Activities by Country

Austria began to pay attention to the problematic legacy of Nazi-looted art in the 1980s. A trove of art, returned to Austria by the western Allies after the war, was stored at a monastery in Mauerbach. The conditions were poor, and the Austrians said the art was third-rate. Reacting to media pressure and Jewish interventions, Austria agreed that the art should be sold by the Federation of Jewish Communities in Austria for the benefit of needy Holocaust survivors and supporting organizations. The sale took place in Vienna in 1996 under the leadership of an international steering committee of which Ronald S. Lauder served as co-chair. Organized pro-bono by Christie’s auctioneers, the proceeds of the sale were over $11 million.

In 1998, after research by the Austrian government into its own archives revealed that Austria’s federal museums profited greatly from exiled Jewish families after the war, Austria’s Minister of Culture, Elisabeth Gehrer, proposed legislation in Parliament to create a Provenance Research team to be comprised of government historians. After searching archives and other information, the Provenance Research Office would present its findings to a politically appointed Beirat (Advisory Council). On December 4, 1998, this proposal was enacted as the Federal Law On Return of Art Objects From the Austrian Federal Museums and Collections. Among other things, the 1998 law was designed to return art that had been "donated" to federal museums under duress or in exchange for export permits for other art owned by exiled families. The 1998 law does not, however, provide claimants a right to file claims with the government, and the review of any particular works of art is largely initiated from within the Provenance Research Office, although the government will in at least some instances review requests from claimants to review their cases. Restitution efforts after the passage of this law have met with mixed results.

The Commission for Art Recovery, working with the Federation of Jewish Communities of Austria, filed a request with the government and the Albertina Museum in Vienna, on behalf of the heirs of Claire and Gustav Kirstein, for the return of a drawing by Käthe Kollwitz entitled Sturm bewaffneter Bauern. On January 23, 2001, the government restitution committee issued its decision that this drawing should be returned to the heirs of the Kirsteins. Later in 2001, the government tentatively concluded that these heirs on whose behalf the Commission submitted this claim were in fact the persons entitled to receive the drawing. In November 2002, the government confirmed this conclusion, and in December 2002 the drawing was returned to the heirs.

The new law has not, however, prevented the Austrian Government from continuing to block the return of art that it does not want to return to its rightful owner. A prominent example of this refusal by the Austrian government to return stolen art is the case brought by Maria V. Altmann against the Republic of Austria and the Austrian National Gallery in U.S. federal district court in Los Angeles, California for the return of art stolen from her uncle, Ferdinand Bloch-Bauer, in 1938 by the Nazis in Austria.

Ferdinand Bloch-Bauer was a prominent businessman and art collector in Vienna prior to the Nazi annexation of Austria. Ferdinand owned several paintings by Gustav Klimt (including two portraits by Klimt of Ferdinand’s wife and Ms. Altmann’s aunt, Adele Bloch-Bauer). Adele died in 1925, and she expressed a non-binding aspiration in her will that Ferdinand donate his Klimt paintings to the Austrian National Gallery. When the Nazis occupied Austria in 1938, they confiscated Ferdinand’s home, business and art collection, and Ferdinand fled first to Czechoslovakia and then to Switzerland. Several paintings in Ferdinand’s collection were sent to Adolf Hitler and Herman Göring for their private collections. Upon his death in Zurich, Switzerland, in November, 1945, Ferdinand did not bequeath any artwork to the Gallery, but instead bequeathed all of his property to Mrs. Altmann and two other heirs, most likely disregarding Adele’s wish due to the hostile wartime actions of the Austrians in seizing virtually all of his art and other assets as part of the persecution of Jews in Austria. Moreover, Mrs. Altmann believes that there is substantial evidence that the Klimts were not even owned by Adele Bloch-Bauer, but were in fact owned by Ferdinand Bloch-Bauer, which would render any comments in Mrs. Bloch-Bauer’s will irrelevant to the ownership of the paintings.

Mrs. Altmann, the daughter of Ferdinand’s brother and Adele’s sister (Ferdinand and his brother married Adele and her sister, respectively), fled Austria after the Nazi annexation and arrived in Los Angeles in 1942. She became a U.S. citizen in 1945.

The heirs were unsuccessful in their attempts following the Second World War to recover the Klimt paintings. The Austrians first claimed that the non-binding aspiration in Adele’s will made a legally effective bequest of the paintings, as opposed to expressing a mere wish. In the post-War years, the Austrian museums also made use of a "cultural heritage" law that forced persons, typically Jews, to relinquish some of their art in order to obtain a government permit to export others. Following the passage of the 1998 law, a committee of government officials and art historians was formed, and in February, 1999, the committee recommended that hundreds of works of art that had been "donated" be returned to their rightful owners. As part of this process, Austria’s federal minister of education and culture, Elisabeth Gehrer, concluded that there was evidence that the Klimts were "donated" to the Austrian National Gallery under duress based upon the Austrian export permit law. Following a wave of political protest to the requested return of the Klimts, however, in what was apparently a politically predetermined decision, the government committee voted not to return the Klimts to Mr. Bloch-Bauer’s heirs. (The apparently political nature of the committee’s decision is evidenced by the fact that the committee did vote to return other works that belonged to the Bloch-Bauer heirs and that were "donated" by the family in exchange for export permits.) When Mrs. Altmann protested the committee’s decision regarding the Klimts, the Austrian government suggested that her only remedy was to go to court. In order to commence such a suit in Austria, however, Mrs. Altmann would have to pay a filing fee of approximately $2,000,000, which amount was beyond her means. Mrs. Altmann applied for a waiver of the full amount of this fee. This resulted only in limited relief as she was permitted to pay a filing fee equal to an amount that represented nearly all of Mrs. Altmann’s assets. Moreover, Austria appealed even this limited relief. Frustrated in her quest for justice under the political and judicial systems in Austria, Mrs. Altmann filed suit for the return of the paintings in U.S. federal district court in Los Angeles in August, 2000.

In her lawsuit in the US courts, Mrs. Altmann seeks to recover six paintings from the Austrian National Gallery, alleging that the Austrians’ original seizure of the paintings, as well as the application of the export permit law, were in violation of international law. The paintings are presently valued at approximately $150 million.

In their initial court filings, the defendants’ contested the jurisdiction and suitability of the court to hear the case, as well as whether the plaintiff had adequately stated a claim for relief. The court rejected all of the defendants’ motions in a ruling handed down on May 4, 2001. In a key finding, the court ruled that the defendants are not immune from suit under the provisions of the Foreign Sovereign Immunities Act. The court held that this case falls within an exception to that Act because Mrs. Altmann made a "non-frivolous" claim that (i) the art was seized in violation of international law, because the seizure by the Nazis was done with no public purpose and in a discriminatory manner; (ii) the art is owned by an agency or instrumentality of the defendant state—namely, the Austrian National Gallery (which qualifies as an agency or instrumentality of a foreign state despite its privatization in 2000); and (iii) the relevant agency or instrumentality engages in commercial activities in the U.S., in that the Austrian National Gallery advertises in the U.S., sells an English-language guidebook in the U.S, has lent certain Klimt paintings, including one of the Klimts in question, to U.S. museums, and receives many U.S. visitors every year.

The court made several other important rulings in favor of Mrs. Altmann. The court held that a foreign state is not a "person" under the due process clause of the U.S. Constitution, so the legal concept of personal jurisdiction is inapplicable in this case (as a grounds for dismissal). The court also held that the suit could not be dismissed under the doctrine of forum non conveniens (that is, the Austrian courts would be a more "convenient" forum to hear the suit) because the Austrian courts are not an "adequate alternative forum," in that they would impose excessive filing fees and might bar the claim under the Austrian statute of limitations. The court also ruled that neither the Austrian State Treaty of 1955 nor the 1959 Austrian Exchange of Notes Constituting an Agreement Concerning the Settlement of Certain Claims under Article 26 of the Austrian State Treaty posed a bar to Mrs. Altmann’s claim. Indeed, the court stated that these international agreements not only did not grant immunity to the defendants but also placed responsibility on Austria to return property that was improperly seized by the Nazis. (click to view court decision)

The defendants appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit. On December 12, 2002, the Court of Appeals upheld the district court's decision. In its ruling, the Court of Appeals held that (i) the art was wrongfully and discriminatorily appropriated in violation of international law, (ii) the Austrian National Gallery was engaging in commercial activity sufficient to justify jurisdiction under the Foreign Sovereign Immunities Act, (iii) the District Court had personal jurisdiction over the Republic of Austria and the National Gallery for the purposes of Mrs. Altman's suit, as a result of the National Gallery's commercial activities in California and elsewhere in the United States, and (iv) the suit did not have to be dismissed under the doctrine of forum non conveniens. (click to view appeal court decision)

The Bloch-Bauer case demonstrates the continued reluctance of the Austrian government to return art that was stolen from Jewish families by the Nazis notwithstanding the passage of a law that was designed to effect such restitution. This case also demonstrates the overt politicization of the issue in Austria and resulting difficulty for of Jewish victims to be treated fairly in the current political and legal climate in Austria.

The Commission for Art Recovery endorses Mrs. Altmann's claims and the decisions of both the district court and the appeals court. The Bloch-Bauer case demonstrates the need for comprehensive restitution laws that are enforced in both letter and spirit and which provide claimants with an effective alternative to time-consuming and costly litigation.

On November 15, 2002, in another case involving stolen art in Austria, Austrian police seized a painting by Egon Schiele entitled "Wayside Shrine". The police seized the painting in response to complaints that the painting had been confiscated by the Nazis in 1938 from the collection of Dr. Heinrich Rieger, a Jewish dentist and art collector in Vienna. Dr. Rieger and his wife died in concentration camps. The painting is now being claimed by Dr. Rieger's descendants The painting had been scheduled to be auctioned by Dorotheum, an Austrian auction house, and was seized at the request of the Israelitische Kultusgemeinde Wien, the organization representing Vienna's Jewish population, acting at the request of Dr. Rieger's heirs.