The Gutmann collection (Gutmann I)

Advice concerning the application for restitution of the Gutmann collection

The Gutmann collection (Gutmann I)

Report number: RC 1.2

Advice type: NK collection

Advice date: 25 March 2002

Period of loss of ownership: 1940-1945

Original owner: Private individual

Location of loss of ownership: The Netherlands

NK 3220 – Double gilt silver goblet (photo: RCE)

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Recommendation

By letter of 24 January 2002 the State Secretary for Education, Culture and Science asked the Committee for advice about the decision to be taken concerning the application for restitution of the art objects in the NK-collection originating from the Gutmann collection.

The facts

In connection with the application for restitution, which was filed at the end of 1999, the Cultural Heritage Ownership Inspectorate (Inspectie Cultuurbezit) carried out an investigation into the facts. The findings of the investigation were included in a research report, dated 27 September 2000, which was sent to the applicant.

General considerations

The Committee has drawn up its opinion with due regard for the relevant lines of policy as issued by the Ekkart Committee and the government, as referred to in the Decree establishing the Advisory Committee on the Assessment of Restitution Applications.

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

The Committee then asked itself how to deal with the circumstance that certain facts can no longer be traced, that certain data has been lost or has not been retrieved, 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, save cases where exceptional circumstances apply.

Finally, 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.

Special considerations

The basis for the Committee’s considerations is formed by the research report mentioned above and Article 2 paragraph 4 of the Decree establishing the Advisory Committee on the Assessment of Restitution Applications, which states that the Committee performs its advisory task with due regard for the relevant government policy as indicated in further detail in the explanatory notes. In the conclusion of the research report, four categories of art objects in the NK collection originating in the Gutmann collection are distinguished. These categories are described below, followed in each case by the Committee’s considerations.

Group 1.
Art objects offered for sale by Mr F.B.E. Gutmann to the Amsterdam art dealer Rosenberg in 1939 and sold, eventually, to Hofer on behalf of Göring (NK 3219-3221) in 1940. No post-war decision on an application for restitution has ever been made regarding these objects. More information must be obtained concerning the circumstances of the sale.

Concerning this matter the Committee considers that, contrary to the statement in the research report, there is no need for further information and that the objects in this category should be returned. In view of the facts and circumstances that have been established and in consideration of the recommendations issued by the Ekkart Committee, there are sufficient indications to assume that the sale was involuntary.

Categories 2 and 3 can be dealt with together. In the research report they are described as follows:

Group 2.
The 7 paintings (NK 3248-3254). These paintings were sold to Böhler/Haberstock in 1942. An application for the restoration of property rights with respect to these paintings was settled after the war. Correspondence shows that in July 1954 the heirs opted to abandon their rights with respect to these 7 paintings. Of the paintings, 2 also appear in “List Z”.

Group 3.
Art objects sold to Böhler/Haberstock in 1941 and 1942 and included in “List Z” (NK 3131-3200, 3227, 3230, 3251 and 3254). After the war, these objects were the subject of court proceedings in which the court gave its judgement on the rights and the conditions for restitution to the heirs. The execution of this judgement eventually resulted in the selection by the heirs from “List Z” between 1954 and 1960.

The Committee made the following considerations concerning this description of categories 2 and 3. The application for the restoration of property rights referred to resulted in a judgement by the Jurisdiction Department of the Raad voor het Rechtsherstel (Council for the Restoration of Property Rights), dated 1 July 1952, a copy of which has been attached to the research report as an appendix. The Council allowed the restoration of property rights and ordered the Stichting Nederlands Kunstbezit (Dutch National Art Collections Foundation) to release the items referred to in the proceedings, but added a reservation to the effect that the purchase price of those items should be refunded to the Foundation. In the grounds for its judgement the Council justified this reservation as follows: “that the Council, in assessing the reasonableness of this intervention, also takes into account that the State, in recovering items originating from private collections and transported to Germany during the occupation, must be deemed to have done so with a view to restoring those items to their original owners, on the understanding that the restitution should not lead to an enrichment of said owners, which entails that they should refund to the State any compensation they might have received”. The Committee is of the opinion that this reservation has become unacceptable in view of the present government policy (also see the general considerations above). In its second recommendation, the Ekkart Committee advised giving a more liberal interpretation to the concept of new facts than has been common policy practice so far, such that the concept also covers deviations from the judgements issued by the Council for the Restoration of Property Rights, as well as the results of changed (historical) insights regarding the justification and consistency of the policy pursued at the time. As regards the sale and restitution of the art objects at issue, new facts have been presented. In view of the special circumstances in which the sales transactions took place, it cannot be assumed that the heirs would be unlawfully enriched by the restitutions if they did not refund the sales proceeds. The particular circumstance that the heirs refrained from repurchasing the art objects at the time or made a conscious selection from the art objects that had been recovered has no decisive influence in the assessment of the claim at issue. The present case cannot be deemed to involve forfeiture of rights, since the mere fact that the owners refrained from repurchasing the objects and made a conscious selection does not constitute forfeiture of rights in itself. Moreover, the situation has changed since then because, at the time, objects could not be restituted unless an amount of money was paid in return. This lends additional poignancy to the case and in this connection the Committee believes it is significant that the aforementioned report considers the financial problems of the heirs to be plausible. Consequently, these art objects must be returned without the need for any further investigation.

Group 4.
The last category comprises 12 NK numbers (NK 3203 – 3212, 3231 and 3232) that have largely remained obscure. These objects of applied art were probably part of the sale to Böhler/Haberstock during the war, although this is only certain of NK 3206. Given that none of these objects are mentioned in any of the post-war documents relating to the settlement of the restoration of property rights, the heirs may not have been aware that they had come to light again.

As regards this category of art objects, the Committee considers it safe to assume that the heirs’ title to these works is certain and that the claim cannot be deemed to be prescribed. Since there are enough indications to suggest that there are no other objections to restitution, and since no further information is deemed to be required, restitution of these objects can be effected.

Conclusion

In view of the above, the Committee advises the State Secretary for Education, Culture and Science to return all art objects involved in this case to the heirs of F.B.E. Gutmann.

Adopted at the meeting of 25 March 2002.

J.M. Polak (Chairman)
B.J. Asscher (Vice Chairman)
J.Th.M. Bank
J.C.M. Leijten
E.J. van Straaten
H.M. Verrijn Stuart

Gerelateerde adviezen:

Summary RC 1.2

The Gutmann collection

The previous history of the Gutmann claim commences in May 1998. In that year, the first (test) report of the Ekkart Committee was published, which listed some objects which, it was concluded, belonged to the former Gutmann collection. This prompted the first contacts between the Gutmann family and the ICB. An application for the restitution of these objects dates from 1999. At that time it was not yet clear how many objects were involved, what the circumstances of the loss of possession were, and why these objects were part of the NK collection. The ICB started an investigation into the objects with Gutmann provenance in the NK collection, which was concluded in September 2000 with a report. This was submitted to the State secretary for OCenW and the Gutmann family. In the following weeks and months, the case attracted some public and media interest, and was discussed during the consultation between State secretary Van der Ploeg and the Standing Committee for OCenW. On 24 January 2002, the case was submitted to the Restitutions Committee. The State secretary asked the committee to provide him with its advice within 12 weeks in respect of the application for the restitution of the Gutmann collection. The advice to be issued by the Restitutions Committee was decided on in the meeting of 25 March 2002.
Summary of documentary report

The banker and art collector F.B.E. Gutmann, who was originally of German nationality, took up residence in the Netherlands in 1919, together with his wife. In 1924 he was granted Dutch nationality. Building on his father – Eugen Gutmann-‘s collection, the couple amassed a large number of works of art at their country house ‘Bosbeek’ in Heemstede. During the years 1939 to 1942, circumstances in connection with the fact that under the German race laws they were classified as Jewish led to the couple disposing of their art collection. The most valuable objects had already been sent to Paris in 1939; these would be stolen from their depository during the occupation of Paris. Also in 1939, Mr. Gutmann brought a number of objects to the Amsterdam art dealer Rosenberg: these would be purchased by Göring in 1940. Gutmann then sold all the remaining works of art to the German art dealers Böhler and Haberstock during the years 1941 and 1942. This sale involved a large number of objects of applied art, as well as objects from his family’s silver collection and a number of paintings. In 1943, before the couple could flee the country, they were arrested by the Nazis. Both Mr. and Mrs. Gutmann lost their lives in concentration camps.

After the war, it only proved possible to recover a few of the works of art brought to Paris. Those works recovered in Germany and brought back to the Netherlands were returned to the Gutmann heirs by the SNK. In contrast to the objects stored in Paris, many of the objects that Mr. Gutmann had sold to Böhler and Haberstock were recovered from Germany after the war. The Gutmanns’ children, who survived the war in a foreign country, applied to the SNK for restitution of these objects. A disagreement regarding the right to restitution of these objects then arose between the SNK and the Gutmann family. The SNK took the view that the sale was voluntary, which meant that restoration of rights was not applicable. This led, in 1952, to a ruling by the restoration of rights judge. This judge ruled that the intended sale may not have been made under direct duress but, however, was made “under the influence of the special circumstances” that had arisen. On these grounds, the judge ruled that this sale could be contested. In his judgement, he restored the heirs to their legal position as owners but ruled that they had to pay to the State of the Netherlands the consideration that Mr. Gutmann received during the war. The Gutmann heirs were thus actually given the option of repurchasing the objects from the Dutch government. Although the children of the Gutmann couple argued that their father had never actually received the sales proceeds, they repurchased a number of objects during the 1950s.

In the year 2000, the NK collection still contained more than 200 works of art from the former Gutmann collection. These objects, including 9 paintings, can be classified into three separate main categories:
1     Three silver objects that were offered for sale to the Amsterdam art dealer Rosenberg in 1939, which in the end sold them to Göring in 1940. These objects were not the subject of any post-war application for restitution, and it may be that the heirs never knew that these objects had returned to the Netherlands.
2     The objects that Mr. Gutmann sold to Böhler and Haberstock and which the judge had commented on in 1952. This ruling restored the heirs to their position as owner, on condition that they repaid the sales proceeds received during the war. The heirs did not utilise this option, probably for financial reasons. Most of the works of art with provenance Gutmann that were found in the NK collection belong to this group.
3     Twelve works of art found in the NK collection about which little was known apart from the fact that Gutmann provenance had been proven. These were probably part of the group of works sold to Böhler and Haberstock. Since the heirs after the war obviously did not know about these objects, they were not part of their restitution application.

Advice

The advice to be given by the committee to the State secretary for OCenW was decided on during the committee meeting on 25 March 2002. After studying the case and taking everything into consideration, the Restitutions Committee recommended, on the basis of the documentary report, the restitution of all works of art listed in the report to the heirs of F.B.E. Gutmann. The committee concluded that the loss of possession by Mr. Gutmann during the war should be deemed to have been involuntary. With regard to the post-war handling of the application for restitution, the committee felt that the changed insights into the policy pursued at that time, under which the works of art could only be recovered upon payment of a cash sum, could be deemed to be a novum within the context of the current government policy. The committee felt that no forfeiture of rights was involved, as more is required for this than just refraining from the repurchasing of objects or making a conscious choice.

The State secretary for OCenW adopted this advice and ruled in favour of restitution to the heirs of Mr. F.B.E. Gutmann.

Recommendation:

The Gutmann collection (Gutmann I)