Binding opinion regarding Budge / The Hague City Council

Date of binding opinion: 14 November 2022

Binding Opinion

regarding the restitution application by, on the one hand

AA, of BB (Germany) in his capacity as executor of the estate of Emma Ranette Budge-Lazarus, represented by Lothar Fremy, lawyer of Berlin (Germany)

(hereinafter referred to as the Applicant),

and on the other hand

The Hague City Council (hereinafter referred to as the City Council), represented by CC, The Hague City Council’s Director of Youth, Education, Culture and Media,

issued by the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague (the Restitutions Committee), hereinafter referred to as the Committee.

2. The Procedure and the Applicable Assessment Framework

In a letter of 7 May 2019 the Committee stated that it would take the request under consideration on the grounds of the regulations as approved on 28 January 2019. A new Decree Establishing the Restitutions Committee came into force on 22 April 2021 together with a new assessment framework to be applied by the Committee. At the same time, so did new regulations that no longer contain an assessment framework for the Committee to use. The parties agreed that the new Decree Establishing the Restitutions Committee and the new regulations are applicable.

The Committee took note of all the documents submitted by the parties. It forwarded to the other party copies of all documents. The Committee then submitted research issues to the Restitution of Items of Cultural Value and the Second World War Expertise Centre of the NIOD Institute for War, Holocaust and Genocide Studies (hereinafter referred to as the ECR). The ECR conducted much of the research into the facts during the COVID-19 pandemic (January 2020 to March 2022). The significant delay in completing the overview of the facts was due in part to this. The findings of the investigation are recorded in the overview of the facts.

Chronological overview of the committee’s actions and the responses to them

• In letters of 26 February (the Applicant) and 2 April 2019 (City Council) the parties requested an investigation and a binding opinion with regard to the Applicant’s claim for restitution of the artworks. As a result of the request for a binding opinion, on 7 May 2019 the Committee asked the ECR to launch an investigation into the facts.
• The results of the investigation were recorded in a draft overview of the facts, which was sent to the parties on 22 November 2021 for additional information or comments. The City Council responded on 20 December 2021. The Applicant responded on 31 January 2022. The ECR amended the draft overview of the facts on the basis of the responses. The responses are attached to the final overview of the facts as appendix 2.
• The final overview of the facts was adopted on 16 March 2022 and it was sent to the parties on 1 April 2022.
• On 10 May 2022 the parties stated that they had no comments on the final overview of the facts. At the same time the parties consented to application of the new regulations and the assessment framework accompanying the Decree Establishing the Restitutions Committee of 15 April 2021 (hereinafter referred to as the assessment framework). The assessment framework is in the Appendix to the Decree Establishing the Restitutions Committee.
• On 30 May 2022 the Committee asked whether the parties needed a hearing and on 7 June 2022 the Applicant answered that he wanted a hearing. At the same time the Applicant stated he did not object to a simultaneous meeting relating to all the Budge cases currently being dealt with by the Committee (RC 1.175, RC 3.179 and RC 3.181). The City Council also agreed to a simultaneous hearing.
• In a letter of 3 June 2022 the City Council notified the Committee that it waived the right to invoke good faith.
• The joint hearing took place on 22 August 2022 at the offices of the CAOP in The Hague.
• An English transcript of the hearing was sent to the parties on 16 September 2022.
• The Committee sent its draft binding opinion to the parties on 3 October 2022.
• The City Council responded on the draft binding opinion on 26 October 2022. The applicants indicated in an e-mail of 3 November 2022 that they will not comment on the draft opinion.

The will and the sale of Emma Budge’s art collection

The will of Emma Budge, supplemented by five codicils

Initially Emma Budge intended to leave her art collection to the city of Hamburg. That changed after the Nazi regime came to power in January 1933. Emma Budge had her last wishes recorded in a will dated 5 October 1933, which was supplemented over the years by five codicils, the last of which was registered in 1936. It can be deduced from the documentation that in her will and testament Budge took into account the rise of the Nazi regime and the possible consequences. She included stipulations concerning her art collection in the will of 5 October 1933. She changed the section relating to her art collection in a codicil of 11 June 1934. In it she stipulated that the executors were authorized to donate individual objects to museums or other institutions as they saw fit. The artworks that remained after this then had to be sold. At the same time she stipulated, among other things, that a public sale in Hamburg was ruled out.

Emma Budge’s freedom to stipulate what was to happen to her art collection after her death was significantly constrained by anti-Jewish measures, including Reich Capital Flight Tax (Reichsfluchtsteuer), which was intended to combat capital leaving the country. Budge made substantial changes to her will shortly after the promulgation of the Nuremberg Race Laws on 15 September 1935 in the form of a fourth codicil, dated 21 November 1935. In view of the measures taken against German Jews, in it she stipulated that all executors had to be Jewish. She stated with regard to her art collection that a sale in the German Reich was not expected to be advisable.

The sale at Graupe auction house in Berlin in 1937

Despite the fact that Emma Budge had stated in 1935 in a codicil to her will that it would probably not be prudent to sell her art collection inside Germany, after her death in 1937 her art collection went under the hammer at Berlin auctioneers Paul Graupe. The sale of Emma Budge’s art collection took place on the instructions of the executors on 4, 5 and 6 October and 6 and 7 December 1937 under the supervision of Hans W. Lange, who had Aryanized the Graupe auction house. Among the 812 lots that went under the hammer, there were over 300 lots containing objects from Emma Budge’s collection.

The Emma Budge estate 1938-1945

The lion’s share of the Budge estate consisted of securities and currency that were beyond the reach of the Nazi regime in an account with the Schweizerische Kreditanstalt. There was a fierce struggle for these assets in 1938 and 1939. The German authorities pushed for the transfer of foreign assets to Germany, where the Nazis could easily appropriate the assets under the applicable foreign currency legislation. This involved exerting pressure on the beneficiaries and executors remaining in Germany by means of arrest, seizure of the personal assets of the individual beneficiaries and withdrawal of their passports. After the Night of Broken Glass (Kristallnacht) on 9 and 10 November 1938 the position of the beneficiaries remaining in Germany became even more perilous. One of the beneficiaries and the spouse of another beneficiary were detained in Buchenwald concentration camp. Their release was linked to willingness to cooperate with the authorities. Furthermore, the domestic assets of the beneficiaries were seized.

Pressure was also exerted on the Jewish executors. The Chief Finance Administrator (Oberfinanzpräsident) of the Hamburg local court (Amtsgericht Hamburg) issued instructions to have two executors who remained outside Germany replaced by two other Jewish executors who were in Germany and therefore under the Nazis’ influence. In the end they were to be replaced in turn by the lawyer Dr Ernst Blum of Lucerne and Gottfried Francke of Hamburg, accountant and former tax advisor to Emma Budge. Neither was Jewish. In the end the Nazis were to succeed in getting two-thirds of the assets transferred from Switzerland to Germany with Francke’s help. In 1939 he had the securities transferred by the Schweizerische Kreditanstalt to the Aryanized banking house of Warburg and deposited in an account that was accessible only to him. Allegedly none of the assets were transferred to Emma Budge’s beneficiaries.

On 21 July 1939 the management of the estate passed essentially completely into the hands of the two non-Jewish executors Francke and Blum. This consequently completely sidelined the Jewish beneficiaries and the Jewish executors. Payments were only made into blocked accounts, which the beneficiaries could not access. As a result of foreign currency legislation, the shares in the estate were decimated, so that nothing remained of the sums concerned. Permission for the beneficiaries to leave Germany was linked to their willingness to relinquish the remaining share of the estate. In a case brought by a few of the beneficiaries after the war they stated that of these amounts, ‘they had not and have not received anything’ [‘hatten und haben die Antragsteller nichts erhalten’].

Provenance of the claimed artworks in the Kunstmuseum Den Haag

1937: Sale of Budge’s art collection and purchase by museum

At some unknown point the artworks became part of the Budges’ art collection in Hamburg. The dates and sources relating to this are unknown because there is no overview of the Budges’ acquisitions.

After Emma Budge’s death in 1937 her art collection, as part of the undivided estate, was sold at auction at the Graupe auction house on the instructions of the executors appointed in her will. The two artworks were purchased in the 1937 sale by the then Gemeentemuseum Den Haag. The sale catalogue of the Budge sale lists the goblet holder under lot number 256 and the description corresponds with that of the current inventory number OME-1937-0002 in the collection of the Kunstmuseum Den Haag. The same sale catalogue lists a ‘small dish’ (‘Kleine Schale’) under number 334 whose description matches that of the current inventory number OME-1937-0012.

On 2 November 1937 the president of the Reich Chamber of Fine Arts (Reichskammer der bildenden Künste) wrote to the Reich Fine Arts Leader (Reichsleiter der bildenden Künste) enclosing an ‘Overview of the auction held on 4-6 10. 1937 by the auctioneer Hans W. Lange in Berlin W. 9, Bellevuestr. 3’ (‘Niederschrift über die am 4.-6. 10. 1937 stattgefundene Versteigerung des Versteigerers Hans W. Lange in Berlin W. 9, Bellevuestr. 3’). That overview states that the object with lot number 256 was sold to ‘Gemeentemuseum Den Haag’ (‘Gemeente Museum Haag’) for 2,200 Reichsmarks.

City Council investigation

In 1998 the City Council commissioned a formal investigation into the development of the collection during the Second World War and restitution after it. The investigation focussed on the 1935-1950 period. The results of the investigation were published in April 1999 in a report about ‘the development of the Gemeentemuseum Den Haag Collection before and during the Second World War and the handling of it during the post-war years’. [‘de collectievorming van het Haags Gemeentemuseum voor en tijdens de Tweede Wereldoorlog en de afwikkeling in de na-oorlogse jaren’.] The report mentions the acquisition of objects from Emma Budge’s estate and refers to a 1938 publication by the then director of the Gemeentemuseum Den Haag Hendrik E. van Gelder (hereinafter referred to as Van Gelder). In it he describes how he purchased the goblet holder, made in 1642 by The Hague-based goldsmith Andries Grill, himself at the sale at the Berlin auction house Hans W. Lange from the collection of the late Jewish Emma Budge, who had died shortly beforehand. Van Gelder stated the following in his article: ‘This was an important collection that was originally bequeathed to the city of Hamburg. Emma Budge changed her mind about this primarily because of the National Socialist policy with regard to Jews and she considered leaving parts of her collection to the Metropolitan Museum in New York. However, new Nazi regulations restricted the freedom of choice that Jews had with regard to disposal of their possessions more and more. In response, the owner decided to leave the matter to her executor’. [‘Het ging hierbij om een collectie van betekenis die oorspronkelijk bij testament was vermaakt aan de stad Hamburg. Vooral in verband met de nationaal-socialistische politiek ten aanzien van Joden kwam Emma Budge hierop terug en overwoog zij delen van haar collectie te vermaken aan het Metropolitan Museum te New York. Nieuwe verordeningen van de nazi’s beperkten evenwel meer en meer de vrije beschikking van Joden over hun eigendommen. Hierop besloot de eigenaresse de zaak aan haar executeur-testamentair over te laten’.]

It can also be deduced from the report that at the time the City Council investigated the acquisition in Germany. It emerged from this that the museum had acquired two objects at the sale. The description is such that there is a high probability bordering on certainty that this refers to the two currently claimed objects.

The City Council published a further report on 30 June 2000. It emerged from this report that the City Council tried to contact the beneficiaries and to investigate whether Emma Budge’s beneficiaries wished to claim the objects. The investigation was not completed. Only a few beneficiaries were traced.

Ownership requirements (section 2 of the assessment framework)

It is known that the goblet holder and the pottery dish became part of the Budges’ art collection at some unknown moment. The Committee finds that after Emma Budge’s death in 1937 her substantial art collection, as part of the undivided estate, was put up for sale by auction at the Paul Graupe auction house, which had been Aryanized by Hans W. Lange. This was done on the instructions of the executors appointed in her will. Research has established that the two artworks are referred to in the sale catalogue The Late Emma Budge Collection, Hamburg (Die Sammlung Emma Budge † Hamburg) as lot number 256 (goblet holder) and lot number 334 (pottery dish). It emerges from the investigation conducted by the City Council in the 1998-2000 period into the provenance of the collection’s development that the then director of the Gemeentemuseum Den Haag, Van Gelder, wrote a publication in 1938 about his purchases for the museum. In it Van Gelder referred to the sale of the collection of the Jewish Emma Budge.

On the grounds of the relevant information from the investigation in case RC 3.163 and in the present case, the Committee has come to the conclusion that it is highly likely that the two objects came from the private collection of Emma Budge. This means that the ownership requirement of section 2 of the assessment framework has been met.

The consequence of this is that the Committee now has to evaluate whether, with regard to the two artworks in the Kunstmuseum Den Haag, there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime.

Conclusion with regard to the restitution application

The Committee concludes that it is highly plausible that the parcel gilt goblet holder made by Andries Grill and the pottery dish (artist unknown), which are currently in the Kunstmuseum Den Haag under inventory numbers OME-1937-0002 and OCE-1937-0012 / OKI 313, came from Emma Budge’s collection, and that it is sufficiently plausible that possession of these artworks was lost in 1937 involuntarily as a result of circumstances directly related to the Nazi regime.

The Hague City Council has stated that it waives the right to invoke good faith in regard to the provenance of the artworks when purchasing them and therefore the Committee has not conducted research in this regard.

In view of sections 2 and 3 of the assessment framework (criterion 3.1 and part 3 at the end of section 3), the upshot of all this is that the Committee will rule that the artworks should be restituted to the Applicant on behalf of the people entitled to Emma Budge’s estate.