Recommendation

In a letter dated 23 October 2006, the Minister for Education, Culture and Science (OCW) asked the Restitutions Committee to issue a recommendation regarding a decision to be taken on the application submitted on 6 September 2006 by M.M. from N. (hereafter referred to as ‘applicant’) for the restitution of twelve paintings from the Dutch National Art Collection that formerly belonged to his father, Marcus de Vries (hereafter referred to as De Vries). This concerns the following works:

NK 1756: G. Lundens: Interior of an inn with hunters and other figures
NK 2047: A. Eversen: View in a Dutch town
NK 2059: F.A. Breuhaus de Groot: Farmhouse near a sandy road
NK 2160: A. Schelfhout: Landscape with the ruins of Brederode castle
NK 2251: B.C. Koekkoek: Winter landscape
NK 2256: F. de Momper: Ice skating in a village
NK 2380: J. Ekels I: The Haarlemmersluis and the Haringpakkerstoren in Amsterdam
NK 2508: F. de Braekeleer I, A farmyard
NK 2727: J.H. Steen: Fortune teller
NK 2933: K. Dujardin: Horse and two cows in a hilly landscape
NK 3072: Anonymous: Italian landscape in the evening
NK 3303: H. van Streek: Interior of the Oude Kerk in Amsterdam

These paintings have been part of the Netherlands Art Property collection (hereafter referred to as ‘NK collection’) since they were returned to the Netherlands after the Second World War and can now be found in various Dutch museums and government institutions.

General considerations

a) The Committee has drawn up its opinion with due regard for the relevant (lines of) policy issued by the Ekkart Committee and the government.

b) The Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in subsequent cases. The Committee resolved that such influence cannot be accepted, save in cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.

c) The Committee then asked itself how to deal with the circumstance that certain facts can no longer be ascertained, that certain information has been lost or has not been recovered, or that evidence can no longer be otherwise compiled. On this issue, the Committee believes that if the problems that have arisen can be attributed at least in part to the lapse of time, the associated risk should be borne by the government if the art was privately owned, save in cases where exceptional circumstances apply.

d) The Committee believes that insights and circumstances which, according to generally accepted views, have evidently changed since the Second World War should be granted the status of new facts.

e) It is highly probable that loss of possession was involuntary if the object was sold without the art dealer’s consent and by ‘Verwalters’ [Nazi-appointed caretakers who took over management of firms owned by Jews] or other custodians not appointed by the owner of items from the old trading stock under their custodianship, in so far as the original owner or his heirs did not receive all the profits of the transaction, or in so far as the owner did not expressly waive his rights after the war.

Special considerations

1. M.M. requests the restitution of the above-mentioned paintings from the Dutch National Art Collection in his capacity as entitled party, following the transfer by the rightful heir of Marcus de Vries of his rights and claims to the works of art in question. As to the capacity in which he is currently acting, the applicant states in his restitution application dated 6 September 2006:‘I would like to hereby declare that I am acting in the capacity as entitled party, following the transfer to me by Mr Y.Y. of his rights and claims to the works of art in question. Mr Y.Y. recently made a written statement of his wish to confer to me his rights to the works of art from the Dutch National Art Collection, which include the above-mentioned works. (…) A short explanation is in order. As far as is known, Mr Y.Y. is the sole heir to my father. This is because he is the heir to Mrs S. de Vries-Fuchs (wife of M. de Vries) who, in turn, was sole heir to M. de Vries. However, Mr Y.Y. decided to confer his entitlement to the works of art from the Dutch National Art Collection to me, as the son of the original owner’.The Committee took cognisance of a decision by the District Court in Leeuwarden dated 26 November 1931 which shows that De Vries was the applicant’s father but that De Vries did not recognise him as his son. Consequently, the applicant is not an heir to De Vries (see also the recommendation in the RC 1.18 case). The Committee also took cognisance of the Swiss will of Solvejg Fuchs, De Vries’ wife, dated 17 October 1980, in which she names Y.Y. as her sole heir, as well as a letter from Y.Y. dated 9 May 2006, addressed to the Committee, in which he confirms that he confers his entitlement to the works of art from the former Marcus de Vries estate that are currently in the Dutch National Art Collection to M.M..
2. The relevant facts are listed in the investigatory report dated 1 October 2007. The following summary will suffice for present purposes. The Jewish merchant Marcus Frederik de Vries (1897-1942) traded in paintings from the late 1930s and was able to earn a substantial income. The investigation revealed that De Vries was active in the Resistance. He continued to deal in art in the early years of the Second World War and partly used this as a means of generating funds for the resistance movement, one of the purposes being the publication of the resistance newspaper Het Parool. In addition, De Vries’ residence on the Daniël Willinkplein in Amsterdam was a clandestine contact address for the Resistance. On 2 April 1941, De Vries married Solvejg Fuchs (1909-1981), a German-Jewish refugee. The lives of the De Vries-Fuchs became endangered when the occupying forces found out about De Vries’ involvement in the Resistance. In January 1942, the Sicherheitsdienst (SD, Security Service) raided the residence of the married couple when they were out, after which they went into hiding. De Vries was eventually arrested on 9 July 1942 and deported via Westerbork to Auschwitz, where he died on or around 18 July 1942. Solvejg de Vries-Fuchs remained in hiding until the end of the war and survived. She died in Switzerland on 19 May 1981.
3. The applicant stated that most of the claimed works of art had been stolen in 1941 and 1942. The Committee’s further investigation did not reveal when the thefts actually took place nor which works of art were taken, with the exception of NK 3072 as detailed in considerations 11 and 12. However, the investigation did establish that some of the works were sold to a Dutch art dealer (see considerations 5-7).
4. The applicant declares that the claimed works of art were his father’s private property. However, based on the fact that De Vries actively dealt in the Dutch art market until late 1941, as stated in the investigatory report, the Committee is of the opinion that the claim in question (with the exception of NK 3072) should be judged on the basis of the art trade guidelines (Ekkart recommendations 2003). In this context, the Committee believes that in their formulation of the art trade recommendations, the Ekkart Committee, in addition to regular art dealers, expressly took into account occasional traders who, though not established as (official) art dealers, were involved, on one level or another, in the buying and selling of artwork. In the Committee’s opinion, De Vries belongs to this category of trader and the claim, with the exception of NK 3072 for which special circumstances apply, therefore falls under the art trade policy that has the following premise as its basic principle: ‘the art trade’s objective is to sell the trading stock so that the majority of the transactions, even at the Jewish art dealers, were principally carried out in the normal way’. In the Committee’s opinion, taking into account the applicable policy for the art trade, the fact that the proceeds from these sales may have been used for resistance activities cannot, without any further evidence of a direct connection between the Nazi regime and the specific sale, lead to the conclusion that the possession of the works was lost involuntarily.I) NK 1756, NK 3303, NK 2727
5. The Committee considers that in the case of three paintings, independent archival sources have revealed that Marcus de Vries was in possession of the paintings in question at some time during the occupation. This concerns NK 1756, NK 3303 and NK 2727.
6. It is known that the painting NK 2727 belonged to at least five consecutive Dutch owners during the occupation, including De Vries, who bought the work from art dealer P. de Boer in Amsterdam on 26 March 1941. According to the provenance details that are available, the Jan Steen was in the possession of G.B. Lanz in Laren a month later, on 23 or 28 April 1941, after which it ended up with Posse, Hitler’s art collector, via the Kunsthandel Katz art dealer in Dieren. Whether Kunsthandel Katz was the mediator in this last transaction or the (intermediate) owner is uncertain and, for the current investigation, irrelevant. The applicant claimed that his cousin T.L., who died in 1988, told him before she died that this painting, NK 2727, was purported to have been stolen from her uncle De Vries in April 1941. However, due to the short time the painting was in De Vries’ possession and the lack of evidence concerning the stolen object – other than the applicant’s second-hand statements – the Committee is of the opinion that it is insufficiently probable that it is a case of involuntary loss of possession as a consequence of circumstances directly associated with the Nazi regime.
7. It is known that the works NK 3303 and NK 1756 belonged to De Vries in 1941 and that he sold them on 22 January and 24 September 1941, respectively, to the art dealership Gebroeders Douwes in Amsterdam. The Committee deems that under these circumstances, this was a normal trading transaction.II: NK 2380, NK 2508, NK 2933, NK 2047, NK 2059, NK 2160, NK 2251
8. As regards the seven paintings grouped here under category II, the Committee is of the opinion that it is not very likely that these works were (still) in De Vries’ possession during the occupation and that they were involuntarily taken from him. The evidence that these paintings belonged to De Vries is based on sources that the Committee finds to be insufficiently substantiated on their own and without corroboration from independent or authentic source materials. This evidence comprises either a mention in the notebook (NK 2059, NK 2251), the applicant’s recollections of the painting in question (NK 2933, NK 2160), or a combination of a mention in the notebook and the applicant’s recollections (NK 2380 and NK 2508), where, in the last case (NK 2508), the notebook and the recollections reveal contradicting information. In this respect, the Committee considers that the notebook (at any rate numbers 1-12) cannot be seen as much more than a list of works that were in the possession of De Vries at some point in time, and that they are second-hand entries, made by someone other than De Vries. Therefore, the notebook cannot be considered a list of works that De Vries lost involuntarily.
9. If, based on the applicant’s distinct recognition of several works in this category, the Committee were to be of a different opinion to that stated in 8, and were to accept that these works were (still) in De Vries’ possession during the occupation, and, accordingly were to consider the involuntary nature of the loss of possession, the Committee considers there to be insufficient evidence to this effect. Even after further investigation by the Committee, it is still unknown how De Vries lost these seven paintings. The Committee assumes that the applicant is basing his memories on his last visit from his then home in Friesland (see also RC 1.18) to his father in Amsterdam as a nine- or ten-year-old in the summer of 1939. Therefore, the Committee concludes that regarding the works that the applicant’s remembers (NK 2059, NK 2160, NK 2251 and NK 2933) from 1939 at the latest, there is an undeniable possibility that De Vries’ voluntarily sold these paintings for the purposes of his trade after that date and before going into hiding. In respect of second-hand statements made on behalf of the applicant that works were stolen from the De Vries residence during the war, the Committee considers there to be no concrete evidence.
10. Based on the above, the Committee concludes that the current information is insufficient and that if no further information is available, there are insufficient grounds for granting the application for the restitution of NK 2059, NK 2160, NK 2251, NK 2380, NK 2508 and NK 2933.Category III: NK 3072
11. Based on new information, the applicant requests that the Committee revise its opinion on the application for the restitution of NK 3072, Italian landscape in the evening (Anonymous, formerly attributed to Govaerts), as stated in the Committee recommendation dated 18 May 2004 (regarding case RC 1.18).
12. This earlier recommendation regarding case RC 1.18 reveals that in a postcard from Camp Westerbork, De Vries bestowed five paintings from his estate on his son M.M.. For the circumstances surrounding this gift, which the Committee considers to be legally valid, the Committee refers to considerations 8-10 in its recommendation dated 18 May 2004. This recommendation states that, due to circumstances at the time, the applicant never received the paintings given to him by De Vries since, when the postcard was received during the war, the paintings mentioned had already disappeared from the De Vries residence on the Daniël Willinkplein, possibly as result of theft after his arrest (see considerations 1-4 in the recommendation RC 1.18).The Committee considered in its recommendation of 18 May 2004 that three of the paintings referred to on the postcard could be identified as works claimed by the applicant in RC 1.18 (NK 2389, NK 2394 and NK 2526), given the facts that these works appeared on the Amsterdam art market in the period following De Vries’ arrest, that the applicant had positively identified these works before the Origins Unknown Agency, and that the descriptions on the postcard provided sufficient points of similarity from an art-historical perspective. In respect of the application for the restitution of NK 3072, the Committee deems that there is currently insufficient research data available to corroborate that this work (in the Dutch National Art Collection entitled Italian landscape in the evening, Anonymous, previously attributed to Govaerts) is the same as the one described on the postcard as ‘Abram Govaerts, Italian Mountains’. The Committee based the opinion in its recommendation on the fact that the description on the postcard is too unclear to be able to identify NK 3072 as a work that belonged to De Vries, and all the more because, unlike the three other works that the applicant could positively identify, including particular details, the applicant failed to identify NK 3072, stating the following with regard to the painting: ‘As to the fourth painting (Govaerts), I can only remember that such a painting was hanging at my father’s house, but I cannot remember it distinctly’. On 18 May 2004, the Committee decided that the application for the restitution of NK 3072 could not be allowed without further evidence.
13. The applicant is now substantiating his renewed claim for NK 3072 by referring to the (aforementioned) notebook, which he saw for the first time in 2006, in which the painting appears in the first handwriting style as ‘Abram Govaerts / Italian mountains in the evening/ Kats Dieren’. Based on this information, the Committee asked Prof R.E.O. Ekkart, managing director of the Netherlands Institute for Art History, for art-historical advice. His conclusion, based on the description in the notebook, is that he deems it much more likely that NK 3072 is the same as the painting mentioned on the postcard due to the detailed description in the notebook.
14. In connection with the circumstances surrounding the above-mentioned bestowal, which proves that the work was De Vries’ personal gift to M.M. and in reference to the recommendation of 18 May 2004, the Committee considers that NK 3072, as opposed to the other works of art in the recommendation in question, should not be seen as trading stock but as private property. Based on the less rigid stipulations as regards evidence that applies to the private possession of art under the restitution policy, the Committee is of the opinion that this new information makes it sufficiently probable that NK 3072 belonged to De Vries and that the work was lost involuntarily and as a consequence of the Nazi regime.