Three paintings by Troost en Van der Mijn owned abroad

Recommendation concerning the application for restitution of NK 1434, NK 1435 and NK 1672

Three paintings by Troost en Van der Mijn owned abroad

Report number: RC 1.14

Advice type: NK collection

Advice date: 7 February 2005

Period of loss of ownership: 1940-1945

Original owner: Private individual

Location of loss of ownership: The Netherlands

NK 1434 – The maternity visit by Cornelis Troost (photo: RCE)
NK 1435 – The doctor’s visit by Cornelis Troost (photo: RCE)
NK 1672 – Still life with iris, peonies and other flowers in a vase by Herman van der Mijn (photo: RCE)

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Recommendation

In letters dated 21 March 2003 and 28 May 2004, the State Secretary for Education, Culture and Science asked the Restitutions Committee for advice concerning the applications dated 10 February 2003 and 24 October 2003 by heirs of F.I.G. (referred to below as the ‘applicants’), as represented by Dr. I. Gielen, a lawyer practising in Berlin, for restitution of the paintings The maternity visit and The doctor’s visit by Cornelis Troost (NK 1434 and NK 1435) and Still life with iris, peonies and other flowers in a vase by Herman van der Mijn (NK 1672). As both claims pertain to the same complex of facts, the Committee decided to merge both applications into a single recommendation request.

The facts

Further to the first request for advice regarding the two paintings by Troost, the Restitutions Committee requested the Origins Unknown Agency (referred to below as ‘BHG’) to initiate an investigation into the facts and the results were recorded in a provisional report dated 5 August 2003. The investigation also considered the investigative report by the German historian M. Blumberg, which the applicants had enclosed with their application for restitution. During the BHG investigation into the paintings by Troost it emerged that there was a third painting with G. provenance in the Dutch National Art Collection, namely the painting by Van der Mijn that bore the number NK 1672. The Committee informed the applicants verbally about the presence of this painting and they subsequently submitted a new claim. The results of the BHG investigation concerning the Van der Mijn painting were recorded in a separate investigative report dated 5 August 2003. The Committee revised the reports on the investigations into the Van der Mijn painting and the two paintings by Troost and then adopted them and sent them to the applicants for comment on 30 August and 13 September 2004, respectively. The applicants sent brief reactions to both reports to the Committee and these reactions were incorporated into the reports.

General considerations (with respect to private individuals and art dealers)

a) The Restitutions 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 Restitutions 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 Restitutions 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, save cases where exceptional circumstances apply.

d) The Restitutions 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 nova (new facts).

General consideration (solely with respect to art dealers)

e) Involuntary sales shall also include sales – without the approval of the art dealer – by Verwalters or other administrators not appointed by the owner, from the old trading stock placed under their administration, in so far as the original owners or their heirs have not enjoyed the full benefit of the transaction and in so far as the owner has not expressly waived his or her rights after the war ended.

Special considerations

The applicants are heirs of F.I.G. (1859-1939) and are represented by the lawyer Dr. I. Gielen. F.I.G. was a wealthy German businessman of Jewish origin who lived in Berlin and Potsdam-Neubabelsberg. In order to escape the Nazi regime, the G. family decided to emigrate in 1935. Before they could leave Germany they had to comply with very extensive tax obligations that had been imposed on Jewish citizens by the German Reich (including the Reichsfluchtsteuer [tax on fleeing the Reich] and the Judenvermögensabgabe [expropriation of Jewish property]). The G. family was taxed a total of RM 914,000, which obliged the family to sell the house in Berlin – including the household effects and the art collection with the two paintings by Troost and the painting by Van der Mijn. The paintings were sold at auction on 19 August 1936 in Berlin. F.I.G. died in 1939 before the G. family were able to emigrate. His wife M.G.-K. left Germany in 1940. In the light of the above and partly with regard to the Ekkart Committee’s recommendation 3, which recommends that sales of works of art by private Jewish individuals in Germany from 1933 onwards should be considered forced sales unless there is express evidence to the contrary, G.’s loss of possession of the three paintings was involuntary and as a result of circumstances that were directly related to the Nazi regime.
After G. sold them in Berlin, the two paintings by Troost – NK 1434 and NK 1435 – ended up at the Jewish art dealers I. Rosenbaum N.V. in Amsterdam. There the Dienststelle Mühlmann placed them under an embargo in April 1942 before they were taken into storage in the vaults of the Kröller-Müller Rijksmuseum in Otterlo on 9 July 1942. The purchase price was only paid after the paintings had been taken to Germany in 1944. The Rosenbaum art dealers had been under the administration of a Verwalter since 10 April 1942. It is not known whether Mühlmann imposed the embargo in that April before or after the Verwalter took over the administration of the art dealers. Under (e) of the “General Considerations” set out above, a sale entered into by a Verwalter without the approval of the art dealer can in certain circumstances be an involuntary sale, which may make the sold painting eligible for restitution. Therefore, having taken note of the facts as revealed by the investigation, the Restitutions Committee decided that the heirs/legal successors of the Rosenbaum art dealers must also be given the opportunity to make a claim. In a letter dated 26 November 2003, the Committee asked the State Secretary to write to the Rosenbaum heirs. With an accompanying letter dated 3 December 2004, the Ministry of Education, Culture and Science (OCW) sent the Committee a message from G.G. Stiebel dated 24 October 2004. Stiebel is a great-nephew of I. Rosenbaum and representative of the firm Rosenberg & Stiebel. This art dealership was founded in New York in 1939 by family of Saemy Rosenberg, the pre-war Director of the I. Rosenbaum N.V. art dealership and a nephew of the childless I. Rosenbaum. Saemy Rosenberg joined this company during the war. In this message Stiebel waives the opportunity to submit a claim due to the existence of older G. claims. In the same letter Stiebel draws the Ministry’s attention to the existence of a grandson of Saemy Rosenberg. The Restitutions Committee subsequently decided not to ask the Ministry of OCW to write to this potential heir, given that the Ekkart Committee in its final recommendations had in the meantime devoted one of its considerations to the subject of conflicting claims. See Consideration 4 below for more details.
The painting by Van der Mijn, NK 1672, was sold at the auction in 1936 to the art dealers P. de Boer of Amsterdam. The painting subsequently turned up in exhibition catalogues published by the Jewish art dealers D. Katz of Dieren between July 1937 and September 1939. Indications emerged during the investigation that this art dealership very probably had the painting in consignment for “Baroness De Vos van Steenwijk”, given that in July 1942 the painting was sold to the Germans for the Sammlung Linz, which was the art collection destined for the Führermuseum in Linz. This sale is indicated on a German inventory list as: “10.7.1942 von Baronesse de Vos-van Steenwijk über Katz für hfl. 25.000,- an SL” [“10.7.1942 from Baroness de Vos-van Steenwijk via Katz for hfl 25,000 to SL”]. This indicates that the painting was bought from the baroness with Katz acting as intermediary and the Restitutions Committee therefore assumes that Katz had the painting in consignment. The Committee has had a genealogical investigation carried out into the person who was this baroness. That investigation revealed that three people could be the baroness in question. The Restitutions Committee decided not to carry out any further investigation into the possibilities for these individuals to lay claim to the painting by Van der Mijn, given that the Ekkart Committee had in the meantime devoted one of the considerations in its final recommendations to the subject of conflicting claims. See consideration 4 below for more details.
At the beginning of October 2004 the Ekkart Committee presented its Final Recommendations to the government. The explanation of the third recommendation reveals that the Ekkart Committee believes that the first loss of ownership should generally prevail in the case of conflicting claims to a work of art. The Ekkart Committee adds that the Restitutions Committee should be given the freedom to consider the relative weight of such conflicting claims, depending on the specific circumstances. In the light of this recommendation and partly because of the results of the investigation carried out for the Restitutions Committee into the possibly involuntary loss of ownership suffered by the art dealers I. Rosenbaum N.V., by a Baroness De Vos van Steenwijk, or by the Katz art dealers, the Restitutions Committee decided that the involuntary loss of ownership suffered by the G. family prevails over the possibly involuntary loss of ownership suffered by the aforementioned parties at a later date. The Committee sees no special circumstances to substantiate any other judgement in this case.
After the war the G. family was not in a position to locate the paintings by Troost and Van der Mijn or to submit an application for restitution. Nothing is known about any such application. However, M.G.- K- the widow G., who by now was living in England and had assumed British nationality – did submit an application for damages (Wiedergutmachung) after the war to the Entschädigungsamt Berlin [Berlin compensation office]. M.G.-K. finally received a total of DM 99,164.17 in compensation for damages. However, this payment did not specifically relate to the loss of the paintings by Troost and Van der Mijn. Given this fact and given also that the proceeds from the auction in 1936 were used to meet the tax obligations so that the family could leave the country, i.e. the proceeds are not considered to have been at the free disposal of G., the Restitutions Committee – in accordance with the Ekkart Committee’s recommendation 4 – has not considered repayment of the proceeds from the sale or deduction of part of the damages payment.
In view of the above, the Restitutions Committee considers the application for restitution of the paintings by Troost (NK 1434 and NK 1435) and Van der Mijn (NK 1672) to be sustainable.

Conclusion

The Restitutions Committee recommends that State Secretary for Education, Culture and Science restitute the objects NK 1434, NK 1435 and NK 1672 to the heirs of F.I.G.

Adopted at the meeting of 7 February 2005.

B.J. Asscher (Chairman)
J.Th.M. Bank
J.C.M. Leijten
P.J.N. van Os
|E.J. van Straaten
I.C. van der Vlies
|H.M. Verrijn Stuart

Summary RC 1.14 / RC 1.20

THE MATERNITY VISIT AND THE DOCTOR’S VISIT BY CORNELIS TROOST AND STILL LIFE WITH IRIS, PEONIES AND OTHER FLOWERS IN A VASE BY HERMAN VAN DER MIJN

In 2003, the State Secretary asked the Restitutions Committee for advice on an application by G.’s heirs for restitution of the paintings The maternity visit and The doctor’s visit by Cornelis Troost. These paintings were included in the Dutch National Art Collection under inventory numbers NK 1434 and NK 1435.

During the investigation of the facts commissioned by the Restitutions Committee regarding the Troost paintings that were the subject of the claim, it emerged that there was a third painting in the Dutch National Art Collection that had belonged to the same owner: Still life with iris, peonies and other flowers in a vase by Herman van der Mijn, registered under number NK 1672, for which the applicants submitted an additional restitution application.

Facts

The original owner of the three works of art was G., a wealthy German businessman and art collector of Jewish origin. To escape the Nazi regime, G. decided in 1935 to emigrate. In order to be able to leave Germany with his family, he required an Unbedenklichkeitsbescheinigung from the Finanzamt. To obtain that document, the G. family had to meet the stringent tax obligations that the German Reich had imposed on Jewish citizens, including the Reichsfluchtsteuer and the Judenvermögensabgabe. In total, the G. Family was charged a total of RM 914,000 in taxes. In order to meet these substantial tax obligations, G. was forced to sell his home in Berlin, including the household effects and his art collection. On 19 August 1936, G. presented a large number of works of art for auction in Berlin, including the aforementioned paintings by Troost and Van der Mijn. The final settlement of the payments to the German Reich took so much time that it had not yet been completed when G. died in 1939, before he was able to emigrate. In 1940, his widow left Germany and settled in the United Kingdom.

Before the Second World War broke out in the Netherlands on 10 May 1940, the two paintings by Troost came into the possession of the Amsterdam Jewish art gallery I. Rosenbaum NV. In April 1942, a Verwalter was appointed to take over that gallery at the instructions of the occupying forces. In the same month, part of the gallery’s trading stock, including the two paintings by Troost, was sold to Dienststelle Mühlmann, which was one of the principal purchasers of art for Nazi Germany on the Dutch market during the war.

The painting by Van der Mijn was purchased at the Berlin auction in 1936 by an Amsterdam art dealer. The work then turned up at the Jewish art gallery Katz in Dieren, which most probably held the painting on consignment for a private person. In July 1942, Katz sold the painting to a German buyer for the collection of the newFührermuseum that was to be founded in Linz.

Discussion of the advice

This case involved a series of separate instances of (possibly involuntary) loss of possession, which suggested that conflicting claims regarding the paintings might be possible. The Restitutions Committee therefore adopted the following approach.

Firstly, the Committee formed an opinion on the sale of the works by G., and concluded in that regard that the sales were involuntary. This was based on the recommendation of the Ekkart Committee that sales of works of art by private Jewish parties in Germany from 1933 onward be regarded as sales under duress, unless the opposite is explicitly shown.¹

Since both the paintings by Troost and the work by Van der Mijn subsequently came into the possession of Dutch Jewish art dealers and were purchased by Nazi buyers, the Committee then considered whether the legal successors of those art dealers had to be offered the opportunity to submit claims as well because those sales might also have taken place under duress. It should be borne in mind in this connection that the Final Recommendations of the Ekkart Committee, setting out policy lines for such conflicting claims, had not been published at that time. Consequently, the Restitutions Committee decided to ask the Ministry of Education, Culture and Science² to notify the legal successor of the Rosenbaum gallery, but that legal successor finally announced that they would not submit a claim because of G.’s prior claims. When the Ekkart Final Recommendations were published, toward the end of December 2004, and they were subsequently adopted by the government, it became apparent that official policy also generally gave priority to the first loss of ownership in the event of conflicting claims. The Restitutions Committee has sufficient latitude in this regard to compare the weight of the various competing claims.³ In light of this policy, and based on the outcome of the Committee’s further research, the Restitutions Committee decided that the involuntary loss of ownership on the part of the G. family in 1936 prevailed over the possible involuntary loss of ownership by parties involved at later stages.

Therefore, the Restitutions Committee advised the State Secretary on 7 February 2005 to return the paintings by Troost and the still life by Van der Mijn to G.’s heirs. No conditions were attached as regards the repayment of any sales revenues received at the auction, as those funds were used to leave Germany. The State Secretary’s final decision on 22 April 2005 followed the advice of the Restitutions Committee.
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¹     See the third Recommendation regarding private art property.
²     The Committee did not believe it to be part of its task to contact potential applicants directly,which is why this was left to the Ministry.
³     See the notes to the second Final Recommendation.