Recommendation

In a letter dated 25 October 2012, the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application of 24 August 2012 from XX of YY (hereinafter referred to as the applicant) for the restitution of two paintings that are claimed to have formerly belonged to Sam Bernhard Levie.

The advice concerns the paintings Amsterdam Town Hall by Gerrit Berckheyde (NK 1978) and View of a Dutch Harbour with Figures by Adam Willaerts (NK 2729). Both works of art are currently part of the Netherlands Art Property Collection in the custody of the Dutch State.

Considerations

1. The applicant is requesting the return of two paintings that are claimed to have belonged to Sam Bernhard Levie (1887-1943). On the basis of the inheritance-law-related documents that have been submitted, the Committee sees no reason to doubt the status of the applicant as being entitled to Sam Bernhard Levie’s inheritance.
2. Sam Bernhard Levie (hereinafter also referred to as Levie) was born in Groningen on 6 April 1887. In Rotterdam in 1916, together with Rudolph de Metz, he established the firm R. de Metz & Co, a textiles trading company. He settled in Amsterdam in around 1924. On 5 July 1933 Levie married Sara de Zwarte (1899-1943). No children were born during the marriage.During the nineteen-twenties and nineteen-thirties Levie worked in the textiles sector as a salesman and representative. It is probable that he became unemployed at the end of the nineteen-thirties. During the occupation of the Netherlands, probably at the end of 1942, Levie and his wife were deported by the Nazis to Vught concentration camp and were killed in Sobibor death camp on or around 28 May 1943.
3. On the grounds of the current Dutch restitution policy, there can only be restitution if the property rights to the claimed objects are highly probable and if the original owner involuntarily lost possession of them due to circumstances directly related to the Nazi regime.
4. The following has emerged with respect to the ownership of the two claimed artworks. Prior to the German invasion Levie gave the current NK 1978 at an unknown moment to N.V. kunsthandel J. Goudstikker to sell on a commission basis. During the occupation Levie took back the painting on 1 Augustus 1940 and gave it to the Amsterdam gallery D.A. Hoogendijk & Co to sell on a commission basis. This gallery purchased the painting on 15 September 1940 for NLG 8,000.It is not known when Levie acquired the painting NK 2729. It has been established, however, that Levie sold the work on 12 or 13 September 1940 via the Gebr. Douwes gallery to W.A. Hofer, who bought art on behalf of Hermann Göring. It is not clear what sum Levie received in this transaction.On the grounds of this information the Committee considers it highly likely that the currently claimed paintings were Levie’s property at the time of the loss of possession.
5. In the provenance prepared by the Origins Unknown Agency (BHG) it is stated that Levie ran an art gallery in Prinsengracht in Amsterdam. This report is based on a post-war statement by ZZ, a former landlord of Levie. ZZ stated in 1951 in a letter to the Netherlands Property Administration Institute (NBI) that Levie traded art and had an office in Prinsengracht in 1925/1926. In its investigation, however, the Committee found no further indications to support the contention that Levie was ever an art dealer. The investigation did reveal evidence that Levie traded textiles and in addition owned a large number of paintings, some of which he placed with various people and businesses, most probably with the intention of selling them.
6. In this context the Committee posed the question as to whether Levie, at the time he lost possession, should be designated as an ‘occasional dealer’, to whom the stricter rules of the art trade policy apply. In the Ekkart Committees recommendations for the art trade (2003), occasional dealers are defined as ‘people who had not established a business, such as an art gallery or art dealership, but bought and sold artworks to a greater or lesser extent.’The Committee finds, on the basis of its own investigation results and the absence of evidence to support ZZ’s assertion, that there are insufficient indications to designate Levie as an occasional dealer at the time of the loss of possession. It points out in this context that while Levie offered a number of paintings for sale during the occupation, it has not been established that he purchased artworks. According to the Ekkart committee’s description cited above, this latter activity is typical of the conduct of an occasional dealer. The Committee therefore concludes that the policy for private individuals (the recommendations of the Ekkart Committee 2001) should be applied to the current claim.
7. Pursuant to the third recommendation concerning private art ownership, works of art sold by private Jewish individuals in the Netherlands on or after 10 May 1940 have to be considered as forced sales unless there is express evidence to the contrary. Given that Levie was a private Jewish individual and the sales of the claimed paintings took place during the occupation (see consideration 4), it therefore has to be assumed that there was involuntary loss of possession.In the Committee’s opinion the fact that Levie gave the painting NK 1978 to the Goudstikker gallery before the war to sell on commission is not sufficient proof to the contrary (voluntary sale). Levie’s intention when providing the painting for sale on commission at a moment before the German invasion cannot be considered decisive in respect of the sale of this work under the changed circumstances during the occupation.On the basis of the above the Committee finds that Levie involuntarily lost possession of the currently claimed pictures in the sense of the restitution policy as a direct result of the Nazi regime.
8. Finally the Committee addressed the question of whether a payment obligation should be imposed in exchange for restitution of the claimed artworks in connection with any sales proceeds that were received. Under the present restitution policy, a repayment obligation is only addressed if and in so far as the former vendor or his heirs actually had free control of the proceeds. If there is uncertainty about this, the vendor or his heirs must be given the benefit of the doubt.With regard to this, the Committee believes that a payment obligation can be omitted in this case. The measures taken against Jews by the occupying forces and the situation in which Levie found himself at the time of the sales are sufficient reason for assuming there was no free control of the purchase sums.