Recommendation

On 23 March 2007, Mrs I.M.L.-P. and Mrs G.C.V.P., represented by their lawyer, M.H. Stötzel of Marburg, Germany, submitted a letter to the Minister for Education, Culture and Science (hereafter referred to as ‘OCW’) requesting the restitution of the painting Prometheus chained to the rock, a copy after P.P. Rubens. Since its return to the Netherlands after the Second World War, the work has been part of the Netherlands Art Property Collection (hereafter referred to as the ‘NK collection’) under inventory number NK 3082 and is currently housed in the depot of the Netherlands Institute for Cultural Heritage.

Considerations

1. The applicants are the grandchildren of Proehl (1885-1973) and his wife Julia Ilse Schwarz (1883-1977), and are requesting restitution of the painting Prometheus chained to the rock (NK 3082), which belonged to their grandparents. The Proehls had two children: E.W.P.H.P. (1910-1952) and I.M.L.-P. (1918-2007). The applicant G.C.V.P. is the daughter of E.W.P.H.P.; the applicants E.M. and F.H.L. are the children of I.M.L.-P. As such, the Committee has taken cognisance of several documents pertaining to the law of inheritance. These documents have given the Committee no reason to doubt the applicants’ status as rightful heirs.
2. The relevant facts are described in the investigatory report dated 9 February 2009. The following is a summary. Proehl was born in Hamburg, Germany in 1885. His wife, Julia Ilse Schwarz, was born of Jewish parents in Austria in 1883. Proehl himself was not Jewish. In 1916, he moved to the Netherlands with his family, becoming a Dutch citizen in 1925. Together with Fritz Gutmann, he founded Proehl & Gutmann in 1920, a bank in which the Dresdner Bank also had an interest. In 1934, Proehl & Gutmann was wound up, possibly due to more than the financial crisis that Germany was struggling with at the time. According the applicants, this may also have been a result of anti-Jewish measures taken against the Dresdner Bank in Germany. From 1934, Proehl worked for Proehl & Co., the company founded by his son, which provided financial services.
3. Various documents provided by the applicants show that the Nazis mistrusted Proehl at an early stage due to his close family ties and business dealings with the Jewish community. The applicants have claimed that as a result of this mistrust, the Nazis forced him to sell off part of his estate, Gut Pünstorf, close to the German city of Itzehoe in 1937 and in 1941 forced him to sell off the remainder. On the basis of archival material found, the Committee has concluded that Proehl was also soon affected by the consequences of the occupation. In early 1942, he was prosecuted for evading the regulations established by the Nazis concerning the registration of Jewish capital held by his company. This was also the reason that Proehl & Co was put under the administration of a Verwalter on 24 February 1942. At a later stage, both Proehl’s and his son’s private bank accounts were frozen by the Nazis. Eventually, Proehl was arrested on 23 June 1944 and sent, via Camp Vught, to the concentration camp at Sachsenhausen-Oraniënburg, which was intended for political prisoners. After the liberation, he returned to Amsterdam.
4. It is a known fact that Proehl was an art collector who owned a collection of valuable paintings. The investigation into the provenance of the claimed painting NK 3082 has shown that, in 1924, it was in the possession of J. Goudstikker art dealers, where it was later bought by Proehl. The exact date of sale is unknown; however, it can be concluded from archival material that the painting was certainly in Proehl’s possession in 1934. Proehl sold the painting, originally attributed to Rubens, in or around March 1941 to P. de Boer art dealers in Amsterdam for NLG 20,000. It was one of several works of art that he sold to De Boer during that period. The painting NK 3082 was sold on to the Dienststelle Mühlmann in April 1941 for NLG 25,000, after which it ended up at Sonderauftrag Linz, the institution that bought works of art for Hitler’s future Führermuseum.
5. Shortly after the war, Proehl reported the sale of the painting NK 3082 to the Netherlands Art Property Foundation (SNK). On the declaration form, he states that the work was ‘sold’ to P. de Boer art dealers. In February 1949, in connection with an investigation into the art dealers, Proehl stated:It is true that I sold four paintings to P. de Boer art dealers in 1941. […] The Rubens was too big and because it stood out in my collection, I wanted to get rid of it. I mentioned this to Mr P. de Boer, who asked me to name my price a few weeks later. I offered him the painting for NLG 20,000, and he bought it.In the same statement, he also states:

   I then sold the other paintings to de Boer. I wanted to get rid of these ones too because I knew that I would need money. I didn’t know that the paintings would be sold to the Germans. De Boer never mentioned this.

    

6. In July 1951, the Bureau for Restoration Payments and the Restoration of Property of the Ministry of Finance (Hergo, successor to the SNK) informed him that the painting NK 3082 had been recovered, after which they exchanged correspondence about possible restitution. Although Hergo was initially of the opinion that there were no grounds for restitution because Proehl had not been forced to sell the painting by the German authorities, in late November 1952, Hergo gave Proehl the chance to buy the painting back for the amount at which it was valued at that moment. Hergo probably changed its mind about reselling the painting as a result of a letter sent by Proehl on 12 November 1952:I return to your letter of 1 October 1952 and request that you inform me whether you are prepared to sell the painting by Rubens, Prometheus, and for what price. While it is true that I sold the painting without being directly forced to do so by the German authorities, I felt – as I also informed you – that I was compelled to do so in connection with the imminent confiscation of my house at Koningslaan 17.
7. The negotiations did not result in restitution. In March 1959, Proehl once again contacted Hergo, which had been wound up in the meantime, but this also failed to result in restitution.
8. With regard to the admissibility of the applicants, the Committee considered the following. Archival material has shown that negotiations between Proehl and the Dutch restitution authorities after the war did not lead to a judgement by the Council for the Restoration of Rights or another competent court, nor to a settlement with a body which in hierarchy ranks above the SNK. Furthermore, Proehl did not explicitly renounce his claim for restitution after the war. With reference to the first recommendation of the Ekkart Committee regarding private art property, the Committee therefore concludes that this case cannot be considered to have been settled in the past and deems the applicants’ request admissible.
9. Pursuant to current national policy in respect of the restitution of items of cultural value, the Committee can only recommend restitution if there is a convincing case regarding the right of ownership and if the original owner relinquished possession involuntarily as a consequence of circumstances directly related to the Nazi regime. According to the third recommendation of the Ekkart Committee of 26 April 2001, adopted by the government, all sales by Jewish private owners in the Netherlands from 10 May 1940 until the end of the war are deemed involuntary, unless expressly proven otherwise. In its response to this recommendation, the government also indicated that other specific groups who were victims of persecution could invoke these evidentiary rules (TK 2001-2002, 25 839, no. 27).
10. With regard to the question of ownership, the Committee concludes that it has been established that the claimed painted, in any case, belonged to Proehl from 1934 and that when it was sold in or around March 1941, it was in his possession.
11. Given the nature of the loss of possession, the Committee notes the following. The investigation showed that, from the late 1930s, Proehl was under threat by the Nazis, before being eventually arrested and sent to the concentration camp at Sachsenhausen. Although he was not Jewish himself, his wife and, therefore, his children were of Jewish origin and this alone was sufficient for Proehl to find himself in a vulnerable position. Also his involvement with Jewish bankers and clients and the help he provided them contributed to his persecution. The Committee is, therefore, of the opinion that Proehl should be seen as a victim of Nazi persecution. In accordance with government policy, the Committee, therefore, assumes that Proehl sold the painting involuntarily in March 1941 as a consequence of circumstances directly related to the Nazi regime.
    The Committee believes that the declarations made by Proehl after the war (see sections 5 and 6), although contradictory at first sight, do not provide evidence to the contrary. The fact that in his SNK declaration shortly after the war, Proehl spoke of a ‘normal’ sale is entirely understandable in light of the ideas concerning voluntariness and involuntariness at the time. The Committee attaches less importance to the testimony of February 1949 during the investigation into P. de Boer art dealers than to Proehl’s later statement of 1952, given the fact that it is likely that Proehl did not wish to incriminate the art dealer, with whom he had done business on a number of previous occasions. In the statement of November 1952, a clear link is established between the sale of the painting and the persecution Proehl suffered at the hands of the German occupying forces.
12. Based on the above, the Committee deems the application for restitution of the claimed painting admissible. The Committee is of the opinion that no condition for repayment of the purchase price received at the time can be attached thereto. In this context, the Committee refers to the fourth recommendation of the Ekkart Committee of 26 April 2001, which stipulates that an obligation for repayment applies only if the then seller, or their heirs, obtained the free disposal of the proceeds. If doubt exists whether the proceeds were actually obtained, the benefit of doubt must be given to the claimants, as stipulated in the fifth of Ekkart’s recommendations. Given the vulnerable position in which the Proehl family found themselves, the Committee accepts that Proehl would have been unable to spend the proceeds freely, but as a result of the wartime circumstances was obliged to use them to protect his family. This is also evidenced in Proehl’s statement of February 1949 (section 5), in which he states that he sold the paintings because, at the time, he knew he was going to need the money. The facts that Proehl & Co was put under administration in 1942 and the business and private accounts of Proehl and his son were frozen, also make it plausible that Proehl could not use the proceeds of the sale freely. Based on the information available, it must be assumed that restitution of the work without repayment does not constitute unjustified enrichment.