Recommendation in the case of Koenigs
The present revised recommendation relates to an earlier application for restitution from C.F. Koenigs of Amsterdam (hereinafter referred to as the applicant). In it she requested the return of 34 paintings and 37 works on paper (hereinafter also referred to as the drawings) that are said to have been in the possession of her grandfather, the banker and art collector Franz Wilhelm Koenigs (hereinafter referred to as Koenigs). In letters dated 3 May 2002 and 26 November 2002, the State Secretary for Education, Culture and Science (hereinafter referred to as the State Secretary) submitted the application to the Restitutions Committee (hereinafter referred to as the Committee) with a request for advice. The Committee issued its advice to the State Secretary (RC 1.6) on 3 November 2003. On 10 December 2003 the State Secretary decided to reject the application, in accordance with the advice. Since then the applicant has voiced objections to the content of the advice and the way it was generated. She also asserts that new facts put the case in a different light. Op 13 December 2010 the State Secretary asked the Committee to issue revised advice on the basis of the information designated by the applicant as new facts. We refer to the advice about case number RC 1.6 for the inventory numbers of the claimed works. In the current procedure the applicant is also acting on behalf of a number of members of the family, namely Mr AA, Ms BB, Ms CC, Ms DD and Ms EE.
I - Assessment framework
If a decision has been taken in regard to a request for advice about restituting works of art from the Netherlands Art Property Collection (hereinafter referred to as the NK collection) or other parts of the Dutch National Art Collection, in principle the handling of the application is definitively terminated. The restitution policy does not provide for the option to ‘repeat’ the handling of a case, or to appeal so to speak. However, in 2010 the Committee did create the option, in consultation with the Ministry of Education, Culture and Science, to submit ‘requests for revised advice’. The intent of this procedure is limited. The handling of requests for revised advice does not involve facts that were already known and are submitted once again to support different arguments, but new facts that are relevant to the content of the advice. In addition, account is taken of the possibility of errors of a procedural nature. Summarizing, when handling a request for revised advice, the Committee evaluates a case on the basis of two criteria, which are:
a) there are new facts that, had they been known at the time the earlier advice was formulated, would have led to a different conclusion, and/or
b) there were errors during the earlier procedure that resulted in harm to the applicants’ fundamental interests.
II - The procedure
II.1. The immediate reason for the present procedure is the request from the State Secretary of 13 December 2010, which in turn was based in part on the report of the National Ombudsman dated 8 November 2010 (report number 2010/315).
II.2. The Committee points out the following by way of background. Subsequent to the request for restitution RC 1.6 in 2002, on 23 May 2005 the applicant requested the return of 139 drawings and three etchings that had been sent on 9 July 2004 from Kiev, Ukraine, back to the Netherlands and that are currently part of the NK collection. In a letter of 13 July 2005 the State Secretary asked the Committee for advice about this request, which was registered by the Committee under number RC 1.35. During the procedure relating to RC 1.35 the applicant then requested both the Committee and Ministry of Education, Culture and Science to revise the earlier advice and the 2003 decision about RC 1.6. In connection with this, in a letter of 24 April 2007 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Committee to include the material described by the applicant as new facts in its advice about RC 1.35. The results of the investigation of the facts relating to RC 1.35, including documents that were new in respect of RC 1.6, were then recorded in a draft investigation report dated 3 March 2008, which was sent to the applicant on 13 March 2008. The applicant responded to the content of the report on 3 July 2008. There was a hearing on 6 October 2008, on the basis of which the applicant submitted a further response on 25 November 2008. It emerged afterwards that the applicant had already submitted a complaint about the Minister to the National Ombudsman on 16 July 2008. Subsequent to this she requested the Committee to defer advising about RC 1.35 until the National Ombudsman issued a report. 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.
II.3. On 8 November 2010 the National Ombudsman issued a report in regard to the complaint submitted by the applicant. On the basis of the National Ombudsman’s recommendations, in a letter of 13 December 2010 the State Secretary withdrew the request submitted to the Committee in a letter dated 24 April 2007 to include new facts in RC 1.35. Instead the State Secretary 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. On 18 January 2011 the Committee informed the applicant and the Minister that it would put this request for advice in a separate file with the number RC 4.123. The Committee also advised the applicant that it would resume the procedure relating to RC 1.35. At the same time the applicant was given the opportunity to provide all the information relevant to the assessment of the request. Initially the applicant requested a postponement, but in a letter dated 11 April 2011 she asked the Committee to defer RC 1.35 until the present advice about RC 4.123 was issued. On 4 May 2011 the Committee once again deferred the active handling of RC 1.35.
II.4. In a letter of 19 October 2011 the Committee advised the applicant that it interpreted the letter from the State Secretary of 13 December 2010 as a request for revised advice about RC 1.6 and gave her detailed information about the procedure. When handling a request for revised advice, the Committee asks applicants to explain the background of the request in the light of the criteria referred to under I. In this context the Committee requested the applicant to provide the documents relevant to the assessment of the current request as a whole. Upon request, to that end an extra long period of over five months was specified, until 30 March 2012. The applicant subsequently asked twice for deferment of the deadline for responding. The Committee granted deferment, initially until 1 September 2012 and later to 19 November 2012, so the applicant was given 13 months. The applicant submitted the documents supporting her request on the latter date. On 7 December 2012 she delivered new copies to replace the files of documents submitted on 19 November 2012 plus a few additional documents.
II.5. In a letter of 21 March 2013 the applicant sent the Committee an exchange of letters with the request to add them to the earlier file. In response the Committee advised the applicant that it would add these letters to its file, and it also pointed out that it was no longer possible to submit new documents. In a letter of 6 May 2013 the applicant objected to this and argued that the Committee had not specified a clear deadline for submitting documents. She also asked the Committee to permit her to submit within a period of three and a half months the results of completed and ongoing investigations in regard to six subjects specified in detail. The Committee granted this request subject to the condition that subsequent submissions would really be limited to the six said subjects and also that they would jointly not exceed 50 pages. On 3 July 2013 the applicant objected to this and asked for these conditions to be dropped. The Committee rejected this request on 12 July 2013.
II.6. On 23 August 2013 the applicant provided the additional information, which comprised a letter with two enclosures ‘Addition T4’ and ‘Addition T5’ relating to two of the six subjects referred to above, a report entitled ‘Recherchebericht zum Tod von Franz Koenigs’ about the circumstances Franz Koenigs’s death, and five powers of attorney. In her letter the applicant stated that in her opinion the requirements for a proper procedure had not been complied with because both sides had not been listened to, unjustified restrictions had been specified in regard to the material to be submitted, no draft report had been written, and no hearing had been organized. And, as she had also done in her letter of 6 May 2013, she requested the Committee to prepare a draft report and organize a hearing.
II.7. First the Committee states that comprehensive advice about the present case was issued on 3 November 2003. An investigation report was written and a hearing was organized to that end. A request for revised advice, such as the current request, has a limited purpose (see I – Assessment framework). Organizing another hearing and writing a new draft report are not set parts of how such a request is handled. The Committee has not seen any reasons for these activities on the grounds of the specific circumstances of the case (see also below under II.9).
II.8. In order to enable the Committee to study and evaluate the documents supporting the request in conjunction with each other, the applicant was expressly asked to provide her input as a whole (II.4). A period of thirteen months was granted to that end, and after that a further opportunity was given to submit documents within certain generous limits (see II.5). The Committee is responsible for the execution of a proper procedure, which means among other things that limitations can be specified for the provision of further documents. In view of what the applicant had already submitted, the Committee thinks a restriction to 50 pages is not unreasonable.
II.9. The Committee considers the documents of 7 December 2012, 21 March 2013 and 23 August 2013 to jointly be the basis for the request for revised advice (see also ‘explanation’ below). The explanation contains a response to the earlier hearing and reporting about RC 1.6, as well as a comprehensive description of the applicant’s opinion about other subjects, including the procedure, the hearing and the draft report concerning RC 1.35. This latter case has been submitted for advice and is currently still awaiting consideration, and a significant part of it relates to the same complex of facts as the present advice (see also II.2 and III). In view of the above, the Committee cannot concur with the applicant’s assertion that both sides have not been heard. The Committee takes the view that the applicant has been given every opportunity to bring the matters that she considers important to the Committee’s attention and to explain her position with regard to them.
II.10. On 7 October 2013 the applicant, also on behalf of the family members represented by her, summoned the State of the Netherlands to appear in preliminary relief proceedings in the preliminary injunction court in The Hague in regard to the claim that the Committee, or the State, should be ordered to see to it that in this case – to put it briefly – a hearing is organized and that a draft report or draft advice is sent to them so that they can comment on it. In response to this the Committee postponed issuing the present advice until the preliminary injunction court made a ruling. In its judgment dated 12 November 2013, the preliminary injunction court rejected the claims. After this the Committee resumed the preparation of its advice.
II.11. The Committee understands that the applicant intends to submit an application to the court in Rotterdam for a provisional experts’ statement to be issued. With reference to point II.9, last sentence, the Committee sees no reason to suspend the handling of the present request for advice again. Furthermore, as emerges from articles 202 to 207 inclusive of the Code of Civil Procedure, such a statement serves as evidence in legal proceedings that have yet to be or have been instituted, and that is not relevant in the present advice to the Minister.
III - The applicant’s explanation
III.1. In part B of the explanation, which concerns the criterion described above in point I under b), the applicant argues that during the procedure relating to RC 1.6 there were serious procedural errors, on the grounds of which she asks the Committee to once again investigate and evaluate Koenigs’s loss of possession. The Committee has determined that a substantial proportion of part B of her explanation is outside the scope of the present procedure because it concerns actions by parties other than the Committee or relates to matters other than the procedure relevant here in the context of request for advice RC 1.6. In view of what follows, the Committee will now turn to the requested investigation and reassessment. The objections expressed in part B of the explanation, which the Committee considers to be purely an issue for the applicant, will not be discussed further.
III.2. Part A of the explanation and the enclosed appendices relate to the criterion described above in point I under a). The applicant argues that new facts have become known since the formulation of the advice regarding RC 1.6 that put the ownership situation and the circumstances surrounding the loss of possession of the claimed objects in a new light. The Committee has inventoried part A of the explanation and states first and foremost that it contains as arguments documentation that is already known, new documentary evidence, and opinions of experts asked to act for the applicant. The Committee agrees that new facts have come to light since the advice about RC 1.6 was issued that are relevant to the loss of possession sustained by Koenigs, both during the procedure relating to RC 1.35 and in the context of the present request. A specific summary of this information will be omitted here, but the Committee attaches particular importance to the following documents:
- A legal instrument dated 1 June 1935;
- Minutes of meetings of the Museum Boymans Foundation;
- Two legal instruments of 2 April 1940.
III.3. In the present case the existing documentation and the new documentary evidence are closely interwoven. The Committee has therefore investigated all of part A of the explanation in detail in conjunction with the RC 1.6 report and advice - and the documentation underlying them - in order to establish whether there is any basis for revision. The Committee’s findings in this regard are as follows.
IV - The facts
IV.1. Koenigs was born in Kierberg, Germany, on 3 September 1881. In 1920 he founded N.V. Rhodius Koenigs Handelmaatschappij together with a nephew. 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.
IV.2. During the nineteen-twenties Koenigs started what was to become a large collection of drawings and paintings. The collection of drawings, also known as the Koenigs collection, was of art historical importance.
IV.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 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.
IV.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 was not available to the Committee when the advice with regard to RC 1.6 was formulated. It was submitted in 2008 by Koenigs’s son FF as part of the RC 1.35 procedure. It 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 5 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. 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.
IV.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 Dirk 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. But the negotiations broke down. Meanwhile Koenigs and L&R made plans to transport the collection abroad.
IV.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 attack. 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.
IV.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 instruments were also not available to the Committee during its formulation of advice for RC 1.6. They were handed over by FF in 2008 in connection with RC 1.35.
IV.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.’
IV.9. It is stated in the second instrument, which is a further agreement relating to the paintings, that the ‘parties have been consulting each other about the settlement of Koenigs’s remaining debt to Lisser & Rosenkranz’ and that the parties have agreed the following in this regard: ‘As settlement of his residual said debt in the amount of NLG 412,915.14 and GBP 20,559.13s.7d, Koenigs gives Lisser & Rosenkranz as payment, and the latter herewith accepts as payment, the paintings 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 paintings to Lisser & Rosenkranz, and Lisser & Rosenkranz accepts this transfer of ownership, in return for which it discharges Koenigs from the aforementioned residual of his said debt.’
IV.10. 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.
IV.11. There was further consultation after 2 April 1940 between L&R ( represented by Jacques Goudstikker), Museum Boymans ( represented by its director Dirk 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].’
IV.12. On 9 April 1940 L&R sent written confirmation to Van Beuningen that it had sold him the drawing collection as well as 12 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.’
IV.13. 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 pleased 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.
IV.14. In his biography of D.G. van Beuningen, Harry van Wijnen (p 317) 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 Hans Posse, who purchased art on behalf of Adolf Hitler for the Führer Museum that was 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.
IV.15. 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 this sale, 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’. Some 37 of these drawings were recovered after the war and at the end of the nineteen-eighties they were sent back, primarily from the former German Democratic Republic, after which they became part of the NK collection. These 37 drawings are subjects of the current advice. Van Beuningen donated the other drawings, numbering approximately 2,000, and eight paintings to the Museum Boymans Foundation.
IV.16. The paintings that were not part of the agreement of 9 April 1940 between L&R and Van Beuningen were removed from Museum Boymans by Goudstikker. It is uncertain where these works were taken. It is also not clear whether further agreements about these works were made between Koenigs and L&R after 2 April 1940 and, if so, what their import was. In a letter dated 10 December 1946, that was handed over by the applicant in regard to the current request, L&R wrote that on 1 May 1940 it had 35 paintings in its possession for Koenigs, while Koenigs owed the bank NLG 706,088.47 plus GBP 20,559.13s.7d, adding up to a total of NLG 844,557.87. This letter then summarizes the works concerned. Number 14 is Cadmus Sowing the Dragon’s Teeth by P.P. Rubens, the work currently being claimed. It is stated in the letter that this painting was handed over on the instructions of Mr F. Koenigs for NLG 11,600. It emerges from surviving documentation that Cadmus Sowing the Dragon’s Teeth was then sold at the end of April or beginning of May 1940 to a Dutch couple, Mr and Mrs De Bruijn, through the J. Goudstikker gallery. Goudstikker gave the proceeds to L&R. This work of art was bequeathed to the Rijksmuseum in Amsterdam in 1961, thus becoming part of the Dutch National Art Collection.
IV.17. In its letter of 10 December 1946 L&R also stated that 31 paintings were handed over for NLG 800,000. On an unknown date, probably in June 1940, they were purchased by the German banker Alois Miedl. Twenty-seven of these 31 paintings are subjects of the current advice. A report written in 1952 by the lawyer A.E.D. von Saher entitled ‘N.V. Kunsthandel J. Goudstikker: overview of events during the period from 31 December 1939 to April 1952’ says about this sale that, ‘In June 1940 Miedl bought Koenigs’s Rubens collection from him for NLG 800,000’. A post-war report about the Miedl hearings states the following. ‘The sale took place in the garden of the Lisser Rosencranz Bank in the presence of Florsheim, the deputy director in the absence of Kramarsky who had left for America...Koenigs at first asked 800.000 and finally accepted 700.000. Miedl admits that this was very cheap but says Koenigs was no Jew and was eager to sell to clear himself of his financial obligations because the banks in Holland would not take pictures as security...Koenigs was actually paid 800.000 gulden by Miedl, and Flörsheim supplied the difference.’
IV.18. After this there were various further business contacts between Koenigs and Miedl. On 14 September 1940, in the presence of the notary A. van den Bergh in Amsterdam, the firm of ‘Kunsthandel voorheen J. Goudstikker N.V.’ was founded. Alois Miedl traded art during the war through this company. Koenigs was one of the founders besides Miedl. He participated in the issued capital by purchasing five of the 600 shares. Miedl’s bank, N.V. Buitenlandsche Bankvereniging (BBV), also acquired a substantial number of L&R shares in the course of 1940. Op 13 December 1945 H.H.F. Herrndorf, one of L&R’s liquidators, said the following about this matter. ‘As a very good friend, Mr Koenigs felt obliged to champion the interests of L&R and to actually protect it. The relationship with and the friendly feelings for L&R. resulted in Rhodius Koenigs buying 540 shares from Mr F [Flörsheim, RC] on 9-9-’40 at 75 %. By then it was clear to Mr Koenigs that his position was not strong enough to protect L&R properly. The upshot of these considerations, together the general situation, was the acquisition of the shares by BBV...As a consequence of the steps that had already been taken, it seemed necessary to Mr Koenigs that the 687 shares of Mr S. Kramarsky should also change hands. He was convinced that this would be the best way to serve the interests of his friend Kramarsky, and the consequence was that BBV took over L&R.’
IV.19. Koenigs died on 6 May 1941 at a railway station in Cologne, Germany.
IV.20. 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 should remain in our country.’ In response to a declaration obligation announced by the authorities, after the war Anna Koenigs filled in 31 SNK (Netherlands Art Property Foundation) declaration forms, in which she reported the sale of 31 paintings by Koenigs to A. Miedl in the ‘summer of 1940’. There was a pre-printed line for declaring the nature of the loss of possession: ‘As a result of confiscation / theft / forced/voluntary sale, it came into the possession of’. She crossed out the first three options, and in so going declared that according to her it was a voluntary sale.
IV.21. A few years after the war one or more of Koenigs’s heirs apparently had an investigation carried out in order to establish 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 FF of 19 August 1953).
V - Assessment
V.1. In her extensive explanation, the applicant brings forward new and existing material to support the assertion that the transfer of the collection came about under pressure from an impending German invasion. She gives three factors that would have led to revised insight into the whole case, namely:
1) ‘The board of trustees of the museum knew as early as 26 October 1939 that the collection would leave the following year, and that Jews were involved here’;
2) ‘When Van Beuningen and Hannema bought the F. Koenigs collection, in their vision this was also purchased from Jews; this was minuted as such in the meeting of the board of trustees on 18 April 1940’;
3) ‘The third and most important fact is that in December 1946 Lisser & Rosenkranz confirmed that it had the 35 paintings of Franz Koenigs in its possession on 1 May 1940.’
The applicant concludes that, ‘Franz Koenigs was the valid owner, and that giving them in payment, which according to article 1200 of the old Dutch Civil Code was null and void, was effectively a sham transaction in order to protect the collection.’
What the applicant apparently intends here, read in conjunction with her whole line of reasoning, is to prove that Koenigs’s loss of possession of the drawing and painting collection was involuntary as a result of circumstances directly related to the Nazi regime. This argument can be summarized as follows.
V.2. Prior to the German invasion Van Beuningen agreed to deliver the collection to Hitler’s representative, Dr Hans Posse. In that context Van Beuningen and Hannema conspired to prevent Koenigs, who 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 fact that on 2 April 1940 Koenigs was satisfied with only a fraction of the real value of the collection (according to the applicant NLG 4.5 million) and subsequently remained involved in the negotiations indicates this. In this connection the applicant also asserts 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. 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. Koenigs therefore remained the owner of the collection.
Reversal of the burden of proof
V.3. The applicant says that Koenigs was an active political opponent of the Nazi regime and consequently should be regarded as a victim of persecution. In this regard she 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). As support for this position she refers, among other things, to a letter from the Nederlandse Beheersinstituut (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; 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. She also states that in December 1940 Koenigs was held by the SD for over two weeks in the detention centre in Kleine Gartmanplantsoen in Amsterdam and was interrogated daily in Euterpestraat. Koenigs was eliminated on 6 May 1941 in Cologne.
V.4. The Committee states first that the applicant had already argued in regard to RC 1.6 that Koenigs was opposed to the Nazi regime, made efforts on behalf of Jewish contacts and had dealings with British intelligence. In that context the Committee points out that it described Koenigs in its advice about case number RC 1.6 as ‘a marked opponent of the Nazi regime’. The question to be addressed is therefore whether the new facts supplied in regard to the present revised advice give reason to reconsider the opinion as contained in consideration 17 in the advice about case number RC 1.6. The Committee answers this question in the negative, and is of the opinion that in this case reversal of the burden of proof is not relevant.
V.5. Pursuant to the Ekkart Committee’s third recommendation concerning private art ownership, which was adopted by the government, 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. After all, before 10 May 1940 the Nazis were not able to use coercion to reinforce their influence in the Netherlands. The transfer of ownership 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 in this case.
V.6. 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 has become plausible that Koenigs was detained and interrogated by the SD for a period in December 1940, but there are no indications that the interrogation was connected to resistance activities or the sold works of art. In the Committee’s opinion this detention and 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 furthermore 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, as stated earlier in the advice about case RC 1.6, 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’.
V.7. On the grounds of the above it is therefore 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. In the case of loss of possession by private individuals who did not belong to a persecuted population group, this 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).
Civil law arguments
V.8. The following applies to the civil law grounds that are said to mean that the transfer to L&R and the subsequent transfers to Van Beuningen and Posse are null and void or contestable. The Committee is responsible for advising the Minister at the Minister’s request about decisions to be taken concerning applications for the restitution of items of cultural value of which the original owners involuntarily lost possession due to circumstances directly related to the Nazi regime, and to carry out this advisory task giving due regard to the restitution policy (article 2 paragraph 4 of the Decree Establishing the Restitutions Committee). In regard to the civil law objections raised by the applicant and the supporting experts’ statements that were handed over - including violation of the appropriation prohibition as referred to in article 1200 of the old Dutch Civil Code and carrying out ‘sham transactions’ - it is argued that the private legal instruments of 2 April 1940 relating to the present items of cultural value transferred to L&R were in violation of rules of a civil law nature. It follows from the starting point above that this is outside the scope of the restitution policy and consequently outside the Committee’s terms of reference for the Committee to give its opinion on the question about whether there were civil law grounds for making the transfers on 2 and 9 April as well as in or around June 1940 or any other point in time null and void or contestable and, if so, what the consequences should be with respect to the present request for restitution. In this regard the request does not come within the Committee’s mandate. It comes within the scope of ordinary legal rules as referred to in the explanatory notes to article 2 of the Decree Establishing the Advisory Committee. The Committee will therefore not consider the said objections further in its deliberations.
Transfer of the drawing collection
V.9. It is no longer possible to establish exactly which considerations lay behind the transfer by Koenigs of the ownership of his collection of drawings and paintings to L&R on 2 April 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, however, that these 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. 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 IV.11, IV.12, IV.13 and IV.20) that since 1939 Koenigs and L&R jointly made efforts to have Museum Boymans permanently house the collection in its entirety. The fact the 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 it was not involuntary loss of possession as referred to in consideration V.7.
V.10. Nevertheless the applicant contends that Hannema and Van Beuningen 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 following year, that ‘Jews are involved here’ (consideration V.1, point 1), and that in the opinion of financier Van Beuningen and Hannema, director of Boymans, it was being ‘purchased from Jews’ (consideration V.1, point 2). The applicant also asserts that Van Beuningen made an agreement with Hitler’s representative, Dr Hans Posse, to make the collection safe for Hitler and to obstruct Koenigs from exporting it. Not all of the facts that have been 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 V.7).
V.11. The Committee deems it plausible that Koenigs and L&R intended to support Museum Boymans and the nation’s art collection and were prepared to accept a relatively modest consideration for the collection (see considerations IV.5 and IV.11). It must have been clear to everyone involved that Koenigs was assuming 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 considers it likely that the resale by Van Beuningen for the benefit of Hitler’s art collection was extremely profitable for Van Beuningen personally, thanks in part to the concessions made by Koenigs and L&R. The Committee also thinks it is reasonable to assume that this resale was contrary to Koenigs’s cherished cohesion of the collection that he had built up with such care, and was at the expense of Museum Boymans and Dutch national art treasures. All such was contrary to Koenigs’s wishes and the hopes that were raised in him. Yet this course of events does not lead to the conclusion that there was involuntary loss of possession as referred to in consideration V.7.
V.12. As regards the ownership situation of six of the 34 currently claimed paintings, the Committee finds (with reference to the advice about RC 1.6, consideration 5) that no new facts have been brought forward to indicate that Koenigs was the owner of the works NK 1915, NK 2075, NK 1848, NK 3577, NK 3387 and NK 2071. The ownership situation relating to the other 28 paintings also remains unclear because there is insufficient insight into the agreements between L&R and Koenigs after 2 April 1940 to establish the exact course of events (see considerations IV.9, IV.16 and IV.17). Consequently it is also not possible to determine the timing and the nature of the transaction as a result of which Koenigs finally lost possession of the paintings. Ownership is thus not highly probable, which is a primary requirement for restitution.
V.13. Even if we were assume as a starting point that the works were Koenigs’s property after 2 April 1940, there is no evidence of involuntary loss of possession as referred to in consideration V.7. The painting Cadmus Sowing the Dragon’s Teeth was in all probability sold by Jacques Goudstikker to a Dutch purchaser before the German invasion. In view of these circumstances, the Committee considers it extremely improbable that there was a direct link between Koenigs being subjected to a specific threat or coercion from the Nazi regime and the transaction concerned. There is also no evidence that Koenigs was pressurized by Miedl in regard to the purchase of twenty-seven of the currently claimed paintings by the latter. The business contacts between Koenigs and Miedl after the transaction concerned, including Koenigs’s involvement in the establishment of Miedl’s gallery (see also consideration IV.18), make this unlikely too.
V.14. In addition, after the war Anna Koenigs made a declaration to the SNK that the sale of the works to Miedl was voluntary (see IV.20). The applicant had already asserted in the context of RC 1.6 that this obligatory declaration should be considered as a claim to the works, and has repeated it now. The arguments put forward by the applicant to support this stance and the contention that the descendants submitted a claim do not hold water, however, because she assumes that compliance with the declaration obligation issued by the authorities has to be considered as a submission of a claim for restitution. The documentation that has been submitted, such as correspondence with various restitution and recovery authorities, likewise provides inadequate support for the assertions. There is no evidence that Koenigs’s descendants actually submitted an application for restitution after the war with regard to all or parts of the drawing and painting collection discussed here. In this context the Committee considers it significant that the legal advice that was sought after the war, as referred to in consideration IV.21, was not concerned with restitution of the collection to Koenigs’s 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.
VI - Twelve specific arguments put forward by the applicant
VI.1. In her explanation, the applicant specified at length her objections as referred to above in the form of twelve points under the heading ‘new facts’. In the interests of precise and complete handling of her request, the Committee deems it desirable to go through these twelve points.
VI.2. The first point the applicant raises is that it follows from article 1 of the Constitution and the principle of equality it contains that the reversal of the burden of proof, as referred to in the policy framework, should also apply to ‘population groups persecuted by the Nazis’ other than Jews, Sinti and Roma. She comments here as follows: ‘Making a distinction between different groups is comparable to what happened under the Nazi regime, namely the population was divided into groups and received “special treatment” on the grounds of where their group was in that ranking.’ As a second point she adds that Koenigs was a political opponent of the Nazi regime and for that reason should be considered as a victim of persecution. The applicant deduces from this that the burden of proof of the involuntary nature of the loss of possession should be reversed in favour of Koenigs. The Committee does not agree with this conclusion because she has not been able to qualify Koenigs as a victim of persecution as referred to in the policy framework as adopted by the Dutch government and parliament. In this regard the Committee refers to what it has considered under numbers V.3 to V.7 inclusive. There is, incidentally, no conflict with the Constitution and the principle of equality since the reversal of the burden of proof has been accepted for a limited group of people as compensation for the fact that in many cases they have lost items of evidence. There is thus not a discriminatory criterion, but a precautionary measure to compensate for a disadvantage.
VI.3. The third point the applicant raises is that the Koenigs collection should be designated as a ‘Jewish collection’ and that the transfer to Van Beuningen for NLG 1,000,000 should not be considered as a normal transaction. A key issue in the assessment of the present request is whether Koenigs lost his collection involuntarily as a result of a specific threat or coercion from the Nazi regime. 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. The Committee refers here to what was considered above under V.9 to V.11 inclusive.
VI.4. In her fourth point, the applicant argues that the Committee did not base its advice of 3 November 2003 about case RC 1.6 on objective valuations. The Committee takes the view that exact data about objective valuations, in so far as it is possible to reconstruct them, are not necessary for the present request for advice.
VI.5. The applicant’s fifth point is an objection to consideration 15 in the advice of 3 November 2003 about case RC 1.6 on the grounds that the loan Koenigs was given in 1931 was not granted for purely economic reasons. The Committee passes over this objection because it is not crucial to the assessment of the present request for advice to know why Koenigs borrowed money from L&R in 1931 since the debt position has to be designated as an established fact, thanks in part to the newly submitted documents.
VI.6. In her sixth and seventh points, the applicant contends that the liquidation of L&R and Koenigs subsequently giving his collection in payment were ‘sham transactions’ and that giving the collection in payment violated article 1200 of the old Dutch Civil Code. The Committee has not addressed this contention because an opinion about it and the possible implications for the present request are outside the scope of its powers, as explained in consideration V.8.
VI.7. The applicant’s eighth point is that the actions of Van Beuningen, Hannema and Posse served to obstruct Koenigs’s intended export of the collection, and in this way to keep the collection available to sell to Hitler. Whatever the case may be, it does not follow from this that there was a direct link between an express threat or coercion from the Nazi regime and the loss of possession by Koenigs .
VI.8. The applicant’s ninth point furthermore describes giving Koenigs’s collection in payment as a sham transaction ‘as a result of crafty teamwork by Van Beuningen, Hannema and Posse’. The Committee understands this contention to mean that the aim of this ‘crafty teamwork’ was 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. Whatever the case may be, it has not become plausible that the said people were involved in Koenings giving his collection in payment to L&R. As regards the rest, the Committee refers to considerations V.9 and V.10 for the alleged ‘sham transaction’.
VI.9. In her tenth point the applicant asserts that the submission of declaration forms by Mrs Anna Koenigs on 21 September 1945 concerning 35 paintings is to be considered as the expression of a claim to those paintings. She reproaches the SNK for not doing anything about it. This reproach is not right. The Committee refers to the fact established in consideration IV.20 that Mrs Anna Koenigs stated in the 31 declaration forms she submitted that they were voluntary sales and also to the points addressed under V.14.
VI.10. The applicant’s eleventh point concerns the contention that the sale of the currently claimed paintings (at the end of April 1940 and around June 1940) took place ‘under pressure that arose from the compulsory sale of 9 April 1940, a sale by Jews who had been put under pressure’. A reversal of the burden of proof should therefore apply in favour of Koenigs. The Committee does not accept the contention. It refers in this regard in the first place to what is stated in consideration VI.3 and in the second instance to considerations V.3 to V.7 inclusive, which also apply correspondingly to the sale of the paintings. The ownership situation concerning these paintings is furthermore extremely uncertain, as explained above in consideration V.12.
VI.11. Finally, in her twelfth point, the applicant condemns the attitude of Museum Boymans both then and now. According to her the museum should demonstrate that its acquisition of the remaining part of the Koenigs collection through a donation from Van Beuningen was in good faith. The Committee does not understand how what is being brought up here could lead to allowing the present request. The works currently being claimed do not belong to the part of the collection donated by Van Beuningen. Furthermore, the issue here is not the acquisition by Van Beuningen or the Museum Boymans Foundation, but the loss of possession by Koenigs to L&R. In so far as the applicant is aiming to assert that the actions of Hannema should be attributed to Museum Boymans, she is apparently making a link to the eighth and ninth points, which the Committee has already considered under numbers VI.7 and VI.8.
VII - CONCLUSION
On 3 November 2003 the Restitutions Committee advised that the application for the restitution of 34 paintings and 37 works on paper - under number RC 1.6 - should be rejected. The Committee advises the Minister of Education, Culture and Science to let this rejection stand.
Adopted on 12 November 2013 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)