Recommendation

In a letter dated 16 March 2017 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 the restitution of two paintings from the Netherlands Art Property Collection (hereinafter referred to as the NK collection), namely:
– NK 2584, Dirck Franchoisz Hals and Dirck van Delen, Banquet Scene with Musicians and Shuffle Board Players in an Interior, currently on loan to the Frans Hals Museum in Haarlem;
– NK 2711, Jan Davidsz de Heem, Still Life with Glass, Glass Stand and Musical Instruments, currently on loan to the Centraal Museum, Utrecht.

The restitution application was submitted to the Minister in a letter of 30 January 2017 from the authorized representative of:
AA of XX, BB of XX, CC of XX, DD of XX, and EE, of XX
(hereinafter jointly referred to as the Applicants).
The Applicants stated that they are the grandchildren or great-grandchildren of Jacob Lierens (1877-1949), who lost possession of the two paintings involuntarily as a result of circumstances directly connected with the Nazi regime The Applicants are represented by J. Palmer and N. Parke-Taylor, both of Mondex Corporation, Canada, and assisted by G.J.T.M. van den Bergh and M. Visser, lawyers of Amsterdam. In this case the Minister had herself represented by the Netherlands Cultural Heritage Agency (RCE).

The Procedure

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 28 May 2018. The Applicants responded to it in a letter dated 10 September 2018. The Minister stated in an email dated 11 September 2018 that she did not have any comments on the overview of the facts. The Applicants sent further responses in letters dated 18 January 2019, 23 January 2019 and 25 January 2019. They also submitted a number of new documents.

There was a hearing on 28 January 2019. G.J.T.M. van den Bergh and M. Visser, both lawyers of Amsterdam, accompanied by their colleague A. van Hoek, and J. Palmer, K. Gourdie and W. de Boer, all with Mondex Corporation, appeared on behalf of Applicants. FF, consultant with the RCE, GG, head of collections at the Frans Hals Museum, HH, director of the Centraal Museum, and II, head of collection management at the Centraal Museum, appeared on behalf of the Minister.

Assessment of the Claim

7. The Applicants are descendants of Jacob Lierens. The Committee has no reason to doubt the Applicants’ status as heirs of Jacob Lierens.
8. The restitution application concerns two paintings that are part of the NK collection. Since the present application was submitted after 30 June 2015, the Committee must give advice about this application on the basis of the yardsticks of reasonableness and fairness. In an assessment on the basis of these yardsticks it is furthermore the case that the return of a claimed item of cultural value can only be recommended if it has been established that the right of ownership is highly likely and if there are no indications that contradict this, as expressed in the eighth recommendation of the Ekkart Committee in 2001. In the explanatory notes to this recommendation the Ekkart Committee wrote that conclusive proof of ownership and of the correctness of the course of events relating to the loss of possession described by former owners is often difficult to provide, in part because in many cases the documentary evidence was lost as a result of conditions during the war. It is necessary, also in the Committee’s opinion, when assessing the burden of proof that the benefit of the doubt should be on the side of the applicants and not on that of the State.

Ownership of NK 2584

9. NK 2584, Banquet Scene with Musicians and Shuffle Board Players in an Interior by Dirck Franchoisz Hals and Dirck van Delen is an oil painting on panel, dated 1628, measuring 92.5 by 156.5 cm. The information about this painting includes the following. NK 2584 was offered for sale on 24 May 1921 at the Frederik Muller auction house in Amsterdam. It was listed as a work by Van Delen in the sale catalogue (lot number 10, with illustration) and was sold for NLG 3,800. It is known that Lierens purchased two other paintings at this sale. NK 2584 was once again offered for sale at the Frederik Muller auction house on 14 October 1941. It is listed as a painting by Van Delen in the sale catalogue (lot number 301, with illustration). According to this catalogue the painting came from ‘II. Diverse verzamelingen en nalatenschappen’ [‘II Various collections and estates‘]. D.A. Hoogendijk bought the painting at this sale for NLG 9,020 (NLG 8,200 plus 10% buyer’s premium). The painting was then sold on 20 October 1941 to the P. de Boer gallery for NLG 13,020. The De Boer gallery sold the painting in November 1941 to ‘Posse’ (the German art historian Hans Posse, head of the Sonderauftrag Linz [Special Mission Linz]). The painting was returned from Germany to the Netherlands in 1946.
10. The De Boer gallery wrote the following about NK 2584 in a letter to the Netherlands Art Property Foundation (the SNK) of 23 May 1950. ‘45. Gekocht veiling Fred. Muller, Octo 1941. Was eigendom van den Heer J. Lierens, die het vrijwillig in veiling gegeven had.’ [‘45. Bought at Fred. Muller sale, October 1941. Was the property of Mr J. Lierens, who put it into the auction voluntarily.’]. Alongside there is a handwritten question mark, possibly added by the SNK or its successor, the Bureau for Restoration Payments and the Restoration of Property (Bureau Hergo). Frederik Muller wrote the following in a letter of 16 April 1951 in response to a request for information from Bureau Hergo of 12 April 1951. ‘Het schilderij van D. Hals & D. v. Deelen was van wijlen de Heer Jac. Lierens en bracht F. 8200.—op.’ [‘The painting by D. Hals & D. v. Deelen belonged to the late Mr Jac. Lierens and the proceeds were NLG 8,200.’] The following was subsequently noted on a transcript of the request for information to Frederik Muller of 12 April 1951. ‘Volgens schr van Frederik Muller en Co [dd 16/4 51] was dit sch. van Jac Lierens overleden. Dientengevolge kunnen geen verdere naspeuringen worden gedaan.’ [‘According to letter from Frederik Muller & Co [dated 16/4 51] this painting belonged to the deceased Jac Lierens. Consequently no further inquires can be made.’]
11. On the grounds of the above information, read in conjunction with the letter of 21 May 1945 from Lierens to the partner in Frederik Muller, Mensing, and the known fact that Jacob Lierens signed his name as ‘J. Lierens’, and from the nineteen-forties onwards as ‘Jac. Lierens’, in the Committee’s opinion it is highly likely that at the time of the sale at Frederik Muller on 14 October 1941, NK 2584 belonged to Jacob Lierens.

Ownership of NK 2711

12. NK 2711 is a still life with glass, glass stand and musical instruments by J.D. de Heem. It is painted in oil on canvas and measures 139.5 x 114.1 cm. Provenance research into NK 2711 is made more difficult because a copy of the work exists and in art historical sources its provenance is sometimes confused with that of NK 2711. The differences between the two paintings include the depiction of a book in the copy, while there is no such book in NK 2711.
    The previously available provenance information, such as on the Origins Unknown Agency (BHG) website, does not link NK 2711 directly to Lierens. The Applicants have referred, however, to information from which it is possible, in their opinion, to conclude that NK 2711 belonged to Lierens. Some of this information relates to paintings with a provenance similar to that of NK 2711. The relevant information is summarized below.
13. NK 2711 went under the hammer at the Frederik Muller auction house on 16 December 1919. It was included in the sale catalogue as lot number 29, with an illustration. In an annotated copy of the sale catalogue held by the University of Amsterdam there is a handwritten note – ‘8500 / (v Bever)’ – next to the painting’s entry. There are no personal data about ‘v Bever’ in the catalogue. According to the Applicants the person concerned is Jonas Alexander van Bever, referred to above under 2.
14. A number of old master paintings went under the hammer at Frederik Muller on 12 April 1921. According to the catalogue the sale was of ‘une partie de la collection August Janssen qui se vend à la requête de la famille’. It can be seen from handwritten notes made by Cornelis Hofstede de Groot in a copy of the sale catalogue that an eighth painting was offered in addition to the seven works listed in typescript. Hofstede de Groot described this work as follows. ‘4a Rijk stilleven van J.D. de Heem’ (zonder afbeelding)‘ [‘4a Sumptuous still life by J.D. de Heem’ (without illustration)]. He also noted the following: ‘ingezet f 9000 / V [?] / 10.200 Makelaar v. Bever voor Lierens’ [‘guide price NLG 9,000 / V [?] 10,200  Broker v. Bever for Lierens’]. The same information is also on an index card, submitted by the Applicants, from Hofstede de Groot’s card index in the RKD. The painting was described in another annotated copy of the sale catalogue as, ‘4a. Groot stilleven door J.D. de Heem, reeds +/- 2 jaar geleden in veiling bij F Muller & Co.’ [‘4a. Large still life by J.D. de Heem, in auction at F Muller & Co. approx. 2 years ago.’] Alongside was a note, ‘NLG 10.200 / v. Bever (voor [for] Lierens)’.
15. The Applicants contend that this painting is NK 2711 and in this context refer, among other things, to the note that the painting had been in a sale at Frederik Muller approximately two years before. According to the Applicants, none of the paintings by De Heem sold by auction at Frederik Muller during the 1917-1920 period other than NK 2711 fits the description ‘groot stilleven’ [‘large still life’].
    The Applicants furthermore refer to the painting Lachende jongenskop [Portrait of a Laughing Boy] by I. Luttichuijs. Like NK 2711, this painting was put into the auction at Frederik Muller on 12 April 1921. Two annotated copies of the sale catalogue in the RKD have handwritten notes alongside the work by Luttichuijs containing ‘Mr. v Bever voor [for] Lierens’ and ‘v. Bever (voor [for] Lierens)’.
16. In its provenance, the BHG states that in 1925 NK 2711 was at the P. Cassirer gallery in Berlin and in 1935 it was at the Lempertz auction house in Cologne. This provenance is not secure however.
17. During the German occupation NK 2711 was put up for auction on the first day of the sale referred to above on 14 to 17 October 1941 at the Frederik Muller auction house in Amsterdam. In the sale catalogue the work is listed as lot number and illustration 311, with the statement ‘Tentoonstelling Kaiser Friedrich Museum Berlijn 1906’ [‘Exhibition the Kaiser-Friedrich-Museum in Berlin, 1906‘]. According to the catalogue the painting came from ‘II. Diverse verzamelingen en nalatenschappen’ [‘II. various collections and estates‘], as did NK 2584 (lot number 301) and the aforementioned painting Lachende jongenskop [Portrait of a Laughing Boy] by Luttichuijs (lot number 318). The Applicants point out that the lot numbers are close together, which according to them indicates that the works came from the same collection.
    After Lierens’s death the Luttichuijs painting went under the hammer at Frederik Muller once again on 21 October 1949 as one of five paintings from the ‘Collection de feu M.– Jacob Lierens à Amsterdam / Tableaux anciens et modernes’. According to the Applicants this means that Lierens got the painting back again after the sale in 1941.
18. NK 2711 was acquired at the sale at Frederik Muller on 14 October 1941 for NLG 34,000 via an intermediary for Hans Posse on behalf of the Special Mission Linz. The D. Katz gallery in Dieren is mentioned in regard to the provenance of NK 2711 in various documents. These sources are not unambiguous. In its recommendation RC 1.90-B of 17 December 2012, the Restitutions Committee concluded that it was not sufficiently plausible that NK 2711 was the property of the Katz gallery.
    The painting was returned from Germany to the Netherlands in 1946.
19. The Committee now addresses the question of whether it concurs with the Applicants’ assertion that Lierens acquired NK 2711 in the sale at Frederik Muller on 12 April 1921 and that the painting ceased to be in his possession in the sale at Frederik Muller on 14 October 1941. The Committee answers this question in the affirmative taking the following into account.
    – It has been established that NK 2711 went under the hammer at Frederik Muller on 16 December 1919;
    – On 12 April 1921 at Frederik Muller a painting was sold that Hofstede de Groot described as ‘4a Rijk stilleven van J.D. de Heem’ [‘4a Sumptuous still life by J.D  de Heem’]. In view of this description and the note that this painting was also sold at Frederik Muller two years before, it is plausible that NK 2711 is the work concerned;
    – This painting was purchased in the sale by ‘Makelaar v. Bever voor Lierens’ [‘Broker v. Bever for Lierens’]. It is plausible that this refers to Jonas Alexander van Bever, who bought at least one other painting in this sale for Lierens, namely Lachende jongenskop [Portrait of a Laughing Boy] by Luttichuijs;
    – It has been established that this latter painting and NK 2711 were sold at auction once again at Frederik Muller on 14 October 1941, together with NK 2584, which very probably belonged to Lierens. The painting by Luttichuijs was also put into the sale of 12 April 1921 at Frederik Muller, and by the time Lierens died in 1949 it was once more in his collection.

On the grounds of the above information, looked at as a whole, in the Committee’s opinion it is highly likely that at the time of the sale at Frederik Muller on 14 October 1941, NK 2711 belonged to Jacob Lierens.

Loss of possession

20. It follows from the above that Jacob Lierens lost possession of NK 2584 and NK 2711 on 14 October 1941 as a result of their sale, and it can be assumed that this was done on his instructions and with the cooperation of Mensing. In the assessment of the nature of the loss of possession, significance is attributed to the Ekkart Committee’s third recommendation of 26 April 2001, which stipulates that a sale by a private Jewish individual in the Netherlands after 10 May 1940 must be considered to be involuntary, unless the facts expressly show otherwise. The Committee concludes that there are no indications of such facts. It is plausible that the sale of the paintings was connected to the measures taken by the occupying forces against Jewish members of the population and took place in order to save the couple’s lives. Given these measures and the threat they represented, Lierens was not able to continue running his business and he was robbed of his income and possessions. He was consequently forced to have part of his collection converted into cash. The sale at the auction in 1941 of NK 2584 and NK 2711 by Lierens must therefore be considered as involuntary.

Reasonableness and fairness

21. The Committee has an obligation to advise on the present restitution application on the basis of the yardsticks of reasonableness and fairness, and it must therefore take all the interests involved into account. These yardsticks also imply that very great weight is given to the way in which possession was lost and to the need to right wrongs committed during, and as a result of, the Nazi regime. The restitution application concerns two works returned to the Netherlands after the end of the Second World War that were taken into custody by the Dutch State with the express instruction to return them – if possible – to the rightful claimants or their heirs. As explained in 20, the Committee is convinced that Lierens lost possession of the paintings under duress resulting from the dire circumstances caused by the occupying forces. In the Committee’s opinion, giving advice about claims to works in the NK collection on the basis of the yardsticks of reasonableness and fairness does not change the underlying principle that if, as in this case, the requirements of ownership and involuntariness are met, the recommendation has to be to restitute without further weighing up of interests.
22. The Minister put forward two recommendations from the Protection Worthiness Assessment Committee (hereinafter referred to as the TCB) and asked the Committee to include the content of both recommendations in the processing of the case, taking into account the specific provenance of both paintings. The TCB considers both paintings to be worthy of protection within the meaning of the Guidelines for Deaccessioning Museum Objects and the Dutch Heritage Act.
    The Committee points out that it has no task associated with implementation of the Heritage Act and that, on the grounds of this act, it is the Minister who takes the decision in respect of both the recommendations from the TCB. The Committee can involve the recommendations in its assessment in the context of applying the yardsticks of reasonableness and fairness, but in this case there is no reason to do so.
    In view of this the Committee will recommend restitution of NK 2584 and NK 2711 to the heirs of Jacob Lierens.
23. Finally, the Committee raises the question of whether a payment obligation should be specified in regard to restitution of both paintings in connection with a consideration received when the paintings were sold at auction. In view of what is known about the dire circumstances in which Lierens and his family lived at the time of the sale in October 1941 and thereafter, and given the advanced stage of the anti-Jewish measures taken by the occupying forces, it is highly unlikely that Lierens had free control of the proceeds of the sale. On the grounds of this there is no reason to link a payment obligation to the restitution of both paintings.