Art and provenance research
Harald König*
German museums and public authorities use provenance research as a tool for uncovering the factual material concerning the whereabouts of works of art and their legal owner between 1933 and 1945. Complemented by the historical knowledge on the Nazi regime in Germany and the occupied countries, this factual material provides a basis for the handling of claims for compensation or restitution. Therefore provenance research must consider the rules, standards, and guidelines that govern the handling of such claims.
The Principles adopted during the Washington Conference on Holocaust-Era assets call for a just and fair solution in cases where former owners of works of art confiscated by the Nazis can be identified. The relevant authorities in Germany , the Federal Government, the Lands (i.e. the federal states) and the Communities and Cities (i.e. local authorities) affirmed their willingness to meet these standards in a declaration published in 1999.1 This declaration, however, emphasises that the relevant German legislation finally and comprehensively provide[s] for issues of restitution and indemnification of Nazi-confiscated art, especially from Jewish property. It goes without saying that the German legislature intended nothing else but a just and fair solution when enacting those laws and regulations that are known as the German Wiedergutmachungsrecht.
Apparently, the just and fair solution envisioned by the Washington Principles and the German declaration affirming them has a counterpart within the German legislation2 and the necessity to distinguish the two just and fair solutions from each other is obvious. First of all, neither the Washington Principles nor the above-mentioned German declaration of 1999 estabishes enforceable legal grounds for a claim. Therefore requests for restitution made under the Washington Principles (or the corresponding German declaration of 1999) need not be established within certain time-limits, whereas the German (Wiedergutmachungsrecht) legislation, by contrast, requires that specific deadlines be observed if claims are to be enforceable.
German legislation covering legal claims of Holocaust victims can reach only as far as the territorial sovereignty of the German legislature. Hence, objects dispossessed or confiscated in foreign countries occupied by Nazi Germany cannot be claimed under German legislation unless these objects were subsequently transferred to Germany . In contrast, the Washington Principles do not impose such territorial limitations.
According to German legislation, claimants qualify for restitution if their claims comply with the specific requirements laid down in the restitution laws. In particular, property lost during the Nazi era can be claimed only in cases where Nazi persecution caused the loss. If property was sold under duress or force, a direct link between the pressure exerted on the victims by Nazi persecution and the decision to sell off their property must be established. For the benefit of Jewish owners, however, German restitution laws contain a refutable presumption of this direct link. In contrast, the Washington Principles do not establish such specific requirements. The Principles merely recognize that the solution to be found may vary according to the facts and circumstances surrounding a specific case.
Although German restitution laws specify the prerequisites for restitution and compensation, the relevant provisions cannot anticipate every possible circumstance and thus leave space for interpretation by implementation. The vaguely formulatedjust and fair solution prescribed in the Washington Principles also must be determined by interpretation. As regards German restitution laws, an extensive body of case law demonstrates how these provisions had been implemented in large numbers of individual cases.3 When courts in Germany reviewed thousands of decisions made by the competent government authorities, the primary objective was a just and fair solution to each individual case. In almost the same manner as provenance research produces the relevant factual material needed for the handling of claims, German authorities and courts revealed the relevant facts of each individual case in preparation for their decision.
The body of case-law dealing with the issue of restitution and compensation of Nazi confiscated assets is still growing. The Property Settlement Law of 1990 4 covers claims of victims who lost their property in the course of the Nazi persecution in East Germany between 1933 and 1945. The competent authority in Germany is still handling these claims. In their decisions this agency – the agency I am working for – makes reference to the existing body of case law.
Under these circumstances, it seem reasonable that the government authorities handle requests for restitution under the Washington Principles analogues to the procedures and the material conditions laid down in German restitutions laws complemented by the existing body of case-law. Thereby, equal treatment between those who claim works of art with reference to the Washington Principles and those who lodged their claims under German restitutions laws is guaranteed. However, the abandonment of time-limits and territorial restrictions within the Washington Principles must be regarded. Beyond, a just and fair solution according to the Washington Principles must consider compensation payments which already had been made according to German restitution laws.
Among the general principles which govern German restitution laws, the refutable presumption for the benefit of Jewish victims plays an important role. Accordingly, any transfer or relinquishment of property made by a person who belonged to a class of persons which […] was to be eliminated in its entirety from the cultural and economic life of Germany by measures of the State or the NSDAP for reasons of race, religion, nationality, ideology or political opposition to National Socialism shall be presumed an act of confiscation.5 There exists an extensive body of case-law which illustrates the variety of individual cases, in which this provision became relevant and had to be interpreted by the judiciary.
Recently, a claim concerning two Waldmüller painting which once formed part of Hitler’s so called Linz collection was brought forward. The federal agency in charge of the remaining part of this collection had to handle the claim. The Jewish former owner of these paintings lived in Austria until 1939. Before he left Austria , he transferred the ownership of these paintings to his wife. His wife, who was not considered as Jewish according to Nazi legislation, remained in Austria and put these two painting on sale after her husband had left the country. In early 1940 the couple divorced. Finally, one of Hitler’s agents responsible for the planned museum in Linz (Austria) bought the two painting on behalf of the German State .
One of the key issues discussed with the claimants was the question of whether the non-Jewish spouse belonged to the class of persons which […] was to be eliminated in its entirety from the cultural and economic life of Germany by measures of the State or the NSDAP for the reason of race. As the circumstances of the transaction did not indicate a forced sale, the question of whether or to what extent the presumption for the benefit of those who belonged to the class of persons that was to be eliminated is applicable in this individual case became relevant.
In 1950, the United States Court of Restitution Appeals in Germany held that in many instances (…) the attitude of the Aryan spouses and/or the measures taken against them did place such persons (…) within the meaning of having been deprived of their property for reasons of race or religion or nationality. When an Aryan elected to stand by her Jewish help-mate, she often shared his fate, insofar as being forced to sell their property was concerned.6 In subsequent decisions German courts subscribed to this view and made clear, that the non-Jewish spouses can benefit from the presumption of confiscation as long as they shared the fate of their Jewish spouse. However, a non-Jewish spouse who separated from or divorced her Jewish spouse could not benefit from this presumption.7 Accordingly, the transaction in dispute in the discussed case could not be considered as a forced sale.
The question concerning the circumstances under which a former owner may benefit from the presumption of confiscation according to the definition given in the restitution laws once again became relevant in another case concerning works of art that formed part of Hitler’s so-called Linz collection. In this case the former Jewish owner transferred his collection of works of art to Switzerland in 1933. In 1939, he left Germany with his family and moved to the United Kingdom . After his death his legal heirs decided to auction off the collection of works of art in Switzerland . Again, one of Hitler’s agents bought several painting for the Linz collection on behalf of the German State .
The heirs of the former owner argue that Nazi persecution causally determined their emigration and their financial difficulties which induced them to sell off these paintings. Furthermore, it has been brought forward that the family belonged to the class of persons, which was to be eliminated in its entirety from the cultural and economic life of Germany by measures of the State or the NSDAP .
On the other hand, the paintings were offered for sale in a foreign country at a time when the family had escaped from Nazi persecution. Therefore, it has been argued that a direct link between the persecution in Germany and the sale of the painting in Switzerland is missing. Furthermore, measures of the State or the NSDAP taken to eliminate all Jews from the cultural and economic life of Germany could reach neither person nor property located outside the German State or the countries occupied at the time.
These two cases may serve as illustrations of the handling of claims or requests made with reference to the Washington Principles. In almost a dozen other cases the German authority charged with handling these claims decided in favor of restitution. In all cases research conducted prior the decision included the factual material concerning the provenance of the paintings as well as the existing cases-law.
* The following essay soley express the author’s opinion. A version of this essay was presented at the International Provenance Research Colloquium, Nov. 15-16, 2004, Washington, D.C. and has been published in: AAM (American Association of Museums): Vitalizing Memory: International Perspectives on Provenance Research, Washington, D.C., 2005, p. 32.
1 Statement by the Federal Government, the Laender (federal states) and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially from Jewish property of 14 December 1999 , available at: www.lostart.de
2 the legislation providing for the restitution of identifiable property within the three western occupied zones had been enacted by the occupying Allied Powers
3 30 volumes of the (monthly) law journal »Rechtsprechung zum Wiedergutmachungsrecht (RzW)« give an account of this case-law
4 Gesetz zur Regelung offener Vermögensfragen (VermG)
5 cf. Art. 3, Law No. 59 Restitution of Identifiable Property, Military Government – Germany , United States Area of Control; Law Gazette of the Military Government – Germany , United State Area of Control, November 10, 1947 , vol. G, p. 1
6 Reports/United States Court of Restitution Appeals of the Allied High Commission for Germany, US High Commission for Germany, 1951, case 131, p. 399 [400]
7 ORG Berlin RzW 1955, 286; BGH RzW 1958, 110; BVerwG NJW 2001, 87