1. The dispute

The Stichting Kunstbezit en Oudheden Groninger Museum has, since 1948, owned a painting entitled The Landing Stage by the artist Maerten Fransz. van der Hulst (previously attributed to Jan Josefsz. van Goyen). This work of art is currently in the collection of the Groninger Museum. The applicants state that Jewish entrepreneur Richard Semmel (1875-1950, hereafter also referred to as: Semmel) of Berlin owned the painting until November 1933. The applicants state that they are “the heirs of Richard Semmel” and claim restitution of the artwork on account of what they adduce was involuntarily lost possession due to circumstances directly related to the Nazi regime. The parties have submitted a joint request to the State Secretary for Education, Culture and Science (hereafter also referred to as: the State Secretary) to submit the applicants’ claim to the Committee for binding opinion.

3. The facts

In this procedure, the Committee assumes the following facts:

3.1. Richard Semmel was born in Zobten am Berge, located in Germany at the time but currently Sobótka in Poland, on 15 September 1875. He was a wealthy German entrepreneur and art collector of Jewish descent. When the Nazis assumed power in Germany in 1933, he owned the textile plant Arthur Samulon in Berlin and was living in a villa in this city with his wife, Clara Cäcilie Brück, where he had amassed a sizeable art collection. The couple did not have any children. The applicants stated that, while they were living in Berlin, their grandparents were close friends of the Semmels, and that this friendship dated back to the period during which the two families were still living in Zobten am Berge. On 27 June 2002, F.F., the applicants’ mother, gave evidence in the context of restoration of rights procedures regarding Semmel’s property in which she stated that, as a child, she often visited Semmel’s villa in Berlin.

3.2. Shortly after the Nazi’s coup d’etat in 1933, Semmel experienced the consequences of the anti-Jewish climate in Germany. According to the applicants, he came under such severe pressure from the Nazis that he fled the country in April 1933. In a post-war statement about his persecution during the Nazi regime, Semmel said the following about this:

‘Im Anschluß hieran will ich noch sagen, daß der Inhalt der Schreiben von Peck u. Gross nur zum kleine 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 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 at this early stage of the Nazi regime was because of his involvement in the Deutsche Demokratische Partei, but above all because he was a Jewish owner of a large textile plant in Berlin. The Nazi authorities’ attempts to control and aryanise the textile industry would have made Semmel, a leading figure in the industry, a key target. The applicants claimed that Semmel had incurred losses as a result of the economic crisis of the 1930s and that he had financial and other obligations going back to the period before the Nazi regime. However, according to the applicants, his business was sound enough to deal with this, had there been no anti-Jewish measures by the national socialists. The applicants state that the boycott of Jewish shops and business organised on 1 April 1933, the intervention in the company by the Treuhänder der Arbeit appointed by the Nazi authorities, and the financial measures taken by Deutsche Bank and Dresdner Bank under the influence of the Nazi regime ultimately led to Semmel losing his company and his capital.

After fleeing Germany in 1933, Semmel settled in the Netherlands. In 1939, he left the Netherlands again, to eventually settle in New York in 1941. Various sources suggest that Semmel had to pay Reichsfluchtsteuer when fleeing Germany. The applicants have stated that Semmel also paid the Nazi authorities Judenvermögensabgabe.

Semmel put up part of his art collection for auction by the firm Frederik Muller & Cie. in Amsterdam on 21 November 1933. One of the works of art put up for auction is the currently claimed painting. Documentation drawn up as part of a restoration of rights procedure by F.F. in Germany in the 1990s suggests that Semmel used the proceeds of the sales of these works of art to pay his costs of living, to continue to meet various financial obligations in Germany dating from before the Nazi regime, and in attempts to retain his capital in Germany. There is no further information on the time at which and way in which the works of art from the Semmel collection came to the Netherlands.

3.3. In her statement referred to above under 3.1, F.F. said 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. In New York, Grete Gross-Eisenstädt renewed acquaintances with the Semmels, who were living there in destitute circumstances. Grete Gross-Eisenstädt is said to have cared for Semmel, who was in very poor health, on a daily basis after his wife’s death in 1945. F.F. stated that her mother was named sole heir as thanks for looking after him. The Committee’s file contains a certificate of inheritance dated 16 September 1997 as proof of this. Semmel died in New York on 2 December 1950. Grete Gross-Eisenstädt died in New York on 22 January 1958.

3.4. The painting in question has long been considered a work by painter Jan van Goyen, but in 1972 art historian Hans-Ulrich Beck, who specialises in Van Goyen’s work, attributed it to the painter Maerten Fransz. van der Hulst. Publications by Beck and other sources consulted show that it was put up for auction on 5 May 1906 by auction house J. Fievez in Brussels. In July and August 1925, the work of art was part of the exhibition ‘Gemälde alter Meister aus Berliner Besitz’ in the Akademie der Künste in Berlin. In the accompanying exhibition catalogue, ‘R. S.’ is given as ‘Besitzer’ of the work of art. Photo cards of the Netherlands Institute for Art History (RKD) and other art historical sources suggest that ‘R. S.’ is Richard Semmel of Berlin. In 1930, P. Wescher published an article on the paintings from the Semmel collection in the art magazine Pantheon. A passage about ‘holländischen Landschaften’ from this collection includes a reference to a ‘Goyen’, possibly the painting in question.

The painting was put up for auction on 21-24 November 1933 by the firm Frederik Muller & Cie. in Amsterdam. According to information from the RKD, the firm drafted two catalogues and two supplement catalogues for this auction. The work of art in question is mentioned in a catalogue of old paintings ‘provenant de diverses collections privées’ that were auctioned off on 21 November 1933 (lot number and illustration 16). No provenance name is given for the painting, only a reference to the above-mentioned 1925 Berlin exhibition. The cover and title page of a copy of this catalogue from the RKD has the following hand-written annotation below ‘provenant de diverses collections privées’: ‘(including R. Semmel from Berlin)’. It is not known to which of the individual paintings mentioned in this catalogue the annotation refers. Notes in copies of the auction catalogue of Frederik Muller & Cie. at the Rijksmuseum and the Amsterdam University Library suggest that the currently claimed painting was probably sold at auction for NLG 1,100. It is not known who the buyer of the art work was. An investigation by the Committee of the back of the currently claimed painting has not yielded any further provenance data.

3.5. The Museum acquired the painting at hand in 1948 through a bequest from Geziena Wilhelmina Slingenberg (1879-1948). She was the widow of former psychiatry and neurology professor Klaas Herman Bouman (1874-1947). A Museum report for the 1944-1948 period shows that the bequest comprised a large number of artworks, from which the Museum made a selection. The bequest was acquired ‘encumbered with inheritance tax and on condition that the provenance is given as “Bouman-Slingenberg Bequest”’. It is not known when and from whom the Bouman-Slingenbergs obtained the currently claimed painting. When asked, the Museum stated that they did not have an archive for the couple and that the Museum’s archive does not contain any explanation as to the conditions of the bequest.

3.6. An investigation by the Committee did not yield any evidence that Semmel or the parties entitled to his inheritance tried to regain possession of the currently claimed painting after the war, or to obtain compensation for the loss of possession. The current painting is not mentioned in the archive of lawyer Benno J. Stokvis, who successively represented Semmel and Grete Gross-Eisenstädt in the Netherlands, which can be found in the Amsterdam City Archives. This archive does, however, refer to various other works of art from the Semmel collection, including objects that had been surrendered to the German looting organisation Lippmann, Rosenthal & Co. of Sarphatistraat in Amsterdam during the occupation of the Netherlands (1940-1945) and for which Semmel sought restoration of rights after the war.

5. The museum’s position

5.1. The Museum has stated that no provenance investigation was conducted prior to acquisition of the current painting in a bequest from 1948. The Museum has also stated that ‘there is no evidence to show that the Groninger Museum or Bouwman-Slingenberg, from whom the museum acquired this work, knew about the painting’s background.’ In general, the Museum is said not to have a very strong tradition of performing (provenance) research into 17^th century paintings, as it is not considered one of the Museum’s core collections. In this context, the Museum also declared that they are not specialised in 17^th century paintings and that they do not have a curator with specific knowledge of art from this period.

5.2. The Museum considers this painting a ‘depot piece’ that is not a ‘stronghold’ in the collection. No indications were found in the Museum’s administration that the painting had been exhibited for the past 20 to 25 years or had been loaned to other museums during that period. As far as could be ascertained, the Museum never restored the painting. The painting is covered by the Museum’s collection insurance and has not been separately insured or valued. There are no current plans to include the painting in future presentations.

5.3. During the hearing, the Museum stated that it would not attempt to retain the painting for the collection. In the Museum’s view, it is up to the Restitutions Committee to rule on this matter.

7. Assessment of the dispute

7.1. The Committee has ascertained that the dispute between the applicants and the Museum has not already been definitively settled. In this case, the Committee has found no evidence of legal proceedings or a legal ruling in relation to the current dispute. Nor have the applicants at any point in the past explicitly relinquished their rights to the painting. As such, the Committee considers both parties’ cases admissible.

7.2. The applicants have no family ties with the original owner Semmel and argue that they are entitled to Richard Semmel’s estate because their grandmother, Grete Gross-Eisenstädt, was appointed Semmel’s sole heir in his will.
During the procedure it was discovered that, in the 1990s, a family member of the Semmel couple tried to challenge the claims of F.F., the applicants’ mother, to Semmel’s estate. In that light, the Committee asked the applicants further questions. The applicants provided adequate answers to these questions by submitting three certificates of inheritance to the estates of Richard Semmel (dated 16 September 1997), Grete Gross-Eisenstädt (dated 1 June 1993) and F.F. (dated 13 January 2011), respectively. The Committee concludes that the applicants are currently the only parties entitled to Richard Semmel’s estate.

7.3.  As regards the issue of ownership, the Committee concludes that there is a high degree of probability that the painting The Landing Stage was owned by Richard Semmel who put it up for auction at Frederik Muller & Cie. on 21 November 1933. For this conclusion the Committee refers to:

• the listing of the work in the 1925 auction catalogue ‘Gemälde alter Meister aus Berliner Besitz’, in which ‘R. S.’, identified as Richard Semmel, is mentioned as owner  of the work of art (see 3.4);
• the Pantheon article from 1930 by P. Wescher on  paintings from the Semmel collection, in which the Committee finds indications that the current work is listed as a ‘Goyen’ in a passage on ‘holländischen Landschaften’ (see 3.4);
• the catalogue of the auction on 21 November 1933 as described in 3.4, in which the work of art is included under lot number and illustration 16. While the title of this  auction catalogue refers to multiple parties (‘provenant de diverses collections privées’), the annotation ‘incl. R. Semmel from Berlin’ on an annotated version of the catalogue, combined with the provenance investigation conducted by the Committee (see below), suggests that Semmel at least put up a significant part of the works of art in this auction.

The Committee considers the following in respect of this final point. The applicants state that it can be assumed that all 71 works referred to in the auction catalogue of 21 November 1933 were owned by Semmel (see 4.2). Further to this, the Committee performed a random check in the RKD of five paintings from this catalogue that are not part of the current claim. These are works of art whose quality would lead one to believe that further provenance details will be available. During this investigation, indications were found for three of the five works of art that they were part of the Semmel collection at one time or another. For the other two paintings, no such indications were found, but neither were indications found as to who owned them. Based on this, the Committee concludes that a significant number, yet not all, of the works certainly have Semmel provenance. This, then, does not demonstrate the correctness of the applicants’ claim. Nevertheless, the results of the investigation conducted into this may provide positive support for the degree of probability of ownership by Semmel, given that other sources suggest such probability.

7.4. With regard to the nature of the loss of possession, the Committee considers the following. The investigation has shown that Semmel was persecuted at a very early stage of the Nazi regime. The applicants have argued that this had to do with Semmel’s involvement in the Deutsche Demokratische Partei, but particularly also the fact that he was a Jewish owner of a large textile plant in Berlin. The Committee considers it plausible that the Nazi authorities’ attempts to control and aryanise the textile industry made Semmel a key target and that the related pressure from the Nazi regime on Semmel himself and on his business eventually resulted in him losing his company and his capital. In the light of these complex facts, the Committee also considers it plausible that Semmel was forced to capitalise his art collection because he needed funds immediately. Semmel had to keep his business alive and support himself, his family and other dependents. The Committee therefore concludes that the sale of his paintings at the auction at Frederik Muller & Cie. in 1933, while at first sight prompted by economic factors, cannot be seen separately from Semmel’s persecution by the Nazi regime in Germany. The Committee therefore concludes that this sale must be considered to have been involuntary.

7.5. Under Dutch law, it has to be assumed that the Stichting Kunstbezit en Oudheden Groninger Museum is the current owner of the painting The Landing Stage. The Museum acquired the painting in 1948 as part of a sizeable bequest from G.W. Bouman-Slingenberg (see 3.5). The Committee has found no indication whatsoever that the Museum acted without due care upon acquiring the painting. Even if the Museum had known about the pre-war provenance history, the Committee believes that an acquisition at an auction in Amsterdam in November 1933, seven years before the Germans invaded the Netherlands, would not have raised any questions.

7.6. The Committee has now come to consider the parties’ interests in having the painting returned or retaining it. In considering this, pursuant to the standards of reasonableness and fairness, the Museum’s ownership rights do not carry enough weight to decide on the dispute in favour of the Museum. The Committee has taken into account the fact that the Museum has not put forward any art-historical or other interest in retaining the painting. The Museum’s circumstances and statements outlined above suggest that the Museum has repeatedly indicated that it does not specialise in 17^th century art, and has little or no interest in the painting, probably because it does not fit in with its collection. This is also apparent from the fact that the painting has been in storage for a long time and has not been exhibited or given on loan for the past few decades. Moreover, the Museum acquired the painting for free and there are no indications that the Museum incurred any costs to restore the painting, have any (art-historical) investigation conducted into it or have it insured separately. All of this shows that the Museum has little interest in the painting, while the applicants have stated that they have an emotional and moral interest in having the painting returned, which the Committee therefore considers to outweigh the Museum’s interest in retaining the painting.

7.7. As the Museum acquired the painting as part of a bequest and no evidence has been found during this procedure that it has incurred any (restoration) costs, the Committee sees no reason to oblige the applicants to pay the Museum for the return of the painting.

7.8. On the basis of the above-mentioned information, the Committee issues the following binding opinion.