1. The dispute

The Museum declared that the painting Madonna and Child with Wild Roses (c.1530) by the artist Jan van Scorel, which is part of its collection, is the property of Utrecht City Council and has been in the custody of the Museum since 1958. The Applicants contend that the Jewish businessman Richard Semmel (1875-1950, hereinafter also referred to as Semmel) of Berlin owned the painting until November 1933. They declare they are the heirs of Richard Semmel and they claim the restitution of the work of art on the grounds of their contention that there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime. The parties submitted a joint request to the State Secretary for Education, Culture and Science (hereinafter also referred to as the State Secretary) in order to submit the applicants’ claim to the Committee for a binding opinion.

3. The facts

In this procedure the Committee has based its considerations on the following facts.

3.1. Richard Semmel was born on 15 September 1875 in Zobten am Berge. It was part of Germany at the time and it is currently called Sobótka and is in Poland. He was a wealthy Jewish German businessman and art collector. When the Nazis came to power in Germany in 1933, he was the owner of the textiles factory Arthur Samulon in Berlin and he lived with his wife Clara Cäcilie Brück in that city in a big house, which contained the substantial art collection he had built up. The couple was childless. The Applicants contended that their grandparents in Berlin were close friends of the Semmels and that this friendship went back to the period when both families were still living in Zobten am Berge. On 27 June 2002, F.F. —the Applicants’ mother— gave evidence as a witness in the context of restoration of rights procedures in regard to Semmel’s wealth. In it she stated that as a child she had often gone with her parents to visit Semmel in his big house in Berlin.

3.2. Semmel was subjected to the consequences of the anti-Jewish climate in Germany shortly after the Nazis seized power in 1933. According to the Applicants he was immediately put under such great pressure by the Nazis that he fled the country in April 1933. Semmel wrote the following in a post-war statement about his persecution during the Nazi regime.

‘Im Anschluß hieran will ich noch sagen, daß der Inhalt der Schreiben von Peck u. Gross nur zum kleinen Teil zeigen, was ich durch den Beginn der Hitler-Zeit zu leiden hatte. Ich wurde buchstäblich Tag und Nacht mit Drohungen telefonisch und schriftlich bombardiert, unflätige Zettel kamen täglich in meine Wohnung, es war eine von der Nazipartei organisierte Hetze mit Hilfe der aufgepeitschten Angestellten. Obgleich ich immer Demokrat war, hat man behauptet, ich konspiriere mit Severing u. Braun, weil Severing mal in meinem Kontor war und u. um Beisteuerung für einen Jugendbund bat, dessen Name mir entfallen ist. Man behauptete, ich hätte nicht nur mein Haus, auch Waren vom Geschäft ins Ausland verschoben. Ich war gerade geschäftlich in St. Gallen, als die Hitler-Katastrophe hereinbrach, sofort kam ich zurück, wurde schon auf dem Bahnhof bei der Ankunft gewarnt, in meine Wohnung zu gehen, so daß ich ein Zimmer in dem Hotel in der Fasanenstr. nahm. Wie richtig diese Maßnahme war, sollte sich bald zeigen, denn im Geschäft spielten sich die Vertrauensleute der Nazis als Herren auf und es kam so weit, daß ich, wie schon gesagt, im letzten Moment nach Holland entkam’.

According to the Applicants, Semmel’s persecution during this early stage of the Nazi regime was related to his involvement with the Deutsche Demokratische Partei (German Democratic Party), but above all because he was a Jewish owner of a large textiles factory in Berlin. The intention of the Nazi authorities to control and aryanize the textiles industry would have made Semmel, who was a leading figure in this sector, an important target. The Applicants stated that Semmel had sustained losses during the economic crisis of the nineteen-thirties and his commitments included financial obligations that pre-dated the Nazi regime. Yet according to the Applicants his enterprise was sufficiently healthy to survive these difficulties were it not for the anti-Jewish economic policies of the National Socialists. The Applicants stated that the boycott of Jewish shops and businesses organized on 1 April 1933, the interference in the business by a Treuhänder der Arbeit (Trustee of Labour) appointed by the Nazi authorities, and the financial measures taken by the Deutsche Bank and the Dresdner Bank under the influence of the Nazi regime ultimately resulted in Semmel losing his company and his wealth.

Semmel moved to the Netherlands after his flight from Germany in 1933. He subsequently left the Netherlands in 1939 and finally settled in New York in 1941. It can be deduced from various sources that Semmel had to pay Reichsfluchtsteuer (Reich Flight Tax) in order to get out of Germany. The Applicants reported that Semmel also paid Judenvermögensabgabe—a tax on registered Jewish assets—to the Nazi authorities.

Semmel put part of his art collection in a sale that was held on 21 November 1933 at Frederik Muller & Cie. in Amsterdam. The painting that is now being claimed was one of the works of art in that sale. It can be deduced from documentation that was prepared in regard to a restoration of rights procedure of F.F. in Germany in the nineteen-nineties that Semmel used the proceeds from the auctioned works of art to live on, to continue to fulfil various financial commitments in Germany pre-dating the Nazi regime, and to try to retain his assets in Germany. There is no detailed information about when and how these works of art from the Semmel collection were brought to the Netherlands.

3.3. In her evidence referred to above in 3.1, F.F. stated that she emigrated to South Africa in 1937, while her mother Grete Gross-Eisenstädt (the Applicants’ grandmother) fled to Cuba in 1939, and settled in New York two years later. When in New York, Grete Gross-Eisenstädt re-established contact with Mr and Mrs Semmel, who were living there in destitute circumstances. Grete Gross-Eisenstädt was said to have looked after Semmel, who was in extremely bad health, on a daily basis after the death of his wife in 1945. According to F.F., Semmel made her mother his only heir out of gratitude for the way she had cared for him. As evidence for this there is a certificate of inheritance dated 16 September 1997 in the Committee’s file. Semmel died in New York on 2 December 1950. Grete Gross-Eisenstädt died in New York on 22 January 1958.

3.4. The collection catalogue De verzamelingen van het Centraal Museum Utrecht. 5. Schilderkunst tot 1850 by L.M. Helmus published in 1999 has an overview of the provenance of the work of art now being claimed. The information in this overview includes the following owners: Art trade, New York (1921) / The Erich Collections gallery, New York (1925) / H. Wendland collection, Lugano (1925) / P. de Boer gallery, Amsterdam (1926) / R. Semmel collection, Berlin (1926-1933). The fact that the painting was part of the Semmel collection is also reported in various other art history sources. An example is an article by the Dutch art historian G.J. Hoogewerff in the art magazine Oud-Holland in 1929. The picture is depicted with the caption ‘R. Semmel collection in Berlin’ and there is a comment that the work ‘Was purchased some time ago…by Mr R. Semmel of Berlin through the…P. de Boer gallery in Amsterdam.’ In a study by Hoogewerff dating from 1941-1942, entitled De Noord-Nederlandsche Schilderkunst, it was reported that ‘After attracting attention at the P. de Boer gallery in Amsterdam in 1927…this painting consequently became part of the collection of R. Semmel in Berlin….’ In a catalogue published by the Museum about a Van Scorel retrospective in 1955, the provenance includes ‘P. de Boer, Amsterdam, 1926; R. Semmel, Berlin’. It is stated in a 1996 letter from the Museum to a relative of the Semmels who had approached the Museum in connection with the Semmel provenance that ‘the Peter de Boer Foundation Amsterdam…told us, among other things, that this painting was sold in 1926 by the former art dealer P. de Boer to R. Semmel in Berlin.’ In 1929 the painting was on view in an exhibition of Old Master paintings in the Rijksmuseum in Amsterdam. The catalogue identified ‘P. de Boer, Amsterdam’ as the painting’s exhibitor and ‘R. Semmel, Berlin’ as the owner. The catalogue stated that the work was not for sale. In 1930 P. Wescher published an article in the art magazine Pantheon about the paintings in the Semmel collection. Among the items in the Semmel collection that were referred to was a ‘Halbfigurenmadonna von Scorel’ (without illustration). As emerges from the detailed description of the work concerned, in all probability this is the painting currently being claimed. A description of the painting Maria mit dem Kind by Jan van Scorel in a collection catalogue published by the Kaiser-Friedrich-Museum in Berlin in 1931 refers to ‘Wiederholungen unseres Bildes’, including ‘in der Slg. Semmel, Berlin’.

The present painting was put in a sale that took place between 21 and 24 November 1933 at Frederik Muller & Cie. in Amsterdam. According to information from the RKD (Netherlands Institute for Art History), two catalogues and two supplement catalogues were produced for this sale. The work is referred to in a catalogue of Old Master paintings ‘provenant de diverses collections privées’, which went under the hammer on 21 November (lot number and illustration 57). There is a reference in the painting’s entry in the catalogue to the 1929 Rijksmuseum exhibition. Below the entry ‘provenant de diverses collections privées’ there is a handwritten note ‘(including R. Semmel of Berlin)’ on the cover and the title page of a copy of the sale catalogue in the RKD. It is not known which of the individual paintings referred to in the catalogue this comment relates to. The present picture probably fetched a price of 3,100 guilders in the auction. This can be deduced from an article in the 24 December 1933 issue of the art magazine Weltkunst and from notes in the copies of the catalogue in the Amsterdam University Library and the Rijksmuseum in Amsterdam. It is not known who bought the work.

The 1999 Helmus collection catalogue lists the following owners in its overview of the provenance of the present painting during the period from the sale concerned to the acquisition by the Museum: ‘Schaeffer Galleries, New York (1937-1938) / E. Schwartz collection, New York (1944-1955) / Newhouse gallery, New York (1958) / P. de Boer gallery, Amsterdam (1958)….’ In response to a request by the Committee for information, the P. de Boer gallery said that it has an inventory card about the painting on which, among other things, the following is written: ‘October 1958 on consignment Newhouse NY….’ The RKD has a postcard of the present painting with the name ‘F. Mont gallery, New York, no. 16128’ and the note ‘photograph received from the gallery 1960’. It is not known whether and when the claimed painting was present in the gallery concerned because it is not stated in the work’s provenance given in the 1999 Helmus catalogue.

The Committee did research on the back of the claimed painting but found no further provenance information.

3.5. Utrecht City Council purchased the claimed painting in 1958 with support from the Vereniging Rembrandt for 92,000 guilders from the P. de Boer gallery for the Centraal Museum. According to information from the Director of the Centraal Museum, this institution has looked after the work since then, initially as a municipal museum and since 1 January 2013 as a foundation. According to a statement by the Museum, the acquisition was financed by means of a sum from the Museum’s own budget of 22,000 guilders, an interest free advance from the Vereniging Rembrandt of 50,000 guilders and, in part exchange, the painting Portrait of a woman with her son and daughter (1635) by the artist Thomas de Keyser. This information is consistent with the communication from the P. de Boer gallery to the Committee that the notes on the 1958 inventory card of the claimed painting include ‘December 1958 Utrecht 72,000 guilders + Thomas de Keyser’.

3.6. No indications were found during the Committee’s investigation that Semmel or the people entitled to his inheritance made efforts after the war to regain possession of the work of art now being claimed or to obtain compensation for the loss of its possession. There is no reference to the present painting in the archive of the lawyer Benno J. Stokvis, the representative of Semmel and then Grete Gross-Eisenstädt in the Netherlands. This archive is in the Amsterdam City Archives. This archive does, though, contain references to a number of other works of art from the Semmel collection. These works include items that were surrendered during the occupation of the Netherlands (1940-1945) to the German ‘robber bank’ Lippmann, Rosenthal & Co., Sarphatistraat, Amsterdam, for which Semmel sought restitution of rights after the war.

5. The museum’s point of view

5.1. The Museum stated that it leaves the assessment of the nature of the loss of possession by Semmel to the Committee and does not want to take a position on it. The Museum contended it purchased the claimed painting in 1958 in good faith from a reputable gallery and since then this work of art has been treated with the greatest care. For instance, the Museum had the painting restored, and analyses and research were done on its materials. There have also been many publications about this work. In this regard the Museum stressed that it has always been open about the painting’s provenance, and the name of Semmel has frequently been referred to as one of the owners. The Museum also pointed out that the investigations, the publications and the exhibitions that have put the spotlight on the work of Van Scorel have contributed to the increase in the value of the present painting.

5.2. The Museum submitted documentation showing that the painter Jan van Scorel (1495, Schoorl-1562, Utrecht) is an important figure in the history of Dutch art. His work was of great significance to the development of the Utrecht school. Van Scorel was apprenticed in Amsterdam, after which he settled in Utrecht in 1517. In 1523 in Rome he was appointed by Pope Adrian VI, who was also from Utrecht, as curator of the Vatican’s art treasures. While in Rome, Van Scorel learned about the art of the Italian Renaissance, which had a lasting effect on his work. After he returned home in 1524, Van Scorel disseminated the Renaissance style throughout the Northern Netherlands. He died in 1562. Since then there has been ongoing interest in him as a person and in his work. This is particularly so in Utrecht. In this context the Museum pointed out that it is the custodian of the largest number of paintings by Van Scorel in the world and so far it has staged four exhibitions—in 1955, 1977, 2000 and 2009—devoted exclusively to the artist.

5.3. The Museum also declared that the painting Madonna and Child with Wild Roses is of great importance to its collection. Since its foundation the Museum has concentrated on bringing together as complete an overview as possible of Utrecht painting, particularly from the sixteenth and seventeenth centuries. The painting currently being claimed was selected in the 1999 collection catalogue Schilderkunst tot 1850 as one of the Museum’s masterpieces. The picture is part of the Museum’s permanent exhibition and is a defining element in the collection of Old Master paintings. According to the Director, handing back this work of art would represent a great loss to the Museum and the City of Utrecht.

5.4. The Museum furthermore declared that, if the claim were to be allowed, it would like to establish contact with the Applicants in order to investigate whether it is possible to keep the work for the Museum, and that the Museum has an open mind in regard to alternative suggestions.

7. Assessment of the dispute

7.1. The Committee has satisfied itself that the dispute between the Applicants and the Museum has not previously been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the current dispute. Neither have the Applicants previously expressly relinquished their rights to the painting. The Committee considers the parties and their request to be admissible.

7.2. The Applicants have no family ties with Semmel, the original owner, and contend they are entitled to Richard Semmel’s inheritance as a consequence of the fact that their grandmother Grete Gross-Eisenstädt was named by Semmel in a will as sole heir.
It emerged during the procedure that in the nineteen-nineties a relative of Mr and Mrs Semmel tried to contest the claims of F.F., the Applicants’ mother, to Semmel’s inheritance. The Committee asked the Applicants a number of questions as a result of this. These questions were satisfactorily answered by the submission of three certificates of inheritance relating to the estates of Richard Semmel (dated 16 September 1997), Grete Gross-Eisenstädt (dated 1 June1993) and F.F. (dated 13 January 2011). The Committee concludes that the Applicants are now the only ones entitled to Richard Semmel’s estate.

7.3 With regard to the issue of identifying the work as the former property of Semmel, the Committee finds that the painting Madonna and Child with Wild Roses was the property of Richard Semmel during the period from 1926/1927 to 1933. In regard to this the Committee refers to the following indications (see also 3.4):

• the Museum’s collection catalogue, entitled De verzamelingen van het Centraal Museum Utrecht. 5. Schilderkunst tot 1850,dating from1999, in which the provenance information about the painting currently being claimed includes the following: ‘P. de Boer gallery, Amsterdam (1926) / R. Semmel collection, Berlin (1926-1933)’;
• a letter sent by the Museum in 1996 to a relative of the Semmels in which it was stated that ‘the Peter de Boer Foundation Amsterdam…told us, among other things, that this painting was sold in 1926 by the former art dealer P. de Boer to R. Semmel in Berlin’;
• the catalogue of the exhibition of Old Master paintings in the Rijksmuseum (1929), in which the owner of the painting is named as ‘R. Semmel, Berlin’;
• an article by the art historian G.J. Hoogewerff in the art magazine Oud-Holland in 1929, in which the picture is depicted with the caption ‘R. Semmel collection in Berlin’ and there is a comment that the work ‘Was purchased some time ago…by Mr R. Semmel of Berlin through the…P. de Boer gallery in Amsterdam’;
• the study by Hoogewerff dating from 1941-1942, entitled De Noord-Nederlandsche Schilderkunst, in which it was reported that ‘After attracting attention at the P. de Boer gallery in Amsterdam in 1927 … this painting consequently became part of the collection of R. Semmel in Berlin…’;
• the article by P. Wescher in Pantheon in 1930 about ‘Die Gemälde der Sammlung Semmel, Berlin’, in which ‘Halbfigurenmadonna von Scorel’ (without illustration) was referred to. As emerges from the detailed description of the work concerned, in all probability this is the painting currently being claimed;
• the collection catalogue of the Kaiser-Friedrich-Museum in Berlin published in 1931, in which there was a reference, by way of comparison to the painting Maria mit dem Kind by Jan van Scorel in the museum, to ‘Wiederholungen unseres Bildes’, including in ‘der Slg. Semmel, Berlin’, and
• the catalogue of the sale on 21 November 1933 at Frederik Muller & Cie., in which the work of art is listed as lot number and illustration 57. The title of this sale catalogue refers to several owners (‘provenant de diverses collections privées’), but the note ‘including R. Semmel of Berlin’ on an annotated version of the catalogue, in combination with the provenance research by the Committee (see below), indicates that in any event Semmel owned a substantial number of the works of art in this sale.

The Applicants contended with regard to this last indication that it can be assumed on the basis of this source that all 71 works referred to in the sale catalogue concerned of 21 November 1933 were Semmel’s property (see 4.2). As a result of this the Committee conducted further research in the RKD on the basis of random sampling into five paintings from this catalogue that are not connected to the current claim. These were works of art about which, based on their quality, detailed provenance information was expected to be found. During the investigation indications were unearthed for three of these works that they were part of the Semmel collection at one time or another. No indications were found in regard to the other two, but neither was anything discovered about their ownership at that time. On the basis of this the Committee concludes that a substantial number but not all of the works came from Semmel. Consequently the correctness of the Applicants’ assertion has not been demonstrated. Nevertheless, the results of the research conducted in this regard can give positive support to the degree of probability of Semmel’s ownership, now that this probability can be deduced from other sources.

7.4. The Committee’s reasoning with regard to the nature of the loss of possession is as follows. It emerged from the research that Semmel’s persecution started at a very early stage of the Nazi regime. The Applicants argued that this was connected with Semmel’s involvement in the German Democratic Party, but above all also with the fact that he was a Jewish owner of a large textiles factory in Berlin. The Committee considers it plausible that the aim of the Nazi authorities to control and aryanize the textiles industry made Semmel an important target, and that the pressure that was put on Semmel personally and on his company by the Nazi regime in connection with this ultimately resulted in the loss of his business and his wealth. In view of the complex of facts, the Committee also considers it plausible that Semmel felt he was compelled to sell his art collection because he was in desperate need of liquid assets. Semmel had to keep his business going, and he also had to have money for him, his family and others who were dependent on him to live on. The Committee therefore concludes that the sale of his paintings at the Frederik Muller & Cie. auction in 1933, although apparently driven by economic factors, cannot be considered in isolation from Semmel’s persecution by the Nazi regime in Germany. The Committee therefore finds that this sale has to be designated as involuntary.

7.5. The Committee finds that under Dutch law, Utrecht City Council became the owner of the painting Madonna and Child with Wild Roses in 1958 as a consequence of the purchase for the Centraal Museum (see 3.5). The Committee has no indication whatsoever that the acquisition of this work was handled negligently.

7.6. The Committee now comes to consideration of the interests of the parties in regard to the return or retention of the painting. The Committee finds with respect to this point as follows.
The interest of the Applicants in the return of the present painting, on the one hand, is ‘getting family history back’, in regard to which the Applicants have referred to the close friendship between their grandmother Grete Gross-Eisenstädt and Mr and Mrs Semmel. The work is linked to them because of the mutually interwoven histories of their own family and the Semmel’s, as shaped by persecution and flight. As Semmel’s heirs, the Applicants consider it furthermore to be just to get back what belongs to them.

On the other hand the Museum has argued that the present painting is very important to the collection and is a defining element in it. In that context the Museum has pointed out the following:

• since its foundation the Museum has concentrated on bringing together as complete an overview as possible of Utrecht painting, for which the oeuvre of the Utrecht painter Van Scorel is crucial;
• the Museum is the custodian of the largest number of paintings by Van Scorel in the world and so far it has staged four exhibitions devoted exclusively to this artist;
• the specific importance of this work arises from the fact that the currently claimed painting is one of the key works in the permanent collection. The work has been described extensively in publications;
•  the Museum has had the present work of art restored twice and has conducted frequent research into it.

Basing its considerations on the yardsticks of justice and fairness, the Committee comes to the conclusion that the interest put forward by the Applicants in regard to the return of the claimed painting does not carry sufficient weight to brush aside the Museum’s property rights to this work. The Applicants are not relatives of Richard Semmel, they never knew him, and they have no recollections of the painting. The fact that the art collection has to have been very important to Richard Semmel is separate from the interest of the work to the Applicants, while in the Committee’s opinion the special friendship between Semmel and their grandmother Grete Gross-Eisenstädt is not embodied in Semmel’s art collection. What is more, there are no indications that Semmel or his heir made any efforts at an earlier stage to get the painting back.
On the other hand the Committee finds that the Museum has convincingly demonstrated that retention of the painting is of great importance to the Museum’s collection and museum-going members of the public.

In view of the above, the Committee finds that the interest of the Applicants, despite the accepted involuntary nature of Semmel’s loss of possession as a direct result of the Nazi regime in Germany, does not outweigh the interest of the Museum. It will advise the parties that the Museum does not have to return the painting Madonna and Child with Wild Roses to the Applicants.

7.7. The Committee links a recommendation to this opinion to the effect that the Museum should draw attention to the history of the former owner Richard Semmel and the fate of his collection by means of a caption to the painting, a publication, an exhibition or in some other way. The Committee leaves it to the Museum to decide in what way to comply with this recommendation.