Dhe restitution rules currently practiced for cultural property confiscated as a result of Nazi persecution have two strands. Both result from the principles of Washington adopted by the federal government in 1998. According to this, on the one hand, in the case of works of art confiscated by the Nazis, “the necessary steps should be taken quickly to find a just and fair solution” – restitution in the true sense of the word. On the other hand, because in many cases their whereabouts are unclear, the works of art should first be “identified”. Both strands – restitution and identification – were taken up in the joint declaration of the federal government, the federal states and the central municipal associations of 1999 and expanded from works of art to cultural assets and from Nazi confiscation to Nazi persecution-related deprivation and limited to cultural assets in public ownership ( i.e. with the exception of private property).
The Federal Government Commissioner for Culture and the Media (BKM) has been publishing an ever-growing “guide to the examination of persecution-related withdrawal” as a “handout” for public and – in deviation from the joint declaration – also for private property on the restitution regulatory strand Preparation of decisions on restitution requests ”. In favor of victims of Nazi persecution, it contains a simplification of evidence for their previous property and the rebuttable presumption that the cultural property demanded back was confiscated as a result of Nazi persecution. In the event of differences of opinion about the return of a specific cultural asset, the advisory commission set up in 2003 by the federal government in consultation with the federal states and the central municipal associations will act if both sides request it. On the part of the opponent of restitution, this can be a public or private owner of cultural property. The commission acts as a mediator. It can make non-binding recommendations for the settlement of disputes, so it is not an arbitrator who decides the dispute himself.
In its rules of procedure, the Commission cites the Terezin Declaration of 2009, also adopted by the Federal Government, as the basis of its activities in addition to the Joint Declaration, the handout of the BKM in its current version and the Washington Principles. This extends the Washington Principles to all Holocaust assets, for example on small businesses, companies, houses and properties, from the small bakery around the corner to the present-day service villa of the Federal President in Berlin. With this, the extension of the restitution to all other Holocaust assets has been prepared, through the back door of the procedural rules of an advisory commission, which is composed of private persons appointed by the BKM with legal, ethical, cultural and historical expertise. The rules of procedure also stipulate that the commission can justify its recommendations – in deviation from the Washington standard “just and fair” – also on a purely moral and ethical basis. This was the case with the recommendation in the Grawi case on February 10, 2021 that the city of Düsseldorf should restitute the painting “Foxes” by Franz Marc – all legal counter-arguments were declared irrelevant.
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