Assessment Framework

Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:

a. part of the NK collection or
b. among the other holdings of the Dutch State.

Pursuant to paragraph 5, the Committee advises with regard to applications as referred to in paragraph 1, under b, on the basis of the yardsticks of reasonableness and fairness.

Pursuant to paragraph 6, when discharging its advisory task as referred to in the first paragraph, the Committee will give great weight to the circumstances of the acquisition by the owner and the possibility that there was knowledge about the suspect provenance at the time of the acquisition of the item of cultural value concerned.

Considerations

1. The Committee established the relevant facts on the grounds of the overview of the facts of 16 April 2018, the responses to it that the Committee received and the proceedings of the hearing. The following summary is sufficient here.
   Herbert Gutmann
2. Herbert Gutmann was the son of the banker Eugen Gutmann (1840-1925) and his wife Sophie Magnus. The couple had seven children. Lili, Antonie, Walter, Herbert, Kurt, Max and Fritz. In 1898 Eugen Gutmann and his family, who were originally Jewish, converted to Protestantism. The children were raised as Protestants. The family was very interested in art and culture. Eugen Gutman built up a famous art collection and many of his children went on to develop their own collections or undertake artistic activities. Eugen Gutmann was in a senior management position in the Dresdner Bank for 48 years. His son Herbert was trained as a banking professional and enjoyed rapid promotion. He was one of the founders of the Deutsche Orientbank in 1906. In 1910 he was appointed to the top management of the Dresdner Bank.In 1913 Herbert Gutmann married Daisy von Frankenberg und Ludwigsdorf (1889-1959). The couple had three children: Luca in 1914, Fred in 1916 and Marion in 1921. Initially the family lived variously in Berlin and Potsdam. After some time they moved permanently into a home on the Jungfernsee in Potsdam. The many alterations to Gutmann’s residence, Herbertshof, that were undertaken were intended in part to provide suitable accommodation for his growing art collection.

3. There was a banking crisis in Germany in 1931. The German government was obliged to support a number of banks by injecting capital. The Dresdner Bank received a capital injection of 300 million Reichsmarks (RM) and in fact was actually partially nationalized on 20 August 1931. On 24 August 1931 the Deutsche Orientbank was partially taken over by the Dresdner Bank, for which purpose the German government provided 15 million RM to pay off the debts that had been incurred. After the national government had taken the emergency measures needed to restructure the banks’ capital, it implemented various personnel changes. German Chancellor Heinrich Brüning had already announced that every guarantee given by the government was subject to the requirement that every member of the board would step down if that was desirable. The German government could impose this rearrangement without too many problems because it held the majority of the shares. Directors of various banks had to leave. The press was also demanding that bank directors, including Herbert Gutmann, should resign. On 9 September 1931 he was obliged to step down from his positions at the Dresdner Bank and the Deutsche Orientbank.
   In the 1932 election campaign, the Nationalsozialistische Deutsche Arbeiterpartei (NSDAP) [National Socialist German Workers’ Party (Nazi Party)] used the banking crisis and the Jewish descent of some of the directors who were held to be responsible for the crisis. Herbert Gutmann was one of the targets they attacked, as can be seen from the election poster above. Gutmann is on far left.
4. Gutmann received no further salary from the Dresdner Bank after his dismissal in 1931. To begin with, though, Gutmann continued to hold approximately 50 directorships in companies in Germany and beyond. In response to the banking crisis, however, on 19 September 1931 Brüning announced an emergency order under which a limit of 20 was imposed on the number of directorships per individual inside Germany. After that the number of Gutmann’s directorships dropped, and his income from such positions also fell as a result.
   The Assumption of Power by the Nazis
5. It was not long after the Nazis came to power in January 1933 that the Dresdner Bank was ‘Aryanized’. Jewish employees lost their jobs en masse on the grounds of the April 1933 Gesetz zur Wiederherstellung des Berufsbeamtentums. Nazi party members were brought in, including at the bank’s top management level.The Nazi takeover of power soon had consequences for Gutmann and his family. He lost many of his directorships. The loss of a substantial number of these was due to the fact that the companies concerned no longer wanted Jews in such senior positions. Similarly many businesses no longer wanted any Jewish shareholders either. In 1933 the Nazi propaganda minister Joseph Goebbels took a personal interest in the transfer of the 9% of the shares in Auskunftei W. Schimmelpfeng GmbH, worth RM 90,000, that Gutmann owned. In 2015 the Bundesamt für zentrale Dienste und offene Vermögensfragen (Federal Office for Central Services and Unresolved Property Issues, BADV) decided to pay compensation in connection with this forced share transfer. The BADV considered Goebbels’s role is this regard. ‘Es ist fraglich, ob sich Goebbels 1933 für die Auskunftei Schimmelpfeng interessiert hätte, wenn nicht Herbert Gutmann Teilhaber gewesen wäre.’

6. Gutmann ran into further financial difficulties starting in 1933. At the same time as his income was decreasing, he was faced with some substantial claims by the Dresdner Bank. One of these claims arose as a consequence of Gutmann’s participation in the Dresdner Bank Aktien-Syndikat von 1927. Participants in the syndicate borrowed money from the Dresdner Bank in order to buy shares in the bank. The 1931 crisis was followed by measures to strengthen the Dresdner Bank, which was as good as insolvent. This gave rise to questions of whether liabilities were connected with participation in the aforementioned syndicate. Although legal advisers answered this question in the negative in 1932, the Dresdner Bank nevertheless demanded payment of a sum (20% of the nominal value) by the participants. Gutmann paid the amount requested by the Dresdner Bank, which is his case was RM 50,000, by accepting in May 1933 a monthly cut of RM 1,000 in the transitional payment of RM 42,000 a year to be paid by the Dresdner Bank. On 8 May 1933 Herbert Gutmann had a ‘Sicherungshypothek’ registered as security for the claim that the Dresdner Bank had on him.
7. A second claim made by the Dresdner Bank on Gutmann arose from the activities of the Deutsche Orientbank, of which Gutmann was one of the founders. Gutmann was a director of this bank and, together with other board members, had set up a syndicate that speculated in the price of Egyptian cotton by means of futures contracts (hereinafter also referred to as the Egyptian cotton fund). The four directors of the Deutsche Orientbank, including Gutmann, were guarantors for the results under the name ‘Hugo Lindemann. Cte Special, Alexandrien’. Initially the Deutsche Orientbank closed the account with effect from 27 December 1932 and wrote off the debit balance of approximately 54,097 Egyptian Pounds (EGP). After the Deutsche Orientbank had been taken over completely on 16 March 1933 by the Dresdner Bank, with retroactive effect from 31 December 1932, the Dresdner Bank decided to investigate the former write-off. In so doing it was discovered that Gutmann and the other three directors had guaranteed the account concerned. On 22 December 1933 the head office asked the Dresdner Bank branch in Alexandria to reopen the previously written-off account. On 28 December 1933 the Dresdner Bank held Herbert Gutmann personally liable for settlement of the debt, which was valued at EGP 54,097, a sum corresponding approximately to RM 760,000, and Gutmann was asked to come up with proposals for paying this debt. The other three directors were also held personally liable by the Dresdner Bank.
8. According to an overview submitted by the Applicants, Gutmann’s financial situation in December 1933 was as follows. He had total debts to the Dresdner Bank of RM 430,000, consisting of RM 50,000 arising from his participation in the Dresdner Bank Aktien-Syndikat, a debit account with the Dresdner Bank amounting to RM 200,000 and the debt arising from his guarantee of the Egyptian cotton fund amounting to his share of RM 180,000. In respect of these debts there were possessions with a total value of RM 520,000. These consisted of the mortgage on Herbertshof with a value of RM 200,000 and a share portfolio with a value of RM 320,000.
9. Gutmann answered the aforementioned letter from the Dresdner Bank of 28 December 1933 on 4 January 1934. In it he stressed that he was only 25% liable for the debts of the Egyptian cotton fund, like the other partners. As regards the proposals the bank requested for paying off his debts, Gutmann pointed out that he would pay his debts with the proceeds of selling Herbertshof in the event that the value of his share portfolio did not increase enough to enable him to fulfil his obligations. According to Gutmann, agreement was reached on the basis of this and the bank was not exposed to any risk whatsoever. He furthermore wrote ‘Ich kann Ihnen aus irgendwelchen anderen Vermögenswerten nichts bezahlen’, and asked the bank to wait until he had succeeded in selling Herbertshof. He expressly requested the bank not to force him to sell Herbertshof for an unfavourable price.
   At some point after this Gutmann must have decided to have his art collection auctioned off. There was a reference in a Dresdner Bank memo of 20 February 1934 about the proceeds of the ‘Graupe-Auktion’. Gutmann’s art collection went under the hammer at the Graupe auction house on 12, 13 and 14 April 1934. The proceeds were used to pay off Gutmann’s debts to the Dresdner Bank.
10. As described above, part of the debts arose from Gutmann’s involvement in the Egyptian cotton fund. It can be concluded from the available documentation that Gutmann was ultimately assessed for a quarter of the total debt of EGP 54,097, in other words EGP 13,524. This sum was in Egyptian Pounds and, depending on the current exchange rate, was equivalent to approximately RM 180,000 to RM 190,000. Gutmann received permission to pay this amount in Reichsmarks.
    After the art collection had been sold at auction, however, the Dresdner Bank decided in June 1934 that the total debt arising from the involvement in the Egyptian cotton fund should have been valued at only a quarter of the sum of EGP 54,097. It cannot be determined from the available documents, though, whether this was subsequently settled with Gutmann.
11. The three other directors of the Dresdner Bank or Deutsche Orientbank who had also guaranteed the Egyptian cotton fund were similarly held personally liable by the Dresdner Bank. Two of them, like Gutmann, were of Jewish descent. The only former director who was not of Jewish descent, Curt Lebrecht, owed substantial debts to the Dresdner Bank and had limited possessions to offset them. Yet the Dresdner Bank did not force Lebrecht to pay anything and ultimately concluded an agreement with him in 1938 about paying off his debts. Under this agreement Lebrecht’s debts were reduced and the fifty-one-year-old was given the opportunity to pay off these debts by his sixty-fifth birthday at the latest.
12. On 28 April 1934, two weeks after the sale, the Gutmann family moved into the nearby Villa Alexander. On 30 June 1934, the Night of the Long Knives, real and suspected enemies of the NSDAP throughout the whole of Germany were imprisoned or murdered. Gutmann, who was well known as a supporter of the Deutsche Demokratische Partei (German Democratic Party), was arrested by the SS and taken to the Polizeipräsidium in Potsdam. That evening he was taken back to Villa Alexander, where he and nine other detainees, including Konrad Adenauer, were watched over by fourteen SS guards. They were set free the following day.On 12 November 1936 Gutmann left Germany and travelled to Switzerland, and ultimately on to London. He found work there as a stockbroker. In 1937 his wife Daisy travelled to see friends in Potsdam a few times. In October 1937 she fled to London. His children also fled, to the United Kingdom and the United States.
13. Herbert Gutmann was forced by the Nazis to pay Reichsfluchtsteuer (Reich Capital Flight Tax) and Judenvermögensabgabe (Tax on Registered Jewish Assets). He paid RM 89,000 in Reich Capital Flight Tax. On 8 March 1939 Gutmann wrote to the Finanzamt Moabit-West stating that he had no more cash resources available and he referred the tax authorities to a previous letter of 12 December 1938, in which he made the mortgage on his country house Herbertshof available as security for payment of Tax on Registered Jewish Assets. The Herbertshof country house was sold on 6 May 1939 for RM 150,000 to the Volksbund der Deutschen im Ausland. Gutmann’s remaining possessions were confiscated on 27 November 1940. On 18 March 1941 Gutmann’s German nationality was taken away and his remaining possessions were declared forfeited. A document dated 26 April 1941 from the Gestapo to the Finanzamt Moabit-West in Berlin stated that the assets of Herbert Gutmann still remaining in Germany had been seized by the Potsdam Gestapo. According to the document this concerned ‘ein Auswandererguthaben in Höhe von 5.589.93 RM’ and ‘ein Vorzugs-Sperr-Guthaben in Höhe von 1.016,50 RM’.
14. Herbert Gutmann became seriously ill in 1939. He had an operation, but never fully recovered. He died on 22 December 1942. His wife Daisy died in 1959.
15. Compensation and restitution claims were submitted to the German authorities after the war. The Applicants stated that no compensation was received for the currently claimed objects. Other sums were paid in compensation however. On 28 February 1956 and 13 October 1956 compensation amounts of DM 18,750 and DM 7,800 were paid in consideration of Tax on Registered Jewish Assets and Reich Capital Flight Tax. On 9 January 1958 compensation of DM 60,000 was acknowledged in regard to the loss of household effects. Compensation was also paid for loss of income. Herbertshof was restituted to Gutmann’s children in 1992.More recent restitutions concern the return of the painting Death of Count Pappenheim by Hans Makart in 2008 by Vienna City Council and a portrait of Bismarck by Franz von Lenbach in 2010 by the German Bundestag. In that same year the British Spoliation Advisory Panel recommended that the painting The Coronation of the Virgin by Peter Paul Rubens in the Courtauld Gallery should not be restituted.

Assessment of the Claim

24. The Applicants are descendants of Herbert Gutmann. The Committee has no reason to doubt the Applicants’ status as heirs of Herbert Gutmann.
    Ownership
25. In the first place the Committee is faced with the question of whether the fourteen currently claimed objects were part of Gutmann’s art collection that went under the hammer at the Graupe auction house on 12, 13 and 14 April 1934. As far as the twelve plates are concerned, it follows from the provenance discussed in considerations 17 to 19 that this question can be answered in the affirmative. The Committee finds with respect to the two sauce boats that Het Loo Palace concluded in its provenance report that both objects came from the Herbert Gutmann Collection and that no indications have been found to doubt this conclusion. The Committee therefore concludes that it is highly likely that the fourteen currently claimed objects were the property of Herbert Gutmann at the time of the Graupe sale in 1934.
    Loss of Possession
26. In April 1934 Gutmann offered his art collection, including the currently claimed objects, for sale at the Graupe auction house. It has been established that the twelve plates were sold at the sale. The two sauce boats were not sold at the sale, but it is plausible that Gutmann lost possession of them at that time. The available documentation justifies the conclusion that Gutmann felt compelled to have his art collection auctioned off so that he could pay off his debts to the Dresdner Bank. The sale can be specifically linked to the Dresdner Bank claim that arose from Gutmann’s involvement in the Egyptian cotton fund.In the assessment of the nature of Gutmann’s loss of possession, also when advising in Dutch National Art Collection cases on the basis of the yardsticks of reasonableness and fairness, significance is attributed to the Ekkart Committee’s third recommendation of 26 April 2001, which stipulates that sales of artworks by private Jewish individuals in Germany from 1933 onwards must be considered as forced sales, unless there is express evidence to the contrary. The Committee concludes that there is no such express evidence. The facts that are known about the sale of the art collection in 1934 and the circumstances in which it took place indicate that this sale was involuntary due to circumstances directly related to the Nazi regime. In this connection the Committee points out the following.
27. Gutmann, who was brought up as a Protestant after his father converted to Protestantism, was considered to be Jewish on the grounds of Nazi ideology. Gutmann was publicly pilloried by the Nazis for his role in the German banking crisis because of his Jewish descent even before 1933, as demonstrated by the 1932 NSDAP election poster. After the Nazis came to power, Gutmann was affected by measures aimed at depriving Jews of their possessions, including the forced transfer of his Schimmelpfeng shares, in which Joseph Goebbels took a personal interest. Gutmann’s sympathy for the German Democratic Party also resulted in the Nazis considering him as an enemy. During the Night of the Long Knives on 30 June 1934 Gutmann was arrested by the SS along with other suspected opponents.
28. In 1931 Gutmann was compelled to step down as a director of the Dresdner Bank shortly after it had been partially nationalized. As a result of the nationalization, the Nazis rapidly acquired a major influence on the operations of the Dresdner Bank soon after coming to power in 1933. Jewish employees were dismissed en masse while NSDAP party members were brought in, some of them in the bank’s top management. This put Gutmann, who was in debt to the bank and was furthermore labelled by the Nazis as one of the individuals who caused the banking crisis in 1931, in a vulnerable position in regard to the ‘Aryanized’ Dresdner Bank.
29. The origin of Gutmann’s debts to the Dresdner Bank pre-dates 1933. The Applicants have argued that the debts were ‘fabricated’ because there is nothing about them to be found in official documents prior to 1933. As regards the Dresdner Bank’s claim that arose from Gutmann’s involvement in the Egyptian cotton fund, the Committee concludes from the available information that at the beginning of 1934 the Dresdner Bank finally assessed Gutmann for his share of 25% of the total debt of RM 760,000, while later that year the bank took the view that this total debt should have been valued at only a quarter of RM 760,000. It has not emerged, however, that this was corrected afterwards.
30. It can furthermore be deduced from the available information that, in regard to his debts, at the end of 1933 Gutmann had sufficient possessions to pay these debts off. This is why Gutmann wrote to the Dresdner Bank on 4 January 1934 that his residence and his shares were worth more than enough to cover his debts and he asked the bank to settle his debts in this way as, according to him, had also been agreed previously. Nevertheless, the bank decided to demand immediate payment of the debt, so Gutmann felt compelled to have his art collection auctioned off. The Dresdner Bank’s decision to demand immediate settlement of the claim arising from the Egyptian cotton fund cannot be considered in isolation from the vulnerable position Gutmann found himself in under the Nazi regime and in regard to the Dresdner Bank, which was very much under the influence of that regime. The Applicants have rightly pointed out that of the four directors who had claims lodged against them by Dresdner Bank, the only person who was not of Jewish descent received a much more favourable repayment arrangement from the Dresdner Bank. This man, Curt Lebrecht, was treated substantially more generously and was granted postponement of payment. An arrangement was not made between him and the bank until 1938. In the end he only needed to repay a part of his total debt to the bank, and was given years in which to do it.
31. In his letter of 4 January 1934 Gutmann wrote that he was unable to pay off his debt by means of other assets. It is clear that Gutmann’s income dropped after he was forced to step down as a director of the Dresdner Bank in 1931. After the Nazis came to power in January 1933 Gutmann’s opportunities to earn an income in a normal way virtually disappeared. The bank wrote the following in a July 1933 internal note about Erich Alexander, a colleague of Gutmann’s who was also Jewish and in debt to the bank as a consequence of the Egyptian cotton fund. ‘Eine neue Stellung könne er mit Rücksicht auf seine Nichtarier-Eigenschaft in Deutschland nicht finden.’ In other words, the advent of the Nazi regime made it impossible for Gutmann, because of his Jewish descent, to compensate for his loss of income. In fact, as a result of the Nazis his income dropped even further in any event because of a drop in the number of directorships on account of his Jewish descent. In academic German publications about this subject, 30 January 1933 is therefore designated as the decisive ‘tipping point’ in Herbert Gutmann’s career.
32. On the grounds of the facts and the circumstances described above, the sale of the currently claimed objects by Gutmann in 1934 has to be considered as a forced sale in accordance with the third recommendation of the Ekkart Committee of 26 April 2001.
    Reasonableness and fairness
33. The Committee has an obligation to advise on the present restitution application on the basis of the yardsticks of reasonableness and fairness. The starting point is that Gutmann lost possession of the objects involuntarily as a result of circumstances directly connected with the Nazi regime. On the other hand, the State acquired these objects through normal channels and is consequently now the owner.In weighing up these interests, very great weight is given to the way in which possession was lost and to the need to right wrongs committed during, and as a result of, the Nazi regime. As established above, Gutmann had the currently claimed objects auctioned off involuntarily, under pressure caused by circumstances directly connected with the Nazi regime. On these grounds, the Committee’s opinion is that the Applicants’ interests in the restitution of the objects must be given greater weight than the State’s interests in retaining them.
    On the basis of the above the Committee similarly sees no reason to advise an outcome other than restitution.
34. Finally, the Committee raises the question of whether a payment obligation should be specified in regard to restitution of the claimed objects in connection with a consideration received when the claimed objects were sold at auction. According to the Applicants, the proceeds of the sale paid off Gutmann’s debt that arose out of his participation in the Egyptian cotton fund. In view of the fact that the Dresdner Bank calculated Gutmann’s share of this debt to be four times higher than it should have been and did not correct this error later, in the Committee’s opinion it cannot be assumed that Gutmann had free disposal of the proceeds from the sale. On these grounds there is no reason to link a payment obligation to restitution of the claimed objects.