The Gutmann collection (Gutmann I)
Advice concerning the application for restitution of the Gutmann collection
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.
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.
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.
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.
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:
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".
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.
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.
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)
E.J. van Straaten
H.M. Verrijn Stuart