franz Marc (1880–1916). The painting is oil on canvas, 79.5 x 66 cm. The painting entered the holdings of the Städtische Kunstsammlung Düsseldorf (Stiftung Museum Kunstpalast, inv. no. 0.1962.5490) in 1962 as a donation from Helmut Horten (1909–1987). Landeshauptstadt Düsseldorf is the body responsible for the Stiftung Museum Kunstpalast and is represented by the cultural department. The claimants are the heirs of Kurt and Else Grawi.

  1. Kurt (Denny) Grawi (1877–1944) was persecuted during the National Socialist era, both individually and collectively. Grawi had qualified as a banker and worked at Darmstädter und Nationalbank (Danat-Bank) as a broker with general powers to execute transactions until 1931. After the collapse of Danat-Bank and its merger with Dresdner Bank during the global economic crisis, Grawi lost his job and became an independent 2 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf entrepreneur. He acquired stakes in various companies and managed the Gesellschaft für den Bau medico-technischer Apparate m.b.H., based in Berlin. From 1933 onwards, Grawi and his family increasingly suffered as a result from the pressure of Nazi persecution. Grawi had married the widowed Else Breit, née Schultz (1894–1964), in August 1929. Else Grawi, who was not of Jewish descent, had two sons from her first marriage: Wolfgang and Peter. Because Else Grawi’s deceased first husband Erich Breit (1878–1925) had been of Jewish descent, the two sons were vilified and discriminated against as “Mischlinge 1. Grades” [first degree half-breeds]. Grawi’s younger sister, the actress Irma Neumann, was banned from her profession after 1933. Her resistance activities led to her arrest along with that of her husband on 22 July 1944— her husband was sentenced to three years’ imprisonment by the People’s Court, while Irma Neumann was deported to Auschwitz. She survived the Holocaust. Grawi’s elder sister, Dr. Erna Grawi, was deployed as a forced laborer in armaments factories from 1939; she died from the effects of this work in Berlin at the end of February 1943. Her sister Irma found the body which she secretly disposed of outdoors because she thought a proper burial would be too risky. Kurt Grawi was also subjected to extensive repressive measures. All his enterprises and shareholdings were forcibly dissolved or “Aryanized” after 1935. The family bought a residential building with six apartments in Berlin-Lankwitz in 1937. In order to protect the asset, Else Grawi acted as the buyer. The family used one apartment for themselves and rented out the others. After the Kristallnacht pogrom, Kurt Grawi was imprisoned in Sachsenhausen concentration camp for several weeks. At the end of April 1939, he emigrated via Belgium to Santiago de Chile, where he joined relatives of his wife’s deceased first husband on 4 June 1939. Grawi was only allowed to take 10 Reichsmark with him when he left Germany. He signed the rest of his assets over to his non-Jewish wife Else, who initially remained in Berlin with the two sons. Else Grawi sold the property in Berlin-Lankwitz in August 1939 so that she could emigrate to join her husband, and triggered the imposed compulsory levies: Jewish property tax, emigration tax and Golddiskontbank levy. In December 1939, she and her two sons left Germany and traveled via Italy to Chile, where the reunited family—now virtually penni-less—began to forge a new existence. Else Grawi proceeded to earn a living as a dressmaker. Kurt Grawi died from cancer on 5 September 1944.
  2. In information he provided to Alois J. Schardt who compiled the catalogue raisonné of Franz Marc’s works, Kurt Grawi stated that he had purchased the painting Füchse in 1928. The previous owner had been Max Leon Flemming (1881–1956), who had first offered the work for sale via Galerie Neumann-Nierendorf in 1927. The price Grawi paid is unknown; a sum of 3,000 US dollars was retrospectively indicated in 1939, although it is not known what exchange rate was applied. In May 1936, Grawi loaned Füchse to Galerie Nierendorf in Berlin for its large Franz Marc memorial exhibition.
    While in Brussels shortly before continuing his onward journey to Chile, Kurt Grawi wrote a letter on 30 April 1939 to Ernst (Ernest) Simon, who had been driven by persecution to emigrate in 1937. The letter says that Füchse had been left with a “mutual friend”, Dr. Paul Weill, for onward shipment to New York. Weill was staying in Paris at that time, with the aim of emigrating from there to Argentina. The painting was shipped from Le Havre to New York, where Simon was to sell it on behalf of Grawi “despite the unfavorable times”. Grawi further emphasized that, for himself and his family, “the result of the sale will provide the basis for our emigration”.
    On 9 August 1939—while Else Grawi was in Berlin preparing to leave Germany—Ernst Simon informed the Museum of Modern Art (MoMA) in New York that he had the painting Füchse in his possession and that the owner was a German refugee who urgently needed cash (“The owner of this painting is a German refugee who is trying to obtain some cash which he is in dire need.”). Grawi was said to have originally purchased the painting for 3,000 US dollars. By 6 November 1939, the painting had been taken to the museum to be viewed. On 2 January 1940, a purchase price of 800 US dollars was offered at the suggestion of the director Dr. Alfred Barr. Simon announced that he would consult the owner on the matter. Among the notes relating to the offer, there is a telegram from Montevideo dated 9 February 1940, addressed to Simon in which a limit of “1,250” is stated. The parties agree that this can be interpreted as a rejection of the offer and the setting of a minimum price by Grawi. Simon had the painting collected from MoMA by art dealer Curt Valentin, who had emigrated from Berlin to New York in 1937. Between 19 February and 27 September 1940, it was sold for an unknown price to the German-American film director William (Wilhelm) Dieterle and his wife Charlotte in Los Angeles by the art dealer Karl Nierendorf, who had likewise emigrated from Berlin to New York. In June 1961, the couple consigned the artwork to an auction held by Galerie Klipstein & Kornfeld in Berne. It was withdrawn from this auction and acquired by Helmut Horten for the purpose of donating it to a museum. Horten donated Füchse to the Städtische Kunstsammlung Düsseldorf in 1962.
  3. The parties are in agreement that Kurt Grawi was the owner of Füchse until at least February 1940 and that the painting had been sold in New York to William and Charlotte Dieterle by September 1940 at the latest via Karl Nierendorf in a transaction brokered by Ernst Simon.
  • The Landeshauptstadt Düsseldorf asserts that Kurt and Else Grawi had already managed to pay the imposed compulsory levies through the sale of the real estate asset and some of the furnishings. These sales, according to the current holders, would have generated more liquid funds than the amount that would have been permitted to be exchanged into foreign currency. Accordingly, Else Grawi even decided not to sell a box of silver cutlery worth approximately 4,000 Reichsmark before she left Germany and instead gave it to her mother for safekeeping. In addition, according to Landeshauptstadt Düsseldorf, it was possible to transport the painting Füchse to New York with substantial support from other émigrés who had also fled persecution, and sell it there. It was true that there was no evidence concerning the exact circumstances of the sale to William and Charlotte Dieterle which was conducted via Karl Nierendorf between February and September 1940, and in particular concerning the purchase price finally agreed or the transfer of this to Kurt Grawi by Ernst Simon. Nevertheless, the Landeshauptstadt Düsseldorf holds the view that the New York art market would have guaranteed a fair purchase price, and the seller is assumed to have been free to dispose of it. There was no evidence that the sale took place contrary to Grawi’s instructions or that he did not receive the purchase price. This assumption was also supported by the further connection between Else Grawi and Paul Weill, and also Paul Weill and Ernst Simon beyond 1945. The buyers of the painting, William and Charlotte Dieterle, were firmly committed to supporting émigrés and frequently did so successfully—for example, they had provided financial assistance to Alois J. Schardt and his family who emigrated to Los Angeles in fall 1939. There was therefore nothing to suggest that Kurt Grawi was disadvantaged in any way, especially since he was in a position to settle the terms of the sale himself, as demonstrated by the rejection of the offer from MoMA. Taking all known events into consideration, the transfer of ownership was not considered to be confiscation as a result of Nazi persecution, but a sale governed by civil law which took place outside the National Socialist sphere of influence.
  • The claimants, on the other hand, are of the view that the painting was sold solely out of necessity. Kurt Grawi had tried to avoid selling it for as long as possible and was eventually compelled to do so only because he had to emigrate as a result of persecution. As late as August 1937, he had refused to sell the painting to Josef Nierendorf and, at most, offered the prospect of parting with it in the event of a change of residence. As he himself wrote in his letter of April 1939, the proceeds of the sale would form the “basis for emigration”. He emphasized that it was not a favorable time for a sale. It is thus clear that, had there been no National Socialist rule, the sale would not have taken place— its sole purpose was to finance the Grawi family’s escape to South America. All persons involved in the sale were aware of the owner's plight, meaning that his negotiating position was weakened. Furthermore, the exact circumstances of the sale are not known. It has not been established what price was achieved or whether Grawi even received this. Taking all of these factors together, confiscation as a result of Nazi persecution therefore must be assumed.
  1. The Advisory Commission believes that the painting Füchse by Franz Marc should be restituted to the claimants, even though the sale took place outside the National Socialist sphere of influence. The sale in 1940 in New York was the direct consequence of imprisonment in a concentration camp and subsequent emigration, and was so closely connected with Nazi persecution that the location of the event becomes secondary in comparison.
  • It is immaterial that a fair price was probably paid for the painting. The Guidelines for implementing the Statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property of December 1999 (New edition 2019) (hereinafter: Guidelines) declare the “objective market value” to be the decisive criterion in this regard, i.e. the market value “the object would have had at the time of sale had the seller not been subject to persecution”. According to this definition, a fair purchase price would generally be assumed outside the National Socialist sphere of influence because—in purely formal terms—there were al-ways buyers who were not subject to Nazi persecution. However, this conclusion is subject to constraints. The assumption that, on the market outside the National Socialist sphere of influence, participants were fundamentally free and equal between 1933 and 1945 may also be disrupted by long-distance effects of political persecution. The Landeshauptstadt Düsseldorf has also stated that the persons involved 6 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf were aware of the persecution-related constraints under which Grawi acted. In his letter to MoMA dated August 9, 1939, Simon, the intermediary used by Grawi, explicitly referred to the predicament: “The owner of this painting is a German refugee who is trying to obtain some cash which he is in dire need.” The museum’s own note “Any offer which the Museum cares to make would apparently be considered” can certainly be read in the sense that the museum was aware of its negotiating position.
    The painting was not purchased by the museum in the end, presumably because a minimum price of 1,250 US dollars was stipulated via a telegram from Montevideo. The purchase price that Grawi ultimately achieved is unknown. The failure of negotiations with MoMA suggests that Grawi was not compelled to accept any offer. The Landeshauptstadt Düsseldorf has cited a number of factors to indicate that Grawi’s situation was not exploitted by the persons involved. In particular, William Dieterle was well known for supporting immigrants from Germany in honorable ways, so it was not expected that he took advantage of Grawi. In addition, according to the submission from the Landeshauptstadt Düsseldorf, it could be assumed that Grawi was just as involved in the negotiations between Simon, Nierendorf and Dieterle as he was previously in those between Simon and MoMA. Therefore the agreed price would not have deviated significantly from Grawi’s expectations. As the Landeshauptstadt Düsseldorf has stated, the assumption that this was an achievable market price in the United States at that time and thus a fair purchase price in line with the Guidelines was not implausible.
  • Also irrelevant to the decision is the assumption that the purchase price was transferred to Kurt Grawi. It should be noted that the free right of disposal according to Militärregierungsgesetz Nr. 59 did not have to be proven with the same unconditionality by the buyer as that stipulated by the Guidelines for their legal successors. For foreign sales by émigré owners in particular, the burden of proof should not be excessive. The Landeshauptstadt Düsseldorf has presented several indicators which suggest that payment of the purchase price as directed was the probable course of events. Payments from Dieterle to Nierendorf can be proven to have been made for this period, but cannot be attributed to individual paintings. It cannot be assumed that Nierendorf or Simon withheld the purchase price; there is also no evidence of any technical problems that may have prevented the money being transferred from New York to Kurt Grawi in Santiago de Chile. More evidence cannot be expected from the Landeshauptstadt Düsseldorf.
    If the purchase price was transferred to Grawi, he was also free to dispose of it. The criterion of free disposal was defined primarily in legal terms during the period in which the Allied restitution laws were in force. It referred to conditions which, on racist 7 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf or ideological grounds, restricted the rights of individuals to freely dispose of their own assets, such as the obligation to pay into a blocked account. Purely economic constraints or restrictions that were not directly ideologically based did not militate against free disposability, however. That is why there was no clear consensus even on the emigration tax as a relevant restriction of free disposability, despite its undeniable discriminatory impact, because it existed prior to 30 January 1933 and therefore was not an instrument of Nazi persecution. The same also applies to foreign exchange regulations.
    This definition appears too narrow from today’s perspective. Even though the emigration tax or foreign exchange limits may have applied to everybody in the same way, victims persecuted under the Nazi regime were overwhelmingly affected by them after 1933. To regard economic and legal constraints not as restrictions of free disposability solely because they were the consequence of merely de facto discrimination but not of normative discrimination, is not convincing in light of a clearly discriminatory legal reality. Nevertheless, there cannot be an exclusion of free disposability in every restriction of economic usability. In the case of Grawi, the proceeds from the sale were not used to pay emigration taxes or other compulsory levies. Though Grawi himself was reliant on external support from Brussels onwards, his family's emigration was financed by other means. According to the criteria in the Guidelines, he would therefore have been free to dispose of the purchase price.
  • The two further criteria for checking whether property was seized as the result of Nazi persecution, which are mentioned in the Guidelines for sales from 15 September 1935 onwards, are clearly tailored to sales within Germany. This is due to the fact that, historically, the Guidelines were developed from Allied military legislation, which aimed to rectify the unlawful movements of assets that had taken place within the Nazi sphere of influence. The “transfer of assets abroad” cited therein as an example, which enables a present-day owner to rebut the presumption of seizure, therefore also applies in cases involving the transfer of proceeds to safety abroad following a sale in Germany. The opposite scenario—which also applies to the current case— in which the cultural property itself had already been taken abroad prior to its sale and the price was paid in full there, is not dealt with in the Guidelines. However, this does not mean that property in such situations would not be suitable for restitution. The assumption of a loss as the result of Nazi persecution does not formally relate to the domain of National Socialism, but to the pressure of persecution manifested in this domain.
    However, this pressure of persecution did not necessarily diminish as soon as a victim of persecution left the borders of the German Reich behind. 8 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf In this respect, though, the Guidelines are limited to the severability clause that even if an item changed hands outside the National Socialist sphere of influence, it “still cannot be ruled out” that it changed hands as a result of Nazi persecution. But the Guidelines do not mention any further indicators of when confiscation as the result of persecution can be assumed outside the National Socialist sphere of influence in an individual case. However, there is no apparent reason for applying the tighter criteria of the Guidelines and taking into account emigration tax and other compulsory levies in a case where property was sold in a forced sale shortly before emigration, while declaring the direct consequences of the deprivation of rights in Germany to be irrelevant in a case where property was sold after emigration. Just because an immediate danger to life was averted does not mean economic, political or legal opportunities were restored at the same time, especially if the escape abroad was preceded by imprisonment in a concentration camp and the seizure of virtually all assets.weil die unmittelbare Lebensgefahr gebannt war, waren nicht zugleich die wirtschaftlichen, politischen oder juristischen Möglichkeiten wiederhergestellt, gerade wenn der Flucht eine Inhaftierung im Konzentrationslager und die praktisch vollständige Entwendung des Vermögens vorausging.
  • In view of the above, the Commission concluded that Kurt Grawi’s sale of the painting Füchse is considered to have occurred as the result of Nazi persecution, even though the sale was completed outside the National Socialist sphere of influence and, in the light of information currently available, the payment of a fair price and the opportunity for free disposal are plausible. The sale was a direct consequence of the forced emigration. The decision to sell and the arrangements for the sale directly resulted from National Socialist repression. All in all, there was such a close connection between persecution, escape and sale that the impact of the first continues to have an effect in the last.
    Kurt Grawi did not plan to sell the painting. For the period prior to 30 January 1933, there is no evidence of any intention to sell. The question can be left open as to whether the letter mentioned by the claimants from Josef to Karl Nierendorf dated 30 August 1937, actually related to Franz Marc’s Füchse. It refers in general terms to a painting Grawi intended to sell should the need arise if he had to move, but does not describe it in detail. A few weeks after this letter, the Grawi family put some of their furniture up for auction because they had moved into a much smaller apartment at the start of the year. However, the family did not take this as an opportunity to part with the painting Füchse. Grawi decided to sell the painting only when he was forced to leave Germany.
    After his imprisonment in a concentration camp, Grawi had to give up his place of residence at very short notice. No direct order to leave Germany is documented on file, but at the same time it is highly likely one was issued. Just four months after being 9 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf released from the concentration camp, Grawi found himself practically destitute in Brussels. A return to Germany was not possible. His efforts to sell the painting Füchse were directly linked to his expulsion from Germany and his attempt to build a new life abroad. Grawi himself took the painting abroad, probably at great personal risk. The first record of an intention to sell the artwork can be dated to 30 April 1939, when Grawi, then still in Brussels, informed Ernst Simon in New York that he planned to ship the painting there, expressing his hope of obtaining a “basis for our emigration [...] despite the unfavorable times”. Else Grawi and her two sons were still in Germany at that point. The emigration tax was not set until October 1939. Grawi himself had no more funds and was reliant on assistance from friends even for his onward journey from Brussels. Whether the Grawis still owned assets in Germany is of no importance because there was no prospect of being able to access these assets in the foreseeable future.
    The fact that the sale was eventually completed a good year after Grawi left Germany does not take away the direct connection between this event and Grawi’s escape. Such transactions often take a long period of time, even under normal circumstances. At the same time, the suffering associated with the escape did not only begin on the day of departure from Germany and end on the day of arrival abroad. Else Grawi and the children were not able to travel to Chile until December 1939. The family has vividly described the difficulties facing the Grawis as they made a new start in Chile. Along the way, Grawi continued his efforts to sell the painting on terms that would enable the family to begin a new life in Chile. Had this been possible without selling the painting, he would have had the option of canceling the sale at any time.
    There is no question that the Dieterles supported émigrés and persecuted victims of the Nazi regime in honorable and exemplary ways. It is not known to what extent Grawi was able to benefit from this. However, honorable intentions on the part of the buyer do not diminish the fact that the sale was necessitated by Grawi’s emigration. The Guidelines—like Militärregierungsgesetz Nr. 59—assume a regular causality between persecution and loss, the disruption of which is the exception requiring proof. Therefore the critical factors are the situation and motives of the seller at that time, not the ethos and intentions of the buyer. Thus it is of no relevance whether William and Charlotte Dieterle perhaps only bought the painting in order to help Grawi start a new life in exile. In particular, there is nothing to indicate the protection of Grawi’s property interests here—irrespective of the question whether this can be taken into account anyway as an exonerating factor in the case of a sale abroad. For this, a commitment would be expected that goes beyond what a contract partner of average loyalty would have done in this situation, while behavior merely in accordance with the contract is not sufficient. The fact 10 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf that the sale probably led to a result that was presumably in line with market conditions at the time and perhaps not as bad as Grawi had feared, is therefore not protecting Grawi’s property interests “in an unusual manner and with substantial success”.
  • The Landeshauptstadt Düsseldorf has repeatedly stated that, in the event of a sale in Germany under the same conditions, it obviously would have restituted the painting. That it has not adopted the same approach towards initiating a return in the event of this sale which has now been proven to have happened abroad is evidently due to the fact that the Guidelines, as discussed, do not offer any useful criteria for such situations.
    It is regrettable that more than 20 years after the Washington Conference, it has not been possible to come to conclusions in this respect which are valid beyond the individual case. However, in accordance with the general principles, the Commission has decided to recommend that the Landeshauptstadt Düsseldorf restitute the painting to the heirs of Kurt and Else Grawi.
08. February 2021

Recommendation of the Advisory Commission in the case of the heirs of Heinrich Rieger v. Stadt Köln

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier, decided unanimously on 29 September 2020 in the case of the heirs of Heinrich Rieger versus Stadt Köln, to recommend that the watercolor Kauernder weiblicher Akt [Crouching Nude Girl] by Egon Schiele be restituted to the heirs of Heinrich Rieger. The Commission had given the Stadt Köln until 31 December 2020, to submit facts proving that the work of art was relinquished voluntarily before March 1938. The Stadt Köln was unable to provide any such facts.

  1. The heirs of Heinrich Rieger bring forth a claim to the watercolor Kauernder weiblicher Akt by Egon Schiele dated 1917. The work in question is a watercolor on paper measuring 45.5 x 29.5 cm, and is signed and dated. The back of the sheet is stamped “Medizinalrat Dr. H. Rieger WIEN VII Mariahilferstr. 124”. The work was acquired in 1966 by the “Freunde des Wallraf-Richartz-Museum” for the Stadt Köln. Today it is part of the Museum Ludwig’s collection in Cologne and has the inventory no. ML/Z 1966/019.
    Both sides have approached the Advisory Commission, though with different requests: The heirs of Heinrich Rieger are asking for a resolution by the Commission. The Stadt Köln is asking that further research be assigned to the academics previously involved in the case before a resolution is taken.
  2. Dr. Heinrich Rieger (1868–1942) was a dentist in Vienna and a major collector of contemporary art. He was personally acquainted with a number of artists and often treated them in exchange for works of art. In addition, he invested “his entire income” in paintings (F.J.W.: Bilder als Honorar, in: CibaZeitschrift. Vom Honorar des Arztes. 1/6, 1934, P. 198 f.). At the beginning of Nazi rule in Austria, the collection contained about 800 pieces. Dr. Heinrich Rieger received praise in several articles in the contemporary press that rated his collection as superior to those of public institutions.
    For Heinrich Rieger, the artist Egon Schiele (1890–1918) was the “main focus of the collection” (Austrian Art Restitution Advisory Board, Resolution of 25 November 2004); his works constituted the core of the collection. Rieger had a special room reserved for these pieces, “where the largest collection of Egon Schiele’s drawings […] anywhere is being kept” (Ludwig W. Abels: Wiener Sammlungen moderner Kunst, in: Neues Wiener Journal 34, 1926, No. 11,874, P. 17). Particularly the quality of the invaluable Schiele drawings is highlighted in articles about the collection (see for instance Anonymous: Sammlungen des Ober-Medizinalrates Dr. Heinrich Rieger und Dr. Alfred Spitzer. From the exhibit at the Künstlerhaus, Vienna, in: Österreichische Kunst. Monatshefte für bildende Kunst, Year 6, Vol. 12, December 1935, P. 12 f.). Today, the collection would undoubtedly be worth a fortune just for the Schiele pieces alone.
    From the time of Austria’s annexation to the German Reich on 13 March 1938 at the latest, Rieger was persecuted as a Jew, disowned, and finally murdered in Theresienstadt concentration camp. His entire family was persecuted. His wife Berta was deported from Theresienstadt to Auschwitz on 16 May 1944 and probably murdered in the gas chambers upon arrival; she was declared dead in 1948. Their son Dr. Robert Rieger was able to escape to New York via Paris with his family in August 1938. Heinrich Rieger lost the momentous art collection as a consequence of Nazi persecution—through emergency sales and acts of “aryanization”. These losses due to persecution are documented, for instance, in letters from Berta Rieger to her son. Berta Rieger wrote on 11 September 1939: “The one terrible thing is that we have to sell almost all of our things at cutthroat prices. We are taking only the bare necessities for one room. And everything has to be done by October 15 […]”. On 6 March 1941 she wrote: “Liquidating the last of our pictures is a great deal of work […]”. An employee of Würthle Gallery in Vienna, which was "aryanized" in April 1938, testified in court in 1949 that Heinrich Rieger brought his collection to the gallery to be sold on commission immediately after the Nazis took power. The collection stayed at the gallery for at least a year. Its "Aryanizer" Friedrich Welz himself acquired several pieces of the collection in 1939 or 1940. By March 1941 at the latest, Luigi Kasimir, the "Aryanizer" of the Vienna gallery Gall und Goldmann, acquired the lion’s share of the Rieger collection. Heinrich Rieger’s blocked account was credited with 14,400 Reichsmark on 21 March 1941. The further history of a large part of the collection during the Nazi era is evidently still unclear, even though some sales or transfers are documented.
    In 1947, Robert Rieger reported the loss of works from his father’s collection to the Austrian Bundesdenkmalamt. This report included the collection of Schiele drawings, which he stated to have encompassed 130 to 150 pieces. Individual pieces have been restituted to Robert Rieger, though their numbers and work identities are unclear.
  3. It is not contested that the watercolor Kauernder weiblicher Akt by Egon Schiele was the property of Heinrich Rieger. This is proven by the collector’s stamp on the back of the piece: “Medizinalrat Dr. H. Rieger WIEN VII Mariahilferstr. 124”. There is no documentation of how long it was in his possession.
    In 1965, it was the property of Walter Geyerhahn, who sold it through the Vienna art dealer Christian M. Nebehay to the Swiss art dealer Marianne Feilchenfeldt. Feilchenfeldt established a sales contract with the “Freunde des Wallraf-Richartz-Museum” in Cologne on 23 April 1966, in the amount of 18,000 Deutsche Mark, giving the provenance information “Collection: Dr. H. Rieger, Vienna” and “W. Geyerhahn”. The asset was taken over by the Stadt Köln, who thus claims ownership. Since 1976, the watercolor has been managed by the Museum Ludwig in Cologne, where it was transferred by the Wallraf-Richartz Museum.
    The point of contention between the parties is when Heinrich Rieger parted with the watercolor, and whether he sold it voluntarily or whether it was lost due to Nazi persecution. The key question is whether the piece was sold prior to the annexation in March 1938. A sales contract or documentation of the sale does not exist (any longer).The following are discussed below:
    a) Notarial deed of 1921
    b) Size of the collection in 1928 and 1939
    c) Disposal of six Schiele works prior to March 1938
    d) Dr. Robert Rieger’s restitution request of 1947
    e) Recommendation of the Austrian Art Restitution Advisory Board in 2011
    f) Geyerhahn family provenance
    g) Further research
  • On 29 July 1921, Heinrich Rieger signed a notarial deed obliging him to make his art collection accessible to the Austrian Staatsdenkmalamt under specific conditions, and to report any relevant changes to the location of works. It is not contested that such a report of a change in location does not exist.
    The Stadt Köln does not consider this proof that the watercolor in question was not sold prior to the annexation because there was no contractual sales commitment prior to the notarial deed—i.e. prior to 1921. They also add that the contractual commitment ended on 6 August 1930 and that on several occasions during the contract period, Rieger provided works on loan for exhibitions without reporting it as agreed. In addition, the Stadt Köln refers to a letter by Heinrich Rieger to the Staatsdenkmalamt dated 12 June 1925. In it, he asked that changes to complete his collection be permitted, such as trading works by artists who were already well represented against works by artists who were not yet included in the collection. In the letter, he listed 14 artists already represented in his collection, among them Schiele. He undertook to report such trades to the Staatsdenkmalamt as well. Nothing is known about any such report or about any reaction by the Staatsdenkmalamt to Rieger’s request.
    In the Commission’s view, the very fact that Heinrich Rieger established the notarial deed speaks for his intention to maintain the collection for years to come. The notarial deed was part of a tax exemption and obliged Rieger to make the collection accessible and maintain it. The goal of the notarial deed was not to exclude the public; on the contrary, it was intended to provide public access to private property. The deed did not—contrary to what the Stadt Köln puts forth—restrict the lending of works for exhibition purposes. Rather, it obliged Rieger to report to the Denkmalamt only if the loan “could complicate or hinder the viewing”. If Rieger loaned works for exhibition purposes, this did not complicate viewing, but actually made it easier compared to viewing the works in his residence (where viewing was limited to twelve dates per year). This assessment is not affected by Heinrich Rieger’s request from 1925 for permission to make changes to the collection by, for instance, trading pieces. No such report is known. In light of the 14 listed artists and the significance of the Schiele pieces for Heinrich Rieger, it is considered rather unlikely that he would have disposed of this part of his collection to an appreciable extent.
  • The Stadt Köln argues that Heinrich Rieger, in a letter to the Tel Aviv Art Museum dated 28 May 1939, mentions a collection of 70 drawings and watercolors by Schiele, while in 1928 the collection encompassed 150 pieces, so that 80 Schiele drawings must have been disposed of between 1928 and 1939. The Stadt Köln therefore considers it equally likely that piece was sold before or after the annexation on 13 March 1938.
    The Commission is not convinced by this line of reasoning. There does not appear to be an exact list of the Schiele works in the collection. Heinrich Rieger always refers to the works in lots (Notarial deed of 1921: 50 drawings; list from 1928: 150 drawings and 3 oil paintings, list from November 1938: about 80 drawings and 1 Schiele folder). Later research cites between 120 and 150 sheets. In 2011, the Austrian Art Restitution Advisory Board assumed that there were still 130 to 150 drawings by Schiele in Heinrich Rieger’s possession in 1938 (resolution of 9 June 2011). If Heinrich Rieger mentions 70 drawings and watercolors by Schiele in his letter to the Tel Aviv Art Museum on 28 May 1939, while in 1928 that number was 150 pieces, it leads one to believe that 80 Schiele pieces must have been disposed of between 1928 and 1939. However, these dates and numbers do not provide any indication of how many of the sales were conducted before or after the annexation, nor on whether or not the watercolor in question was among the sales prior to that event. However, the sources make it appear very likely that any sales that did occur were mainly due to the pressure of Nazi persecution starting in March 1938.
  • In its letter from 26 August 2020, the Stadt Köln cites six earlier and therefore not Nazi persecution-related disposals of Schiele works from the Rieger collection in order to prove that the Schiele portion of the collection prior to 1938 should be considered more “dynamic” than has been previously assumed and is claimed by the heirs of Heinrich Rieger.
    After four years of research, the intensity of which cannot be called into question, the Commission feels that the sum of six Schiele pieces voluntarily sold prior to March 1938 is, in light of a collection size of 130 to 150 works (March 1938) according to the current state of research, too small to indicate that the Schiele portion of the Rieger collection was “dynamic”, or that an appreciable number of pieces were sold unrelated to persecution. Between 1923 and 1935, Rieger provided Schiele works on loan to exhibits. As shown by exhibit catalogs and accompanying letters from 1923, 1928 and 1935, the loaned pieces were not for sale. In addition, it must be noted that at least three of the disposals listed by the Stadt Köln did not serve a commercial purpose. The fact that Rieger gave Hilde Ziegler the portrait of herself, which she had not been able to buy herself because of Schiele’s premature death, was a humane, generous gesture and does not constitute suitable evidence that Rieger was generally selling Schiele pieces. The same applies to the transfer of the drawing Lesbisches Paar [Lesbian Couple] to the sister of the deceased artist and to the trade of a drawing against a piece by his patient, the artist Lisel Salzer. Finally, in the Commission’s view, the sales of two pieces to the famous Vienna-based film director Josef von Sternberg also do not indicate that Rieger was regularly selling Schiele’s works.
  • In 1947, Robert Rieger searched for his father’s collection with the help of his attorneys Oskar Müller and Christian Broda in order to effect restitutions. This is evidenced by his loss report to the Austrian Staatsdenkmalamt of 17 May 1947. The enclosed list names in summary “130–150 drawings (whereabouts unknown)” by Schiele. A second list submitted during the same year is somewhat more detailed, but also summarizes large numbers of drawings without naming individual works. In the first loss report, Broda mentions “140 reproductions of drawings by Egon Schiele”, which he had acquired in order to find the works. Between 1948 and 1955, photos were taken based on these reproductions depicting Schiele drawings from the Rieger collection. 54 of these pictures are preserved as negatives. One of them shows Schiele’s Kauernder weiblicher Akt.
    To the heirs of Heinrich Rieger, the loss report in combination with the negative of a photo of a reproduction of the watercolor Kauernder weiblicher Akt proves that Robert Rieger and his attorneys were searching for the watercolor in 1947. They state that the negative was taken “around 1947”, and shows a reproduction of the drawing, not the original.
    The Stadt Köln asserts that Robert Rieger’s knowledge of the collection after August 1938—the time of his emigration to New York—was incomplete. He had therefore mistakenly assumed in 1947 that the Schiele collection had still been in the possession of Heinrich Rieger in 1942, immediately before his deportation to Theresienstadt. The Stadt Köln also points out that the search lists of 1947, which do not include the watercolor in question, were based on older lists from the 1930s. Thus they also document “the status of the collection prior to 13 March 1938”. The same applies to the 140 reproductions Robert Rieger’s attorneys used to search for the lost works in 1947. The fact that Heinrich or Robert Rieger “had a large number of Schiele drawings photographed at great effort and expense during times of persecution” seems “hardly plausible” to the city. The reproductions used for the search are thus likely to be older. The Stadt Köln further names “at least 31 Schiele drawings” that Robert Rieger, after his escape to New York, offered to local art dealer Otto Kallir for sale. The enclosed documents do not specify which works these were. Twelve—also unidentified—Schiele drawings were sold by 1944. In the view of the Stadt Köln, Robert Rieger’s possession of these drawings in exile suggests that this “new knowledge […] should prompt an overall re-evaluation of the fate of a portion of the Schiele drawings from Dr. Heinrich Rieger’s collection”.
    It cannot be proven that the watercolor in question was among the 130 to 150 Schiele drawings Robert Rieger searched for in 1947. However, it is quite safe to assume that it was, since the watercolor is shown on a negative of a photo which, as the Stadt Köln agrees, is likely part of the collection of reproductions used for the search in 1947. The parties agree that Robert Rieger knew his father’s collection very well. In August 1938, he emigrated from Austria to New York and demonstrably offered to sell 31 Schiele drawings to art dealer Otto Kallir, who had also emigrated. It is safe to assume that he took these drawings from his father’s collection into exile with him. The Commission believes that this supports the assumption of his excellent knowledge of the collection in August 1938 rather than contradicting it. It can be assumed that Robert Rieger was not fully informed about the collection’s further developments until his parents were deported to Theresienstadt. Due to his being in exile, he was probably not able to realistically estimate the size of the collection in 1942. It seems plausible that he is mistaken, as the Stadt Köln claims, when he mentions that his father was still in possession of the entire Schiele collection in 1942. However, any incomplete knowledge of the status of the collection in 1942 does not change the fact that Robert Rieger must have known the collection very well until August 1938. This is the only knowledge under discussion here. The fact that Robert Rieger was searching for 130 to 150 Schiele drawings in 1947 with the help of lists based on old compilations from the early to middle 1930s, and with the help of around 140 reproductions, which were possibly older as well, does not provide any indication that he was not informed about the scope of the collection as it was in March 1938. In 1947, he was clearly assuming that the collection had been rather static until March 1938, meaning that older lists and reproductions were suitable to aid with his search.
  • In a recommendation from 2011 cited by the Stadt Köln, the Austrian Art Restitution Advisory Board resolves against the restitution of the Schiele drawing Sich Aufstützende in Unterwäsche [Woman in Underwear] from Heinrich Rieger’s collection. For one, the Art Restitution Advisory Board states, there is no “definite conclusion” on who possessed the work under dispute after March 1938. For another, it cannot be “definitively determined whether the efforts of Dr. Robert Rieger (during the post-war era) to find his father’s collection of Schiele drawings, among them possibly the work in question, were successful” (Austrian Art Restitution Advisory Board, resolution of 9 June 2011). The Stadt Köln feels the case is comparable, but does not appear to suggest that the drawing Kauernder weiblicher Akt could also have come into Robert Rieger’s possession after 1945 as a result of his search.
    The Commission does not feel that this case is comparable to the current case. The Austrian Art Restitution Advisory Board emphasizes “that Dr. Heinrich Rieger probably possessed a large and mostly complete collection of Schiele drawings even at the time of persecution”. However, this does not permit any “definitive conclusions about the individual fate” of the drawing in question. Such a definitive conclusion, according to the rules of the Guidelines for implementing the Statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property, of December 1999 (New edition 2019) (hereinafter: Guidelines) is not actually necessary. Rather, a coherent description of a typical course of events is sufficient. The fact that the Schiele collection remained complete until March 1938 is therefore sufficient reason to assume, according to the Guidelines, that this typically was also the case for the work under dispute. As far as the situation after 1945 is concerned, it must be assumed that the watercolor Kauernder weiblicher Akt did not come into the possession of Robert Rieger after the end of the Nazi regime. The argumentation of the Stadt Köln also merely suggests that it must be clarified how likely it is that Heinrich Rieger disposed of the watercolor before March 1938, or after that date and as a result of persecution, and does not mention any possible restitution or successful search after 1945.
  • The fact that Walter Geyerhahn owned the watercolor in 1965 is not disputed. It is evidenced by a bill of sale issued by the Feilchenfeldt gallery and by a journal entry by intermediary art dealer Nebehay.
    However, there is disagreement about whether and when the work came into the possession of Walter’s father, Norbert Geyerhahn. The Stadt Köln assumes that Walter Geyerhahn inherited the watercolor from his father Norbert. The Jewish merchant Norbert Geyerhahn emigrated to Brazil in July 1938 to flee from the Nazis, and took the watercolor with him. This assumption is based on an e-mail from the grandson of Norbert Geyerhahn, Norberto Geyerhahn, dated 3 February 2017, in which the grandson states that his grandfather took 23 works by Schiele with him when he fled, which he had bought from the artist himself. From this, the Stadt Köln concludes that the drawing Kauernder weiblicher Akt was among them. For the Stadt Köln, the only remaining question is whether Norbert Geyerhahn acquired the watercolor before or after the annexation on 13 March 1938.
    The heirs of Heinrich Rieger doubt the oral record of the Geyerhahn family because of factual errors regarding the acquisition. Norbert Geyerhahn, they state, demonstrably did not buy the Kauernder weiblicher Akt directly from the artist; the work was indisputably part of the Rieger collection. The heirs of Heinrich Rieger point out that Walter Geyerhahn—as an art dealer—could have bought the watercolor on the art market after 1945.
    It is not disputed that Walter Geyerhahn owned the watercolor in 1965, as he sold it that year. However, it is questionable whether that specific piece was part of a set of 23 Schiele works that his father Norbert, as the family remembers, brought with him when he emigrated to Brazil in 1938. The e-mail correspondence provided by the Stadt Köln does not show any reference to the Kauernder weiblicher Akt. Rather, the grandson Norberto writes that he has no knowledge (“no data”) about the 23 Schiele works his father Walter mentions. His statement that these 23 Schiele works were bought by his grandfather Norbert Geyerhahn directly from the artist and sold by his father Walter in the early 1950s does not correspond with the facts known about the Kauernder weiblicher Akt. The Commission feels that based on these sources, it cannot be stated with certainty whether Norbert Geyerhahn ever owned the watercolor and when it came to be in the possession of his son, Walter.
  • In its appeal to the Advisory Commission, the Stadt Köln asks for a recommendation to conduct further basic research. The Stadt Köln hopes that an examination of previously inaccessible archives—such as that of the art dealer Jane Kallir—will yield further insights that could contribute to reaching a just and fair solution to the case at hand.
    The Commission feels that such further research is not likely to yield any appreciable new results regarding the provenance of the watercolor under dispute. In light of the total size of the collection and the mostly unspecific titles of the individual drawings, it must be assumed that it will not be possible to clarify the provenance of larger groups of works. The Commission thus considers a recommendation to conduct basic research into the collection of Heinrich Rieger to be a disproportionate delay of the decision. The fact that the Stadt Köln has only proven six disposals of Schiele works from the collection prior to March 1938 after four years of research, contributes to the assessment. In light of these results, the Commission feels it is unlikely that within a period of time acceptable to the heirs, further research could reveal enough information about disposals prior to March 1938 that would make it more likely that the watercolor under dispute was not sold due to Nazi persecution. The years of research already conducted would have had to uncover some considerable trace evidence of such disposals. This was not the case.
  1. As a rule, it is up to the applicant to prove their right of ownership of the masterpiece under dispute at the time of persecution. The heirs of Heinrich Rieger have fulfilled this requirement as far as is possible and can be expected. Point 4 of the Washington Principles recognizes that gaps in the histories of pieces are unavoidable. For this reason, each party can satisfy their burden of proof with so-called prima facie evidence. This "depends on the existence of undisputed/proven facts and historical information indicating that a certain course of events was typical in such cases” (Guidelines, P. 34). "The opposing party can cast doubt on prima facie evidence by providing evidence indicating the serious possibility (and not merely asserting) that the course of events was not typical” (ibid.).
    In the case at hand, the Commission felt that the typical course of events would have been that the Rieger collection, at least with regard to the works by Egon Schiele, remained largely static until March 1938. To the extent of current knowledge, disposals of Schiele works were proven in only a few isolated cases before 13 March 1938. According to current knowledge, Heinrich Rieger lost nearly his entire collection due to persecution in emergency sales or through acts of aryanization. It would therefore be up to the Stadt Köln to prove that the watercolor in question here met with an atypical fate, in other words, that is was most probably not among the works lost due to persecution. The Stadt Köln has not provided any such proof. It has collected several indicators that Heinrich Rieger could have disposed of the work before the start of the Nazi regime in Austria. However, taking all this into consideration, it is the Commission’s opinion that it is still much more likely that the piece was sold or lost due to persecution after 13 March 1938, than that it was relinquished voluntarily at an earlier date.
    Admittedly, the Stadt Köln received some information from the previously inaccessible archive of Jane Kallir (Galerie St. Etienne) just prior to the hearing. In the interest of a just and fair solution, the Advisory Commission had thus given the Stadt Köln a period of three months to follow up on this lead and provide facts that prove the voluntary disposal of this particular watercolor before March 1938. The Stadt Köln, however, was not able to gather any relevant findings during that time. The Commission thus considers it a proven fact that Heinrich Rieger was in possession of the work of art under dispute on 13 March 1938, and considers the assumption of loss due to Nazi persecution as not disproved. The Commission thus recommends that the piece under dispute be restituted.
02. February 2021

Recommendation of the Advisory Commission in the case of the heirs of Max Fischer v. Land Baden-Württemberg

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier, decided unanimously on 10 December 2020 in the case of the heirs of Max Fischer versus Land Baden-Württemberg, to recommend that the painting Geschwister [Siblings] by Erich Heckel be restituted to the heirs of Max Fischer.

  1. This case concerns the painting Geschwister [Siblings] by Erich Heckel (1883–1970). The work is an oil painting on canvas, 76.2 x 64.6 cm, depicting Milda Frieda Heckel, née Georgi (1891–1982), also known as Siddi, with her younger brother. On the basis of inscriptions by Heckel recto and verso, the painting was originally dated to 1911. It was not until 1968 that the date of its creation was corrected by the artist to 1913 at the suggestion of Dr. Johann Eckart von Borries, an employee of the Staatliche Kunsthalle Karlsruhe. The painting was acquired by the Staatliche Kunsthalle Karlsruhe (SKK 2576) in 1967 as a donation from Erich Heckel himself.
    The Land Baden-Württemberg is the body responsible for the Staatliche Kunsthalle Karlsruhe and is represented by the Ministerium für Wissenschaft, Forschung und Kunst Baden-Württemberg. The claimants in the case are the heirs of Max Fischer: Eva Marx (née Fischer) and George Fischer, or rather his widow Marylou M. Fischer.

  1. It is undisputed that Dr. Max Fischer (1893–1954) was persecuted during the National Socialist era, both individually and collectively. Fischer was the son of Ludwig Fischer (1860–1922) and Rosy Fischer, née Rosa Bertha Haas (1869–1926), a couple who had lived in Frankfurt am Main since 1899. Fischer, who held a doctorate in history, worked as a journalist and foreign correspondent for various newspapers and journals, and also for radio broadcasts. When the National Socialists came to power on 30 January 1933, Fischer’s working circumstances changed as a result of his Jewish origins. The Deutsche Allgemeine Zeitung did not extend his contract, lectures that had already been confirmed were canceled, and he was excluded from the German editors’ organization and the Berlin press association. According to his application for compensation for "Schaden im beruflichen Fortkommen“ [damage to professional advancement] of July 1952, he suffered significant financial losses: His annual income in 1932 had been approximately 20,000 Reichsmark , but this had dropped to approximately 5,500 Reichsmark in 1933. In 1934 he made around 1,000 Reichsmark from freelance work as a writer, while in 1935 his earnings from these activities were only around 500 Reichsmark .
    Max Fischer’s living arrangements also changed after January 1933. While he was still resident at Waldemarstraße 54 in Berlin-Schlachtensee at the start of the year, by October 1934 he was living with Charlotte Wanzke (1904–1989) at Roscherstraße 17 in Berlin-Charlottenburg. Max Fischer left Berlin on 20 October 1935 and four days later boarded a ship in Hamburg. He sailed to New York on a tourist visa, arriving on 1 November 1935. He brought with him hotel vouchers for a week, 24 US dollar and very little luggage. As far as is known, he left his other possessions in the safekeeping of Charlotte Wanzke in Berlin, probably in an apartment at Ansbacher Straße 38 in Berlin-Schöneberg, where Wanzke resided from at least 1937 until 1944. Max Fischer was also officially registered at this address as of 1 April 1936, but both parties assume that he never set foot in the apartment. As from 1936, he sought to obtain permanent resident status in the United States and for this reason left the country for Canada. From there, he was able to emigrate to the United States on 8 October 1936. On 15 October 1936, his Reichsfluchtsteuer [Reich Flight Tax] was set at 9,733 Reichsmark plus surcharges. An account belonging to Max Fischer with more than 3,000 Reichsmark was impounded. The family was also forced to let go of real estate assets. Charlotte Wanzke was involved in managing some of Max Fischer’s financial matters in Berlin until at least 1937, sometimes with the assistance of a lawyer. Max Fischer was deprived of his citizenship in 1941, and his assets became the property of the German Reich.
    Max Fischer died of a heart attack on 21 May 1954, just before setting out on a ship to Germany, a journey he had been planning since at least March 1953. To finance the trip, he had asked the Entschädigungsamt Berlin to process the application he submitted in 1952 as a matter of priority and grant an advance payment. His younger brother Dr. Ernst Fischer (1896–1981) was his sole heir. Ernst Fischer was a physician with a professorial level teaching qualification and became a lecturer at the University of Frankfurt am Main in 1928. He was dismissed after the Gesetz zur Wiederherstellung des Berufsbeamtentums was passed in April 1933, and lost his authorization to teach the following year. Ernst Fischer fled to the United States in 1934 together with his wife Anne, née Rosenberg (1902–2008), and their two children George (1926–2020) and Eva (*1932).
  2. The painting Geschwister was owned by Ludwig and Rosy Fischer probably from 1917 onward, and at the latest from 1919. The couple, who lived in Frankfurt am Main, had begun to assemble an extensive art collection in 1905 and, from 1913 onward, they placed a special emphasis on works by the group of artists known as Die Brücke. The Fischer collection was one of the most important private collections of Expressionist art in Germany.
    By the time Ludwig Fischer died on 25 April 1922, the collection contained around 500 works of art, including at least 89 paintings. In accordance with the wish set out in her joint will with her husband, Rosy Fischer sold a total of 24 paintings from their collection to the Städtisches Museum für Kunst und Kunstgewerbe in Halle in December 1924. The painting Geschwister was not part of the set of works sold and, accordingly, it remained in the ownership of Rosy Fischer. After her death on 27 February 1926, the couple’s sons Max and Ernst inherited the artworks left in the collection on equal terms, according to information currently available, and they divided the works between them. Since then, it has been possible to identify 379 of the artworks from the Fischer estate, including Geschwister. Even though there is no known estate inventory or estate distribution list, both parties accept that Max Fischer had received the painting when the works were split between the heirs because he gave it to the Galerie Ferdinand Möller on consignment at the end of 1931.
    Together with a further 17 works from the estate of Ludwig and Rosy Fischer, Geschwister is recorded on a list of works received on consignment from Dr. Fischer. This list from the Galerie Ferdinand Möller in Berlin is dated 11 November 1931. It has not been proven so far that the painting was shown in an exhibition, but Ferdinand Möller (1882–1956) did offer the artwork to three potential buyers in January 1933, as evidenced by one of the gallery’s index cards for the estate. Because there is a handwritten note “zurück [return] 5/I 34” for Geschwister on the consignment list, it is assumed by both parties that no sale took place and Ferdinand Möller gave the painting back to Max Fischer on 5 January 1934.
    There is an – undated – list from Erich Heckel’s wife Siddi headed “Nach dem Krieg aus den verschiedenen Depots zurück erhaltene Bilder” [Pictures received back from various storage sites after the war], on which “1912 Geschwister” is also mentioned. Thus, the parties believe that the painting was put into storage for security reasons by Erich Heckel before or during the war and it is said to have been located in the cellar of the residential building at Emser Straße 21 in Berlin-Wilmersdorf, which largely survived an air raid in January 1944. In March 1944, the artworks still at that location were taken to a safer place in the country. The parties therefore both assume that the painting Geschwister came into the possession of Erich Heckel at some unspecified point between January 1934 and before January 1944.
    After 1945, Geschwister was shown for the first time in an exhibition in summer 1948. The exhibition catalog Chronik KG Brücke by the Kunsthalle Bern records it at no. 31 as “Besitz des Künstlers" [property of the artist]. In 1950, it was put up for sale for 3,000 Deutschmark at the Kunstverein Freiburg art association and the Städtische Kunsthalle Mannheim. It was exhibited at the XVI Biennale in Venice with the title Fratelli. No ownership information was provided in the catalog. A catalog for an exhibition organized in Münster in 1953 to mark Erich Heckel reaching his seventh decade lists the painting as “Privatbesitz" [privately owned].
    The painting was also displayed at the documenta I exhibition in Kassel in summer 1955, lent via the Staatliche Kunsthalle Karlsruhe. After the exhibition, on 8 December 1955, the Kunsthalle officially acquired the painting as a long-term loan from Erich Heckel, and also continued to send it out repeatedly for exhibition purposes. After the painting was presented at the Württembergischer Kunstverein in Stuttgart, it went to Erich and Siddi Heckel in Hemmenhofen. The 1956 publication Die Künstlergemeinschaft Brücke by Lothar-Günther Buchheim mentions “Frau Siddi Heckel, Hemmenhofen” as the provenance of Geschwister in its list of illustrations. Prior to August 1958, Erich Heckel loaned the painting to the Hessisches Landesmuseum Darmstadt, until it once again went to the Staatliche Kunsthalle Karlsruhe in June 1963 as a loan from the artist. In 1967, Geschwister was part of a donation agreement between Erich Heckel and the Staatliche Kunsthalle Karlsruhe.
  3. The parties are in agreement that Max Fischer was the owner of the painting until at least January 1934 and that Erich Heckel acquired Geschwister at an unspecified point before January 1944.
  • The Land Baden-Württemberg argues that a legal transaction must have taken place between Max Fischer and Erich Heckel in which it was highly probable that a fair purchase price was paid. Max Fischer could have freely disposed of this. Furthermore, the repurchase of the painting Geschwister would have happened even without National Socialist rule; after all, Fischer had already given the artwork on consignment in 1931. The presumed sale is therefore not considered as confiscation as the result of Nazi persecution.
    Since it can be demonstrated that Max Fischer tried to sell the painting from November 1931 onward via the Galerie Ferdinand Möller but received it back from Ferdinand Möller in January 1934 after efforts to sell it were unsuccessful, the Land Baden-Württemberg argues that the most probable course of events is that Max Fischer subsequently sold the artwork to Erich Heckel. As early as 1924, Erich Heckel had expressed an interest to Rosy Fischer in buying back the painting. This is indicated in a letter of recommendation from Dr. Max Sauerlandt (1880–1934) which he composed prior to the purchase of 24 paintings from the Fischer collection by the Städtisches Museum für Kunst und Kunstgewerbe in Halle. Since Erich Heckel was represented by the Galerie Ferdinand Möller, it can be assumed that Möller informed him of the failed attempts to broker a sale and the subsequent return of the painting, meaning that Heckel could have approached Fischer with his request to repurchase the artwork. The painting had a strong presence on the national and international exhibition scene after 1945. However, no member of the Fischer family claimed it back. This can only be interpreted as a tacit admission that the sale had taken place under normal conditions. Furthermore, Erich Heckel’s personal ties to the Fischer family would support an acquisition at a fair price and the option to freely dispose of this. Alternative scenarios are not documented and are also highly unlikely, since they would not explain how the painting came into Heckel’s possession.
  • Max Fischer’s heirs, however, consider other courses of events to be no less likely. In several letters, relatives and friends of Max Fischer had reported on his claims of how his property was seized, stolen or lost. Although expressed in a simple manner of speaking, this supports the assumption of an involuntary confiscation of assets. Confiscation, loss as a result of fleeing the country, or a sale by Charlotte Wanzke or a third party with or without Max Fischer’s knowledge are therefore equally possible courses of events. It should be borne in mind that there is no evidence of a legal transaction between Max Fischer and Erich Heckel – let alone the specific circumstances – meaning that confiscation as the result of Nazi persecution has to be assumed.
    Erich Heckel’s interest in buying back his early work, as mentioned by Max Sauerlandt in 1924, cannot necessarily be attributed to 1934 and explicitly to the painting Geschwister. There is no obvious reason why Heckel did not act on his alleged intentions to repurchase the artwork during the intervening years. Furthermore, there is no evidence that Max Fischer and Erich Heckel were personally acquainted at the time in question. The presented hypothesis of a legally transacted transfer from Max Fischer to Erich Heckel by October 1935 therefore remains speculative. However, the inability to clarify the circumstances of the case should not be to the detriment of the heirs. Likewise, the fact that neither Max nor subsequently Ernst Fischer sought the return of the painting Geschwister after 1945 does not invalidate the current restitution claim.
  1. The Advisory Commission believes that the painting Geschwister by Erich Heckel should be restituted to the claimants. It could not be established when and under what conditions Erich Heckel came into possession of the painting or even obtained ownership of it between January 1934 and January 1944. The assertion by the Land Baden-Württemberg that a legal transaction on fair terms between Max Fischer and Erich Heckel is the only conceivable option is neither convincing nor designated a “typical course of events” in line with the Guidelines for implementing the Statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property, of December 1999 (New edition 2019) (hereinafter: Guidelines).
  • Erich Heckel’s interest in repurchasing the painting, as cited by the Land Baden-Württemberg, which was mentioned by Max Sauerlandt in a letter dated 7 December 1924 addressed to Felix Weise (1876–1961) and the mayor of Halle Dr. Richard Robert Rive (1864–1947), cannot, in the Commission’s view, be used as a meaningful indication of a legal transaction involving the painting Geschwister in 1934. Max Sauerlandt, who acted as mediator between Rosy Fischer and the Museum für Kunst und Kunstgewerbe in Halle – where he had been director until 1919 – composed the multi-page letter in order to dispel any concerns about the purchase. In the letter, he underlined the importance of acquiring the works from the Fischer collection for Halle’s position as a gallery of living art and called it a “truly vital matter” for the future of the museum. Sauerlandt justified the price demanded by Rosy Fischer – which was perceived as high by Halle – by explaining that there was a supply shortage of paintings from the early phase of Expressionism on the open market, while at the same time, demand was on the rise. Even the artists themselves, such as Emil Nolde and Ernst Ludwig Kirchner, bought back their own artworks. Erich Heckel, too, had asked Rosy Fischer to grant him the right of repurchase for his painting if she were to sell her collection. But because the collection was going to be transferred to a museum, Rosy Fischer rejected the request. The mentioning of the fact that Heckel was interested in buying back his paintings must be interpreted in the context of Sauerlandt’s general mediation efforts. It also served strategic purposes, namely the justification of what was a high price from a buyer’s perspective.
    Heckel himself did not make a corresponding request to members of the Fischer family, neither in general nor with regard to the painting Geschwister. In a personal letter from Erich Heckel to Rosy Fischer dated 29 December 1924, the artist said he was pleased about the successful sale to Halle, but expressed no interest in his early works, in particular Geschwister, which was not among the works being sold to Halle and thus would still have been available for negotiations. Furthermore, it is not apparent why Heckel supposedly exercised his alleged interest in a repurchase ten years later on. There are no known other repurchases by Heckel in the 1920s and 1930s of paintings from his early years, which could have added weight to the presumption of a repurchase of Geschwister.
  • The list of 11 November 1931 proves that Max Fischer gave the painting to the Galerie Ferdinand Möller on consignment, so at least at this point there was an interest in selling. However, as the Land Baden-Württemberg itself points out, the handwritten note on the consignment list which says “zurück [return] 5/I 34” for Geschwister need not necessarily mean a return to the owner and thus to Max Fischer, but also opens up other possible interpretations. It is also conceivable that this documented the return of a consignment on approval. The correspondence between Ferdinand Möller and Max Fischer, of which only parts are preserved in the gallery’s estate, at least shows that the business relationship was still ongoing in January 1934, and an exchange of works took place until at least 1935. The Commission therefore finds it difficult to understand why the painting may have come to Erich Heckel from Max Fischer alone, and could not just as likely have reached the artist or the art market again via a third party, such as Ferdinand Möller or Charlotte Wanzke. Charlotte Wanzke was in contact with the Fischer family and their lawyer Dr. Hermann E. Simon until at least 1937, as she was involved in the family’s affairs to arrange the final emigration and clearly took care of the property left behind in Germany by Max Fischer. In 1938, Dr. Kurt Feldhäusser (1905–1945) acquired two paintings by Ernst Ludwig Kirchner: Bei Grünau; Sandhügel am Engadin [By Grünau; Sand Hills in the Engadine] (1917/1918) and Taunusstraße; Autostraße im Taunus [Taunus Road] (1916). Consequently, works that had been given on a commission basis to the Galerie Ferdinand Möller by Max Fischer in November 1931 were traded on the German market even after he emigrated. Ultimately, the close relationship between Erich Heckel and the Galerie Ferdinand Möller increases the plausibility of alternative scenarios. It is hard to believe that a painting that Heckel had supposedly been seeking to buy back since 1924 was first offered on the art market by Möller, only for it then to be given back to the owner for him to sell to Heckel. Less improbable, although likewise not documented, is a transfer of ownership from Möller directly to Heckel.
    It thus remains unclear how and when Heckel came into possession of the artwork, sometime between January 1934 and January 1944. Knowledge of it formerly belonging to the Ludwig and Rosy Fischer collection and to the property of Max Fischer was gradually lost. Because the provenance “Fischer” was no longer mentioned after 1945, it was only through research for the 1990 exhibition entitled Expressionismus und Exil. Die Sammlung Ludwig und Rosy Fischer at the newly established Jüdisches Museum in Frankfurt am Main that the painting Geschwister from the Ludwig and Rosy Fischer collection was successfully identified as the work located in the Staatliche Kunsthalle Karlsruhe. In this context, it was surmised for the first time that Erich Heckel could have bought back the painting from Max Fischer, but the administrator of Heckel’s estate declared this to be “speculation” at the time.
  • In the view of the Commission, the fact that the art collection, and explicitly the painting Geschwister, was not claimed back after 1945 cannot be taken as a tacit admission that the transfer of ownership was based on a proper legal transaction. Also, the fact that the painting did not play a role in Max Fischer’s compensation proceedings only has a very limited indicative effect, in the Commission’s opinion.
    When Max Fischer died in 1954, his brother Ernst, as sole heir, carried on the compensation proceedings that Max had already initiated. According to the Bundesentschädigungsgesetz in force, the destruction, defacement, abandonment for plundering, or the abandonment of property were offenses for which compensation was liable to be paid (§§ 18, 20; later § 51). Ernst Fischer was not able to prove any of these. To be able to make statements in particular on whether Max Fischer had abandoned his collection in the sense that meant compensation was obliged to be paid, Ernst Fischer would have had to provide information not only on the exact inventory of the collection but also on the relationship between Max Fischer and Charlotte Wanzke. However, Ernst Fischer had fled to the US in 1934 and therefore, at the relevant time, had not lived in Germany for a long period. Just because he was not able to make any conclusive statements in this regard, it does not mean that he would not have disputed the loss.
    Furthermore, it cannot be assumed that a corresponding submission would have been a success. The option of abandonment was fulfilled if the person concerned had given up his belongings without entrusting them to the care or custody of a third party, meaning that access by third parties was uncontrollable; this was the case particularly in the event of hasty departures (Blessin-Wilden, BEG, 1957, § 51 Rn. 16; van Dam-Loos, BEG, 1957, § 51 7. b). The limited scope of the compensation proceedings therefore does not suggest an increased likelihood of a sale to Erich Heckel, as retention in the Galerie Ferdinand Möller or sale by Charlotte Wanzke also would not have led to entitlement to compensation according to the Bundesentschädigungsgesetz.
    Ernst Fischer repeatedly addressed the issue of the loss of his brother’s collection in a cursory way, but details of the fate of individual artworks appear to have been unknown or are subject to confusion. In addition to conceivable sales prior to Max Fischer’s emigration, Ernst Fischer questioned the disappearance and the confiscation of artworks from the Berlin apartment in which Charlotte Wanzke resided until at least 1944. The fact that hope for clarification existed until 1989 is evidenced by the interest of the Stiftung Neue Synagoge Berlin – Centrum Judaicum in Wanzke’s estate. This was taken over as it was thought to include documents belonging to Max Fischer of “cultural, historical and museological value”. Apart from empty envelopes addressed to Charlotte Wanzke from Max Fischer from around 1949/1950 and an undated personal attempt at contact by Ernst Fischer, no documents from the Fischer family have been preserved, however. The estate thus does not provide any clues as to the fate of the artworks remaining in Germany, nor any information about the development of the relationship between Max Fischer and Charlotte Wanzke after 1937.
  • As a result, this means: In the case of a loss resulting from a legal transaction, the presumption of confiscation as the result of Nazi persecution is disprovable. But, according to the Guidelines, a fair purchase price and the option of free disposal must be demonstrated. In the present case, however, neither a legal transaction nor indeed a transfer of ownership to Erich Heckel can be demonstrated. In light of the above, the Land Baden-Württemberg failed to cast doubt on the statutory presumption. By referring to its hypothesis as a “typical course of events” and by expecting a refutation from the claimant, the Land Baden-Württemberg is demanding a reversal of the rules set out in the Guidelines for verifying whether a work of art was confiscated as a result of Nazi persecution. The Commission is not able to pursue this.
  1. The provenance of the painting Geschwister is unique in that, at the end of the National Socialist regime, the artwork was once again with the artist himself. Parts of the artist’s creative output were proscribed for reasons of propaganda during the National Socialist era. However, the Commission considers it inappropriate to conclude from the defamation of such artworks as “degenerate” that no confiscation as the result of Nazi persecution took place. Moreover, the Commission emphasizes that the Fischer family was also affected by the "Degenerate Art" campaign in a particular way. For instance, Ludwig and Rosy Fischer’s explicit wish to entrust a set of works from their collection to a museum on a permanent basis and thus make it accessible to the public was thwarted by National Socialist art policy. Instead of being appreciated and cared for, a large proportion of the paintings given to the Museum für Kunst und Kunstgewerbe in Halle in 1924 were denounced as “cultural Bolshevism” in a so-called “chamber of horrors” from 1935 onwards, before at least 19 of the paintings from the Fischer collection were confiscated in Halle in 1937 by the Reichsministerium für Volksaufklärung und Propaganda as part of the “Degenerate Art” campaign and sold for the benefit of the German Reich. The annuity payments to Max and Ernst Fischer that had been arranged in 1924 went into a blocked account from 1936 onwards and were prematurely discontinued in 1938. As justification, the city of Halle referred to the status of the artworks as “degenerate”. Measures taken by the Fischer family against this practice and the sale of the confiscated works were unsuccessful.
    The Fischer couple’s accomplishments remained unmentioned even after 1945, and it was only in 1990 with the above-mentioned exhibition Expressionismus und Exil. Die Sammlung Ludwig und Rosy Fischer that they were remembered and appreciated. The fate of the part of the art collection that remained in Germany is still largely unknown, however. By contrast, important parts of the collection of Ernst and Anne Fischer were saved when they were taken to the United States. The Ludwig and Rosy Fischer Collection was given to the Virginia Museum of Fine Arts in Richmond in 2009 and thus made accessible to the wider public and to research. The announcement by the heirs of Max Fischer that, in the event of a restitution, Erich Heckel’s painting Geschwister would also be donated to the Virginia Museum of Fine Arts and thus permanently united with the collection of their grandparents, Ludwig and Rosy Fischer, is acknowledged by the Commission as a special gesture and a significant contribution towards critically addressing the history of persecution associated with Jewish art collections.
01. July 2020

Recommendation of the Advisory Commission in the case of the heirs of A. B. v. Bayerische Staatsgemäldesammlungen

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property,
chaired by Prof. Hans-Jürgen Papier, decided on 23 June 2020 in the case of the heirs of A. B. versus Bayerische Staatsgemäldesammlungen, to recommend the restitution of the painting Das Zitronenscheibchen [Lemon Slice] by Jacob Ochtervelt to the heirs of A. B., with the stipulation that, if the painting is sold within 10 years after being returned, the state of Bavaria is to receive 50 % of the proceeds.

  1. The object of this case is the painting Zitronenscheibchen by Jacob Ochtervelt (1634–1682). The work is an oil painting on panel, approximately 48.6 x 37.2 cm in size, dating from around 1667. The painting is also known by the titles Lemon Slice, Austernfrühstück [Oyster Breakfast] or Interieur. It is in the possession of the Bayerische Staatsgemäldesammlungen.

  • The claimant is the community of heirs of A. B., represented by Dr. D. B. (great-grandson of A. B.). A. B. was the main shareholder of B. & Co. Bank, founded in 1889 in Berlin. He died on 31 January 1938. His family was subjected to severe injustice during the National Socialist era. His four children – C., D., E. and F. – were all persecuted directly by the Nazi regime. C. B. was murdered at the Sachsenhausen concentration camp in May 1942. D. B. was imprisoned by the Gestapo from October 1938 to March 1939. Himself, his sister E. and her husband Dr. G. H. were forced to emigrate. G. H. was interned at Sachsenhausen concentration camp during the 1938 November pogroms and was released in return for a payment of 15,000 Reichsmark to the Jewish community. A. B.’s daughter F. survived in what the National Socialists termed a “Mischehe” [mixed marriage], and was affected by the reprisals such marriages entailed.
  • The contested painting is associated with a loan granted to attorney Dr. T. U. in 1927. T. U. was working in Amsterdam at the time and took out a loan of 217,616 Reichsmark from B. & Co. Bank. As collateral for the loan he transferred ownership of his collection of 21 paintings – among them the Zitronenscheibchen – to the lender. The value of the collection was agreed to be approximately 200,000 Reichsmark. The painting initially remained in T. U’s possession. After the death of A. B. in 1938, the bank was discriminated against as considered “non-Aryan” and liquidated under pressure of the National Socialist state. The paintings provided by T. U. as collateral were to be liquidated for that purpose and in preparation for emigration. The paintings were consequently moved from Amsterdam to the bank’s vault in Berlin. At the time, T. U. had only paid off part of the loan.
    The collection was sold through the art trade and yielded proceeds of approximately 190,000 Reichsmark. The Zitronenscheibchen was sold on 19 November 1938 to the art dealers Hans Bammann, Düsseldorf, and Johannes Hinrichsen, Berlin, for 35,000 Reichsmark. The entire proceeds were used to service T. U.’s loan. The applicants assume – as neither the loan contract nor the security agreement are available – that in the meantime the loan had been taken over personally by A. B. and O. P., a limited partner of the bank. The proceeds from the paintings were initially used to settle O. P.’s claims. The remainder was offset with the claims of A. B.’s estate. T. U. repaid any remaining debt to the heirs of A. B. in full by 1950.
    The Zitronenscheibchen was later sold to the industrialist Fritz Thyssen. His daughter transferred ownership of the painting to the Bayerische Staatsgemäldesammlungen in 1987 along with other art works. The Bayerische Staatsgemäldesammlungen exchanged it in 2008 for another painting owned by the gallery French & Company. French & Company consigned the painting to Sotheby’s New York for the auction on 5 June 2008 under lot number 46, where it sold for 602,000 US dollars to the New York gallery Otto Naumann Ltd. As the provenance of the painting had been imprecise and Otto Naumann had also been informed by the heirs of A. B. about their claim, Naumann cancelled his purchase with consent of the previous owner. After the other transactions of the painting, including the original trade agreement, were also rescinded, it returned once again to the possession of the Bayerische Staatsgemäldesammlungen.
  • The parties agree that A. B. and his family were subjected to massive, even murderous persecution during the National Socialist era. They also agree essentially on the provenance of the contested painting.
    However, the heirs of A. B. as claimants presume that A. B. had acquired absolute ownership of the painting. They maintain that the loan originally granted by B. & Co. Bank was transferred later to A. B. personally. Accordingly, A. B. would then have become the collateral recipient for the collection provided for that purpose. At the latest, when he, or rather his heirs, gained possession of the paintings at an unspecified date in 1938, ownership by way of collateral would have become absolute, and the heirs could have disposed of the property as they saw fit. The fact that U. ultimately paid off his debt in full, the heirs assert, does not affect the issue of ownership because U.’s right to retransfer of ownership became void when the paintings provided as collateral were liquidated. Under pressure from the National Socialist regime, however, the family had been forced to sell the painting. The price it yielded, the heirs assert, was below market value. Also, the heirs were not able to freely dispose of the proceeds.
    The Bayerischen Staatsgemäldesammlungen essentially asserts that A. B. and the community of heirs of A. B. had at no point in time acquired absolute ownership of the painting, and that for this reason alone a restitution, meaning transfer of full ownership, was out of the question. They further state that a purchase price that was possibly too low – which they expressly deny – would have been solely to the detriment of the borrower T. U.
  • As the parties could not reach consensus on restitution, they agreed to present the case to the Advisory Commission. In letters by the community of heirs of A. B. dated 10 May 2019 and by the Bayerische Staatsgemäldesammlungen dated 18 January 2019 and 23 August 2019, both parties set out their positions. During a hearing on 9 March 2020, the opposing arguments were discussed again in more detail. The Advisory Commission then submitted their proposal to the parties, suggesting that the Commission recommended restitution but with the stipulation that a consensus be reached about the utilization of the painting. This consensus was not subsequently reached.
  1. The Advisory Commission now recommends that the contested painting be returned. However, since this is not supported by a legal assessment (a) but exclusively by moral and ethical considerations (b), the Commission adds a restrictive proviso to the effect that, if the painting is sold within 10 years after transfer of ownership, the state of Bavaria is to receive 50 % of the proceeds (c). In detail:
  • A. B. or his heirs never acquired absolute ownership of the contested painting, but merely ownership by way of collateral. It must be presumed that A. B. personally took over the loan to T. U. together with the limited partner O. P. after 1929. The heirs of A. B. made statements to that effect even in the restitution application of 21 December 1948 (to the Zentralmeldeamt Bad Nauheim, Az. Ia 5547). These statements are supported by the fact that the loan was no longer listed in the bank’s audit reports after 1929. Also, the borrower T. U. continued to adhere to the loan contract after the sale of the collection and the liquidation of the bank and repaid his loan in full. Based on the restitution application of 1950, it must also be presumed that only A. B., but not O. P., was the secured party.
    Nevertheless, the security transaction never resulted in the heirs of A. B. acquiring absolute ownership of the painting. A transfer of ownership for security purposes is accompanied by a contractual collateral loan agreement. In case of a loan, this agreement specifies that ownership applies only for as long as the lender’s claim (secured party) against the borrower (collateral provider) exists. The transferred objects in such cases generally remain in the possession of the collateral provider. However, the collateral loan agreement does not become void automatically when possession is transferred to the secured party for the purpose of liquidation. The objects provided as collateral are removed from the estate of the collateral provider in legal terms but remain part of the provider’s estate in economic terms.
    In the case at hand, therefore, the transfer of ownership of the paintings did not result in absolute ownership for the heirs of A. B. The paintings were moved from Amsterdam to Berlin after the death of A. B. when the bank had to be liquidated. This did not affect the collateral loan agreement. The items provided as security could still only be sold for the purpose of offsetting the proceeds against the loan. Neither the heirs of A. B. nor T. U. presumed that ownership was transferred in place of fulfillment. T. U. himself continued to observe his obligations under the loan contract.
    The sale yielded proceeds of approximately 190,000 Reichsmark, of which 35,000 were for the Zitronenscheibchen. Even though this was about 10,000 Reichsmark less than the estimated value of the paintings at the time of the security transaction, the purchase price for the Zitronenscheibchen can still be considered appropriate. Regarding the price, the Bayerische Staatsgemäldesammlungen explained that in 1941 another painting by Ochtervelt (of similar size and subject) from a Jewish estate was sold for only 3,800 Reichsmark, probably because the sale – unlike that of the Zitronenscheibchen – had been labeled a “Jew auction”. The fact that the proceeds for the Zitronenscheibchen were nine times higher suggests that the price was adequate.
    Once the transaction was offset against T. U.’s remaining loan amount, T. U. still had to pay about 6,666 Reichsmark per annum on the loan until 1945, as evidenced by a notification of A. B.s executor of 25 September 1941 to the Finanzamt Moabit-West. T. U. would have been relieved of the remaining debt only in the event of his death, as specified in an agreement (see letter by Dr. K. L. K. to the Oberfinanzpräsident Berlin-Brandenburg of 26 May 1942), which also points to the fact that possession of the paintings was not transferred in place of fulfillment. There is consequently no evidence whatsoever of a mutual agreement to annul the collateral loan agreement and an associated transfer of full ownership of the collection to the heirs of A. B.
    At this point it is not relevant that the heirs of A. B. undoubtedly suffered substantial financial damage as a result of the forced liquidation of the bank. It is out of the question that the heirs of A. B. were able to freely dispose of the proceeds from the sale of the security at the end of November 1938, not only because this was opposed by the collateral loan agreement but also because they were persecuted and deprived of their rights by the National Socialist regime. Since the paintings were also sold to prepare the family’s escape, reference must be made here to the “Vertraulicher Erlass Nr. 64” of 14 May 1938; this was followed on 3 December 1938 by the Verordnung über den Einsatz des jüdischen Vermögens, of which particularly § 14 was relevant. Notwithstanding the details, it can therefore be safely presumed that the heirs of A. B. suffered significant losses due to the liquidation of the bank.
    This loss of assets, however, cannot be the object of a restitution proceeding. Dr. G. H. and spouse, acting on behalf of the heirs of A. B., also conceded this point during the compensation proceedings. In a letter of 3 October 1950, they withdrew the pending restitution claims (Case No. RÜ 214/50 and RÜ 215/50) including the Zitronenscheibchen against the Wiedergutmachungsamt before the Landgericht Düsseldorf. The withdrawal was explained as follows: “Bammann had bought the two paintings during a time when they were Jewish property provided as collateral. Since then, the original owner, who is not Jewish, has repaid his debt. Although this Aryan owner may have suffered financial damage due to the fact that the paintings had to be sold as Jewish property, the paintings can no longer be considered Jewish property, since the debt was paid in full. Therefore, the conditions for our application no longer apply, and we hereby formally withdraw the application. We assume that the proceedings are hereby concluded.” Even though the applicant contextualized this withdrawal differently, particularly with regards to the anti-restitution practices that were predominant at the time, the legal assessment of the facts is clear: the applicants could not lose ownership of the contested painting because they never had absolute ownership. From a legal standpoint, restitution of the painting is therefore impossible.
  • Nevertheless, the Advisory Commission in its search for a just and fair solution in line with the Washington Principles is not limited to the legal assessment. Rather, it is specifically called upon to consider ethical and moral aspects in order to reach a recommendation that addresses the particulars of each individual case.
    In the case at hand, these moral and ethical considerations give rise to a qualification of the legal assessment. During the hearing before the Commission, the claimants memorably described the great symbolic significance attributed to the painting by the family. The family suffered enormously from persecution. Their own art collection was lost due to persecution and war. The forced liquidation of the bank, during which existing loan collateral was also liquidated, did not release any funds which the family could freely dispose of. The painting is a focal point for family memories of these terrible sufferings. Its auction on 19 November 1938 – ten days after the pogroms throughout the German Reich – occurred during a time when the persecution of the Jewish population shifted fully towards a policy of existential annihilation. This new radicalization of National Socialist repression left deep scars on the claimants’ family history. As mentioned above, all four children of A. B. were persecuted by the National Socialist regime. Even today, the family resides almost entirely abroad as a result of that persecution.
    To the claimants, the restitution of the Zitronenscheibchen is associated with the hope of making their peace with this tragic past – if at all possible. As such, the financial loss, which is the focus of the legal assessment, recedes behind the non-material damage, which is the claimants’ essential concern. This non-material damage, however, is inextricably linked to the contested painting. For this reason – and no other – the Commission recommends the return of the painting, to make a contribution toward the recognition and amendment of historical injustice. The Commission also takes into account that the claimants’ interests are not opposed by equally valid concerns of the Bayerische Staatsgemäldesammlungen. The Bayerische Staatgemäldesammlungen received the painting as part of a larger purchase. The acquisition of the Zitronenscheibchen was thus not based on a deliberate curatorial decision; the painting is not part of the collection rationale and had not previously been exhibited.
  • The Commission nevertheless emphasizes that the Bayerische Staatsgemäldesammlungen was not obligated to return the painting for legal reasons. The contested painting remains in their property. In general, the Bayerische Staatgemäldesammlungen is committed to clarifying contested provenances of items in their collection and to return the works on mutually agreeable terms whenever possible. In the case at hand, the Bayerische Staatsgemäldesammlungen has thus also endeavored not to benefit from the unclear provenance. It is important to the Commission, therefore, to not pass moral-political judgment on the Bayerischen Staatsgemäldesammlungen because of their prior negative stance.
    In this particular case, only a comprehensive weighing of all relevant concerns ultimately prompted the recommendation to return the painting. Since the claimant Dr. D. B. thus far has not provided powers of attorney from the remaining heirs of A. B., the recommendation is for restitution to all heirs of A. B. (see § 2039 BGB). The recommendation is primarily a gesture of reconciliation. To ensure that this remains recognizable, the Commission felt it was important that the parties come to a mutual agreement. When this failed, the Commission now recommends restitution with stipulations.
19. August 2019

Recommendation of the Advisory Commission in the case of Dr. and Mrs. Max Stern Foundation v. Bayerische Staatsgemäldesammlungen

In the case of Dr. and Mrs. Max Stern Foundation v. Bavarian State Painting Collections the Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier (chairman of the Commission), has made the following recommendation:

The painting Uhlans on the March by Hans von Marées, currently in the possession of the Bavarian State Painting Collections, is to be restituted to the Dr. and Mrs. Max Stern Foundation under the conditions that
(1) the Dr. and Mrs. Max Stern Foundation undertakes not to sell the painting within the next ten years in order to ensure that the work can be restituted to a primary injured party, should such a party be determined, and
(2) the continuing research on Dr. Max Stern conducted within the next ten years (term to commence when unrestricted access to all documents belonging to the estate is assured) does not result in a new state of knowledge that speaks against restitution, such as evidence that the sale of the painting or comparable art sales in this period (mid-1936) would in their essence very likely have occurred even had the Nazis not been in power

  1. The subject of these proceedings is the painting Uhlans on the March by Hans von Marées, painted in 1859. The work in question is an oil painting on wood measuring 18.8 x 35.3 cm, signed and dated by year. Its restitution is requested by the Dr. and Mrs. Max Stern Foundation as the heir to Dr. Max Stern. In the 1930s, Dr. Max Stern (hereinafter abbreviated to “Stern”) was the owner of one of the most notable art galleries in the Rhineland, located in Düsseldorf, having taken it over from his father Julius Stern.
    Stern died in 1987 at the age of 83. Alongside numerous bequests to individuals, he left his remaining estate to the charitable Dr. and Mrs. Max Stern Foundation (“Stern Foundation”). The Stern Foundation’s legal counsel is Robert Vineberg, who is also one of the three executors of Stern’s will, and who has authorized the Holocaust Claims Processing Office (HCPO) of the New York State Department of Financial Services to act on the Foundation’s behalf in these proceedings. The Stern Foundation benefits three charitable institutions in equal parts: McGill University (Montreal), Concordia University (Montreal) and the Hebrew University of Jerusalem (Israel).
  • After studying and completing his doctorate in art history, Stern initially worked alongside his father Julius Stern at the latter’s highly regarded art gallery in Düsseldorf, which he went on to run as sole proprietor after his father’s death in 1934. One of his sisters, Hedwig, and his mother also worked at the gallery. 
    From the early days of Nazi rule, Stern as a (by the criteria of the NS regime) Jewish art dealer was subject to increasing discrimination and deprivation of rights by the NS regime; for example, the window of his gallery was smeared with paint during the April 1, 1933 boycott. On September 22, 1933 the Nazis founded the Reich Chamber of Culture in order to centrally control the arts and culture and – as later became clear – enforce conformity. The Reichskulturkammergesetz (Law establishing the Reich Chamber of Culture) organized all professions in the arts and culture throughout the Reich into chambers. Membership in one of seven chambers, among them the Reichskammer der Bildenden Künste (Reich Chamber of the Fine Arts, RdbK), was a requirement for continuing to practice such a profession – failure to be accepted or exclusion amounted to an occupational ban. At that time, individual art dealers were still indirect members of the RdbK through their Reich-wide association. This changed in 1935, from when on they had to apply for direct membership in the RdbK. Jews were generally denied this direct membership. This was also the fate suffered by Stern, who was notified of his non-acceptance by letter dated August 29, 1935. As was common, this letter only seemingly gave reasons for his rejection (allegedly insufficient suitability and trustworthiness; this was the standard reason for rejection derived from the executive order issued on November 1, 1933 [par. 10]). At the same time he was told to “dissolve or regroup” his business within four weeks. Stern lodged an appeal while also – ultimately in vain – seeking ways to sell his business to a buyer who would hold it in trust. His appeal was rejected by order dated July 29, 1936, which confirmed that Stern would not be accepted into the Reich Chamber of the Fine Arts. He was given three months to sell his gallery. This deadline was extended because there were potential buyers for the gallery. Stern had already presented Dr. Cornelis van de Wetering, a Dutch citizen, as a potential buyer in 1935; however, the authorities refused to approve the sale to a foreign citizen. He was also not permitted to transfer the gallery to the former director of the Düsseldorf Kunstmuseum, Dr. Karl Kötschau, as the latter had a Jewish ancestor.
    On September 13, 1937 Stern received a further order permanently prohibiting him from trading in cultural goods and requiring him to dissolve the gallery by September 30, 1937. It was suggested that he might transfer the gallery’s inventory to an art dealer or auctioneer for sale who was a member of the RdbK. This deadline was extended a final time until December 15, 1937. Stern had already sold the two buildings at Königsallee 23–25, which alongside the gallery also contained the residential premises of the Stern family, in March 1937. According to a note by the Gestapo dated January 11, 1938, he notified the authorities on December 23, 1937 that he was relocating to London. He had had the remaining gallery inventory of 228 works auctioned off in auction No. 392 on November 13, 1937 by Auktionshaus Lempertz in Cologne. He continued to offer works that had failed to sell at auction for sale – in some cases successfully – until December 15, 1937, then placed the remaining works into storage. They were to be forwarded to him in London – initially with the permission of the authorities. They were however confiscated shortly after his departure and used by the NS authorities to arbitrarily demand payments from him. Stern continued to negotiate these demands from London until the outbreak of the war. By order dated November 19, 1939 he was finally stripped of his German citizenship; at this point at the very latest his remaining assets fell to the state. Stern’s mother, who had initially stayed in Düsseldorf, was only issued the necessary departure visas by the authorities in exchange for additional extorted payments. In order to make these payments Stern had to relinquish the proceeds from the sale of the two houses, which were still in a German bank account; his mother was moreover forced to sell paintings of her own.
    Together with his sister Hedwig and van de Wetering, Stern ran the art gallery that she and van de Wetering had previously established in London; its name, West’s Galleries, was formed by combining the Wetering and Stern names. After the war broke out in September 1939 Stern, like other foreign citizens, was interned as an “enemy alien”. Following his release in 1940 he emigrated to Canada, where he spent a further almost two years as an interned “civilian alien”. Once released, his expertise allowed him to initially find employment at the Dominion (art) Gallery in Montreal; he was so successful in this role that he became a co-owner of the gallery just a few years later and ultimately – then together with his wife Iris – took it over as owner. As such he was one of Canada’s most notable art experts until his death.
    In extensive restitution proceedings after the war Stern submitted claims for damages with the aid of lawyers Dr. Wenderoth (Düsseldorf) and Dr. Saalheimer (USA). Insofar as can be gathered from the documents, these proceedings centered on reimbursement of the Reichsfluchtsteuer (emigration tax) and the excessive income tax arising from the forced auction at Lempertz in 1937; further on the goodwill of the compulsorily dissolved Galerie Julius Stern; damages due to having to sell the paintings auctioned by Lempertz under market value; damages relating to the paintings that were confiscated and had ultimately disappeared following the Lempertz auction; reimbursement or payment of damages with regard to the premises Königsallee 23–25 in Düsseldorf; and damages arising from expulsion from his self-employed profession in Germany. The sum total of the claims made at that time and the lastly awarded amounts have not been presented in full in these proceedings.
  • On June 24, 1936 Stern sold a Marées together with other paintings to Daniel Wermecke through his gallery. Whether this was the work Uhlans on the March by Hans von Marées was originally disputed between the parties; in the hearing held on June 25, 2019 however the respondent no longer contested this point. It remains in dispute whether Stern sold the work as a commission agent or as its owner. It is further disputed whether this sale through the gallery can be considered an asset loss resulting from Nazi persecution.   The Stern Foundation as the claimant bases its claim for restitution on the fact that Stern was persecuted both collectively and individually from the outset. The claimant notes the boycott against Jewish businesses of April 1, 1933, in the course of which paint was smeared on the window of the Stern Gallery. Furthermore, the “Gesetz zur Beseitigung der Missstände im Versteigerergewerbe” (law to combat abuses in the auction trade), issued on August 7, 1933, with its subsequent acts and implementing orders prohibited art dealers from holding their own auctions, which the claimant states significantly impacted the Stern gallery’s ability to do business. In the hearing on June 25, 2019 the claimant further elaborated that Stern had already been unable to hold an auction scheduled for March 18, 1933 as intended due to the significant disruptions. The banning of Jewish art dealers from their profession from 1935 onwards – in Stern’s case from August 29, 1935 – and hundreds of laws, ordinances and decrees designed mainly to stigmatize and exclude Jews had only exacerbated this situation. It must therefore, according to the claimant, be assumed that Jewish art dealers were already subject to persecution from 1933 onwards, and as a result were by no means able to conduct “orderly normal business” any more. Sales concluded in the course of gallery operations served the purpose of creating the financial circumstances required for the necessary emigration, according to the claimant; accordingly, the sale of the Marées painting in June 1936 can also not be considered to have taken place in the course of normal business operations. The claimant further states that it is highly likely that the Marées painting was the property of Stern himself and not sold on commission.The Bavarian State Painting Collections as the respondent also assumes that Stern was persecuted for racial reasons from the very beginnings of the Nazi state; however, the respondent holds that this had no effect on the sale of the Marées painting, which cannot in the view of the respondent be by any means considered a forced sale due to Nazi persecution.
    Stern continued to maintain business operations at the Julius Stern art gallery, making numerous purchases and sales, into the year 1937 and, until the gallery’s forced dissolution, did so profitably. The respondent claims that it is absolutely not the case that Stern was only making sales in order to prepare the dissolution of his gallery. This is evident, in the respondent’s view, from his multiple business activities, his operating profits in the years from 1935 to 1937, and his own assessments of his ability to do business at the time. The respondent points out that the Marées painting was sold to a buyer of Stern’s choice at a price he himself had set, with no influence from third parties; the sale price of 2,250 RM he achieved for the Marées painting was standard for medium-sized paintings by Hans von Marées at that time; there is no indication that Stern was unable to freely dispose of the proceeds. Moreover, the Marées painting is equally likely to have been sold on commission.
  • As the parties were unable to reach a consensus regarding restitution of the painting, they agreed to submit the case to the Advisory Commission. In a letter dated May 3, 2017 the Stern Foundation as the claimant petitioned the Advisory Commission, presenting the case in extensive detail; the claimant expanded its statement in a letter dated May 9, 2018 and submitted a power of attorney and documents pertaining to its status as legal successor on March 14, 2018. The Bavarian State Painting Collections as the respondent joined the claimant in appealing to the Advisory Commission, presenting the case from its point of view in a letter dated September 28, 2017; the respondent expanded on this statement on August 21, 2018 based on further research into the not yet fully explored estate of Max Stern held in the archives of the National Gallery in Ottawa, Canada. Both parties took the opportunity of the hearing before the Advisory Commission on June 25, 2019 to present further statements.
  1. Following an extensive review of the written statements from the parties and the attached documents, and based on the arguments presented in the hearing of June 25, 2019, the Advisory Commission made the recommendation set out at the beginning of this document. This recommendation is based on the following considerations:
  • The work Uhlans on the March by Hans von Marées was sold by Stern through his gallery to Daniel Wermecke on June 24, 1936 together with four other paintings; the price of the painting was 2,250 RM. Whether the painting Stern sold at that time was this or perhaps a different Marées painting was initially disputed between the parties but was no longer in dispute at the hearing on June 25, 2019, so that it can now be assumed that the two works are identical.
    Whether Stern was the owner of the Marées painting or sold it on commission, i.e. in his own name but on behalf of the actual owner, could not be established. A letter from Stern to his German lawyer dated April 27, 1959 indicates that between 1934 and 1937 he predominantly sold works on commission rather than works he owned. This presents a significant likelihood that the painting was in fact sold on commission. It is thus possible that the owner of the painting was also subject to racist persecution by the Nazi regime and there may therefore in the person of said owner or their heirs exist a primary injured party with a better claim to restitution. The Advisory Commission has therefore limited its recommendation for restitution such that the Dr. and Mrs. Max Stern Foundation enter into an agreement undertaking not to sell the painting within the next ten years so that the work can be restituted to a primary injured party should such a party be determined. Should a primary injured party not emerge until after this period the Advisory Commission expects that the Stern Foundation will ensure adequate compensation in the spirit of a fair and just solution.
    The Advisory Commission was not prevented from taking into consideration the aforementioned and other letters from Stern to his lawyer Wenderoth submitted in the course of the proceedings. Lawyer Robert Vineberg, representing the Stern Foundation, however informed the Advisory Commission in a letter dated June 7, 2019 that these letters were erroneously made available to the Bavarian State Painting Collections by the National Gallery of Canada and were not permissible evidence in these proceedings because they were subject to solicitor-client privilege. The Advisory Commission does not agree with this view. Solicitor-client privilege is never absolute and the Advisory Commission is not bound by it, especially once the standard confidentiality periods enshrined in archiving laws have expired. The Bavarian State Painting Collections came into possession of these letters in a legitimate manner. According to section 2 of the Washington Principles a fair and just solution moreover requires that pertinent documents and archives be made accessible, which means that their content can also be evaluated.
  • The Advisory Commission considers the sale of the Marées painting to be equal to a forced sale due to NS persecution. The Advisory Commission rejects the assumption presented by the Bavarian State Painting Collections that Jewish art dealers were initially able to continue to conduct “orderly normal business” (as per the Allied restitution laws and also the arguments of the Bavarian State Painting Collections) as they had prior to 1933. This assumption would require that Jewish art dealers, who can surely be presumed to have intelligently and vigilantly observed societal developments, behaved naively in regard to these developments and trusted blindly that the situation of Jewish businesspeople would not change. This is more than unlikely. Even if the impending “final solution” was not and could not generally be within subjective expectation, animosity, threats and administrative measures were ubiquitous and rising. The ultimately hundreds of laws, ordinances and decrees with the main purpose of stigmatizing and excluding Jews were on the horizon early on and restricted the lives of those German citizens who were of the Jewish faith or had been declared Jews by the Nazis. The repressive measures became more severe when the Nuremberg Laws were issued on September 15, 1935, but they had been clear enough before.
    This also affected individual circumstances. Stern for example had to deal with paint smeared on the window of his gallery in the course of the boycott in April 1933. That this was not without effect on him is apparent from the fact that he mentioned the incident even in a letter dated February 25, 1945 to his family members in the UK in connection with recollections of a painting he had sold in April 1933. These early reprisals also included that he evidently canceled an auction of paintings from the Heinrich Horten collection, German museums and private owners planned for March 18, 1933 at short notice due to the political circumstances after an auction by competitor gallery Kunstgalerie Flechtheim had been prohibited; it had been forcibly dissolved by the “Kampfbund der deutschen Kultur” [Militant League for German Culture] run by Alfred Rosenberg (according to Bähr, German Sales 1930–1945, 2013, p. 269, referring to a handwritten entry in a copy of the catalog for an auction with inventory from the Palais Radziwill in Berlin, which is located in Kunstbibliothek Köln under lot no. 141, and research by Tisa Francini/Heuß/Kreis, Fluchtgut – Raubgut. Der Transfer von Kulturgütern in und über die Schweiz 1933 – 1945 und die Frage der Restitution", Zürich 2001, p. 41). Regarding the auction planned by Stern for March 18, 1933 there exists a copy of a cover page of the catalog he published, on which presumably Prof. Dr. Wilhelm Martin (Quakenbrück 1876–Den Haag 1954), a specialist in old Dutch painting to whom Stern had personally recommended the auction in a letter dated March 2, 1933, noted by hand that the auction had not taken place for political reasons (“Deze veiling heeft wegen politische omstandigheden niet plats gevonden“).
    The laws with which art dealers were generally prohibited from holding auctions from as early as August 1933 could be understood by Jewish art dealers as an act of exclusion. Even if the “Gesetz zur Beseitigung der Missstände im Versteigerergewerbe” (law to combat abuses in the auctioneer trade) issued on August 7, 1933 (RGBl I p. 578; cf. “Gesetz über das Versteigerergewerbe” [act regarding the auctioneer trade] of October 16, 1934, RGBl I p. 974, and “Verordnung zur Durchführung des Gesetzes über das Versteigerergewerbe” [ordinance on implementing the law regarding the auctioneer trade] of October 30, 1934, RGBl I p. 1091; “Viertes Gesetz zur Änderung des Gesetzes über das Versteigerergewerbe” [fourth act amending the act regarding the auctioneer trade] of February 5, 1938, RGBl I p. 115) was not according to its wording aimed explicitly at “non-Aryan” auctioneers, the intentions of the government, the circumstances under which the law was adopted and how it was applied in practice must also be considered alongside its wording. This law was not put before the Reichstag and debated based on a general, ideologically neutral discussion of possible actual issues in the auction trade. Rather, it was one of the laws issued based on the Ermächtigungsgesetz (Enabling Act) by the Reich government, for which accordingly Hitler himself was responsible. It is thus one of a large number of laws with which Nazi rule – and thus the persecution of the Jews – was given “legal” and administrative structure based on the Ermächtigungsgesetz of March 24, 1933. This also places the – in terms of its wording seemingly innocuous – text of par. 1 of this law in a different light: “Exercise of the profession may be prohibited if the businessperson cannot guarantee that business will be conducted in an orderly manner.” What the NS regime considered “orderly” is well known, and that Jewish businesspeople did not trade “in an orderly manner” in the sense of the NS ideology and its governmental and administrative practices is equally clear. This seemingly so innocuous law was thus one of the initial sparks for the persecution of Jewish art dealers (cf. analysis by Astrid Bähr, ibid., esp. p 18–26). It must be assumed that Jewish art dealers also understood it in this way. From August 1933 at the latest Jewish art dealers were thus individually and collectively persecuted, so that from this point at the latest it can in no way be assumed that “orderly normal business” was being conducted.
  • On this basis, the sale of the Marées painting was a sale due to persecution even regardless of the date of sale. This assessment applies all the more to the period in which the painting was sold in June 1936. The Nuremberg Laws proclaimed on September 15, 1935 at a rally there differentiated between “Reich citizens of German and related blood” as holders of “full political rights” and mere “citizens”, the Jews, who would in future have no political rights. This greater level of threat from the regime, the animosity it increased further, also had to affect Stern’s business activities in this period, so that from this point on Stern’s sales through his art dealership can certainly no longer be considered “orderly normal business”. Added to the societal and political developments in this period was that Stern had received his first ban from his profession with an order dated August 29, 1935. His appeal had not yet been decided, but he is unlikely to have had any illusions about its probability of success. Stern personally was moreover at particular risk because his sister Gerda (1902–1994) and her husband Dr. Siegfried Thalheimer had moved to the Saarland (and later, after its “Anschluss”, on to Paris) in 1933, and had founded and distributed the anti-Nazi newspaper Westland there. His brother-in-law Thalheimer (1899–1981) was thus in the sights of the NS authorities, and in light of widespread collective punishment of family members Stern must also have felt threatened.
    Due to the massively coercive nature of the general political situation and the collective and individual persecution Stern suffered from 1933 onwards it must therefore be assumed that the sale of the Marées painting to Wermecke would not have occurred in the same way had Germany not been under National Socialist rule. It has not been disproved that Stern suffered a financial loss. It is irrelevant in this regard that there are no indications that he failed to achieve the market price for the painting. It must be assumed that any profit was used to cover levies such as the Reichsfluchtsteuer (emigration tax) or similar that Stern had to pay when he left Germany in December 1937. There is certainly no evidence that he was able to freely dispose of the proceeds. That he sued and was largely compensated for these levies in restitution proceedings he launched after the war is irrelevant.As a fair and just solution in the spirit of the Washington Principles the Advisory Commission therefore recommends that the Marées painting be restituted to the Stern Foundation without deducting the originally received purchase price, subject to the above conditions.
  1. Minority dissenting opinionThe recommendation of the Advisory Commission was made with more than the required two-thirds of the votes. The following minority dissenting opinion sets out on what basis a fair and just solution in the spirit of the Washington Principles could also lead to different assessments.
  • The claim that it was not possible for Jewish art dealers to conduct “orderly normal business” from 1933 on and any sale by a Jewish art dealer should be considered equal to a forced sale under Nazi persecution cannot be reconciled with the findings of historical research.
    Examining the research on the persecution of Jewish people in the Nazi state, the political and societal situation in the years 1933–1937 appears complex. The following presents an example based on the research of Ian Kershaw (The Nazi Dictatorship. Problems and Perspectives of Interpretation, rev. 2015), Norbert Frei (in: Broszat/Frei, Das Dritte Reich im Überblick, 6th edition, 1999), and – evaluating regional primary sources – Ina Lorenz/Jörg Berkemann (Die Hamburger Juden im NS-Staat 1933 bis 1938/39, Vol I to VII, 2016), which all contain a large number of references to the – impossibly vast – existing research. The findings suggest that at least until the Nuremberg Laws of September 1935 a large number of Jewish art dealers (or art dealers described as such by the Nazis) were able to continue trading and conducting “orderly normal business,” and certainly not every sale can be considered equal to a forced sale. In individual cases this even remained true until 1937; Dr. Max Stern is an example of this.
    The historical research does not show that the NS regime already had an overall plan in 1933 to drive out and murder the Jewish population. In 1933 and the following years, in some cases even beyond 1937, the internal power structure of the NS state and the execution of its anti-Jewish policies presented as contradictory, not least in the coexistence of state authorities and party structures and in a lack of clear parameters from the NS regime. This already permitted a range of interpretations at the time. Stern himself did not consider the situation hopeless until early 1937. Rather, after the death of his father on October 31, 1934, he assumed that the NS regime would be a passing phenomenon and he would (initially) be able to run the gallery himself or have it run as he wished by a buyer of his choice who would hold it in trust. This is apparent from the submitted section of the (English) manuscript of his (unedited) autobiographic memoirs. In 1935 his plans became more concrete: he intended to establish an art gallery in London through his sister Hedwig and Dr. C. van de Wetering, the potential buyer of his gallery whom the Nazis had rejected, equip the gallery with a basic stock of paintings by old masters, and run the Düsseldorf gallery as a kind of subsidiary via a buyer holding it in trust; he would then return to the gallery in Düsseldorf after the end of the NS regime, which he was certain was coming. Stern’s assumption that this plan could succeed was in fact based on his real personal experience. He personally had found that on the death of his father in October 1934 the local paper had still written an enthusiastic obituary for the Jewish art dealer Julius Stern; in his memoirs he describes the obituary as: “a glowing report of his achievements”. His (non-Jewish) friends not only attended the funeral, they also remained loyal in the following period and kept him apprised of potential threats (“They were loyal and kept me well-informed about all the now menacing dangers”) although they no longer met with him publicly from this point on. Neither the consequences of the boycott of April 1, 1933, nor the cancellation of the auction he had planned for March 18, 1933 due to the general situation, nor the auction prohibitions affecting the art trade as a whole from August 1933 onwards deterred Stern from his plans. The artistic and financial success of the gallery must also have reinforced him in his intentions. As he wrote to his lawyer in 1951: “Even under Nazi pressure, the Stern Gallery was one of the most important galleries in Western Germany. … Despite the Nazi pressure, the gallery was financially a very lucrative business as long as it existed.” In place of the auctions that were now no longer possible he bought and sold paintings and held at least three major sales exhibitions between February 1934 and August 1935, for which extensive catalogs were produced (“When we were not anymore allowed to hold auctions I simply concentrated on buying important paintings and selling them. We had of course also done this before …”).
    The general political and societal circumstances made Stern’s positive personal experiences among his (non-Jewish) friends and his ongoing business success somewhat unlikely. There is however no reason not to accept his own assessment of his situation as presented in his memoirs and various letters, and supported by submitted documents. Regardless of detectable memory shifts it can be assumed that the core events of the period burned themselves firmly into his mind. This is proved by various attempts in his memoirs to describe one and the same occurrence. He clearly did not yet understand either the orchestrated boycott activities of April 1933 or the general legislation regulating the auction business that was issued from August 1933 onwards as measures that could have entirely destroyed his plans. Beyond his personal experiences, NS research shows that Stern also had a realistic basis for his relativizing assessment of what was happening.
    It is known that the country-wide boycott of Jewish businesses on April 1, 1933, which also lead to paint being smeared on the window of the Stern Gallery, was organized by the NS regime in response to the pressure “of Party radicals, especially within the SA, during the wave of violence and brutality unleashed by the ‘seizure of power’. [...] As is well known, the boycott was a notable failure, and in light of the negative echo abroad, the lack of enthusiasm among important sectors of the conservative power-élite (including President Hindenburg), and the cool indifference of the German people, it was called off after a single day and a co-ordinated national boycott was never again attempted. The shameful discriminatory legislation of the first months of the Dictatorship, aimed at Jews in the civil service and the professions, arose in the same climate and under the same pressures.” (Kershaw p. 123, 124; cf. Lorenz/Berkemann Vol. II, p. 808 ff., Frei p. 126 f.). Even though this campaign, like other violent excesses by the SA and other party radicals, led to a first wave of emigration by German Jews, discrimination against them progressed at a “comparatively slow speed; a significant number of Jewish Germans returned from emigration” (Frei p. 127). “After a relatively quiet period between summer 1933 and early 1935 a new wave of anti-Semitism began and continued until the autumn of 1935“ (Kershaw p. 167 f).
    With the Nuremberg Race Laws issued on September 15, 1935 a new level of escalating discrimination was however reached. “The NS regime had begun implementing a comprehensive apartheid policy” (Lorenz/Berkemann Vol. I, p. 454). Earlier in 1935 Stern had been forced to apply for membership in the Reich Chamber of the Fine Arts, one of the NS regime’s forced conformity institutions. That his application was refused by order dated August 29, 1935 targeted him as a Jew and constituted a ban against practicing his profession: he was to “dissolve or regroup” his business within four weeks. Together with the Nuremberg Laws Stern must have seen this as a profound infringement on his livelihood. It therefore seems appropriate to formulate an assumption – that can only be disproved in individual cases – that sales by Jewish art dealers from the summer of 1935 on would not in their essence have also occurred without Nazi rule.
  • The Marées painting was sold on June 24, 1936, after the Nuremberg Laws were enacted. Can the assumption that this sale is to be considered equal to a forced sale thus be disproved? In this respect we should follow the Guidelines for the implementation of the “Declaration of the German Federal Government, German states and leading municipal associations to locate and return cultural assets confiscated through Nazi persecution, especially those of Jewish ownership” according to which this is possible under certain circumstances. Regarding losses from transactions from September 15, 1935 onwards, the assumption can be disproved by demonstrating that the seller received an appropriate purchase price, was able to freely dispose of this money, and the transaction would in its essence also have taken place without the National Socialist regime. These principles set out in the Guidelines represent the essence of the laws and judgments handed down by the Allies in restitution cases after World War II as they are generally accepted and were also known to the signatories to the Washington Principles.
    In accordance with what we know here of Stern based on his memoirs, his letters and the documents, insofar as these survived and have been submitted, it appears compelling to consider the assumption in the present case to have been disproved. The criteria of the Guidelines are all met. As is evident from Wermecke’s customer file, Stern wanted to sell the painting to him after he and his wife had shown interest in a total of 10 artworks in the gallery, among them the Marées painting, during a visit on June 17, 1936. Stern obviously set the price for the Marées painting himself. It can be assumed that he originally wanted a price of 2,500 RM, the same price at which he had offered the painting to another customer (Kaesmann) around eight weeks earlier. The later price reduction of 250 RM for Wermecke is easily explained by the fact that the latter bought not only the Marées painting but also four other works. It was not contested during the proceedings that the price paid for the Marées painting was within the market price range. Insofar as the Stern Foundation believes that the painting in question would definitely have fetched a higher price at auction, this is speculation and also does not argue against the painting having been sold at the current market price. Firstly, even before 1933 it was only permitted to auction off goods on commission, while the claimant maintains that Stern was the owner of the Marées painting; Stern would thus not have been allowed to auction it off even before 1933. Secondly, the auction prohibition was also aimed at “non-Aryan” art dealers; the auction prohibition could therefore not have been causal to the sale of this single painting in the sense of a persecutory action. In light of these circumstances the sale could only be described as forced if there were indications that Stern had not wanted to sell the painting, or had not wanted to sell it at this time, for example in order to await an increase in its value. There is nothing to support this view. There is no evidence that Stern had a particular interest in the painting, or that it was expected to increase significantly in value.
    There are also no indications that Stern was not able to dispose freely of the proceeds of the sale. In his memoirs and letters he does not mention sales of this type although he strove to fully record the damage he had suffered. There is no evidence that he had to use the revenue to fund his or his mother’s emigration. At the time of the sale on June 24, 1936, Stern’s appeal against his non-acceptance into the Reich Chamber of the Fine Arts had not yet been rejected. His interest at this point in time was mainly in continuing to run the gallery as successfully as possible in order to enhance its reputation and preserve its value for the time after Nazi rule. In his memoirs he also describes where the money came from that the authorities extorted him into paying for his mother’s emigration visa – in addition to money that belonged to his mother herself he had to expend the revenue from selling the houses and also other paintings (“The money for the houses was lost in this way but at last we were safe in England. Again the Nazis break their promise, they send the furniture but withheld the very valuable paintings, now asking for not German money but English money of which they were rather short”). He does not mention income from gallery operations before 1937 or individual sales, which indicates that he did not connect these to a loss of assets.That the sale of the Marées painting was, despite the pressure of the political situation, from Stern’s point of view a sale in the course of “orderly normal business” is evidenced by his previously mentioned plans and activities in this period. As his memoirs show, he did not give up on his plan to find a buyer to hold the Düsseldorf gallery in trust in order to preserve it until early 1937. His interest was to maintain the gallery’s goodwill for the buyer and, in the interests of his “subsidiary idea,” also for himself and his family. His taxable income for the years from 1935 to 1937, respectively, which he claims corresponds to his profits from the gallery, shows that in his opinion he had succeeded in this. In her essay “Auktion 392 – Reclaiming the Galerie Stern, 2006” Max Stern expert Catherine MacKenzie describes his activities in this period as follows: “Travelling to Holland and Belgium and throughout Germany, he engaged in a frenzy of buying and selling. He purchased from the Rhineland’s aristocrats, found an American buyer for a Simon de Vlieger painting in 1936, and ... .” That Stern did not feel that the persecution situation forced him to conduct his purchases and sales in this period is also demonstrated by the fact that none of these sales were mentioned in his compensation and restitution suits after the war, or even in the submitted letters as a question to his lawyers as to whether restitution in this respect might be feasible.A fair and just solution in the spirit of the Washington Principles could therefore, taking into account the many known circumstances of this specific case, also have been interpreted in another way.
26. March 2019

Recommendation of the Advisory Commission in the case of the heirs of Max J. Emden v. Bundesrepublik Deutschland

On March 26, 2019 the Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans‐Jürgen Papier, announced that, in the case of Dr. Max James Emden vs. the Federal Republic of Germany, it had decided at its meeting of March 21, 2019 to recommend the paintings The Zwinger Moat in Dresden and The Karlskirche in Vienna (both by Bernardo Bellotto, also called Canaletto) be restituted to the heirs of Dr. Max James Emden. The two artworks are currently owned by the German government.

The Commission’s reasons for the recommendation are set out below.

The dispute concerns the two paintings named above, both of which are replicas or variants by the artist of earlier, larger versions. They are currently on permanent loan from the German government to the Militärhistorisches Museum Dresden (Zwinger Moat) and the Museum Kunstpalast Düsseldorf (Karlskirche). A third Bellotto of the same origin (Marketplace at Pirna) was erroneously restituted to the Netherlands after 1945 and is now considered lost.

The three paintings come from a collection owned by Dr. Max Emden, who acquired them between 1928 and 1930. In June 1938, art dealer Anna Caspari arranged the sale of the works to Karl Haberstock, who was a buyer of artworks for Adolf Hitler and his planned “Führermuseum” in Linz. The purchase price for all three Bellotto paintings was SFr. 60,000 in total, which —as handwritten on Caspari’s shipping notification to Haberstock dated June 13, 1938 and also noted in Haberstock’s cash book entry—corresponded to an equivalent value at the time of RM 34,250 or £2,777 15s 7d. A subsequent letter from Haberstock dated April 5, 1940 indicates that the foreign currency required was taken from the special EK account, i.e. derived from the (foreign) proceeds of works seized as “degenerate art”. There is no evidence that Max Emden actually benefited from the negotiated purchase price. It may have been true that the “transfer to Dr. E”, as Haberstock claimed in an undated letter to Caspari, “(was) completed on the first day of my stay in London”, but there is no corresponding account note in the files of the specified “Schweiz. Kreditanstalt Lugano” or “Locarno”. In Haberstock’s inventory books, both the receipt and the resale of the paintings to the Reichskanzlei on June 30, 1938 are recorded, which confirms that Haberstock was working officially on behalf of Hitler on this occasion. The paintings were given the Linz numbers 27, 35 and 115 and were temporarily deposited in Munich’s Führerbau as of approx. 1939/40 (Haberstock’s letter of April 5, 1940), from where they were transferred to the holdings of Munich’s Central Collecting Point, either directly or indirectly via one of the storage sites. From there, as mentioned above, the painting Marketplace at Pirna—as alleged Nazi‐confiscated Jewish property—was restituted to the Dutch state, who later resold it on the art market. The other two Bellottos under discussion here, for which no claimant had been found by the time the Collecting Point was closed (Max Emden’s sole heir, Hans Erich Emden, had emigrated to South America in 1941), became the property of the Federal Republic and were “held in trust”.

The descendants of Max Emden, as the claimants, are collectively of the opinion that particularly the forced sales carried out under the rule of National Socialism and the expropriation of his assets located in Germany led to the financial ruin of Max Emden. They maintain that the purchase price was also unreasonably low and was a result of Max Emden’s economic plight, which was entirely caused by the racial persecution to which he was subjected. They say it is incorrect that the sale was carried out “from a safe foreign country”, as there was no restriction on where persecuted citizens could “dispose of” their property during the National Socialist regime.       

However, the Federal Republic of Germany (claimant) takes the position that sales from safe foreign countries did not constitute forced sales as defined by the Allied Restitution Law. It states that this case also fails to provide sufficient evidence that would make compensation for a case of hardship appropriate. It says that the sale did not take place under tight time constraints associated, for example, with emigration or flight, nor was it undertaken as a result of financial hardship, because at the point the two disputed paintings were sold in June 1938, Max Emden had already been living in Switzerland for 10 years and had not found himself in serious financial distress that threatened his existence during this period.   

Max James Emden was born in Hamburg in 1874 as the son of an eminent Jewish family of merchants and rabbis (on his mother’s side). He converted to Protestantism in 1893. After studying chemistry and mineralogy and completing a PhD, he took over his father’s trading company M. J. Emden Söhne in 1904 and gradually developed it into one of the leading department store operators in what was then the German Empire. In 1926, he sold a large part of the business to Rudolf Karstadt AG, but continued to retain ownership of a considerable amount of property and shares under the old company name. With a clear affinity for the Lebensreform (“life reform”) movement centered around Monte Verità, he acquired the two Brissago Islands on Lake Maggiore in 1927 and began redeveloping them as his permanent residence in 1929. The municipality of Porto Ronco granted Emden citizenship rights in 1934, which meant he was also a Swiss citizen from this date onwards. His portfolio of securities deposited with Hamburg banks allegedly amounted to an estimated RM 2 million in the mid‐1930s; however, due to the tightening of restrictions on exporting foreign currency from 1933 onwards, these became “blocked accounts” and he was effectively deprived of access to them. The same applied to the rental income he obtained from property that he still owned and returns from company shareholdings. The confiscation and forced sale of Emden’s remaining real estate holdings and assets began in 1937. In addition, there were the customary restrictions, harassment and arbitrary measures taken against Jewish business owners and shareholders, as the Buomberger report for the (then still) Free City of Danzig showed in the case of Emden. Obviously, the originally existing but non‐transferable capital assets increasingly served to cover artificially created and non‐amortizable corporate loans and fictitious tax liabilities, which eventually resulted in the liquidation of M. J. Emden Söhne (June 5, 1939). For Max Emden, the apparent blessing of Swiss citizenship practically led to his economic downfall; while he could still have managed his arrangements and made provisions relatively unhindered until 1935, as a Swiss citizen he was already prevented from doing so prior to 1935 solely on account of the Third Reich's restrictive foreign exchange policy.  
The systematic destruction of people’s economic livelihoods by the Third Reich as a tool of National Socialist racial policy (and precursor to the Final Solution) thus also applied in the case of Max Emden. The growing financial difficulties were already noticeable everywhere by 1937, as his then secretary and confidante, Olga Ammann, credibly claimed. At the end of the 1930s, Emden was thus no longer able to pay his domestic staff and meet his tax obligations in Switzerland, while the properties on the Brissago Islands became more and more of an unmanageable burden. The policy of persecution pursued by the National Socialists therefore caused the financial ruin of Max Emden, who died in Porto Ronco on November 26, 1940.
Consequently, there is also no doubt that the sale of the aforementioned three paintings by Bernardo Bellotto to Karl Haberstock in early summer 1937 was not undertaken voluntarily but was entirely due to worsening economic hardship (“loss of assets as a result of persecution”), confirmed not least by the fact that Emden was forced to sell other valuable items from his household at the same time.

Finally, it remains to be clarified whether the purchase price of SFr. 60,000 (i.e. SFr. 20,000 or rounded up to RM 11,500 for each of the three paintings) corresponded to the market value that could be achieved at that time, i.e. can be considered reasonable. Irrespective of the fact that offers and counteroffers are part of day‐to‐day business (not only) in the art trade, Anna Caspari’s note (letter of November 25, 1937 to Haberstock) that we “(have) just caught the right psychological moment, he has probably lost a lot on the stock exchange and would therefore accept this price” not only confirms Emden’s financial predicament during the period of the sales negotiations. It also clearly indicates how much this predicament was deliberately exploited by potential buyers and also how every effort was made in the following seven and a half months to lower the price further until Emden finally rejected any further reduction with the remark that “the price has already been brought down by more than 20 percent” (Caspari to Haberstock on June 16, 1938). And finally, may the information provided by the claimant also be taken into account that just a short while later, the Reichskanzlei—probably on behalf of Hitler—acquired a painting “in the style of Bellotto” (thus by an imitator whose name was not known and who therefore was traded at a much lower price) for RM 15,000 from the Munich art market.

Notwithstanding the questions as to the reasonableness of the purchase price and the missing proof of transfer, the core facts of the case are Max Emden’s economic plight, which was directly caused by National Socialist persecution, and the associated loss of assets as a result of persecution. The Commission therefore arrives at the majority decision to recommend the return of the two paintings currently owned by the German government to the rightful heirs of Hans Erich Emden, as the former sole heir of Dr. Max Emden.

10. January 2017

Recommendation of the Advisory Commission in the case of the heirs Max und Margarethe Rüdenberg v. Landeshauptstadt Hannover

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Deputy Chairman Professor Dr. Reinhard Rürüp, has made the following recommendation in the case of Rüdenberg Heirs vs. City of Hanover (Sprengel Museum Hanover).

1. The subject of these proceedings is the watercolor painting Marsh Landscape with Red Windmill (or The Windmill) by Karl Schmidt‐Rottluff, dated “1922” on recto, which is located at the Sprengel Museum in Hanover and is thus in the possession of the City of Hanover.

There are no documents directly pertaining to the provenance of the watercolor for the period between 1922 and the late 1930s. In 1939 the work was purchased by chocolate manufacturer and art collector Dr. Bernhard Sprengel of Hanover, who together with his wife Margrit had been assembling a collection of modern, mainly expressionist art since 1937. Large parts of this collection – including the Schmidt‐Rottluff watercolor in question – were later gifted to the City of Hanover by Dr. Sprengel and his wife; they today form a significant part of the Sprengel Museum.

2. On April 22, 2013, the heirs of Jewish manufacturing couple Max and Margarethe Rüdenberg – their grandchildren Marianne Dumartheray, née Reynolds, Peter Reynolds, Professor Vernon Reynolds and Cecil Rudenberg – demanded that the City of Hanover return the watercolor as cultural property seized as a result of Nazi persecution.
Max Rüdenberg (1863–1942) and his wife Margarethe, née Grünberg, (1879–1943) resided at “Haus Schwanenburg“, Wunstorfer Str. 16A in Hanover with their children Eva (born 1900) and Ernst (born 1903). In the early 20th century Max Rüdenberg founded the company “Import und Reinigung chinesischer Bettfedern und Daunen” (“Import and Cleaning of Chinese Feathers and Down”) in Hanover‐Limmer. The business, which had purchasing agencies in China, was financially very successful, employing around 60 people in 1916. Max Rüdenberg was also politically active in Hanover – he was elected to the city council, among other things – and a patron of the arts.
From 1933 onwards the family fell victim to the racist policies of the Nazis. The couple’s son Ernst emigrated to Cape Town with his wife in 1936, while the three children of their daughter Eva were taken to safety in Britain on a “Kindertransport” in 1939. Eva Rüdenberg was later also able to flee to Britain, but her husband was murdered in Auschwitz. Max and Margarethe Rüdenberg remained resident in Hanover until 1942; in 1941 they were forced to sell “Haus Schwanenburg” to the City of Hanover. The Nazi authorities declared the property a “Judenhaus” (Jew house), and the Rüdenbergs were only allowed to continue using two of its rooms. On July 23, Max and Margarethe Rüdenberg were deported to Theresienstadt, where Max Rüdenberg died in September 1942 and his wife Margarethe in October 1943. Their entire estate became the property of the Reich by order dated July 1, 1942.
The Rüdenberg collection focused mainly on East Asian art, but it also included modern art. Due to increased discrimination against Jewish businesspeople, the “Vermögensabgabe” (property levy) demanded of Jews after November 9, 1938, and other special levies the couple found themselves under such financial pressure that they were forced to sell items from their art collection. Under the pretext of protecting the collection from air raids Max Rüdenberg was then coerced into agreeing to the relocation of the rest of the collection. On August 2, 1942, the remaining collection – mainly items from East Asia – was taken to the Kestner Museum in twelve crates and later relocated further.

3. In light of the persecution suffered by the Rüdenberg family it is evident, as the City of Hanover also unreservedly acknowledges, that they belong to the group of people entitled to restitution for cultural property seized due to Nazi persecution.
Disputed in the present case is however whether the watercolor by Schmidt‐Rottluff which the heirs are demanding be returned was part of the Rüdenberg collection, and if so, when and how it was transferred from that collection into the collection of the Sprengel family.

As the parties were unable to reach an agreement on this matter they agreed to submit the case to the Advisory Commission. They set out their positions in written statements dated October 31, 2015, and September 19, 2016, (Rüdenberg heirs) and March 17, 2016, and November 14, 2016, (City of Hanover) and moreover had the opportunity on November 22, 2016, to present their arguments orally at a hearing before the Commission.

4. As no purchase or sales documents for the acquisition of the watercolor by Max Rüdenberg or for its sale and its purchase by Dr. Sprengel survive, the Rüdenberg heirs base their claim for restitution on an inventory card from the Sprengel collection and on the information provided in the catalog for a Schmidt‐Rottluff retrospective held at Staatsgalerie Stuttgart on the occasion of the artist’s 85th birthday in 1969.
The typed inventory card lists the provenance of the 1922 watercolor Marsh Landscape with Red Windmill by Karl Schmidt‐Rottluff as follows: “Acquired from Pfeiffer, Hanover, 1939. Previous owner: unknown”. The last word was later crossed out by hand and corrected to: “Max Rüdenberg family, Hanover‐Limmer“. While there is no agreement on whether the inventory card was created in the course of Dr. Alfred Hentzen’s efforts to compile a collection catalog in the late 1940s or during the cataloging work of then‐trainee Barbara Mundt in the mid‐1960s, the correction is undisputedly in the handwriting of Margrit Sprengel. It is assumed that this correction was made in the late 1960s. The entry listing the Rüdenberg family as previous owners remained unaltered for more than four decades, until the Rüdenberg heirs made their restitution claim.
For the 1969 retrospective, Dr. Günther Thiem (1917–2015), director of the Department of Prints, Drawings and Photographs at Staatsgalerie Stuttgart and an art historian, Schmidt‐Rottluff expert and friend of the artist, compiled a catalog financed by, among others, Dr. Bernhard Sprengel. This catalog lists the Marsh Landscape with Red Windmill of 1922 under no. 23 with the following provenance information: “Provenance: Max Rüdenberg, Hanover‐Limmer (probably from an exhibition held by the Kestner Society). Dr. Bernhard Sprengel, Hanover”. In the foreword to the catalog Dr. Thiem explained that he had made efforts to determine the provenance of the exhibited works but had not always succeeded.
Regarding the time at which the watercolor was acquired by Max Rüdenberg the claimants point out that the director of the Kestner Society received 13 watercolors from Schmidt‐Rottluff in 1922, one of which was described as By the Windmill (as the titles of Schmidt‐Rottluff watercolors were often not definitive, but instead tended to vary, this may have been the watercolor in question). The information in the 1969 catalog, according to which Rüdenberg bought the watercolor from an exhibition held by the Kestner Society, is supported by the fact that Rüdenberg was one of the Society’s founding members in 1916 and is proven to have purchased artworks from the exhibitions held by the Kestner Society.
A letter written by Dr. Sprengel to Berlin gallery owner Joseph Nierendorf on July 5, 1939, is presented as evidence for the date on which Dr. Sprengel acquired the watercolor. It reads: “Yesterday I found two pages at a friend’s that we have with great pleasure added to our collection: 1 watercolor by Schmidt‐Rottluff from 1922 and a lithograph of a woman in profile by Nolde. I paid RM 180.‐  for the Schmidt‐Rottluff and RM 40.‐  for the Nolde lithograph. I think that is cheap.” The fact that no other watercolor by Schmidt‐Rottluff from 1922 is known to have existed in the Sprengel collection leads the claimants to the conclusion that the work in question must have been the Marsh Landscape with Red Windmill or The Windmill (the work’s older title). This acquisition date would also, according to the claimants, match the period in which Rüdenberg was forced to sell parts of his collection.
In connection with the letter to Nierendorf the claimants interpret the information “Purchased from Pfeiffer, Hanover, 1939” on the inventory card to mean that the “friend” was the antiques and art dealer Erich Pfeiffer in Hanover, with whom Rüdenberg also had a business relationship at this time, making it highly likely that Pfeiffer had previously bought the watercolor from Rüdenberg or agreed to sell it for him on commission.

5. The City of Hanover has countered the assumption of the watercolor’s provenance from the Rüdenberg collection by stating that firstly it is not proven that the painting was ever the property of Max Rüdenberg and secondly it cannot be proven that he put such an item up for sale in the presumed period (1938/1939).
The entries on the inventory card cannot be considered sufficient evidence, according to the respondent, and cannot replace definitive records of ownership or purchase. With regard to the handwritten entry by Margrit Sprengel the respondent notes that she was not an art historian and had not undertaken any research of her own into the collection. Furthermore, other provenance information in the collection’s inventory had also proven incorrect. The provenance information in the 1969 catalog had been based only on assumptions by Dr. Thiem, not on verifiable facts; it should moreover be noted, according to the respondent, that the provenance information for even the very next catalog item, no. 24, is inadequate.
The City of Hanover further contends that the Rüdenberg heirs cannot base their claims regarding ownership and loss of ownership on prima facie evidence, and notes that one of several possibilities being more likely than the other does not constitute adequate proof. According to the respondent, neither the inventory card nor the catalog information can be considered clear evidence of ownership or loss thereof. The City of Hanover claims that art dealer Pfeiffer dealt mainly in antiques, and not in modern art, making it highly unlikely that the Schmidt‐Rottluff watercolor was bought and sold by Pfeiffer; the documents of the Sprengel family moreover provide no indication of a business relationship with Pfeiffer. Even if one were to assume that Rüdenberg had owned and sold the painting, this could, according to the respondent, also have occurred at a much earlier date, possibly before 1935. As Dr. Sprengel had also sold on paintings, his letter to Nierendorf might furthermore refer to another Schmidt‐Rottluff watercolor that can no longer be identified. The respondent concludes that in light of the cited sources the standards of provenance research do not allow provenance to be ascertained with regard to Max Rüdenberg, and the restitution claim is therefore unfounded.

6. The Advisory Commission has carefully examined the arguments presented by the parties and the documents they have submitted and has arrived at the following conclusions:
Both the inventory card and the catalog entry can fundamentally be considered facts that justify a strong assumption that Max Rüdenberg owned the watercolor. Alongside the collection items themselves, inventory cards are a central component of any collection, as only they make it possible to identify the individual items in the collection. It can therefore be presumed that the inventory cards pertaining to a collection are not created without very reliable information. In the present case this applies both to the information from Barbara Mundt and to the correction made by Margrit Sprengel. That Margrit Sprengel was not a trained art historian is irrelevant in this regard. She was familiar with the creation and management of the collection; it is difficult to imagine that she would have made such a change without being certain, and further unlikely that she would have done so without consulting her husband. In this case it moreover seems reasonable to assume that the Sprengel and Rüdenberg families were acquainted – both men were well‐known in Hanover, were art lovers and collectors and also members of the Kestner Society. In light of the political and racist threat to the sellers’ very existence Margrit Sprengel may therefore have better recalled the acquisition of this watercolor from the Rüdenbergs (she used the term “Rüdenberg family” in her correction) than she might other acquisitions made for the collection.
Regarding the note on provenance in the printed catalog it can hardly be assumed that the renowned art historian and Schmidt‐Rottluff expert Dr. Thiem made this statement without verified information, not least as in contrast to the note on the acquisition “from an exhibition held by the Kestner Society” Max Rüdenberg’s name was not given as merely “probable”. From experience it can reasonably be assumed that Thiem, if he had no written documents on the painting’s provenance, would have asked the person who knew best: the buyer, owner and provider of the watercolor, Dr. Bernhard Sprengel himself, with whom Dr. Thiem had long been in contact and who was also involved in funding the catalog. There is moreover no obvious reason or explanation as to why Max Rüdenberg should have been named as the previous owner in both the catalog and the inventory card of the Sprengel Collection if he was not. As opposed to an art dealer, who frequently sells items on commission, it must in the case of a collector like Max Rüdenberg moreover be assumed that a work of art that was in his possession and sold by him would also be his property, if there is no evidence to the contrary.
There is no concrete evidence for the assumption that Max Rüdenberg might have sold the watercolor at a much earlier date than late 1938/1939. No information exists regarding sales from his collection before this time, and his financial situation up until then evidently did not necessitate that he sell any part of it. When intensifying persecution finally forced him to do so, it makes sense to assume that he initially left the core of his collection, the East Asian items, untouched and instead sold other works less central to the collection, such as the watercolor in question. In light of the difficult persecution situation such sales regularly had to be made below value; the Rüdenbergs were also no longer able to freely dispose of the proceeds of the sale.
The role Hanover antiques and art dealer Erich Pfeiffer played in the transfer of ownership from Rüdenberg to Sprengel cannot be definitively established. There is clear evidence that Max Rüdenberg maintained a business relationship with Pfeiffer regarding the necessary sale of items from his property, so that it appears possible, perhaps even probable, that the watercolor was sold to or through Pfeiffer. Regarding its purchase by Dr. Sprengel, the inventory card unambiguously states, “Acquired from Pfeiffer, Hanover, 1939”, whereas Dr. Sprengel himself reported in his letter to Nierendorf dated July 6, 1939, that he had “yesterday” bought a 1922 Schmidt‐Rottluff watercolor from a “friend”, which seems to argue against his having purchased it from Pfeiffer. The choice of words in the letter may however be explained by the fact that it was at this time already necessary to be particularly careful when trading in what was known as “degenerate art”, so that it may have been preferable to avoid using names. This would resolve the apparent contradiction between having purchased from a dealer and the described  purchase from a “friend”.

7. Considering the evidential difficulties frequently arising from the persecution, forced emigration, deportation to camps, total loss of property and murder of previous owners in restitution cases, in the present case the inventory card and the provenance information in the exhibition catalog provide such a strong and reliable presumption of Max Rüdenberg’s original ownership that a general claim that there may be a potential other owner or another possible course of events is insufficient to disprove it. No specific facts that would argue against this presumption have however been presented to the Commission.

Against this background the Advisory Commission has arrived at the conclusion that the watercolor Marsh Landscape with Red Windmill (or The Windmill) by Karl Schmidt‐Rottluff was taken from Max Rüdenberg, or from the Rüdenberg family, as a result of Nazi persecution. The Commission therefore recommends that the City of Hanover return the artwork to the heirs.

07. December 2016

Recommendation of the Advisory Commission in the case of the heirs of Felix Hildesheimer v. Franz Hofmann und Sophie Hagemann Stiftung

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Rürup (deputy chair of the Commission) has produced the following opinion in the matter of the heirs of Felix Hildesheimer v. Franz Hofmann und Sophie Hagemann-Stiftung.

  1. The proceedings concern a violin built by Giuseppe Guarneri (Josephus Guarnerius filius Andreae) in Cremona in 1706. A number of experts have certified that the violin is an authentic Guarneri.

Most of the history of this instrument is unknown. All that is known for sure is that in 1937, it was in the possession of Hamma & Co., a Stuttgart music instrument dealer, which sold it to Felix Hildesheimer, a dealer in music supplies in Speyer, in January 1938.
The next known date is 1974, when the violinist Sophie Hagemann acquired the violin from Ludwig Höfer, a violin maker in Cologne. After Sophie Hagemann died in 2010, the instrument came into the possession of the Franz Hofmann und Sophie Hagemann Stiftung (a civil-law foundation based at the Nuremberg University of Music), which Sophie Hagemann had founded in 2005 and named as her sole heir. In addition to promoting the public performance of compositions by her husband, the composer and pianist Franz Hofmann, who went missing in action in World War II, the main purpose of the foundation is to promote especially talented young musicians.

  1. The Hildesheim heirs, represented by the Holocaust Claims Processing Office of the New York State Department of Financial Services, base their claim above all on the fact that Felix Hildesheimer and his family were subject to racist persecution during the National Socialist era.
    In 1898, Felix Hildesheimer took over the music store that his father had founded in 1870. The store was subject to a boycott starting in 1933, and was partly demolished in 1934. In 1937, Felix Hildesheimer found himself forced to give up his business and sell his house. Both of his daughters emigrated: Martha to the U.S. in September 1938 and Elisabeth to Australia in spring 1939. Felix Hildesheimer and his wife Helene then tried unsuccessfully to follow their younger daughter to Australia. Felix Hildesheimer committed suicide on 1 August 1939; Helene Hildesheimer was deported to Gurs, in southern France in October 1940. She had to leave behind all her property, which was seized by the Gestapo. In early 1941, she was able to flee to the U.S. Because the Guarneri violin was not in the possession of the family members who had emigrated, the heirs argue that Felix Hildesheimer must have sold it under the pressure of persecution – and thus for less than its actual worth. Or, if it was still in the family’s possession at the time Helene Hildesheimer was deported, then it must have been seized by the Gestapo. In either case, according to the heirs, it constituted a loss of property as the result of Nazi persecution (NS-verfolgungsbedingter Vermögensverlust) justifying a claim to restitution.Helene Hildesheimer died in 1990; her heirs were her daughters Martha Hildesheimer Strauss and Elisabeth Hildesheimer Locke. They and their husbands have also died in the meantime. The active legitimate heirs are their children, Sidney Strauss and David Sand (formerly Locke).
  2. The Franz Hofmann und Sophie Hagemann Stiftung, which undertook intensive, though largely unsuccessful, efforts to clarify the violin’s provenance, question the restitution claim, because the Stiftung says that no information was available on the fate of the violin after Felix Hildesheimer acquired it.
    According to the Stiftung, it is unclear how the family lost possession of the instrument and who acquired it, under what circumstances and for what price. The Stiftung says that it was also unclear from whom Hamma & Co. acquired the violin and on whose behalf they sold it. According to the Stiftung, this transaction could have also constituted a loss of property as the result of Nazi persecution. The Stiftung also says that it was worth noting that, in her compensation proceedings, Helene Hildesheimer claimed the loss of a Berdux grand piano but not the Guarneri violin. The Stiftung says that Sophie Hagemann acquired the violin in 1974 in good faith, and that the 70,000 Deutschmark she paid, along with a violin given in trade, represented a fair market price.
  3. Regardless of the legal positions they represent, both sides have expressed their interest in agreeing on a fair and just solution in line with the Washington Principles. For this reason, the Stiftung called the Advisory Commission, and the Holocaust Claims Processing Office, as the representative of the Hildesheimer heirs, joined in without hesitation.
    After the Commission agreed to the proceedings, the parties presented their positions in written statements of 23 November 2015 and 22 January 2016. A hearing that was to take place via Skype was cancelled at the last minute by the Holocaust Claims Processing Office; it took place on 6 July 2016. Owing to the lack of documents to clarify the right of inheritance, the Commission could not come to a final conclusion at that time. Advising was set to continue on 22 November 2016.
  4. After carefully examining the statements and documents as well as the oral arguments presented, the Advisory Commission came to the following conclusion:
    It is impossible to determine what happened to the violin acquired by Felix Hildesheimer in January 1938 up to the time of his suicide in August 1939 or of the deportation of Helene Hildesheimer in October 1940 and the following seizure of her property. However, it is undisputed that Felix Hildesheimer was the last known owner of the instrument, and that he and his family were driven by racist persecution into emigration and death. Under these circumstances, it is very likely that the violin was sold under duress or seized, constituting a loss of property. In line with the Washington Principles and the Joint Declaration of the Federation, the federal states and the national associations of local authorities to implement these principles, a loss of property as the result of Nazi persecution should be assumed in such a case.
    On the other hand, it should be recognized in the present case that the violin was acquired in good faith, and that the Stiftung as owner undertook an exemplary effort to clarify the provenance of the violin and any possible restitution claims. In 2012, it appointed an expert committee which conducted research in the relevant archives; in April 2013, it reported the violin to the Lost Art Internet Database as found; at the same time, it attempted with the help of a well-known provenance researcher to contact the heirs living in the U.S. In January 2014, it made its documentation on the difficult issue of provenance public at a press conference.
    The Stiftung would like to have the violin restored, as it is currently in poor condition, in order to lend it to talented students of the Nuremberg University of Music for one to three years, in line with the purpose of the foundation. It also plans to require the musicians to whom the violin is lent to give concerts in Speyer with an appropriate programme commemorating the history of the Hildesheimer family and their music store.Under these circumstances, the Advisory Commission believes that the fair and just solution desired by both sides consists in a balance of interests. It therefore recommends that the violin, with an estimated market value of about 150,000 euros, less the necessary cost of restoration amounting to about 50,000 euros, should remain with the Stiftung, which should pay the heirs a sum of 100,000 euros in compensation.
29. April 2016

Recommendation of the Advisory Commission in the case of the heirs of Alfred Salomon v. Stadt Gelsenkirchen

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by its Deputy Chairman, Prof. Dr Reinhard Rürup, has produced an opinion on the case of the heirs of the Salomon family v. city of Gelsenkirchen.

  1. The proceedings concern the painting Bacchanale (oil/canvas, 117 x 204 cm) painted by Lovis Corinth in 1896. The heirs of the Salomon family, Monique and Peter Rolf Ludnowski, demand the restitution of the painting, which the city of Gelsenkirchen refuses, arguing that Martha Salomon received a compensation payment in 1962.

Until 1936, the painting was owned by the Jewish businessman Alfred Salomon of Berlin-Wilmersdorf. He had acquired the painting shortly after World War I from the Caspary gallery in Munich at a price of 23,000 Reichsmark. Alfred Salomon's ownership title is uncontested. It was expressly acknowledged in the course of compensation proceedings held in Berlin in 1962.
Starting in 1933, the Salomon family was subject to racist persecution by the Nazi regime. Under the pressure of persecution and in order to prepare their emigration, the family found themselves forced to sell all their home furnishings, library holdings and artworks including the painting by Corinth. The sale was effected by the art auction house Rudolph Lepke on 11 and 12 March 1936. In the auction catalogue, the Corinth painting is listed under item number 123. According to Alfred Salomon's widow, Martha Salomon, the total proceeds of the auction amounted to just under 20,000 RM, an amount that fell clearly short of the selling value estimated by the auction house (41,441 RM). The price paid for the Corinth painting at that auction is not known. Before the auction, the auction house estimated its selling value to be 7,500 RM.
In 1936, the company Salomon & Kaminsky OHG in which Alfred Salomon held a 50 % share also had to be liquidated. In 1937, Alfred and Martha Salomon together with their two children emigrated to the Netherlands. When the German Wehrmacht occupied the Netherlands, the Salomon family were arrested and deported to concentration camps. Martha Salomon was the only one of them to survive. Alfred Salomon died on 1 February 1945 in Bergen-Belsen concentration camp. The children were murdered in Auschwitz.

Martha Salomon was the heir of her husband, Alfred Salomon. She died in 1971 leaving her estate to her niece, Ruth Ludnowski, and her nephew, Heinz Max Ehrlich. The latter died in 1979 and was succeeded by his sister Ruth Ludnowski who drew up a testament designating her grandchildren Monique and Peter Rolf Ludnowski as her heirs. She died in 1999. When the heirs learned that the Corinth painting was held by the Kunstmuseum of the city of Gelsenkirchen, they requested the city in December 2010 to investigate the provenance of the painting and asked for its restitution. It took until 2013 to establish unequivocally that the Gelsenkirchen painting is actually the one which had been owned by Alfred Salomon until 1936.

  1. After World War II, Martha Salomon filed a claim in Berlin to receive compensation for the property losses sustained by her and her family as a result of Nazi persecution. In the framework of a settlement, she was granted a payment of 33,200 Deutschmark in 1962 to compensate for the "underselling" losses of 60,000 RM or 12.000 DM incurred in the auction, the "Reich Flight Tax" (Reichsfluchtsteuer) that the family had paid and other costs. The value assumed for the Corinth painting, which at the time of the settlement was deemed lost, is not known. It is to be assumed that it accounted for less than 20% of the total "underselling" losses, i. e. at the utmost 2,400 DM, an amount far below the market value at the time.
  2. The city of Gelsenkirchen acquired the Corinth painting in 1957 from the Cologne gallery Czwiklitzer at a price of 14,500 DM. The previous owners in the period between 1936 and 1957 and in particular the erstwhile Jewish owner were obviously not known to the city of Gelsenkirchen when it acquired the painting. When it was no longer contested that Alfred Salomon had been the owner of the painting which he lost under the pressure of Nazi persecution, the heirs demanded its restitution in 2013, while the city of Gelsenkirchen declared the restitution claim to be unjustified because Martha Salomon had received full compensation for the property losses sustained by her, including the loss of the painting in question.
    In the course of 2014, both sides made several attempts to achieve a compromise. The heirs offered the city among other things a compensation payment of 65,000 euros if the city of Gelsenkirchen were to return the painting to the heirs, while the city of Gelsenkirchen demanded a percentage share of the increase in the painting's value since its acquisition in 1957 amounting to up to 150,000 euros, if the painting were to be restituted and subsequently sold by the heirs. The parties also discussed the idea of commissioning a high-quality copy of the painting which, following the eventual restitution, would be exhibited in the Gelsenkirchen Kunstmuseum together with information concerning the painting's history and the fate of its former owners.
  3. When it became evident that it would not be possible to achieve an agreement between the parties on that basis, they agreed in December 2014 to submit the case to the Advisory Commission. After the Commission had accepted the case, both parties submitted their positions in statements dated 8 March and 18 June 2015 and 8 March and 5 April 2016, respectively. The final hearing of the parties was held on 12 April 2016.
  4. After a thorough examination of the statements and documents that were submitted to the Commission and following the hearing of both parties, the Advisory Commission arrived at the conclusion that the sale of the Corinth painting in March 1936 was a forced sale due to Nazi-persecution. There is neither proof nor evidence suggesting that Alfred Salomon received an adequate price for the painting in 1936 or that in the 1962 compensation proceedings his heirs received adequate compensation for the loss of the valuable painting which even five years earlier had been sold at a price of 14,500 DM. For this reason, the Advisory Commission recommends that the painting be restituted to the heirs.
    The Advisory Commission suggests that the city of Gelsenkirchen be compensated for the purchase price and the costs that it has incurred to preserve, maintain and publicly display the painting since 1957. The amount of 65,000 euros which was already offered by the heirs at an earlier stage seems appropriate for this purpose. The Advisory Commission sees, however, no justification for giving the city of Gelsenkirchen a share of the increase in the painting’s value since 1957. There are neither legal nor moral reasons for imposing such a requirement which would qualify the restitution to the heirs.
    The Commission also recommends that the previously discussed idea be taken up, i. e. that a high-quality copy of the painting be made and displayed in the Kunstmuseum, together with information about the painting’s history and the fate of the former owner and his family. The costs involved should be borne jointly by the two parties.
21. March 2016

Recommendation of the Advisory Commission in the case of the heirs of Alfred Flechtheim v. Stiftung Kunstsammlung Nordrhein-Westfalen

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Rürup (deputy head of the Commission) has produced the following opinion in the matter of the heirs of Alfred Flechtheim v. Stiftung Kunstsammlung Nordrhein-Westfalen, Düsseldorf.

  1. The proceedings concern the painting Violon et encrier (Violin and inkwell) by Juan Gris (oil on canvas, 89.9 cm x 60.7 cm, Stiftung Kunstsammlung Nordrhein-Westfalen, Düsseldorf), the restitution of which the Flechtheim heirs demand.

Juan Gris painted the still life in 1913, and the art dealer and gallery owner Daniel-Henry Kahnweiler acquired it in Paris in 1913/1914. Because Kahnweiler was a German citizen, the painting was seized by the French government during World War I as “enemy property”. In 1921, a buyers’ syndicate formed by Kahnweiler bought the painting for 470 francs at an auction of the confiscated stock of his gallery. Alfred Flechtheim, one of Kahnweiler’s most important business partners, was a member of this syndicate, with a stake of 6,000 francs. Later, the painting came into the possession of Alfred Flechtheim, although it is not entirely clear how. In 1925, Flechtheim displayed the painting at his Düsseldorf gallery and in 1930 at his Berlin gallery. From the late 1920s at the latest, the painting was in Berlin, as confirmed by two photographs of Flechtheim’s private home in Berlin (taken around 1929/1930) and by Carl Einstein’s book, Die Kunst des XX. Jahrhunderts (The art of the 20th century), which in its first and second editions (1926 and 1928) listed the painting as being in Flechtheim’s collection in Düsseldorf and in its third edition (1931) as being in his collection in Berlin. In the spring of 1933, Flechtheim loaned the painting to the Kunsthaus Zürich for a Juan Gris exhibition (2 to 26 April). The catalogue for this exhibition listed the painting, which was not for sale, as having been loaned by “Mr Alfred Flechtheim, Berlin”. Flechtheim stated that the painting was insured for 5,000 Swiss francs (4,067 Reichsmark).
In accordance with Flechtheim’s wishes, the painting remained in Zürich, along with other works he had loaned, after the exhibition ended. In November 1933, it was sent to the Galerie Simon in Paris, whose managing partner was Daniel-Henry Kahnweiler. Flechtheim picked up the painting there in early December. In early 1934 at the latest, Flechtheim transferred the painting to London, where it was displayed with numerous other paintings from his collection in an exhibition of works for sale that he organized at the Mayor Gallery, 20th Century Classics. During this exhibition or later, the painting was sold to Anna Dorothea Ventris (London) for an unknown price. After her death in 1940, the painting was inherited by her son Michael Ventris, who died in 1956. No further information is available on how the painting went from Galerie Berggruen in Paris to Galerie Nathan in Zürich. In 1964, Werner Schmalenbach bought the painting from Galerie Nathan on behalf of the Kunstsammlung Nordrhein-Westfalen for 450,000 Deutschmarks. Given the prices paid for similar Gris paintings at Christie’s sales in New York (2011) and London (2012), the Kunstsammlung Nordrhein-Westfalen estimates the current market value at “more than 15,000,000 euros”.

Concerning the application for restitution lodged by the heirs of Alfred Flechtheim, two things above all are in dispute:
firstly, whether Flechtheim was the owner of the painting Violon et encrier when it was sold in London in 1934; and secondly, whether the sale of the painting at the Mayor Gallery constitutes a loss of property as the result of Nazi persecution (NS-verfolgungsbedingter Vermögensverlust).

  1. The Flechtheim heirs justify their claim to restitution by arguing that the prominent Jewish art dealer Alfred Flechtheim was one of the most visible representatives of modern art already during the Weimar Republic and thus one of the explicit targets of National Socialist enmity; from the time the Nazis came to power in 1933, Flechtheim was such an object of Nazi aggression and persecution, the heirs argue, that already in spring 1933 he must have felt it would be impossible to continue working as an art dealer in Germany. According to the heirs, the manager of Flechtheim’s gallery in Düsseldorf, Alex Vömel, took over that gallery in late March; the Berlin gallery and the business Alfred Flechtheim GmbH, whose sole partner since 1925 had been Alfred Flechtheim himself, had to cease operations effective 1 November 1933. The heirs say that Flechtheim had to hire an auditor to conduct liquidation proceedings and that this auditor had reached an out-of-court settlement with Flechtheim’s creditors in order to avert the threat of bankruptcy. According to the heirs, from late May Flechtheim, who maintained his primary residence in Berlin until 1936, was forced to spend most of his time, apart from brief visits to Berlin, in Zürich, then Paris and, starting in late 1933, above all in London and was unable to duplicate his earlier success as an international art dealer before his death in March 1937.
    The Flechtheim heirs view the sale of the Gris painting by the Mayor Gallery as a sale under duress (Zwangsverkauf) made necessary by Flechtheim’s financial emergency resulting from Nazi persecution. The sale thus constitutes a loss of property as the result of Nazi persecution, according to the heirs. Although the price paid for the painting is unknown, the heirs say it must be assumed that the sale price was below the market value. They also argue that, although the sale took place outside Germany, Flechtheim would not have been able to dispose freely of the proceeds from the sale, because, as he wrote to George Grosz in mid-April 1934, he had to pay off his creditors in the Berlin liquidation proceedings. With regard to the question whether Alfred Flechtheim was the owner of the painting Violon et encrier, the heirs believe there can be no reasonable doubt that in 1933 Flechtheim was the sole owner of the work in question. They assert that he apparently purchased the painting from the pool of works bought by the syndicate at auction in 1921 or shortly thereafter, by taking advantage of the right of syndicate members to buy individual works and buy out the other co-owners’ shares. The fact that the painting was located in his private home for years is a clear indication, according to the heirs, as is the fact that Carl Einstein’s definitive work and the exhibitions since the mid-1920s listed its provenance as the collection of Alfred Flechtheim. The heirs argue that all attempts by the opposing side to construct co-ownership of the painting by others or to declare the painting goods on commission of Flechtheim as gallery owner are pure speculation.On the basis of these arguments, the Flechtheim heirs therefore demand restitution of the painting Violon et encrier.
  2. The Stiftung Kunstsammlung Nordrhein-Westfalen (Foundation of the art collection of North Rhine-Westphalia) has no doubt that Alfred Flechtheim was among those persons directly threatened by the National Socialists’ coming to power and forced to leave Germany owing to racism and reasons of cultural policy. The Stiftung also believes that it was clear from the start that Flechtheim had no future as an art dealer in a National Socialist German Reich.
    Unlike the Flechtheim heirs, however, the Stiftung does not believe that Alfred Flechtheim found himself in an extreme financial emergency at the time “Violon et encrier” was sold. The Stiftung notes that, after the loss of his galleries in Germany, Flechtheim was able to remain active in the international art trade, thanks to his knowledge, experience and business contacts abroad; and that he successfully collaborated with Galerie Simon (Kahnweiler) in Paris and Mayor Gallery in London, took part in a considerable number of modern art exhibitions and was able to dispose of a significant share of artworks in Zürich, Paris and London that he had collected as a gallery owner or private person. The Stiftung argues that the Gris painting was sold to Anna Dorothea Ventris not under duress, but rather in the context of his normal activity as an art dealer which he had continued in London. According to the Stiftung, there is no reason to assume that the sale price was less than the market value. Flechtheim was able to dispose freely of the money in London, according to the Stiftung, which also asserts that he had already made all the payments owed by him in connection with the liquidation of the GmbH by this time.
    In addition, the Stiftung believes that the Flechtheim heirs have no firm evidence that Alfred Flechtheim was the owner of the painting Violon et encrier at the time it was sold in 1934, but merely presented circumstantial evidence, all of which the Stiftung says has been refuted. As a result, according to the Stiftung, the fundamental prerequisite for restitution, namely proof of ownership at the time of loss, has not been met. Although Flechtheim had the painting in his possession since the 1920s, the Stiftung argues, there is no document to show without a doubt that it was his property. The Stiftung says there is no evidence for the supposition that Flechtheim, as a member of the buyers’ syndicate of 1921, acquired sole ownership of the Gris painting. The fact that the painting hung in his private home during the late Weimar Republic has no value as evidence, according to the Stiftung, because other examples could be found to show that artworks for sale on commission also hung in Flechtheim’s home. Nor do the references to provenance constitute conclusive evidence, according to the Stiftung, because other examples could be found to show that Flechtheim did not strictly distinguish between his private property and that of his galleries. The same applies to the question whether there were co-owners of the painting, the Stiftung argues, because it would be possible to show that in certain cases, Flechtheim described artworks co-owned by others or works of which he owned no part at all as belonging to the Alfred Flechtheim collection. The Stiftung says that even in Flechtheim’s estate, there were a number of paintings, mainly works by Paul Klee, that were jointly owned by Kahnweiler and Flechtheim in equal shares.On the basis of this information, the Stiftung Kunstsammlung Nordrhein-Westfalen rejects the restitution claim by the Flechtheim heirs.
  3. After the parties were unable to achieve a consensus, they agreed to refer the case to the Advisory Commission. The Stiftung Kunstsammlung Nordrhein-Westfalen appealed to the Advisory Commission on 15 December 2014 and the heirs of Alfred Flechtheim did so on 2 March 2015. The parties presented extensive arguments on 30 March and 7 July 2015, with additional written documents submitted on 14 December 2015 and 21 and 23 January 2016.After careful examination of the documents and evidence presented and after hearing the parties on 12 February 2016, the Commission came to the conclusion that the sale of the Juan Gris painting Violon et encrier in London in 1934 did not constitute a loss of property as the result of Nazi persecution and that it therefore cannot recommend returning the painting to the heirs of Alfred Flechtheim.The Commission is aware that, as a leading advocate of modern art, internationally active art dealer and prominent German Jew, Alfred Flechtheim was a clear target of National Socialist hate even before the Nazis came to power, and that as a result he not only faced special personal threat from the rising Third Reich, but also and above all had absolutely no possibility to continue in his chosen career. In view of this persecution, in 2013 the Commission recommended returning Oskar Kokoschka’s portrait of Tilla Durieux from Cologne’s Ludwig Museum to Flechtheim’s heirs. That case differed from the present case, however, in that Flechtheim’s ownership of the Kokoschka painting was not in dispute and that the loss of ownership was directly connected to the closing of the Galerie Alfred Flechtheim in Düsseldorf which was forced by the political circumstances.With regard to the present case, the Commission views the situation of Alfred Flechtheim in the five years from the end of the Weimar Republic in 1933 and his early death in London in 1937 as follows:
    In financial terms, Flechtheim was in an extremely difficult situation on the “brink of ruin” already in 1932 as the result of the global economic crisis and the “almost total collapse of the market for the paintings that Flechtheim preferred to deal in” (Drecoll/Deutsch, 2015). An attempt to revive the business through joint auctions with another Düsseldorf gallery and a well-known Munich auction house in December 1932 was not particularly successful. After a second auction in mid-March 1933 had to be discontinued following Nazi disruptions, Flechtheim realized immediately that it would be impossible for him to continue as an art dealer under the Nazi regime. Within a few days, he handed the Düsseldorf gallery over to the gallery manager, ceased the operations of the Berlin gallery and the business Alfred Flechtheim GmbH effective 1 November 1933 and hired an auditor to start liquidation proceedings. Although the liquidation proceedings ended favourably for him with an outof-court settlement, although he did not lose any artworks to direct action by the Nazi regime before his death and was able to send much of his art collection and gallery holdings abroad, and although he was able to maintain his official residence in Berlin until 1936 and stay there repeatedly for brief visits, as an art dealer forced to live abroad in Western Europe he was certainly one of the victims of the National Socialist regime.
    Flechtheim’s efforts to become established in Paris and London as an expert for modern art and a leader in the international art market had only limited success not least because of the lack of demand for modern art. He was able to travel and make new business contacts as well as promote, organize and participate in ambitious exhibitions. He also had an expense account and was paid a commission for works sold. He was able to send the painting Violon et encrier, like other paintings in his possession, to Zürich, Paris and London without having to meet special requirements from Germany. In February/March 1934, the Gris painting was shown in the exhibition 20th Century Classics, initiated by Flechtheim, at the Mayor Gallery in London; during the exhibition or shortly thereafter, the painting was sold. The Mayor Gallery was damaged in the war, and no sale contract now exists. As a result, although the name of the buyer (A. D. Ventris) is known, the name of the seller is not.
    The question whether Flechtheim owned the painting Violon et encrier at the time it was sold to A. D. Ventris cannot be answered beyond a doubt. The only certainty is that Flechtheim, as a member of the buyers’ syndicate formed by Kahnweiler, was a co-owner of the painting in 1921. It is conceivable, but cannot be proved, that he later acquired sole ownership of the painting. The written documents submitted by the Flechtheim heirs state that Flechtheim apparently acquired the painting in 1921 or shortly thereafter, and that it is reasonable to assume that he took the painting to Berlin as his personal property. It is undisputed that Flechtheim had the painting in his possession from 1925 at the latest, that he described it in exhibitions as part of the Alfred Flechtheim collection and that it was on display in his private home, alongside many other works of art. These are circumstances that speak in favour of Flechtheim as owner; however, as the Stiftung Kunstsammlung Nordrhein-Westfalen has shown and as can be read in the recent research on the Flechtheim case, they are not necessarily proof of ownership. Because Flechtheim was both an art dealer and a collector, it is almost impossible to distinguish between his private property and the property of his galleries without specific information in the individual case. Such information is not available for “Violon et encrier”. There is thus no proof of ownership for the period in which Flechtheim was subject to persecution; such proof is the necessary prerequisite for restitution.
    Even if one assumed that Flechtheim was the painting’s owner, the question remains as to whether the sale constituted a loss of property as the result of persecution. The sale price is not known, but there is nothing to indicate that it would not have been sold for a fair price on the London art market of the time. The same applies to the question whether Flechtheim (if he was the sole owner) was able to freely dispose of the money received from the sale. There is no evidence to support the assertion of the Flechtheim heirs that Alfred Flechtheim had to use the money to immediately pay off his creditors in Berlin; and this does not appear very likely in view of the fact that an out-of-court settlement had already been reached by that time. The reference to Flechtheim’s comment in his letter of 15 April 1934 to George Grosz, stating that he had included all his pictures among the assets to be liquidated and was selling them to pay off his creditors, does not necessarily constitute proof, because Flechtheim was still in control of a surprisingly large share of his paintings in Paris and London even after the settlement. According to the Flechtheim heirs, Alfred Flechtheim sold more than 150 artworks abroad between 1933 and 1937.If an art dealer and collector persecuted by the Nazis sold a painting on the regular art market or at auction in a safe country abroad, there would have to be very specific reasons to recognize such a sale as a loss of property as the result of Nazi persecution. In the case of Flechtheim and the painting Violon et encrier, no such reasons are apparent. For this reason as well, the Advisory Commission cannot recommend the restitution desired by the Flechtheim heirs.
  4. On 26 February 2016, the legal representatives of the Flechtheim heirs declared they were withdrawing from the proceedings before the Advisory Commission, leading to public confusion. As a result, the Commission points out that the proceedings were properly concluded already on 12 February 2016 with a hearing of the parties and the Commission’s discussion and decision, so the declaration by one party that it was withdrawing from the proceedings has no effect on the publication of the Commission’s recommendation.
30. November 2015

Recommendation of the Advisory Commission in the case of the heirs of Ludwig Traube v. Landeshauptstadt Düsseldorf

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Dr Limbach, has produced an opinion on the case of Traube v. City of Düsseldorf.

The proceedings concern the painting Stillleben mit Früchtekorb. Kürbis, Melone und Pfirsiche an einer Eiche (Still life with basket of fruit. Squash, melon and peach next to an oak tree) by Abraham Mignon (oil on canvas, 87 cm x 68 cm, about 1670, loan of the city of Düsseldorf to the Museum Kunstpalast Düsseldorf).

It is undisputed that the painting was in the possession of the Gemäldegalerie Dresden (Old Masters Picture Gallery) from at least 1772 and was transferred to members of the Wettin dynasty in 1924 as part of the compensation of the nobility in 1924 for their expropriation following World War I. After that, and probably before 1928, the painting came into the possession and ownership of Berlin publisher Ludwig Traube, who died on 9 May 1928. In his will, he made his third wife, Gertrud Traube, and his six children from his three marriages the heirs of this painting. The painting was located in the villa at Joseph-Joachim-Str. 11-13, in the Berlin district of Grunewald, where Gertrud Traube lived with the children and her new husband, Eduard Bühler, whom she married in 1929.
In 1935, the painting was sold at an auction held on 3 and 4 May by the Berlin auction house Union, owned by Leo Spik. The auction was announced in the press as an “auction due to conversion of the villa site”. There was an auction catalogue with the title Besitz B.: Villeneinrichtung und Kunstbesitz (Possessions B.: Villa furnishings and artworks) listing 294 individual items and 125 groups of items, with numerous illustrations, also of the painting in question.
It is not known who bought the painting at the auction or for what price; no record of the auction exists. In response to this question, Leo Spik stated in 1961 that the “records showing the proceeds were destroyed by wartime activities in February 1944”. By 21 April 1936 at the latest, the painting was in the possession of Galerie Paffrath in Düsseldorf, which no longer has any record of the circumstances of its acquisition (letter of 9 June 2001: “our archive was destroyed by fire in World War II”). Galerie Paffrath sold the painting for 4,900 Reichsmarks to the city of Düsseldorf (or the Städtisches Kunstmuseum (municipal art museum)); the gallery confirmed completion of this contract of sale in its letter of 12 June 1936 to the director of the Städtisches Kunstmuseum.

It is disputed whether the auction of the Mignon painting in May 1935 constituted a loss of property as the result of Nazi persecution (NS-verfolgungsbedingter Vermögensverlust), and whether the city must therefore return the painting to Ludwig Traube’s community of heirs.

The indemnification office (Entschädigungsamt) in West Berlin recognized the auction of the artworks, including the Mignon painting, and contents of the house as the result of persecution. The indemnification office approved compensation of 20,000 Deutschmarks in 1962 for the loss of part of the contents of the house and the artworks auctioned in 1935 as well as for the costs of emigration. In this way, based on the circumstances known at the time, the auction of the Mignon painting in 1935 was recognized as the result of persecution.

The community of heirs has argued that, as Jews, Gertrud Bühler, the family members as joint heirs and Eduard Bühler were victims of collective persecution as referred to in Article 1 (1) of the Order of the Allied Kommandatura in Berlin on the Restitution of Identifiable Property (Rückerstattungsanordnung, REAO). Gertrud and Eduard Bühler and five of Ludwig Traube’s six children were classified as “full Jews” (Volljuden) according to the racist categories of the Nazi state; Traube’s daughter from his second marriage was classified as a “half-breed in the first degree” (Mischling 1. Grades). This fulfils the legal presumption of Article 3 (1) (b) of the REAO, which states that legal transactions by persons subject to collective persecution after 30 January 1933 are to be considered the result of persecution (verfolgungsbedingt).
The community of heirs has also argued that, after Adolf Hitler’s appointment as chancellor of the Reich on 30 January 1933, Gertrud and Eduard Bühler found themselves in dramatically worsening financial circumstances due to individual persecution. They state that the Ludwig Traube publishing business was “Aryanized” in October 1933, which significantly reduced the family’s income. They state that, for racist reasons, Eduard Bühler was banned from all activity in publishing by order of 10 May 1935 and was thus no longer able to support himself, his wife or her children from her first marriage. According to the heirs, Gertrud Bühler was therefore forced to cash in the life insurance policies for herself and the children, to divide the parcel of land on which the villa stood and sell the two parcels on which no structures had been built, and to convert the villa, in which the family had lived alone up to that time, into seven flats in order to support the family with rental income. The heirs say that the auction of part of the villa furnishings and the artworks was due to economic need resulting from anti-Semitic persecution.

Based on the circumstances described by the community of heirs, after oral proceedings the city of Düsseldorf decided to respond to the claim for restitution filed in 2009 by proposing a compensation payment in 2012. The settlement negotiations were based on three expert opinions: Art historian and former museum director Professor Dr Mai assessed the value of the painting at €350,000 to €400,000; art historian Dr Kraemer-Noble, a recognized Mignon expert, gave the painting’s estimated value as €210,000, noting the poor condition of the nearly 350-year-old painting; and Dr Mund, an art historian from the Brussels office of the Kunsthaus Lempertz hired by the community of heirs, appraised the value at €1.1 million. However, Dr Mund did not see the original still life. The community of heirs turned down the city of Düsseldorf’s offered compensation of €150,000, thus the attempt at a friendly settlement failed.

The city of Düsseldorf then decided on 11 July 2013 to refer the matter to the Advisory Commission if both parties were willing to abide by the Commission’s final decision (i.e., recommendation). After the community of heirs indicated its agreement in a letter of 5 March 2014, both parties called on the Commission to reach a “fair and just solution” in the case.

Based on newly discovered documents, the city of Düsseldorf argued in opposition to the restitution claim that the auction was not the result of persecution, but instead was held for the purpose of dividing the deceased’s estate among the community of heirs. According to the city of Düsseldorf, the notarially attested contract on the distribution of the deceased’s estate, which was concluded on 17 July 1935, was solely to “manage disputes within the family and a threatening amount of accrued debts”. The financial difficulties in which the community of heirs found itself started in the 1920s and could not be attributed to anti-Semitic persecution by the Nazi regime, according to the city of Düsseldorf, which stated that Ludwig Traube and his publishing business had long been deep in debt. According to the city of Düsseldorf, the publishing business was sold in October 1933 but not “Aryanized”, as the buyers and later owners included Jews. The city of Düsseldorf argued that the “career ban” on Eduard Bühler could not have been the reason for the auction, because the auction was held already several days before the ban was issued. According to the city of Düsseldorf, the sale of some of the land, the conversion of the villa into rental flats and the auction of much of the villa’s contents and artworks at this time were due to excessive borrowing against the villa property and a forced sale (to pay property taxes in arrears) that had already been ordered. According to the city of Düsseldorf, the fact that the Berlin Stadtbank had already granted a debt reduction of 50,000 RM and extended a loan of 33,000 RM to renovate the property at Joseph-Joachim-Str. 11–13 furthermore clearly indicated that the legal transactions related to the property were not forced by persecution.

The community of heirs countered that the heirs at that time were subject to collective persecution whose financial difficulties were the result of persecution, and that the auction of the Mignon painting therefore constituted a loss as the result of persecution (verfolgungsbedingte Verlust), requiring the city of Düsseldorf to make restitution.

In its efforts to achieve a fair and just solution in this case, the Advisory Committee assumed that the community of heirs were persons subject to collective persecution during the Nazi regime. Other than two daughters from the first and second marriages, who were living in Rome and Paris at the time the National Socialists came to power in 1933, all members of the community of heirs were forced to emigrate during the 1930s. To refute the assumption that the auction of the painting constituted a loss resulting from persecution, the painting’s sale price would have had to be appropriate and the sellers would have had to be able to dispose freely of the proceeds. It is undisputed that the community of heirs was able to dispose freely of the proceeds of the sale in May 1935; this is also confirmed by the arrangements made in the contract on the distribution of the deceased’s estate. The price received from auctioning the painting is however unknown and is impossible to determine given the lack of records. It may be assumed that a professionally organized auction at that time would have brought actual market prices, especially since the painting was one of the items illustrated in the auction catalogue. Further, in 1961 the auctioneer stated that this auction brought relatively good prices. But it is impossible to answer this question definitively.
The financial difficulties of the community of heirs at the time the painting was auctioned are undisputed. It is impossible to overlook the fact that the financial difficulties of the publishing business and the accumulation of debts against the property on Joseph-Joachim-Strasse had already begun before Ludwig Traube’s death in 1928, and there is no concrete evidence to indicate whether and to what extent these difficulties were exacerbated by the general economic crisis and/or the start of the Nazi regime. The city of Düsseldorf has argued that the auction was held in order to divide Ludwig Traube’s estate among his heirs. Whether the pressure of Nazi persecution played an important role in this auction remains uncertain.

Given the impossibility of clarifying the history of the auction of the Mignon painting, the Commission is unable to recommend restitution as demanded by the community of heirs. The Commission finds that the fair and just solution lies in balancing the interests of both parties. The Advisory Commission therefore recommends that the city of Düsseldorf should not return the painting but should however pay Ludwig Traube’s community of heirs €200,000.

03. February 2015

Recommendation of the Advisory Commission in the case of the heirs of George E. Behrens v. Landeshauptstadt Düsseldorf

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Dr Limbach, has produced an opinion on the case of Behrens v. Düsseldorf.

The facts of the case are as follows:

The painting Pariser Wochentag (Weekday in Paris) was painted by Adolph von Menzel in 1869 and bought by Eduard Ludwig Behrens, owner of the bank L. Behrens & Söhne in Hamburg, by 1886. It was part of his collection of paintings, the subject of a catalogue printed in 1891 Die Sammlung Eduard L. Behrens zu Hamburg. Catalog von Prof. E. Heilbut (The collection of Eduard L. Behrens in Hamburg. Catalogue by Prof. E. Heilbut). After Behrens’ death in 1895, the collection, including the painting Pariser Wochentag, passed to his son Eduard Ludwig Behrens, Jr. After the death of Eduard Ludwig Behrens, Jr. in 1925, the painting and the rest of the collection passed to his son George Eduard Behrens (1881–1956). However, the parties do not agree whether George Eduard Behrens was the sole owner or only the administrator of the common property (Gesamtgut) of his deceased father until the death of his mother in 1951, in accordance with the joint will of Eduard Ludwig Behrens, Jr. and his wife, Franziska Behrens née Gorrissen, of 22 September 1922 (community of property of the widow Franziska Behrens and the children George Eduard Behrens and Elisabeth Emma Behrens).
In order to reduce the inheritance tax, in 1925, George E. Behrens, who headed the bank L. Behrens & Söhne as senior director in the fifth generation, agreed to loan a number of paintings from his grandfather’s collection to the Hamburg Kunsthalle for exhibitions for ten years. In early March 1935, he informed the Kunsthalle that, as the agreement had expired on 6 February, he planned to sell some of the paintings in Germany or abroad. In response to the Kunsthalle’s request, on 23 March he sent the Kunsthalle “a list of the paintings from the common property of Galerie Ed. Behrens ... which I plan to sell”. Of the 33 paintings on this list, only Menzel’s Pariser Wochentag was crossed out. Behrens wrote that if the Kunsthalle was interested in buying any of these paintings, it should contact Professor Hermann Uhde-Bernays in Starnberg, whom Behrens had charged with selling the paintings.
At about the same time or possibly earlier, the director of the Städtische Kunstsammlungen Düsseldorf (art collections of the city of Düsseldorf) was asked to buy “a major work by Menzel” for the city. On 24 July 1935, he informed the lord mayor that his “negotiations” in the matter had been successful and that he had “just” received word that “one of the most important paintings of the master”, Pariser Wochentag, “was in the possession of the Düsseldorf art dealer I commissioned to conduct the negotiations”. Already on 31 July 1935, the director informed Galerie Paffrath that the lord mayor had approved the purchase of the painting for the asking price of 33,000 Reichsmarks; after the negotiations on the mode of payment were successfully concluded, the Städtische Kunstsammlungen bought the painting Pariser Wochentag and have displayed it ever since.

Although the owners of the bank L. Behrens & Söhne had been Protestant for several generations, according to the Nuremberg laws George E. Behrens and his sister Elisabeth Emma were considered “full Jews” (Volljuden) and their mother a “half-breed in the first degree” (Mischling 1. Grades). Following the pogrom in November 1938, Behrens was initially held in Hamburg’s police prison before being deported to the Sachsenhausen concentration camp (until March 1939). He had already given up his duties at the bank L. Behrens & Söhne effective 31 May 1938; the bank was liquidated effective 31 December 1938. After paying the “taxes” levied on Jewish assets (Judenvermögensabgabe) and on persons leaving Germany (Reichsfluchtsteuer), Behrens emigrated via Belgium and France to Cuba in April 1939. His sister emigrated in 1941. After the war, both returned to Hamburg in 1950 and lived there until their deaths. Their mother survived the Nazi regime in Hamburg.
It is undisputed that George E. Behrens was a victim of Nazi terror and was subject to racist persecution, was forced to emigrate and saw his assets plundered by the Nazis. The question is whether he was no longer able to dispose freely of his property or the common property of Eduard Behrens under his management at the time he sold the painting Pariser Wochentag and whether he was forced by the political circumstances to act differently than he would have under other circumstances. So the dispute focuses on whether the sale of the painting constitutes a sale under duress as the result of Nazi persecution (NS-verfolgungsbedingter Zwangsverkauf), which would justify restitution to the community of heirs of George E. Behrens.

The community of heirs believes that the painting was sold under duress. They state that “Jewish private banks [were in] decline” already starting in spring 1933 and that “from 1933 on the bank [suffered] major losses in revenue and income”. In this context, they state that Behrens lost “a total of 11 seats on the board between 1933 and 1935” and “was forced” in July 1934 to sell “the family home at Harvestehuderweg 34”, for which he received “compensation by way of a settlement” in 1952. They state that, starting in autumn 1935, he tried “to establish a new economic base” by expanding the Amsterdam branch, N.V. Behrens, but was ultimately unsuccessful. This is why, they say, the painting Pariser Wochentag was sold under the pressure of persecution.
The heirs argue that Behrens sold the painting directly to the Düsseldorf municipal art collections, and that the Düsseldorf Galerie Paffrath, which the museum’s director commissioned to look for a high-quality Menzel work, only acted as an intermediary. The heirs also argue that the contract of sale was concluded on an unspecified date after 15 September 1935, the date the Nuremberg laws were passed. They say the sale of the painting constitutes a loss of property as the result of persecution (verfolgungsbedingter Vermögensverlust), because the sale price was not appropriate and it was not clear whether Behrens ever received the money or was able to dispose of it freely. The heirs say that in April 1934, an expert such as Uhde-Bernays appraised Pariser Wochentag” at 50,000 RM, and in 1940/1941 two other Menzel paintings were sold for 48,000 and 70,000 RM. Their heirs say that there is no concrete evidence that Behrens ever received the money from the sale. Based on the facts presented, the community of heirs therefore demands the restitution of the painting Pariser Wochentag.

The city of Düsseldorf disputes that the painting was sold under duress and that the sale constitutes a loss of property. It states that the business of private Jewish banks was hardly affected in the early years of the Nazi regime. The city quotes the commemorative volume 175 Jahre L. Behrens & Söhne (L. Behrens & Söhne 175 years on) published in 1955 as stating that “the economic upturn after 1933 4 initially [benefited] L. Behrens & Söhne as well”. Until 1937, according to the city of Düsseldorf, the bank participated in consortia to issue bonds of the German Reich and the German Reichsbahn Gesellschaft. The city argues that there is nothing to indicate that the sale of the property on Harvestehuderweg to the city of Hamburg in July 1934 occurred under duress as the result of Nazi persecution. In view of the bank’s economic situation in spring and summer 1935, a forced sale of Pariser Wochentag can be ruled out, according to the city.
In the city’s view, Behrens did not sell the painting Pariser Wochentag to the Düsseldorf municipal art collections; instead, it was sold by Uhde-Bernays on the instructions of Behrens to Galerie Paffrath in July 1935 for 30,000 RM. Galerie Paffrath then sold the painting in August or early September for 33,000 RM to the art collections of the city of Düsseldorf. The city says this is shown by the gallery’s log of incoming paintings together with a sworn statement by the gallery’s subsequent long-time manager, and is further confirmed by the agreement on the mode of payment when the city bought the painting: This agreement was not made with Behrens or Uhde-Bernays, but was between the city and Galerie Paffrath; according to this agreement, half of the sale price was rendered in the form of eight paintings from the city’s collection. Under these circumstances, the payment process was not concluded until autumn 1937.
The city of Düsseldorf regards the sale price as appropriate, saying it was the highest price paid between 1928 and 1935 for “a Menzel work of this quality”. According to the city, the price of 50,000 RM cited by Uhde-Bernays for Pariser Wochentag repeated an appraisal from ten years earlier in which three Menzel watercolours and/or gouaches were valued at 20–30,000 RM. The city of Düsseldorf sees no indication that the sale price was not paid to Behrens. The city is of the opinion that, had payment been denied, Behrens could have taken legal action against the buyer without difficulty at that time. The city also notes that Behrens sold another Menzel painting (Beati possidentes) from the collection of Eduard L. Behrens to Galerie Paffrath no later than 1938.
For these reasons, the city of Düsseldorf opposes restitution of the painting Pariser Wochentag to the community of heirs of George E. Behrens

After the parties were unable to achieve a consensus, they agreed to refer the case to the Advisory Commission and end their dispute in accordance with the Commission’s recommendation.

After careful examination of the documents and evidence presented by the parties, the Commission has come to the conclusion that the 1935 sale of the Menzel painting Pariser Wochentag from the common property of Eduard L. Behrens did not constitute a loss of property as the result of Nazi persecution; it therefore cannot recommend returning the painting to the community of heirs of George E. Behrens.

The Commission acknowledges that, following the Reich Citizenship Act (Reichsbürgergesetz) of 15 September 1935, George E. Behrens belonged to the group of Jews and “non-Aryans” collectively persecuted on racist grounds; that he was imprisoned at a concentration camp from November 1938 until March 1939; that he was forced to liquidate his bank; and that he was forced into exile at the cost of major loss of property. However, the Commission believes that the situation for the bank and the Behrens family was different at the time the Menzel painting was sold. There is no doubt that following the spring of 1933, there were massive anti-Semitic campaigns in Germany as well as anti-Jewish riots and a new legal situation after the “Aryan clause” was introduced, banning Jews from the civil service. However, the historical research agrees that Jewish private banks were not directly affected in the initial years of the “Third Reich”. Until the end of Hjalmar Schacht’s tenure as Reich Minister for Economic Affairs (Reichswirtschaftsminister) in 1937, the ministry wanted Jewish private banks to continue to function smoothly and successfully fended off anti-Semitic activities in this area for several years. As the global economic crisis ebbed, Jewish private banks even experienced an economic upturn, which was also documented for the bank L. Behrens & Söhne.
There is no concrete evidence that the bank L. Behrens & Söhne suffered “major losses in revenue and income” in the initial years of the Nazi regime; the community of heirs asserts such losses occurred already starting in 1933. The community of heirs states that by 1935, George E. Behrens had already lost all eleven seats on the board that he held at the end of the Weimar Republic in 1933. It also argues that the fact that compensation was granted in 1952 for the sale of the family home on Harvestehuderweg in July 1934 confirms that the sale was the result of Nazi persecution. Neither argument is valid. Contrary to what the heirs assert, the large majority of seats on the board, namely seven, remained intact until 1935. The loss of two seats in 1932–33 and again in 1933–35 was more likely for general economic reasons than anti-Semitism. The loss of board seats therefore cannot serve as evidence of economic duress caused by persecution prior to the Nuremberg laws. This interpretation is corroborated by the fact that the bank belonged to the consortia to issue bonds of the German Reich and the German Reichsbahn-Gesellschaft until 1937. With regard to the property on Harvestehuderweg, the 1922 testament establishing the common property of Eduard L. Behrens stated in Section 11: “If my wife [who was guaranteed the right of residence during her lifetime] wishes to sell or after the death of my wife, the property shall be sold.” Thus the administrators of the common property were instructed to sell the property, which was apparently regarded as an encumbrance on the common property, as soon as the testator’s widow no longer lived there. In July 1934, the city of Hamburg paid 200,000 RM for the property. In view of the sales price alone, there is no indication that the city even attempted to apply pressure or force a sale at a reduced price on anti-Semitic grounds. However, it is correct that George E. Behrens, who had applied for restitution, in February 1952 was awarded total compensation of 30,000 Deutschmarks from the city of Hamburg for this property and another property on Harvestehuderweg. The reasons for the settlement by the regional court and the relatively low compensation amount (in 1950, Behrens and his sister were awarded 130,000 DM for the bank’s office in Hermannstrasse, sold in 1940 for 400,000 RM) are not known. In this context, the community of heirs noted that, in June 1959, an administrative officer wrote in a proposal for addressing a restitution claim lodged by one of George E. Behrens’ heirs concerning the 1934 sale (mentioned in the text “only to provide a full picture”) that the sale was made “for reasons of persecution, because boycott actions against the testator’s bank made it questionable whether the property could be maintained”. It is unclear, however, which facts or documents the author based this statement on. There is no information on “boycott actions” against the bank L. Behrens & Söhne up to summer 1934. Nor would such “boycott actions” correspond to the political and economic situation of Jewish private banks in the early phase of the Nazi regime as uncovered by the research. So it is not possible to see how George E. Behrens was “forced” by a situation of political persecution to sell the property.

According to the documents, Behrens was interested in selling, “in Germany or abroad”, a number of paintings from the “Galerie Ed. Behrens” common property, including the painting Pariser Wochentag, “as soon as the financial market situation seemed favourable” once the ten-year agreement with the Hamburg Kunsthalle expired (note on a conversation with Behrens at the 7 Hamburg Kunsthalle dated 8 March 1935). On the list of paintings to be sold that Behrens sent the Kunsthalle on 28 March 1935, Pariser Wochentag was already crossed out, so it may be speculated that he was already engaged in serious negotiations with another interested buyer. In July 1935, the painting appeared in the log of incoming paintings of the Düsseldorf Galerie Paffrath, with the price noted as “30,000” and the origin given as “G. Behrens Hamburg d[urch] Uhde Bern[ays]” (G. Behrens Hamburg via Uhde Bernays). It is undisputed that the city of Düsseldorf art collections bought the painting with the permission of the lord mayor and the responsible city official, which was issued no later than 31 July, although the exact date of the purchase is not known. Regarding the question whether the Galerie bought the painting or only took it on commission: The volume commemorating the 100th anniversary of Galerie Paffrath (100 Jahre Galerie Paffrath) clearly refers to the “purchase” of the painting and notes that it was then bought by the Düsseldorf art museum. Nor is it disputed that Galerie Paffrath bought a second Menzel painting from Behrens in 1938 (and did not take it only on commission). To answer the question whether the gallery bought the painting from Behrens or only took it on commission, it is crucial that the city of Düsseldorf art collections agreed on the mode of payment for Pariser Wochentag not with Behrens or Uhde-Bernays, but with Galerie Paffrath. And the mode of payment agreed – only 15,000 RM was paid in cash, with the remaining 18,000 RM paid in paintings from the city of Düsseldorf art collections – would only make sense for an art dealer, not for a seller in the process of dissolving a collection. So there is every indication that Behrens (via Uhde-Bernays) sold the painting to Galerie Paffrath in July 1935, which then sold it in the following weeks (or months) at a premium of 10% to the city of Düsseldorf art collections. The date that Behrens sold the painting is important, as it was clearly before 15 September 1935, the date on which the Nuremberg laws were passed. If one assumes, as does the community of heirs, based on the collective persecution of George E. Behrens, that the painting was sold under duress and thus constitutes a loss of property as the result of Nazi persecution, this assumption is contradicted by the fact that Behrens received an appropriate price for the painting and was able to freely dispose of this sum.

The Commission believes that 30,000 RM sale price for Pariser Wochentag was in line with the market situation at the time and was thus appropriate. Another indication of this is the fact that the sale was relatively rapid and the seller did not wait for better offers. The higher prices for Pariser Wochentag and two other Menzel paintings cited by the community of heirs do not contradict this assessment, because the price of 50,000 RM given by Uhde-Bernays was explicitly based on an appraisal made ten years earlier, during a period of stabilization in the Weimar Republic, under much different market conditions. And market conditions for Menzel paintings were also better in 1940/41, when Germany seemed to be winning the war. We therefore do not find that the sale of Pariser Wochentag constitutes a loss of property.
The remaining question is whether George E. Behrens received the sale price and was able to freely dispose of the amount. It is true that no receipts exist. But there are no indications that Galerie Paffrath did not pay. In the summer of 1935, an art gallery could not have afforded not to pay for a painting sold by the owner of a large, well-known collection, and at that time Behrens could have taken legal action without difficulty against someone who did not pay on time. If Galerie Paffrath had not paid, the city of Düsseldorf would doubtless not have paid the full price to the gallery in the subsequent years. Nor is there any doubt that Behrens was still able to freely dispose of the money in 1935. The sale was conducted properly.

The overall result of the individual steps in the examination is therefore that the community of heirs’ claim for restitution cannot be granted because the sale of the painting Pariser Wochentag did not constitute a loss of property as the result of Nazi persecution.

21. August 2014

Recommendation of the Advisory Commission in the case of the heirs of Clara Levy v. Bayerische Staatsgemäldesammlungen

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, has issued a new recommendation.

The recommendation is based on the following facts:

Clara Levy, née Isaak (1864–1940) was a cloth manufacturer who was persecuted by the National Socialists because she was Jewish. She lived in Berlin and emigrated in March 1939 to join her son Frederick (Fritz) Levy in Schleifmühle, Luxembourg, taking along most of her household effects including at least 78 paintings. Clara Levy had three other children (Erna Heymann, Edith Loevensohn, Else Bergmann) who, from 1938 onwards, had successively left Germany. One of them, Else Bergmann, emigrated to New York in 1939.

The painting Three Graces, an early work of Lovis Corinth (1902/04), had been owned and possessed by Clara Levy's deceased husband, Ludwig Levy, since 1917. Upon his death in 1921, Clara Levy had inherited the painting. In March 1939, the painting together with Clara Levy's household effects was moved to the cloth mill in Schleifmühle, Luxembourg, which was managed by her son, Fritz Levy. Clara Levy died on 27 March 1940 in Luxembourg leaving her estate in equal shares to her four children so that the ownership of the painting passed to the four children upon her death.
According to an affidavit given in 1961 by Paula Levy, the former girlfriend and later the wife and heiress of Fritz Levy, part of Clara Levy's household effects were shipped from Luxembourg to New York in the spring of 1940. According to the bill of lading submitted by Paula Levy, the painting was among these household effects. (The freight list features: "Lovis Corinth: The Three Graces"). This bill of lading bears the instruction "to be delivered to Else Bergmann" and was signed "Else Bergmann". It was also signed by the ship's captain and the carrier. The bill of lading also contains the following arrival stamp and handwritten entries which were entered into the document upon the ship's arrival in the US: „New York, Dec. 5/41 19..the property entered by this Bill of Lading manifested on Steamer San Francisco arrived at New York June 3/40 Compagnie Generale Transatlantique Hol Lesquette“ (the signature is not clearly legible).
The remainder of Clara Levy's household effects and estate remained in Luxembourg even when German troops invaded the Grand Duchy on 10 May 1940 and several rooms of the administrative building at Schleifmühle were used to billet troops. This part of the household effects was seized by the German Reich on the basis of an order dated 9 July 1941, subsequently removed from Schleifmühle and disposed of by 8 October 1942.

On 8 September 1959, Paula Levy, the wife and heiress of Fritz Levy, represented by her attorney, Henry Zacharias, brought a restitution claim for money damages against the German Reich for these confiscated household effects. Annexed to the claim was a detailed list of the objects allegedly seized by the German authorities, including seventeen pictures, eight of which from the offices (referred to as "factory equipment") and nine of which from the hall which were not described in more detail. The painting by Lovis Corinth cannot have been part of the office furnishings, because it was no "factory equipment". Nor can it have been in the hall, because Rita Hubbard, one of Clara Levy's granddaughters, wrote in a letter that the painting had hung in her grandmother's dining room. The restitution claim was turned down, because there was no proof that the objects had been transferred from abroad to the territory of the German Reich.

From 1940 or 1941 until 1949, the painting Three Graces was located in the Buchholz Gallery Curt Valentin, New York. In a letter dated 15 February 1951, the art dealer Siegfried Rosengart (Lucerne) who resold the painting in 1949, wrote that he had reports from New York that Curt Valentin had "acquired (the painting) about ten years ago at a Public Auction Sale", i. e. circa 1941.
In 1949, the said Siegfried Rosengart sold the painting on commission for the Buchholz Gallery Curt Valentin, New York, to Prof. Dr Max Huggler, the Director of the Kunstmuseum Bern, and brought it to Bern.
In March 1950, the Bavarian State Painting Collections (Bayerische Staatsgemäldesammlungen) acquired the painting from Max Huggler or the Kunstmuseum Bern.

In 2002, Clara Levy's heirs filed a claim for the restitution of the painting arguing that it was confiscated as a result of Nazi persecution: They argued that one had to assume that German authorities intervened even before the planned shipment of the painting in May 1940, since the painting never reached the family members who had emigrated to the U.S.A. (New York). In this context, they argued, one also had to take into account the confiscation in 1941 of the household effects and other personal items of Clara Levy. Since her emigration in March 1939, these objects had been stored at the Luxembourg premises of her son, Fritz Levy (who had been living in Luxembourg since October 1938 and then moved to Brussels where he lived from August 1940 until July 1945). It was to be assumed that the painting was among these objects and had therefore not been shipped by freight vessel to New York. The heirs claimed that the bill of lading dated 11 May 1940 did not confirm that the cargo was actually shipped on board the vessel "San Francisco" which is indicated in the bill of lading, because there was no unequivocal proof that the ship actually left for New York at the time in question. They also challenged the authenticity of the alleged signature of Clara Levy's daughter, Else Bergmann, on the receipt. An affidavit given by Peter Levy, a grandson and heir of Clara Levy, also confirmed that neither the painting nor the furniture ever reached the family in the U.S.A.

The Bavarian State Painting Collections refuse to restitute the painting arguing that there was nothing to indicate that it was misappropriated as a result of Nazi persecution either through confiscation by the Nazi authorities or by sale under duress. The cargo vessel "San Francisco" reached New York via Le Havre on 3 June 1940. There was proof that Clara Levy's household effects including the painting were handed over to Else Bergmann, one of Clara Levy's daughters and heirs. The museum states that for this reason it was safe to assume that the painting had been sold privately by the Levy family in 1941 in the U.S.A. The stamp on the bill of lading showed that the shipment - including the painting - actually reached its destination. The signature of Clara Levy's daughter, Else Bergmann, on the document proved that she received the shipment. The stamp of the photographer Studly on the reverse side of a photo that was taken of the painting proved that it was subsequently owned by Curt Valentin and constituted further evidence of the painting's arrival in New York. A photograph of the painting that is contained in the Curt Valentin Papers (Museum of Modern Art) is referred to as another piece of evidence showing that the painting was with Curt Valentin in the U.S.A. According to Rosengart's letter the painting was consigned to and sold at a public auction in the U.S.A. by Else Bergmann or the heirs. The museum argues that there are no known cases of Curt Valentin having utilized works seized from persecuted individuals in Germany or in countries occupied by German troops. Nor are there any indications suggesting that Curt Valentin received the painting from German authorities or troops in the second half of 1941.

The parties were unable to reach an agreement and hence decided to submit the case to the Advisory Commission for a recommendation.

The Commission cannot recommend a restitution of the painting Three Graces by Lovis Corinth, because the undisputed facts do not warrant the conclusion that the heirs of Clara Levy lost the painting as a result of Nazi persecution. The undisputable fact that Clara Levy and her heirs were persecuted by the National Socialists because they were Jews, that they had to emigrate or conceal themselves for years, does not justify the conclusion that the painting was lost as a result of persecution. The Washington Principles stipulate that for a work of art to be recognized as having been seized as a result of Nazi persecution it must have been confiscated by the National Socialists or sold under duress without obtaining a fair price which the seller is free to dispose of.

The painting in question cannot have been part of the household effects confiscated by the Nazi authorities in Luxembourg, because in the reparations claim Paula Levy mentioned only the pictures in the office ("factory equipment") and the hall, whereas the painting in question hang in the dining room. Furthermore, the bill of lading explicitly lists the painting "Three Graces" as being part of the household goods that were shipped to New York. And finally it is in line with general experience that Fritz Levy would have shipped the lightweight and valuable paintings rather than the heavy pieces of furniture. The arrival stamp and the handwritten entries on the freight documents show that there cannot be any reasonable doubt that the freight ship "San Francisco" and its cargo reached New York on 3 June 1940, where the painting listed in the freight list was to be delivered to Else Bergmann as indicated on the bill of lading. There is nothing to indicate that the French shipping company did not deliver the painting or that the US authorities intervened to prevent the delivery. How should Paula Levy, Fritz Levy's wife, have come by a copy of the bill of lading and of the freight list including the arrival stamp if Else Bergmann did not sign the bill of lading and take delivery of the household effects? Apart from that neither Paula Levy nor her attorney Henry Zacharias expressed any doubt in the reparations proceedings that the household effects including the painting had in fact arrived in New York.

Apart from these facts it seems extremely unlikely that the Nazi authorities would have shipped the painting to New York in the second half of 1941, i. e. in the middle of the war which was also waged in the Atlantic, particularly because it featured a classical subject from the early phase of Lovis Corinth’s work and was not a work of avant-garde art or - in the parlance of the Nazi authorities - "degenerate art." The fact that the painting was resold to Europe by Curt Valentin almost ten years later shows that in those years the market in New York was not particularly good for such rather traditional paintings. Why should the Nazi authorities have taken the risk of having the painting shipped to New York in the second half of 1941 even though it was not a work of "degenerate art" and even though they could not expect to obtain a good sales price in New York.
Now as before there is no reason to doubt the information provided by Siegfried Rosengart who, like Curt Valentin, was of Jewish origin and stated that the painting was bought by Curt Valentin in 1940 or 1941 at a public auction in New York. Why should Siegfried Rosengart or Curt Valentin have told any lies about this matter in 1951? There is nothing to suggest that Curt Valentin acquired the painting in an unlawful way.

Considering these facts the Commission does not see any indication of a sale under duress: If the painting was sold by one of the heirs, Else Bergmann, at a public auction in New York, i. e. in a safe country outside Germany, in 1940 or 1941, there is no doubt that she obtained what was the market price at the time. It is not to be presumed that the Washington Declaration even if it is interpreted in the widest possible sense and thus extended to cover also forced sales or other forms of persecution-related confiscation, aims to reverse sales transactions such as this one (which was effectively concluded under civil law by the rightful owners in New York) and the subsequent re-sales of the painting.

20. March 2014

Recommendation of the Advisory Commission in the case of the heirs of the "Welfenschatz"-Constortium v. Stiftung Preußischer Kulturbesitz

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, stated its position on the "Welfenschatz" case today under the chairmanship of Prof. Dr. Limbach.

The facts of the case are as follows:

The "Welfenschatz" (English: "Guelph Treasure") is a collection of late medieval works of ecclesiastical art in gold from Braunschweig (or Brunswick) Cathedral, which had been owned by the Princely House of Braunschweig-Lüneburg since the 17th century. In the 1920s, the princely house tried to sell the collection. At the time, the price estimates varied greatly, from 42 million Reich marks to 6 million Reich marks. In October 1929, shortly before the outbreak of the world economic crisis, Jewish art dealers from Frankfurt / Main acquired the collection consisting of 82 individual items at a price of 7.5 million Reich marks. The purchase contract was signed on the 5th of October 1929 by the proprietors of the art dealership, J.S. Goldschmidt, I. Rosenbaum and Z.M. Hackenbroch. "Foreign and domestic business associates" were involved in the purchase, who formed a consortium with the authorized art dealers. The consortium agreement has not been found to date. The composition and legal structure of the consortium are not known. In the purchase contract, the art dealers undertake to sell the treasure of relics and to give the princely house a share in the profits obtained above a certain profit margin. It was expressly agreed, that the buyers would not be entitled to retain the purchased objects themselves either in whole or in part, but rather that they would be obliged to "make every effort to sell". In the years that followed, the art dealers tried in vain to sell the whole collection in Germany and in the USA. It is generally believed that the world economic crisis considerably impaired the willingness of potential purchasers to buy. In 1930/1931, they succeeded in selling only 40 individual items, primarily in the USA, for a total price of approximately 2.7 million Reich marks. The remaining 42 pieces were put into storage in Amsterdam after the collection had been exhibited in the USA. In 1934, Dresdner Bank expressed an interest in purchasing the collection, which at the time was still in Amsterdam and therefore not in Germany. The bank presented itself as a potential buyer. However, it was to remain secret that it was acting on behalf of the State of Prussia. In April 1935, the consortium of art dealers submitted an initial binding offer to the amount of 5 million Reich marks. Dresdener Bank responded with an offer of 3.7 million Reich marks. In June 1935, a purchase sum of 4.25 million Reich marks was agreed. The purchase price was to be paid partly in cash (3,371,875 Reich marks) and partly (due to the currency export provisions in effect at that time) in works of art (800,000 Reich marks), which were to be sold abroad for the foreign business partners. The purchase contract was signed on the 14th of June 1935 by the art dealers I. and S. Goldschmidt and Z. M. Hackenbroch, as well as by Isaac Rosenbaum and Saemy Rosenberg, the previous proprietors of the Rosenberg Company, as the seller, and by Dresdner Bank (for the State of Prussia) as the buyer. In July 1935, the purchase price was paid less a provision of 100,000 Reich marks. The 42 pieces in the collection were brought to Berlin.

After 1945, the Welfenschatz was seized by the occupation authorities and later handed over in trust first to the State of Hessen and then to the State of Lower Saxony. In 1963, the collection was taken over by the Stiftung Preußischer Kulturbesitz [Prussian Cultural Heritage Foundation] and has been exhibited at the Kunstgewerbemuseum in Berlin ever since.
Within the context of the reparation procedures, no compensation claims were made by the Jewish art dealers or their heirs or by the other participants with respect to the Welfenschatz treasure.

In 2008, the heirs to the art dealers represented by Stötzel, their lawyer, demanded that the 42 Welfenschatz pieces be returned by the Stiftung Preußischer Kulturbesitz (Prussian Cultural Heritage Foundation). The claimants are of the view that the sale in 1935 was a case of confiscation due to persecution. In 1934 and 1935, they maintain that Dresdner Bank and the Prussian state government behind it deliberately exploited the difficult economic situation the Jewish art dealers found themselves in and exerted pressure on them. Even the Prussian Prime Minister Göring became involved. He was the driving force behind this transaction, they claim. The purchase price of 4.25 million Reich marks did not correspond to the market value of the collection. According to expert estimates, a purchase price of at least 6 to 7 million Reich marks for the 42 individual items would have been appropriate in 1935.

The Stiftung Preußischer Kulturbesitz has refused to return the Welfenschatz. First of all, it refers to the fact that it has not been clarified whether the four art dealers alone or also other participants in the sale were the co-owners of the Welfenschatz. Only all of the co-owners as a whole would be entitled to claim the return of the collection. The sale in 1935, the Foundation holds, was not a compulsory sale due to persecution. The art dealers had been attempting to sell the collection since 1929 and did not enter into the contract in 1935 under political pressure. The purchase price of 4.25 million Reich marks reflected the market value at that time and was therefore appropriate. There were no other interested potential purchasers in 1934 and 1935 that would have been in a position to raise the purchase sum. The lack of demand and the lower purchase price in comparison with earlier estimates can be attributed to the world economic crisis and not to the repression of Jewish art dealers by the National Socialist government. They accepted the purchase price after lengthy negotiations. If one compares the entire proceeds from the sale of the 40 individual items in 1930/1931 and the 42 individual items in 1935 to the purchase price in 1929, the Jewish art dealers and their business partners made a loss in the amount of ca. 10%. Moreover, the Stiftung Preußischer Kulturbesitz points out that the art dealers and their business partners were free to dispose of the proceeds from the sale. In any case, there is no evidence which speaks against free disposal.

After the two parties were unable to come to an agreement during the discussions on the Welfenschatz, they agreed to call upon the Advisory Commission in 2012, which has the task of mediating and working to find fair and just solutions in the case of differences of opinion between public institutions and the previous owners of cultural artefacts, especially those from Jewish ownership.

The Advisory Commission has examined this extraordinary case in detail, evaluated the extensive documentation and written submissions from of the parties and listened to their legal representatives. According to the findings of the commission, the art dealers had been trying to resell the Welfenschatz since its acquisition in 1929. They were able to sell 40 individual items in 1930 and 1931, but did not receive any offers for the remaining 42 individual items. Dresdner Bank first expressed an interest in purchasing the remainder of the collection in 1934 on behalf of the Prussian State government. During the negotiations, which were drawn out over a lengthy period of time, the different target prices for both sides gradually approached each other. Although the commission is aware of the difficult fate of the art dealers and of their persecution during the Nazi period, there is no indication in the case under consideration by the Advisory Commission that points to the art dealers and their business partners having been pressured during negotiations, for instance by Göring. Furthermore, the effects of the world economic crisis were still being felt in 1934/1935. In the end, both sides agreed on a purchase price that was below the 1929 purchase price, but which reflected the situation on the art market after the world economic crisis. The art dealers used the proceeds primarily to repay the financial contributions of their domestic and foreign business partners. Moreover, there is no evidence to suggest that the art dealers and their business partners were not free to dispose of the proceeds.

The Advisory Commission, in accordance with its findings on the course of the purchase negotiations, is of the opinion that the sale of the Welfenschatz was not a compulsory sale due to persecution. It cannot therefore recommend the return of the Welfenschatz to the heirs of the four art dealers and any other previous co-owners.

09. April 2013

Recommendation of the Advisory Commission in the case of the heirs of Alfred Flechtheim v. Stadt Köln

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, has issued another recommendation.

At their meeting on 19 March 2013 which was held at the Representation of Saxony-Anhalt, the Commission, chaired by Professor Dr Jutta Limbach, recommended that the painting Portrait of Tilla Durieux (1910) by Oskar Kokoschka should be returned to the heirs of Alfred Flechtheim.

The recommendation is based on the following facts:

Alfred Flechtheim (1878–1937), an important art dealer and collector, was persecuted by the National Socialists because he was a Jew and a prominent advocate of modern art. His art collection comprised many works including the painting Portrait of Tilla Durieux (1910) by Oskar Kokoschka. The painting is presumed to have been purchased by Flechtheim at some time before 1918.

Flechtheim was the owner of "Galerie Alfred Flechtheim GmbH" in Berlin and Düsseldorf which for a time also had branches in other German cities. In the spring of 1933, he had to close down his business in Düsseldorf, after an auction in his gallery had been broken up by Nazis. In November 1933, his Berlin gallery, too, had to close. In the spring of 1934, the winding-up proceedings initiated in November 1933 resulted in an out-of-court settlement. In early 1937, the company was deleted from the commercial register. Flechtheim, who had been a target of Nazi attacks even before 1933 and who, after the seizure of power by the National Socialists, did not have a chance of continuing his successful work as an art dealer in Germany, tried from 1933 until his early death in 1937 to start a new life first in Paris and then in London.

Already at the end of March 1933, Alex Vömel, the former manager of „Galerie Alfred Flechtheim GmbH“ in Düsseldorf opened the „Galerie Alex Vömel" in the same rooms that had previously been used by Flechtheim's gallery. Together with the rooms he obviously took over also part of the art works of the Flechtheim gallery and of Alfred Flechtheim's private collection. Among them was the painting Portrait of Tilla Durieux which had been exhibited in 1931 at Kunsthalle Mannheim as being part of the "Private collection Alfred Flechtheim".
In June 1934, Vömel sold the painting whose insured value was set at 3,000 Reichsmark in 1931, for 1,800 Reichsmark to the Cologne art collector Dr Josef Haubrich. In 1946, Haubrich donated his art collection including the Portrait of Tilla Durieux to his native city of Cologne which in turn entrusted the collection to the Wallraf-Richartz-Museum. When the Cologne museum landscape was restructured in 1976, the painting ended up in the Museum Ludwig.

In 2008, the heirs of Alfred Flechtheim, Dr Michael R. Hulton and Penny R. Hulton, filed a claim for the restitution of the painting. They hold the view that the sale of the painting constitutes a loss as a result of Nazi persecution. They claim that Flechtheim had to part with the painting because he was persecuted and thus acting under duress. The heirs claim that the sale price was not adequate and that there is no evidence that it was actually paid to Flechtheim or his creditors. The City of Cologne refused to return the painting, claiming that while Alfred Flechtheim had been persecuted by the National Socialists and suffered economic losses as a result, the present case did not constitute a loss resulting from Nazi persecution.

The City claimed that in the later stages of the Weimar Republic, Flechtheim had already been struggling with major economic difficulties. In 1933, he had offered the painting as security for liabilities existing at the time. The City of Cologne argued that Flechtheim sold the painting to pay off part of his debts and that the sale price reflected the market situation in June 1934.

The parties did not achieve an agreement and therefore agreed to submit the case to the Advisory Commission.

The view of the Commission is that while the present case cannot be exhaustively clarified, it is to be assumed in the absence of concrete evidence to the contrary that Alfred Flechtheim was forced to sell the disputed painting because he was persecuted. For this reason the painting is considered to have been confiscated as a result of Nazi persecution. The Advisory Commission did not identify any indications suggesting negligent conduct on the part of the City of Cologne.

28. March 2013

Recommendation of the Advisory Commission in the case of the heirs of Paul Westheim v. Stadt Neuss

Under the impression that the former director of the Clemens Sels Museum of the city of Neuss did not act in bad faith when purchasing the painting Makabre Szene – Dachgarten der Irrsinnigen (Macabre scenes) by Joachim Ringelnatz, and that Westheim had to sell the painting because of his emigration as a result of Nazi persecution, the Advisory Commission recommended an out-of-court settlement to the parties.

The parties agreed and the settlement was concluded as recommended. The painting Makabre Szene – Dachgarten der Irrsinnigen remains with the Clemens Sels Museum Neuss. The city of Neuss will pay Euro 7,000 to Ms Frenk.

18. November 2011

Recommendation of the Advisory Commission in the case of the heirs of Robert Graetz v. Land Berlin

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, published a new recommendation in Berlin on 17 November 2011.

At their meeting at the Representation of Saxony-Anhalt, the Commission, chaired by Professor Dr Jutta Limbach, recommended that the paintings Gutshof in Dangast (Farm in Dangast) (1910) and Selbstbildnis (Self Portrait) (1920) by Karl Schmidt-Rottluff should be returned to Roberto Graetz.

The recommendation is based on the following facts:

Robert Graetz (1878–1945) was a textile manufacturer from Berlin. His art collection also included the two works by Schmidt-Rottluff. As a Jew, Robert Graetz was persecuted by the Nazis and in 1939 and 1940 lost almost his entire fortune. His company (“Glass and Graetz”) had been in liquidation since 1938 and was deleted from the commercial register on 18 April 1940. Two years later, on 18 April 1942, Robert Graetz was deported and killed. It has been confirmed, but not securely proven that the paintings were in the possession of Robert Graetz at least until 1938. In 1953 the two works of art appeared at the Mathiesen Gallery in Berlin and were purchased in the same year by the state of Berlin at the astonishingly low price of 1,500 DM (Gutshof in Dangast) and 2,000 DM (Selbstbildnis). Today the two paintings are worth Euro 2,500,000 (Gutshof in Dangast) and Euro 520,000 (Selbstbildnis). They were part of the Berlin Gallery of the 20th Century and today are a loan by the state of Berlin to the Neue Nationalgalerie. Despite comprehensive research it has not been possible to establish the whereabouts of the works between September 1933 or December 1938 and 1953.

The grandson and sole heir of Robert Graetz, Roberto Graetz, claimed the restitution of these paintings, since there were no substantiated indications disproving the loss of property as a result of Nazi persecution. Whether the paintings were sold by Robert Graetz under economic duress between December 1938 and his arrest in April 1942, whether they were seized, stolen while in storage or remained in Robert Graetz' house which was sold under duress, was of no importance, according to the grandson.

The state of Berlin refused to return the paintings, arguing that it was possible that the property was lost for other reasons than Nazi persecution. For this reason, it was necessary to provide a sufficient explanation for the time and the type of loss of property and that it was lost as a result of Nazi persecution, Berlin argued. If the paintings had been sold, for example, it should be possible to verify the payment of an appropriate price and the free availability thereof.

The parties were unable to reach an agreement and hence decided to submit the case to the Advisory Commission for a recommendation.

According to the Advisory Commission, the historical context, the persecution of Robert Graetz and the lack of any evidence proving the contrary give rise to the assumption that the two paintings were lost as a result of Nazi persecution and hence should be returned.

27. January 2009

Recommendation of the Advisory Commission in the case of the heirs of Alexander Lewin v. Bundesrepublik Deutschland

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, made another recommendation today in Berlin.

This case concerned the painting Bauernmädchen ohne Hut mit weißem Halstuch (Peasant Girl without a Hat and with a White Headcloth) (1897) by Wilhelm Leibl. The Advisory Commission recommended that the German Federal Government return the piece to the heirs of Dr Alexander Lewin.

The recommendation is based on the following facts:

Dr Alexander Lewin (1879–1942) was the Chairman of the Board of Management at the hat manufacturer Berlin-Gubener Hutfabrik AG until 1938. His comprehensive art collection included Leibl’s Peasant Girl.
In summer 1938, Dr Lewin emigrated to Switzerland as a result of persecution, having been identified as a so-called 'Jewish Mischling (half-breed) of the first degree'. At the beginning of September 1938, Dr Lewin left the Board of Management at Berlin-Gubener Hutfabrik AG and in early March 1939, he gave notification that he would not be returning to Germany, which led to him being denied access to his entire estate as a result of a so-called ‘security order’ issued on 10th March 1939. On 4th August 1941, the German Reichsminister of the Interior deprived Dr Lewin of his German citizenship. His property was seized from him.
The painting Peasant Girl had come into Dr Lewin’s possession at 1930 at the latest. In May 1938, the commission agent Litthauer from Berlin tried to sell the piece to Galerie Heinemann in Munich at Lewin's request, but the gallery did not buy the painting. By spring 1939 at the latest, the painting ended up in the hands of the German Reich, namely in the “Fuehrerbau”, Adolf Hitler's office building in Munich, where the artwork for the planned "Fuehrer Museum" for Hitler in Linz, Austria, was being gathered.
So far, attempts to reconstruct the path of the painting from Dr Lewin’s possession to the Munich-based collection for the “Fuehrer Museum” in Linz have been unsuccessful. Since 1966, the piece has been displayed in the “Kunsthalle” art gallery in Bremen, Germany, as a long-term loan from the Federal Republic of Germany. It is registered as an object from the remainder of the Central Collecting Point at www.lostart.de.

The heirs of Dr Lewin have applied for the restitution of the painting due to the fact that it was seized as a result of persecution. They state that even if it is insinuated that, in a potential sale, the sale price was appropriate and the vendor was able to freely control the price, the decision to sell the piece was nevertheless based on a situation involving persecution.

The responsible German Federal Office for Central Services and the Settlement of Open Property Issues has rejected this claim for restitution, given that there are no trusted findings confirming that the piece of artwork was wrongfully seized during the reign of the National Socialist Regime. It explains that it could indeed be assumed that the owner wanted to sell the image because of his forthcoming immigration but that assumptions are not sufficient evidence for a restitution decision.

The parties were unable to come to an agreement and therefore decided to present the case to the Advisory Commission and ask it to come up with a recommendation.

According to the Advisory Commission and with regard to the period between the loss of the painting from Dr Lewin's possession and its inclusion in the central collection for the “Fuehrer Museum”, a period which cannot be fully clarified, there is no justified evidence whatsoever to contradict the claim that the painting was seized as a result of Nazi persecution.

12. June 2008

Recommendation of the Advisory Commission in the case of the heirs of Laura Baumann v. Land Hessen

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, made another recommendation today in Berlin.

It recommends that the German Land of Hesse pay Karl Ernst Baumann, Laura Baumann’s grandson, compensation amounting to 10,000 Euro.

The recommendation is based on the following facts:

During National Socialist persecution, Laura Baumann was arrested by the Gestapo for being a Jew and was, for an unexplained reason, also sent to the Kassel police jail for a week at the end of 1939 or beginning of 1940. After being summoned to another interrogation, Ms Baumann committed suicide on 26th November 1940 in fear of further reprisals.
Before her death, she had appointed the so-called ‘Aryan’ mother-inlaw of her son Heinz, Martha Rieck, as the sole heir to her estate in order to secure it for her two children, Heinz Baumann and Gertrud Wallach neé Baumann, who had emigrated to Scotland in 1938. The painting Portrait der Familie von Dithfurth (Portrait of Family Dithfurth) by Johann J. August von der Embde formed part of this estate and is currently valued at approx. 30,000 to 40,000 Euro.
In a process that is no longer certainly ascertainable, the piece ended up in the hands of the Kassel-Wilhelmshöhe Art Collections of the German Land of Hesse. A document was discovered in the museum archives stating that Ms Rieck had sold the piece to the museum for 1000 Reichsmark in the spring of 1941. Whether this amount was really paid and made it to the actual beneficiaries is a controversial issue among the parties, as is whether Ms Rieck had been forced into this agreement.

Laura Baumann’s grandson, Karl Ernst Baumann, applied for the restitution of the painting.

In light of the persecution of the bequeathor, Ms Laura Baumann’s designation of Ms Rieck as heir as a result of persecution and the uncertainties of the modalities and validity of the sale, the Commission has decided to generally affirm that the painting was lost as a result of persecution. Given the fact that the claimant was only co-heir of half of the estate and that the potentially already completed payment and the facts of the case could not be clarified without doubt, the Commission recommends that the painting remain in the museum and the claimant be paid compensation amounting to 10,000 Euro. The Museumslandschaft Kassel is also requested to refer to the provenance of the painting and the payment of compensation to the claimant in its presentation.

25. January 2007

Recommendation of the Advisory Commission in the case of the heirs of Hans Sachs v. Deutsches Historisches Museum

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, made its second recommendation today in Berlin. During a meeting at the Representation of the German Land of Saxony-Anhalt, which was chaired by Professor Dr Jutta Limbach, the Commission decided on the following recommendation:

In the light of the clearly expressed will of the collector Dr. Hans Sachs, the Commission recommends that the collection remain in the German Historical Museum.

Dr Hans Sachs, an art collector from Berlin, had always considered his activities as a collector to be a public service. At the beginning of the 1970s he referred to the remaining part of his unique poster collection in a German publication, stating that: “I am sure that West and East Germany will know the importance of protecting and guarding their treasure.”
As early as 1966, Hans Sachs wrote to a West German friend and expressed that he considered his material claims to have been settled with the court compensation settlement from 1961. This settlement awarded him what he called an "extremely respectable" total amount of 225,000 Deutschmark, which had been confirmed by several expert opinions from independent specialists. Indeed, as Sachs also explained, the intangible, moral loss could never be compensated. He additionally stated his desire to assist with the maintenance and indexing of the collection.

The Advisory Commission expects the German Historical Museum to fully acknowledge Hans Sachs’ achievements as a collector and pioneer of the history of poster art and commercial graphic art. This involves the indexing, maintenance and exhibition of the artwork as part of the museum’s responsibility in terms of conservation. The posters should be presented as part of the "Hans Sachs Collection", documented in a general catalogue and clearly marked with their origin and history. This solution also corresponds with the intentions of the son and heir, Peter Sachs, who does not want this unique collection to be forgotten.

The recommendation is based on the following facts:

Between 1896 and 1938, the dentist Dr. Hans Sachs (1881–1974) successfully amassed a unique collection of 12,500 posters and 18,000 smaller pieces of graphic art. As a result of the National Socialist persecution of the Jews, Sachs was forced to leave Germany with his wife Felicia Sachs (1903–1998) and his son Peter in 1938. Nevertheless, before they fled the country, the collection was seized by the Gestapo, the Secret State Police. At first, after 1945, Hans Sachs assumed that the collection had been lost for good and therefore lodged compensation claims in accordance with the then applicable right to compensation. On 6th March 1961, he received a compensation settlement of 225,000 Deutschmark from the Federal Republic of Germany.
In 1966, Hans Sachs discovered that parts of his collection were located at the Zeughaus Unter den Linden, the 'Old Arsenal' in Berlin, Germany. This building is now home to the German Historical Museum, which currently contains approx. 4000 posters from the original collection. In July 2006, Peter Sachs requested that the objects be registered in the Internet database of the Koordinierungsstelle für Kulturgutverluste (Coordination Office for Lost Cultural Assets) at www.lostart.de.

Peter Sachs has lodged a claim for the restitution of the collection, stating that it contains Nazi-looted art that has to be returned in accordance with the Washington Principles of 1998 and the Joint Declaration of 1999.

The German Historical Museum rejects this claim, arguing that it does not involve cultural property that remained hidden because Hans Sachs himself was aware of the location of the collection from 1966 onwards but lodged no claim for restitution.

The parties were unable to come to an agreement and therefore decided to present the case to the Advisory Commission.

05. January 2005

Recommendation of the Advisory Commission in the case of the heirs of Julius and Clara Freund v. Bundesrepublik Deutschland

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, made its first recommendation today in Berlin.

During a meeting at the Representation of the German Land of Saxony-Anhalt, which was chaired by Professor Dr Jutta Limbach, the Commission recommended that the German Federal Government restitute three paintings by Karl Blechen and a watercolour by Anselm Feuerbach to the heirs of the married couple Julius and Clara Freund.

The recommendation is based on the following facts:

Julius Freund, a Jewish man who was persecuted by the National Socialist regime, owned a comprehensive collection of art, which also contained the paintings in question. Towards the end of 1933, he moved his collection to Switzerland in order to protect it from being taken by the National Socialists. In 1939, Julius Freund and his wife Clara, who had both since become destitute as a result of National Socialist persecution, emigrated to London.
Following Julius Freund’s death in 1941 and given her financial situation, Clara Freund felt compelled to sell the collection at auction at Galerie Fischer in Lucerne, Switzerland, in 1942. The aforementioned pieces of artwork were acquired at this auction by Hans Posse, Adolf Hitler’s Special Commissioner for the construction of the so-called "Fuehrer Museum" for Hitler in Linz, Austria. Following the end of the war, the paintings were secured by the Allies and given to German museums as a loan from the German Federal Government as pieces of artwork that could initially not be classified. At a later stage, these pieces were listed as lost art in the Internet database www.lostart.de in order to identify the rightful claimants.

The heirs of Julius Freund, represented by Dr Jost von Trott zu Solz, a lawyer from Berlin, requested that the four pieces of artwork be returned to them, given that the sale of the pieces was necessary solely as a result of financial difficulties that were exclusively due to National Socialist persecution.

The responsible German Federal Office for the Settlement of Open Property Issues rejected the restitution, denying the connection between the persecution and the sale of the pieces.