The facts

Further to the application for restitution, the Committee initiated an investigation into the facts and the results were recorded in a report dated 25 August 2003 by the Origins Unknown agency. This report was submitted to the applicant, who then responded in the letter dated 30 October 2003.

Special considerations

1. Mr. K. has applied for restitution of Elegant company making music on a terrace by Dirk Hals (NK 1456) on behalf of the joint heirs of his father, Mr K. sr., who was born in … and died in … .
2. Given the result of the investigation, the Committee finds that this painting (NK 1456) was the property of the aforementioned K. sr. (hereinafter referred to as ‘K. sr.’). K. sr., who was of Jewish origin, sold the Dirk Hals in August or September 1940 via an intermediary to ‘Dienststelle Mühlmann’.
3. The circumstances in which the painting was lost from the estate are described in a letter from K. sr.’s lawyer, M. Knap, dated 7 May 1948 and addressed to the Netherlands Art Property Foundation (SNK):“Around August 1940 my client put a number of paintings, including the one in question, up for auction at the Frederik Muller auction rooms. Around the same time my client came into contact with a certain Schönnemann, who was of German nationality, […]. The aforementioned Schönnemann said that he might be able to act as an intermediary to obtain a permit for my client, who is of Jewish origin, to leave the country, possibly in return for paintings and/or payment of a sum of money; The painting was then viewed by a German to whom Schönnemann offered it, on behalf of my client, for the sum of FL. 8,000. When it turned out that the German in question was not prepared to guarantee an exit permit, my client did not want the sale – or in any case the transfer – to proceed, but the German then demanded that the painting be provided and threatened otherwise to requisition it. The painting was then provided for a fee of FL. 8,000, of which FL. 1,000 was intended as commission for Schönnemann. The said Schönnemann was in fact subsequently able to provide an exit permit in return for payment of a further FL. 8,000.”Documents found in the archives reveal that K. sr. sold the Dirk Hals via an intermediary for NLG 8,000 to Dienststelle Mühlmann, a German organisation infamous for its purchasing methods. The applicant, who is K. sr.’s son, provided the Committee with the following information in a letter, dated 30 October 2003, regarding the attempt by his father and himself to flee:“The date of the first (failed) attempt was 12 May 1940 on a ship called the ‘Van Rensselaer’ which hit a mine off IJmuiden. [ .. ] The letter from the ‘höhere SS und Polizeiführer beim Reichskommissar enz. Rauter’, in which the request for an exit visa is granted, is dated 9 September 1940 [ … ]. Immediately afterwards, in that September, my father and I travelled via Berlin to Madrid and then on to the United States.”
4. In November 1940 Dienststelle Mühlmann sold Elegant company making music on a terrace for 20,000 Reichsmarks to the Hamburg dealer and collector Neuerberg. In 1946 the Allies transported the painting back to the Netherlands from Munich with the comment that the Dirk Hals was ‘confiscated’ property.
5. In 1948 K. sr., who was now living in New York, submitted an application for restitution to the Netherlands Art Property Foundation (SNK) but without success. The SNK decided that the painting was not eligible for restitution since the sale had to be considered voluntary. They based their reasoning on the argument that the initiative to sell the painting had come from K. sr. The Dirk Hals therefore became part of the NK collection of works of art administered by the government.
6. The Committee’s very first consideration in determining the nature of the loss of estate was that the government policy that applies to works in the Dutch national art collection assumes an involuntary sale, insofar as the sale was entered into during the occupation by a person belonging to a persecuted population group, unless there is evidence to the contrary.
7. In this case, a declaration of the sale of Elegant company making music on a terrace was made in October 1945 by Mr Mensing, an employee of the Frederik Muller auction rooms and also the brother-in-law of K. sr., in which he indicated that the sale was ‘voluntary’. On this subject the applicant states the following in his letter of 30 October 2003:“Given the precarious situation in which Jews found themselves, my father was understandably extremely safety-conscious and he said nothing about his attempts to flee to anyone who did not need to be informed. That is why he did not inform his brother-in-law B. Mensing about the actual contents of the (failed) transaction involving the Dirk Hals. I was also not aware of any attempt to obtain an exit visa until my father had finally secured one for us both. Neither my father, nor Schönnemann, nor Mühlmann had an interest – obviously for very different reasons – in informing Mensing about the actual course of events. That is why Mensing was able to state out of ignorance that the sale of the Dirk Hals was voluntary.”The Committee considers this statement by the applicant to be sustainable. After all, given his earlier attempt to flee the country, it is very unlikely that K. sr. put paintings up for auction with any aim other than to finance a new attempt to flee. This was also the SNK’s original point of view – as the investigation showed – before the application for restitution was rejected. The Committee therefore concludes that K. sr. entered into the sale under pressure from the buyer and from the circumstances that forced him to secure an exit visa and flee the country. This conclusion is not affected by the SNK having found differently in 1948. In this context, one can rightly point, as the applicant does, to the rejection by the Council for the Restoration of Rights as early as 1952 of the SNK’s use immediately after the war of the concept of a ‘voluntary sale’ whereby the seller having taken the initiative to sell would be an obstacle to the restoration of rights – i.e. restitution. The Council rejects this interpretation as incorrect (Jurisdiction Department of the Council for the Restitution of Rights, Gutmann case of 1/7/52).
8. In view of the above, the Committee finds that the loss of the painting by Dirk Hals from the K. sr. estate was involuntary and due to circumstances that were directly connected to the Nazi regime. The Committee considers the application for restitution to be sustainable.
9. In relation to the question of possible reimbursement of the proceeds of the sale in return for the restitution of the painting, the Committee bases its opinion on the fourth recommendation made by the Ekkart Committee on 26 April 2001, namely that there can only be a question of repayment of sale proceeds if and insofar as the seller was actually able to freely dispose of said proceeds. Since the proceeds from the sale in question were used to pay for an exit visa, it may be assumed that K. sr. was not able to freely dispose of these proceeds.

Summary RC 1.16

ELEGANT COMPANY MAKING MUSIC ON A TERRACE BY DIRK HALS

The Committee’s twelfth and also last opinion of 2003 concerned a claim for restitution of the 17th century panel Elegant company making music on a terrace (NK 1456) by Dirk Hals, the younger brother of Frans Hals. The claim was submitted to the State Secretary of Culture in March 2003 on behalf of the heirs of the original owner, Mr.de K. The State Secretary submitted the claim to the Committee for advice on 26 May 2003. This painting by Dirk Hals had been part of the Dutch National Art Collection under inventory number NK 1456 since 1946. The Origins Unknown Agency (BHG) considers the painting’s provenance history in the book Betwist Bezit. In 2003 this panel was displayed in the Fries Museum in Leeuwarden as part of the “Origins Unknown” exhibition. Until then it had been on long-term loan from the Netherlands Institute for Cultural Heritage (ICN) to the Frans Hals Museum in Haarlem.