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Activities
by Country Discussions
with the Government Since September 1999, Commission for Art Recovery staff and legal counsel have worked with the former State Minister for Culture and Media, Dr. Michael Naumann, the staff of the current State Minister for Culture and Media, Professor Julian Nida-Rumelin, the Foreign Ministry, and the staff of the Coordination Office of the Federal States for Restitution of Cultural Objects (the "Koordinierungsstelle für Kulturgutverluste") to create a new approach to the challenge of art restitution in Germany. This approach centered on dealing with the restitution of art as a "moral" issue, rather than solely as a legal issue. In order to guide our discussions, the Commission developed an Action Plan to guide our discussions. These discussions have led to some successes. Ministry of Culture
Confirms to Commission that Prior Compensation Payments will not be a
Bar to Restitution of Stolen Art On December 14, 2000, the Ministry of Culture and Media confirmed to the Commission that previous compensation payments that were made in respect of stolen art would not be an obstacle to restitution if the previous payments were repaid. This statement did not require the payment of any interest on the repaid amounts. (click to view letter from Ministry), (note: if you do not have Acrobat Reader™ click here to download) Commission Persuades Bundesrat to Confirm that Germany’s New Civil Code will not Bar the Restitution of Stolen Art In the fall of 2001, the Parliament of the Federal Republic of Germany considered a revision to the German Civil Code in a statute entitled the "The Modernization of the Law of Obligations" (Gesetz zur Modernisierung des Schuldrechts). Among other things, this statute explicitly purported to bar all claims for the return of stolen or lost art after 30 years (click to view excerpts from new statute), (note: if you do not have Acrobat Reader™ click here to download) The statute did not specify an exception either for stolen property in general or for art stolen as a result of actions taken during the Holocaust. The existing Civil Code, which had been extant for approximately 100 years, contained only a general statute of limitations of 30 years that did not specifically include claims for stolen property. Moreover, in Germany, there had been commentary, including contemporary writings, that indicated that it was not certain that the existing statute of limitations applied to claims for the return of stolen property. It appeared, therefore, that the new statute would make it more difficult to reclaim art stolen during the Holocaust. The new statute was
also at odds with national and international principles and resolutions
that Germany had participated in formulating that were strongly supportive
of the restitution of art that was stolen during the Holocaust: the Washington
Conference on Nazi-Confiscated Art of December 1998 (click
to view policy),
the Vilnius Declaration of October 2000 (click
to view policy),
Resolution 1205 of the Council of Europe of November 1999 (click
to view policy),
and the "Declaration by the Federal Government, the Länder and
the National Associations of Local Authorities on the Tracing and Restitution
of Nazi-Confiscated Art, especially from Jewish Origin" (which is
discussed below) (click
to view policy). In addition, in the
German-United States Executive Agreement executed on July 17, 2000, which
went into effect on October 19, 2000, Germany specifically exempted art
claims from 10 billion DM cap stipulated to resolve the matters covered
by that agreement. Moreover, the new
statute appeared to undermine Germany’s own efforts to recover art
that was taken from its public and private collections during World War
II. A prominent example is the Gotha case (City of Gotha/The Federal
Republic of Germany v. Sotheby’s and Cobert Finance S.A., Queens
Bench Division September 9, 1998, Case No. 1993 C 3428 and Case No. 1997
G 185), a lawsuit commenced in England by the government of the Federal
Republic of Germany to recover art that had been stolen from a public
collection at the end of World War II. In this case the German government
argued that to allow the defendants to use Germany’s statute of limitations
as a bar to the return of the stolen art would violate England’s
public policy. The court (Mr. Justice Moses) concluded that the statute
of limitations of the Federal Republic of Germany would conflict with
English public policy. In its opinion, the court noted that the case involved
a plaintiff that had no knowledge of the whereabouts of the painting and
therefore no possibility of recovering it. Survivors of the Holocaust
who had their art stolen by the Nazis are in a similar predicament: they
had no knowledge of the fate of their art and therefore could not take
any steps to recover it. Following the approval
of the new statute by the Bundestag, the lower house of Germany’s
parliament, the Commission for Art Recovery was concerned that the new
statute represented a reversal of course on the part of the Federal Republic
of Germany, on October 31, 2001. Ambassador Ronald S. Lauder, the Chairman
of the Commission for Art Recovery, wrote to the head of government of
each of the sixteen Länder in order to ask them to consider what
steps would be available in order to address the problems raised by the
proposed statute. (click
to view letter from Ambassador Lauder), (note:
if you do not have Acrobat Reader™ click here to download). Ambassador Lauder’s letter was effective. On November 9, 2001, the Bundesrat, the upper house of Germany’s parliament, passed a resolution stating that, although the Bundesrat approved the statute, the statute of limitations could lead to unfair consequences insofar as cultural property taken in Nazi-era persecutions and relocated as a result of the war are concerned, and, in that context the Bundesrat reaffirmed the "Declaration by the Federal Government, the Länder and the National Associations of Local Authorities on the Tracing and Restitution of Nazi-Confiscated Art, especially from Jewish Origin" and, in particular, the intentions that cultural properties that can be identified as taken in Nazi persecutions and that can be assigned to definite aggrieved parties be given back to the legitimate former owners or to their heirs after individual examination. Going further, the Bundesrat appealed to all private-law organizations and private persons to recognize this stance by the government as a model and a standard. In addition, the Bundesrat stated that it expected the federal government will given an opinion as soon as possible on the question of whether and how the limitation of restitution claims concerning cultural property taken in Nazi persecution and relocated as a result of the war requires special legislation and, if necessary will introduce an appropriate bill. (click to view the Resolution), (note: if you do not have Acrobat Reader™ click here to download), (click to view English Translation of the Resolution), (click to view press release). Koordinierungsstelle für Kulturgutverluste (Coordinating Office) and the Berlin Declaration In the meetings that
the Commission for Art Recovery has held with representatives of the government,
the Commission has stressed the need for a streamlined procedure for victims
and their heirs to claim art. The Commission for
Art Recovery has urged the federal government to implement a new procedure
in which the red tape, bureaucracy, competing governmental agencies, delays,
costs, and above all, injustices will be minimized. Germany’s constitution
limits the federal government’s jurisdiction over this matter, and
it is essential that the federal government, the Länder and the municipal
governments work together to review all public art collections for works
with uncertain provenances for the years 1933-1945. In order to create
some structures for the dissemination of information about stolen art,
the Federal Government, the state (Länder) governments and the associations
of municipal governments formed the Coordinating Office of the Federal
States for Restitution of Cultural Objects (the "Koordinierungsstelle
für Kulturgutverluste") in Magdeburg, Germany. In addition,
on December 14, 1999, the Federal Government, the state (Länder)
governments and the associations of municipal governments issued a policy
statement that encourages governments at all levels in the Federal Republic
of Germany to examine their collections for works with uncertain provenance
for the 1933-1945 period. The statement is entitled "Declaration
by the Federal Government, the Länder and the National Associations
of Local Authorities on the Tracing and Restitution of Nazi-Confiscated
Art, especially from Jewish Origin." (the "Berlin Declaration")
(click
to view Declaration). With the assistance
of the Commission, on April 10, 2000, the Coordinating Office posted on
the Internet (at www.lostart.de)
archival information from previously unpublished or closed sources.(click
to visit Internet archival information).
These archives include the so-called Linz List—a list of works of
art returned by the Allied forces to the Federal Republic of Germany from
the Munich Central Collecting Point for stolen art. (Although some of
these works had been intended for Hitler’s planned museum in Linz,
many were simply unclaimed at the Munich Central Collecting Point. The
Federal Republic of Germany distributed the art on a long-term loan basis
to museums and numerous government offices.) In the first four months
after the Internet posting, Germany received approximately 40 inquiries
about works of art on the list, many asking for photographs. The Commission
has on occasion provided additional assistance to the Coordinating Office
on technical and restitution issues, the agency that runs the Internet
project and the agency that is likely to become a central office for claims
and information on Nazi-looted art (click
to view press release).
In meetings held with
the Coordinating Office in October 2001 in Magdeburg, the Commission agreed
to further assist the Coordinating Office in the following areas: (i)
the Commission will provide the Coordinating Office with additional information
about potential claimants for art stolen during the Holocaust, (ii) the
Commission will advise the Coordinating Office with technical advice concerning
electronic matching techniques to be used to compare electronic pictures
of stolen art, (iii) the Commission will translate into English a leaflet
prepared by the Coordinating Office to acquaint potential claimants with
the Coordinating Office, (iv) the Commission will assist in the translation
of a list of claimant and lost art information maintained by the federal
Finance Ministry, and (v) the Commission will provide additional "red-flag"
names of notable artists, dealers and victims to add to the Guidelines
(see below). For their part, the
staff of the Coordinating Office agreed to: (i) electronically compare
the objects on the Coordinating Office list of art claimed by Jewish families
with the lostart.de database of art that is in public collections in Germany
and that has doubtful provenance and (ii) to supplement the Guidelines
with additional names of notable artists, dealers and victims. The Commission and the Coordinating Office also discussed the possibility of working together on projects concerning the identification and restitution of art that was stolen during the war and may be presently located in Eastern Europe. These projects would include both art that was stolen from victims of the Holocaust and art that was stolen from German museums and other institutions. Guidelines of February
2001 In February, 2001,
a working group composed of representatives of the Federal Government,
the states (Länder) and the associations of municipal governments
issued Guidelines for the Coordinating Office, entitled "Guidelines
for the Implementation of the Declaration by the Federal Government, the
Länder and the National Associations of Local Authorities on the
Tracing and Restitution of Nazi-Confiscated Art, especially from Jewish
Origin." Based upon the Commission’s discussions with the federal
government, the Commission had hoped that the Guidelines would begin to
create processes for the facilitation of claims and the restitution of
art. A review of the Guidelines and the attachments that are annexed to
it, however, shows that this document is instead only a rather detailed
discussion of the technical requirements for museums providing data to
be included on www.lostart.de. The Guidelines provide no guidance to those
who most need it: victims of Nazi art theft and their heirs. In fact,
in virtually the only discussion in the Guidelines about restitution,
the Guidelines inexplicably state that there is generally no further legal
claim for art stolen during the Holocaust:
In addition, the Guidelines
explicitly refer to in-house budget rules ("haushaltsrechtliche Bestimmungen")
that restrict a public institution’s discretion to dispose of assets
in its custody. These
provisions in the Guidelines will only discourage officials of government
agencies and museums at all levels from researching their collections
in order to identify art that may have been stolen during the Holocaust
and from assisting claimants from recovering their art. Indeed, these
provisions would appear at odds with the very purpose of the Coordinating
Office and the lofty statements contained in the Berlin Declaration: Why
search for stolen art if the art, when located, need not be returned to
its rightful owner? Furthermore, the Guidelines
appeal only to the individual sense of -responsibility of cultural institutions
to handle claimants’ inquiries and claims properly. This appeal is
suggests that dealing with claimants is merely a courtesy, not a firm
commitment to implement the spirit of the Washington Conference Principles,
the Vilnius Declaration, Resolution 1205 and the Berlin Declaration itself.
In fact, there is no stated legal obligation on the part of public institutions
even to respond to such inquiries. The staff of the Coordinating
Office has told the Commission for Art Recovery that its mission is solely
to create a database of art that may have been stolen and that the Coordinating
Office has not been charged with facilitating the restitution of stolen
art, although, if the Coordinating Office is able to locate the art that
a claimant seeks, the Coordinating Office will notify the claimant. Officials
of the Ministry of Culture have confirmed that the role of the Coordinating
Office was deliberately designed to be of a limited scope. As a result, neither
the Guidelines nor the Coordinating Office provide any guidance to claimants
in the following critical areas: (i) how to research and locate art that
may have been stolen from claimants or their families, (ii) how to document
ownership and inheritance information (Exhibit Va to the Guidelines require
"seamless" documentation of legal successorship through Erbscheine
(certificates of inheritance) and powers of attorney), (iii) how to meet
the burden of proof (the Guidelines do not suggest that public officials
act liberally when dealing with circumstantial evidence, which is frequently
the only evidence available in cases of art stolen during the Holocaust)
and (iv) how to effect the return of art to claimants. No agency is named
as a central place where claimants may get assistance from the German
authorities in these critical areas, and no agency is named as a central
office that will shepherd claims through public museums or other public
collections in order to ensure that the claims are thoroughly researched
by these institutions. The claimants continue to be left largely to their
own devices in pursuing their quest for stolen art. Indeed, the Guidelines
do not indicate whether a claimant should apply to a museum or to a government
office, retain German counsel or proceed alone. In addition, no guidance
is given to museums that may be approached by claimants or their representatives.
It has been the experience of the Commission for Art Recovery in working
with claimants that, even after art is located, the steps that must be
taken to recover the art are numerous, involve many different government
offices and officials (most of whom have no experience with such matters),
time-consuming, and require a great deal of expensive lawyers’ expertise.
Even after all the necessary papers have been signed by the proper officials,
a museum may delay the delivery of the art while trying to prolong negotiations
for purchasing the art. These concerns had
been raised by the Commission for Art Recovery in its early meetings with
officials of the Ministry of Culture and were covered in the Commission’s
proposed Action Plan, and the Commission for Art Recovery is disappointed
that the government officials involved did not use the opportunity presented
by the Berlin Declaration and the establishment of the Coordinating Office
to establish a model claims office for individuals seeking the return
of stolen art. (click to view Action
Plan). Furthermore, as discussed above, statements in the Guidelines
actually discourage restitution by purporting to advise public officials
that there is generally no legal claim for art stolen during the Holocaust
(when in fact the Federal Republic of Germany has subscribed to many principles
that encourage the return of art even in cases where there may be legal
defenses available) and reminding public officials of budgetary restrictions
in the disposition of assets. In addition, among
the matters contained in the Guidelines is a list of the names of Jewish
collectors whose possessions were plundered, and the dealers and auctioneers
who were involved in Nazi art looting. This list, however, is incomplete
and includes misspellings that will render the list useless for the purposes
of computer matching. As noted above, the Commission recently offered
to assist the Coordinating Office in correcting these matters and adding
additional names. The Guidelines were
prepared solely by a homogeneous group of government and museum officials
and were, therefore, conceived and written entirely from the official
German point of view. The Washington Conference Principles (particularly
no. 10) call for a balanced membership of committees or other bodies established
to identify and restitute stolen art. The deficiencies inherent in the
current Guidelines reflect the absence of any input from organizations
that represent claimants and that understand their needs and concerns
and the difficulties that claimants face when searching for and attempting
to recover stolen art. The Commission has expressed its concerns about the Guidelines and the limited role of the Coordinating Office with officials from the Coordinating Office, the Ministries of Culture, Finance and Foreign Affairs. The Commission for Art Recovery hopes to continue working with these agencies in making the restitution process a realistic opportunity for claimants to recover their art. Recovery and Restitution The Commission for
Art Recovery has also had success in the recovery and restitution of art
in Germany. In June 2000, the
City Council of Hannover voted unanimously to return a painting by Lovis
Corinth, Walchensee Landscape, Saint John’s Eve (1920), to the heirs
of Gustav and Clara Kirstein. The following September, the City of Leipzig
agreed to return some 80 works of art, mostly by Max Klinger, to the same
family. Gustav Kirstein was a Leipzig art collector; he died of natural
causes in 1934, but many members of his family were victims of the Nazis.
These returns were a direct result of the Commission’s efforts, working
with German authorities, the good offices of the Conference on Jewish
Material Claims Against Germany, and additional counsel representing the
heirs. In a Berlin ceremony next to the Brandenburg Gate on September 25, 2000, the works were officially returned to a representative of the heirs, Thekla Stein Nordwind. Ronald S. Lauder, Chairman of the Commission for Art Recovery, hosted the ceremony. Speakers included the German Minister of Culture and Media, Michael Naumann; United States Ambassador to Germany, John Kornblum; Hannover’s Head of the Department of Culture, Harald Boehlmann; and the Lord Mayor of Leipzig, Wolfgang Tiefensee. The ceremony received extraordinary press coverage in Germany. (click to view press release) While the Commission is of course pleased with the results achieved for the Kirstein heirs, it must be noted that the recovery of this art took over one year, the efforts of a battery of attorneys and art experts and the political assistance of former Minister Naumann. This process was very expensive and is obviously not available to most claimants. Unfortunately, this process would be precisely the same process that the Commission would have to use if it were to commence a similar process for another claimant. Based upon the limited role of the Coordinating Office, the limited scope of the Guidelines, the unfortunate statements in the Guidelines about the status of legal claims for stolen art and the recent passage of the new statute of limitations, the legal and political climate in the Federal Republic of Germany still presents formidable obstacles to individuals seeking the restitution of art that was stolen during the period of Nazi persecution. In a restitution matter that did not involve the Commission for Art Recovery, in October 2002, Van Ham Fine Art Auctions of Cologne successfully assisted Marei von Saher in the restitution from a private collection of a painting that had been owned by Jacques Goudstikker, the foremost collector and dealer of Old Masters in the Netherlands prior to World War II. Mrs. Von Saher is the sole living heir of Mr. Goudstikker, who was forced to flee the Netherlands after the invasion by the Nazis in May 1940. The painting in question, Maria Magdalena by Anthony Van Dyck, was identified by the Art Loss Register as having been part of the Goudstikker collection. (click to view press release) Media Ronald Lauder, Chair of Commission For Art Recovery, Details for US Congress German Government’s Unprecedented Efforts to Return Stolen Art. (click to view press release) Unintended Loophole Could Have Thwarted Art Recovery in Germany. (click to view press release) Sole Heir of Jacques Goudstikker Recovers Painting by Anthony Van Dyck Entitled Maria Magdalena. (click to view press release) Action Plan 2. The government
of the Federal Republic will take an active role, in cooperation with
the Commission for Art Recovery, to seek out the rightful owners (or their
heirs) of art with a dubious provenance during the years of 1933 - 1945.
Toward this end, the government has undertaken, as announced on November
15, 1999, to assure the publication on the Internet of a catalogue of
the art known as the "Linz Collection." These works of art were
mostly acquired for Hitler’s planned museum in Linz. Today, the Linz
list comprises approximately 13,000 objects of varying quality and includes
paintings, works on paper, sculpture, tapestries, carpets, furniture,
decorative arts, manuscripts, books and rare coins. Among the most valuable
objects are 1,500 paintings, including works by major Italian and Flemish
artists from the 16th and 17th centuries as well as Austrian and German
19th century art. The Linz Collection was administered by the government
and, by 1982, was dispersed among German museums and federal organizations,
making it difficult for a potential claimant to identify his property.
This Internet catalogue will illustrate each artwork and provide for each
item the name of the artist, the title of the artwork and, to the extent
available, its provenance. In addition, the Internet catalogue will "user-friendly"
search mechanisms. The availability of the catalogue will be widely advertised
internationally by the Federal Republic in leading newspapers, media and
on the Internet. The government of the Federal Republic anticipates publication
of this catalogue in March of 2000. The catalogue will also be periodically
updated with additional information as it becomes available. 3. The government
of the Federal Republic will facilitate and coordinate the return of the
art currently held or controlled by the Federal Republic and federal organizations.
A "Claims Office" will be designated as the central clearinghouse
for the receipt of all inquiries by claimants for art, in effect, a "one-stop
shop." The Claims Office will be a cooperative effort of the Federal
Government and the Länder. The office will coordinate a review of
archives, records and other materials that may have any bearing on any
inquiry or claim. Within the next few months, to further assist claimants
in the claims process, a "Guide to the Art Claims Process" will
be published and widely distributed in print and on the Internet. The
guide will explain in detail the claims process and provide the addresses,
telephone and facsimile numbers and email addresses for the contact persons
in the Claims Office. The Guide will also detail examples of the documentation
or other evidence that will be required to substantiate a claim for art;
but it will also make clear that such examples will not be exclusive and
that other evidence will also be considered. Each claimant will receive
a written response from the Claims Office within three weeks of receipt
of the claim. The response will either acknowledge the validity of the
claim and request the claimant to contact the Claims Office to arrange
for the return of the art or will, clearly and in detail, explain what
type of further documentation to substantiate the claim may be needed.
The response will include the name of an official to contact to resolve
any issues concerning the claim. Art that is confirmed as belonging to
a claimant will be promptly returned to the claimant. If the claimant
or other owners of the art have previously received compensation for the
art, such compensation shall be repaid (without interest) to the federal
government. The claims process shall continue for a reasonable period
of time. 4. The government
of the Federal Republic recognizes that many new sources of information
have become available in recent years, and art that is currently held
or controlled by the Federal Republic or federal organizations that may
have been the subject of a lump sum or "global" settlement with
any successor or restitution organization will be returned to proper claimants
notwithstanding the terms and conditions of any such prior settlement.
The government of the Federal Republic will make available records of
art that was subject to such global settlements. 5. The Federal Republic
has worked with the Länder and local governments to develop a joint
statement of principle on the restitution of art looted from Jewish families
by the Nazis. This statement will provide a framework, within the guidelines
of the Washington Conference on Holocaust-Era Assets, for the identification
and restitution of Nazi-looted art. 6. After the completion
of the claims process, art that is not claimed after a reasonable period
of time shall be turned over to the Conference on Jewish Material Claims
Against Germany, as successor organization, for disposition. 7. The Federal Republic
may acquire any art that is not claimed after a reasonable period of time
by payment of prices to be agreed upon with the Conference on Jewish Material
Claims Against Germany. As a matter of historic soundness, the Jewish
provenance of such art, as well as its acquisition by the Federal Republic,
will be noted in an appropriate form (e.g., plaques, etc.) if such art
is publicly displayed in museums, government offices or other public institutions. 8. The Federal Republic
will prepare periodic (but at least semi-annually) reports for the public
on the progress of the return of the art. These reports will be published
in print form and will be made available on the Internet. 9. In order to provide
for the protection of United States claimants, procedures will be adopted
to ensure that the return of any art to citizens of the United States
will comply with the tax – exemption provisions of the United States-Federal
Republic of Germany Income Tax Convention of 1989. Similar procedures
will be adopted for art returned to citizens of other countries, whenever
applicable. 10. The Federal Republic believes that the art taken by the Soviet forces as the result of World War II includes many works of art looted by the Nazis from Jewish families. The efforts of the Federal Republic and the Länder to recover this art is an integral part of their program to restitute art to rightful Jewish owners. To the extent that any of this art is returned to Germany, the Federal Republic will handle this art in accordance with the principles set out in this plan, and in particular, paragraphs 2, 3, and 6. Discussions
with the Government |