The Koenigs collection

Advice concerning the application for restitution of the Koenigs collection

Report number: RC 1.6

Advice type: NK collection

Advice date: 3 November 2003

Period of loss of ownership: 1933-1940

Original owner: Private individual

Location of loss of ownership: The Netherlands

This advice (including report) is available in PDF file.

NK 3550 – The Holy Family by A. Dürer (photo: RCE)

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Recommendation

In the letter dated 3 May 2002, the State Secretary of Education, Culture and Science asked the Restitutions Committee for advice on the decision to be taken concerning the application dated 18 March 2002 by Mrs C.F. Koenigs (hereinafter referred to as ‘the applicant’) for restitution of paintings and drawings from the former estate of her grandfather, Franz W. Koenigs, insofar as these objects are part of the NK collection administered by the State of the Netherlands.
In the letter dated 26 November 2002, the State Secretary asked the Committee to include in its advice on the Koenigs collection an application dated 15 October 2002 by the applicant for restitution of the painting Cadmus sowing dragon’s teeth by P.P. Rubens, which is in the collection of the Rijksmuseum in Amsterdam.
Finally, in the letter dated 8 May 2003, the State Secretary asked the Committee for advice on a request by Mr W.O. Koenigs, dated 24 March 2003, for the application for restitution of the Koenigs collection to be rejected.

Procedure

Both the applicant and Mr W.O. Koenigs had legal representation acting on their behalf during this procedure. The applicant engaged the services of Mr A.H.J. van den Biesen, a lawyer from Amsterdam, and Mr R.W. Polak, a lawyer from The Hague, represented Mr W.O. Koenigs.

With the request for advice of 3 May 2002 the State Secretary enclosed a comprehensive file that includes the results of an investigation carried out by the
applicant. In addition to these results, the applicant included a Statement of Case dated 30 August 2002 (hereinafter referred to as ‘Statement’) as well as information that had been sent with various letters. At a hearing on 10 March 2003 the applicant and her counsel gave a verbal presentation of the application and submitted a memorandum and appendices (hereinafter referred to as ‘Notes’). On 12 August 2003 comments were made on behalf of the applicant (hereinafter referred to as ‘Reaction’) on a first version of the investigation report drawn up under the responsibility of the Committee (dated 19 May 2003).

Mr W.O. Koenigs wrote to the Committee in a letter dated 17 October 2002. In a conversation on 8 January 2003 and by means of various letters, Mr Koenigs explained as part of the examination of the facts how his father’s collection had been lost from the estate. At a hearing on 10 March 2003 he informed the Committee about the events relating to the loss of the collection from the estate and his point of view regarding the application for restitution of the Koenigs collection.

The facts

With respect to the factual basis for this advice, the Committee refers to the investigation report on the present case (hereinafter referred to as the ‘Report’), which is attached to this advice and is considered to be a part of it. An earlier version of this investigation report (dated 19 May 2003) was revised in respect of a number of points, partly as a result of the Reaction from the applicant.

General considerations

The Committee has drawn up its opinion with due regard for the relevant lines of policy issued by the Ekkart Committee and the government.
The Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in other cases. The Committee resolved that such influence cannot be accepted, save cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.
The Committee then asked itself how to deal with the circumstance that certain facts can no longer be traced, that certain information has been lost or has not been recovered, or that evidence can no longer be otherwise compiled. On this issue the Committee believes that, if the problems that have arisen can be attributed at least in part to the lapse of time, the associated risk should be borne by the government, save cases where exceptional circumstances apply.
Finally, the Committee believes that insights and circumstances which, according to generally accepted views, have evidently changed since the Second World War should be granted the status of nova (new facts).

Special considerations

The applicant is acting on behalf of herself and her mother, Mrs A.C. Koenigs-Hers, both being heirs of Mr Franz W. Koenigs, the grandfather of the applicant.
The Committee has taken note of the request dated 8 May 2003 from Mr W.O. Koenigs, the son of F.W. Koenigs and the uncle of the applicant, requesting that the application for restitution of the Koenigs collection be rejected.
The applicant is seeking restitution to Koenigs’ heirs of 37 drawings and 34 paintings, which are part of the Dutch national art collection. With the exception of the painting Cadmus sowing dragon’s teeth by Rubens, which has been in the Rijksmuseum collection in Amsterdam since it was donated in 1961, all of these works of art belong to the NK collection of works of art recovered after the war.
It has been determined in respect of the majority of these works of art – 37 drawings and 28 paintings (categories 1, 2 and 3 in the Report) – that they belonged to the former collection of Franz Koenigs. This could not be established in respect of six paintings – those described in the Report as category 4. The
applicant and the Committee are in agreement that this category should be considered separately.
The Committee therefore concludes that there is insufficient basis to issue advice in respect of the paintings in category 4 (NK 1915, NK 2075, NK 1848, NK 3577, NK 3387 and NK 2071). Consequently the remainder of this document does not concern the objects in category 4.
The following circumstances, which are described in the Report, are of prime importance in the assessment of the loss from the estate of the 37 drawings and 28 paintings that belonged to the Koenigs collection. Monetary measures came into force in Germany in 1931, as a result of which Koenigs, who was resident in the Netherlands, no longer could dispose of his assets in Germany. In order to rectify his resulting financial problems he took out a loan in agreements dated September 1931 and June 1935 from the (Jewish) bank Lisser & Rosenkranz, the director of which, Mr Kramarsky, was a good friend of his. He pledged or transferred (fiduciary) ownership of his art collection as security for the loan. Although the Committee was not able to determine the exact content of the
agreements between the parties, it is sufficiently clear that the agreement provided Koenigs with money in return for which the bank was entitled to sell the collection and subtract the amount owed to it from the proceeds if Koenigs did not repay the loaned amount when it became due. The loan had a term of five years from June 1935 and repayment would also be due if the bank went into liquidation.
Because of the threat of war Lisser & Rosenkranz subsequently went into liquidation on 2 April 1940, as a result of which the loan granted to Koenigs became due two months before the expiry of the agreed term. In application of the agreement, the collection was given as payment (i.e. sold) when it became clear that Koenigs was unable to repay the loan.
On 2 April 1940 Koenigs gave the collection of drawings to Lisser & Rosenkranz to pay off his debt. The collection was then sold via a mediator – Director Hannema of the Boymans Museum (now the Boijmans van Beuningen Museum in Rotterdam). The buyer was the Rotterdam businessman D.G. van Beuningen. The intention was that the collection would be kept together under the Koenigs name in the museum in Rotterdam. This did not occur. (Category 1)
It is difficult to determine the moment when the transaction was made or the nature of the transaction in which Koenigs lost possession of the paintings, particularly because it was not possible to gain sufficient insight into the agreements between the bank and Koenigs. The applicant was equally unable to provide definitive information in this regard. In addition to the dates when the credit agreements were concluded in 1931 and 1935, a number of other dates are also important:
– Although the bank presented itself to the outside world on 8 April 1940 as the owner of the paintings, it is not certain that Koenigs gave up the paintings by way of payment of the loan in the same way that he did with the drawings;
– At the beginning of May 1940 the painting Cadmus sowing dragon’s teeth was sold on behalf of Lisser & Rosenkranz to a Dutch couple called De Bruijn
(Category 3);
– In June 1940 Koenigs sold the other 27 paintings to the German banker Miedl.
Koenigs may have acted as owner/possessor of the paintings in this sale. Given the relationship between the two parties and the background of the credit agreement, it is equally possible that Koenigs did not act for himself but on behalf of Lisser & Rosenkranz in this sale to Miedl. (Category 2)
It did not become clear to the Committee exactly how the loan agreement between Koenigs and Lisser & Rosenkranz was finally settled and how the outstanding debt was set off against the selling prices. However, the Committee considers there to be sufficient evidence to assume that this final settlement occurred in good harmony.
The applicant includes the following in support of her application in (the conclusion to) the Statement:
“It has become clear that Koenigs lost his (not only financially) valuable collection because of the pressure of the circumstances of war that prevailed at that time in Europe. In respect of the months immediately preceding 10 May 1940, these circumstances of war must specifically include the threat of occupation of the Netherlands, which had already been expected many times before 10 May, including on 12 November 1939.
Koenigs lost his collection in an exchange where what he received was significantly less than he could have reasonably expected if the circumstances directly relating to the Nazi regime had not been present – assuming that he would then have had to sell, which would not have been the case. The instances relating to loss of estate that are relevant in this matter should always be regarded as involuntary, regardless of the precise nature of what was agreed on 2 April 1940; it should also be noted that, of all those involved, only Koenigs (and not Van Beuningen or the L&R bank) was genuinely and very significantly disadvantaged. Given this background, it would clearly be fair and reasonable if the NK items concerned in this matter were restored to Koenigs’ heirs. I hereby request that the Restitutions Committee advise accordingly.”
In support of her application the applicant invokes fairness and reasonableness and centres her argument on the concept of ‘circumstances of war’. In so doing she refers to the statutory norm from the post-war restoration of property rights, and in particular to articles 1, 22 and 23 of Royal Decree E 100 (the Decree on Restoration of Legal Transactions of 21/9/1944), and to jurisprudence in the restoration of property rights (Jurisdiction Department of the Council for the Restoration of Rights). She argues that this jurisprudence gives a broad scope to this concept of ‘an environment of war’.
She further argues that the Committee should apply the E 100 norm, and by extension that this ‘environment of war’ was prevailing at the time of Koenigs’ loss of estate because the threat of war was present.
However, in regard to its mandate the Committee considers that it is not the aforementioned E 100 Decree to which primary attention must be given, but rather that the Decree of 16 November 2001 establishing the Committee must be the basis for its advice in this matter. In that Decree establishing the Committee the Committee’s task is limited in article 2 as follows: ‘to advise the Minister, at his request, on decisions to be taken concerning applications for the restitution of items of cultural value of which the original owners involuntarily lost possession due to circumstances directly related to the Nazi regime’. In this connection the relevant government policy must be taken into account, at least insofar as the application concerns restitution of works of art that are in the possession of / administered by the State of the Netherlands, as is the case in the present matter.
The question that the Committee will have to answer is therefore whether Koenigs’ loss of estate must be regarded as involuntary as a result of circumstances that were directly related to the Nazi regime.
The applicant answers this question strongly in the affirmative and states that the loss of possession of the collection would never have occurred without the threat of war.
The Committee is unable to follow the applicant’s argument in this respect. It is her judgement that Koenigs’ loss of estate was not a result of circumstances that were directly related to the Nazi regime but only of the economic circumstances in Germany, which had been the reason for the Stillhalte, a measure that resulted in Koenigs being unable to freely dispose of the German part of his assets. Consequently he was obliged to take out a loan in the Netherlands with his collection as security. This was therefore a loss of estate for an exclusively economic/business reason. The threat of war on all sides at the time of the negotiations and the actual sale of the collection does not detract from the foregoing.
In the Reaction to the investigation report the applicant argues that Koenigs’ negative attitude to the Nazi authorities and his spying for the English meant that he risked the fate that befell the openly persecuted population groups and therefore that he must be equated with the persecuted population groups. The applicant includes the following in paragraph 20 of the Reaction:
“In the interests being fair and reasonable the information given should therefore include not only that Koenigs did not belong to a persecuted population group, but precisely that in the assessment of this matter he should be equated with members of the persecuted population group. This is all the more true because his fate in respect of these works of art was irrevocably linked to the fate of the – Jewish –bank.”
On that basis, government policy means that Koenigs’ loss of estate would have to be deemed involuntary, in the absence of evidence to the contrary, insofar as the sale took place after 10 May 1940.
The Committee cannot follow the applicant in this respect either. In spite of his anti-Nazi attitude and his supposed spying activities, the data and statements regarding Koenigs as a person draw a picture of an influential businessman who – certainly in comparison with the Jewish part of the population – was able to move about freely; and he used this freedom in the 1938-1940 period to continue to do business, including with Germans/Nazis. In addition to altruistic motives – the interests of his Jewish friends – his own financial interests and his interests as an art collector undoubtedly played a role.
In respect of Koenigs’ loss of estate, the reversal of the burden of proof – as applies for involuntary sales by members of the persecuted population groups in the Netherlands from 10 May 1940 – is therefore not applicable in this case.
In addition, the Committee is of the opinion that the – real and acute – threat of a German invasion for the Jewish management of Lisser & Rosenkranz could not constitute an argument in favour of Koenigs.
The Committee therefore considers that the applicant has failed to sustain her standpoint that Koenigs’ loss of estate was involuntary as a result of circumstances that were directly related to the Nazi regime.
The attitude of and statements by members of the Koenigs family themselves provide convincing support for that conclusion. Koenigs’ widow indicated on declaration forms in September 1945 that Koenigs’ sale of the paintings to Miedl in the summer of 1940 was voluntary: on the pre-printed line where she had to indicate whether the loss of estate was due to ‘confiscation, theft, forced or voluntary sale’, she marked the last option. She made this declaration in compliance with an obligation to provide information about works of art that had disappeared from the Netherlands during the war, and as such this declaration cannot – as the applicant argues – be seen as an application for restitution or a claim of ownership.
In view of all of the above, the other arguments made by the applicant need not be addressed and the Committee also does not need to express an opinion on the request by Mr W.O. Koenigs.

Conclusion

The Committee advises the State Secretary for Education, Culture and Science to reject both applications made to the Committee by Mrs Christine F. Koenigs.

Adopted at the meeting of 3 November 2003.

J.M. Polak (Chairman)
B.J. Asscher (Vice Chairman)
J.Th.M. Bank
J.C.M. Leijten
E.J. van Straaten
H.M. Verrijn Stuart

Summary RC 1.6

THE KOENIGS COLLECTION

On 3 May 2002 an application was submitted to the Restitutions Committee for restitution of paintings and drawings from the former estate of F.W. Koenigs, insofar as these objects were part of the Netherlands Art Property Collection. A claim in this regard had been submitted to the State Secretary of Culture on 18 March 2002. The application for restitution concerned 33 paintings (mainly works by Rubens) and 37 drawings (mostly by German masters such as Dürer). These works belonged to the Dutch National Art Collection and most of them had been on long-term loan to the Boijmans Van Beuningen Museum in Rotterdam. Subsequently, on 26 November, an application was submitted to the Committee for restitution of the painting Cadmus sowing dragon’s teeth by P.P. Rubens. This painting belonged to the collection at the Rijksmuseum in Amsterdam and – although it was not part of the Netherlands Art Property Collection – it was part of the National Art Collection. The Committee considered both applications at the same time.

According to the applicant, who was one of the heirs of the collector and businessman F.W. Koenigs, these drawings and paintings were eligible for restitution to the family under the relaxed restitutions policy. Koenigs had lost possession of his very extensive art collection and (most of) the works in question ultimately came into the possession of Hitler and Göring. In 1935 the F.W. Koenigs collection consisted of 2145 drawings and 47 paintings.

The applicant submitted the results of her own investigation in support of her application and her counsel submitted a Statement of Case on 30 August 2002. The Restitutions Committee – as usual – initiated its own investigation. As part of this investigation, hearings were organised in March 2003, at which not only the applicant but also the son of Mr F.W. Koenigs gave evidence.7 The investigation resulted in a draft research report, which was given to the applicant for comments. This report was revised in respect of a number of points following her reaction.

Finally, on 3 November 2003, the Committee adopted its advice. The report on the investigation, as drawn up by its Secretary/Observer, is an integral part of this advice. In its advice the Committee stated that most of the claimed works of art (28 paintings and the 37 drawings) belonged to Franz W. Koenigs’ collection until 1940. However, in respect of a small group of six paintings the Committee concluded that it was uncertain whether they had ever belonged to the Koenigs collection. The application for restitution of this group of paintings therefore failed.

The Committee investigated the question of whether Koenigs’ loss of possession of the other works could be considered involuntary within the meaning of the restitutions policy.

Referring to the Decree establishing the Committee, the Committee applied the criterion that there had to have been involuntary loss of possession as a result of circumstances directly related to the Nazi regime. In its judgement this had not been the case: Koenigs had lost possession for an exclusively economic/business reason. In support of this judgement the Committee referred to the international monetary measures that already obliged Koenigs in the early 1930s – without any connection to the Nazi regime – to take out a loan at the Lisser & Rosenkranz bank and transfer ownership of his art collection to that bank as security. When it subsequently became clear on the eve of the war that he would not be able to repay this loan, the art collection therefore had to be sold. In this regard the Committee considered “.. that Koenigs’ loss of estate was not a result of circumstances that were directly related to the Nazi regime but only of the economic circumstances in Germany, which had been the reason for the ‘Stillhalte’, a measure that resulted in Koenigs being unable to freely dispose of the German part of his assets. Consequently he was obliged to take out a loan in the Netherlands with his collection as security. This was therefore a loss of estate for an exclusively economic/business reason.

The threat of war on all sides at the time of the negotiations and the actual sale of the collection does not detract from the foregoing.” In addition, the Committee found that Koenigs did not belong to a persecuted population group, nor could he be equated with such a group as the applicant argued. In this regard the Committee considered that “.. regarding Koenigs as a person a picture [is drawn] of an influential businessman who – certainly in comparison with the Jewish part of the population – was able to move about freely; and he used this freedom in the 1938-1940 period to continue to do business, including with Germans/Nazis. In addition to altruistic motives – the interests of his Jewish friends – his own financial interests and his interests as an art collector undoubtedly played a role.” This meant, as regards determining whether or not the sale was involuntary, that the burden of proof was not reversed, as would have been the case for a sale by a private Jewish individual during the occupation. Finally, the conclusion that this was not an involuntary loss of estate within the meaning of the restitutions policy was also convincingly supported – according to the Committee – by the attitude of and statements by members of the Koenigs family after the war, including Koenigs’ widow.

In her decision of 10 December 2003 the State Secretary followed the advice and rejected the application for restitution of the Koenigs collection.

Given the confusion that can arise when reference is made to ‘the Koenigs claim’, it is important to note that the Committee gave its advice about the works of art that belonged to the Dutch National Art Collection in 2003. Its advice does not concern the objects from the former estate of F.W. Koenigs that are in the possession of the Boijmans Van Beuningen Foundation or the Municipality of Rotterdam, or works from the Koenigs collection that ultimately ended up in Russian or other collections.

Recommendation: The Koenigs collection