Portrait of Joan Huydecoper after Bartholomeus van der Helst
Binding opinion regarding the dispute about the return of the painting Portrait of Joan Huydecoper, anonymous, after Bartholomeus van der Helst, with supposed provenance being the collection of AA, currently in the possession of Amsterdam City Council
in the dispute between
(hereinafter referred to as the Applicant),
Amsterdam City Council,
represented in this matter by M.H.M. Kanters, Director of the Social Development Department
(hereinafter also referred to as the City Council),
issued by the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague (the Restitutions Committee), hereinafter referred to as the Committee.
1. The dispute
The City Council stated that the painting Portrait of Joan Huydecoper (hereinafter referred to as the work), anonymous, after Bartholomeus van der Helst, has been the City Council’s property since 1955 and is part of the collection of the Amsterdam Museum (hereinafter referred to as the Museum). The Applicant stated that until February 1941 the work had been part of the collection of her father, AA (hereinafter also referred to as AA). The Applicant stated that she is the only person entitled to the estate of AA and is claiming restitution of the work on the grounds she asserts of involuntary loss of possession as a result of circumstances directly connected with the Nazi regime. As a result of mediation by the Committee the parties submitted a joint request to the Minister of Education, Culture and Science (hereinafter also referred to as the Minister) in order to lay the Applicant’s claim before the Committee for a binding opinion.
2. The procedure
The Minister requested the Committee to issue an opinion to the parties under the terms of article 2 paragraph 2 of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War of 16 November 2001, as amended by an Order of the State Secretary for Education, Culture and Science of 4 July 2012 (hereinafter referred to as the Decree Establishing the Restitutions Committee). Pragmatic reasons prompted the intervention of the Minister, and the State of the Netherlands was not a party in the procedure at any time.
The parties declared in writing that they would submit to the Regulations for the Binding Opinion Procedure in accordance with article 2, second paragraph, and article 4, second paragraph, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (approved by the Committee on 3 December 2007, most recently amended on 27 January 2014, hereinafter referred to as the Regulations) and would accept the Committee’s opinion as binding. The Committee satisfied itself of the identity of the parties. The City Council submitted a decision of March 2014 in which W.P. Spies, Director of the Museum, is authorized to act in the procedure as point of contact for the Committee and to provide it with information. The Applicant submitted a certificate of inheritance dated 25 January 2001 showing that she is the only heir of her father, AA, who died on 10 January 2001.
The Committee took note of all the documents submitted by the parties and also conducted additional independent research. The findings of the research carried out by both the parties and the Committee have been recorded in a draft overview of the facts, which was sent to the parties for comments accompanied by letters dated 9 December 2014. The Applicant responded in a letter dated 14 January 2015. The City Council responded in a letter dated 20 January 2015.
Together with a letter dated 11 February 2015 the Applicant submitted a certificate of inheritance dated 23 July 1996 concerning the estate of her mother CC. The City Council submitted a further response in a letter dated 20 February 2015 and received on 2 March 2015. The Applicant responded to this in a letter dated 19 March 2015.
The parties have let it be known that they have no need for a hearing. In this case there has been no hearing because the Committee also saw no reason for one.
3. The facts
In this procedure the Committee based its considerations on the following facts.
3.1 AA was born on XX. He was of Jewish descent and had the German nationality. Until the beginning of 1938 he lived and worked in Berlin, where he possessed an art collection. As a consequence of the anti-Jewish legislation he and his wife left for the Netherlands at the beginning of 1938 and they became stateless in 1939. The couple settled in EE during the war and were active in the resistance. At the end of 1943 it became necessary for AA to go into hiding, and during this period his daughter (the Applicant) was born. AA was arrested and detained at the end of October 1944. He survived the war, as did his wife and daughter.
3.2 A number of items in AA’s art collection were sold during the occupation. These included sales in the 1941-1942 period to the art gallery Kunsthandel voorheen J. Goudstikker N.V., Amsterdam, managed by the German Alois Miedl (hereinafter also referred to as Goudstikker-Miedl).
The work was sold by ‘AA / EE’ to Goudstikker-Miedl on 11 February 1941. This can be deduced from the limited company’s accounting records in the files of the Netherlands Property Administration Institute (hereinafter referred to as the NBI) and the Netherlands Institute for Art History (hereinafter referred to as the RKD). This transaction is listed in Goudstikker-Miedl’s purchase and sales ledgers, and an invoice was also found in the files. The selling price was NLG 2,500. The art gallery also paid commission of NLG 125 to ‘DD’ of Amsterdam. After its purchase by Goudstikker-Miedl, the work was offered to a number of potential buyers in Germany, but in all probability it remained unsold.
3.3 The NBI administered the assets of Miedl and Goudstikker-Miedl after the liberation. Many objects belonging to Goudstikker-Miedl’s trading stock were found in the gallery’s business premises at 458 and 468 Herengracht in Amsterdam. Some of them were sold in the context of the enterprise’s liquidation. The work was one of these objects and on 15 April 1947 it was sold at the auction house of Frederik Muller & Cie. in Amsterdam. It fetched NLG 160. The identity of the purchaser cannot be established with certainty.
The City Council bought the work on 19 October 1955 for NLG 5,200 from the Joseph M. Morpurgo gallery in Amsterdam.
3.4 Between 2009 and 2013 the Museum researched the provenance of its own collection as part of the national investigation project Museum Acquisitions since 1933. During this research it was established that the work had a problematic provenance. The results of the national project were published on the website www.musealeverwervingen.nl, which was launched on 29 October 2013.
On the website the Museum concludes that, ‘the painting probably belonged to the collection of a Jewish collector who felt the need to sell a few of his paintings under pressure from the circumstances during the war’.
The Museum provides the following information.
‘The painting’s former owner fled from Berlin to the Netherlands in 1938. He was forced to go into hiding in 1943. At the beginning of the nineteen-forties it was necessary for him to sell paintings from his collection in order to have money to live on. A few of these works were sold through the Jacques Goudstikker art gallery, which at that time was being run by the German Alois Miedl. The heirs of the Jewish collector have been contacted.’
3.5 Another matter deserves mention here. On YY the Committee advised the then State Secretary for Education, Culture and Science about an application from the Applicant for restitution of two paintings in the Netherlands Art Property Collection (NK collection) in the custody of the State of the Netherlands. In this earlier case the Committee advised restitution of both artworks to ‘the heirs of AA’. In this case the Committee considered that it was ‘satisfactorily proved’ that AA had been the owner of the claimed works at the beginning of the occupation of the Netherlands. The Committee found that under Dutch government policy the sale of the two works had to be designated as involuntary as a result of circumstances directly connected with the Nazi regime.
4. The Applicant’s point of view
4.1 The Applicant stated that her father was a passionate art collector. She has no recollections of the work since she was not born until after the loss of possession.
The Applicant declared the following about the circumstances in which ownership of the work was lost.
‘The sale of the painting by Bartholomeus van der Helst in February 1941 comes into the “forced sale” category in accordance with recommendation 4 concerning the restitution of artworks’ from the Final Report of the Origins Unknown Supervisory Committee (December 2004, Appendix 7): “… sale of artworks by private Jewish individuals in the Netherlands from 10 May 1940 onwards …” In my father’s case this compulsion was obvious because he was not able to practise a profession and so he was only able to pay for the living expenses of himself and my mother using his own resources. It can therefore also not be assumed that my father really had the free disposal of the proceeds of the sale. Based on what he had experienced in Germany between 1933 and 1938, he was able to have an idea of what was awaiting Jews in the Netherlands. It is plausible that he not only needed resources to live on but also for his own safety, all the more so because my parents were stateless. The seriousness of the financial situation from 1943 onwards emerges from the fact that my mother received financial support of unknown magnitude via the resistance for a period of time.’
4.2 As regards the level of effort made to recover the work after the war, the Applicant stated that her father undertook various activities at different moments after the war related to the return of his own artworks, but that she was not aware of any specific action concerning the work. According to the Applicant no compensation was received after the war for the loss of the work.
4.3 The Applicant described the importance of the work to her as follows.
‘The special significance that my parents attached to their collection of paintings, tapestries and other artworks emerges from the attempts my father made to track them down and retrieve them shortly after the war, and again between 1961 and 1963. It was a disappointment to him that he achieved no results whatsoever. I consider the restitutions policies that were developed in the Netherlands and Germany shortly after his death and the actual return of a few paintings that resulted from them as posthumous compensation in respect of the sense of justice for the wrong done to my father in Germany and after 1940 in the Netherlands. My personal involvement is being driven by a sense of responsibility regarding my parents’ former possessions which is the reflection of a very drastic period in their lives. I am furthermore instinctively following in my father’s footsteps by adhering to his aesthetic choice of this Van der Helst portrait. Finally, restitution contributes to maintaining our own children’s memory of their grandparents and their awareness of their life history.’
5. The City Council’s point of view
5.1 The City Council stated the following about the provenance research conducted prior to acquisition in 1955.
‘The investigation carried out in regard to the acquisition primarily concerned historical and art-historical aspects: who is depicted and who painted it. The provenance was investigated prior to the publication of the catalogue of paintings in 1975 and it was noted that the painting was in the Goudstikker gallery in around 1943.’
5.2 As regards the importance of the work to the legal owner and/or custodian, the City Council reported that the work is currently in the Museum’s repository. It has been loaned for an exhibition a few times over the last few decades. The subject of the portrait, Joan Huydecoper (1599-1661), was one of the most important Amsterdam burgomasters. Among other things he was one of the initiators of the construction of the town hall in Dam Square. Within the City Council’s collection the work has ‘a high ensemble value’. There are two other works in the collection that have a direct relationship with the work, namely a group portrait of the governors of the Crossbowmen’s Civic Guard painted by Bartholomeus van der Helst in 1656, part of Amsterdam City Council’s collection of militia paintings (the work is a copy of the portrait of Huydecoper on the far right of the group portrait), and a portrait attributed to Wybrand Hendriks painted in around 1790 of a descendant of Joan Huydecoper (the work is depicted on the wall behind the subject of the portrait).
6. The Committee’s task
6.1 On the grounds of article 2 paragraph 2 of the Decree Establishing the Restitutions Committee, the Committee is tasked at the request of the parties with issuing an opinion about disputes relating to the return of items of cultural value between the original owner who involuntarily lost possession as a result of circumstances directly linked to the Nazi regime, or his or her heirs, and the current owner, not being the State of the Netherlands. This opinion is a binding opinion within the meaning of article 7:900 of the Dutch Civil Code
6.2 With regard to applications relating to items of cultural value in the NK collection that are submitted to the Minister before 30 June 2015, on the grounds of the relevant national policy if there is compliance with the requirement that the original owner lost possession involuntarily due to circumstances directly related to the Nazi regime, the Committee recommends restitution of the item of cultural value concerned. The interests of the current holder or owner are not taken into account in this assessment. This rule is completely justifiable with regard to artworks in the NK collection because generally speaking these objects were returned to the Netherlands after the Second World War and taken into the custody of the State of the Netherlands with the express instruction to restitute them – if possible – to the rightful claimants or their heirs.
6.3 There is a different assessment framework for items of cultural value that are not part of the NK collection. In these cases the Committee advises on the basis of the yardsticks of reasonableness and fairness (article 2, fifth paragraph of the Decree Establishing the Restitutions Committee). The justification for this difference in assessment framework lies in the difference between the provenance of items of cultural value in the NK collection on the one hand and other items of cultural value on the other. The latter category also contains, for example, artworks that - unlike those in the NK collection - were not acquired by the current owner until many years after the Second World War and were purchased through normal channels and in good faith. Advising on the basis of the yardsticks of reasonableness and fairness then provides scope to take these and other circumstances into account and to weigh up the interests of the different parties involved.
In its advisory role pursuant to article 2, second paragraph of the Decree Establishing the Restitutions Committee, the Committee - in accordance with article 3 of the Regulations - may in any event take account during its considerations of the circumstances in which possession of the work was lost, the degree to which the parties requesting restitution have made efforts to recover the work, as well as the timing and the circumstances of the acquisition of possession by the current owner and the investigation conducted by the current owner before the acquisition. It may in addition take account in its considerations of the importance of the work to both parties and of public art treasures. Nationally and internationally accepted principles, such as the Washington Principles and the government’s guidelines concerning the restitution of looted art, may be included in the considerations in so far as they, in the Committee’s opinion, are correspondingly applicable in the specific case.
This broad assessment framework also does justice to the Washington Principles, according to which the restitutions policy must be aimed at achieving ‘a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case’.
7. Assessment of the dispute
7.1 The Committee has satisfied itself that the dispute between the Applicant and the City Council has not previously been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the work. Neither has the Applicant previously renounced her rights to the painting. The Committee therefore considers the parties and their request to be admissible.
7.2 The Applicant has asserted she is the only heir of AA. The Committee has taken note of the notarial certificates of inheritance that are in the Committee’s investigation file. It emerges from the notarial certificate of inheritance dated 25 January 2001 concerning the estate of AA and the notarial certificate of inheritance dated 23 July 1996 concerning the estate of CC, the Applicant’s mother, who was married to AA in community of property, that the Applicant is the only person entitled to the estates of AA and his wife, who predeceased him.
7.3 The Committee’s opinion about the ownership issue is as follows. The investigation was not able to provide a clear answer to the question about how and when the work came into AA’s possession, but it was established that he sold the work on 11 February 1941 for NLG 2,500 to Goudstikker-Miedl. This transaction is after all listed in this gallery’s purchase and sales ledgers, and an invoice was also found in the files. In the Committee’s view the listing ‘AA / EE’ in this administrative information provides sufficient grounds for the opinion that it is highly likely that AA was the work’s owner when the work was sold on 11 February 1941.
7.4 As regards the nature of the loss of possession, the Committee finds that it has to be designated as involuntary. Here the Committee refers in the first instance to the Ekkart Committee’s third recommendation of 26 April 2001, which was adopted by the government, which stipulates that sales of artworks by private Jewish individuals in the Netherlands from 10 May 1940 onwards must be considered to be involuntary, unless the facts expressly show otherwise. The Committee finds that this recommendation is correspondingly applicable in the present case. In forming its opinion the Committee also takes account of what the Applicant stated about this, as described under 4.1. The Committee agrees with the Applicant that it is plausible that, as a stateless resident of Jewish descent, AA was unable to practise his profession during the years of the occupation and found it necessary to sell the work to obtain money to live on and in the interests of his safety. The fact that he and his wife participated in the resistance also plays a role.
7.5 Under Dutch law it must be assumed that the City Council is now the owner of the work. The City Council acquired the painting in 1955. The Committee has no indication whatsoever that the City Council acted negligently during the acquisition.
7.6 The Committee now comes to weighing up the interests of the parties in the restitution or retention of the work. In this case, on the basis of the yardsticks of reasonableness and fairness, the City Council’s right of ownership carries insufficient weight to decide the dispute in favour of the City Council. Here the Committee takes into account, since the City Council is a public authority, that the Washington Principles apply correspondingly. As regards the contended ‘high ensemble value’, while it is important that the work links the 1656 Bartholomeus van der Helst group portrait to the portrait dating from around 1790 and attributed to Wybrand Hendriks and is therefore a linking work, it is nevertheless a copy of the portrait of Joan Huydecoper in the 1656 Van der Helst group portrait, the creator of the work is unknown, and it is currently in the Museum’s repository. When looked at in the light of the above, the Committee finds that the interests stated by the City Council do not weigh heavily enough to stand in the way of restitution. Set against this interest of the City Council, there is the emotional and moral value attached to restitution of the work contended by the Applicant. In this regard the Applicant has stated that her actions are being driven by a sense of responsibility regarding her parents’ former possessions and that restitution of the work contributes to maintaining her own children’s memory of their grandparents and awareness of their life history. In this regard it is also important that the Applicant is a first-degree relative of the original owner, who lost possession of the work in an involuntary manner. Bearing this in mind, the Committee perceives that the interest of the Applicant in restitution of the work has greater weight than the interest of the City Council in retaining it.
7.7 This brings the Committee to the question of whether something in return from the Applicant should be linked to the surrender of the work. It is important in this regard that the City Council purchased the work in 1955 for a sum of NLG 5,200 and that there are no indications that the City Council did not act in good faith at the time. The Committee takes the view, however, that this is a relatively modest sum, and that the City Council has after all had the benefit of the work since 1955. This is not affected by the fact that the work has mainly been in the repository because this has been the choice of the Museum. In these circumstances the Committee sees no reason to link surrender of the work to something in return from the Applicant.
7.8 The Committee gives the following binding opinion on the grounds of the foregoing.
The Committee advises Amsterdam City Council to restitute the painting Portrait of Joan Huydecoper, anonymous, after Bartholomeus van der Helst, to BB.
This binding opinion was issued on 30 March 2015 by W.J.M. Davids (Chairman), J.T.M. Bank, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart, R. Herrmann and I.C. van der Vlies (Vice-Chair) and signed by the Chairman and the Acting Secretary.
(W.J.M. Davids, Chairman) (R.A.M. Nachbahr, Acting Secretary)