Recommendation

In a letter dated 18 April 2007, the Minister for Education, Culture and Science (hereafter referred to as: ‘the Minister’) requested the Restitutions Committee (hereafter referred to as: ‘the Committee’) to issue a recommendation regarding the application for the restitution of ten works of art from the Netherlands Art Property Collection in the custody of the Dutch government (hereafter referred to as: ‘the NK collection’) The application concerns objects that are said to have been the property of Fritz Gutmann (1886-1944) and that were returned to the Netherlands from Germany after the Second World War. This recommendation is limited to six of the ten objects, namely:

• NK 605: Unknown, Italian maiolica Albarello with polychromed decor of four figures and a dragon and inscription: ‘Sy – De – Bisancu – A –‘
• NK 1960: J. de Wit, Venus, Bacchus and Ceres with Sleeping Amor;
• NK 3147 a-b: Königliche Sächsische Porzellan-Manufaktur, Meissen plate with wavy-edged rim and a shell-shaped dish, with polychromed decor of flowers;
• NK 3214: Unknown, Woollen Ghiordes rug with Mihrab motif;
• NK 3216: Unknown, Prayer mat with Mihrab motif;
• NK 3217: Unknown, Rug with black velvet fond and stylised flowers and birds in white cotton and silver thread.

These works are currently housed in the depot of the Netherlands Institute for Cultural Heritage or on loan to a museum in the Netherlands.

Considerations

1. The applicants are the heirs of Friedrich Bernhard Eugen Gutmann (hereafter referred to as: ‘Fritz Gutmann’), as evidenced by a certificate of inheritance drawn up on 18 March 2005 by Amsterdam-based public notary M.R. Meijer. According to the applicants, Fritz Gutmann sold the objects in question involuntarily during the occupation as a result of circumstances directly related to the Nazi regime.
2. The facts of the case are summarised as follows. Fritz Gutmann was born in Berlin on 15 November 1886, the son of banker Eugen Gutmann and his wife Sophie Mangus, both of Jewish decent. Fritz Gutmann had six siblings: Walter, Lili, Toinon, Herbert, Kurt and Max. The Trust & Administratie Maatschappij (hereafter referred to as: ‘Trustenad’) was established in Amsterdam in 1921 to look after the financial interests of the Gutmanns’ children. He had two children with his second wife, Baroness Louise von Landau, namely B.G. (1914-1994) and applicant L.G. (born 1919). In 1918, Fritz Gutmann moved to the Netherlands, where he was granted Dutch nationality in 1924. Fritz Gutmann lived with his family in ‘Bosbeek’ country house near Heemstede, where he amassed a sizeable art collection.
3. Even before the outbreak of war, the Gutmann-Von Landaus had endeavoured to safeguard works of art abroad (Paris) due to the increasingly ominous international situation. After the occupation of the Netherlands in 1940, the couple made plans to flee the country, as a result of which they attempted to sell as many of their remaining works of art as possible. Thus, Fritz Gutmann sold a large number of works in various transactions to the German art dealers Böhler and Haberstock. In one of these transactions, on 11 February 1942, Fritz Gutmann sold 200 works to Böhler and Haberstock for NLG 150,000, including, in all likelihood, five of the currently claimed works (NK 605, NK 3147 a-b, NK 3214, NK 3216 and NK 3217). The Committee has a copy of the relevant sales agreement, which shows that the purchase price was paid to Trustenad in connection with a debt that Fritz Gutmann owed it. The applicants have claimed that this construction was used to prevent the purchase price being confiscated by the looting bodies of the occupying forces.
4. The Gutmann-Von Landau’s plan to escape abroad failed and, in 1943, they were arrested and sent to Theresienstadt concentration camp, where Fritz Gutmann died in 1944. His wife, Louise von Landau, was killed in Auschwitz.
5. B.G. and L.G., the couple’s two adult children (hereafter also referred to as: ‘the heirs’), survived the war abroad, and spent years thereafter trying to recover the family possessions that were lost. Various works of art, which were known to have been confiscated by the Nazis in France and which had never been sold, were returned to the heirs by the Netherlands Art Property Foundation (hereafter also referred to as: ‘the SNK’) in the years immediately after liberation.
6. The restitution of the works that had been sold to Böhler and Haberstock, found after the war and returned to the Netherlands was more problematic. The SNK decided that these objects had been sold voluntarily and did not grant the application for restitution submitted by the heirs. Rather than accepting this judgement, the heirs submitted an application for the restoration of rights to the Jurisdiction Department of the Council for the Restoration of Rights (hereafter referred to as: ‘the Council’). The Council dismissed the SNK’s argument and ruled in its judgment of 1 July 1952 that the sales transactions with Böhler and Haberstock qualified for the restoration for rights on the grounds of the restoration of rights regulation laid down in Royal Decree E 100. The Council decided that the sales were influenced by unique war-related circumstances, given the fact that, at that moment, the Gutmann family was already under threat. In its judgement, the Council determined that the sale was null and void and that the heirs of Fritz Gutmann should be considered the owners of the works of art that had been sold:De Raad voor het Rechtsherstel, Afdeling Rechtspraak, (…) Doet ten behoeve van verzoekers sub 1 en 2 [de erven F.B.E. Gutmann, RC] herleven de rechtsbetrekking van eigendom van wijlen F.B.E. Gutmann tot de bij bovengenoemde drie overeenkomsten verkochte goederen, voor zover zich bevindende in het bezit van gerequestreerde [de SNK, RC]; Verklaart in zoverre die overeenkomsten en alle met deze herleving strijdige rechtsbetrekkingen nietig;[The Council for the Restoration of Rights, Jurisdiction Department, (…) Revives the legal relationship of ownership of the late F.B.E. Gutmann to goods sold under the three aforementioned agreements in favour of the applicants sub 1 and 2 [the heirs of F.B.E. Gutmann, RC], in so far as these goods are in the possession of the respondent [the SNK, RC]; Declares all agreements and legal relationships invalid in so far as they are contrary to this revival;]The Council also determined that, upon delivery of the objects, the heirs should pay the restoration of rights authorities the proceeds from the sale of the objects. Arguing that the selling price paid to Trustenad had disappeared during the war, as a result of which it had never accrued to them, the heirs attempted, without success, to contest this ruling.
7. During the post-war years, the heirs actually bought back a number of recovered works of art from the SNK. The remainder of works from Fritz Gutmann’s collection that were returned to the Netherlands remained in the national collection. As a result of the introduction of a more relaxed restitutions policy in 2002 and after advice issued by the Restitutions Committee (RC 1.2), the State Secretary for Education, Culture and Science still restituted a large number of these objects (95) to the heirs of Fritz Gutmann at no cost. The six NK works that are the subject of this recommendation were not part of the claim or recommendation from 2002.NK 605, NK 3147 a-b, NK 3214, NK 3216 and NK 3217
8. Based on the results of the investigation, the Committee has decided that five of the six currently claimed works (NK 605, NK 3147 a-b, NK 3214, NK 3216 and NK 3217) can be identified as the property of Fritz Gutmann and as part of the sale to Böhler and Haberstock in 1942. This can be concluded from documents found by the Origins Unknown Agency (hereafter also referred to as: ‘the BHG’) and the Committee in the SNK archive, the Federal Archive in Koblenz and the archive of the Netherlands Property Administration Institute. The sixth work being claimed, the painting Venus, Bacchus and Ceres with Sleeping Amor by J. De Wit (NK 1960), was not part of the sale to Böhler and Haberstock. The Committee’s judgement with regard to this work follows in considerations 11 to 15.
9. With regard to the five aforementioned objects, the current application for restitution should be examined in light of the judicial ruling from 1952 and the Committee will have to consider the question of whether the applicants’ request can, with due regard for the applicable government policy, be deemed admissible. The basic premise of this restitutions policy is, after all, that the restoration of rights is not repeated, unless there are new facts or insights, summarised in the policy as ‘nova’. Under policy, cases that are deemed to have been settled include cases ‘in which the Council for the Restoration of Property Rights or another competent court has pronounced judgment’ (first recommendation of the Ekkart Committee from April 2001). The Committee is of the opinion that the judicial ruling concerning Gutmann from 1952 does not render the applicants’ case inadmissible. The purport of this ruling is, after all, to restore the heirs’ ownership of these works of art given that there is evidence of involuntary loss of possession. The circumstances surrounding the non-return of the five objects in question in 1952 has no bearing on this admissibility. The Committee also believes that there is no evidence to suggest that the heirs ever wished to waive their ownership rights, but that the requirement imposed upon the heirs to pay back the purchase price posed an obstacle at the time. In their letter of 27 November 2009, the applicants state, in this respect, that, ‘It must be understood that B. and L.G. could not afford to pay for all the items’. In the Committee’s opinion, both the purport of the ruling from 1952 and the rules governing current restitutions policy support its recommendation to grant the application for the restitution of the five aforementioned objects.
10. With regard to the proceeds from the sale of the five works to be returned, these were assigned to Trustenad during the war. As of 2010, it has been impossible to find out whether they ever actually accrued to the heirs of Fritz Gutmann, a fact that the applicants contest and the heirs already argued after the war. Based on this, the Committee is of the opinion that the transfer of the five objects under the applicable restitutions policy should not be subject to repayment. It refers for this to the Ekkart Committee’s fourth and fifth recommendations concerning private art property (April 2001), which, with regard to the payment of purchase sums received during the war, states that an obligation to repay only exists if the former seller or their heirs actually obtained the free disposal of the said proceeds, and that if there is any dubiety as to whether these proceeds were actually enjoyed by the seller or their heirs, the rightful claimants be given the benefit of the doubt. In light of the court ruling to the contrary in 1952, the Committee refers to ‘nova’ within the meaning of current restitutions policy, on the basis of which a previous ruling can be reconsidered. Based on the Ekkart Committee’s second recommendation from April 2001, ‘nova’ are understood to mean ‘differences compared to judgments pronounced by the Council for the Restoration of Property Rights (…) as well as the results of changed (historic) views of justice and the consequences of the policy conducted at the time’.NK 1960
11. With regard to the painting Venus, Bacchus and Ceres with Sleeping Amor by J. de Wit (NK 1960), Gutmann did not sell this work to Böhler or Haberstock, nor did it belong to the works transferred to Paris (see consideration 3). It is still unclear whether this work can be identified as the former property of Gutmann during the relevant period.
12. Research by the Origins Unknown Agency and the Committee has revealed that, in August 1940, the Amsterdam-based art dealers A.J. Spijer & Zoon either gave the painting on consignment, or sold it, to the art dealership Jacques Goudstikker (Kunsthandel voorheen J. Goudstikker N.V.), which had been taken over by the German Alois Miedl. It is also known that Miedl then sold the painting to a Dr Ehrhardt in Munich. However, with regard to the period up to August 1940, the investigation failed to uncover any information regarding the painting’s provenance. It is therefore not known from whom art dealership Spijer & Zoon acquired this painting and whether this acquisition took place prior to or during the war.
13. The name Gutmann was, however, found in connection with NK 1960 several times during the Committee’s investigation. The provenance of this painting is given on a so-called internal declaration form completed by the SNK in 1946 under serial number 11032 as ‘Goudstikker-Miedl’, alongside which is indicated that the work was originally owned by ‘Gutmann, Huize Boschbeek, Heemstede’. The accompanying inventory card also states ‘Gutmann, Heemstede’ as the owner. However, the latter has been crossed out and replaced with a reference to Miedl’s art dealership, including an inventory number. Research into documentation from the Federal Archive in Koblenz has also revealed a link between the name Gutmann and the painting in question. On a list of works returned to the Netherlands, the provenance information for NK 1960 is listed as ‘aus Slg. F. Gutmann an Kunsth. Goudstikker, Amsterdam (Inv.nr. 5768), von dort für hfl. 5.000,- an Dr. Ehrhardt, München Doc. File Holland Office Nr. 11032’ [from F. Gutmann collection to art dealers Goudstikker, Amsterdam (Inv. no. 5768), thence for NLG 5,000 to Dr Ehrhardt, Munich Doc. File Holland Office no. 11032]. The name Gutmann also appears on two inventory cards concerning the current NK 1960 from the archive in Koblenz. Given the fact that the Koblenz documents refer to the serial number 11032 on the aforementioned SNK internal declaration form, it is highly likely that the information in Koblenz was copied from the SNK.
14. The applicants claim that NK 1960 was part of Fritz Gutmann’s art collection and that A.J. Spijer & Zoon had the work on consignment when war broke out, before Spijer gave it on consignment to Kunsthandel voorheen J. Goudstikker N.V. The applicants only referred to the documents mentioned in consideration 13. In their response, they refer to the fact that previously noted provenance information was corrected in two of the documents from the archive in Koblenz, with the name Gutmann having been added as owner. According to the applicants, this provenance should be deemed to be correct. The applicants have not provided any other sources from which it can be concluded that Fritz Gutmann was the owner of the current NK 1960 at any time before or during the war.
15. In contrast to the applicants, the Committee is of the opinion that it has not been proven with any degree of probability that Fritz Gutmann owned NK 1960 at any time after 10 May 1940. Even after extensive research, it remains unclear on what the mention of the name Gutmann in the aforementioned archival documents is based. With reference to the situation as described above (consideration 13), the Committee has to take into account the unnegligible chance that the SNK linked the name Gutmann to NK 1960 by mistake, and that this mistake was then carried over to other documents. This is consistent with the fact that there is no mention of the name Gutmann in the comprehensive records of Kunsthandel voorheen J. Goudstikker N.V.. In addition, it is also possible that the SNK mistook NK 1960 for another work by the artist J. de Wit, also depicting a mythological scene, which belonged to the Gutmann collection and which has since been returned to Gutmann’s heirs.
16. Based on the above, the Committee deems the application for restitution to be admissible in so far as it regards the objects NK 605, NK 3147 a-b, NK 3214, NK 3216 and NK 3217, and inadmissible with regard to the painting NK 1960.