Recommendation

In letters dated 28 February 2007 and 9 June 2009, the Minister of Education, Culture and Science (OCW) asked the Restitutions Committee (hereinafter referred to as the Committee) for recommendation about an application for restitution by ‘die Erbengemeinschaft nach Adolf Arnhold’ (the community of heirs of Adolf Arnhold, hereinafter referred to as Applicants I). In letters dated 20 March 2008 and 29 April 2011, the authorized representative of Applicants I informed the Committee that it is not the said community of heirs (Erbengemeinschaft) that is entitled to apply for restitution but the firm X.X. (hereinafter referred to as Applicant II), for whom she is also acting (Applicants I and Applicant II are hereinafter also referred to as the Applicants).

The application concerns four paintings that are in the Netherlands Art Property Collection (hereinafter referred to as the NK Collection) in the custody of the State of the Netherlands. The Committee gave recommendation  previously with regard to three of the claimed works (RC 1.61-A). The current recommendation relates solely to the application for restitution of the painting Interior with Card Players by Q.G. van Brekelenkam (NK 2924). 

Considerations

1. The Applicants request the restitution of the painting Interior with Card Players by Q.G. van Brekelenkam (NK 2924), which is said to have been the property of the German banker Adolf Arnhold. The Applicants contend that Adolf Arnhold (1884-1950) lost possession of NK 2924 as a result of anti-Jewish measures taken by the Nazi regime.
2. According to a communication from Applicants I, under German law they are the Erbengemeinschaft (community of heirs) of Adolf Arnhold. In principle an Erbengemeinschaft can act as such in law and submit a restitution claim such as the present one. Initially the application for restitution was made only in the name of this Erbengemeinschaft. However, in letters dated 20 March 2008 and 29 April 2011, it was argued on behalf of Applicants I among others that it is not they who are entitled in respect of the requested restitution but Applicant II, to whom the heirs of Adolf Arnhold among others have transferred their right to restitution of works of art. On the grounds of documents that have come to the attention of the Committee in this regard, the Committee has no reason to doubt the status of Applicant II as transferee/right holder to the restitution claim. In view of the content of the letters from the applicants’ authorized representative as referred to above, the Committee assumes that the present application for restitution is deemed to have been made by Applicant II and to have been withdrawn by Applicants I.
3. According to the applicants, the Arnhold family took action after the Second World War to track down the art formerly owned by Arnhold. However, the applicants have also stated that after the war no loss was reported to the Stichting Nederlands Kunstbezit (Netherlands Art Property Foundation, SNK). During its investigation the Committee furthermore found no indications that Arnhold or the Arnhold family requested restitution of NK 2924 and/or other works of art from the Dutch restoration of rights authorities. In so far as there were contacts with the Dutch restoration of rights authorities in the past, the Committee finds that in any event they did not lead to a definitive ruling with regard to NK 2924. It is therefore clear that this is not a case that was dealt with in the past, so Applicant II is admissible in its application for restitution of NK 2924.
4. The relevant facts have been described in the investigation report. The following summary is sufficient here. Adolf Arnhold came from a prominent German Jewish banking family and was a partner in the bank Gebr. Arnhold, with branches in Dresden and Berlin. In 1931 this bank entered into an Interessengemeinschaft mit Gewinnpooling (community of interests with profit sharing) with the S. Bleichröder bank of Berlin, which at that time was having financial problems. After Hitler seized power, members of the Arnhold family were persecuted because of their Jewish descent and their influence in financial, industrial and political circles. In 1933 Adolf Arnhold stepped down from the management of Gebr. Arnhold. The bank was Aryanized during the 1935-1937 period. In order to facilitate the departure of the Arnhold family from Germany, a fund was set up for the benefit of all family members. Substantial sums were paid from it to the German State. From 1937 Arnhold and his wife often stayed abroad on account of the Nazi regime. They finally found a safe refuge outside Germany after 1938.
5. A condition for restitution under the current restitution policy is that the ownership rights are very plausible and that there are no indications to the contrary. It has been established on the grounds of the research that the painting NK 2924 was originally the property of Dr P.H. von Schwabach, partner in the S. Bleichröder bank, and that in 1931 he transferred it, together with many other works in his collection, to Gebr. Arnhold as security for his debt to that bank. In 1937 Adolf Arnhold (in his private capacity) acquired the ownership of NK 2924 and many other works of art in Von Schwabach’s collection from Gebr. Arnhold for a total purchase price of 500,000 Reich marks, which sum was offset against Von Schwabach’s debt to Arnhold’s bank. The Applicants have stated that this transaction took place against the backdrop of the Aryanization of Gebr. Arnhold in Berlin. It was done in order to prevent the partners from being compelled to hand over the works of art together with the other assets of the bank to the Dresdner Bank, which had taken over the Dresden branch of Gebr. Arnhold in 1935 under pressure from the Nazi regime. The Applicants also declared and made it plausible that the transfer of ownership was made to Adolf Arnhold in person for practical reasons, but that the interest in the capital of Gebr. Arnhold and consequently in the works of art belonged to the members of the Arnhold family.
6. The transfer of ownership to Arnhold involved a number of works that Schwabach and his wife had placed with the Rijksmuseum in Amsterdam (hereinafter referred to as RMA) in 1934. These items were specified in a statement of receipt dated 20 July 1934 from the director of the RMA (hereinafter referred to as the RMA list of 20 July 1934). In September 1938 Mr and Mrs von Schwabach informed the RMA that Arnhold had become the owner of the works of art in the RMA’s custody. On 6 December 1938 in his place of residence in Morcote, Switzerland, Arnhold gave a power of attorney to F.H. Brunner to take possession of the paintings at the RMA and to dispose of them (‘verhandeln und verfügen’). Brunner was a representative of both Gebr. Arnhold and S. Bleichröder, and he played a leading role in the S. Bleichröder bank in Berlin. He stated in writing on 16 December 1938 that he had received the paintings concerned in good order from the RMA. Brunner’s statement referred to a list of works of art dated 16 December 1938, apparently prepared by the RMA, which was virtually identical to the RMA list of 20 July 1934. These pictures were also listed in the same order on an appendix to a statement of assets, which was obligatory for Jews, made by Arnhold on 29 July 1938 to the Nazi authorities in Germany. The Committee was able to take cognizance of all these documents. The reconstruction of the facts given above justifies the conclusion that Adolf Arnhold, acting in person on behalf of the members of the Arnhold family, acquired ownership of the works of art from the former collection of Von Schwabach, which were physically present in the RMA, in 1937 and that he had them collected by his authorized representative Brunner at the end of 1938.
7. It has been established on the grounds of the investigation that the painting NK 2924 claimed by the Applicants was one of these pictures. On both of the RMA lists referred to above, item number 28 is a painting with the title ‘Interieur, kaartspelers’ (Interior, card players) by the painter Van Brekelenkam. Both lists also give the number 1975, which the Committee found on the back of the present NK 2924 during its investigation. On the basis of these facts the Committee deems it highly likely that NK 2924 is the painting specified on the RMA lists as ‘Interieur, kaartspelers’ by Van Brekelenkam and that this work had therefore been the property of Arnhold.
8. The Committee’s research found no concrete indications as to what Brunner did with NK 2924 after 16 December 1938. In view of the power of attorney that Arnhold gave Brunner to take possession and dispose (‘verhandeln und verfügen’) of them, it makes sense to assume that Brunner sold or consigned one or more of them on behalf of Arnhold after he received them from the RMA. It also appears to have been the intention to send works to Arnhold in Switzerland, as can be concluded from a letter that Brunner wrote on 15 December 1938 to Dr A.B. de Vries of the RMA in which he mentioned that the works that were in the custody of the RMA ‘Herrn Adolf Arnhold zwecks Verbringung in die Schweiz herausgegeben werden’ (‘were returned to Mr Adolf Arnhold for the purposes of shipment to Switzerland’). It can be deduced that this did not happen to at least some of the works of art from the fact that NK 2924 and a few other items specified on the RMA lists were sold by the Dutch D. Katz art gallery in Dieren after the German invasion of the Netherlands.
9. It is not known how NK 2924 came into the possession of the Katz gallery. It is possible that Brunner sold NK 2924 directly to Katz, but he could also have sold it to a third party, after which the picture ended up with Katz. This is a possibility that the Applicants have also referred to. It is similarly not clear in which capacity the Katz gallery obtained the Van Brekelenkam painting – as consignee or as owner. The Applicants have declared that Y.Y. – who was very active after the war in regard to restitution of Arnhold family assets, including works of art – believed that the NK paintings, the return of which was requested by the Applicants in 2006, were given to Katz on consignment and that the family did not receive the proceeds of the sale. Like the Applicants, the Committee will assume that Arnhold sold or consigned the present NK 2924 because there are no indications that Arnhold ceased to have possession of NK 2924 in any other way, for instance donation, exchange, theft or confiscation.
10. The Committee now comes to answering the question of whether Arnhold’s loss of possession of NK 2924 as a result of selling it – in the context of an authorization (consignment) to the Katz gallery or a third party – has to be considered as involuntary loss of possession as a result of circumstances directly associated with the Nazi regime.The Committee advises in the spirit of the more liberal restitutions policy, which is based on recommendations of the Ekkart Committee. The third recommendation, dating from 2001, states that sales of works of art by Jewish private individuals in the Netherlands on or after 10 May 1940 are to be considered as forced sales unless there is express evidence to the contrary, and that the same principle should be applied to sales by Jewish private individuals in Germany from 1933 onwards.
11. The present application for restitution concerns a German Jewish private individual who fled from Germany in 1933 as a result of the Nazi regime, his family, a number of whose members were in Germany at the time of the loss of possession, and a claimed object that was in the Netherlands at that time. On the grounds of this account of the facts, the Committee notes that the moment at which Adolf Arnhold lost legal possession, and consequently also the economic interests of the Arnhold family, is not known, but it has to have been between 16 December 1938, the date on which F. H. Brunner stated that he had received NK 2924 and other works of art from the RMA, and 14 August 1940, the date on which NK 2924 ended up in the Goudstikker-Miedl gallery via the Katz gallery. In view of the above, the Committee takes the view that the current application should be assessed as a true case of sale during or after 1933 by a Jewish private individual in Germany. This means that involuntary loss of possession is assumed, unless there are express indications to the contrary.
12. The Committee has asked itself whether there are express indications that this was not a case of a forced sale. This is specified in the third recommendation of the Ekkart Committee as a requirement for departing from the assumption of involuntary loss of possession (see consideration 10). The Committee answers this question in the negative, so that the loss of possession of NK 2924 can be designated as involuntary in the context of the restitution policy for NK works. In this regard it refers to the following circumstances. The present NK 2924 was collected from the RMA on 16 December 1938, approximately a month after Kristallnacht (the Night of Broken Glass), when it must have been clear to Arnhold that a return to Germany was no longer possible. During this period a brother of Arnhold escaped from Germany by illegally crossing the Dutch border. In December 1939 Adolf Arnhold himself tried unsuccessfully to acquire Haitian citizenship. The Committee deduces from a statement of assets that Adolf Arnhold submitted to the German authorities in July 1938 that while Arnhold was very wealthy, it is very plausible that in December 1938 and thereafter he no longer had control of a large part of his assets in Germany as a result of the increasing restrictions imposed by the Nazi regime. The Committee takes into account that Adolf Arnhold kept the paintings for and on behalf of the members of the Arnhold family, and that selling the paintings must have been a straightforward way to acquire liquid assets, including for the benefit of family members who were still in Germany or were fleeing from the Nazis. The Committee judges that Adolf Arnhold’s sale of Interior with Card Players by Q.G. van Brekelenkam (NK 2924) has to be considered in this light and should be seen against the backdrop of his own flight and that of members of his family.
13. The Committee then raises the question as to whether a payment obligation should be specified in regard to restitution of NK 2924 in connection with the consideration received when the work of art was sold. Under the present restitution policy, repayment is only addressed if and in so far as the former vendor or his heirs actually had free control of the proceeds of the sale, where he or his heirs should be given the benefit of the doubt. Such a doubt exists in this case. As described above, an Arnhold family member, who was involved in the postwar restitution of works of art, has asserted that Arnhold never received the proceeds from the sale of NK 2924 (see consideration 9). As described above, the Committee finds that no particulars about the transaction relating to NK 2924 are known in respect of either a sale or consignment, or about the magnitude of any selling price. The Committee moreover deems it plausible that, if Arnhold received the proceeds of the work of art, they were used wholly or in part in the context of his flight and that of his family. A payment obligation on the Applicants in return for the Restitution of NK 2924 is therefore not applicable.
14. There is also a claim on the present NK 2924 in regard to the application for restitution relating to the Katz gallery (RC 1.90-B). It emerges from the investigation that the present NK 2924 was sold on or around 14 August 1940 by or through the Katz gallery to the Goudstikker-Miedl gallery. In the opinion of the Committee, in this case the Applicants’ claim to NK 2924 in respect of Arnhold is the only one eligible for a positive recommendation. Arnhold’s property rights have become highly plausible, but the investigation relating to the Katz gallery has not been able to show whether Katz mediated in its sale or owned it. In any event it would seem that any title to the work was acquired after Arnhold.