Recommendation regarding Lachmann
In a letter dated 2 April 2007, the Minister for Education, Culture and Science (OCW) asked the Restitutions Committee to issue a recommendation regarding the application submitted on 20 March 2007 by V.B.L. (‘the applicant’) for the restitution of Portrait of a woman with a fan by J.A. Rootius. The claimed work, previously attributed to B. van der Helst, with inventory number NK 3389, has been in the Netherlands Art Property Collection (‘NK collection’) since its return to the Netherlands after the Second World War. According to information from the Netherlands Institute for Cultural Heritage in Rijswijk (‘ICN’), the claimed artwork is currently stored in the ICN depot.
The application for restitution was prompted by the correspondence with the Origins Unknown Agency (‘BHG’) concerning the aforementioned painting that had probably belonged to Hugo and Alice Lachmann, a Jewish-German couple, during the war. In response to the request for a recommendation, the Restitutions Committee instituted a fact-finding investigation, the results of which were summarised in a draft report dated 3 December 2007. This draft report was submitted to the applicant, to which she replied in a letter received on 7 February 2008. The investigatory report was subsequently adopted on 3 March 2008. For the facts of the case, the Committee refers to this report, which is considered an integral part of this recommendation.
a) The 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 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 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 if the art was privately owned, save in cases where exceptional circumstances apply.
d) 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.
e) It is highly probable that loss of possession was involuntary if the object was sold without the art dealer’s consent, by ‘Verwalters’ [Nazi-appointed caretakers who took over management of firms owned by Jews] or other custodians not appointed by the owner of items from the old trading stock under their custodianship, in so far as the original owner or his heirs did not receive all the profits of the transaction, or in so far as the owner did not expressly waive his rights after the war.
Explanation of general considerations c and e
In line with the recommendations with regard to art dealing and the explanation thereof, the Committee has come to the conclusion that consideration c should only apply to the ownership of art by private parties. Consideration e has been modified accordingly and, furthermore, this consideration should be taken to mean that only those objects that were effectively part of the old trading stock are eligible for restitution.
The applicant requests the restitution of the painting Portrait of a woman with a fan by J.A. Rootius, previously attributed to B. van der Helst (NK 3389). The applicant says that she is sole heir of L. Lachmann, the son of Hugo and Alice Lachmann. For this purpose, the Committee has taken cognisance of several law of inheritance documents. According to the applicant, the Lachmanns lost possession of the painting in question when it was confiscated during the war.
The relevant facts are described in the investigatory report of 3 March 2008 and summarised here. It can be concluded from various post-war documents that the Jewish couple Hugo and Alice Lachmann left Germany in 1939 or thereabouts to escape the Nazis, and settled in Switzerland. They had their household effects transported in two crates from Berlin to Rotterdam. On arrival, the crates were stored at Transatlantica N.V., a transport and shipping company.
When studying the archive of the Netherlands Property Administration Institute (‘NBI’), the Committee found a copy of a letter dated 1 December 1943 from the German looting organisation Sammelverwaltung feindlicher Hausgeräte (‘Sammelverwaltung’) to Transatlantica N.V., concerning the crates containing the Lachmanns’ household effects. The contents of the letter confirm that the Sammelverwaltung had seized the crates in December 1943.
Post-war correspondence shows that in June 1944, the Sammelverwaltung commissioned the Vendu Notarishuis N.V. in Rotterdam to auction the claimed painting. It was purchased on the instructions of art dealers P. de Boer of Amsterdam, who sold it during the war to one Kaminski of Bergen, who in turn sold it to the Kunsthalle in Hamburg.
After the war, De Boer completed a declaration form at the Netherlands Art Property Foundation (‘SNK’) concerning the sale of this painting. Between 1950 and 1952, J. Jolles, director of the bureau for restoration payments and the restoration of property (‘Bureau Hergo’), the successor of the SNK, corresponded with De Boer, Vendu Notarishuis N.V., the NBI and M. Thoolen, Alice Lachmann’s lawyer, concerning the provenance of the painting. With reference to this, Alice wrote a letter, in German, to Bureau Hergo on 18 December 1952, describing the possessions she lost, including the work in question. It was found that a mistake had been made in the translation of this letter. The German word ‘Spitzenkragen’ was wrongly translated as a ‘pointed collar’ instead of ‘lace collar’. As a result, the description did not match that of the painting in question. This misunderstanding probably made the restitution authorities cautious about returning the work.
The Committee’s research has shown that the correspondence Alice Lachmann conducted after the war with the Dutch restitution authorities did not result in a decision about the restitution of the claimed work. The Committee therefore concludes that this case cannot be considered to have been settled in the past and deems the application admissible.
The current restitution policy allows a claimed object to be returned if the original owner lost possession of it involuntarily due to circumstances directly related to the Nazi regime. It is clear that the claimed object was seized by the occupying forces in 1943 under anti-Jewish measures put in place by the Nazis. The Committee is therefore of the opinion that in this case, loss of possession was involuntary and a result of circumstances directly related to the Nazi regime.
The Restitution Committee advises the Minister for Education, Culture and Science to return the painting Portrait of a woman with a fan by J.A. Rootius (NK 3389) to the heirs of Hugo and Alice Lachmann.
Adopted at the meeting of 3 March 2008 by R. Herrmann (chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart, I.C. van der Vlies (vice-chair), and signed by the chair and the secretary.
(R. Herrmann, chair)
(E. Campfens, secretary)
 Until 12 November 2007, general considerations c and e read:
c) The 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 in cases where exceptional circumstances apply.
e) Involuntary loss of possession is also understood to mean sale without the art dealer’s consent by ‘Verwalters’ [Nazi-appointed caretakers who took over management of firms owned by Jews] or other custodians not appointed by the owner of items from the old trading stock under their custodianship, insofar as the original owner or his heirs did not receive all the profits of the transaction, or insofar as the owner did not expressly waive his rights after the war.