2024-03-23 14:01:14
After the “Schwabinger art find” judicial scandal – May 6, 2024 is the tenth anniversary of Cornelius Gurlitt’s death – the federal government promised to dramatically improve the situation for claimants for the restitution of works of art. Almost nothing happened for a decade.
The decisive committee with the record-breakingly long name “Advisory Commission in connection with the return of cultural property confiscated as a result of Nazi persecution, especially from Jewish property,” had the last two cases entrusted to it – the paintings “The Foxes” by Franz Marc and “The Colorful Life ” by Wassily Kandinsky – viewed quite uncritically as stolen art. And this despite the fact that in the last case in particular there was a lot to be said against looted art and some in favor of the work being voluntarily sent up for sale (by a wife in Amsterdam who had been cuckolded by her Jewish husband Robert Lewenstein).
In the case of Marc’s “Foxes”, which were sold as “escape goods” by his Jewish owner Kurt Grawi after he had been transported safely abroad to New York, an application for bias was even made against a member of the commission. The recommendation for restitution, which even assumed that the personal Nazi persecution of the Jewish owner in the USA would continue, definitely went too far for many experts and really caused waves.
Advisory Commission called for help
Criticism has been raised for a long time that such decisions, which are also very difficult from a legal point of view, should not be left to deserving politicians and morally high and honest personalities alone, but that specialized experts must be brought in to deal with the complex cases of stolen art. In addition to specialized lawyers, these would also be experienced provenance researchers and experts in contemporary history.
On its 20th birthday in September 2023, the Advisory Commission itself called for help in a memorandum and called for urgent reforms. She wanted to become more important, more powerful and finally decide more cases than just 23 in the past twenty years. Now it will probably be abolished and with it the inadequate system of voluntariness and non-binding.
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Because: Claudia Roth, the Federal Commissioner for Culture and Media (BKM), the federal states and municipal umbrella associations have now apparently come together to replace the previous Advisory Commission with an arbitration system – that is an institution that employs arbitrators a legally binding arbitration award is made by judges of a state court, which is also enforceable.
The decisions of this arbitration tribunal should be judicially reviewable and thus come within a binding legal framework. This means nothing other than a paradigm shift in Germany in dealing with looted art. Until now, claimants had to rely on the museum that owned a work of art in question to agree to a return procedure with the Commission, which was often not the case. The key point of the new procedure is the possibility of appealing to the arbitration tribunal unilaterally, even against the will of the current owner.
Even Bavaria is moving on the issue of looted art
This makes Germany the first country in the world to introduce a binding and professional arbitration system in looted art issues. This is being promoted by experts all over Europe, while in other countries such as France, the Netherlands, the United Kingdom and Austria, comparable mediation commissions still have their say.
And even Bavaria is now moving: the Pinakothek der Moderne in Munich owns the painting “Madame Soler” by Pablo Picasso; the descendants of the Jewish collector and former owner Paul von Mendelssohn Bartholdy have long been demanding its return. The Free State and its art minister Markus Blume have suddenly agreed to take part in arbitration proceedings for the picture.
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Bavaria had always categorically rejected this since 2012. Based on the Advisory Commission’s recent recommendations, there appeared to be concerns about getting a fair trial. In a negotiation before the new arbitration court, Bavaria would no longer be asked whether they wanted to take part.
On the 25th anniversary of the Washington Principles (43 states and 13 non-governmental organizations committed themselves to identifying works of art confiscated as a result of Nazi persecution and to finding just and fair solutions with the owners or their heirs), there are international calls for the presumption of persecution to be tightened. Every sale between 1933 and 1945 should be viewed as a forced sale. This demand certainly goes too far, but it would mean the end of “Madame Soler” in the Bavarian State Painting Collections.
Arbitration court replaces commission
In fact, proceedings before the Advisory Commission were not transparent. Every court in Germany names the rapporteur, but not the Commission. However, their recommendations were neither enforceable nor enforceable. For the public sector, however, they seemed like a regular court ruling because they had to commit to bindingly following the recommendation of the “Mediator” Advisory Commission. This is absolutely unusual in mediation. Unfortunately, so far no one has dared to have a recommendation from the Advisory Commission, which lawyers call an ad hoc arbitration award, reviewed by the responsible Chamber Court in Berlin.
The arbitration tribunal should act on the basis of a new procedural code and a comprehensive, differentiated assessment framework. A mere revision of the severely deficient handout will not be enough. Since 2001, it was actually only intended to be a recommendation for dealing with return issues, but it was often used as a kind of law, even though it wasn’t one.
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Return of Nazi-looted art
The big hit is now planned. The Looted Art Act, which many are calling for, with clear criteria as to when there is a seizure due to persecution and when there is not, is urgently needed. And there were certainly a few voluntary sales during the Nazi era that would have taken place outside of National Socialism. Even if these cases are rare, this should not be ignored.
Behind the scenes, however, the exciting question arises as to how this compromise, indeed the great achievement, could even come about after Germany was never able to solve this Gordian knot for years. Bavaria had always blocked the unilateral call about the painting “Madame Soler”, other Union-run countries had nothing against it.
Apparently there were good advisors at work in the BKM under the leadership of Andreas Görgen: What politicians often cannot manage in a lengthy legislative process is now being solved elegantly – first through an administrative agreement and then in a second stage through a state treaty involving the municipalities.
Will there also be a differentiated law on looted art?
It remains to be seen whether the state treaty will actually come about. But the arbitration court will definitely come. And this gives you all the possibilities of modern arbitration, whose arbitrators will hopefully be able to work not with the non-binding handout, but with a differentiated law on looted art. It will therefore be important to provide a good pool of experienced arbitrators in which the members of the Advisory Commission can also act, but other experts can also be chosen by the parties.
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Finally, provenance research should be proactively included in the decision-making process at state expense. While this was previously the sole responsibility of the parties, the arbitration tribunal will hopefully be able to request expert reports from the state. The model is the system in the Netherlands, where this has been working very well for a long time in the Royal Academy of Sciences. However, the fee range for this arbitration tribunal should be set lower than usual, otherwise the procedure will fail because of the costs.
For the art market, the new arbitration system now brings legal certainty and a strong professionalization of the decision-making processes for the first time. The German art trade, which has been hit hard by the Cultural Property Protection Act and the high VAT, will certainly welcome this. The arbitration tribunal is not only a reform or strengthening of the Advisory Commission, but it replaces it – thereby making a radical break with the previous system of non-binding. May stolen art finally be brought home to its rightful heirs and may it calmly reject unjustified claims: The Advisory Commission is dead, long live the Arbitration Court!
The author has been a lawyer in Munich since 2004 and has been involved as a party representative in numerous looted art cases (including Gurlitt, “Sumpflegende”, “The Colorful Life”).
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