Koenigs III (Kiev claim)
Recommendation in the case of Koenigs
In a letter dated 13 July 2005 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (hereinafter referred to as the Committee) for advice about the application of 23 May 2005 from Ms C.F. Koenigs (hereinafter referred to as the applicant) for the restitution of a number of works that formerly belonged to her grandfather Franz Wilhelm Koenigs (hereinafter referred to as Koenigs). The application concerns 139 drawings and three etchings that were returned to the Netherlands in 2004 from Kiev, Ukraine, and are currently part of the Dutch National Art Collection (NK collection). A list with a description of the 142 works concerned is appended to this advice. These artworks are on long-term loan to the Museum Boijmans Van Beuningen in Rotterdam.
In the present procedure the applicant is also acting on behalf of some family members, namely Mr AA, Ms BB, Ms CC, Ms DD and Ms EE. The applicant was represented by three different lawyers at different times between 2008 and 2011 as follows: C. Drion (from April 2008 to September 2010), M. Schut (from September 2010 to January 2011) and G.J.T.M. van den Bergh (from January 2011 to March 2011). After the procedure resumed in November 2013 she was assisted by the lawyer D. de Jong.
On 23 May 2005 Ms C.F. Koenigs applied for restitution of the drawings and etchings that had been returned from Kiev to the Netherlands in 2004. In a letter of 13 July 2005 the Minister asked the Committee for advice about this application, which the Committee registered under number RC 1.35. Since then the applicant has requested postponement a few times in order to explain the application in more detail. To elucidate her application, on 12 December 2006 and 12 November 2007 the applicant handed over reports containing contributions from Dr H.B. Junz, Professor A.F. Salomons, Professor H.C.F. Schoordijk and Professor P.A. Stein.
The Committee conducted an investigation into the facts as a result of the request for advice and the explanation provided by the applicant. As part of this investigation, on 7 February 2008 the Committee held a hearing for Koenigs’s son, Mr FF (an uncle of the applicant), at his request. During the hearing Mr FF gave his opinion, which was that his father had transferred ownership of the drawings as early as 1935 to the Lisser & Rosenkranz Bank (hereinafter referred to as L&R) as security, and on 2 April 1940 he transferred absolute ownership to this bank. Mr FF also contended that his father’s intention was for the entire drawing collection to end up in Museum Boymans under his name, that he was prepared to make concessions in that context with regard to the terms and conditions of the transactions at that time and that, summarizing, the claim to works currently in Museum Boymans should be rejected. To support his arguments he handed over some documents from his private files to the Committee. They included the legal instruments of 2 April 1940 relating to the aforementioned transfer of ownership.
The results of the investigation of the facts by the Committee were recorded in a draft investigation report dated 3 March 2008, which was sent to the applicant—together with a copy of the documents provided by Mr FF for perusal—on 13 March 2008 for comment. The applicant responded substantively to this draft report on 3 July 2008. This response contained further contributions from Dr H.B. Junz, Professor A.F. Salomons, Professor H.C.F. Schoordijk, Professor P.A. Stein, Professor J.B.M. Vranken and Professor J. de Vries.
There was a initial hearing on 6 October 2008. It was attended by the applicant, her legal advisers C. Drion and S. van den Ende, and also J. Bragdon (philosopher and artist), C. Siewertsz van Reesema (mediator), Dr H.B. Junz (economic and financial analyst) and the legal experts Professor A.F. Salomons, Professor H.C.F. Schoordijk and Professor P.A. Stein.
Subsequent to the sitting the applicant submitted a further response on 25 November 2008. After that the applicant requested the Committee to postpone advising about RC 1.35 in connection with proceedings that had been instigated on 16 July 2008 with the National Ombudsman about the actions of the Minister and the Restitutions Committee. In a letter of 16 December 2008 the Committee told the applicant that it would put the case on hold during the National Ombudsman’s handling of the complaint.
On 8 November 2010 the National Ombudsman issued a report in regard to the complaints submitted by the applicant. The following is important in this regard. In 2002 the applicant submitted an application for the restitution of various works from her grandfather’s collection. This application was rejected by the Minister on the advice of the Committee (case number RC 1.6) on 10 December 2003. During the handling of the current application the applicant asked the Minister to revise this earlier decision. The Minister did not accede to this request at that time, but instead asked the Committee on 24 April 2007 to consider any new facts submitted by the applicant in the advice about RC 1.35. On the grounds of the recommendations of the National Ombudsman of 8 November 2010 the Minister requested the Committee to advise about the facts designated by the applicant as ‘nova’ (new facts) in the context of her request to revise RC 1.6, and withdrew the initial request to the Committee in a letter of 13 December 2010. On 18 January 2011 the Committee put this request for revised advice about RC 1.6 in a separate file with number RC 4.123 and advised the applicant that it would resume the procedure relating to RC 1.35. In a letter of 11 April 2011, however, the applicant asked the Committee to put the handling of RC 1.35 on hold until after RC 4.123 had been handled. The Committee agreed to this request on 4 May 2011. The Committee adopted the revised advice about RC 1.6 (RC 4.123) on 12 November 2013, after which the procedure relating to RC 1.35 was activated again. The applicant was notified of this in a letter of 16 December 2013.
In view of the time that had elapsed since the last substantive handling of the case in 2008 and the events since then, the applicant was given the opportunity again and for the last time to submit information and to explain her viewpoints verbally. The applicant did this on 23 January 2014 and sent the Committee additional information with enclosures. On 20 March 2014 the applicant then attended a Committee hearing for the second time in this procedure. The hearing was also attended by her legal adviser D. de Jong and his assistant M. Maeder, and J. Bragdon (philosopher and artist). De Jong spoke on behalf of the applicant and handed over comments with regard to the application. J. Bragdon made a few remarks. The applicant made a presentation and also handed over documents, including some new records.
The current application relates largely to the same complex of facts upon which the earlier advice in cases RC 1.6 and RC 4.123 was based. Consequently, in the context of its advice in the present case the Committee included all the documents that were exchanged in the earlier procedures RC 1.6 and RC 4.123 in addition to the investigation report about RC 1.35 that was adopted on 14 April 2014 with the applicant’s responses of 3 July 2008, 25 November 2008 and 23 January 2014 as attachments.
A. The facts
The Committee accepts the following facts in so far as they are important to the assessment of the application.
A.1. Koenigs was born in Kierberg, Germany, on 3 September 1881. In 1920 he and a nephew founded N.V. Rhodius Koenigs Handelmaatschappij. The business was established in Amsterdam. A few years later Koenigs and his wife Anna Countess of Kalckreuth (hereinafter referred to as Anna Koenigs) and their children moved permanently to the Netherlands. Neither of them was of Jewish descent. Koenigs was granted Dutch citizenship in 1939.
A.2. During the nineteen-twenties Koenigs started what was to become a large collection of drawings and paintings. The collection of drawings, known as the Koenigs Collection, is of art historical importance.
A.3. It can be deduced from a declaration that Koenigs wrote by hand and signed on 9 September 1931 that he entered into an agreement with the Amsterdam bank N.V. Bankierskantoor Lisser & Rosenkranz (hereinafter referred to as L&R). He was friends with Mr S. Kramarsky, the Jewish managing director. In the declaration, Koenigs wrote to L&R, ‘Sie haben mir namens einer Gruppe zugesagt an der Capital erhöhung von Rhodius Koenigs Handel Mij im Ausmass von fl. 1.500.000,- mitzuwirken.’ He also wrote that he was transferring ownership of his drawing collection, as present in his home in Haarlem, to L&R as security for repayment. The agreement between Koenigs and L&R was probably formalized a few weeks later by, among other things, a legal instrument dated 2 October 1931, the contents of which are not known to the Committee.
A.4. A new agreement between Koenigs and L&R was recorded in a registered private legal instrument dated 1 June 1935, in which it was expressly stated that the old agreements lapsed. This document, which was handed over by Mr GG, states that Koenigs acknowledged borrowing a sum of NLG 1,375,000 and GBP 17,000 at an interest rate of 4% for a term of five years. Under the agreement, Koenigs transferred ownership of his drawing and painting collection, as specified on a list accompanying the legal instrument, to L&R as security for repayment. The list, which according to the text must originally have been appended to the legal instrument of 1 June 1935, is currently missing, but it is clear from the text of the agreement that the paintings and drawings concerned had been lent shortly beforehand to Museum Boymans in Rotterdam and the Rijksmuseum in Amsterdam. Koenigs and L&R furthermore agreed that Koenigs was entitled to repay part or all of the loan at any time, while L&R would be entitled to sell the collection publicly or privately and to recover the proceeds upon expiry of the term (31 May 1940) or upon the liquidation of L&R.
A.5. Starting in 1939, close to the expiry of the agreed term and under the growing threat of war, Koenigs and the L&R bank, through the mediation of art dealer Jacques Goudstikker, conducted negotiations with D. Hannema, director of Museum Boymans. It can be deduced from the correspondence that apparently Koenigs’s objective was to house the drawing collection as one entity, under his name, permanently in Museum Boymans. The wealthy Rotterdam businessmen D.G. van Beuningen and W. van der Vorm were involved in the discussions as financiers. Koenigs kept other interested parties at arm’s length. It can be concluded from a letter drafted by Jacques Goudstikker in around February 1940 and intended for Hannema that Koenigs was prepared to make far-reaching concessions in order to ensure that the collection continued to be retained for the museum. The negotiations broke down though. Meanwhile Koenigs and L&R made plans to transport the collection abroad.
A.6. L&R was liquidated on 2 April 1940. The intention was to safeguard the bank, which had a mainly Jewish board, from German interference in the event of a German invasion. Koenigs, who was present as a fellow shareholder at the meeting of shareholders in which it was decided by acclamation to do so, would have been closely involved in the development and further implementation of the plans.
A.7. It is stated in two registered private legal instruments of 2 April 1940, which were co-signed by Koenigs, that as of 2 April 1940 Koenigs had a debit balance in the current account relationship entered into between him and L&R, including interest, of NLG 1,662,915.14 in addition to GBP 20,559.13s.7d. These two legal instruments were also handed over by Mr FF in 2008.
A.8. It is stated in the first instrument, which is a further agreement about the main part of the debt and the drawing collection, that the ‘parties have been consulting each other about partial settlement of Koenigs’s debt to Lisser & Rosenkranz’ and that the parties have agreed the following in this regard. ‘As partial settlement of his said debt in the amount of NLG 1,250,000.-, Koenigs gives Lisser & Rosenkranz as payment, and the latter herewith accepts as payment, the collection of drawings that has been lent by Koenigs to Museum Boymans in Rotterdam, as accurately specified on the list attached to the aforementioned instrument of 1 June 1935 and authenticated by both parties. Koenigs therefore herewith transfers the full and unencumbered ownership of the said drawings to Lisser & Rosenkranz, and Lisser & Rosenkranz accepts this transfer of ownership, in return for which it discharges Koenigs from
NLG 1,250,000.- of his said debt.’ The second legal instrument is of similar import and relates to the paintings.
A.9. It emerges from surviving correspondence that L&R and Koenigs each separately informed Museum Boymans that same day that the drawing collection had become the property of the L&R bank. Koenigs also wrote that, in view of the absence of a response from the museum, it had been necessary for him to use the drawings as payment, as a result of which the drawings had become the ‘full and unencumbered property’ of L&R, and that he had made the drawings completely available to L&R ‘in so far as necessary by terminating the loan of them to you’. L&R advised the museum that it intended to have the drawings removed that same week by the forwarding agent.
A.10. There was further consultation after 2 April 1940 between L&R, (represented by Jacques Goudstikker), Museum Boymans (represented by director Hannema) and D.G. van Beuningen. A surviving letter of 9 April 1940 from Hannema to L&R reveals that Koenigs was also present at these discussions. L&R continued to take Koenigs’s wishes into account after 2 April 1940, as can be seen from a letter to Goudstikker from L&R dated 8 April 1940. ‘Please bear in mind that we want to make the greatest possible concession to Museum Boymans as regards the price on the grounds of both national considerations and our desire to respect the wishes of the previous owner [Koenigs, RC].’
A.11. On 9 April 1940 L&R sent written confirmation to Van Beuningen that it had sold him the drawing collection as well as twelve paintings for NLG 1 million. In the letter L&R wrote, ‘We have noted with thanks your promise that the aforementioned collections of drawings and paintings will continue to bear the existing name of the “F. Koenigs Collection” for as long as they remain exhibited in Museum Boymans.’
A.12. This was followed by congratulations all round. The board of L&R expressed its satisfaction about the fact it had been able to contribute to ‘the retention of this important collection for the Netherlands and Museum Boymans’. The undertaking by Van Beuningen to keep the name of Koenigs linked to the collection ‘also fulfilled the wish of Mr Koenigs’, added L&R. On 12 April 1940 Hannema assured Koenigs ‘that the collection, with which your name will always be associated, will also be looked after with the greatest care in the future’. On 17 April 1940 Koenigs wrote to Hannema saying that, ‘We are also delighted that the collection has remained in Holland and naturally we prefer to see it in Museum Boymans.’ As an expression of his feelings, Koenigs donated two drawings by Carpaccio to the museum to supplement the collection. On 19 April 1940 Hannema wrote to L&R saying he was happy that ‘...the entire Koenigs collection...is staying in Museum Boymans...’ and he thanked the L&R bank’s board for the cooperation.
A.13. On page 317 of his biography of D.G. van Beuningen, Harry van Wijnen writes that on 28 April 1940—a few weeks after the transaction between L&R and Van Beuningen on 9 April 1940, but still before the German invasion—there was an exploratory meeting in The Hague between Van Beuningen’s son-in-law, Lucas Peterich, and the German Dr H. Posse, who purchased art on behalf of Adolf Hitler for the Führer Museum to be established in Linz. On 5 August 1940 Peterich reminded Posse of this discussion in a letter. In it he stated that at the time he assumed that his father-in-law did not want to sell anything, but ‘so glaube ich heute, daβ er jetzt vielleicht doch dazu bereit sein würde, wenn Sie ein gutes Angebot auf die Zeichnungen der Sammlung Königs machen könnten’. During the course of the following months Peterich negotiated with Posse on behalf of Van Beuningen about the purchase of part of the drawing collection.
A.14. At the beginning of December 1940 Van Beuningen sold some 528 drawings to Posse for NLG 1.4 million. On 9 December 1940 Hannema told a member of the board of trustees of the Museum Boymans Foundation about the sale by Van Beuningen, namely that ‘Mr van Beuningen had had a plan to sell for a certain sum of money a part of the Koenigs collection, which he had acquired before the war. This transaction has already taken place.’ The works on paper currently being claimed were part of this group. Van Beuningen donated the other drawings, numbering approximately 2,000, and eight paintings to the Museum Boymans Foundation.
A.15. Koenigs was arrested by the SD on 19 December 1940. After being held and interrogated for a week, he was released on 24 December 1940, probably after intervention by Alois Miedl. On 20 March 2014 the applicant handed over a note, dated 11 January 1941, written by J.P. Hooykaas, senior adviser in the Constitutional and Criminal Law Department of the Ministry of Justice. This note was ‘dictated in the presence of Mr Koenigs so that in any event what was said by Mr Koenigs was accurately recorded.’ The note states that on 11 January 1941 Koenigs declared the following. ‘On Thursday 19 December Mr Koenigs had a discussion with Mr GG from the firm of Labouchère in Amsterdam. Mr GG told Mr Koenigs that there were pending N.S.B. plans that, he feared, would by supported by the German S.S. Mr Koenigs reported the content of this discussion to Mr Miedl in Amsterdam, also a banker…. This was because Mr Koenigs knew that Mr Miedl had personal contacts with Reichsmarschall Goering. Mr Miedl then telephoned a nephew of the Reichsmarschall, Captain Goering, in Berlin, in order to pass on information. After this Mr Koenigs was arrested during the night of 19-20 December and interrogated about his informant, among other subjects. Mr GG was arrested the following morning and both were released on 24 December. Mr Koenigs assumes that this release was linked to Mr Miedl’s intervention with General Commissioner Rauter. On 23 December Mr Miedl had spoken about this subject with S.S. Brigadier General...’ In a letter of 10 April 1947 Miedl declared, ‘Ende 1940 wurden Herr Koenigs und ich vom deutschen Sicherheitsdienst in Amsterdam verhaftet. Nachdem mein seinerzeitiger Sekretaer HH, es verstand, die Schwester Goerings zu verstaendigen, musste ich auf telegrafischen Befehl freigelassen werden und konnte dann auch die Befreiung Koenigs erreichen. Zeuge ist die in Haarlem wohnende Witwe des Herrn Koenigs. Die seinerzeit durch den S.D. ausgesprochenen Drohungen sowie das Nachspiel dieser Verhaftung mahnten zur Vorsicht.’ On 23 October 2013 the applicant sent a report about this subject in regard to RC 4.123. It contained the following quotation, which is said to have come from a post-war file concerning an application by Miedl for non-enemy status. ‘M[iedl] declared how he, after he was told by Koenigs, had warned Göring by telephone about an assassination attempt, as a result of which he had to spend a night in jail. The upshot was that Wilkens, the predecessor of Lages, was transferred as a consequence of Miedl’s action.’
A.16. Koenigs died on 6 May 1941 at a railway station in Cologne, Germany.
A.17. In May 1942, a year after Koenigs’s sudden death, his widow Anna Koenigs wrote to Hannema saying, ‘I’m glad about everything that stayed in Museum Boymans and in the Netherlands, because it was always my husband’s wish that his collection would remain in our country.’
A.18. In 2008 Mr FF stated that his father was ‘not keen’ on the resale of part of the drawing collection by Van Beuningen and that his father certainly wanted to have further discussion with Van Beuningen about it. A few years after the war one or more of Koenigs’s heirs had an investigation carried out in order to find out whether Van Beuningen could be called to account for reselling works from the collection to Posse. At the time the idea was dropped because of negative legal advice to the effect that ‘the agreement concerned [between L&R in liquidation and Van Beuningen, RC] created legal relationships between Mr van Beuningen and the aforementioned N.V. only, and a possible promise to preserve the Koenigs Collection and to continue the loan to Boymans Museum does not have the character of a third-party clause, the fulfilment of which could be enforced at law by the heirs’ (letter from the lawyer Max Meijer to Mr FF of 19 August 1953).
A.19. The currently claimed works on paper belong to a part of the collection that was resold by Van Beuningen (see A.14) and that after the war ended up in the Soviet Union and were not returned to the Dutch government from Kiev, Ukraine, until 2004. This transfer was based on international agreements stipulating that artworks which disappeared from occupied countries during the Second World War must be handed over to the national government of the country of origin. The works became part of the Dutch National Art Collection (and in particular of the NK collection).
B.1. The applicant is a granddaughter of Koenigs. She is requesting the restitution of 139 drawings and three etchings that were returned from Kiev, Ukraine, to the Netherlands in 2004 (see the appendix for a summary and a description of the claimed works). In the current procedure the applicant has referred to documents about her inheritance-law-related position that she had sent to the Committee with regard to restitution application RC 1.6. It emerges from these documents that she belongs to the circle of rightful claimants to Koenigs’s legacy.
B.2. The applicant contends that Koenigs lost possession of the claimed artworks as a result of circumstances directly connected with the Nazi regime. Her reconstruction of the events, which she prepared in part on the grounds of her own research, can be summarized as follows. Prior to the German invasion Van Beuningen agreed to deliver the collection to Hitler’s representative, Dr H. Posse. In that context Van Beuningen and Hannema conspired to prevent Koenigs, who according to the applicant found himself in a vulnerable position in regard to the Nazi regime, from exporting his collection. They then tricked him out of his collection under pressure from an imminent German invasion. The liquidation of the L&R bank on 2 April 1940 was a sham transaction in order to keep it out of German hands. There was also a bogus transfer of the collection, which was prompted by the desire to keep it from being confiscated by the Nazi regime. The transfer of the collection to L&R on 2 April 1940 and the subsequent transfers to Van Beuningen and Posse are furthermore null and void under civil law, or at least are contestable.
B.3. The applicant has repeatedly asserted that the Committee should assess the present application for restitution based on the yardsticks of reasonableness and fairness (3 July 2008, p. 40). In this regard she refers, among other things, to article 2 paragraph 5 of the 2001 Decree Establishing the Restitutions Committee (23 January 2014, p. 5). She also argues that involuntary loss of possession directly related to the Nazi regime should also be taken to mean ‘the sale that came about as a result of violation of good faith with collaboration in the offing’ (hearing, 20 March 2014).
B.4. The Committee is unable to concur with this opinion. Under the 2001 Decree Establishing the Restitutions Committee, the Committee is tasked, giving due regard to the restitution policy (article 2 paragraph 4), with advising the Minister at the Minister’s request about decisions to be taken concerning applications for the restitution of items of cultural value in the Dutch National Art Collection of which the owner involuntarily lost possession due to circumstances directly related to the Nazi regime. In the case of loss of possession by private individuals who, like Koenigs (see B.5, B.6 and B.7 below), did not belong to a persecuted population group, such involuntary loss of possession is only the case if a direct link exists between specific threats or coercion from the Nazi regime and the loss of possession concerned (see also the advice about Weijers, RC 1.68, consideration 14 and Aldenburg-Bentinck, RC 1.102, consideration 7).
Reversal of the burden of proof
B.5. The applicant argues that Koenigs was an active political opponent of the Nazi regime and should be regarded as a victim of persecution. As support for this position she refers, among other things, to a letter from the Netherlands Property Administration Institute in which Koenigs is described as an ‘avowed opponent of the Nazi regime’; various statements by witnesses that were made during the years after the war and that bear witness to Koenigs’s political reliability; his involvement in German cultural life; the international fame of his art collection; his naturalization as a Dutch citizen in 1939; documents from which it can be deduced that Koenigs supplied information to the British secret service and others; information about Koenigs’s business and personal dealings with Jews after 1933, including indications that he supported and gave emergency help to Jewish contacts in several ways, and intelligence about relatives who were actively involved in the resistance to the Nazi regime in Germany. The applicant furthermore contends that the sale of the collection can be linked to the liquidation of the (‘Jewish’) L&R bank. The applicant argues that Koenigs should be treated the same way as private individuals who were persecuted by the Nazi regime because of their origins, such as Jews, and that involuntary loss of possession should be assumed. She thus invokes a reversal of the burden of proof, as contained in the recommendations of the Ekkart Committee concerning the restitution of private art property (April 2001).
B.6. Pursuant to the Ekkart Committee’s third recommendation concerning private art ownership, which was adopted by the government, the Committee considers that the sale of artworks by private Jewish individuals in the Netherlands from 10 May 1940 onwards is considered to be involuntary, unless the facts expressly show otherwise. In response to this recommendation, the government extended the reference to private Jewish individuals to include other victims of persecution, such as Roma and Sinti. The government’s response also refers to ‘other specific groups of victims of persecution’ (Lower House, 2001-2002, 25 839, no. 27). The above applies to loss of possession that occurred in the Netherlands on and after 10 May 1940, the day on which the Nazis invaded the Netherlands. Prior to this date, loss of possession in the Netherlands is assumed to be voluntary, even in the case of private individuals in a persecuted population group, unless the facts indicate that the contrary is highly probable. The transfer of ownership of the artworks concerned by Koenigs took place 2 April 1940, in other words before 10 May 1940, and for this reason alone there can be no reversal of the burden of proof automatically in this case.
B.7. The Committee furthermore takes the view that Koenigs cannot be regarded as a member of the resistance or a victim of persecution as referred to in the restitution policy. The Dutch government does not recognize Koenigs as a resistance fighter. It is plausible that Koenigs was detained and interrogated by the SD for a period in December 1940, but on the grounds of the information in A.15 the Committee deems it likely that it was linked to an attempt by Koenigs to tell Göring about reports of an imminent attack, and not connected to resistance activities or the sold works of art. So this arrest and this interrogation do not justify the conclusion that Koenigs should be considered as a victim of persecution. It has also not become plausible that Koenigs was murdered in 1941. When considered in conjunction, it also does not emerge from the other material that has been raised that Koenigs’s attitude and activities were such that they resulted in measures being taken by the Nazi regime aimed at him personally, on the grounds of which he can be regarded as a victim of persecution. On the contrary the Committee believes that Koenigs was an influential businessman who—certainly in comparison with the Jewish part of the population—was able to move about freely.
B.8. On the grounds of the above it is up to the applicant to make it plausible that Koenigs lost possession of the artworks currently being claimed involuntarily as a result of circumstances directly connected with the Nazi regime..
The legal instruments of 2 April 1940.
B.9. The civil law objections raised by the applicant, which were supported by experts’ statements that were handed over and which included violation of the appropriation prohibition as referred to in article 1200 of the old Dutch Civil Code and carrying out ‘sham transactions’, underpin the argument that—with regard to the private legal instruments of 2 April 1940—the claimed artworks were transferred to L&R in violation of the rules of civil law. The conclusions that the applicant draws from this are not clear in all documents, but appear to concern both the legal and actual status of the collection and also the policy-based designation of the loss of possession as involuntary. The applicant wrote the following about the ownership status of the collection in the response of 3 July 2008. ‘Before addressing that, however, the applicants want to put particular emphasis on one issue. According to all legal experts it has been established that Koenigs remained the owner of the Collection and that neither Van Beuningen nor any subsequent acquirer obtained ownership of the Collection. Franz Koenigs still has to be regarded as the owner.’ In addition the applicant, through her representative, asserted the following on 20 March 2014. ‘However, since the agreements of 2 April 1940 were sham transactions and since Koenigs still had the collection de facto, by rights still had the power of its disposal and had not yet lost ownership, this sale, aside from the circumstances, was not possible without involving him. In which case Koenigs did indeed lose possession involuntarily’ (De Jong, notes, p. 5). The applicant argues that in the execution of its advisory task the Committee regularly comments on legal aspects and therefore in the present case it should give its opinion about the civil law grounds that would make the transfer to L&R and the subsequent transfers to Van Beuningen and Posse null and void or contestable.
B.10. It is correct that the Committee regularly ‘comments on legal aspects’, for example in regard to whether an applicant or the legal predecessor of an applicant is the original owner in the sense of article 2 paragraph 1 of the Decree Establishing the Restitutions Committee. The issue here is whether Koenigs lost possession of the drawings involuntarily as a result of circumstances directly connected with the Nazi regime. In this case it has been established that Koenigs lost ownership of the drawings. In other words Koenigs lost the actual power to keep the drawings for himself (cf. article 3: 107 paragraph 1 of the Dutch Civil Code). That happened on 2 and 9 April 1940. The question of whether this loss of the actual power was based on one or more legal acts that are null and void or contestable on civil law grounds comes under the ‘ordinary legal rules’ as referred to in the explanatory notes to article 2 of the Decree Establishing the Restitutions Committee. It is therefore outside the scope of the restitution policy and the Committee’s terms of reference. In so far as the applicant’s arguments, as summarized in B.9, concern the question of whether there was involuntariness regarding the loss of possession as a result of circumstances directly connected with the Nazi regime, the Committee refers to considerations B.13 – B.19.
Value of the collection
B.11. The applicant asserts that the fact that on 2 April 1940 Koenigs was said to be satisfied with only a fraction of the real value of the collection indicates it was a sham transaction. In this regard she refers, among other things, to Hannema’s valuations of the collection in December 1940 (NLG 7.29 million and NLG 3.5 million), which were substantially higher than the price of one million paid by Van Beuningen shortly before that. The applicant also argues that neither Koenigs nor his business Rhodius Koenigs was in financial difficulty, so the transfer of the collection to L&R cannot be explained from a business perspective.
B.12. The Committee takes the view that the question of whether Koenigs had the financial means to repay the loan in April 1940 can be left unresolved. It is clear from the legal instruments that Koenigs chose not to pay off the loan. The Committee furthermore deems it plausible that Koenigs and L&R were prepared to accept a relatively modest consideration for the collection because they intended to support Museum Boymans and the nation’s art collection (see considerations A.5 and A.10). The Committee consequently takes the view that objective valuations, in so far as it is possible to reconstruct them, are not necessary for assessing the present request for advice.
Circumstances of the loss of possession
B.13. The Committee considers the applicant’s argument that the non-Jewish Koenigs wanted to protect his collection from confiscation by the Nazis through its transfer to a ‘Jewish’ bank to be highly improbable. On the other hand, the Committee believes—on the grounds of statements in surviving correspondence—it is likely (see also considerations A.10, A.11, A.12 and A.17) that starting in 1939 Koenigs and L&R jointly made efforts to have Museum Boymans permanently house the collection in its entirety.
B.14. It is no longer possible to establish which considerations lay behind Koenigs’s transfer of the ownership of his collection of drawings and paintings to L&R on 2 Aril 1940, as specified in the agreement of 1 June 1935, in return for being discharged from his debt to L&R, as well as the ultimate sale on 9 April 1940 by L&R of the drawing collection and twelve paintings to Van Beuningen. It is clear, though, that the said transactions took place before 10 May 1940. At that point the Nazi regime was not established in the Netherlands, and this makes a connection between the transfer of the collection and Koenigs being specifically threatened or coerced by the Nazi regime insufficiently plausible.
B.15. Thanks to his good relations with L&R’s management, Koenigs remained involved in the negotiations after the transfer of the collection on 2 April 1940 and he apparently assumed, as later proved to be justified, that the bank would respect his wish for the collection to be made available to Museum Boymans. The fact that Koenigs donated a further two drawings, by Carpaccio, to the museum on 17 April 1940 as a gesture demonstrates that Koenigs was pleased that, as he was then assuming, the collection would remain intact and that Van Beuningen was also expected to leave it in Museum Boymans under the name Koenigs, as a donation or a loan. The comments by the board of L&R also reveal satisfaction with the transaction and the conditions under which they assumed it had been executed. This all indicates there was no involuntary loss of possession as referred to in consideration B.4.
B.16. It must have been clear to everyone involved that Koenigs was assuming that the drawing collection would remain intact and that Van Beuningen was also expected to leave it in Museum Boymans under the name of the Koenigs Collection, as a donation or a loan. The Committee also thinks it is reasonable to assume that Van Beuningen’s resale for Hitler’s art collection eight months after he had acquired the collection from L&R was contrary to Koenigs’s cherished integrity of the collection that he had built up with such care, and was at the expense of Museum Boymans and Dutch national art treasures. The Committee furthermore considers it likely that this resale was extremely profitable for Van Beuningen personally, thanks in part to the concessions made by Koenigs and L&R. All such was contrary to Koenigs’s wishes and the hopes that were raised in him (see also consideration A.18). Yet this course of events does not lead to the conclusion that there was involuntary loss of possession as referred to in consideration B.4.
B.17. Yet the applicant contends there was ‘crafty teamwork by Van Beuningen, Hannema and Posse’ with the aim that L&R would sell the Koenigs collection at a very low price to Van Beuningen (and not to Museum Boymans), after which Van Beuningen could sell and supply part of it to Posse/Hitler at a price that was higher than what he paid for the entire collection. The applicant also asserts that Van Beuningen made an agreement with Hitler’s representative, Dr H. Posse, to make the collection safe for Hitler and to obstruct Koenigs from exporting it. Hannema and Van Beuningen then conspired to swindle Koenigs out of his collection and used the threat of a German invasion as a means of coercion. In this connection the applicant argues that the museum’s board of trustees would have known as early as 1939 that the collection would leave the museum the following year, that ‘Jews are involved here’, and that in the opinion of financier Van Beuningen and Boymans director Hannema it was being ‘purchased from Jews’.
B.18. The Committee considers that not all the facts put forward in this respect have been made sufficiently plausible. Even if the accuracy of this line of reasoning were to be accepted, it would not lead to restitution. According to the applicant all this should lead to the conclusion that there was involuntary loss of possession due to circumstances directly related to the Nazi regime. Contrary to what the applicant apparently assumes, the mere fact that these events are said to have taken place at a time when a German invasion threatened does not justify the conclusion that a direct link existed between a specific threat or coercion from the Nazi regime and the loss of possession by Koenigs (cf. consideration B.4). It has furthermore not become plausible that Van Beuningen, Hannema and Posse were involved in Koenigs giving his collection in payment to L&R. Van Beuningen acquired the collection from L&R, and so it is not possible to accept the assertion that the facts and circumstances relating to this transaction can have implications in respect of Koenigs.
B.19. There is no evidence that Koenigs’s descendants submitted an application for restitution after the war with regard to all or parts of the drawing collection discussed here. In this context the Committee considers it significant that the legal advice sought after the war, as referred to in consideration A.18, was not concerned with restitution of the collection to his heirs but clearly with the desire to hold Van Beuningen to account for failing to fulfil his ‘promise to preserve the Koenigs collection and to continue the loan to Boymans Museum’ as a consequence of the resale of part of the collection to Posse.
B.20. The Committee consequently takes the view that Koenigs did not lose possession of the artworks being claimed here as a result of circumstances directly connected with the Nazi regime.
The Restitutions Committee advises the Minister of Education, Culture and Science to reject the application for restitution.
Adopted on 14 April 2014 by W.J.M. Davids (chairman), J.T.M. Bank, R. Herrmann, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart and I.C. van der Vlies (vice-chair), and signed by the chairman and the director.
(W.J.M. Davids, chairman) (E. Campfens, director)
Appendix: list of claimed works of art (Dutch version)