Assessment framework

In the decision of 4 July 2012, the State Secretary for OCW revised the terms of reference of the Restitutions Committee in article 2 of the Decree establishing the Restitutions Committee. This change was published in the Government Gazette on 18 July 2012 and came into effect on 19 July 2012. According to article II of this revision, applications submitted before 19 July 2012 under article 2, paragraph 1, as is the case with this application, should be dealt with in accordance with the Decree establishing the Restitutions Committee as it read before 19 July 2012.

Given that the currently claimed object belongs to the group of works of art affected by the above revision, i.e. Netherlands Art Property Collection artworks that are not in the national collection but were submitted before the effective date of the revision (21 March 2012), the Committee’s recommendation is based on article 2, paragraphs 1 to 4 of the Decree establishing the Restitutions Committee as it read before 19 July 2012. As a result, the Committee’s recommendation should consider the wider restitution policy based on the recommendations of the Ekkart Committee.

Considerations

1. The applicants seek restitution of a 16th-century tapestry depicting Chastity with two putti. The tapestry is part of the Netherlands national collection under inventory number BK-1955-98. The applicants claim that they are the heirs of Rosa and Jakob Oppenheimer, who were said to have been bequeathed shares in the German Margraf Group by Albert Loeske, the founder of the group. In this regard, the Committee has taken cognisance of legal inheritance documents sent by the applicants, based on which the Committee sees no reason to doubt the applicants’ status as Rosa and Jakob Oppenheimer’s heirs.
2. The pertinent facts are outlined in the adopted investigatory report. The following is a summary. In 1912, Albert Loeske set up the company Margraf & Co. GmbH in Berlin, a company concentrating on the trade in jewellery and gold. In the following years, Loeske expanded the Margraf Group with various subsidiary companies including the art dealerships Van Diemen & Co. GmbH, Dr. Benedict & Co. GmbH, Dr. Burchard & Co. GmbH, as well as the antiques business Altkunst & Co. GmbH. These companies were managed on behalf of Loeske by Jakob Oppenheimer, a Jewish art dealer, and his wife Rosa Oppenheimer-Silberstein. By the time of Loeske’s death in 1929, the said dealerships had grown into reputable businesses. Loeske left his shares in the companies to the Oppenheimers. However, settlement of Loeske’s estate was delayed because of a lengthy legal battle that was not decided until just before the Nazis seized power in 1933.
3. Early on in the Nazi regime in 1933, the Nazi authorities started targeting the Margraf Group, which they considered an exponent of the ‘international Jewish jewellery and art trade’. On 1 April 1933, the Nazi authorities tried to intern Jakob and Rosa Oppenheimer, but the couple avoided this fate by fleeing to France.Due to these developments, the shares in the Margraf Group were never made out in their names. Following Loeske’s death, the shares had been pledged to the Tiergarten tax office as security for payment of inheritance tax on Loeske’s estate. After this tax debt had been paid in 1937, the Nazi authorities were only prepared to release the shares on condition that they were transferred to a Jewish woman, Rosa Beer, who, forced by the authorities, acquiesced. She was heir to Loeske’s other assets and still lived in Germany. This measure enabled the Nazis to keep control of these assets. Jakob Oppenheimer died in France in 1941. Rosa Oppenheimer-Silberstein was deported by the Nazis and perished in Auschwitz in 1943. Their three children survived the war.According to a decision taken by the Landgericht Berlin [Berlin District Court] on 2 December 1933, Jakob Oppenheimer was forbidden to perform any legal acts for the various companies of the Margraf Group. Bolko Freiherr von Richthofen, a good acquaintance of Hermann Göring, was appointed administrator of the group. As of 1938, Von Richthofen acted as liquidator for these companies. With a view to the winding-up of the Margraf Group, the subsidiaries’ stocks were capitalised at eight or more sales under execution. According to the applicants, these were forced sales, known at the time as Judenauktionen.
4. The claimed object, a fragment of a tapestry depicting Chastity with two putti, used to be part of a larger image. The tapestry is shown in an edition of the magazine Pantheon from 1928 as part of an advertisement for the ‘Abteilung Antiquitäten’ of the Margraf Group. The tapestry is also shown in an edition of Weltkunst of 5 October 1930 with the caption: ‘In the possession of Margraf & Co., Berlin’. Finally, the tapestry was also listed in an auction catalogue entitled ‘Die Bestände der Berliner Firmen / Galerie Van Diemen & Co /GMBH / Altkunst / Antiquitäten / GMBH / Dr. Otto Burchard & Co / GMBH / sämtlich in Liquidation’. [The inventory of the Berlin companies Galerie Van Diemen & Co/ GmbH / Altkunst/Antiquitäten/ GmbH / Dr. Otto Burchard & Co/ GmbH, all in liquidation]. According to this catalogue, the currently claimed tapestry was part of the trading stock of the above-mentioned companies that was auctioned at Paul Graupe auction house in Berlin on 25 and 26 January 1935. The tapestry is listed as lot number 513 with an illustration and a detailed description. Whether the tapestry was sold at the auction is uncertain. The identity of the buyer, if any, is unknown, as is the fate of the tapestry between 1935 and 1955. Information received from the RMA shows that the museum bought the claimed tapestry on 23 March 1955 together with another object from ‘the art dealer G. Choulet of Brussels’ for a total of NLG 5,539.97. The object has been part of the Dutch National Art Collection ever since.
5. During the Committee’s investigation, no evidence was found of post-war correspondence between the Dutch authorities/the RMA and the Oppenheimer heirs and/or (a subsidiary of) the Margraf Group concerning the currently claimed tapestry. There are no indications that the parties concerned were aware at the time of the fact that the claimed object had been part of the Dutch national art collection since 1955. However, documentation from the German Entschädigungsamt does show that a claim for damages to the amount of RM 500,000 was filed in 1956 on behalf of Firma Galerie Van Diemen & Co. GmbH (in liquidation) because of financial losses due to selling of paintings at knock-down prices.  On 13 June 1957 this firm was awarded damages of DM 75,000 (the maximum amount) for financial losses.Assessment of the claim:
6. Given the considerations above under ‘Assessment framework’ and pursuant to current national policy in respect of the restitution of items of cultural value from the national collection, restitution can only be recommended if the title to the item can be proven with a high degree of probability and loss of possession of the claimed item was involuntary as a result of circumstances directly related to the Nazi regime.
7. The investigation of the title to the currently claimed tapestry has shown that the object was part of the trading stock of one of the companies Galerie Van Diemen & Co GmbH, Altkunst Antiquitäten GmbH and Dr. Otto Burchard & Co GmbH, all in liquidation, whose trading stocks were all auctioned at Paul Graupe auction house in Berlin on 25 and 26 January 1935. The Committee then tried to establish whether this work of art was part of the old trading stock (acquired by the owner) or the new trading stock (acquired by Von Richthofen). No acquisition date was found during the investigation, but given the 1928 listing in Pantheon and the 1930 listing in Weltkunst as referred to in consideration 5, the Committee thinks it is highly probable that the tapestry was part of the old trading stock.
8. The Committee then investigated whether there are indications to prove to a high degree of probability that loss of possession in this case was involuntary, as referred to in the Recommendations for Art Dealerships 4 and 6 by the Ekkart Committee. The required high degree of probability can be assumed if the applicants have proof of theft, confiscation or forced sale. According to the Committee, the applicants provided sufficient proof that the tapestry was contributed to an auction enforced by the Nazi authorities to apply anti-Jewish measures. The Committee deems it highly probable that the art dealership lost possession of the tapestry at this auction or on a subsequent occasion and that this loss was involuntary due to circumstances directly related to the Nazi regime.
9. The Committee then investigated the question of whether the Oppenheimer couple received the proceeds from the sales under execution. The investigation did not reveal any evidence that they did. Given the nature and purpose of this auction and considering all the circumstances mentioned above, particularly the Oppenheimers’ escape in 1933, the Committee deems it highly unlikely that the couple ever received any auction proceeds. The Committee therefore believes that the sales proceeds from the sale under execution need not be considered.
10. As regards the compensation for losses paid by the German authorities in 1957 (consideration 6), the Committee considers the following. Even if it were possible to ascertain which part of the damages paid relates to the currently claimed tapestry, any payment of this amount is a matter between the Oppenheimer heirs and the German state.