B. Assessment
B.1. The applicant is a granddaughter of Koenigs. She is requesting the restitution of 139 drawings and three etchings that were returned from Kiev, Ukraine, to the Netherlands in 2004 (see the appendix for a summary and a description of the claimed works). In the current procedure the applicant has referred to documents about her inheritance-law-related position that she had sent to the Committee with regard to restitution application RC 1.6. It emerges from these documents that she belongs to the circle of rightful claimants to Koenigs’s legacy.
B.2. The applicant contends that Koenigs lost possession of the claimed artworks as a result of circumstances directly connected with the Nazi regime. Her reconstruction of the events, which she prepared in part on the grounds of her own research, can be summarized as follows. Prior to the German invasion Van Beuningen agreed to deliver the collection to Hitler’s representative, Dr H. Posse. In that context Van Beuningen and Hannema conspired to prevent Koenigs, who according to the applicant found himself in a vulnerable position in regard to the Nazi regime, from exporting his collection. They then tricked him out of his collection under pressure from an imminent German invasion. The liquidation of the L&R bank on 2 April 1940 was a sham transaction in order to keep it out of German hands. There was also a bogus transfer of the collection, which was prompted by the desire to keep it from being confiscated by the Nazi regime. The transfer of the collection to L&R on 2 April 1940 and the subsequent transfers to Van Beuningen and Posse are furthermore null and void under civil law, or at least are contestable.
Assessment framework
B.3. The applicant has repeatedly asserted that the Committee should assess the present application for restitution based on the yardsticks of reasonableness and fairness (3 July 2008, p. 40). In this regard she refers, among other things, to article 2 paragraph 5 of the 2001 Decree Establishing the Restitutions Committee (23 January 2014, p. 5). She also argues that involuntary loss of possession directly related to the Nazi regime should also be taken to mean ‘the sale that came about as a result of violation of good faith with collaboration in the offing’ (hearing, 20 March 2014).
B.4. The Committee is unable to concur with this opinion. Under the 2001 Decree Establishing the Restitutions Committee, the Committee is tasked, giving due regard to the restitution policy (article 2 paragraph 4), with advising the Minister at the Minister’s request about decisions to be taken concerning applications for the restitution of items of cultural value in the Dutch National Art Collection of which the owner involuntarily lost possession due to circumstances directly related to the Nazi regime. In the case of loss of possession by private individuals who, like Koenigs (see B.5, B.6 and B.7 below), did not belong to a persecuted population group, such involuntary loss of possession is only the case if a direct link exists between specific threats or coercion from the Nazi regime and the loss of possession concerned (see also the advice about Weijers, RC 1.68, consideration 14 and Aldenburg-Bentinck, RC 1.102, consideration 7).
Reversal of the burden of proof
B.5. The applicant argues that Koenigs was an active political opponent of the Nazi regime and should be regarded as a victim of persecution. As support for this position she refers, among other things, to a letter from the Netherlands Property Administration Institute in which Koenigs is described as an ‘avowed opponent of the Nazi regime’; various statements by witnesses that were made during the years after the war and that bear witness to Koenigs’s political reliability; his involvement in German cultural life; the international fame of his art collection; his naturalization as a Dutch citizen in 1939; documents from which it can be deduced that Koenigs supplied information to the British secret service and others; information about Koenigs’s business and personal dealings with Jews after 1933, including indications that he supported and gave emergency help to Jewish contacts in several ways, and intelligence about relatives who were actively involved in the resistance to the Nazi regime in Germany. The applicant furthermore contends that the sale of the collection can be linked to the liquidation of the (‘Jewish’) L&R bank. The applicant argues that Koenigs should be treated the same way as private individuals who were persecuted by the Nazi regime because of their origins, such as Jews, and that involuntary loss of possession should be assumed. She thus invokes a reversal of the burden of proof, as contained in the recommendations of the Ekkart Committee concerning the restitution of private art property (April 2001).
B.6. Pursuant to the Ekkart Committee’s third recommendation concerning private art ownership, which was adopted by the government, the Committee considers that the sale of artworks by private Jewish individuals in the Netherlands from 10 May 1940 onwards is considered to be involuntary, unless the facts expressly show otherwise. In response to this recommendation, the government extended the reference to private Jewish individuals to include other victims of persecution, such as Roma and Sinti. The government’s response also refers to ‘other specific groups of victims of persecution’ (Lower House, 2001-2002, 25 839, no. 27). The above applies to loss of possession that occurred in the Netherlands on and after 10 May 1940, the day on which the Nazis invaded the Netherlands. Prior to this date, loss of possession in the Netherlands is assumed to be voluntary, even in the case of private individuals in a persecuted population group, unless the facts indicate that the contrary is highly probable. The transfer of ownership of the artworks concerned by Koenigs took place 2 April 1940, in other words before 10 May 1940, and for this reason alone there can be no reversal of the burden of proof automatically in this case.
B.7. The Committee furthermore takes the view that Koenigs cannot be regarded as a member of the resistance or a victim of persecution as referred to in the restitution policy. The Dutch government does not recognize Koenigs as a resistance fighter. It is plausible that Koenigs was detained and interrogated by the SD for a period in December 1940, but on the grounds of the information in A.15 the Committee deems it likely that it was linked to an attempt by Koenigs to tell Göring about reports of an imminent attack, and not connected to resistance activities or the sold works of art. So this arrest and this interrogation do not justify the conclusion that Koenigs should be considered as a victim of persecution. It has also not become plausible that Koenigs was murdered in 1941. When considered in conjunction, it also does not emerge from the other material that has been raised that Koenigs’s attitude and activities were such that they resulted in measures being taken by the Nazi regime aimed at him personally, on the grounds of which he can be regarded as a victim of persecution. On the contrary the Committee believes that Koenigs was an influential businessman who—certainly in comparison with the Jewish part of the population—was able to move about freely.
B.8. On the grounds of the above it is up to the applicant to make it plausible that Koenigs lost possession of the artworks currently being claimed involuntarily as a result of circumstances directly connected with the Nazi regime..
The legal instruments of 2 April 1940.
B.9. The civil law objections raised by the applicant, which were supported by experts’ statements that were handed over and which included violation of the appropriation prohibition as referred to in article 1200 of the old Dutch Civil Code and carrying out ‘sham transactions’, underpin the argument that—with regard to the private legal instruments of 2 April 1940—the claimed artworks were transferred to L&R in violation of the rules of civil law. The conclusions that the applicant draws from this are not clear in all documents, but appear to concern both the legal and actual status of the collection and also the policy-based designation of the loss of possession as involuntary. The applicant wrote the following about the ownership status of the collection in the response of 3 July 2008. ‘Before addressing that, however, the applicants want to put particular emphasis on one issue. According to all legal experts it has been established that Koenigs remained the owner of the Collection and that neither Van Beuningen nor any subsequent acquirer obtained ownership of the Collection. Franz Koenigs still has to be regarded as the owner.’ In addition the applicant, through her representative, asserted the following on 20 March 2014. ‘However, since the agreements of 2 April 1940 were sham transactions and since Koenigs still had the collection de facto, by rights still had the power of its disposal and had not yet lost ownership, this sale, aside from the circumstances, was not possible without involving him. In which case Koenigs did indeed lose possession involuntarily’ (De Jong, notes, p. 5). The applicant argues that in the execution of its advisory task the Committee regularly comments on legal aspects and therefore in the present case it should give its opinion about the civil law grounds that would make the transfer to L&R and the subsequent transfers to Van Beuningen and Posse null and void or contestable.
B.10. It is correct that the Committee regularly ‘comments on legal aspects’, for example in regard to whether an applicant or the legal predecessor of an applicant is the original owner in the sense of article 2 paragraph 1 of the Decree Establishing the Restitutions Committee. The issue here is whether Koenigs lost possession of the drawings involuntarily as a result of circumstances directly connected with the Nazi regime. In this case it has been established that Koenigs lost ownership of the drawings. In other words Koenigs lost the actual power to keep the drawings for himself (cf. article 3: 107 paragraph 1 of the Dutch Civil Code). That happened on 2 and 9 April 1940. The question of whether this loss of the actual power was based on one or more legal acts that are null and void or contestable on civil law grounds comes under the ‘ordinary legal rules’ as referred to in the explanatory notes to article 2 of the Decree Establishing the Restitutions Committee. It is therefore outside the scope of the restitution policy and the Committee’s terms of reference. In so far as the applicant’s arguments, as summarized in B.9, concern the question of whether there was involuntariness regarding the loss of possession as a result of circumstances directly connected with the Nazi regime, the Committee refers to considerations B.13 – B.19.
Value of the collection
B.11. The applicant asserts that the fact that on 2 April 1940 Koenigs was said to be satisfied with only a fraction of the real value of the collection indicates it was a sham transaction. In this regard she refers, among other things, to Hannema’s valuations of the collection in December 1940 (NLG 7.29 million and NLG 3.5 million), which were substantially higher than the price of one million paid by Van Beuningen shortly before that. The applicant also argues that neither Koenigs nor his business Rhodius Koenigs was in financial difficulty, so the transfer of the collection to L&R cannot be explained from a business perspective.
B.12. The Committee takes the view that the question of whether Koenigs had the financial means to repay the loan in April 1940 can be left unresolved. It is clear from the legal instruments that Koenigs chose not to pay off the loan. The Committee furthermore deems it plausible that Koenigs and L&R were prepared to accept a relatively modest consideration for the collection because they intended to support Museum Boymans and the nation’s art collection (see considerations A.5 and A.10). The Committee consequently takes the view that objective valuations, in so far as it is possible to reconstruct them, are not necessary for assessing the present request for advice.
Circumstances of the loss of possession
B.13. The Committee considers the applicant’s argument that the non-Jewish Koenigs wanted to protect his collection from confiscation by the Nazis through its transfer to a ‘Jewish’ bank to be highly improbable. On the other hand, the Committee believes—on the grounds of statements in surviving correspondence—it is likely (see also considerations A.10, A.11, A.12 and A.17) that starting in 1939 Koenigs and L&R jointly made efforts to have Museum Boymans permanently house the collection in its entirety.
B.14. It is no longer possible to establish which considerations lay behind Koenigs’s transfer of the ownership of his collection of drawings and paintings to L&R on 2 Aril 1940, as specified in the agreement of 1 June 1935, in return for being discharged from his debt to L&R, as well as the ultimate sale on 9 April 1940 by L&R of the drawing collection and twelve paintings to Van Beuningen. It is clear, though, that the said transactions took place before 10 May 1940. At that point the Nazi regime was not established in the Netherlands, and this makes a connection between the transfer of the collection and Koenigs being specifically threatened or coerced by the Nazi regime insufficiently plausible.
B.15. Thanks to his good relations with L&R’s management, Koenigs remained involved in the negotiations after the transfer of the collection on 2 April 1940 and he apparently assumed, as later proved to be justified, that the bank would respect his wish for the collection to be made available to Museum Boymans. The fact that Koenigs donated a further two drawings, by Carpaccio, to the museum on 17 April 1940 as a gesture demonstrates that Koenigs was pleased that, as he was then assuming, the collection would remain intact and that Van Beuningen was also expected to leave it in Museum Boymans under the name Koenigs, as a donation or a loan. The comments by the board of L&R also reveal satisfaction with the transaction and the conditions under which they assumed it had been executed. This all indicates there was no involuntary loss of possession as referred to in consideration B.4.
B.16. It must have been clear to everyone involved that Koenigs was assuming that the drawing collection would remain intact and that Van Beuningen was also expected to leave it in Museum Boymans under the name of the Koenigs Collection, as a donation or a loan. The Committee also thinks it is reasonable to assume that Van Beuningen’s resale for Hitler’s art collection eight months after he had acquired the collection from L&R was contrary to Koenigs’s cherished integrity of the collection that he had built up with such care, and was at the expense of Museum Boymans and Dutch national art treasures. The Committee furthermore considers it likely that this resale was extremely profitable for Van Beuningen personally, thanks in part to the concessions made by Koenigs and L&R. All such was contrary to Koenigs’s wishes and the hopes that were raised in him (see also consideration A.18). Yet this course of events does not lead to the conclusion that there was involuntary loss of possession as referred to in consideration B.4.
B.17. Yet the applicant contends there was ‘crafty teamwork by Van Beuningen, Hannema and Posse’ with the aim that L&R would sell the Koenigs collection at a very low price to Van Beuningen (and not to Museum Boymans), after which Van Beuningen could sell and supply part of it to Posse/Hitler at a price that was higher than what he paid for the entire collection. The applicant also asserts that Van Beuningen made an agreement with Hitler’s representative, Dr H. Posse, to make the collection safe for Hitler and to obstruct Koenigs from exporting it. Hannema and Van Beuningen then conspired to swindle Koenigs out of his collection and used the threat of a German invasion as a means of coercion. In this connection the applicant argues that the museum’s board of trustees would have known as early as 1939 that the collection would leave the museum the following year, that ‘Jews are involved here’, and that in the opinion of financier Van Beuningen and Boymans director Hannema it was being ‘purchased from Jews’.
B.18. The Committee considers that not all the facts put forward in this respect have been made sufficiently plausible. Even if the accuracy of this line of reasoning were to be accepted, it would not lead to restitution. According to the applicant all this should lead to the conclusion that there was involuntary loss of possession due to circumstances directly related to the Nazi regime. Contrary to what the applicant apparently assumes, the mere fact that these events are said to have taken place at a time when a German invasion threatened does not justify the conclusion that a direct link existed between a specific threat or coercion from the Nazi regime and the loss of possession by Koenigs (cf. consideration B.4). It has furthermore not become plausible that Van Beuningen, Hannema and Posse were involved in Koenigs giving his collection in payment to L&R. Van Beuningen acquired the collection from L&R, and so it is not possible to accept the assertion that the facts and circumstances relating to this transaction can have implications in respect of Koenigs.
B.19. There is no evidence that Koenigs’s descendants submitted an application for restitution after the war with regard to all or parts of the drawing collection discussed here. In this context the Committee considers it significant that the legal advice sought after the war, as referred to in consideration A.18, was not concerned with restitution of the collection to his heirs but clearly with the desire to hold Van Beuningen to account for failing to fulfil his ‘promise to preserve the Koenigs collection and to continue the loan to Boymans Museum’ as a consequence of the resale of part of the collection to Posse.
B.20. The Committee consequently takes the view that Koenigs did not lose possession of the artworks being claimed here as a result of circumstances directly connected with the Nazi regime.
