Recommendation

In a letter dated 29 March 2007, S.G.-K. and her husband S.S.G. of B.B., Florida, United States of America, submitted an application to the Ministry of Education, Culture and Science (hereafter referred to as: OCW) for the restitution of a large number of objects that are part of the Netherlands Art Property Collection (NK collection). This recommendation is limited to a selection of 31 of the NK works claimed. This is explained below.
Applicant S.G. died on 14 June 2007, which means that S.G.-K. is acting as sole applicant in this case. S.G.-K. is a daughter of Nathan Katz, who owned an art dealership in Dieren with his brother Benjamin Katz. The applicant is represented in the United States by Tina M. Talarchyk of West Palm Beach, Florida, and in the Netherlands by mr. Ph.W.M. ter Burg of Buren van Velzen Guelen lawyers of The Hague. On 13 June 2007, the Minister for OCW asked the Restitutions Committee to issue a recommendation regarding the application for restitution.

Considerations

1. In her application for restitution, the applicant indicated that she was acting as heir of her father Nathan Katz (1893-1949). The applicant states that she is also acting on behalf of the other heirs of Nathan Katz. She has not submitted sufficient powers of attorney for this, however. During the procedure, the applicant stated that her cousin, V.K.-B., daughter of Benjamin Katz (1891-1962), should also be regarded as applicant. V.K.-B. (born in 1918) should be seen as acting as direct heir of Benjamin Katz and also as representative of the other heirs of Benjamin Katz. However, the Committee has not received any documents which prove conclusively that V.K.-B. is an applicant in the current case. Given that the Committee has no reason to doubt the position of the applicant as Nathan Katz’s heir, it has decided to proceed with a recommendation in this case, despite defects in terms of representative authority. The Committee wishes to point out that in its investigation, it looked into whether Benjamin Katz’s heirs could also claim the restitution of 31 of the claimed works, despite the fact that questions have arisen with regard to the representative authority of the applicant in this case.
2. During the procedure, the applicant provided information about the art dealership of the Katz family, a summary of which follows. From 1930 on, Nathan and Benjamin Katz managed the art dealership Firma D. Katz in Dieren that was set up by their father. The family was of Jewish origin. Nathan and Benjamin Katz were the only partners in the art dealership. On 1 May 1940, a branch was established in The Hague. On 17 February 1941, the company went into liquidation in order to prevent it – as a Jewish firm – from falling into the hands of the Germans. The company was formally wound up on 1 June 1943. The ‘Schilderijen en Antiquiteitenhandel v/h D. Katz N.V.’ was established on 19 May 1941 so that business could continue. Non-Jewish business partners were appointed as directors. According to documents in the trade register, these directors resigned after the war and Benjamin Katz continued the business. According to the applicant, the shares were allocated to Benjamin and Nathan Katz (50% each). Based on this, the applicant stated that Benjamin and Nathan Katz were the de facto owners of Schilderijen en Antiquiteitenhandel v/h D. Katz N.V. The Committee deems this plausible. The recommendation refers to the ‘Firma D. Katz’ and ‘Schilderijen en Antiquiteitenhandel v/h D. Katz N.V.’ jointly as ‘Katz art dealers’.
3. Under the Decree of 16 November 2001 establishing the Restitutions Committee, it has the task of providing advice to the Minister concerning decisions about the restitution of items of cultural value, of which the original owners involuntarily lost possession due to circumstances directly related to the Nazi regime. The Committee can only recommend restitution if ‘the title thereto has been proved with a high degree of probability and there are no indications to the contrary’. The Committee refers to the Ekkart Committee’s eighth recommendation concerning the private ownership of works of art, which also applies to art dealerships and is part of restitution policy. The involuntary loss of possession is not addressed until the ownership issue has been settled. The investigation in this case was therefore limited to a study of the rights of ownership to the claimed works.
4. The Committee should therefore assess whether it has been proved with a high degree of probability that the claimed works were at any point during the occupation of the Netherlands in the possession of Katz art dealers or belonged privately either to Nathan Katz or to Benjamin Katz. Below, this recommendation refers to the ‘Katz property or ‘Katz’s ownership’. The Committee observes that it regards the period during which the Netherlands was occupied by the Germans (10 May 1940 – 5 May 1945) as the relevant period with regard to ownership rights, seeing as Katz art dealers and the Katz brothers were established and settled in the Netherlands, respectively, and hence could indeed have involuntarily lost possession as a consequence of circumstances directly related to the Nazi regime.
5. On several occasions, the Committee requested the applicant to provide documentation to prove Katz’s ownership of the 34 NK works during the occupation. However, in her additional reply of 30 March 2009, invoking the American law of evidence, the applicant argued that proof of ownership should not rest with the applicant and that in the event of doubt concerning the origin of the paintings, the case should be decided in the applicant’s favour. The applicant is of the opinion that the State of the Netherlands is responsible for the loss of a stock book of the art dealership, also known as the ‘Blue Book’, which was said to have contained details of purchases and sales made before and during the occupation. The applicant believes that this can be concluded from several official records found in the archive of the office of the Procurator General in The Hague which she requested from the Committee and submitted together with her reply of 22 October 2008. These reports are the results of interviews with various people held in the course of a post-war investigation into irregularities surrounding the return of artworks to Katz art dealers by the Netherlands Art Property Foundation (SNK).The applicant states:The records mention that the notebook, which obviously could be of assistance in identifying works that belonged to the stock of the gallery, went missing when in custody of the Dutch state (“Lost Blue Book”). Since the Dutch government is responsible for the loss of this notebook, it should be argued that any remaining doubts about the origin of the painting should be decided in favor of claimants. (From: Additional reply of 30 March 2009, chapter II; see also Response of 22 October 2008, p. 5).The applicant also states:

   […] it is clear that the loss of the key and most likely sole evidence that was available to answer the evidentiary burden imposed on the Katz family severely prejudices the Katz family from carrying that burden of proof. The Katz family, heirs and Applicants believe that based upon the Government’s loss of the Katz Blue Book, there should be a shifting in the burden of proof that the Katz Heirs are required to meet. The loss of the Katz Blue Book is almost a complete impediment to the meeting of the Dutch Government’s burden of proof and should be acknowledged as such. (From: Additional reply of 30 March 2009, chapter V, p. 9/10).

6. It can now no longer be ascertained who was responsible for the disappearance of the Blue Book. Be that as it may, in the event of ambiguous or missing provenance details, the loss of the Blue Book is not automatically a reason to decide in the applicant’s favour. Such a sweeping assumption would be contrary to restitution policy as cited in consideration 3. In addition, the Committee notes that when researching the provenance of artworks, various sources can be consulted, such as auction catalogues, buyers’ and sellers’ inventories, extant invoices, statements of account and information gathered by the allied forces after the war and now in the safekeeping of, among others, the Netherlands Art Property Foundation and the Federal Archive in Koblenz, Germany. This means that the investigation does not depend on the availability of the Blue Book. Moreover, claimants sometimes still have access to private documents such as photo albums or correspondence, and, in the case of art dealerships, business documents such as accounts or other records. That is the reason why, particularly in cases involving art dealerships, claimants are asked to provide documentation themselves about ownership and in that sense, the burden of proof also rests with them.
7. However, the applicant has not provided the Committee with any information demonstrating that the 34 NK works were part of Katz’s property during the occupation. Having said that, in each case, and hence also in this case, the Committee conducts independent research into the provenance of the claimed works. In the case at issue, the BHG’s provenance research of the individual NK works was used as a basis; the consulted sources are cited in the investigatory report and the appendices. As a result of this, the Committee concluded that Katz’s ownership of 31 NK works during the German occupation period has not been proven with a high degree of probability. This concerns the following works: NK 1683, NK 1929, NK 1532, NK 1537, NK 1547, NK 1551, NK 1757, NK 2384, NK 2614, NK 2732, NK 1515, NK 1521, NK 1564, NK 1604, NK 1842, NK 2084, NK 2186, NK 2245, NK 2366, NK 2496, NK 2497, NK 2586, NK 2597, NK 2693, NK 2463, NK 1658, NK 2487, NK 1663, NK 1766, NK 2209 and NK 2594.
8. The following explanation is provided:As regards NK 1683, in its research results the BHG regarded ‘Katz’ as provenance as ‘very uncertain’. Further research conducted by the Committee has shown that on the ‘White Card’, an SNK inventory card, the name Katz is crossed out and replaced with the name of another art dealership, a name borne out in other documents found. The Committee is therefore of the opinion that ‘Katz’ as provenance on the White Card is a mistake.With reference to NK 1929, the BHG regarded ‘Katz’ as provenance as ‘uncertain’. After additional research, the Committee concluded that the available provenance details are so fragmented and contradictory that ownership by Katz is not plausible.As far as NK 1532, NK 1537, NK 1547, NK 1551, NK 1757, NK 2384, NK 2614 and NK 2732 are concerned, indications were found in the sources consulted from which it could be concluded that Katz art dealers did, at an unknown time, have something to do with these works, such as an entry ‘Katz’ on a photo card found in the Netherlands Institute for Art History or in an SNK inventory book. Clear indications are lacking, however. The Committee regards these indications as insufficient to bear out the conclusion that ownership by Katz during the occupation is plausible.

   As regards the works with inventory numbers NK 1515, NK 1521, NK 1564, NK 1604, NK 1842, NK 2084, NK 2186, NK 2245, NK 2366, NK 2496, NK 2497, NK 2586, NK 2597, NK 2693 and NK 2463, indications have been found that they were in Katz art dealers’ possession during the 1930s. However, no indications were found that would suggest that they were in Katz’s possession during the occupation. Moreover, possession of the vast majority of these works passed from a party other than Katz to a German buyer during the occupation. With regard to one of the works in this group, NK 2463, the results of the investigation show that the painting was on the premises of Katz art dealers in 1934 and/or 1935 but that it was part of the collection of Jewish entrepreneur Hans Ludwig Larsen in 1937 and was purchased from the latter’s estate for Adolf Hitler’s Sonderauftrag Linz. This rules out Katz as owner of NK 2463 during the occupation.

   As regards NK 1658 and NK 2487, these works were, at any rate from the mid-1930s on, the property of J.G. Fockema-Vié and her husband H.W.J. Fockema of Brussels and, until August 1939 and June 1941, respectively, on loan to the Gemeente Museum Arnhem. Both paintings were sold to Adolf Hitler’s Sonderauftrag Linz in 1941 by or through Katz art dealers. Concerning NK 1658, BHG stated that: ‘Het is waarschijnlijk dat kunsthandel Katz het schilderij in juli 1941 voor mevrouw Fockema – Vié heeft verkocht. Katz heeft meerdere schilderijen uit het bezit van de familie Fockema (o.a. NK 2487), in bruikleen bij het Gemeentemuseum Arnhem, verkocht in Duitsland.’ [It is likely that Katz art dealers sold the painting in July 1941 on behalf of Mrs Fockema – Vié. Several art works belonging to the Fockema family (among others NK 2487) and on loan to the municipal museum in Arnhem were sold by Katz in Germany.]

   On the basis of the fact-finding investigation, the Committee, too, is of the opinion that Katz art dealers did not act as owner but as intermediary in this sale.

   Similarly, the Committee believes that Katz acted as intermediary in the case of NK 1663. The painting was at Katz art dealers in 1939 and was then purchased by W.A. Hofer, Hermann Göring’s representative, during the occupation. It can be concluded from documents prepared by the Allies after the war that at the time of the sale, the work was part of the collection of H.E. ten Cate, an art collector from Almelo, who sold the work through Katz. BHG states in the provenance details that ‘Katz was als tussenpersoon betrokken bij de verkoop tussen Ten Cate en Hofer’[Katz acted as intermediary between Ten Cate and Hofer for the sale of the painting], a conclusion shared by the Committee.

   The investigation of NK 1766 also points to Katz as intermediary rather than owner. From reports drawn up by the Allies after the war, which are currently in the Bundesarchiv Koblenz, it can be concluded that the painting was sold to the Sonderauftrag Linz by J. de Wit on 9 November 1942. Moreover, information on the SNK’s ‘White Card’ indicates that the painting originated from ‘Katz, Dieren’ in 1942. As regards its provenance, the BHG concluded on the basis of this that: ‘Het is mogelijk dat kunsthandel Katz bemiddeld heeft bij een verkoop door J. de Wit’ [It is possible that art dealer Katz mediated in a sale by J. de Wit]. On the strength of this information, the Committee deems it plausible that Katz’s relationship to NK 1766 was one of intermediary rather than owner.

   As far as NK 2209 is concerned, a single entry on a photo card found in the Netherlands Institute for Art History points to the work having been at Katz art dealers at some point in 1940. Finally, it is also known of NK 2594 that Esher Surrey art dealers of The Hague purchased it from Katz art dealers at an unknown date and then sold it to Adolf Hitler’s Sonderauftrag Linz in September 1940. However, no exact date is known for either work nor whether Katz was the owner or acted as intermediary. The Committee therefore deems it insufficiently proven that Katz owned them at the time of the German invasion on 10 May 1940. The Committee also takes into consideration that, as shown above, Katz frequently mediated in sales transactions and that a mention of the name Katz in provenance details – or the presence of a work on the art dealers’ premises – does not automatically mean that Katz should be regarded as the owner of that work.

9. The Committee advises the Minister to reject the application for the restitution of said 31 NK works.