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 4, the Committee advises about applications as referred to in paragraph 1, under a, submitted to the Minister before 30 June 2015 with due regard for government policy in this respect.

Considerations

1. The Committee has taken note of various inheritance-law-related documents on the grounds of which it has no reason to doubt the Applicants’ status as rightful claimants in the context of this restitution application.
2. The three currently claimed paintings were part of the collection of the Museum für Bildende Künste der Stadt Leipzig (hereinafter referred to as the Museum). The paintings ended up there in around 1953/1954 from the former collection of Emil Kummerlé, who had acquired the paintings during the Second World War. After a claim from the Netherlands to works from this collection, on 4 March 2012 works from this collection, including the current three paintings, were returned to the Netherlands. This return of works was preceded by a decision by the Bundesamt für zentrale Dienste und offene Vermögensfragen [Federal Office for Central Services and Unresolved Property Issues] (hereinafter referred to as the BADV) of 17 June 2011. After their return the three paintings were incorporated in the NK collection. According to the Applicants the three paintings were sold involuntarily during the Second World War by the Firma D. Katz (Kunsthandel Katz) art gallery to Alois Miedl/kunsthandel v/h J. Goudstikker N.V (hereinafter referred to as Goudstikker-Miedl).
3. The present restitution application is linked in part to an earlier application for the restitution of 189 works from the NK collection, about which the Committee advised on 17 December 2012 in case RC 1.90-B (Katz). The present case concerns the same Applicants and the same stated original owner (Kunsthandel Katz). In addition the present application concerns paintings that came into the possession of Goudstikker-Miedl in August 1940 in the same way as the paintings on list I accompanying recommendation RC 1.90-B.
   The Committee will therefore check with regard to the currently claimed paintings whether there are grounds for arriving at advice that is different from recommendation RC 1.90-B issued with regard to the paintings on list I. First the Committee will address the application for restitution of NK 3754 because it is not clear whether this is the painting by Gerard Dou that was sold to Goudstikker-Miedl by or through the Kunsthandel Katz gallery in August 1940.
   NK 3754
4. In the request for advice of 7 June 2012, NK 3754 is described as a painting entitled ‘Vrouw knielend voor een tulpenbed in gesprek met een man’[‘Woman Kneeling by of a Bed of a Tulips Talking to a Man’] by an unknown Dutch artist, previously attributed to Gerard Dou. It is a painting in oil on panel measuring 44.3 by 35.7 cm. With their application to the Minister of 8 May 2012 the Applicants enclosed the list sent by the BADV (hereinafter referred to as the BADV list), on which NK 3754 is referred to under number 40. The information about this work on the BADV list came from the Museum and from the Dutch Ministry of Education, Culture and Science (OCW). According to information on the BADV list originating from the Museum, the painting concerned is entitled ‘Vor einem Tulpenbeet kniende Frau in Unterhaltung mit einem Mann’ by an unknown Dutch painter, previously attributed to Gerard Dou. According to information on the BADV list originating from the OCW the painting concerned is a ‘Vrouwenportret’ [‘Portrait of a woman’] by Gerard Dou. The information from the Museum and shown on the BADV list includes the painting’s dimensions (44 x 35.5 cm) and a provenance that goes no further back than Emil Kummerlé. The information on the BADV list from the OCW does not contain any measurements, but it does include a provenance that mentions Emil Kummerlé, Goudstikker-Miedl and Katz, and refers to Goudstikker inventory number 5216. These differences in description give rise to the question of whether this matter concerns one and the same painting.
5. The information on the BADV list that came from the OCW about a ‘Vrouwenportret’ [‘Portrait of a woman’] by Gerard Dou corresponds to information from various documents found during the investigation that refer to a ‘Vrouwenportret’ [‘Portrait of a woman’] by Gerard Dou, which was allegedly sold by the Kunsthandel Katz gallery to Goudstikker-Miedl on 7 August 1940 and thereafter to Emil Kummerlé of Brandenburg on 12 March 1942. The documents found are an internal SNK (Netherlands Art Property Foundation) declaration form of 3 December 1945, a list from the SNK archive entitled ‘Collectie Katz’ [‘Katz collection’] and a list from the NBI (Netherlands Property Administration Institute) archive about Goudstikker-Miedl headed ‘‘Schilderijen – Lange Voorhout 35, den Haag’ [‘Paintings – Lange Voorhout 35, The Hague’]. On this last list the painting under Goudstikker inventory number 5216 is recorded as follows.
   [5216] [v] G. Dou, vrouwenportret [portrait of a woman] (Cook)   [München {Munich}   2778  f 32000   11000]
   It is stated in the draft investigation report of 16 October 2017 that, in the absence of an illustration and measurements, it is not clear whether the painting sold to Kummerlé on 12 March 1942 is NK 3754.
6. In response to the draft investigation report the Applicants wrote on 9 November 2017 that NK 3754 is not the painting referred to in the documents mentioned above in consideration 5 that was sold to Goudstikker-Miedl by the Kunsthandel Katz gallery. In this context they refer to information from a stockbook of the Agnew gallery in London, in which a portrait of a woman by Gerard Dou is recorded. According to the Applicants, this painting, which the Kunsthandel Katz gallery purchased on 8 March 1940 from the Cook collection, is the work mentioned in the various documents referred to above. The Applicants sent an image of the painting, which measures 21 x 15.5 cm. It emerges from the image that the painting’s subject is Gerard Dou’s mother.
7. The Committee takes the same view as the Applicants that NK 3754 is not the portrait of a woman by Gerard Dou that is mentioned in the documents referred to above in consideration 5 and that was sold by the Kunsthandel Katz gallery to Goudstikker-Miedl in August 1940.
   Looking at the illustration (see above), it is difficult to label NK 3754 as a portrait of a woman.
   It moreover emerges from the documents sent by the Applicants as enclosures to their letter of 9 November 2017 that the Kunsthandel Katz gallery did indeed purchase a portrait of a woman on 8 March 1940 from the Cook collection, which has characteristics that correspond closely with the portrait of a woman described in documents referred to above in consideration 5. In that light, and in the absence of other provenance information about NK 3754 that can link this painting to the Kunsthandel Katz gallery, the Committee will advise the Minister to reject the application for the restitution of NK 3754.
   NK 3752 and NK 3753
8. It is known that NK 3752 and NK 3753 were sold to Goudstikker-Miedl by or through the Kunsthandel Katz gallery in August 1940, after which they ultimately came into the possession of Emil Kummerlé. In addition to the two currently claimed paintings, a further 101 paintings were sold to Goudstikker-Miedl by or through the Kunsthandel Katz gallery in August 1940 and thereafter. The Committee issued recommendation about these transactions in RC 1.90-B. In consideration 14 of this recommendation the Committee concluded that the Miedl works were the subject of business transactions in line with the starting point for the art trade policy formulated by the Ekkart Committee ‘dat de kunsthandel verkoop van handelsvoorraad als doelstelling heeft, zodat een belangrijk deel van de verrichte transacties, ook bij de joodse kunsthandelaars, in principe gewone verkoop was’ [‘that the art trade’s objective is to sell the trading stock so that the majority of the transactions, even at the Jewish art dealers, in principle constituted ordinary sales’]. See consideration 14 of the recommendation concerning RC 1.90-B for the reasoning behind this conclusion.
9. The question is whether there are reasons for coming to a different conclusion with regard to the loss of possession of NK 3752 and NK 3753. The Applicants refer to the BADV decision of 17 June 2011 and assert that in Germany and other countries the involuntary nature of the loss of possession is taken as a starting point in the case of a Jewish owner. The Applicants argue that if the Committee were to stand by the starting point of the art trade policy ‘dat de kunsthandel verkoop van handelsvoorraad als doelstelling heeft, zodat een belangrijk deel van de verrichte transacties, ook bij de joodse kunsthandelaars, in principe gewone verkoop was’ [‘that the art trade’s objective is to sell trading stock, so a significant fraction of transactions, including by Jewish art dealers, in principle constituted ordinary sales’], it would be repudiating the international consensus that sales under the German occupation were not normal.
   The Committee limits its response to this line of reasoning by stating that on the grounds of the Decree Establishing the Restitutions Committee it is obliged to advise giving due regard to ‘government policy in this respect’. This case is about an art gallery, so this means that the Ekkart Committee’s Recommendations for the Art Trade (2003), as adopted by the Dutch government, are applicable. These recommendations are based on the starting point referred to above, on the grounds of which the involuntary nature of the transactions at issue must be made plausible. Since this case concerns a sale by a Jewish art dealer under the Nazi regime, application of the Dutch restitution policy results in this sale not being designated as involuntary.
10. The Committee has taken note of the additional information sent by the Applicants on 15 December 2016, including reports by AA and BB. They do not provide any grounds for reaching a conclusion with regard to the nature of the loss of possession of NK 3752 and NK 3753 that is different from that stated in consideration 14 of the recommendation concerning RC 1.90-B. In this context the Committee also refers to the recommendation concerning RC 4.168, which addresses the additional information sent by the Applicants.
    There are also no grounds in other respects for reaching a conclusion with regard to the nature of the loss of possession of NK 3752 and NK 3753 that is different from that stated in consideration 14 of the recommendation concerning RC 1.90-B. This means that the Committee will advise the Minister to reject the application for restitution of NK 3752 and NK 3753. The Committee therefore does not need to address the ownership issue.