Changes To Limbach Commission Announced, Real Change Now Seems Out Of Reach

Art Law Report 16 November 2016
By Nicholas O'Donnell

Three New Members Are Added but German Museums Can Still Decline to Participate

After nearly a year of hinting at changes the Advisory Commission in Germany that makes recommendations to state museums on claims for allegedly Nazi-looted works in their collections ("Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter, insbesondere aus jüdischem Besitz," or "Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property"), the federal government announced last week the addition of three new members.  Yet despite public outcry over the outdated and opaque procedures of the commission (better known as the Limbach Commission, in reference to the late Jutta Limbach, presiding member and former judge of the Constitutional Court), none of the fundamental flaws in the panel have been confronted or addressed.  Instead, the occasion has served as little more than another photo opportunity for federal Minister of Culture Monika Grütters, whose visage dutifully accompanies all the recent announcements.

To be fair, the addition of the three new members is worthy of assessment in its own right. They are Raphael Gross, director of the Simon Dubnow Institute for Jewish History in Leipzig, Gary Smith, the former director of the American Academy in Berlin, and Marion Eckart-Höfer, former president of the Federal Administrative Court.  Gross has been the director of the Dubnow Institute since 2015, and is a historian of Jewish history and culture.  Smith has taught the philosophy of art and culture in Germany and the United States.  Eckart-Höfer is a respected jurist who has been retired since 2014, who interestingly enough comes from a well-established artistic family.  Each and all of them are qualified and serious people, and one hopes that they will bring some fresh air and analytical vigor to the panel.  The Advisory Commission's analytical logic has been absolutely deplorable of late, and perhaps new perspectives will bring change.

Many reports have touted that the commission has added its "first Jewish" members in response to criticism, as though that were in and itself an accomplishment.  This is an important point to distinguish.  The commission badly needed additional perspectives, and Minister Grütters's dismissive comments last spring about a Jewish member being "prejudiced" were rightly excoriated for being naïve at best, and offensive at worst.  But identity politics are not the solution, and each of the new members deserve to be evaluated on their credentials—which are excellent on paper—not their heritage.  Likewise, their performance hereafter should be viewed on its own merits. 

It is also true that the Advisory Commission will now be available for disputes between private parties (as the well-regarded Dutch panel is, for example), but whether that is progress will depend entirely on whether the new members can improve the revisionist thinking that has dominated the panel.  I would certainly not bring a client to the commission today, and it will take quite a bit of improvement for me to consider doing otherwise.

The problem is that there has been, an apparently will be, no other progress.  As journalist Stefan Koldehoff wrote brilliantly in the Frankfurter Allgemeine Zeitung yesterday (regrettably only in print), the "cardinal birth defect" of the Advisory Commission is that the German museums have no obligation to participate.  So a meritorious claim against a German museum is subject entirely to the whim of that museum.  The Bavarians State Paintings Collection (Bayerische Staatsgemäldesammlungen) in particular has been notorious for refusing to submit to the Advisory Commission after doing so only once in thirteen years—all while scandal after scandal reveal that Bavaria's policies about Nazi-looted art are inexcusable.  In other words, these "reforms" do nothing for a family with claims against Bavaria, which in the last three years alone has been revealed to have resold looted works to Nazis returned by the Monuments for restitution and covered up and botched the Gurlitt affair

That is the government on whose good graces such a claimant depends.  German representative of the Jewish Claims Conference Rüdiger Mahlo rightly told the Süddeutsche Zeitung that, "[t]he one-sided right of appeal for victims should be the core of the reform in order to make the advisory commission an effective organization for the restitution of Nazi looted art." Grütters apparently told The Art Newspaper "I expect all German museums without exception to be willing to subject disputes to the Advisory Commission as a matter of course."  This statement is either naïve or disingenuous.  Why would she think that?  What has changed that a German museum that did not feel the moral pressure to engage with the commission would do so now? 

In the end though, that is all there is.  There has been no change to or establishment of forward looking procedures.  The ministry repeats the phrase "more transparency" so often that it loses all meaning.  Worst of all, the ministry actually believes it has accomplished something, and clearly has no intention of revisiting the subject.  In so doing, it may have sounded the final call for a commission that has been outpaced by those in neighboring countries, which is all the more problematic given Germany's importance to the issue.
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