Recommendation regarding Mautner - A
In a letter dated 13 June 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 application for the restitution of five works of art in the Netherlands Art Property Collection (hereafter referred to as: ‘the NK collection’). This concerns paintings that may have been owned by Mautner (1889-1944) and that were returned to the Netherlands from Germany after the Second World War. This recommendation is confined to four of the five works (see explanation in the paragraph below), namely:
- F. Timmermann, The Beheading of St. John the Baptist (NK 1655);
- A. van Blocklandt (formerly attributed to F. Floris), The Judgement of Paris (NK 1783);
- J.G. Platzer, The Marriage Feast at Cana (NK 2216);
- copy after P. Brueghel II, A Tax Collector’s Office (NK 2297).
The works in question are currently housed in the depot of the Netherlands Institute for Cultural Heritage (ICN) or on loan to Dutch museums.
In a letter dated 4 April 2007, J.M.P. of A. (USA) and J.H.-M. of A. (USA) (hereafter referred to as ‘the applicants’) submitted an application to the Minister for the restitution of five paintings said to have been part of the collection of a member of their family, Wilhelm Mautner (hereafter referred to as: ‘Mautner’). The applicants were represented in this procedure by the lawyer Henning Kahmann of Von Trott zu Solz Lammek of Berlin.
In the context of the request submitted to it for recommendation, the Committee instigated a fact-finding investigation, the results of which were included in a draft investigatory report dated 9 February 2009. The draft investigatory report was sent to the applicants for comment and to the minister with a request for additional information on 9 February 2009. On 9 March 2009, the Minister said that he would not be using this opportunity. After the Committee granted the applicants’ request for additional response time, the applicants sent a response by letter on 25 May 2009, in which, with regard to NK 1783, the applicants also requested more time. This request was granted by the Committee. However, in a letter dated 30 June 2009, the applicants said that they were unable to provide more information.
The Committee also conducted additional research into the role played by Hans Alfred Wetzlar (hereafter referred to as: ‘Wetzlar’), who, at the time, probably acted as agent in transactions with Mautner. The Committee asked Wetzlar’s family about this in May 2009, but they were unable to provide any information. The applicants’ responses and the Committee’s additional research were included in the investigatory report, which was subsequently adopted on 12 October 2009. For the facts of the case, the Committee refers to this report.
It emerged during the procedure that NK 2655 is also part of an application for restitution concerning the art dealership D. Katz of Dieren, known from 1941 onwards as ‘Schilderijen en Antiquiteitenhandel v/h D. Katz N.V.’ , referred to here jointly as ‘kunsthandel Katz’ [art dealership Katz] (RC 1.90-B). In a letter dated 13 July 2009, the Committee informed the applicants that it would postpone its recommendation until the investigation of NK 2655 in the RC 1.90-B case had also been concluded. During the consultations regarding RC 1.89, the Committee decided to split the case into two recommendations to accelerate progress. This means that NK 1655, NK 1783, NK 2216 and NK 2297 are included in the current recommendation RC 1.89-A while the recommendation regarding NK 2655 will be postponed.
The applicants request the return of five paintings – four of which are discussed in this recommendation – that are said to have been the property of Wilhelm Mautner (1889-1944). The applicants stated that Mautner lost possession of the works with inventory numbers NK 1655, NK 1783, NK 2216 and NK 2297 ‘due to Nazi persecution during the German occupation of The Netherlands’. The applicants are J.M.P. and J.H.-M., a daughter and a granddaughter, respectively, of F. Mautner, a brother of Wilhelm Mautner. According to the applicants, they form ‘the community of heirs after Dr. Wilhelm Mautner’. The Committee has several inheritance documents. On the basis of these documents and the applicants’ statements, the Committee deems it plausible that within the framework of this application, the applicants are among those with entitlement rights.
Under the terms of the recommendations of the Ekkart Committee from 2001 and the Government’s 2001 response to these recommendations, a case is only settled if ‘the Council for the Restoration of Property Rights or another competent court has pronounced judgment’ or if ‘the claim for restitution resulted in a conscious and deliberate settlement or the claimant expressly renounced his claim for restitution’. Since the Committee found nothing to indicate that any of these circumstances has arisen, the Committee deems the applicants’ application for restitution admissible.
The relevant facts are described in the investigation report of 12 October 2009. The following summary of events will suffice for the present purposes. Mautner was a German ‘economist en procuratiehouder’ [economist and attorney-in-fact] of Jewish extraction who had moved to the Netherlands before the Second World War. Resident in Amsterdam, Mautner had a collection of paintings that also included some Dutch Masters. During the German occupation of the Netherlands, he gave works of art to various people for safekeeping. Mautner probably also acquired and sold a number of artworks during the war years. After the war, Hans Alfred Wetzlar, a friend of Mautner, stated ‘dat de Heer Mautner nogal het een en ander in schilderijen deed’ [that Mr Mautner dabbled in paintings], but that from 1941, he was no longer able to do so in his own name because of his Jewish origins. According to Wetzlar, this is why he ‘verschillende schilderijen voor hem op mijn naam gekocht’ [bought several paintings for him in my name]. Mautner was deported in December 1943 and died in Auschwitz around 29 September 1944.
In their letter of 25 May 2009, the applicants wrote that ‘Mautner, who was a wealthy banker before the German occupation of the Netherlands, had the intention to keep his art collection and even expanded it during the German occupation rather than setting up an art dealership business (..)’. According to the applicants, the Committee should, because of this fact, consider Mautner’s situation in accordance with the regulations concerning private art property. The Committee considers in this regard that Mautner was not officially established as an art dealer and that no evidence was found to suggest that he was heavily involved in the purchase and sale of works of art. For these reasons, the Committee will indeed consider Mautner’s situation in accordance with the regulations concerning private art property.
Pursuant to the regulations concerning private art property, the Committee can recommend restitution if the original owner of the claimed object lost possession involuntarily due to circumstances directly related to the Nazi regime. According to the Ekkart Committee’s eighth recommendation of 2001, the title to the object must be proven with a high degree of probability and there must be no indications to the contrary. The sale of an object in the Netherlands between 10 May 1940 and 5 May 1945 by private persons who belonged to a population group that was persecuted is regarded as involuntary unless expressly proven otherwise.
Given the available information about the ownership of the current works NK 1655, NK 1783, NK 2216 and NK 2297, the Committee proposes the following classification.
Category A: ownership Mautner not highly probable
The Committee does not deem it highly probable that the painting NK 1783, The Judgement of Paris by the artist A. van Blocklandt (formerly attributed to F. Floris), was at any time before and/or during the war in Mautner’s possession. In their letter of 25 May 2009, the applicants stated that Mautner had sent a photograph of the work to the Netherlands Institute for Art History during the war, a fact that in their view indicates that the work was in Mautner’s possession. However, the Committee is of the opinion that this evidence alone is insufficient to prove ownership by Mautner with a high degree of probability. The Committee will therefore recommend that the application for the restitution of NK 1783 be rejected.
With regard to the painting NK 2216, The Marriage Feast at Cana by the artist J.G. Platzer, no evidence was found that Wilhelm Mautner was the owner. It was probably owned by someone with the same surname, namely Franziska (Fanny) Mautner and/or her husband Alfred George Mautner. As far as the RC knows, they were not directly related to Wilhelm Mautner. The applicants endorse this reading of the facts in their response to the draft investigatory report of 9 February 2009. The Committee will therefore recommend that the application for the restitution of NK 2216 be rejected.
Category B: ownership Mautner highly probable
With regard to NK 1655, the Committee has evidence that Mautner owned this painting, The Beheading of St. John the Baptist, by the artist F. Timmermann. The applicants stated that the work was, in all probability, in Mautner’s possession well before the occupation (letter of 25 May 2009), but the Committee was unable to establish exactly when Mautner acquired it. Nevertheless, the Committee is of the opinion that it is highly probable that the work was in his possession, a conclusion it bases on a post-war statement by Wetzlar that the painting was ‘oorspronkelijk in bezit’ [originally in possession] of ‘Dr. W. Mautner (overleden)’ [Dr W. Mautner (deceased)] and that it came into the possession of ‘Goepel, 1943’ as a result of ‘vrijwillige verkoop’ [voluntary sale]. ‘Goepel’ probably refers to Erhard Göpel, who bought works of art for the ‘Sonderauftrag Linz’ on Adolf Hitler’s behalf. The Committee has found documentation in the Federal Archive in Koblenz (Germany) that confirms these transaction details. On the basis of Wetzlar’s statement and the Federal Archive documents, the Committee has come to the conclusion that Wetzlar acted as middleman for Mautner in the sale of the current NK 1655 and that the year of loss of possession was, in all likelihood, 1943.
With regard to the painting NK 2297, A Tax Collector’s Office, a copy after the artist P. Brueghel II, the Committee likewise comes to the conclusion that there is a high degree of probability that Mautner owned the work during the war. When and from whom he acquired it is not known, but the Committee does have access to a post-war letter to the Dutch authorities in which Wetzlar states that Mautner sold it ‘aan den Heer Walter Kadzik te Weenen’ [to Mr Walter Kadzik of Vienna] during the war. Wetzlar also stated that he acted as middleman for Mautner in this transaction and that Mautner received payment. In the Committee’s opinion, this all shows that Wetzlar did indeed act in that capacity in the sale of the current NK 2297 and that loss of possession took place during the war.
Given the fact that Mautner, a Jewish man, belonged to a persecuted population group, it must be assumed that the sales of the current NK 1655 and NK 2297 during the war took place under duress (see consideration 5). No evidence was found during the investigation that contradicts the enforced nature of the sales. On the contrary, the Committee considers it entirely conceivable that bit by bit, Mautner’s freedom of movement was curbed during the war on account of anti-Jewish measures and that for that reason, he asked his friend Wetzlar to conduct the sales on his behalf. In the light of an escape plan Mautner hatched during the war with the help of his brother in the US, evidence for which was found in the archive of the Ministry of Justice in London, this is even more plausible. For these reasons, in its final report the Committee will recommend that NK 1655 and NK 2297 be returned to Mautner’s heirs.
Finally, the Committee is considering whether, in connection with the proceeds from the sale received at the time, a payment obligation should be imposed in return for the restitution of the current NK 1655 and NK 2297. In this context, the Committee refers to the fourth recommendation of the Ekkart Committee of April 2001, which stipulates that an obligation for repayment only applies if and to the extent that the then seller or his or her heirs actually obtained the free disposal of the proceeds. In connection with this, with regard to NK 1655, the Committee notes that during the investigation a German source was found in which sales proceeds of NLG 24,000 are mentioned, although it does add that it is unclear what happened to that sum of money. Similarly, the applicants state that it is not clear whether Mautner received the proceeds. As for NK 2297, the Committee has access to Wetzlar’s statement saying that Mautner was paid in full, although other sources mention proceeds of RM 68,000. In this case, too, the applicants state that it is unclear whether Mautner received this sum. They also add that this sale of Mautner’s (to Kadzik in Vienna) comprised twelve works of art, and that the said sum may have been the proceeds of the sale of all these works together. For the Committee, this constitutes evidence to suggest that payments were made for the current NK 1655 and NK 2297, and that Mautner may have received sums of money from sales. This evidence is, however, insufficient to establish the amounts of any sums received and to determine whether Mautner or his heirs did indeed obtain the free disposal of any such sums. The Committee takes into consideration the fact that shortly after the sale, at least of NK 1655 in 1943 (see consideration 6), Mautner was deported to a concentration camp. For these reasons, the Committee is of the opinion that it is not plausible that Mautner or his heirs had free disposal of the sum that he may have received, and that imposing a payment obligation in return for the restitution of these two works of art is therefore not justifiable.
The Restitutions Committee advises the Minister for Education, Culture and Science to
- reject the application for the works NK 1783 and NK 2216;
- grant the application for the works NK 1655 and NK 2297 and to return them to Mautner’s heirs.
The Committee is postponing the case involving the other work (NK 2655).
Adopted at the meeting of 12 October 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, I.C. van der Vlies (vice-chair), and signed by the chair and the secretary.
(W.J.M. Davids, chair) (E. Campfens, secretary)