Portrait of a man with a greyhound by Thomas de Keyser and The sleeping innkeeper after Nicolaas Maes
Advice concerning the application for restitution of NK 1407 and NK 1624
By letter of 2 April 2002 the State Secretary for Education, Culture and Science asked the Restitutions Committee for advice about the decision to be taken concerning the application, dated 22 April 2001, by Mrs I.M. L.-P. for restitution of the paintings “Portrait of a man with a greyhound” by Thomas de Keyser (NK 1407) and “The sleeping inn keeper” after Nicolaas Maes (NK 1624).
The Inspectorate of Cultural Heritage (Inspectie Cultuurbezit) carried out an investigation in connection with the application for restitution. The findings of the investigation were included in a research report dated 18 March 2002, which was sent to the applicant. The term for requesting the Restitutions Committee’s advice was extended several times, due to the further investigations the Committee believed were necessary to arrive at a balanced opinion. In this connection, discussions were held by or on behalf of the Committee with the applicant and her son, Mr M. L., and with Mr H.M. Cramer, son of the art dealer Cramer, who served as the intermediary in the sale of the Nicolaas Maes painting (NK 1624) during the war. Mr H.M. Cramer worked in his father’s art business at the time. Other parties who were consulted include professor Dr Joh. de Vries (retired professor of economic history at Tilburg University), the Israelitische Kultusgemeinde Wien in Vienna, and Mr Ch. Roelofsz, art dealer in Amsterdam and expert on old masters. Additional research, finally, was carried out into the registration forms of Jewish citizens drawn up on the instruction of the Ministry of the Interior early in 1941 and currently filed at the Netherlands Institute for War Documentation (NIOD), and into personal index cards saved in the Amsterdam municipal archives.
The Committee has drawn up its opinion with due regard for the relevant lines of policy issued by the Ekkart Committee and the government.
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 applicant acts on behalf of the heirs of her father-in-law, E.I. L., a stockbroker of Austrian descent.
The investigation has confirmed that L. was the owner of the above-mentioned paintings NK 1407 and NK 1624 until into the war.
In her letter dated 26 November 2001, the applicant indicated that L. was not a member of a persecuted segment of the population. Despite this unambiguous assertion, the Committee decided to carry out additional research in view of the fact that L. is a common Jewish surname and also in the light of other indications which suggest that L., during the war, was regarded as a person of Jewish descent. In this connection, the Committee held talks with persons involved and performed additional research into various personal data files. In the Committee’s view, the results of these investigations have sufficiently confirmed that L. was not a member of a persecuted segment of the population.
Given the above, the applicant cannot support the admissibility of her request by referring to the assumption that L. involuntarily lost possession of the painting as a direct consequence of the Nazi regime. This means that other grounds for her request will have to be found.
As regards the lost property, both paintings are known to have been sold by L. himself. “The sleeping inn keeper” (NK 1624), which was believed to be an original Nicolaas Maes at the time, was sold to the German citizen Göpel at the end of 1941, via the art dealer Cramer; the painting by Thomas de Keyser (NK 1407) was sold to Dienststelle Mühlmann in 1942. Both paintings were purchased in order to be added to Hitler’s art collection in the Führermuseum in Linz.
The primary factors relevant to establishing whether the sale was involuntary are the statement on this subject by L. himself shortly after the Second World War, and the actions he undertook to obtain restitution.
In that context, the following facts are in order. Declaration forms exist for both paintings, dated 12 October 1945. On each of these forms L. indicated that the transaction involved was a forced sale. The Nicolaas Maes painting, still regarded as an original at the time, was sold to the father of the above-mentioned Mr H.M. Cramer, who, according to his son’s statements – which the Committee believes to be accurate – acted on behalf of the German purchaser for the Führermuseum in Linz, a Dr. Göpel. In his explanatory notes L. writes the following: “Dr. Göpel repeatedly tried to buy this painting from me. I refused on several occasions, but in the end I succumbed to his pressure.” The De Keyser painting was sold to Dienststelle Mühlmann via E. Plietsch. On this transaction, L. writes: “I was put under pressure to sell the painting to Dr. Pflister [evidently he means Plietsch], who visited me and presented me with a document issued by the Reichs-Commissariat. Apparently, the fact that the painting was exhibited in the Boymans Museum helped the Germans find out that I was its owner.”
Just over two months earlier, on 1 August 1945, L. had written a letter to the Netherlands Art Property Foundation (Stichting Nederlandsch Kunstbezit, or SNK below). In that letter, L. refers to a telephone conversation he had had a few weeks earlier about the De Keyser painting, “which I was forced to sell to the Germans and would like to regain possession of”. The letter makes no mention of the Maes painting, nor has any other letter been retrieved in which he requests its restitution. However, the Committee believes it is highly likely and assumes, therefore, that L. made a similar request in respect of the Nicolaas Maes painting, as no reasonable argument can be found why he should not have made such a request, even less so because at the time the painting was still regarded as an original work by Nicolaas Maes. We cannot but assume that the true facts of the matter have become impossible to retrieve through lapse of time since 1945. The risk incurred in connection with the associated lack of evidence should be borne by the government (also see 'General considerations' above).
Nearly four years later, both paintings had returned to the Netherlands. The SNK wrote two letters to L.: one dated 13 September 1949 concerning the painting by De Keyser and the other dated 14 September 1949 concerning the painting by Maes. In the first letter the SNK evidently assumes that there is no need to prove that this was actually a forced sale, given that the painting was sold to Dienststelle Mühlmann. Clearly, the SNK was sufficiently aware of the purchasing practices of that institution. In its second letter, however, the SNK does ask L. to demonstrate that this was a forced sale. Apparently, the SNK assumed that the sale via Cramer could have been a voluntary transaction. However, with reference to the statements issued by Cramer’s son, the above-mentioned Mr H.M. Cramer, which show that Mr Göpel was a purchaser whose demands could not be easily refused, the Committee believes there is a sufficient case for the view that this, too, was in fact a forced sale. This view is corroborated by the fact that L., as the Committee has reason to believe, was not in the habit of selling items from his collection.
In order to gain further certainty that L. involuntarily lost possession of the paintings, the Committee asked professor Dr Joh. de Vries, retired professor of economic history, to give his view on the position of, among others, stockbrokers in the Second World War. Mr de Vries’ advice suggests that unlike bank staff, who clearly felt a sense of mutual solidarity and esprit de corps, a stockbroker was left to his own devices and could not rely on his relatives, friends, neighbours or the church to lend a helping hand when he got into trouble. Professor De Vries concluded that if this was true for Dutch citizens, there is all the more reason to assume that it was true for persons of German or Austrian descent, and that they could easily have been blackmailed. Whether the blackmail involved chantage amicale would have made no difference in terms of its consequences, according to professor De Vries.
On the basis of the statements above and with due regard for their mutual connections, the Committee believes there is every reason to assume that both paintings were lost involuntarily due to circumstances directly related to the Nazi regime.
The Committee will now have to answer the question of whether the application for restitution should be regarded as settled, in which case the application would no longer be admissible. In this regard, careful consideration must be given to L.’s written response to the SNK dated 22 September 1949. In it he states, among other things, “that [he did] not intend to (…) repurchase the two paintings”. Due to those statements, the file was closed and stamped: 'NO CLAIM BY PREV. OWNER'. Nevertheless, L.’s statement quoted above by no means warrants the conclusion that L. waived his right to restitution, even less so because four years earlier L. had explicitly applied for restitution of the De Keyser painting and, according to the Committee, did so in respect of the Maes painting as well. It is much more likely that the specific circumstances in which L. found himself after the war, including his financial trouble, withheld him from fulfilling his former wish to regain possession of the paintings. The application for restitution, therefore, cannot be regarded as a settled case.
The question that remains is whether the applicant should pay any amount in compensation for the restitution of the two paintings. On this particular matter, the Committee has made the following considerations. The Thomas de Keyser painting was sold at the time for NGL 38,000. The painting by Maes, which was still believed to be an original at the time, was sold for NLG 78,000 or German Reichsmarks. It is possible and, in the case of the Maes painting, even highly likely that a commission fee was deducted from these amounts; such a fee usually varied between 10 and 25%. The exact amount received by L. in the transaction, therefore, is still uncertain. Nevertheless, this does not alter the Committee’s conclusion that the sale of the two works must have generated a fairly substantial amount.
With due regard for the guiding principle that the original owner should not be unlawfully enriched, the Committee believes it is reasonable to ask the applicant to pay a certain amount upon restitution. Of the various methods that are conceivable for determining that amount, the Committee opts for fixing it at the current appraised value of the paintings in a private sale, to be established by a licensed appraiser, decreased by a 25% commission and subject to the Committee’s view that the appraisal costs should be borne by the government.
The Committee will leave it to the Ekkart Committee and the State Secretary to decide whether the money thus received by the government should be earmarked for any particular purpose.
The Committee advises the State Secretary for Education, Culture and Science to return the paintings “Portrait of a man with a greyhound” by Thomas de Keyser (NK 1407) and “The sleeping inn keeper” after Nicolaas Maes (NK 1624) to the heirs of E.I. L. upon payment by those heirs of an amount equal to the current proceeds on the private sale of said paintings, to be appraised by a licensed appraiser and after deducting a 25% commission fee.
Adopted at the meeting of 7 April 2003.
J.M. Polak (Chairman)
B.J. Asscher (Vice Chairman)
E.J. van Straaten
H.M. Verrijn Stuart