Recommendation regarding May II
In a letter dated 13 February 2009, the Minister for Education, Culture and Science (hereafter referred to as: the Minister) requested the Restitutions Committee (hereafter referred to as: the Committee) to issue a recommendation regarding the application dated 25 August 2008 by G.J.S.-V. (hereafter referred to as: the applicant) for restitution of the objects formerly owned by Robert May, as stated on a list supplied by the applicant. These objects are part of the Dutch national art collection and are housed in the Rijksmuseum in Amsterdam (hereafter referred to as: the RMA).
On 14 March 2007, the applicant submitted an application for restitution for what she described as ‘de collectie May’ [the May collection]. At that time, the Minister advised the applicant that he could only submit the claim for a recommendation in relation to the painting NK 2558, as the remaining objects were insufficiently specified. On 27 April 2007, the Minister asked the Committee for a recommendation concerning the claim to NK 2558 and on 10 November 2008 the Committee issued a recommendation to reject this claim.
As recommended by the Minister, the applicant then asked the RMA for assistance in investigating whether the objects from ‘the May collection’ were at that museum. This investigation resulted in a list of approximately 335 objects (hereafter referred to as: the May collection). In a letter dated 13 February 2009, the Minster requested the Committee to issue a recommendation concerning those works housed at the RMA.
Following this application for restitution, the Committee instigated a fact-finding investigation, the results of which were included in a draft investigatory report dated 7 March 2011. The draft investigatory report and a request for additional information were sent to the applicant on 17 March 2011, to which she responded, after an agreed deferral, in a letter dated 18 May 2011. The draft investigatory report was sent in letters to the RMA and the State Secretary for Education, Culture and Science (hereafter referred to as: the State Secretary) requesting more factual information, dated 17 March 2011. The RMA responded to this in a letter dated 13 May 2011 and answered the further questions posed by the Committee in the above-mentioned letter. On 16 May 2011, the State Secretary advised that he did not have any additional information he wanted the Committee to consider. The investigatory report was then adopted on 19 September 2011. For the facts of the case, the Committee refers to the investigatory report.
The Dutch State bought the currently claimed works in 1944, making them part of the Dutch national art collection. Although the objects are not part of the Netherlands Art Property Collection, which is made up primarily of works of art that were returned to the Netherlands after the liberation, the Committee will issue its recommendation under article 2, paragraph 1 in conjunction with paragraph 4 of the Decree establishing the Restitutions Committee, which stipulates that, with regard to items of cultural value that are in the custody of the Dutch State, the Committee has to issue a recommendation with due regard for the more relaxed restitutions policy.
The applicant is requesting restitution of objects belonging to the May collection, which collection was the property of Robert May, who was born in Amsterdam on 13 October 1873 and died there on 21 August 1962 (hereafter referred to as: May). The applicant claims to be the sole heir of C.W.S. (died in 1991), who, in turn, was heir of J.P. (died in 1986), who, in turn, was appointed sole heir by May in his last will and testament. In connection with this, the Committee has taken cognisance of several legal inheritance documents.
May and Liro-Spiegelstraat
The relevant facts are described in the investigatory report dated 19 September 2011. The following summary of events will suffice for the present purpose. May was of Jewish extraction and a partner in the banking firm of Lippmann, Rosenthal & Co located at Nieuwe Spiegelstraat in Amsterdam. In this recommendation, the bank will be referred to as Liro-Spiegelstraat, to differentiate it from the German looting organisation, Lippmann, Rosenthal and Co. at Sarphatistraat in Amsterdam, which will be referred to as Liro-Sarphatistraat or as the looting bank. In July 1940, Liro-Spiegelstraat was placed under the administration of a Verwalter, the German banker A. Flesche. May presumably survived the war in part because of Flesche’s protection. After the liberation, the Verwaltung ended and the pre-war legal relations between May en Liro-Spiegelstraat resumed.
Various archive documents show that in 1940, May had run up a substantial debt with his bank Liro-Spiegelstraat, the greater part of which was unsecured. In connection with that, in November 1940, Flesche stipulated that a right of pledge be enforced on all May’s movable property, which included an art collection comprised of such things as a porcelain and silver collection.
From May 1942, Regulation 58/1942 prescribed that all Jews were to hand in valuable possessions at the Liro-Sarphatistraat looting bank. The Department of Education, Science and Cultural Protection (hereafter referred to as: DOWK), a predecessor of today’s Ministry of Culture, Education and Science, tried to save important Jewish collections in which the Germans had no interest for the Netherlands by buying them from the looting bank. Such collections were not to be handed over to Liro-Sarphatistraat, but were kept in safekeeping at Dutch museums, acting as the looting bank’s keepers, while awaiting a sale.
Loss of possession/confiscation
Regulation 58/1942 obliged May to hand over his valuables as well. This confiscation resulted in May losing the authority to dispose of his collection. Pursuant to the regulation mentioned in the previous consideration, May received an order from DOWK in late June 1942 to place his works of art ‘in bewaring te geven’ [in safekeeping] at the RMA, which would be managing these objects for the looting bank. The objects were delivered to the RMA on 20 July 1942. The Liro-Spiegelstraat bank, which at that point in time still had a right of pledge on the objects in question, protested against its pledge being surrendered to the RMA.
In late 1942, the DOWK informed the RMA that the art objects that May handed over pursuant to Regulation 58/1942 were to be sold by the Liro-Sarphatistraat looting bank. The RMA was given the opportunity to purchase art works in which the Germans were not interested, including the May collection, at the price at which they had been valued. The RMA let it be known that it wished to purchase the entire May collection.
On 15 April 1943, the secretary general of the DOWK authorised the RMA to buy the May collection. At that time, however, the RMA was still uncertain about the status of the right of pledge. To get a decisive answer to this question, the secretary general of DOWK sought advice from state advocate G.W. van der Does Esq. LLM. In a letter dated 9 July 1943, he advised that under Regulation 58/1942, the Liro-Sarphatistraat looting bank was solely authorised to dispose of the May collection and did not have to consider the right of pledge. The state advocate also stated that to purchase the May collection, the RMA only had to approach the Liro-Sarphatistraat looting bank.
On 16 February 1944, Flesche contracted valuer Paul Brandt to value the goods from the May collection with a view to selling them. Brandt valued the objects from the May collection housed at the RMA at NLG 329,460. Brandt also valued May’s objects housed in the Stedelijk Museum Amsterdam and the Museum for Asian Art in Amsterdam, bringing the total value to NLG 412,875.
The sale of the collection
Then negotiations began with the Liro-Sarphatistraat looting bank on the sale of the May collection. DOWK represented the Dutch State in the negotiations, presumably represented by J.K. van der Haagen LLM, and the RMA was represented by Mr D.C. Röell Esq. The DOWK and RMA representatives actually first approached May before approaching the board of the looting bank. On July 1944, the representatives in question met with the Liro-Spiegelstraat partners, May and Rahusen, and their lawyer. A memo dated 10 July 1944 states that in that meeting May and Rahusen agreed that if the State were to buy the May collection, they would accept the valuation of NLG 412,875, so that if this sum were also actually transferred to their account, they would not bring any action against the State.
A second memo dated 10 July 1944 was found in the archive of the Ministry of Education, Culture and Science, which was drawn up as a supplement to the memo mentioned above in the previous consideration. The memo was marked as ‘GEHEIM’ [SECRET] and reads as follows:
De firmanten van Lippmann Rosenthal & Co (Spiegelstraat) en hun advocaat hebben verklaard zich bij gentleman’s agreement te verbinden hun verklaring in de eerste alinea van aide mémoire Nr. 3190/1944 K.W. genoemd ook na den oorlog gestand te zullen doen. Mijnerzijds heb ik voor den Staat mij verbonden den heer May, zoo deze dit wenscht, te zijner tijd in de gelegenheid te stellen voor een waardige aankleding van zijn woning een aantal voorwerpen, die niet uitgesproken het karakter van museumobjecten hebben, terug te koopen tegen den prijs waarvoor de Staat ze heeft aangekocht.
[The partners in Lippmann Rosenthal & Co (Spiegelstraat) and their lawyer have declared in a gentleman’s agreement that they will keep to their agreement made in the first paragraph of aide-memoire no. 3190/1944 K.W. after the war as well. On behalf of the State, I have agreed with Mr May that, should he so desire, he will be given the opportunity to purchase back, in his own time, a number of objects, which are not explicitly museum objects, to properly decorate his residence, at the price the State paid for them.]
This part of the agreement was probably kept secret during the occupation and later defined as ‘clandestine’ by the Ministry of Education, Culture and Science in a memo dated 19 November 1945, because it speculated on a German defeat. Anticipating that the Dutch constitutional state would be reinstated would also explain why May’s agreement was sought before the sale.
The DOWK and the RMA representatives then approached the board of the Liro-Sarphatistraat looting bank, which sold the May collection to the Dutch State at the valuation price of NLG 412,875. Under pressure from Flesche, the Verwalter of Liro-Spiegelstraat, transferred the purchase price to this company (May’s bank) to cover May’s debit balance, and not, as usual, to the looting bank.
After the war
After the war, the Ministry of Education, Culture and Science considered the issue of how to deal with the Jewish art collections that were confiscated during the occupation and purchased from the looting bank by the Dutch State. An undated memo from the Principal Private Secretary to the Minister for Education, Culture and Science includes the following on this matter:
De Raad voor het Rechtsherstel, die in deze materie is ingewerkt, kan m.i. het beste uitmaken, of een bepaalde verkoop nietig verklaard of gewijzigd moet worden. (..) Met de afdeling F.C. ben ik van oordeel, dat het zeer de vraag is, of ook de gentleman’s agreement met den heer May niet door den Raad vernietigd kan worden, aangezien deze onder pressie der bijzondere omstandigheden tot stand is gekomen. Ik moge U dus adviseeren den Raad voor het Rechtsherstel te berichten, dat Uwerzijds gaarne alle medewerking zal worden verleend tot een herstel van de rechten der eigenaren, doch de beslissing, wanneer en hoe het herstel dient te geschieden aan den Raad over te laten.
[In my opinion, the Council for the Restoration of Rights, which has familiarised itself with this matter, can best decide whether a particular sale should be declared null and void or changed. (...) Along with the F.C. department, I believe that it is by no means unlikely that the gentleman’s agreement with Mr May can also be declared null and void by the Council, seeing as this was concluded under extraordinary circumstances. I would, therefore, like you to advise the Council for the Restoration of Rights that you will willingly cooperate in restoring the owners’ rights, while leaving the decision on when and how this restoration should occur to the Council.]
The following comment is hand-written in the margin of the memo in question:
May verklaarde het graag gestand te doen. M. [May declared that he would willingly keep his word. M. ]
The investigation has shown that after the war the rights to two of the seven Jewish collections bought from the looting bank by the Dutch State were restored.
May and restoration of rights
The archive of the Council for the Restoration of Rights was consulted for evidence of May having taken the initiative after the war to contest the sale of his collection to the State. Such evidence was not found.
It can be ascertained from a letter by the general director of the RMA to the Minister for Education, Culture and Science dated 8 April 1946 that, after the liberation, May was given back several objects from the RMA, as agreed during the war (see consideration 10). The museum apparently believed it important that May provide written confirmation of the sale during the war, as a copy of a statement dated 9 April 1946 made by May to director of the RMA D.C. Röell was found in the RMA’s archive, which reads as follows:
Ingevolge Uw wensch deel ik U bij dezen mede, dat ik volkomen accoord ga met den verkoop tijdens de bezetting van mijn collecties aan den Staat der Nederlanden, alsmede met de voorwaarden, waaronder dit is geschied.
[As requested by you, I hereby inform you that I completely agree with the sale of my collections to the Dutch State during the war, as well as with the conditions under which this took place.]
Responding to the draft report, the applicant proposed in her letter dated 1 April 2010 that May was pressurised by Röell to make the above statement after the war. In the letter in question, the applicants writes:
Opvallend bij het briefje zijn de datum, een dag na het versturen van het hiervoorvermelde verzoek van het Rijksmuseum tot machtiging, het schrijfpapier (van het Rijksmuseum) waarop het is geschreven, en de aanvang van de tekst. “op Uw wensch”. Gelet op de data is het logisch te veronderstellen dat er een samenhang is met het verzoek van het Rijksmuseum van 8 april 1946 tot machtiging en de teneur van die brief, en de brief van May van 9 april 1946. Het gaat in dat verband niet te ver om te veronderstellen dat May door de toenmalige Directeur van het Rijksmuseum, de heer Roëll op diens kantoor is uitgenodigd, en hem aldaar wellicht met aandrang is verzocht zich ter plekke op briefpapier van het Rijksmuseum uit te laten in de zin van de inhoud van de brief van 9 april 1946. Het is sterk de vraag of deze brief naar de huidige inzichten als bindend kan worden opgevat.
[Worth noting in regard of this note are the date (one day after the Rijksmuseum sent the aforementioned authorisation request), the letterhead (from the Rijksmuseum) on which it is written, and how the text opens with “op Uw wensch” [As requested by you]. Given the dates, it is logical to assume that there is a connection between the Rijksmuseum’s authorisation request of 8 April 1946 and the purport of that letter, and May’s letter dated 9 April 1946. In this case, it is fair to assume that May was invited by the then-director of the Rijksmuseum, Mr Roëll, to his office where he was probably urged to make the statement on Rijksmuseum letterhead there and then as per the content of the letter dated 9 April 1946. It is highly questionable whether this letter can be considered binding in light of the current views.]
The applicant had already presented the above point of view in a letter dated 14 March 2007. In response to this, the then-general director of the RMA Prof. Dr. R. de Leeuw sent a letter, dated 26 May 2008, to the Minister for Education, Culture and Science. In this letter, De Leeuw pointed out that the RMA and Mr May had enjoyed a good relationship since the 1930s, resulting in loans and gifts, and that this relationship remained unchanged after the war. He also stated that the case was settled very amicably in 1946. De Leeuw also pointed out that Röell and May had a special friendship. To substantiate the suggestion that the special friendship between May and Röell continued after the war, the director of collections at the RMA sent a letter dated 13 May 2011 enclosing a list of the members of the committee which was established for David Röell’s farewell as general director. This list of October 1959 includes the name Robert May.
Assessing the claim
The current claim concerns objects that were purchased by the Dutch State during the war. May was not able to submit an application for restitution to the Netherlands Art Property Foundation, which was different for the objects that were recovered from Germany. As far as is known, May did not try to contest the sale of his collection to the Dutch State with the Council for the Restoration of Rights after the war. On the contrary, on 9 April 1946, May stated to museum director Röell that he completely agreed with the sale during the war. The Committee concludes that the investigation details suggest a close friendship between May and Röell, which lasted long after the war. The fact that in 1959 May (at the end of his life and 14 years after the liberation) had a seat on the committee for Röell’s farewell as director of the RMA makes it very unlikely that May’s statement to Röell was made under duress. There is also no evidence that May, in later years, tried to retrieve his collection. The Committee believes that it can be ascertained from the above facts that May agreed with the sale. This can also be explained by the fact that the purchase price, which equalled the valuation price, was deducted from May’s debit balance at Liro-Spiegelstraat (which balance accrued to him after the war), and the fact that May’s collection ended up at the RMA, with which he maintained close ties until he died.
The committee believes that May’s written statement dated 9 April 1946 to the director of the RMA should be seen as one that was made freely to uphold the sale of his collection to the Dutch State during the war. Therefore, this sale should now be regarded as legitimate.
The Restitutions Committee advises the State Secretary for Education, Culture and Science to reject G.J.S.-V.’s application for restitution of the objects belonging to the May collection.
Adopted at the meeting of 19 September 2011 by W.J.M. Davids (chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, D.H.M. Peeperkorn, E.J. van Straaten and I.C. van der Vlies (vice-chair), and signed by the chair and the secretary.
(W.J.M. Davids, chairman) (E. Campfens, secretary)
 The State Secretary for Education, Culture and Science took over the restitution file from the Minister on 24 February 2010.