Laws, Policies and Guidelines:

Comparative Art Law relating to Nazi-Confiscated Art March 2019

Events and Conferences

Spoliation during the Nazi era

Claims to Nazi-looted art



In your jurisdiction, in what circumstances would the heirs of the party wrongly dispossessed typically prevail over the current possessor, if a court accepts jurisdiction and applied local law to a claim to art lost during the Nazi era?
 

Czech Republic
HAVEL & PARTNERS

The Czech Republic enacted the Act on the Alleviation of Certain Property Injustices caused by the Holocaust. This Act allows for a claim for the restitution of art from the property of the state to be raised by the original owners, their spouses or offspring against the state entity managing the particular work of art if the work was dispossessed between 29 September 1938 and 4 May 1945, and the transfer was declared invalid by presidential decrees.

France UGGC & Associés

The claimant in a Nazi-looted art claim must first establish the ownership of his or her ancestor over the item, which becomes more difficult with the passage of time. The claimant must also show that his or her ancestor was wrongly dispossessed during the Nazi occupation. The wrongful dispossession may be presumed on the basis of contextual elements, such as the date of the transaction (during Nazi occupation in France), the identities of the parties to the transaction (such as parties known for their implication in the Nazi regime) and the conditions of the sale (if the sale was made under threat of violence, for instance). Finally the claimant must show that he or she was unable to launch an action before 31 December 1949.

Germany SKW Schwarz Rechtsanwälte

The prospects of success depend on whether a public body, such as a museum, archive or library, or a private person or institution, is in possession of the art. Against the latter the heirs may legally assert a claim for restitution, however owing to the lengthy period of time that has passed since the Nazi era, claims of the heirs are likely to be time-barred. The possessor may also argue that the art was acquired in good faith. Although this significantly reduces the chances of any legally enforceable claim for the return of the work , the possessor typically has an interest to amicably settle the heirs’ restitution claim. Art labelled as potentially Nazi-looted becomes difficult, if not impossible, to sell.

The question of whether art can be successfully reclaimed from a public institution tends to be one of politics rather than legal principle. Germany signed the Washington Principles of 1998, to which German public institutions normally adhere, though they are not legally binding. The Principles were further implemented via two national soft-law regulations. In practice, the heirs will typically prevail over a public body as the current possessor if the art was allocated to the institution by previous ‘state bodies’, such as the Gestapo (secret state police). If the art was sold to a public body, it is crucial to determine whether the loss of possession was caused by Nazi persecution. The guidelines establish the presumption that Nazi persecution was the reason for the sale of art from a person persecuted by the Nazis. Accordingly, the current possessor bears the burden of proof that the art was sold ‘under normal circumstances’, which increases the heirs’ chances of success.

Italy CBM & Partners

There are no specific provisions currently in force in Italy regulating claims to art lost or looted during the Nazi era in Italy.

General provisions regarding private ownership and acquisition of movable goods as a result of uninterrupted possession for a period corresponding to the statutory provisions (see questions 4, 5 and 6) would regulate these claims.

Netherlands Brinkhof

In general, claims to art looted during the Nazi regime will be time barred due to the expiration of statutory limitation periods. Restitution claims that are time barred can be brought before the Restitution Committee (see question 36).

Spain Ramón y Cajal Abogados

This type of claim has not arisen in the Spanish courts.

Sweden Advokatfirman Delphi

The determination of a restitution case and the chances of success depend, to begin with, on whether the current possessor acquired the stolen art before or after 2003. As explained in question 4, Swedish law prefers the victim of theft. Prior to 2003, however, it was possible to make good-faith acquisitions regardless of the history of an object. Hence, a current possessor having bought a work of art before 2003 from somebody who had made an acquisition in good faith is protected from restitution claims and must only release the property against compensation.

Accordingly, the chances of success are much higher if the current possessor acquired the object after 2003, since the buyer in this case does not have any protection against title claims from the original owner (see question 4).

The burden of proof is on the claimant to prove the origins and the original title to the object.

Switzerland Borel & Barbey

Title never passes to a purchaser in bad faith (article 936, Civil Code) and no time limitation applies to the restitution claim (see article 641, Civil Code). Hence, the wrongly dispossessed party would have to show that the current possessor acquired the art in bad faith, and that all previous owners did so too.

Turkey Okke & Hekim

There are no regulations that are specifically related to the Holocaust in Turkey. Claims may be governed by the general rules against transactions in stolen property, including in particular those pertaining to the protection of the acquirer in good faith (see question 4).

United Kingdom - England & Wales Constantine Cannon LLP

To find in favour of a claimant, an English judge needs to be satisfied as a matter of English law that:

  • ownership of the artwork remains with the party that was wrongly dispossessed between 1933 and 1945; and
  • the claim to the artwork is not time-barred under the applicable statute of limitation.

As a general rule, the possessor of an artwork cannot transfer title to it that he or she himself or herself does not have (also known as the ‘nemo dat quod non habet’ rule; see question 4). This means that, in principle, anyone deriving possession from the thief cannot claim good title. If this were the only rule, the victim of a wrongful dispossession would have a good claim against the current possessor for the return of the artwork. However, by application of the Limitation Act 1980, a claim to a stolen artwork must be made within six years from the date of the first acquisition in good faith. The Limitation Act goes further: if more than six years have passed, the claim is barred and the victim’s ownership is extinguished. In practice, this means that if English law applies, and if the current possessor can show that more than six years have passed since the first acquisition in good faith, any legal claim brought against the possessor will fail.

USA - California Christine Steiner Attorney at Law

Holocaust-era art has been the subject of numerous lawsuits in the United States. The US has not adopted legislation specifically addressing claims for recovery of Nazi-era looted art. As indicated above, however, a possessor of looted art remains subject to potential suits by Holocaust victims or their heirs because good title to stolen or converted property cannot be transferred, even to a good-faith purchaser.

In California, the legislature addressed the burden of Holocaust-era litigation by adjusting the state statute of limitations for bringing suit. The first statute, enacted in 2002, eliminated entirely the statute of limitations for bringing suit as long as the action was brought on or before the end of 2010. That statute was deemed unconstitutional by the courts and a subsequent statute, section 338(c) of the California Code of Civil Procedure, was enacted to extend the statute of limitations from three to six years for claims for recovery of fine art from a dealer, gallery, auction house or museum, commencing upon the discovery of both the identity of the possessor and the location of the work. The statute expressly provided that such actions must be commenced on or before the end of 2017 and thus, unless revived, the benefits of law have expired and the standard jurisdictional limitations apply under the discovery rule.

USA - New York Frankfurt Kurnit Klein & Selz PC

Under New York law, in a title action, the good-faith purchaser of an artwork bears the burden of proving that the work was not stolen. See Bakalar v Vavra, 500 Fed Appx 6, 7 (2d Cir 2012). Despite the burden of proof resting with the possessor, state laws governing the timeliness of Holocaust recovery claims (discussed in question 5) presented a significant obstacle in the way of the claimants’ ability to vindicate their claims. In December 2016, a new federal law was enacted that established a uniform, federal statute of limitations for claims seeking the recovery of artwork and certain other objects that were confiscated by the Nazis. Now, such claims may be brought within six years of the claimant’s discovery of facts giving rise to the claim (including the whereabouts of the object).

Is there an ad hoc body set up to hear claims to Nazi-looted art?

Czech Republic
HAVEL & PARTNERS

The claims for restitution are resolved by Czech courts.

France UGGC & Associés

No. Nazi-looted art claims are heard by the ordinary national courts.

However, an administrative body, the Commission for the Compensation of Victims of Spoliation, was set up in France in 1999 to examine individual claims presented by the victim or his or her heirs for damage resulting from spoliation of property that occurred as a result of anti-Semitic laws passed during the Nazi occupation, both by the occupant and by the Vichy authorities. The Commission, which is not a jurisdiction, is responsible for conceiving and recommending appropriate reparations or compensation. It is empowered to make any useful recommendation, particularly regarding compensation (www.civs.gouv.fr/home).

A number of artworks were recuperated at the end of the war by the French authorities. Those whose owners were not identified were placed in custody in national museums pending their restitution to their rightful owners; they are classified as ‘national museum recoveries’. The inventory of these is freely available online: www.culture.gouv.fr/public/mistral/mnrbis_en?ACTION=RETOUR&USRNAME=nobody&USRPWD=4%24%2534P.

Germany SKW Schwarz Rechtsanwälte

In 2003 the government established the Limbach Commission, a panel of up to 10 honorary members that gives recommendations on restitution claims regarding art stolen or purchased under duress by the Nazis. The Commission’s resolutions are based on the Washington Principles. A decision is reached by conducting preliminary proceedings, followed by an oral hearing. A decision by the Commission requires a two-thirds majority. The Committee’s decisions are not legally binding and can be categorised as mediation in disputes over provenance. As such, they cannot be appealed or enforced by either party. However, public bodies normally adhere to the Committee’s resolutions.

Italy CBM & Partners

No.

Netherlands Brinkhof

Since 2002, the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (the Restitutions Committee) advises the Minister of Education, Culture and Science on restitution claims in relation to items of cultural value that are part of the Dutch national art collection.

The Restitution Committee advises about such applications on the basis of the yardsticks of reasonableness and fairness, taking into account, inter alia, the Washington Conference Principles on Nazi-Confiscated Art. One of the requirements for restitution is that it must be highly likely that the supposed original owner was indeed the owner and that he or she lost possession of the artwork involuntarily as a result of circumstances directly related to the Nazi regime. Therefore, among other things, the Committee investigates who the original owner of the claimed artwork was and how this owner lost possession of the work during the Second World War. The connection between the applicant and the original owner is also investigated. Only rightful claimants to the assets of the original owner are entitled to claim restitution. On the basis of this investigation, and the hearing of parties involved, the Committee gives an advice to the Minister. Although this is non-binding, it is usually followed.

Restitution claims that relate to works of art that are not part of the Dutch national art collection but, for example, part of a collection of a provincial or municipal body, an association or private individual can also be submitted to the Committee for investigation and opinion, as an alternative way of settling a dispute. This is done on a voluntary basis. The Committee will then issue a binding expert opinion regarding claims on works lost involuntary as a result of the Nazi regime. Usually, the basis of the binding expert opinion is an agreement between the parties declaring that they agree to be bound to the advice. If need be, it can be enforced contractually.

More information on the Restitution Committee and the procedures can be found at its website: www.restitutiecommissie.nl/en/.

Spain Ramón y Cajal Abogados

No.

Sweden Advokatfirman Delphi

No. Sweden took part in the Washington Conference on Holocaust-Era Assets and has signed the Terezin Declaration, but has not adopted any specific laws or national dispute procedures for Nazi-looted art.

Switzerland Borel & Barbey

The government has set up the Contact Bureau on Looted Art, which responds to claims regarding Nazi-looted art in public collections (the federal art collections, the National Museum and the National Library). The Bureau also relays claims regarding art held by other institutions or private parties to the relevant institution or person. It promotes an amicable resolution approach to such disputes with the aim of reaching a just and fair solution as promulgated by the 1998 Washington Principles on Nazi-Confiscated Art. Factors to be considered are the unequivocal determination of the artwork’s provenance and the multitude of solutions in respect of ownership and acknowledgment of the circumstances. In terms of the dispute resolution process, the Bureau either intervenes as an intermediary facilitator or refers to the UNESCO mediation and conciliation process, and to the International Council of Museums art and cultural heritage mediation.

Turkey Okke & Hekim

No.

United Kingdom - England & Wales Constantine Cannon LLP

In the UK, the Spoliation Advisory Panel was established in 2000 as an alternative dispute resolution process for claims from persons dispossessed by the Nazis whose artworks are today held in UK national collections, museums or galleries ‘for the public benefit’. Recommendations by the Spoliation Advisory Panel are not legally enforceable, but both sides are expected to accept them. The Panel may recommend the return of an artwork to the claimant, a compensatory or ex gratia payment, or other ‘fair and just solutions’ (such as the attachment of plaques next to exhibits explaining the history of the artwork in question and providing details on the dispossessed person and his or her fate during the Nazi era).

In making its recommendations, the Spoliation Advisory Panel’s remit is not restricted to the technical legal entitlements of claimants, as discussed in relation to question 35, but takes into account moral considerations as well. The Panel may also be called upon to make a recommendation about a claim for an artwork in a private collection, where both claimant and current possessor jointly request it to do so. However, this has not happened thus far.

USA - California Christine Steiner Attorney at Law

There is no body or tribunal in the US set up to hear Holocaust-era claims. These claims are brought by litigation in the appropriate court with jurisdiction to hear the claim.

USA - New York Frankfurt Kurnit Klein & Selz PC

No, the United States has no such body.

 

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