Recommendation regarding Von Pannwitz
In a letter dated 7 May 2007, the Minister for Education, Culture and Science (OCW) requested the Restitutions Committee (hereafter referred to as: ‘the Committee’) to issue a recommendation regarding the application of 30 March 2007 by G.P. of B. A., Argentina (hereafter referred to as: ‘the applicant’) for the restitution of six paintings that are currently part of the Netherlands Art Property Collection (NK collection). The applicant is represented by her lawyer, L. Fremy of Berlin. The application concerns the following paintings:
Man with beard and turban, follower of Rembrandt van Rijn (NK 1602);
St. Werner, Master of Messkirch (NK 1633);
Mary with the Christchild and the infant John the Baptist, L. Cranach (NK 1883);
St. Barbara (NK 2554) and St. Catherine of Alexandria (NK 2555), Master of Frankfurt;
The Birth of Mary, H.S. von Kulmbach (NK 2559).
The painting NK 1602 is currently housed in the depot of the Netherlands Institute for Cultural Heritage in Rijswijk, the paintings NK 1633 and NK 1883 are part of the collection at the Bonnefantenmuseum in Maastricht and the paintings NK 2554, NK 2555 and NK 2559 are housed in the Mauritshuis in The Hague.
The applicant has had research conducted into the provenance of the paintings, which were formerly the property of her grandmother Catalina Carolina Friedericke Georgine Roth, the widow of Walter Sigismund Emil Adolf von Pannwitz. Based on this research, the applicant has decided to submit an application for restitution to the Minister.
In response to the request for a recommendation, the Committee instituted a fact-finding investigation, the results of which were summarised in a draft investigatory report dated 8 September 2008. On 29 September 2008, the draft investigatory report was sent to both the Minister and the applicant, providing them with the opportunity to add more information. The applicant replied in writing on 7 November 2008. The report was subsequently altered and adopted on 6 April 2009. For the facts of the case, the Committee refers to this report.
In her capacity as heir, the applicant requests the restitution of six paintings formerly owned by her grandmother. The applicant is the daughter of Ursula von Pannwitz, who was the only child of Catalina Carolina Friedericke Georgine Roth (1876-1959) and Walter Sigismund Emil Adolf von Pannwitz (1856-1920). In this context, the Committee has taken cognisance of several documents pertaining to the law of inheritance. These documents have given the Committee no reason to doubt the applicants’ status as the rightful heir.
The relevant facts are described in the investigatory report dated 6 April 2009. The following is a summary. Catalina Carolina Friedericke Georgine Roth was born of Jewish descent in Rostock, Germany in 1876. Her family owned a substantial amount of land in Argentina. In 1908, she married Walter Sigismund Emil Adolf von Pannwitz, a German lawyer from an aristocratic family. In 1919, she was granted Argentinean nationality. The couple built up a large art collection which included Italian, French, German and Dutch paintings from the 15th to the 17th centuries, bronze and ceramics. After her husband’s death in 1920, Catalina Von Pannwitz-Roth (hereafter referred to as: ‘Von Pannwitz’) settled in the Dutch country estate of ‘De Hartekamp’ in Heemstede.
On 18 October 1940, more than five months after the German occupation of the Netherlands, Von Pannwitz sold the six claimed paintings to Reichsmarschall Hermann Goering in exchange for a sum of money and an exit visa to Switzerland. The negotiations were conducted via Goering’s art collector Walter Andreas Hofer. The purchase price was NLG 390,000, a price that, even at the time, was deemed to be high. The Committee has taken cognisance of various documents relating to this transaction, which show that the money was transferred into Von Pannwitz’s bank account at the Handel-Maatschappij H. Albert de Bary & Co N.V. (hereafter referred to as: ‘De Bary’) in Amsterdam. Von Pannwitz was given permission to export approximately 15,000 Swiss francs (approx. NLG 6,500). The investigation shows that during the war ‘De Hartekamp’ was under Goering’s protection and was left untouched. Similarly, Von Pannwitz’s art collection, which was transferred to the Rijksmuseum in Amsterdam after her departure, remained intact.
On 12 September 1945, Von Pannwitz submitted a declaration of the sale of the six paintings to Goering to the Netherlands Art Property Foundation (SNK). She wrote on the declaration form that the sale had been involuntary. In the accompanying letter, she wrote: I hereby inform you that, in October 1940, the following paintings from my collection were sold on request to the Reichsmarschall Hermann Goering via Mr Walter Andreas Hofer and subsequently transported to Germany. The letter also contained a summary of the six paintings, including photographs of five of them. In addition, Von Pannwitz stated that she hoped that ‘it will be possible to trace these paintings and return them to the Netherlands.’
On 19 November 1949, the SNK informed Von Pannwitz in writing about the recovery of the paintings. Documentation shows that, at the time, the SNK valued the paintings at NLG 130,000. The letter also states that the director of the Rijksmuseum in Amsterdam had informed them that Von Pannwitz was not interested in restitution of the works. Von Pannwitz was asked to confirm this. After receiving a reminder on 23 March 1950, Von Pannwitz’s secretary replied to the SNK in writing on 27 April 1950, enclosing a signed statement by Von Pannwitz, which stated the following:
‘The undersigned hereby declares that she is not interested in the restitution of the following paintings that belonged to her collection and have been recovered from Germany:
Master of Frankfurt St. Barbara,
Ibid. St. Catherine,
Hans von Kulmbach The Birth of Mary,
Lucas von Cranach Mary with John the Baptist,
Rembrandt Portrait of a Man,
Master of Messkirch St. Werner,
and that your office is free to make use of them as you see fit.’
No further correspondence between the SNK and Catalina von Pannwitz has been found in the SNK file, and the investigation uncovered no further documentation in the archives of the Netherlands Property Administration Institute and the Council for the Restoration of Rights concerning the claimed paintings. The Committee concludes, therefore, that Von Pannwitz did not change her mind at a later date.
To substantiate her claim, the applicant states that given the fact that wartime sales to the Germans were deemed null and void under the Dutch law of war (the Legal Transactions (Wartime) Decree), Von Pannwitz never legally relinquished ownership of the works. However, on the basis of Section 2 (d) of the Decree establishing the advisory committee on the assessment of restitution applications of 16 November 2001, the Committee considers that it is the government’s policy on restitution rather than the post-war law that acts as the decision-making framework when assessing claims for restitution. Moreover, the Committee deems that the applicant’s interpretation of the rules is incorrect: with regard to the restoration of property, the invalidity of transactions with the Germans was abolished after the war and the Dutch State acquired ownership of property that, contrary to the ban on transactions with the enemy, was sold during the war. However, until the early 1950s, the original owner could make a claim for the restoration of their property rights with the Jurisdiction Department on the basis of the Restitution of Legal Rights Decree E100 of 21 September 1944.
The investigation described above has shown, however, that Von Pannwitz did not seek the restoration of her rights after the war. In the Committee’s opinion, her statement of April 1950, as quoted in section 5 above, provides explicit evidence of her renunciation of her rights of action. The statement provides no room for doubt: Von Pannwitz was ‘not interested in restitution’ of the six paintings and the SNK were ‘free to make use of them as you see fit’. The statement was made unreservedly and Von Pannwitz did not change her mind at a later date.
The question is whether the applicant’s claim in this case is admissible. The basic premise of restitution policy is that the post-war restoration of rights should not be repeated. This means that, in principle, settled cases will not be reopened. This rule, therefore, also applies if the claim concerns works of art that were forcibly sold during the war. The government has decided that a case is settled if the ‘claimant explicitly waives their right to restitution’ (Government response of 29 June 2001 to the recommendations of the Ekkart Committee, TK 2000-2001, 25 839, no. 26). Only in the event of new facts or insights will the Committee have the jurisdiction to reassess a case.
In this regard, the applicant responded to the draft investigatory report by stating that Von Pannwitz’s 1950 statement must be seen in light of the then SNK policy, which stated that sold works would only be restituted upon payment of the sale price and any additional costs. According to the applicant, Von Pannwitz was financially unable to meet this requirement in 1950. While the applicant concedes that the purchase price was transferred into Von Pannwitz’s bank account during the war, it is uncertain what happened to the account and that it should be presumed that Von Pannwitz was only able to take a small amount (if anything at all) with her to Switzerland and that whatever the case may be, it was not at her disposal. The applicant refers to the SNK declaration form dated 12 September 1945 (see section 4) in which Von Pannwitz states that she is interested in the restitution of her paintings and the restoration of her property rights. The applicant has provided no documentation to substantiate these theories.
The Committee does not agree with the applicant’s point of view. With regard to the significance that can be attached to Von Pannwitz’s declaration of 1945, the Committee points to the fact that on the basis of post-war regulations imposed by the military authorities, anyone who sold works of art to the Germans during the occupation was required to report it. The aim of this was to enable the Dutch authorities to have a better overview of the missing works and use the declarations to help trace and recover the works more quickly. Von Pannwitz’s declaration of 12 September 1945 merely meant that she had satisfied this legal obligation. A claim for restitution cannot be derived from it. In addition, the Committee also observed that the wording in the accompanying letter, as quoted in section 4, does not imply such.
The Committee deems the applicant’s other theories to be similarly unconvincing, pointing to the fact that Von Pannwitz never indicated that her financial position was the reason she renounced her request for restitution. Additional research in the archives of the Netherlands Property Administration Institute regarding Von Pannwitz and the trading bank De Bary has also failed to uncover anything that suggests Von Pannwitz did not receive the purchase price or did not have it at her disposal. Furthermore, it has not been proven that, in 1950, Von Pannwitz had insufficient means to buy back the paintings. The price she received for the paintings was transferred into her current account at De Bary and there is nothing to suggest that Von Pannwitz’s account was frozen or that her assets were confiscated, as was the case with Dutch Jews during the occupation. Due to Argentina’s neutrality, Argentinean subjects – Jewish or otherwise – enjoyed protection against such measures. The Committee recognises the possibility that, during the war, Von Pannwitz may not have been able to access her assets in the Netherlands due to limitations in international money transfers. This could also explain why Von Pannwitz was only given permission to export a limited amount of Swiss francs. However, there is no reason to assume that Von Pannwitz could not access her assets with De Bary at the moment that she decided not to claim the paintings. Extant documentation from the NBI has shown that she was not considered an enemy subject by the Dutch authorities given that she had lost her German nationality in 1919, and her bank accounts were not frozen after the war. It can be derived from an extant letter from De Bary to the Ministry of Finance from January 1956 that, after the war, Von Pannwitz was required to pay capital growth tax and, therefore, must have enjoyed capital appreciation during the war, and that she had significant assets at her disposal after the war. The Committee, therefore, deems it improbable that her decision not to claim the works was based on financial straits.
Now that there is no question of negligence in the post-war procedure, the Committee has found no new facts that would justify reopening the case.
The Restitutions Committee advises the Minister for Education, Culture and Science to reject the application for restitution of the works registered under inventory numbers NK 1602, NK 1633, NK 1883, NK 2554, NK 2555 and NK 2559.
Adopted at the meeting of 6 April 2009 by W.J.M. Davids (chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart and I.C. van der Vlies, and signed by the chair and the secretary.
(W.J.M. Davids, chair) (E. Campfens, secretary)