FREUNDESKREIS

FREUNDESKREIS THE RESTITUTION OF LOOTED ART

LOOKING BACK ON THIRTY YEARS OF EXPERIENCE

Peter Raue

It is remarkable – and one of many saddening realisations – how post-war society in the Federal Republic of Germany has dealt with the injustices inflicted by the National Socialists, particularly on their Jewish fellow citizens. For decades, even the most reputable art dealers and auction houses traded in Jewish-owned artworks, paintings and sculptures, and museums acquired “tainted” works without the parties involved investigating the issue of their provenance. It was not until 1998, fifty-three years after the Second World War, that a turning point was reached with a non-binding agreement under international law: The Washington Principles laid the foundation for systematic provenance research to locate and restitute cultural property looted primarily from Jewish citizens.

Franz Marc, The Foxes, 1913, oil on canvas Kunstpalast, Dusseldorf

THE WASHINGTON PRINCIPLES

Under international law, this agreement is a voluntary commitment by all states signatory to the declaration, including of course the Federal Republic of Germany, to identify works “confiscated” (!) during the National Socialist era as “looted art”, to locate their pre-war owners and come to a “just and fair solution” with them. In Germany, this voluntary commitment finds its expression in the Statement of the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Naziconfiscated art, especially Jewish property (the Common Statement); it is followed by the Guidelines on implementing the claims for restitution (most recently from 2019). This document, which is also “intended as legally non-binding guidance to the implementation of the Common Statement”, provides an assessment procedure, according to which the following questions are to be asked:

Was the applicant persecuted by National Socialist acts of violence on the grounds of “race, creed or ideology”?

Did [...] the loss of property occur through forced sale, expropriation or in any other way?

In this case, the presumption that the loss of the artwork is due to persecution can only be rebutted if the seller received appropriate proceeds from their sale and could freely dispose of them. This arrangement is more stringent for sales after 15 September 1935. From this point on – according to the Guidelines – an investigation must show whether “the legal transaction [...] would also have been concluded without National Socialist rule”. The Guidelines explicitly point out that – following The Washington Principles – in the event of a restitution claim, a “just and fair solution” is to be sought, which “can only be achieved together with the rightful owners”. Repurchase, permanent loan, and exchange are also possible alternatives to restitution. If the parties – the parties claiming restitution and the owners of the reclaimed works of art – cannot reach an agreement, they can appeal to the Coordination Office for the Loss of Cultural Assets, which is an Advisory Commission on the return of cultural property seized as a result of Nazi persecution. Both sides must agree before an appeal to the Advisory Commission can be made, and the commission can only make recommendations; that is, the Advisory Commission has no decision-making authority.

A fact that is often overlooked in the discussion should be emphasised: The Washington Principles and the associated national provisions are addressed exclusively to the public authorities (Federal Government, Länder, and local authorities). Under The Washington Principles, these bodies alone are obliged to provide restitution and to seek a just and fair solution.

Although (only) the public sector is bound by the obligations of The Washington Principles, the truly dramatic field of application concerns works that are privately owned. We lawyers speak of the “normative force of the factual”: although there are no provisions on this, The Washington Principles de facto exclude trade in artworks that are privately owned and were once seized from their Jewish owners.

No reputable art dealer today will offer a painting for sale or purchase one; no trustworthy auction house (the world over!) will hold an auction; and no museum will even accept a donation of a work where there is a suspicion (!) that the painting was wrested from its former Jewish owners under Nazi rule. It makes no difference here whether the artworks were put up for sale and sold at so-called Jewish auctions (the proceeds of which – if received at all – the Jewish owners generally had to spend on Reichsfluchtsteuer, the “Reich fugitive tax”); or the loss was due to the fact that the Jewish owners were forced to (or able to) flee the country at short notice, leaving behind their belongings, including their artworks; or – as is so often the case – the artworks were confiscated in Nazi raids.

However, the effect of The Washington Principles on private property is reinforced in a barely foreseeable and highly problematic way by the Lost Art Database of the German Lost Art Foundation. When a search report is submitted, a serious consistency check is not even carried out by the foundation (as this would overstretch its resources). Once an artwork is entered into the database, the work is usually barred from trade. Often, the artworks registered there have been in the possession of buyers (and their heirs) for decades who, when acquiring the artworks, had no reason to suspect nor had any indication that these artworks might have been seized from Jewish owners due to the discriminatory action of the National Socialists. The deletion of a (false) entry from this database is almost impossible to achieve in practice!

FROM LOOTED ART TO FUGITIVE PROPERTY

While we find ourselves on more or less safe ground when it comes to restitution claims for “looted art”, the debate on how to deal with “fugitive property” has increased truly dramatically in recent years.

The term “looted art” is generally understood to refer to the involuntary dispossession of property in the so-called German Reich. “Fugitive property”, on the other hand, is understood to mean works that (though not confiscated, forcibly sold, or seized directly by the state) were sold abroad by Jewish owners who had been expelled from Germany. Whether “fugitive property” should also be amenable to restitution claims has not really been decided to this day. The answer is also complicated: According to the prevailing opinion, artworks that were initially taken to a country of exile considered safe (e.g. France, Belgium, the Netherlands, Italy) and sold there are not to be regarded as “fugitive property” amenable to restitution. Admittedly, it is important to bear in mind that in many cases a place initially considered safe was later occupied and controlled by the National Socialists, and that the persecution of Jewish citizens in foreign countries once considered safe was common practice in those places as much as it was in Germany. Here, therefore, it is widely agreed that the fact that a sale took place outside the German Reich does not rule out the possibility of the property being seized as a result of Nazi persecution. For example, Jews who fled to Italy (or who were resident there) were initially not persecuted even under Mussolini’s rule. But this changed radically with the so-called leggi razziali (racial laws) from 1938 onwards. Under these laws, Jews in Italy were forbidden, among other things, to trade in art. From 1940 – when Italy entered the war – foreign and Italian Jews were interned in around fifty camps and, from 1942, obliged to perform forced labour. In this situation, the loss of artworks (through sale) can often entail an obligation of restitution, even though it is “fugitive property”.

Until now, the largely shared understanding of all those involved in restitution issues has been that works of art sold by Jewish owners exiled abroad – in South America, the US, especially in New York (and generally done in order to secure a living), were not subject to “persecution-related seizure” by the National Socialists. And this is where a recommendation of the Advisory Commission has recently caused a commotion and considerable – also public – controversy. The recommendation of the Advisory Commission concerned dates from 10 February 2021.

THE FOXES AND THE ADVISORY COMMISSION

A picture painted in 1913 by Franz Marc entitled The Foxes belonged to the collection of the Museum Kunstpalast in Düsseldorf from 1962 – a gift from Helmut Horten, the great department store owner (and shameless profiteer of the “Aryanised department stores”). The former owner of this work, Kurt Grawi, a Jew undeniably persecuted and expropriated by the National Socialists, who was imprisoned in a concentration camp for several weeks in connection with the so-called Reichspogromnacht, was able to flee to Santiago de Chile at the end of 1939, where he died in 1944. In order to secure his livelihood in Santiago at least to some extent, Grawi managed to sell The Foxes in New York through an art dealer in 1940. There is no evidence to suggest that Grawi did not receive the proceeds of sale – which corresponded to the value of the painting at the time. Nevertheless,

Fritz Erler, Schwarzer Pierrot, 1908, oil on canvas Akademie der Künste, Art Collection

It was only by inspecting the reverse and researching the provenance that Erler’s original painting on canvas of a fencer, previously thought to be lost, was rediscovered. The Pierrot was displayed in the Moderne Galerie of the German-Jewish art dealer Heinrich Thannhauser in Munich in 1910. The Thannhauser family was forced to flee from the National Socialists, and the art they left behind was seized. How long the Pierrot was in the possession of the Moderne Galerie has not yet been established.

when the Advisory Commission advises the City of Düsseldorf to restitute this work to Grawi’s heirs, this sets a massive new precedent! The Commission recognises (quite correctly) that Grawi’s life was no longer in danger in Santiago, but that the sale of the painting was caused by the previous “virtually complete depletion of his assets”. Therefore, according to the Commission, it is a case of “expropriation in connection with Nazi persecution”, “although the sale was completed outside the sphere of Nazi influence”.

This decision has led to a lively public debate, notably in the Frankfurter Allgemeine Zeitung (FAZ). Patrick Bahners (on 15 April 2021) first criticises the decision under the headline “So Now Almost Everything is Looted Art” and rightly recognises that this is an “implicit change in the decision-making practice” of the Advisory Commission, since the sale was undoubtedly not a forced sale (but perhaps a “sale of necessity”). This is all the more astonishing – according to Bahners – as the Commission itself acknowledges that its decision is not covered by the stipulations of the Guidelines.

A little later, the former presiding judge at the Berlin Administrative Court, Friedrich Kiechle, wrote in the FAZ (on 22 April 2021): “By restituting The Foxes, Düsseldorf’s City Council would risk criminal prosecution” (because there was no legal basis for the loss of this work worth millions). For the first time since the Commission came into being, that is, for the first time in about thirty years, the Chairman of the Commission, the former President of the Federal Constitutional Court Hans Jürgen Papier, also justifies the Commission’s recommendation in the FAZ (on 7 May 2021) with the (to me unconvincing) claim that it is consistent with earlier recommendations made by the Commission. At the heart of Papier’s attempt at justification is the sentence:

“The only asset that [Grawi] was able to save was Franz Marc’s ‘The Foxes’ [...] a work he now sold [...] because he hoped it would provide him with the necessary funds for a new start.”

Papier concludes his justification for the decision passed by six votes to three with the sentence that in the Commission’s view this sale was not a voluntary decision, but “a sale under the immediate pressure of persecution”.

If this recommendation of the Commission is the yardstick for future restitution recommendations, then practically any legal transaction involving works of art by Jewish emigrants, even in safe foreign countries from 1935 to 1945, is a case calling for restitution under The Washington Principles. A Jewish emigrant succeeding in taking pictures with him when he emigrated from Germany (commenting almost whimsically: “at that time we lived from wall to mouth”) is not seen by the Advisory Commission as one of the many terrible consequences of the National Socialist persecution of the Jews, but as the state’s confiscation of property (belonging to Grawi). However, this cannot be regarded as a case of confiscation, which according to The Washington Principles is a prerequisite for the obligation to restitute. When one considers that the decision of the Advisory Commission not only binds the public authorities, but also affects the private owners of such works of art, the recommendation does genuinely set a highly significant new precedent.

The widely held belief that restitution claims will be settled soon after adoption of The Washington Principles is mistaken. The proceedings are steadily increasing in number and will soon – if the Commission sticks to its concept of the “sale of necessity” – extend to all sales (of artworks!, but not jewellery, for example) by Jewish emigrants. This is not unproblematic. The debate will continue.

PETER RAUE is a lawyer in Berlin, specialising in the field of art and copyright law and often dealing with restitution issues. Raue is honorary professor for copyright law at the Freie Universität in Berlin and a founding member of the Society of Friends of the Akademie der Künste.

Max Kaus, HavelZiehbrücke in der Mark, 1931, oil on canvas Akademie der Künste, Art Collection

The painting was confiscated from the Bayerische Staatsgemäldesammlungen (Bavarian State Painting Collections) in Munich in August 1937 as part of the “Degenerate Art” campaign. Via the estate of Bernhard A. Böhmer, it came into the possession of Friedrich Schult in Güstrow. Today it belongs to the Art Collection of the Akademie der Künste. Provenance Research

From 2017 to 2021, experts of the Art Collection of the Akademie der Künste systematically investigated the provenance of 223 paintings and 170 sculptures held in the collection and executed before 1945 as part of a research project funded by the German Lost Art Foundation. During the project, no artwork, especially from Jewish ownership, was identified to have been seized as a result of Nazi persecution. In an exhibition taking place from October 2022 to January 2023, in addition to the project findings, the experts will reveal further stories behind selected works of art, cultural objects, and archive records and present the various areas of provenance research (https://digital.adk.de/ provenienzforschung/).

pp. 4–11 photos Mila Teshaieva/ OSTKREUZ | pp. 13–25 photos Matej Bejenaru | p. 28 © David Ostrowski, Courtesy Sprüth Magers; p. 29 © Kunsthalle Bern; p. 30 © Gregor Schneider/ VG Bild-Kunst, Bonn 2021; p. 31 © Rutherford Chang | p. 32 © PollockKrasner Foundation/VG Bild-Kunst, Bonn 2021 | pp. 34–38 © Mauro Fiorese, Courtesy: Galleria Gaburro, Verona – Milano; pp. 44–49 photos Michael Ruetz | p. 51 Akademie der Künste, Berlin, Kurt Maetzig Archive, no. 1872 | p. 52 (top) photo Käte Witkower, Akademie der Künste, Berlin, Karl Scheffler Archive, no. 687/31; p. 53 privately owned © VG Bild-Kunst, Bonn 2021 | p. 54 Akademie der Künste, Berlin, FotoAdK-O, no. 13; p. 55 Akademie der Künste, Berlin, PrAdK, no. 1434 | p. 56 Kunstpalast – ARTOTHEK; p. 57 Akademie der Künste, Berlin, Art Collection,fol. no. MA 221; p. 58 Akademie der Künste, Berlin, Art Collection, fol. no. MA 1 © VG Bild-Kunst, Bonn 2021

We thank all owners of image usage rights for kindly approving the publication. If, despite intensive research, a copyright holder has not been considered, justified claims will be compensated within the scope of customary agreements.

The views offered in this journal reflect the opinions of the individual authors and do not necessarily represent the opinion of the Akademie der Künste. Journal der Künste, Edition 16, English issue Berlin, September 2021 Print run: 800

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