Bavarian State Paintings Collection in the News Again, May Face Claims from Eva Braun Heirs

Art Law Report 2 July 2014
By Nicholas O'Donnell

Quite by coincidence, two stories we have covered in the last few days have centered around the claims by the heirs of Paul von Mendelssohn Bartholdy, a Jewish banker and art collector who was the target of Nazi persecution before he died in 1935: Julius Schoeps, Edelgard von Lavergne-Peguilhen, and Florence Kesselstatt.  Another common thread has been the Bavarian State Paintings Collection (the Bayerische Staatsgemäldesammlung), which is in the news again for possible claims, but this time from heirs of quite a different sort. 

In discussing the verdict for Bavaria last week, we mused whether the claimants might turn to the “German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property” now that their U.S. litigation had been dismissed on jurisdictional grounds.  As a review, the Advisory Commission, colloquially known as the Limbach Commission after member and former German Supreme Constitutional Court judge Jutta Limbach is an advisory committee that considers claims to such property in state possession.  Unlike the process in, for example, Austria pursuant to its 1998 restitution law, the commission is not an arbitration, and it is not a judicial adjudication.  It first sat in 2003, and has considered claims to property in state possession since, rendering recommendations on whether the state should return such property to claimants.  So, for example the Commission recommended in 2005 that the German Federal Government restitute three paintings by Karl Blechen and a watercolor by Anselm Feuerbach to the heirs of Julius and Clara Freund.  In 2008, it recommended that the German Land of Hessen pay Karl Ernst Baumann compensation amounting to 10,000 Euro for Portrait der Familie von Dithfurth by Johann J. August von der Embde.  And in 2009, the Commission recommended that the German Federal Government return Peasant Girl without a Hat and with a White Headcloth (1897) by Wilhelm Leibl to the heirs of Dr Alexander Lewin.  By contrast, in 2007 the Commission recommended against returning the poster collection of Hans Sachs that his heirs later won in court, language from the latter of which has been cited there and in the United States for the enunciation of German law on sales by Jewish collectors under duress. Earlier this year, it turned down the claimants to what has become known as the “Guelph Treasure” (Welfenschatz) in the collection of the Stiftung Preussischer Kulturbesitz (SPK), the Prussian Cultural Heritage Foundation.

So, we wondered would Schoeps et al seek the Limbach Commission’s input?  The Commission’s reports are advisory only, but German museums have followed them when it comes to restitution. 

As it turns out, the Mendelssohn Bartholdy heirs already tried.  Back some time before 2011, they sought out the Commission to render an opinion, but the Pinakothek der Moderne refused, as it its right.  the museum’s legal counsel was quoted in Der Spiegel as saying “The commission was founded for ambiguous cases. Not for clear-cut ones such as this.”  The Commission, and the Washington Principles, do not make that distinction, of course. 

As if that were not enough, Focus magazine (which broke the Gurlitt story) reported yesterday on efforts to deal with art and collectables in Bavaria’s possession from a different source: Eva Braun, Hitler’s longtime companion and wife in the last weeks of his life before they committed suicide together.  Braun, like many other top Nazis, had her estate confiscated as part of de-Nazification.  But many objects and paintings ended up in Allied hands after the war, which were eventually turned over the Bavaria apparently to administer thereafter.  Jim Tobias of the Nürnberger Institut covered a similar topic at our conference in Heildeberg in January, reviewing the history of the so-called „Stürmer Bibliothek.“  Julius Streicher was an early Nazi ideologue, and publisher of the Nazi propaganda Magazine Der Stürmer, in which numerous Nazi tropes about Jews, Socialists, and other persecuted groups were spread.  Streicher, grueseomely enough, also collected devotional books that fleeing Jews left behind throughout Germany and occupied territories.  So it was, that at the end of the war, Streicher’s home was a uniquely large collection of these books.  The U.S. Army seized the books.

A distant relative of Braun has apparently now made claims to some of this property, which includes a Fritz Bamberger Mountain Landscape on the Spanish Coast.  The Main Post has also reported that the claimant, a distant nephew, has died and the museum says that the claims was withdrawn.

One can imagine what the reaction would be if those heirs were successful, when the Mendelssohn Bartholdy descendants have been turned away.  As always, though, each of these cases highlights the labor intensive nature of the enterprise: Provenance Director Andrea Bambi estimated that it would take six months to a year to determine the provenance of each object.

Short of re-seeking jurisdiction once again in U.S. courts under the expropriation exception, it is hard to imagine what remaining recourse the Mendelssohn Bartholdy heirs might have (which would itself face daunting odds in the face of the act of state doctrine, though not necessarily fatal). 

Which must be quite frustrating indeed.
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