Recommendation regarding Behrens
In a letter dated 10 April 2007, the Minister for Education, Culture and Science asked the Restitutions Committee to issue a recommendation regarding a decision to be taken on the application submitted on 9 March 2007 by I.L., E.E.S.G., E.K.B. and J.O.B (hereafter referred to as ‘the applicants’) for the restitution of the painting Female figure at a well by J.B.C. Corot. The claimed object has been part of the national collection since 1942 and according to details from the Netherlands Institute for Cultural Heritage (hereafter referred to as ‘the ICN’) is currently housed in the Kröller-Müller Museum in Otterlo.
The reason for the application for restitution was an email sent to the Kröller-Müller Museum by the applicants in which they sought information concerning several paintings by Corot, including the painting in question, which are said to have been owned by the Jewish banker G.E. Behrens during the Nazi regime. The museum informed the applicants that the painting was part of the museum’s collection and advised them of the possibility of submitting an application for restitution to the Ministry of Education, Culture and Science (OCW). 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 7 April 2008. This draft report was submitted to the Minister for OCW in a letter dated 28 April 2008 by way of supplementary information, and the Committee pointed to the possibility of providing a copy of the draft investigatory report to the Kröller-Müller Museum. The Minister found that there was no reason to do so. On 28 April 2008, the Committee also sent the draft investigatory report to the applicants, who responded to the contents in a letter dated 6 June 2008. The draft investigatory report was subsequently adopted on 3 July 2008. For the facts of the case, the Committee refers to this report, which is considered an integral part of this recommendation. Given that the painting was bought by the former Rijksmuseum Kröller-Müller during the war, the painting became part of the national collection. Although the painting is not part of the Netherlands Art Property Collection (hereafter referred to as the ‘NK collection’), which is predominantly made up of artworks recovered after the liberation of the Netherlands, but is part of the national collection, the Committee advises the Minister in the context of Section 2, subsection 1 of the Decree establishing the Advisory Committee on the Assessment of Restitution Applications. Mr E.J. van Straaten, director of the Kröller-Müller Museum, has asked to be excused from providing a recommendation in the case. During the procedure, the applicants were represented by A. Honert, a lawyer based in Bologna, Italy.
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 applicants are requesting restitution of the painting Female figure at a well by J.B.C. Corot. The applicants claim to be the heirs of George Eduard Behrens (hereafter referred to as ‘Behrens’). Accordingly, the Committee has taken cognisance of several inheritance documents, which have not led the Committee to question the status of the applicants. According to the applicants, Behrens lost possession of the painting in question as a result of the Nazi regime in Germany.
The relevant facts are described in the investigatory report of 3 July 2008, and are summarised as follows. Behrens was born in Hamburg in 1881, the son of a Jewish banker Eduard Ludwig Behrens and his wife Franziska Gorrissen. Behrens was (co-)owner of the banking firm L. Behrens & Söhne, located in Hamburg, and owned an important art collection, which had been started by his grandfather.
Behrens inherited the collection by way of a specific legacy in the joint last will and testament (under German law) of his parents. On his father’s death in 1925, Behrens loaned the collection to the city of Hamburg for a period of ten years. In 1935, the Nazi authorities informed Behrens that a number of paintings from his collection had been included in the ‘Verzeichnis der national wertvollen Kunstwerke’ (list of works of art considered to be of national value), which meant that these paintings could leave the country with the government’s consent. In all probability, these artworks also included the currently claimed painting.
In May 1938, Behrens’ banking firm was ‘aryanised’ and in November of that year, he was arrested and detained until December in the concentration camp in Sachsenhausen. On his release, Behrens tried to emigrate. In order to obtain an exit visa, he was forced to pawn all his possessions to the State. In April 1939, Behrens fled to Belgium, before reaching Cuba in 1940. The painting by Corot remained in Hamburg. The Committee has not been able to ascertain how Behrens lost possession of the painting. The applicants claim that it was sold in the period between October 1939 and April 1942. They consider the painting to be one of the ‘verfolgungsbedingt entzogener Kunstgegenstände’ (works of art confiscated in relation to the persecution) of Behrens. They also associate the loss of these works with persecution by the national socialists and his intended flight from Germany. The investigation uncovered no information concerning the sale of the painting. However, it did uncover that, in September 1941, the painting was in the possession of the German art dealer, H.W. Lange.
Correspondence found in the archives of the Kröller-Müller Museum shows that the museum bought the currently claimed painting from H.W. Lange in June 1942. Lange had offered the painting to the museum at the behest of Kajetan Mühlmann, head of the German looting body Dienststelle Mühlmann. In October 1940, Mühlmann had confiscated three paintings on behalf of the German authorities from the former Rijksmuseum Kröller-Müller. To make the confiscation appear legitimate, the Nazi authorities made NLG 600,000 available to the museum for the purchase of new artworks. The purchase price of the painting in question was paid for from this so-called ‘600,000 fund’.
After the war, Behrens returned to Hamburg, where he submitted a request for reparation with the Wiedergutmachungsamt in Hamburg. According to the applicants, this did not concern compensation for the loss of the painting in question. Behrens died in Hamburg in 1956. The Committee has been unable to ascertain if Behrens ever received any compensation for the loss of the painting. Nor did the investigation uncover any details that point to the fact that Behrens had contact with the Dutch restoration of rights authorities concerning the currently claimed painting. There is, therefore, no question that the case was concluded and the Committee deems the applicant’s request to be 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 Behrens lost possession of the currently claimed object during the Nazi regime in Germany. The Committee is therefore of the opinion that, based on considerations in 4 above, there is sufficient evidence to suggest that loss of possession by Behrens was involuntary and a result of circumstances directly related to the Nazi regime and his subsequent flight from Germany. Therefore, the Committee is of the opinion that the conditions for restitution have been met. Given that there is nothing to suggest that Behrens ever received anything in the way of compensation for the loss of the painting, the painting can be restituted without any payment being required.
The Restitutions Committee advises the Minister for Education, Culture and Science to return the painting Female figure at a well by J.B.C. Corot to the heirs of George Eduard Behrens.
Adopted at the meeting of 3 July 2008 by R. Herrmann (chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, 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.