The decision on Friday to allow our clients’ claims to proceed against German and the Stiftung Preussischer Kulturbesitz for the restitution of the Guelph Treasure (or Welfenschatz) is ground-breaking in important respects, and a welcome part of a consistent progression in the law of sovereign immunity over claims for Nazi-looted art. As we noted in our initial reaction, it is the first decision in which a U.S. court has held that it has jurisdiction over Germany or an agency or instrumentality of it under the Foreign Sovereign Immunities Act (FSIA) for a claim to Nazi-looted or purchased art—though others have certainly tried—in this case finding the so-called expropriation exception applies. Critically, it recognizes that claims about forced sales in the early days of Nazi persecution indeed create jurisdiction. Moreover, the court agreed with our clients that Germany’s various excuses to avoid litigating the substance of a forced sale involving Hermann Goering based on pleas for deference or respect to the flawed Advisory Commission are no reason to dismiss the case.
Topics: Guelph Treasure, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, Preemption, expropriation exception”, NS Raubkunst, sovereign immunity, Welfenschatz, HEAR Act
Two pending cases have invoked the new law
A recent article in the New York Times highlights the change that the recent passage of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has had on disputes about the timeliness of claims for allegedly Nazi-looted art. The odd part, however, is that the case cited by the Times is not one in which the HEAR Act has been invoked or argued, though it could be some day. As far as we are aware, there has been briefing on the effect of the HEAR Act in two cases, my clients’ claim against the Stiftung Preussischer Kulturbesitz (SPK) and Germany in U.S. District Court in Washington, DC, and Laurel Zuckerman’s claim as representative of the Leffmann estate in U.S. District Court in Manhattan. Only two months after its passage, the law is already changing the terms of debate.
Topics: Metropolitan Museum of Art, Germany, Seated Woman wiht Bent Left Leg (Torso), Bakalar v. Vavra, Stiftung Preussischer Kulturbesitz, Fritz Grünbaum, Egon Schiele, David Bakalar, HEAR Act, Richard Nagy, Laurel Zuckerman, Alice Leffmann
Word came this week of two resolutions of claims to Nazi-looted art in museums in New York and Cologne, and a new Nazi-looted claim against Germany filed in Washington. Barely a month after the Neue Galerie (of Austrian and German art) in New York announced that it had discovered a “major work” in its collection had a clouded history, the museum announced an agreement concerning the Karl Schmitt-Rotloff painting Nude (1914). It is not known if the Schmitt-Rotloff is the same work to which the museum referred last month. Around the same time, the Wallraff-Richartz-Museum in Cologne, Germany, announced that it had agreed to return a drawing by Adolf Menzel that had been sold to Hildebrand Gurlitt as its owners fled Nazi Germany in the 1930s. Blick über die Dächer von Schandau (View over the rooves of Schandau) (1886) will be retuned to the heirs of Hamburg attorney Albert Martin Wolffson and his daughter Elsa Helene Cohen. These settlements are examples of constructive dialogue and enlightened treatment of the historical fact. The new litigation likely means the opposite approach from the German defendants.
Topics: Cologne, Schwabinger Kunstfund, Breslau, Gurlitt Task Force, Germany, Wallraf-Richartz Museum, Nazi-looted art, 28 U.S.C. 1605(a)(3), Gurlitt, David Toren, Neue Galerie, Ernst Ludwig Kirchner, New York, Karl Schmitt-Rotloff, Alfred and Tekla Hess, Streen Scene in Berlin, Adolf Menzel, Strassenzene
Supposed Changes to German Advisory Commission on Nazi Looted Art Short on Specifics
There have been a number of articles this week indicating that Germany intends to reform the “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property” (Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter, insbesondere aus jüdischem Besitz) that is charged with making recommendations to German museums on claims for art allegedly looted or bought under duress during the Nazi era. Yet the most astonishing part of the news is that it is no news at all. It is merely a repetition—if that—of what was promised in March. Only now it is not even a promise, it is an indication that proposals may be forthcoming at some indefinite point in the future. It is further evidence that the entire endeavor does not deserve to be taken seriously. At best, the “reforms” would address some of the appalling discriminatory comments made earlier this year. But nothing proposed so far would compel a museum to submit to the commission, about which Bavaria in particular—the federal state that isin the midst of its own scandal for returning art to actual Nazis while giving heirs the runaround—notoriously refuses even to appear before the commission
Immediately Squanders Market Opportunities Created by Brexit
On a historic day in the European Union, Germany quietly enacted the revised Cultural Property Protection Law (Kulturgutschutzgesetz) that has sparked much controversy in recent months. On the very day that the United Kingdom’s vote to leave the European Union raises myriad questions about the effect on London in particular as a world center of the art market (see here for the terrific first take by our friends at Boodle Hatfield in London), Germany ironically has passed a law that will prevent it from stepping into any of the likely market void left by Britain's EU exit. While Germany is not alone in cultural property protection laws of this sort, it is a silly and unnecessary regulation that will undercut the German art market—as vocally proclaimed by German art market players themselves. In the art world, it was a regressive day on the eastern side of the Atlantic and a huge opportunity lost for Germany.
Barely a week ago German Minister of Culture Monika Grütters was dismissively rejecting any changes to the Advisory Commission that issues recommendations on claims of Nazi-looted art in German museums. Today, in a classic Friday afternoon news dump, Germany caved to a drumbeat of pressure to include Jewish members of the Commission, pressure that began right here and continued with the support of colleagues and friends around the world. The lesson? No voice is too small to make a difference.
Last week Germany’s Minister of Culture Monika Grütters made the astonishing statement that the Advisory Commission that issues recommendations for questions of allegedly Nazi-looted art in German museums would not be revised to include a member of the Jewish community because that Jewish member “would be the only voice who would be prejudiced.” The statement was not idle gossip, it was to the New York Times, which was writing a feature piece about her. This was a shockingly tone-deaf statement for a German cabinet member to make. Even in a vacuum, it is logically indefensible; why would a Jewish member be more biased than a German member (about which she had no objection). And, of course, it is not a vacuum—we are talking about Germany.
We have focused recently on the proposed legislation in Germany to make its cultural heritage export laws stricter, of which we have been critical here and in recent discussions.As ill-advised as we consider the proposed German law to be, to be fair, it is not unique. Its chief flaw is in seeking a solution (a stricter law) in pursuit of a problem.
We reported last week on the outrage over the decision by Germany and the Stiftung Preussischer Kulturbesitz (SPK) to argue in their motion to dismiss my clients’ claims to the Welfenschatz that a commercial interaction between German Jews and a cabal instigated by Hermann Goering in 1935 “predated the Holocaust by several years.” As we noted last week, the suggestion that the Holocaust was a distant possibility in 1935 was an indefensible statement, factually, historically, and ethically. The initial reaction was swift and severe. As Germany gets ready to host the First Conference of the German Centre for Cultural Property Losses next week, its policies are hurtling in the wrong direction.
Topics: Jewish Week Mel Urbach, Hermann Goering First Conference of the German Cen, Guelph Treasure, Gesetz zur Wiederherstellung des Berufsbeamtentums, Henning Kahmann, Atlanta, Simon Wiesenthal Center, Varda Neumann Federal Administrative Court, Yale University, Marion Kaplan, New York University, Germany, Nazi-looted art, Hitler, Kristallnacht Rabbi Abraham Cooper, Deborah Lipstadt, U.S. Holocaust Memorial Museum, Markus Stoetzel, Emory University, Behrens, Holocaust, Bloodlands, SPK, Advisory Commission, Black Earth: The Holocaust as History and Warning, Stiftung Preussischer Kulturbesitz, Restitution, Los Angeles, World War II, Law for the Restoration of the Professional Civil, Washington, Raubkunst, Timothy Snyder, Welfenschatz