In its latest Binding Opinion issued on 1 November 2018 on a claim opened in 2013, the Committee considered the case of a Kandinsky painting acquired at auction in October 1940 from the Lewenstein family by the Amsterdam City Council on behalf of the Stedelijk Museum.
While acknowledging the 1940 sale 'cannot be considered in isolation from the Nazi regime' and that it had not been established that the 'loss of possession of the work was voluntary and that the loss of possession cannot be linked to the Nazi regime', the Committee considered that the sale was also due to pre-existing financial difficulties 'well before the German invasion' [of May 1940].
The Committee wrote that at that time family members had already left Holland or knew they would be subject to persecution there. In the Committee’s view this provided 'a less powerful basis for restitution than a case in which there was theft or confiscation'.
As regards the museum's acquisition, the Committee stated that 'the mere fact that at a sale in October 1940 the City Council purchased a work that came from a Jewish owner does not mean that this transaction did not take place in good faith'.
Consequently the Committee concluded that and, as regards the outcome of the claim, 'the determining factor is therefore the weighing up of interests' . This refers to the 'balance of interests test' in which the interest of the two parties in the art work is weighed against each other. In this regard, the claimant wrote, ‘For me, as far as it matters, I think the story simply may not end with people, institutions, governments, or anyone, getting away with what they wrongfully did. This is about more than the painting itself. Returning the ownership of the painting would do justice to the memory of [the family] and to those who stand near them’.
The Committee stated that the Stedelijk museum 'has had the work in its possession since . Its contention that the work has important art historical value and is an essential link in the limited overview of Kandinsky’s work in the Museum’s collection, has a corresponding place in that collection, and is included in the permanent display has been insufficiently contested by the [claimant] and is in accordance with the Committee’s own opinion. As regards the interests of the [claimant], all that is known is that she is acting as heir [of the owner] without declaring any past emotional or other intense bond with the work.
Taking all this into account, the Committee concludes that the interest of the [claimant] in restitution does not outweigh the interest of the City Council in retaining the work.'
To read the full decision RC 3.141, click here.