Gurlitt and the State of Restitution: Triumphalist Moment Looking More Like Premature “Mission Accomplished”

Art Law Report 19 February 2015
By Nicholas O'Donnell

Ongoing events have weakened irrevocably the triumphalist message that Germany had hoped to send with its November agreement concerning the Gurlitt bequest to the Kunstmuseum Bern, and the January opening of the Deutsches Zentrum für Kulturgutverluste (the German Center for Lost Cultural Property). Instead, the self-congratulatory air that surrounded those events is starting to look like a premature “Mission Accomplished” moment.

To recap: the ongoing will contest by Uta Werner, Cornelius Gurlitt’s cousin, has brought into focus the tension between the Kunstmuseum Bern’s acceptance of the bequest, its agreement with Germany, and the possibility that it may not in fact be the heir (if Gurlitt lacked the competence to make the will that named the museum as beneficiary).  After the news yesterday from the Rosenberg family (heirs to the Matisse Seated Woman), Werner herself has now apparently submitted an affidavit in court in Heidelberg, and has affirmed through her attorneys and representatives the agreement concerning the Matisse. So, again, there is no impediment to its immediate return. Werner’s lawyer has said that he has been in touch with representatives of the claimants for the other paintings already identified as looted.  Bavaria’s odd response was only to question whether her affidavit was properly notarized.

This is not what the museum and Germany had in mind when congratulating themselves back in November. And it’s not hard to understand how it’s come to this. Despite the fanfare of the research supposedly to take place into the collection, and the opening of the Cultural Property Center, it’s been mostly window dressing since then. Consider the “developments” since the Center opened on January 1, 2015. Three weeks later, it announced that it had constituted its board of directors. Is that really news? Its website is now up and running as well. To paraphrase David Spade on Saturday Night Live: 1995 called, and it wants its website back. It consists mostly of links to other sites like the Washington Principles and the webpage of the German Cultural Minister, Monika Grütters. And more than a year after the Gurlitt Task Force was constituted, its conclusions can be counted on one hand.

As a result, what has changed? German museums who wish to examine their collections (but are not required to do so) may have marginally more resources at their disposal.

Contrast, incidentally, a recent conference in Berlin on the looted antiquities trade in the Middle East (to which Germany itself has no historical connection or special responsibility) and the admirable directive that came out of it to take a hard look at their collections. This is apparently still too much to ask for Nazi-looted art. Instead, hard choices are still optional.

This perspective is gaining traction. Der Spiegel published a feature piece last week called “The Procrastination of the Bureaucrats,” questioning why no pictures have yet been returned. Over at the Holocaust Art Restitution Project, Marc Masurovsky has written a devastating point-by-point indictment of how the Gurlitt affair fails the requirements of the Washington Principles.

Lastly, if there were any remaining doubt about how important this all is, the sorry state of available processes that the Washington Principles oblige lay them to rest. The only current recourse for claimants in Germany is the Advisory or “Limbach” Commission, a non-binding mediation whose recommendations can be ignored. Sadly, its recommendations have increasingly become cover for doing nothing. We’ve discussed here before the dismaying trend at the Advisory Commission not to see coercive sales for what they are, and this month the commission has released another disappointing decision.

In brief, the claim concerned the heirs of George Eduard Behrens, a Hamburg banker and owner of Pariser Wochentag (Paris Weekday) by Adolph von Menzel. As his heirs pointed out, they had suffered almost immediate persecution in 1933 after the Nazi ascension to power. According to the Advisory Commission opinion, Behrens sold the painting at some point in 1935. The exact date was not known, but it was after September 15, 1935, when the Nuremberg Laws that enacted racial and racist classification were enacted. According to the City of Düsseldorf (where the painting now is), it was sold first to a dealer, and then to the city. Behrens was arrested by the Hamburg police after Kristallnacht in 1938, and then deported to the Sachsenhausen concentration camp in 1939. The bank L. Behrens & Söhne ceased operations on May 31, 1928 and was liquidated as of December 31, 1938. After paying the confiscatory “flight taxes,” Behrens managed to escape through Belgium and France to Cuba.

Despite all this, the Advisory Commission concluded that the 1935 sale was not the result of persecution. This is where it really gets astonishing. First, citing the Düsseldorf position (effectively endorsed by the result), it states (my translation):

Jewish private banks were hardly affected in the early years of the Nazi regime in their business.

It gets worse. Now speaking not for Düsseldorf, but for itself and its reasoning, the Advisory Commission concludes (again my translation):

The Commission of course does not fail to recognize that George E. Behrens belonged to those persons collectively persecuted for racist reasons as “Non-Aryan” after the adoption of the “Reich Citizenship” Law of September 15, 1935, that he was in concentration camp custody from November 1938 until March 1939, that he had to liquidate his bank, and to emigrate accompanied by great property losses. The Commission considers the situation at the time of the sale of the Menzel painting, however, for the bank and for the family, to be quite another.

Translation: it wasn’t that bad for Jewish bankers in Germany before 1935. If that were somehow unclear, it goes on to say:

Undoubtedly there had been a massive anti-Semitic agitation in Germany since the beginning of 1933, as well as any-Jewish excesses and a changing legal situation with the introduction of the “Aryan clause” for employment in the civil service. It is, however, undisputed in the historical record that Jewish private banks in the early years of the Third Reich were not directly affected.

I think a good number of rational observers would dispute that.

The Ministry of Economic Affairs, until the end of the “Schacht” era was interested in trouble-free operation of the Jewish banks and fought successfully against anti-Semitic advances in this area for several years. with the decline of the economic crisis, the Jewish banks experienced an economic boom, which passed on to the banking house of L. Behrens & Söhne as well.

So, apparently, not only were Jewish bankers not persecuted until late 1935, things were going really well for them..because Germany needed their banks! The “Schacht era,” referring to Minister of Economics Hjalmar Schacht, was hardly the salad days of German Jews either. Schacht did himself speak out on occasion, it’s true, and later broke with the regime, but it hardly follows that Jewish bankers were free from interference in 1933. And, don’t forget, the Advisory Commission and Germany have defended sale prices before on the theory that the prices were attributable to the Great Depression. So apparently the Great Depression was over in 1935 for some (when it suits), but not for others (when it doesn’t).

From here, it’s clear that the train has gone off the rails.
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