Recommendation regarding I. Rosenbaum NV
(case number RC 1.82-B)
In a letter dated 21 May 2007, the Minister for Education, Culture and Science (hereafter referred to as: ‘the Minister’) requested the Restitutions Committee (hereafter referred to as: the Committee) to issue a recommendation regarding the decision concerning the application of G.S. of N.Y.C. and J.L. of L.A. (hereafter jointly referred to as ‘the applicants’) for the restitution of a number of objects which are part of the Netherlands Art Property Collection (NK collection) administered by the Dutch government. This recommendation concerns thirteen objects:
a pitcher, brown glazed stoneware, Germany (NK 180)
two octagonal porcelain dishes, glazed, polychromed decor, birds by a bridge China (NK 181 A-B)
a small white jug with tin mount and cover, Delft (NK 455)
two vases and covers with polychromed decor of floral motifs and a parrot on the cover, Delft (NK 456 A-B)
two walnut armchairs in Chippendale style, England (NK 659A-B)
workshop of J. Palma il Vecchio, The Holy Family with John the Baptist and St. Catherine (NK 1436)
N. Neufchatel (formerly attributed to Sotte Cleve), Portrait of a man (NK 1457)
I. van Ostade, Barn interior with three playing children (NK 1474)
D. Teniers II, Kitchen scene with game (NK 1845)
J. van Loo (formerly attributed to A. Cuyp), Three men in a wine cellar (NK 2173)
Königliche Sächsische Porzellan-Manufaktur (Royal Saxon Porcelain Manufactory), Two sweet-boxes flanked by glazed pottery negress in polychromed decor (NK 2903 A-B)
Meester van de Cappella Medici Polyptiek, St. Nicolaas of Bari (NK 2915)
N. Maes, Portrait of a man (NK 3269)
In a letter dated 28 March 2007, the applicants requested restitution of the above-mentioned objects from the Netherlands Art Property Collection, which were said to be the property of the public limited liability company I. Rosenbaum NV in Amsterdam (hereafter referred to as: ‘Rosenbaum’ or ‘art dealership Rosenbaum’). In a letter dated 30 March 2007, the applicants advised that the application for restitution was, in part, being made on behalf of S. Ltd., an art dealership in New York, as ‘successor company’ to art dealership Rosenbaum, which was liquidated in 1947. They clarified their application in further letters to the Committee dated 14 November 2008, 30 March 2009 and 20 September 2010.
The original application for restitution concerned more works. In his letter dated 21 May 2007, the Minister excluded three paintings that were part of the request for advice sent to the Committee because they were previously returned as part of the Goudstikker case (RC 1.15) and were, therefore, no longer part of the National Art Property Collection. In a letter dated 10 December 2009, the applicants withdrew their application concerning those paintings (NK 3260, NK 3270 and NK 3271) and painting NK 3122.
In a letter dated 14 November 2008, the applicants supplemented their application with a claim to a commode in Regency style (NK 256). The Committee included the application concerning that object in a separate file (Rosenberg, RC 1.105), on which a recommendation was issued on 3 May 2010. The Committee did the same with the application for restitution for the painting Landscape with classical temple by Hubert Robert (NK 1432), which was removed from the current application because of a competing claim to this work (Mathiason, RC 1.108). As regards the application for restitution concerning Rosenbaum for NK 1432, the Committee issued a recommendation (Rosenbaum, RC 1.82-A) on 31 January 2011.
The Committee conducted a fact-finding investigation with regard to the application for restitution covering the thirteen above-mentioned objects, the results of which were laid down in a draft investigatory report that the Committee sent to the applicants for comment on 10 May 2010 (a first version) and on 14 June 2011 (a second version), and to the State Secretary for Education, Culture and Science (hereafter referred to as: the State Secretary) with a request for additional information. The State Secretary advised that he had no further information to provide to the Committee. In a letter dated 20 September 2010, the applicants commented on the first version of the draft report, in which they addressed such issues as the position of S. Ltd. as the ‘successor company’ to Rosenbaum, and they had no comments to make on the second version.
During the procedure, the Committee consulted the chartered accountant L.J.W.M van der Elst, a former partner at Ernst & Young, as an expert. His findings were summarised in a report issued on 18 October 2011, which was sent to the applicants together with a memo from the Committee dated 26 September 2011, which enumerated the additional investigation results. The applicants used the opportunity they were given to comment on these documents.
As such, the investigatory report was then adopted on 19 December 2011. The applicants are being represented in this current procedure by Markus H. Stötzel, lawyer, of Marburg (Germany).
The pertinent facts are outlined in the investigatory report. The following is a summary. The Rosenberg (Saemy and his brothers Raphael and Siegfried) and the Stiebel (Eric and Hans) cousins, all Jewish, worked in the art dealership set up by their grandfather Jacob Rosenbaum in Frankfurt between 1860 and 1870. Shortly after Hitler’s rise to power, they left Germany. Saemy Rosenberg (hereafter referred to as: Rosenberg) was apparently already in Amsterdam in April 1933, where he and his brothers became directors of NV Internationale Antiquiteitenhandel Amsterdam. Saemy and Raphael Rosenberg later acquired shares in this company, as did their cousins Eric and Hans Stiebel, and in 1938 the name of the company was changed to I. Rosenbaum NV. In the Second World War or shortly thereafter, Rosenberg became the sole shareholder of art dealership Rosenbaum.
Partly because of the Nazi threat, Rosenberg and his brothers left Amsterdam between 1937-1939 and set up shop in England and the United States. In May 1940, E.C.M. Peters, who was already working at Rosenbaum’s before the occupation, was appointed acting director by supervisory director and co-founder of the company, lawyer P. J. Jürgens pursuant to the then article 8 of the company’s articles of association on the basis of the absence of the director(s), who were residing outside of the Netherlands. She was later (January 1941) appointed director. In November 1940/April 1941, the company’s registered office was moved from Amsterdam to Willemstad, Curaçao on Rosenberg’s initiative. On 24 November 1942, Rosenberg declared that the company’s ‘operating office’ was in New York. Rosenberg ran an art dealership with one or more family members originally under the name Rosenberg & Stiebel Inc., which was later changed to S. Ltd. During the war years, there probably was very little if any contact between Rosenberg in New York (who, during the war, considered himself as the sole company director) and Peters and Jürgens, who remained in the Netherlands. A post-war letter dated 10 August 1945 from Peters to Rosenberg reported that art dealership Rosenbaum in Amsterdam could initially continue more or less doing business as usual after the German invasion. All that changed in 1941. In 1941/1942, Dienststelle Mühlmann (one of the German looting organisations that acquired art for the Third Reich) categorised 19 Rosenbaum objects as ‘reichswichtige Kunstschätze’ [works that were of importance to the German Reich] and confiscated them. Following the Order concerning the Exclusion of Jews from Economic Affairs of 12 March 1941, Jewish art dealerships moreover came under increasing pressure. Until early 1942, Peters ran the art dealership alone. In February 1942, the occupying forces appointed Reichsdeutsche (person under the jurisdiction of the German Reich) Herbert Wieth as Rosenbaum’s Verwalter [administrator]. After the war, Peters and Jürgens were said to have stated that they had worked well with Wieth. In 1944, Wieth was replaced as Verwalter by the Dutchman Wietze Jager, whose task as ‘Liquidations-Treuhänder’ was to liquidate the art dealership, and who had the entire stock auctioned off in February 1945 far below its actual value, according to a statement made by those concerned. After the war, Peters tried to recoup the damages suffered by Rosenbaum from Jager.
Peters continued to act as director after the war. As sole shareholder, Rosenberg decided to dissolve Rosenbaum in 1947, naming himself, M. Meyer and the aforementioned P.J. Jürgens as liquidators. The liquidation was complete by 1 January 1948.
The applicants have stated that they are the heirs of ‘the late Isaak and Jacob Rosenbaum and descendants, especially of Saemy Rosenberg and Hans and Eric Stiebel’. The investigation has shown that applicant J.L. is a grandson of Saemy Rosenberg and applicant G.S. is Eric Stiebel’s son. In any case, Rosenberg and Eric Stiebel were Rosenbaum shareholders until 1940. The applicants have also stated that Rosenberg became the sole shareholder during the war years or shortly thereafter, and that L. is Saemy Rosenberg’s sole heir. In this context, the Committee has taken cognisance of various documents, on the basis of which it has no reason to doubt the status of Rosenberg and L.
Seeing as art dealership Rosenbaum has not existed since 1947, the Committee finds that Rosenberg, the sole shareholder when Rosenbaum was liquidated and recipient of the dealership’s ‘remaining assets’ at that time, according to a letter from the liquidators Meyer and Jürgens to Rosenberg dated 8 January 1948, is entitled to seek restitution of the objects this recommendation relates to, and that following his death, his heirs are entitled to such.
The Committee finds that S. Ltd, which is also an applicant in this claim, has not succeeded in proving that it be seen as Rosenbaum’s ‘successor company’, or that Rosenbaum supposedly acquired ownership of one or more of the thirteen objects in question before possession thereof was lost during the war years. The Committee, therefore, finds that the application for restitution from S. Ltd. is inadmissible.
As heir of Eric and Hans Stiebel, G.S. also does not qualify as a candidate to seek restitution of the objects that belonged to Rosenbaum. When Rosenbaum was being liquidated, Eric and Hans Stiebel were no longer shareholders, and, as such, their heir G.S. cannot be regarded as a stakeholder in the restitution.
As regards one of the objects discussed in this recommendation, the painting The Holy Family with John the Baptist and St. Catherine from the workshop of J. Palma il Vecchio (NK 1436), Rosenberg sought restitution on behalf of Rosenbaum in the post-war years. Consideration 22 addresses that application and the implications thereof in more detail. As regards the remaining twelve objects, the Committee found no evidence of Rosenbaum or Rosenberg having sought restitution in the post-war years or of having given up the right to restitution, so that nothing has been conclusively settled with regard to these objects. The Committee deems J.L.’s application for restitution for these twelve objects admissible. The Committee’s findings regarding the admissibility concerning NK 1436 are addressed in consideration 22.
The current application for restitution should be assessed in accordance with the Ekkart Committee’s Recommendations regarding the art trade (2003). To admit the application, it is first and foremost essential that there is a significant likelihood that the claimed objects were Rosenbaum’s property when the involuntary loss of possession occurred. An investigation then has to be carried out into whether the involuntary loss of possession occurred as a result of circumstances that were directly related to the Nazi regime.
The Recommendations for the art trade also state that, should there be no post-war declaration dockets, as is the case with Rosenbaum, anything indicating that it was highly likely that an enforced sale, theft or confiscation occurred should be regarded as grounds for restitution. When assessing these indications, threatening general circumstances with regard to Jewish art dealers must be allowed for. The sixth Recommendation also defines involuntary sale as the sale from stocks placed under their management by Verwalter or other administrators not employed by the owner.
With a view to assessing against these criteria, the Committee has distinguished the following five categories of objects:
a) ‘co-owned works’ with and actually owned by art dealership Goudstikker (NK 2915 and NK 3269) and
b) works owned by Rosenbaum, under consignment at art dealership Goudstikker (NK 1457, NK 1474, NK 2173);
c) works from Rosenbaum’s trading stock possibly or definitely purchased and sold by a Verwalter (NK 180, NK 181 a-b, NK 455, NK 456 a-b, NK 659 a-b, NK 2903 a-b);
d) Rosenbaum’s ownership uncertain (NK 1845);
e) owned by Rosenbaum and confiscated by Mühlmann (NK 1436).
Category a: Co-owned works with and actually owned by art dealership Goudstikker (NK 2915 and NK 3269)
Before the Second World War, Rosenbaum maintained very close commercial ties with art dealership Jacques Goudstikker N.V. (hereafter referred to as: Goudstikker), also located in Amsterdam. There was a ‘current account’ relationship between the two art dealerships. Goudstikker maintained good relationships with more art dealerships in the Netherlands, demonstrated by the fact that paintings were traded jointly, with Goudstikker often playing a leading role (see also the recommendation regarding Goudstikker, RC 1.15, consideration 14).
In a statement dated 24 November 1942, Rosenberg explains the ties between Rosenbaum and Goudstikker: ‘They bought and sold pictures and works of art in joint account. Furthermore, the two firms did business on a consignment basis.’ 32 paintings were named in three appendices to the statement, which were supposedly part of the commercial link between the two art dealerships when the Second World War broke out, i.e. eight paintings held by Goudstikker in which the parties held a ‘a half share’ (Exhibit A in the statement), three paintings held by Rosenbaum in which the parties also held ‘a half share’ (Exhibit B), and 21 paintings art dealership Rosenbaum held on consignment at Goudstikker’s (Exhibit C).
From various reports issued to Goudstikker in the war years, the Committee also found that there was extensive sales traffic in which both of the art dealerships were involved. Such reports include one (draft) report drawn up by the accountant J. Elte in 1942 concerning the establishment on 14 September 1940 of the company Kunsthandel voorheen J. Goudstikker NV (hereafter referred to as: Goudstikker-Miedl), the company in which the German Alois Miedl continued art dealership Goudstikker after Jacques Goudstikker fled to England in May 1940 and his death in an accident during this escape.
In the art world, private individuals or art dealerships often placed and still place art works up for sale on consignment at another art dealership. Rosenbaum and Goudstikker evidently conducted a lot of transactions based on this (‘consignment basis’), but also did business in what Rosenberg called a ’joint account’. These concern works that are referred to in Goudstikker’s bookkeeping as ‘co-owned works’. In its letter to the Deutsche Revisions- und Treuhand A.G. dated 23 August 1940, Rosenbaum outlines the nature of the co-owned works: ‘Im Antiquitaetenhandel ist es ueblich, dass der Metist, der die Gegenstaende in seinem Besitz hat, ueber die Gegenstaende als sein Eigentum verfuegen kann, sodass der andere Metist nicht einen dinglichen Anspruch hat, sondern nur einen Anspruch auf Abrechnung des halben Verkaufpreises.Wir glauben daher, dass wir nach den bestehenden Verordnungen, den Verkauf ohne Genehmigung durchfuehren und den Meta-Anteil dem Metisten gutschreiben duerften .(….).’
Based on this, the Committee understands a ‘co-owned work’ in this case to mean an artwork that is bought by one the parties for the joint account of two (or more) parties (‘metisten’), where the party that actually held the work was regarded as the legal owner, while economic ownership belonged to the parties jointly. As owner, the owning metist could independently dispose of the work, but was obliged to share the returns with the other metist(s) according to a ratio agreed by the metists. As such, the Committee has found that for the current claim, the art dealer that actually held the works should be regarded as the owner as defined by restitution policy.
It can be concluded from the documentation found that the current NK 2915 was purchased at a Frederik Muller auction in 1938 by art dealerships Goudstikker and Rosenbaum for a half share each, and was at Goudstikker’s premises in Amsterdam when the Germans invaded. A letter to Jacques Goudstikker probably signed by Siegfried Rosenberg was found in the NBI archive, from which it emerges that Rosenbaum purchased the current NK 3269 in or around 4 April 1940 for the joint account. Documentation shows that the painting was actually held at Goudstikker’s in July 1940.
As regards both paintings, it would seem that Goudstikker took over Rosenbaum’s half share as part of a sales transaction, proposed by A.A. ten Broek on behalf of Goudstikker in a letter to Rosenbaum dated 19 July 1940 (for further details on the sales transaction, see consideration 13).
The Committee, therefore, deems it plausible that these paintings concern Goudstikker and Rosenbaum’s co-owned works within the above meaning, with Goudstikker being tasked as the selling party and being the place where the works were actually held. In the Committee’s view, it is therefore likely that these works did not belong to Rosenbaum’s trading stock and cannot be considered as Rosenbaum’s property. Given that the paintings were held by Goudstikker at the time of the sales transaction (mentioned in the letter of 19 July 1940), it is more likely that these works belonged to Goudstikker’s trading stock (legal property). For this reason alone, the Committee has to advise that application for restitution of NK 2915 and NK 3269 be rejected.
Category b: Art dealership Rosenbaum’s works on consignment at Goudstikker’s (NK 1457, NK 1474 and NK 2173)
As regards the three other paintings (NK 1457, NK 1474 and NK 2173), the Committee finds that, in light of Goudstikker’s letter to Rosenbaum dated 19 July 1940 (further details of which are given under consideration 13), it is very likely that these were owned by Rosenbaum, and that they were on consignment at Goudstikker’s in July 1940.
It should also be noted that it is also likely that the current NK 1457 (one of the portraits formerly attributed to Sotte Cleve) is a work that was co-owned by Rosenbaum and H. Stiebel. For this, the Committee refers to the description in Rosenbaum’s letter dated 23 August 1940 to the Deutsche Revisions- und Treuhand A.G. of two Sotte Cleve portraits as co-owned works with H. Stiebel (see also consideration 8 above). Given the nature of co-owned works as outlined above, this means that in July 1940 the painting should be regarded as Rosenbaum’s (legal) property. Rosenbaum placed this work on consignment at Goudstikker’s then as well.
As the likely ownership of these works has been established, the Committee now addresses the question as to whether Rosenbaum lost these three paintings involuntarily as a result of circumstances that were directly related to the Nazi regime.
Of importance in this case is a sales transaction between Rosenbaum and Goudstikker that took place in July-September 1940, and which can be summarised as follows:
In a letter dated 19 July 1940, A. A. ten Broek, an employee at Jacques Goudstikker’s art dealership, wrote to Rosenbaum that Goudstikker would appreciate resolving all co-ownership between the two companies. In this letter, Ten Broek spoke as acting director of art dealership J. Goudstikker NV, and he proposed such things as:
a) Goudstikker taking over Rosenbaum’s ‘half share’ of the eight works it co-held, including NK 2915 and NK 3269;
b) Goudstikker taking over eight artworks, including NK 1457, NK 1474 and NK 2173, that were Rosenbaum’s property and on consignment at Goudstikker’s;
c) Rosenbaum taking over Goudstikker’s ‘half share’ in the three co-owned works it held. These works were already outside the Netherlands in July 1940 and are not part of the current application for restitution.
It would seem that the aim was to reach a final settlement of all current commercial ties between the two art dealerships, as the following excerpt testifies: ‘Na afwikkeling van deze transactie zyn tusschen onze beide firma’s geen kwestie’s meer hangende, behalve ons evtl. provisie-aandeel aan het schildery van Rubens ‘H. Gregorius &Domitilla’ [After this transaction has been settled, there are no more unresolved matters between both our companies except perhaps our share in the commission for the Rubens painting ‘St. Gregory & Domitilla’.]
Given that the paintings referred to under c) were outside the Netherlands, Goudstikker made the proposal under the proviso that the Foreign Currency Institute would give permission for the sales transaction Ten Broek concluded his letter with: ‘Zoodra wy Uw bevestiging in ons bezit hebben, dat U met e.e.a. accoord gaat zullen wij de bedoelde toestemming aanvragen.’ [We will apply for this permission as soon as we have your confirmation that you agree with this.]
The proposal appears to have been approved by Rosenbaum. On 27 September 1940, Peters wrote to Ten Broek: ‘Wy bevestigen hiermede de ontvangst van Uw schryven dd. 27 dezer en was het ons aangenaam te vernemen, dat de toestemming van het Deviezeninstituut tot het afwikkelen der voorgestelde transactie inmiddels door U werd ontvangen. Gaarne vernemen wy van U, wanneer U de diverse goederen by ons wilt laten afhalen.’ [We hereby confirm the receipt of your letter of the 27th of this month and were pleased to hear that you have meanwhile received permission from the Foreign Currency Institute to settle the proposed transaction. Would you please let us know when you would like the various goods collected from us?] Various accountants’ reports relating to the establishment of art dealership Goudstikker-Miedl on 14 September 1940, including the report issued by the accountant Elte, also indicate that the sales transaction concerning the five previously mentioned paintings proposed by Ten Broek was also actually conducted. As a result, it would seem that, in the summer of 1940, Goudstikker became the (legal and economic) owner, in so far as he was not already, of the paintings now known as NK 2915 and NK 3269 (category a, as discussed above), as well as the paintings NK 1457, NK 1474 and NK 2173 (category b).
As regards the question of whether Rosenbaum’s loss of possession should be regarded as involuntary as defined by current restitution policy (see also consideration 6), the following:
The Committee firstly asked itself the question of whether the fact that Ten Broek’s proposal could not be reviewed by Rosenbaum’s director (Rosenberg), who was outside the Netherlands, but could be reviewed by Peters and (presumably also) supervisory director Jürgens is reason to regard the loss of possession as a result of their decision as enforced. What could be of importance here is whether Peters should be seen as a ‘niet door de eigenaar aangestelde beheerder’ [a manager not appointed by the owner] (see also consideration 6). Given the following, the Committee answers this question negatively.
Peters was already working at Rosenbaum’s before the Second World War. On 5 December 1939, she received power of attorney from director Siegfried Rosenberg to sign certain documents. In May 1940, in the absence of the board which was outside the Netherlands, Jürgens, Rosenbaum’s co-founder and supervisory director, legally appointed her as (acting) director and she remained Rosenbaum’s director after the war, seemingly with Rosenberg’s agreement. Reinforcing the Committee’s opinion is the fact that, in November 1940, Rosenberg made an amendment to Rosenbaum’s articles of association via the Dutch legal authorities in London, which included having the company’s registered office moved from Curaçao and limiting the authorities of the directors on Dutch soil. This amendment to the articles of association, of which Peters and Jürgens probably knew nothing until after the war, dates from after the supposed Rosenbaum/Goudstikker sales transaction of July-September 1940. Furthermore, it would seem that it was prompted more by the desire to create a formal barrier against the partnership falling into the clutches of the German occupying forces than to make the work of the (loyal) director Peters and supervisory director Jürgens with art dealership Rosenbaum impossible. The Committee also found no evidence that Rosenbaum and/or its sole shareholder Rosenberg challenged any of the sales transactions or other activities carried out by Peters after the war.
The Committee then asked itself the question of whether Peters was forced into any sales transaction, like the one between Rosenbaum and Goudstikker in July-September 1940. Peters’ formal authority to pursue the sales transaction aside, there could still have been involuntary loss of possession as defined by current restitution policy. According to the recommendations, there has to be a high degree of probability of an enforced sale (see also consideration 6).
The Committee found no evidence of this. There are no known statements by Peters from which it can be concluded that she felt put under pressure by Ten Broek. In this context, it can also be pointed out that Peters could probably count on the support of supervisory director (lawyer) Jürgens. Given the liquidation of the art dealership Goudstikker and the probably related desire to settle the Goudstikker/Rosenbaum relationship, the Committee has also found that the sales transaction concerning the art works which were already on consignment at Goudstikker’s before the war, cannot be considered as involuntary as defined by this policy. The report dated 18 October 2011, drafted by expert Van der Elst, in which an overview of the figures is given as well as what they presumably related to in the sales transaction, concludes that the sales transaction is very similar to a sales transaction where no money changes hands. From this, the Committee understands that both parties, more or less, acted in the same way.
The Committee finds that the loss of possession of the three art works mentioned, NK 1457, NK 1474 and NK 2173, to Goudstikker in the summer 1940 cannot be considered as involuntary as defined by the restitution policy. What is also of importance here is that full ownership of the three co-owned paintings, of which Rosenbaum took over Goudstikker’s ‘half share’ and which were already abroad, evidently wholly benefited Rosenbaum.
As regards NK 1457, NK 1474 and NK 2173, the Committee also recommends rejecting the application for restitution.
Category c: Works from Rosenbaum’s trading stock possibly or definitely purchased and sold by a Verwalter (NK 180, NK 181 A-B, NK 455, NK 456 A-B, 659 A-B, NK 2903 A-B)
Rosenbaum had no purchase details for all of the objects in this category, and it would seem that, in all likelihood, they were sold to the Hetjens Museum in Düsseldorf or to C.E. Pongs in Düsseldorf in 1942 or 1943 when art dealership Rosenbaum was under the administration of a Verwalter. As regards NK 2903, information was found during the investigation from which it can be concluded that this object was acquired by the Verwalter during the occupation. It remains unclear, however, when the remaining objects ended up in the trading stock of art dealership Rosenbaum, which suggests that they were acquired under the administration of the Verwalter . The Committee, therefore, finds that it is not very likely that these objects were part of Rosenbaum’s old trading stock, and will therefore have to recommend that the application concerning these objects be rejected.
Category d: Rosenbaum provenance uncertain (NK 1845)
There are indications that the painting Kitchen scene with game by D. Teniers II (NK 1845) was owned by Rosenbaum in 1935. However, the investigation details suggest that this painting was probably sold in 1940 by art dealership Delaunoy in Amsterdam to Mühlmann on behalf of Hermann Göring. The investigation has not clarified when NK 1845 ceased to be in Rosenbaum’s possession. Given that it is now not very likely that this painting was still owned by Rosenbaum at the start of the occupation, the Committee also recommends that as, far as this painting is concerned, the application for restitution be rejected.
Category e: owned by Rosenbaum and confiscated by Mühlmann (NK 1436)
The final category to be discussed in this recommendation concerns ‘The Holy Family with John the Baptist and St. Catherine’, workshop of J. Palma il Vecchio (NK 1436), which was probably confiscated from Rosenbaum’s trading stock in 1942 (see also consideration 1). The Committee’s investigation can be summarised as follows:
In 1941, Dienststelle Mühlmann had one of its staff look into Rosenbaum’s trading stock for important art works for the German Reich. Nineteen works were deemed ‘reichswichtige Kunstschätze’ [works of importance for the German Reich], on the basis of which Rosenbaum had to reserve these works for Mühlmann. They were then collected from Rosenbaum’s in March 1942. Mühlmann paid Rosenbaum a sum of NLG 65,400 for these works. According to a report Peters sent to Rosenberg dated 10 August 1945, the nineteen works included a painting which she described as ‘Maria mit Kind und Heiligen von Palma Vecchio’. There are indications that this art work was a co-owned work. In the previously mentioned letter to the DRT dated 23 August 1940, Rosenbaum mentioned a work by Palma Vecchio, stating ‘die Metisten sich nicht in feindlichen Ausland befinden’. It is not known who these metists were.
As regards the question of whether the current NK 1436 can be identified as Rosenbaum’s Palma Vecchio work lost due to confiscation, the Committee conducted a further investigation. After the war, various works with a Mühlmann provenance were recovered by the Allies. One of these art works concerned a painting which, at that time, was attributed to Palma il Vecchio. An inventory card was found in the archive of The Netherlands Art Property Foundation with a photograph that corresponds to the current NK 1436. Following the recovery of NK 1436, The Netherlands Art Property Foundation clearly had some trouble establishing the correct provenance of the painting. An Internal Declaration Form and inventory card of The Netherlands Art Property Foundation state the following for this object: ‘Confiscated by Omnia Treuhand from Jewish Owner. Sold to Dienststelle Mühlmann, The Hague.’ There are also a number of different provenance names crossed out on the form and card and, at an unknown point in time, the name ‘Rosenbaum’ and the names ‘Rosenbaum’ and ‘Rosenberg’ were handwritten on the form and the card respectively (presumably by a member of The Netherlands Art Property Foundation staff).
The inventory card and The Netherlands Art Property Foundation Internal Declaration Form give dimensions (69 x 87.5 cm) which are a little different to those for NK 1436 (69 x 97 cm according to the Origins Unknown Agency). Furthermore, the painting is described on a list of works recovered from Würzburg as a work on canvas, whereas the current NK 1436 is an oil painting on panel. Nevertheless, the Committee finds that these differences in description on the ‘Witte Kaart’ [White Card] and on the Netherlands Art Property Foundation Internal Declaration Form do not stand in the way of identifying the current NK 1436 as the work originating from Rosenbaum’s, seeing as this was probably a mistake.
The following is also pertinent. In March 1947, Rosenberg sought restitution of four recovered art works which were supposedly confiscated by Mühlmann. These included ‘1 schildery van Palma Vecchio’ [one painting by Palma Vecchio], which the Committee assumes refers to NK 1436. On the initiative of the Netherlands Property Administration Institute, the Netherlands Art Property Foundation proposed to Rosenbaum that it buy back the painting for the amount which Mühlmann paid Rosenbaum for the painting, i.e. NLG 25,000. Although earlier correspondence from the Netherlands Art Property Foundation seems to agree with the identification of the painting as formerly belonging to Rosenbaum, mr. J. Jolles asked M. Meyer in 1949, on behalf of the Netherlands Art Property Foundation, for information concerning the identification of a work by Palma il Vecchio, seeing as there were indications that’(….) dit schilderij het vroeger het bezit is geweest van de Heer S. Rosenberg.’ [this painting was previously owned by Mr S. Rosenberg.] In a letter to the Netherlands Art Property Foundation dated 7 October 1949, Meyer, the former liquidator of art dealership Rosenbaum, advised: ‘dat een schilderij van P. Vecchio voorstellende de H. Familie, inderdaad in het bezit van onze firma (….) is geweest’ [that a painting by P. Vecchio depicting the Holy Family was indeed owned by our company (...)]. In the letter, he continues: ‘Ik wil echter niet nalaten U ervan in kennis te stellen dat de Heer Rosenberg er geen prijs op stelt dit schilderij terug te kopen.’ [I have to inform you, however, that Mr Rosenberg is not interested in repurchasing this painting.]
It cannot be conclusively determined from the content of this exchange of letters whether this refers to the current NK 1436. Based on a form of the Netherlands Art Property Foundation dated 25 May 1950, signed by Peters following a visit to an exhibition of recovered art, the Committee has concluded that this was probably the case. On the form Peters stated that she had recognised the paintings as being formerly owned (by Rosenbaum), including one work which according to an annotation on the form had the inventory number ‘G 69’. The annotation ‘G 69’ is also on the above-mentioned Netherlands Art Property Foundation inventory card for NK 1436. Peters also stated the following on the form: ‘wenst de Hr. Rosenberg niet terug te kopen’. [Mr Rosenberg does not want to repurchase.]
Based on the above-mentioned 20 considerations, the Committee deems it highly likely that NK 1436 was part of Rosenbaum’s trading stock and that Rosenbaum involuntarily lost possession of this, as a result of being confiscated by Mühlmann. Given that art dealership Rosenbaum was inventoried by Mühlmann in 1941, before a Verwalter was in place, the Committee concludes that the work is from Rosenbaum’s old trading stock. The Committee considers the fact that a work by Palma il Vecchio was mentioned in a letter to the DRT dated 23 August 1940 as additional evidence. Despite the fact that this letter also contains references to a co-owned work, the Committee does not see any reason to doubt the ownership status, given what was outlined in consideration 8 and the observation that the painting was confiscated by Mühlmann after the inventory of works found at art dealership Rosenbaum.
The Committee then also asked itself the question of whether Rosenbaum explicitly waived his rights to NK 1436 in the post-war period. According to the applicable restitution policy, this could have meant that there was a conclusively settled case, which would obstruct the current application for restitution. The Committee answers this question negatively. The fact that Rosenberg did not want to buy this painting, the value of which was estimated after the war at NLG 3,500, for Rosenbaum for NLG 25,000, does not imply that, as stakeholders, Rosenbaum and/or Rosenberg waived (any) rights to restitution of the painting, let alone that they did so explicitly. Therefore, the Committee also deems L.’s application for restitution concerning this painting admissible.
In light of the foregoing, the Committee finds that the conditions for restitution of NK 1436 have been met. The Committee sees no reason to recommend repayment of the consideration of NLG 25,000 received by Rosenbaum at that time. That repayment pursuant to the fourth recommendation of the Ekkart Committee Recommendations of April 2001, also applicable to art dealerships, is only required if the amount paid was actually freely available to the seller or their heirs, who in this case are given the benefit of the doubt. Given the fact that the consideration had already been received when Rosenbaum was under the administration of a Verwalter, it is unlikely that this consideration was made freely available to Rosenbaum. Furthermore, in a letter to the Netherlands Art Property Foundation dated 11 March 1947, Rosenberg also wrote that the consideration received by Mühlmann should be seen as lost as a result of manipulations on the part of the German-appointed Verwalters. Therefore, the Committee deems it likely that the sum of NLG 25,000 was not made freely available to Rosenbaum as defined by restitution policy, and, as such, sees no reason to recommend payment of a consideration as part of the restitution of this painting.
The Restitution Committee advises the State Secretary for Education, Culture and Science to:
- declare the application for restitution of applicants G.S. and S. Ltd. in N.Y., US inadmissible;
- to reject J.L.’s application for restitution of the objects with NK numbers 180, 181 A-B, 455, 456 A-B, 659 A-B, 1457, 1474, 1845, 2173, 2903 A-B, 2915 and 3269;
- to return the painting , ‘The Holy Family with John the Baptist and St. Catherine’, from the workshop of J. Palma il Vecchio (NK 1436) to the heirs of Saemy Rosenberg.
Adopted at the meeting of 19 December 2011 by W.J.M. Davids (chair), J.Th.M. Bank, 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.
(W.J.M. Davids, chair) (E. Campfens, secretary)