Recommendation  of The advice

Advies inzake Mautner (B)

In a letter dated 13 June 2007, the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for recommendation about the application for restitution dated 4 April 2007 from X.X. in A. (USA) and Y.Y. in A. (USA) (hereinafter referred to as the Applicants). The application for restitution related to a number of items in the Netherlands Art Property Collection (hereinafter referred to as the NK Collection) that might have belonged to their respective uncle and great-uncle Wilhelm M. Mautner during the Second World War. The present recommendation  concerns the painting River Landscape with Figures and a Wagon by a Tower by Jan Steen (NK 2655). The painting is currently in the repository of the Rijksdienst voor het Cultureel Erfgoed (Netherlands Cultural Heritage Agency), hereinafter referred to as the RCE.

Considerations

1. The Applicants request the restitution of a painting by the artist Jan Steen, entitled River Landscape with Figures and a Wagon by a Tower and dating from the third quarter of the seventeenth century (NK 2655). The Applicants contend that Dr Wilhelm M. Mautner (1889-1944, hereinafter referred to as Mautner) lost possession of the painting during the war ‘due to Nazi persecution during the German occupation of the Netherlands’. The Applicants are X.X. and Y.Y., a daughter and granddaughter respectively of Franz Heinrich Mautner, a brother of Mautner. According to information from the Applicants they form ‘the community of heirs after Dr. Wilhelm Mautner’. On the basis of the documents relating to inheritance law that have been submitted, the Committee deems it plausible that they belong to the circle of entitled parties in the context of this application.
2. The Committee has investigated whether the application concerns a case that was dealt with in the past. According to the recommendations of the Ekkart Committee in 2001 and the government response to it, this is so ‘door de Raad voor het Rechtsherstel of een andere bevoegde rechter een vonnis is gewezen’ or if ‘de vordering tot teruggave bewust en weloverwogen heeft geresulteerd in een schikking dan wel claimant expliciet van de vordering tot teruggave heeft afgezien’.  [if the Council for the Restoration of Rights or another competent court has issued a ruling] or if [the claim for restitution has resulted in a conscious and measured settlement or the claimant has explicitly abandoned the claim for restitution]. The investigation did not reveal that Mautner’s surviving relatives made a declaration after the war to the Stichting Nederlands Kunstbezit (Netherlands Art Property Foundation, SNK) in connection with the loss of the painting River Landscape with Figures and a Wagon by a Tower. Similarly no information was found to indicate that after the war this painting was the subject of a decision or a judicial ruling. The Committee therefore judges that this is not a case that was dealt with in the past and that the Applicants’ application for restitution is admissible.
3. The relevant facts have been described in the investigatory report of 17 December 2012. The following summary is sufficient here. Mautner was born in Vienna and was an economist of Jewish descent. He settled in the Netherlands in 1919, where for years he worked at the Rotterdamse Bank. Between 1929 and August 1943 he lived at Haringvlietstraat 13 II in Amsterdam. He then moved to Tugelaweg 147 II, also in Amsterdam. During the war Mautner attempted unsuccessfully to escape from the Nazi regime. This emerges from the documentation in the archives of the Zentralstelle für jüdische Auswanderung (Central Office for Jewish Emigration) and the archives of the Ministry of Justice in London, from which it can be deduced that Mautner tried to get an exit visa for the United States with the help of his brother, who lived in New York. In December 1943 Mautner was removed from his home in Amsterdam during a raid and transported to Westerbork transit camp and from there to Theresienstadt concentration camp. Mautner died on or around 29 September 1944 in Auschwitz concentration camp.
4. Mautner owned a collection of paintings that included works by Dutch old masters. He is said to have continued purchasing and selling works of art during the war. After the war his friend Hans Alfred Wetzlar (hereinafter referred to as Wetzlar) declared that ‘… dat de Heer Mautner nogal het een en ander in schilderijen deed. Vanaf 1941 kon hij dit niet meer op zijn eigen naam doen [because he was Jewish, RC], en heb ik daarom verschillende schilderijen voor hem op mijn naam gekocht’ [Mr Mautner dabbled in paintings. After 1941 he could no longer do this in his own name [because he was Jewish, RC], and so I purchased various paintings for him in my name]. With regard to the sale of paintings during the war, the Applicants contend that there was no conduct of trade in art. Mautner is said to have intended to retain his collection and even to have expanded it during the occupation of the Netherlands. With regard to possible sales by Mautner during the war, the Applicants state that, ‘It is evident that he did so only to maintain himself during his racial persecution’. During the war various people furthermore received works of art and/or other property from Mautner for safekeeping. The Applicants assert that Mautner lost a substantial part of his art collection, including the claimed paintings, as a result of persecution during the Nazi regime. During its investigation the Committee found postwar correspondence from the Stichting Bewindvoering Afwezigen en Onbeheerde Nalatenschappen [Foundation for the Supervision of Absentee and Unmanaged Estates] from which it can be deduced that during the war ‘funds’ belonging to Mautner were confiscated by occupying forces. The name of Mautner is also referred to in an overview from the archives of the managers-liquidators of the Liquidatie van Verwaltung Sarphatistraat [Liquidation of Property Administration Sarphatistraat, LVVS], also known as the ‘looting organization’ Liro (the ‘robber bank’ Lippmann, Rosenthal & Co., from which it emerges that valuables belonging to Mautner were looted during the 1941-1945 period. It can also be inferred from documentation from the Central Office for Jewish Emigration that during the war Mautner probably handed over valuables in order to obtain (temporary) exemption from being transported. This may have happened in or after June 1943. The research did not lead to any overviews of the confiscations or of the valuables that were handed in.
5. It can be inferred from information in the files of the P. de Boer gallery in Amsterdam that this gallery probably purchased the painting now being claimed in September 1934 and subsequently sold it to ‘Minken’ in November 1934. ‘Minken’ may be the firm of antique dealers J.F. Minken of Amsterdam, which was wound up in January 1936. It is also known that the present NK 2655 was in all likelihood in Mautner’s possession in 1938. This emerges from three annotated photograph cards in the Rijksbureau voor Kunsthistorische Documentatie (Netherlands Institute for Art History, RKD) and an inventory card in the SNK, which bear the name ‘Dr. W. Mautner’ and the date 1938. When, how and from whom Mautner acquired the claimed painting cannot be established because no relevant documentation has been found. The Applicants deem it plausible that the gallery they refer to as ‘F.H. Minken’ sold the painting to Mautner when the business closed down in 1936.
6. No information has been found regarding the whereabouts of the work in the 1939 to 1942 period. It is therefore not known how and when the present NK 2655 left Mautner’s possession. The research did, though, discover a postwar statement by the P. de Boer gallery referred to in 5. In the context of an exhibition organized by the restitution authorities in 1950 with the aim of tracing the owners of works recovered from Germany, the gallery stated in regard to the present NK 2655 that this painting ‘is or in any event was the property of Dr. Mautner, who died in the war’.
7. The research into the facts turned up the following information about the provenance of the painting from 1943 onwards.
   (a)   According to information on the RKD photograph cards, in 1943 the present NK 2655 was with ‘Kunsthandel D. Katz, Den Haag’ [art dealership D. Katz, Den Haag]. The SNK inventory card for the work likewise states as its provenance ‘D. Katz, Den Haag’. The references relate to the D. Katz gallery in Dieren, known from 1941 onwards as N.V. Schilderijen en Antiquiteitenhandel v/h D. Katz (hereinafter referred to as the Katz gallery). This gallery had a branch in The Hague. The Committee’s research did not discover the sources on which the references to the Katz gallery are based. Other indications were, though, found for the possible involvement of the Katz gallery in the provenance of the painting. For instance, a database compiled by the Deutsches Historisches Museum concerning the collection destined for the Führer Museum that was to be set up in Linz lists as ‘Vorbesitzer’ [previous owner] of the present NK 2655: ‘Nathan und Benjamin Katz, Hoflieferant Katz / Dieren (Kunsthandel Niederlande)’. A postcard from the caretaker of the Katz gallery dated February 1943 was also found; it reads: ‘[Nu] mijnheer ik ben afgelopen week aan het handelen geweest. Ridder had van iemand een goed schilderij wat wij mochten verkopen nu heb ik dat voor mijn doen met succes aan Bandertje verkocht het was een vroege J. Steen (…). Het heeft 50 mil opgebracht dit was voor ons een buitenkansje’.  [[Well] Sir, I have been doing some business this past week. Ridder had got a good painting from someone that we were allowed to sell; well, I sold it successfully, considering, to Bandertje, it was an early J. Steen (..). It fetched 50 mil, it was a real stroke of luck for us. It cannot be ruled out that  the ‘vroege J. Steen’ [early J. Steen] referred to in the postcard is the painting now being claimed, but the minimal description on the postcard  and the absence of any other details means that nothing could be established either way.
   (b)   There are indications of the involvement of an otherwise unidentified painter called ‘Keisinga’ or ‘Keizinga’ of The Hague or Antwerp, Belgium. It would seem that the present NK 2655 was viewed while in the possession of this artist by Dr Göpel, who was engaged in making acquisitions for the planned Führer Museum in Linz. The Committee’s research uncovered no further information about ‘Keisinga’ or ‘Keizinga’ and any role he might have played in the provenance of the painting.
   (c)   Lastly, it would seem that the painting was purchased on 5 January 1944 by or through the Bernhard Böhmer gallery in Güstrow, Germany, for the collection of the planned Führer Museum in Linz. When and how the present NK 2655 came into the Böhmer gallery’s possession has not been established.

   Assessment of the claim

8. Since the research did not discover any indications that Mautner was in business as an art dealer, the Committee is of the opinion that the claim should be assessed in accordance with the restitution policy relating to the private ownership of works of art. On this basis, restitution can be recommended if the probability of ownership is high and the original owner lost possession of the work of art involuntarily as a result of circumstances directly related to the Nazi regime. Pursuant to the third recommendation of the Ekkart Committee of 2001, sales by Jewish private individuals in the Netherlands on or after 10 May 1940 are to be regarded as forced sales unless there is express evidence to the contrary.
9. The Committee concludes that the present NK 2655 was in Mautner’s possession in 1938, but precisely when and how he came to lose possession of the painting remains unknown. With regard to the ownership situation, the Committee refers to the postwar statement by the P. de Boer gallery described in 6 above, which it judges to be an important indication that Mautner still had the work in his possession during the Occupation. De Boer’s statement, after all, appears in the context of an attempt by the restitution authorities specifically to trace the people who owned the exhibited works of art during the war. Over and above this, the Committee attaches importance to the fact that, even after extensive historical and art historical research, no indication has been found that Mautner, a private art collector, sold the painting before the Occupation or that the work was in the possession of another person or art gallery before 1943. On these grounds, the Committee deems it highly likely that Mautner still had the present NK 2655 in his possession during the early part of the Occupation and lost possession of it at some time prior to his transportation to Westerbork in December 1943.
10. With regard to the loss of possession, the Applicants contend that it is plausible that in 1943 Mautner sought a buyer for the painting being claimed, and that because of his Jewish origins he did this with the help of third parties, for example Wetzlar as referred to in 4 above. The Committee finds that this method, where Wetzlar sold paintings on Mautner’s behalf, was used on a number of occasions in the sale of works of art from Mautner’s collection, as described in the recommendation RC 1.89-A issued on 12 October 2009. The Committee also points to Mautner’s attempt, described in 3 above, to escape to the United States, for which he would have had to get the money together. In view of this fact, the Committee deems a sale of NK 2655 in the wartime period, possibly with Wetzlar’s help, very likely. Since Mautner belonged to a persecuted section of the population, a sale of NK 2655 during the war would have been of an involuntary nature under the terms of the restitution policy. The research did not lead to  indications that would contradict this assumption.
11. The Committee further finds that even if NK 2655 was not sold by or on the instructions of Mautner, there was nonetheless an involuntary loss of possession. Mautner was a private art collector who was persecuted because of his Jewish descent. He felt that his freedom was severely curtailed during the Nazi regime. Among other things, he placed parts of his collection of paintings with friends and acquaintances and attempted to escape to the United States. In the end he was taken from his home during a raid in 1943 and was deported via Westerbork and Theresienstadt to Auschwitz, where he died in 1944. As found under 4 above, the research shows that confiscations of Mautner’s property took place on the orders of the Nazi authorities and that he probably surrendered valuables to obtain a (temporary) exemption from deportation. The Committee considers it likely that, if Mautner still had the painting NK 2655 in his possession when he was arrested in 1943, it would have been confiscated by the occupying forces. On the grounds of the aforegoing, the Committee judges that all the conditions for the restitution of the present NK 2655 to Mautner’s heirs have been met, taking into account the matters considered separately under 12 and 13 below.
12. There is another claim to the present NK 2655 in connection with the request for restitution in respect of the Katz gallery (RC 1.90-B). The research reveals that the present NK 2655 may have reached Germany in 1943/1944 by way of the Katz gallery and others. The Committee finds that the research has not provided any clarity about the role of the Katz gallery in the provenance of NK 2655. It remains unclear as to whether the ‘vroege J. Steen’[early J. Steen] mentioned on the postcard referred to under 7 above relates to NK 2655. Moreover, it follows from the text of the postcard that the Katz gallery acted as an intermediary in respect of the sale of this Steen. This tallies with the findings of the Committee’s research into the Katz gallery, from which it emerges that this gallery often acted as middleman in the sale of works of art for other owners. In the Committee’s opinion, in this case only the claim to NK 2655 by the Applicants in regard to Mautner may be considered for a positive recommendation. After all, Mautner’s title to the painting has been largely demonstrated, but the research into the Katz gallery was unable to establish whether there was a question of mediation or ownership. Furthermore, the Applicants in regard to the Katz gallery (RC 1.90-B) stated that ‘[T]here is no strong documentation for Katz involvement’ where NK 2655 is concerned.
13. Finally, the Committee considered whether there should be a financial obligation in return for the restitution of NK 2655 in connection with a consideration that may have been received in the event that the painting was sold. Pursuant to the prevailing restitution policy, a repayment obligation only exists if and in so far as the then vendor or his heirs genuinely had free use of the proceeds. In this regard, the Committee finds first of all that no details, such as the selling price, of any sale of NK 2655 by Mautner are known. According to recommendation 5 of the Ekkart Committee of 2001, the Applicants should be given the benefit of the doubt for this reason alone. To this the Committee adds that Mautner would have to have used any proceeds of sale that he might have received to fund his attempt to escape the Nazi regime described under 3 above, so that there is no question of a consideration which the owner had freely at his disposal. On the grounds of the aforegoing, the Committee judges that there need be no payment obligation in this case.