Binding advice on restitution of Thames at London by Jan Toorop
Binding advice concerning the dispute over the restitution of the painting Thames at London by Jan Toorop from the estate of E. Flersheim, currently in the possession of Rotterdam Municipal Council
in the dispute between:
W.A.E. and A.J.C.
represented by P.W.L. Russell, Master of Laws
hereafter referred to as ‘E. and C.’,
Rotterdam Municipal Council
represented by the Councillor for Participation and Culture, O. Kaya
hereafter referred to as ‘Rotterdam Municipal Council’,
given by the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague, hereafter referred to as the Committee.
Ernst Flersheim (1862-1944), hereafter referred to as ‘Flersheim’, was the owner of the painting View of the Thames at London Bridge (1885) by Jan Toorop (hereafter referred to as: ‘Thames at London’) before selling it in 1937, after which it ended up in the collection of the Museum Boymans in Rotterdam – currently known as the Museum Boijmans van Beuningen (hereafter referred to as ‘the Museum’). E. and C. are Flersheim’s heirs and have submitted an application for the restitution of Thames at London, based on their assertion that the painting was relinquished involuntarily as a result of circumstances directly related to the Nazi regime. Rotterdam Municipal Council, the current owner of the painting, disputes the involuntary nature of the loss and has rejected E. and C.’s claim.
The parties have submitted a joint request to the Minister for Education, Culture and Science (OCW) to have the dispute settled by the Committee. The Minister submitted a written request to the Committee on 12 September 2006, asking the Committee to advise the parties on the disputes in accordance with the procedure laid down in Section 2, subsections 2 and 3 of the Decree establishing the Advisory Committee on the Assessment of Restitution Applications of 16 November 2001. In letters dated 19 December 2005 and 30 August 2006 respectively, Rotterdam Municipal Council and E. and C. declared that they will consider the Committee’s recommendation to be binding.
The Committee has taken cognisance of all documents submitted by the parties. The dispute was heard at the hearing in Utrecht on 1 October 2007 in the presence of both parties, who explained their respective positions. E. and C. did so on the basis of the written pleadings they submitted. During the hearing, the Committee requested that both parties provide more detailed information, whereupon they both responded in writing.
The Museum’s response differed substantively from their position during the hearing and contained new information. The Committee responded in writing on 16 November 2007, informing both parties that, in connection with the different information provided by the Museum, they were giving E. and C. the opportunity to respond, and that the new information would be disregarded by the Committee. E. and C. subsequently took the opportunity to respond.
The following indisputable facts can be assumed in this procedure.
E. and C. submitted an application for the restitution of the painting Thames at London (1885) by Jan Toorop to Rotterdam Municipal Council on 26 January 1999. According to E. and C., the painting was sold involuntarily by their grandfather Flersheim (1862-1944) in 1937 as a consequence of circumstances directly related to the Nazi regime. Thames at London was bought by the Museum from the art dealer Nieuwenhuizen Segaar in The Hague (hereafter referred to as ‘Nieuwenhuizen Segaar’), who had purchased it from Flersheim several days earlier. The painting, which has since been in the Museum’s collection and is currently being stored in the Museum’s depot, is the property of Rotterdam Municipal Council. E. and C.’s application to Rotterdam Municipal Council has not resulted in restitution.
In the 1930s, Flersheim lived with his wife Gertrud Flersheim-Freiin von Mayer (1872-1944) in Frankfurt am Main, Germany, where he ran an international family business. The Flersheims were of Jewish extraction and had three children: Hans (1893-1933), Edith (1895-1992) and Margarete (1904-1940). Over the years, Flersheim had built up a private art collection that definitely included, from 1909 onwards, Thames at London. Under Nazi rule, the Flersheim family lost the security of its livelihood as well as a substantial part of its estate. In 1936 and 1937, the Flersheim daughters fled to London and Brussels respectively, after Flersheim had negotiated with the German authorities about moving his business abroad in the years previously (1935-36). In March 1937, Flersheim fled to the Netherlands. On 2 March, he was issued with a visa; on 12 March, he was given a residence permit due to his Jewish extraction and the political situation in Germany; and on 16 March, he was included in the population register in Amsterdam. His wife initially remained in Frankfurt am Main but joined her husband in Amsterdam one year later, in March 1938. The German authorities declared that the Flersheims were no longer German citizens and took possession of their estate. In May 1937, the Flersheims auctioned part of their art collection in Frankfurt am Main. According to a post-war statement made by E.E.-F. to the Wiedergutmachungskammer des Landgerichts Frankfurt am Main (Chamber of Reparation of the District Court of Frankfurt am Main), she states that a number of other artworks from the Flersheim collection were confiscated by the Gestapo. The painting Thames at London was neither auctioned nor confiscated and was in London during the period in which Flersheim fled to the Netherlands. After fleeing Germany, the members of the Flersheim family were predominantly dependent on Ernst Flersheim for their livelihood. The Flersheim couple were deported in 1943 and died in Bergen-Belsen concentration camp in 1944. Only their daughter, E.E.-F., survived the war along with her family.
On or around 20 March 1937, there was contact between Flersheim and Nieuwenhuizen Segaar concerning the sale of Thames at London. Who made the initial contact is unknown, but Flersheim sent Nieuwenhuizen Segaar written confirmation on 20 March 1937 from Alassio (Italy), in which he refers to a previous exchange of telegrams between the two, and in which he states that he agreed with the final price of NLG 3,500 for the sale of Thames at London. According to Flersheim’s wishes, Nieuwenhuizen Segaar transferred this amount to London, and receipt was confirmed by Flersheim on 3 April 1937. At the time when Nieuwenhuizen Segaar bought Thames at London, the Museum’s then director Dirk Hannema was aware of the painting’s existence. The Museum was interested in acquiring this early Toorop for its collection and was given the possibility to do so by Nieuwenhuizen Segaar. Sales details from Nieuwenhuizen Segaar show that the painting was sold to the Museum on 24 March 1937 along with the painting Female Portrait by Bart van der Leck for NLG 6,000. It is not known how much was paid for Thames at London, but it can be derived from details of Nieuwenhuizen Segaar’s inventory that the painting was insured during that time for NLG 5,000.
It was determined after the war that the auction of the Flersheims’ works of art in Frankfurt am Main in 1937 was involuntary: in 1953, the owner of the auction house declared that the Flersheims had put their collection up for auction in the spring of 1937 because they were forced to do so by the Nazi authorities. On 30 January 1956, the Wiedergutmachungskammer des Landgerichts Frankfurt am Main paid compensation to the sole surviving member of the Flersheim family for the works of art that were taken by the Nazi authorities. It is possible that Thames at London was also included in the Wiedergutmachungskammer’s decision, although if so, this was apparently done in error.
E. and C.’s position
In short and in so far as is it of interest in this case, the position taken by E. and C. is as follows.
E. and C. claim that the sale of Thames at London by Flersheim should be regarded as involuntary. In their opinion, restitution of this work to them, is, therefore, appropriate as they are the sole heirs to their mother, who in turn was the sole surviving heir to her father, Flersheim.
The burden of proof regarding the involuntary loss of possession should not rest on them. E. and C. describe Flersheim as a wealthy German of Jewish origin, living in Frankfurt am Main, who decided to flee to the Netherlands as a consequence of persecution by the Nazis. He was forced to leave many of his possessions behind in Germany, including the lion’s share of his art collection, or to sell them to pay for his escape. He only took two paintings, including Thames at London, with him.
E. and C. adduce that, in March 1937, Flersheim received a visa for the Netherlands and left Germany in haste because he feared reprisals. After his escape, which would eventually take him to the Netherlands, he took his gravely ill daughter to a spa in Alassio, Italy, from where he negotiated and sold Thames at London to the art dealer G.J. Nieuwenhuizen Segaar in The Hague on 20 March 1937.
E. and C. refer to this as being a sale while in the act of flight, and in this respect defend the analogous application of the government’s policy with regard to the restitution of works of art from the national collection, in the sense that Flersheim’s sale of the painting while on the run is the same as the Jews selling their possessions in Germany during the same period, namely after 1933. The fact that Flersheim was registered in the population register in Amsterdam on 16 March 1937 is, according to them, irrelevant.
E. and C. are of the opinion that it is implausible that Flersheim, who needed the extra finances to maintain himself and his family and to pay for his escape to the Netherlands, had access to the NLG 3,500 he received for the sale of the painting. In cases of doubt, the Committee should give Flersheim the benefit of the doubt, in accordance with the government’s policy guidelines.
Nieuwenhuizen Segaar sold Thames at London to the Museum within a few days of concluding the transaction with Flersheim. E. and C. criticise Nieuwenhuizen Segaar, who made an unusually high profit from the sale (43%).
Information found in the Museum’s archive with regard to Thames at London is limited to a summary of its provenance. E. and C. agree with critical post-war publications concerning the position of Museum director Dirk Hannema with regard to the purchase of artworks formerly in the possession of Jews. Furthermore, E. and C. point to correspondence from 1954 between the Wiedergutmachungskammer des Landgerichts Frankfurt am Main and the Museum, when the former was said to have enquired about artworks from Flersheim’s former collection, including Thames at London, but were kept at arm’s length by the Museum.
E. and C. consider their interest in the restitution of Thames at London to be significant. They point to the fact that there was a close personal bond between the Flersheims and Toorop and argue that Flersheim would not have sold the painting had it not been out of financial necessity.
In a letter dated 14 November 2007, E. and C. stated that they were also willing to pay Rotterdam Municipal Council the indexed purchase price for Thames at London.
Rotterdam Municipal Council’s position
In short and in so far as is it of interest in this case, the position taken by Rotterdam Municipal Council is as follows.
Rotterdam Municipal Council claims that the sale of Thames at London by Flersheim cannot be seen as involuntary, arguing that it was Flersheim who decided to sell the painting to art dealer G.J. Nieuwenhuizen Segaar. They further argue that Flersheim sold the painting while living in the Netherlands during a period before the date on which, according to the Ekkart Committee, sales by Jews living in the Netherlands were considered, in principle, to be acts forced upon them. According to Rotterdam Municipal Council, it cannot be taken for granted that the burden of proof and the risk of missing information rest with the council.
It is plausible that Flersheim had access to the NLG 3,500 that was sent to him in Great Britain. The alleged high profit percentage that Nieuwenhuizen Segaar made on the sale of Thames at London to the Museum could, according to Rotterdam Municipal Council, be related to the high cost of transporting the painting from London to the Netherlands.
According to Rotterdam Municipal Council, Thames at London is an important work by an important artist, Jan Toorop. Rotterdam Municipal Council is not predisposed in advance to oppose the restitution of Thames at London.
The task of the Committee
Under Section 2, subsection 2 of the Decree of 16 November 2001, the Committee has the task of providing advice to parties concerning their dispute over the restitution of items of cultural value between the original owner, who relinquished possessions involuntarily as a consequence of circumstances directly related to the Nazi regime, or their heirs and the current owner, other than the State of the Netherlands. In accordance with Section 2, subsection 5 of the Decree, the Committee will make a recommendation in accordance with the requirements of reasonableness and fairness. This advice is binding within the meaning of Section 7: 900 of the Dutch Civil Code.
Assessment of the facts in the dispute
The Committee firstly states that its advice is based amongst others on deliberations concerning the circumstances in which the possession of the work was lost, the extent to which the party requesting restitution has exerted itself to retrieve the work, as well as the period and circumstances in which the current owner acquired the work and the investigation carried out by the current owner before the work was acquired. In addition, the respective importance of the work for both parties and for the public art collection can be taken into consideration. The government’s policy guidelines regarding the restitution of items of cultural value in the possession of the state can be considered in so far as they, in the Committee’s opinion, apply accordingly to the case in question.
Documents according to the law of inheritance suggest that E. and C. are the sole heirs to their mother, E.E.-F., and that she in turn was the sole surviving heir to her father, Flersheim. The Committee, therefore, regards E. and C. as being entitled to apply for restitution in the name of Flersheim.
The Committee has ascertained that the dispute between E. and C. and Rotterdam Municipal Council has not been settled previously. During the hearing, there was mention of an application for restitution in the 1950s to Rotterdam Municipal Council but the Committee has no proof that any such application took place. The Committee considers this application for restitution of Thames at London submitted by E. and C. in 1999 to be the first application. Furthermore, the Committee has found no evidence of a court ruling concerning restitution of Thames at London or of an explicit waiver of rights. The Committee considers both parties’ cases admissible.
The events in the Flersheim’s family’s lives that preceded the sale of Thames at London on or around 20 March 1937 are evidence of a downward spiral. The restrictive measures imposed by the Nazis had an ever increasing effect on the family, resulting in the loss of work and status, decreasing access to their assets, excessive taxes and eventual flight abroad. The sale of Thames at London to Nieuwenhuizen Segaar took place in the same month in which Flersheim was issued with a visa for and a residence permit in the Netherlands, and at the point when he was in Italy with his ailing daughter. The Committee considers this transaction to have taken place while Flersheim was escaping Germany for the Netherlands. It is plausible that Flersheim thought he would have to use the profits from the sale of Thames at London to meet his financial obligations towards the flight of his family. Flersheim and Nieuwenhuizen Segaar appear to have corresponded about the purchase price and Flersheim agreed to what for him must have been the final offer. The Committee considers it possible that Flersheim would have wanted a higher price for the painting but that he did not consider himself to be in a position to call off the sale. Under the circumstances, the Committee considers that this loss of possession was involuntary and attributable to circumstances directly relating to the Nazi regime. The fact that the sale in question did not take place under duress is irrelevant to this judgement.
E. and C. are of the opinion that, when the Museum purchased the painting in 1937, they did not exercise the requisite care given the painting’s Jewish provenance – an assertion that Rotterdam Municipal Council disputes. On this matter, given the circumstances of the purchase including the moment of purchase and the active role Flersheim himself played in the sale, the Committee is of the opinion that neither the Museum nor Rotterdam Municipal Council was negligible with respect to this purchase.
During the hearing, Rotterdam Municipal Council explained its interest in retaining Thames at London for the collection and also stated that it did not wish to emphasise this interest during the procedure. The Committee understands this position to mean that Rotterdam Municipal Council considers the circumstances in which painting was relinquished to be the central issue in the dispute and that it wishes to keep its interest in the painting out of this dispute. In contrast, the interest that E. and C. claim to have in the work is substantial. Flersheim had a personal relationship with Jan Toorop, making Thames at London a special addition to Flersheim’s collection. E. and C., therefore, have a great interest in recovering this family heirloom. Both positions are further underlined by that taken by Rotterdam Municipal Council, which is not predisposed to opposing restitution of the painting, and by E. and C.’s offer to pay it the indexed purchase price for the painting.
Taking into account the fact that the loss of Thames at London is to be regarded as involuntary caused by circumstances directly related to the Nazi regime, and the significance of restitution to E. and C., the Committee recommends that the painting be returned to them. With regard to E. and C.’s offer to pay the indexed purchase price for the work, the Committee considers it reasonable and fair to obligate E. and C. to pay a sum of money to Rotterdam Municipal Council. The Committee is of the opinion that E. and C. should pay the amount that Flersheim received in 1937 (NLG 3,500), indexed according to the general price index figure. The Committee has determined that E. and C. pay the indexed price of EUR 30,397.50 (NLG 67,550). The Committee is conscious of the fact that the purchase price paid by the Museum in 1937 for Thames at London was probably higher – although the exact price was never recorded – than the price that Flersheim received for it, while the indexed price is still based on the supposedly lower price. The Committee is also aware that the current value of the painting is considerably higher than the above indexed amount that E. and C. will pay for it. However, the Committee consider it reasonable and fair that E. and C. do not have to pay more for it than the above-mentioned amount now that it has been reasonably ascertained that Flersheim had to use the profits from the sale of Thames at London to fulfil the financial obligations to his family with regard to their flight from Germany.
On the basis of the above-mentioned information, the Committee recommends the following.
Rotterdam Municipal Council is obliged to return the painting Thames at London to E. and C., upon payment of EUR 30,397.50 by the latter.
This binding advice was given on 3 March 2008 by R. Herrmann (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.
(R. Herrmann, chair) (E. Campfens, secretary)
 The following price index figures (yearly averages) were taken from Centraal Bureau voor de Statistiek [Statistics Netherlands] on 20 February 2008: 1900=100; 1937=130; 2007=2,510. The multiplication factor of 19.3 (2510/130) has been determined on the basis of these figures.