Recommendation regarding Berolzheimer
In a letter dated 19 October 2016 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application for restitution of the drawing View of the Abbey of Grottaferrata (hereinafter referred to as the drawing) by Caspar van Wittel. The application was submitted to the Minister by the Holocaust Claims Processing Office (HCPO) in New York (hereinafter referred to as the HCPO) on behalf of the heirs of Michael Berolzheimer (hereinafter referred to as the Applicants). Since 1975 the drawing has been among the holdings of the Dutch State and is currently in the Rijksmuseum in Amsterdam (hereinafter also referred to as the Museum).
Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:
a. part of the NK collection or
b. among the other holdings of the Dutch State.
Pursuant to paragraph 5, the Committee advises with regard to applications as referred to in paragraph 1, under b, on the basis of the yardsticks of reasonableness and fairness.
Pursuant to paragraph 6, when discharging its advisory task as referred to in the first paragraph, the Committee will give great weight to the circumstances of the acquisition by the owner and the possibility that there was knowledge about the suspect provenance at the time of the acquisition of the item of cultural value concerned.
In a letter dated 19 October 2016 the Minister asked the Committee for advice about the application of 16 August 2016 from the Applicants for restitution of the drawing.
The Committee conducted an investigation into the facts in response to the Minister’s request for advice. The results of the investigation are recorded in an overview of the facts dated 24 April 2017. The Applicants and the Minister were given the opportunity to respond to this overview of the facts. The Applicants responded in a letter of 25 May 2017. The Minister responded in a letter dated 19 July 2017. The Applicants responded to it in a letter of 31 August 2017.
The Committee then adopted the recommendation in the meeting of 4 September 2017.
1. The Committee established the relevant facts on the grounds of the overview of facts of 24 April 2017 and the responses to it that the Committee received. The following summary is sufficient here.
2. The Applicants stated that they are heirs of the Jewish lawyer Dr Michael Berolzheimer (1866-1942, hereinafter referred to as Berolzheimer). The Applicants authorized AA to submit applications for restitution of Dr Michael Berolzheimer’s art collection. AA in turn appointed the HCPO as representative. According to information from the HCPO the Applicants in this restitution application are BB, CC, DD, EE, FF, GG, HH and II.
The Berolzheimer family
3. Berolzheimer was born in Fürth, Germany, on 22 February 1866. He was a lawyer of Jewish descent. On 26 September 1903 he married Melitta Dispecker. The marriage was to remain childless, but Melitta had had three children during her earlier marriage to the banker Eugen Schweisheimer: Waldemar (1889-1986), Nelly (1891-1971) and Robert (1894-1963). In 1905 Berolzheimer and his wife started to live in Untergrainau, a village close to Garmisch-Partenkirchen.
Berolzheimer was very interested in art and among other things was a member of the purchasing committee of the Alte Pinakothek in Munich, of the Graphische Sammlung and the Deutsche Orientgesellschaft. Berolzheimer also owned an art collection. It included paintings and sculptures, but it consisted primarily of a large collection of drawings and etchings. The Berolzheimer collection is thought to have contained over 800 works on paper.
4. During the nineteen-thirties Berolzheimer and his family had to contend with the anti-Jewish measures in Nazi Germany. In response they decided to emigrate to the United States. However, Berolzheimer was compelled to pay a substantial sum in Reichsfluchtsteuer (Reich Flight Tax) in connection with his intended departure. After Berolzheimer had submitted his application for an exit visa, his residence was visited by a representative of the Reichskulturkammer (Reich Chamber of Culture), Dr Ernst Wengenmayr. Wengenmayr, who was also an employee of the Adolf Weinmüller auction house in Munich, valued Berolzheimer’s art collection and also decided which works had to remain behind in Germany because of their cultural value.
On 25 July 1938 Berolzheimer left Germany with New York as his final destination, where he arrived on 15 September 1938. After Berolzheimer’s departure George Keller was appointed Treuhänder (trustee) of the former’s possessions. Three days before he left, Berolzheimer granted power of attorney to his stepson Robert Schweisheimer to sell his possessions in order to pay the required taxes. On 2 November 1938 Robert Schweisheimer signed an agreement with Adolf Weinmüller regarding the sale of the art collection at auction. Ten days later Schweisheimer also left Germany. Berolzheimer’s art collection consequently went under the hammer in two separate sales held by Weinmüller in November 1938 and March 1939.
The persecution of Berolzheimer continued after his departure from Germany. On 10 October 1940 his home was sold so that he would to fulfil his tax obligations, and the proceeds were put into a frozen account. On 10 December 1940 the tax authorities decided that Berolzheimer owed more than RM 55,250 in Judenvermögensabgabe (tax on registered Jewish assets). Ultimately Berolzheimer was deprived of his German citizenship, and his assets were declared forfeited by the Nazis. Berolzheimer died on 5 June 1942 in Mount Vernon, New York. His wife died two weeks later on 21 June 1942.
5. After the war Berolzheimer’s eldest stepson, Dr Waldemar Schweisheimer, acted as executor and he made efforts to track down his stepfather’s lost art collection. To do this Schweisheimer called upon the New York lawyer Robert O. Held among others. Held had some success in tracking down works from Berolzheimer’s collection, thanks in part to a copy of the Weinmüller sale catalogue to which he had obtained access. Held called in the help of a friend in Germany, the lawyer Dr Alfred Holl from Munich. The upshot of the activities of Held and Holl was that the Collecting Point in Munich was able to trace a number of artworks. Held also submitted a claim for damages against Adolf Weinmüller. On 20 November 1950, however, it was rejected by the Wiedergutmachungskammer of the Landgericht München I. In recent years many works of art from the Berolzheimer collection have been restituted to his heirs.
The claimed drawing
6. The currently claimed work is a drawing with a watercolour wash that depicts the Abbey of Grottaferrata at Frascati in Italy. The drawing measures 26.7 x 41.1 cm. The drawing is attributed to Caspar van Wittel (1663-1736) and it is in the Museum’s collection with inventory number RP-T-1975-52. There is the following handwriting on the back of the drawing. ‘F. van Bloemen (gen. Orizonte)’.
7. The Applicants sent a copy of parts of an annotated catalogue (Protokollkatalog) that the Adolf Weinmüller auction house prepared for the sale of Buchminiaturen und Handzeichnungen als Älterer und Neuerer Zeit that it organized on 9 and 10 March 1939. Lot number 111 in this catalogue is described as follows.
BLOEMEN, JAN FRANS VAN, gen. ORIZONTE
1662 Antwerpen - Rom 1748
* 111 Grotta Ferrata bei Frascati. Im Vordergrund ein Brunnen und mehrere Bäume.
Feder u. Tusche. 26,5:41.
Sz. Bog. Jolles. Ehemalige Slg. Otto Mündler, Paris.
It can be deduced from the handwritten notes in the catalogue that lot number 111 was not sold during the sale. This is confirmed by a list entitled Nicht verkaufte Nummern a/Auktion Nr. 16 found in the file of the Monuments, Fine Arts & Archives (MFA&A) department of the allied army. Lot number 111 is on this list. After the war Adolf Weinmüller stated that he acquired the drawings unsold in the sale ‘zu dem Aufrufpreis’ and sold them during the course of the year.
According to Weinmüller the proceeds of the sale were transferred to Berolzheimer’s account with the Schweisheimer banking house and later to his account with the Bayerische Hypothek- und Wechselbank.
8. In 1975 the currently claimed drawing went under the hammer at the Kunstveilingen Mak van Waay B.V. auction house in Amsterdam as lot number 156 and was acquired for NLG 9,400 by the Rijksprentenkabinet (Rijksmuseum Print Room). It can be deduced from a 1973 publication by An Zwollo that the drawing had previously most probably been in the collection of Einar Perman of Stockholm. According to the Museum, it emerges from the introduction to the catalogue compiled for the sale at Mak van Waay that all the consigned drawings came from Perman’s holdings. The sale catalogue states the following under ‘Provenance’. B. Jolles (L.381a) and Otto Mündler.
The importance of the drawing to the cultural heritage of the Netherlands
9. In view of possible restitution of the drawing, the Minister asked for advice within the meaning of article 4.18 of the Dutch Heritage Act from the Protection Worthiness Assessment Committee (hereinafter referred to as the TCB), which was established by the Dutch Museum Register Foundation. The TCB issued advice to the Minister on 17 July 2017. The Minister sent this advice to the Committee on 19 July 2017. According to the Minister the advice describes the importance of the drawing to Dutch cultural heritage.
10. In its advice the TCB comes to the following conclusion.
‘De TCB acht het “Gezicht op de abdij van Grottaferrata” een topstuk van Caspar van Wittel. Het is een uitzonderlijk en visueel zeer aantrekkelijk werk, doch niet representatief voor het oeuvre van Caspar van Wittel als belangrijke grondlegger van de Venetiaanse vedute, waar hij beroemd om geworden is.
Een sprekend voorbeeld van Caspar van Wittel als vedute schilder zou de TCB als onvervangbaar en onmisbaar voor het Nederland cultuurbezit kunnen bestempelen. Deze tekening beschouwt de TCB echter niet als onmisbaar voor het Nederlandse cultuurbezit. Zij onderschrijft wel de uitzonderlijkheid en visuele aantrekkelijkheid van de tekening en zal het als een groot verlies beschouwen als dit object uit het publieke domein zou verdwijnen’.
[‘The TCB considers “View of the Abbey of Grottaferrata” to be a Caspar van Wittel masterpiece. It is an exceptional and visually very attractive work, yet not representative of the oeuvre of Caspar van Wittel as a major founder of the Venetian vedute, which made him famous.
The TCB would be able to describe a striking example by Caspar van Wittel as a vedute painter as irreplaceable and indispensable in terms of Dutch cultural heritage. However, the TCB does not consider this drawing to be indispensable to Dutch cultural heritage. It does, though, endorse the singularity and visual attractiveness of the drawing and it will consider it a major loss if this work were to disappear from the public domain.’]
Assessment of the claim
11. The Applicants have stated that they are heirs of Berolzheimer. The Committee has taken note of the various inheritance-law-related documents submitted by the Applicants and on the grounds of them the Committee sees no reason to doubt the Applicants’ status as heirs of Berolzheimer.
12. The Minister asked the Committee for advice about the application for restitution of the drawing by Van Wittel, which is currently in the Rijksmuseum. The committee advises on the basis of the yardsticks of reasonableness and fairness.
When it assesses the application for restitution, in the first place the Committee is faced with the question of whether the claimed drawing belonged to Berolzheimer when it was in the sale at Weinmüller in March 1939, as contended by the Applicants. Before the Committee can deal with this question, however, it must first be established whether the currently claimed drawing is the same drawing as the one put into this sale as lot number 111. The currently claimed drawing is attributed to Caspar van Wittel, whereas the drawing put into the sale was attributed to Frans van Bloemen, called Orizonte. Apart from the difference in attribution, the information in the 1939 sale catalogue corresponds to the data about the currently claimed drawing as regards dimensions, material, subject and provenance information. There is furthermore the following handwriting on the back of the currently claimed drawing. ‘F. van Bloemen (gen. Orizonte)’. All this makes it clear to the Committee that the currently claimed drawing is the same as the one put into the sale at Weinmüller as lot number 111.
13. Little is known about the drawing’s provenance prior to the sale at Weinmüller. No indications were found that the drawing belonged to Berolzheimer. It has been established, however, that a part of Berolzheimer’s extensive art collection went under the hammer at the sale concerned. The sale catalogue states that ‘zwei Münchener Sammlungen und andere Beiträge’ were to be auctioned off, but does not record the names of the owners. The catalogue does, however, contain a Besitzerverzeichnis, an overview containing all lot numbers divided into columns with letters A to H. Lawyer Held wrote the following about this after the war.
‘I note from this catalogue that all objects of art owned by Hofrat Dr. Berolzheimer were specially marked with an asterisk next to the catalogue numbers and enumerated on page 6 under the heading “Besitzerverzeichnis” in a list “A”’. The grounds on which Held arrived at this conclusion are not known.
A copy of the settlement dated 6 April 1939 concerning items from Berolzheimer’s holdings was found in the post-war file that the MFA&A kept about the matter. It is not known who prepared this settlement. This document contains a five-page summary of lot numbers that were sold at the sale. The following is at the top of each page. ‘Abschrift (...) Abrechnung aus Auktion Nr. 16 für Herrn Dr. Michael Berolzheimer, Untergrainau, jetzt USA’. If these lot numbers are compared with the numbers and series of numbers in the Besitzerverzeichnis contained in the Protokollkatalog it emerges that none of the numbers listed under letters ‘B’ to ‘H’ is on this settlement. A generous sample shows that all the numbers on the settlement occur under the letter ‘A’. Among these lot numbers is lot number 111, according to the catalogue the currently claimed drawing.
In view of the above the Committee deems it highly likely that the drawing put into the sale as lot number 111 belonged to Berolzheimer at that moment.
Loss of possession
14. In the assessment of the nature of the loss of possession, also when advising in a Dutch National Art Collection case on the basis of the yardsticks of reasonableness and fairness, significance is attributed to the Ekkart Committee’s third recommendation of 26 April 2001, which stipulates that sales of artworks by private Jewish individuals in Germany from 1933 onwards must be considered to be involuntary, unless the facts expressly show otherwise.
15. It is clear that Berolzheimer lost possession of the currently claimed drawing as a result of the sale in 1939. Although the formal instruction to sell was given by Robert Schweisheimer, who had been authorized to that end by Berolzheimer, it arose from the obligation imposed on Berolzheimer to pay Reich Flight Tax, a measure used by the Nazis to deprive Jews of their possessions. On the grounds of the Ekkart Committee’s third recommendation referred to above, the loss of possession by Berolzheimer of the currently claimed drawing must be considered as involuntary.
With regard to this opinion, the Committee refers to statements by a number of the people involved. For example Weinmüller stated after the war that the Berolzheimer collection ‘unter dem Druck der damaligen Verhältnisse aufgelöst werden [musste]’. In 1950 the Wiedergutmachungskammer expressed the following opinion about the sale. ‘Das Motiv dieses Veräusserungsauftrages war zweifellos der damals für Juden allgemein bestehende Kollektivzwang.’
Weighing up interests
16. The Committee advises about this application according to the yardsticks of reasonableness and fairness and it therefore now weighs up the interests concerned.
In this context the Committee takes account of the following. The Applicants are heirs of Berolzheimer, who at some point acquired ownership of the currently claimed drawing. Berolzheimer had to sell the currently claimed drawing at auction in 1939 involuntarily as a result of the anti-Jewish measures in Nazi Germany. Although Weinmüller stated that the proceeds of this sale were transferred to Berolzheimer’s account with the Schweisheimer banking house and later to his account with the Bayerische Hypothek- und Wechselbank, the Committee considers it improbable that Berolzheimer obtained the free disposal of these proceeds. Nor has it emerged that Berolzheimer’s descendants have ever received any form or compensation or reimbursement regarding the drawing. They did, however, make attempts immediately after the war and more recently, sometimes with success and sometimes not, to regain possession of Berolzheimer’s art collection. The Committee finds on these grounds that the interest of the Applicants has great weight with regard to restitution.
17. Under Dutch law it has to be assumed that the State is at present the owner of the drawing. The Museum acquired the drawing on behalf of the State at a sale in 1975 for a sum of NLG 9,400. No provenance research was conducted prior to the acquisition, but at that time it was also not standard procedure. There are therefore no grounds for assuming that the Museum acted negligently when it acquired the drawing in 1975.
As regards the importance of the drawing to the cultural heritage of the Netherlands, the Minister has referred to the advice from the TCB. The TCB does not consider this drawing to be indispensable to Dutch cultural heritage, but it does endorse the singularity and visual attractiveness of the drawing. The Committee concludes from this that the drawing’s importance to the cultural heritage of the Netherlands is limited.
In view of the foregoing, in the Committee’s opinion the Applicants’ interest in the restitution of the drawing must be given greater weight than the importance to the Dutch State of retaining the drawing for the Dutch National Art Collection. The Committee will therefore advise the Minister to restitute the drawing to Berolzheimer’s heirs.
18. Finally the Committee has addressed the question of whether something in return from the Applicants should be linked to surrender of the work. It is important in this regard that the Museum purchased the drawing on behalf of the State in 1975 for a sum of NLG 9,400 and that there are no indications that the Museum did not act in good faith at the time.
The Committee takes the view, however, that the purchase price was a relatively modest sum, and that the Museum has after all had the work in its collection since 1975. In these circumstances the Committee sees no reason to link surrender of the work to something in return from the Applicants.
The Restitutions Committee advises the Minister of Education, Culture and Science to restitute the drawing View of the Abbey of Grottaferrata by Caspar van Wittel to the heirs of Dr Michael Berolzheimer (1866-1942).
Adopted at the meeting of 4 September 2017 by A. Hammerstein (Chair), J.T.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.
(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)