Recommendation regarding Katz
In a letter of 16 March 2017 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 question of whether the Minister should reconsider her decision of 24 January 2013 in the case of Katz (RC 1.90-B). The decision concerned the rejection by the Minister of an application by heirs of Nathan and Benjamin Katz (hereinafter referred to as the Applicants) for restitution of 188 works from the Netherlands Art Property Collection (hereinafter referred to as the NK collection) on the grounds of the Committee’s recommendation to that effect of 17 December 2012 regarding case RC 1.90-B (hereinafter referred to the earlier recommendation). The present request for advice arises from the Applicants’ request to the Minister of 13 January 2017.
In a letter of 13 January 2017, read in conjunction with a letter from the Applicants to the Committee of 15 December 2016 and to the Minister of 23 December 2016, the Applicants asked the Minister to reconsider her decision of 24 January 2013. In response to this request, in a letter dated 16 March 2017 the Minister asked the Committee to advise her about this request. In a letter dated 17 May 2017 the Committee explained the steps in the procedure to the Applicants. The Applicants sent additional documents upon request with a letter of 9 November 2017.
The Committee saw no need to conduct further research or to prepare an investigation report.
- The Minister asked the Committee for advice about the question of whether she should reconsider her decision of 24 January 2013. The Minister made this decision on the grounds of the Committee’s earlier recommendation. The Committee will formulate its recommendation with regard to the Applicants’ request of 13 January 2017 in the following considerations. The Committee will answer the question of whether there are grounds for reconsidering the decision of 24 January 2013 on the basis of the following two criteria:
(a) new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion, and/or
(b) errors during the earlier procedure that resulted in harm to the applicants’ fundamental interests.
The earlier recommendation
- The earlier recommendation was issued on the grounds of the application for restitution of 189 NK works. The application was submitted by rightful claimants to the estates of the brothers Nathan and Benjamin Katz, who were the only partners in the company Firma D. Katz (Katz Gallery) in Dieren, which they founded in 1930. The earlier recommendation related to 189 NK works that were sold by the Katz Gallery to various buyers. Four lists (I to IV) concerning the different buyers of the NK works involved were appended to the earlier recommendation.
-List I is of 101 works that were sold to Alois Miedl/kunsthandel v/h J. Goudstikker N.V.
-List II is of 65 works sold to the Sonderauftrag Linz (Special Mission Linz).
-List III is of 14 works sold to Hermann Göring.
-List IV is of the other 9 works.
In the earlier recommendation an assessment was made per list of the ownership and the voluntariness of the sale of the works referred to on the list. The Committee advised the Minister to restitute one NK work (NK 1668) from list II and to reject the application for the others. The Minister decided accordingly.
Procedural errors (criterion b)
- In their letter of 15 December 2016 the Applicants expressed their complaints about the procedure followed previously. First and foremost the Applicants contend that in this case the Committee incorrectly applied its own standards regarding the burden of proof for involuntariness and ownership. According to the Applicants, the Committee wrongly did not apply the principle that sales by the Katz Gallery were involuntary unless there is express evidence to the contrary. According to the Applicants, in addition the Committee allowed itself to be affected by post-war events when drawing conclusions. The Applicants also assert that the Committee demanded too high a level of proof with respect to the ownership issue.
The Committee finds as follows with regard to these complaints. On the grounds of the Decree Establishing the Restitutions Committee, the Committee advised about the earlier restitution application giving due regard to ‘government policy in this respect’. Since this case was about an art gallery, the most important part of this government policy was the Ekkart Committee’s Recommendations for the Art Trade (2003), as adopted by the Dutch government. According to these recommendations, ownership by the original owner must be made highly plausible and it needs to be demonstrated that a sale was involuntary. Unlike the case of a private owner, the reversal of the burden of proof, as formulated in the third recommendation of the Ekkart Committee (2001), does not apply in cases where the original owner was an art gallery. The Committee’s earlier recommendation was in line with the Recommendations for the Art Trade. To this extent the Applicants’ complaints are therefore wide of the mark.
As regards the Applicants’ complaint that the Committee supposedly allowed itself to be affected by post-war events when drawing conclusions, the Committee finds that it attributed significance to, among other things, statements that Benjamin Katz made after the war. The Applicants do not concur with the Committee’s evaluation of these statements, but this does not mean that involving these statements in its earlier recommendation is a procedural error. This complaint is therefore also wide of the mark.
- In their letter of 15 December 2016, the Applicants also asserted that in its assessment of the restitution application the Committee improperly addressed the loss of possession first. According to the Applicants the Committee should first of all have assessed whether ownership of the claimed works by the Katz Gallery was highly plausible. According to the Applicants, if the Committee had conducted the research necessary to address this question, the Committee would supposedly have obtained a better and more complete understanding of the circumstances associated with the loss of possession.
With respect to this complaint the Committee finds as follows. On the grounds of the assessment framework applicable to this claim, ownership must be highly plausible and the involuntary nature of the loss of possession must be demonstrated. If there is failure to meet one or both of these requirements, a restitution application is not admissible. Contrary to the Applicants’ assertion, there was and is no obligation on the Committee to assess ownership first and the loss of possession thereafter. This complaint is therefore wide of the mark.
- Finally, the Committee has taken note of the Applicants’ complaint to the effect that, when submitting the current application, they were restricted in their options to conduct research themselves because according to the Minister they would have to bear the costs of photographing and investigating approximately fifteen of the currently claimed works that are outside the Netherlands. However, the Committee sees no reason to address this issue in depth here in view of what is considered further in this recommendation.
New facts (criterion a)
- The Applicants submitted the following three reports together with their request for reconsideration.
-Report of AA, Duress on Dutch Jews before and during the occupation (hereinafter referred to as the AA Report)
- Katz heirs’ response to the Committee Recommendation in RC 1.90B, dated 17 December 2012, and Report on RC 1.132, by BB (hereinafter referred to as the Response)
- Provenance Report by BB, corrected 13 January 2017 (hereinafter referred to as the Provenance)
The AA Report and the Response address the asserted involuntary sales by the Katz Gallery. The Provenance discusses the contended ownership of the claimed works by the Katz Gallery. New facts are invoked in these three reports; they are recorded in the documents submitted as appendices to the reports. In the following considerations the Committee will address the extent to which these reports contain new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion (criterion a).
The AA Report
- On the basis of a number of examples, this report addresses the treatment of Dutch Jews by the Nazis in Germany prior to 10 May 1940. The documents appended to the report concern complaints by the Dutch Embassy in Berlin to the German Ministry of Foreign Affairs about the treatment of Dutch Jews in Germany. The documents concern 1935, 1936 and 1938. Some documents are complaints about the treatment of named Dutch Jewish art dealers in Germany. Other documents relate to complaints about the treatment of Dutch Jews in Germany in general, including as a result of Kristallnacht (Night of Broken Glass). In the case of some of the recorded complaints, the response of the German authorities to them is also known.
The AA Report moreover considers the treatment of Jews in the Netherlands after the German invasion on 10 May 1940. This analysis is based on the reports drawn up by the German authorities in the Netherlands during the first months of the occupation. They are primarily reports by the diplomat Gesandtschaftsrat W.F. Wickel in The Hague and were destined for Berlin.
According to AA the documents show that the Nazis’ intentions were well known in the Netherlands before the German invasion and that the Katz brothers must have been aware of them. According to AA it emerges from the documents dating from the first months of the occupation that the Nazis immediately started to make plans to remove Jews from Dutch society. In AA’s opinion the Katz brothers, in view of the measures that the Nazis would take against them, had no other recourse than to sell their trading stock as soon as possible.
- The Committee confirms that when the earlier recommendation was adopted it did not know of the documents upon which the AA Report was based. If the Committee had known about them at the time, however, it would not have resulted in a different conclusion about the nature of the loss of possession. The basic premise underlying the art trade policy was and is after all ‘dat de kunsthandel verkoop van handelsvoorraad als doelstelling heeft, zodat een belangrijk deel van de verrichte transacties, ook bij joodse kunsthandelaars, in principe gewone verkoop was’ [‘that the art trade’s objective is to sell trading stock, so a significant fraction of transactions, including by Jewish art dealers, in principle constituted ordinary sales’]. This means that the involuntary nature of a specific sale or group of sales has and had to be made plausible by the Applicants. The documents submitted with the AA Report are insufficient because they do not concern the Katz Gallery or sales by the Katz Gallery.
- As the full title indicates, the Response contains arguments on the grounds of which the Applicants believe that the earlier recommendation was incorrect. These arguments are based on the one hand on research results that are already known and on the other hand on contended new facts. In view of the restricted assessment framework (criterion a) applicable to this request for reconsideration, the arguments put forward that are not based on any new facts cannot result in recommendation to the Minister to reconsider her earlier decision. In so far as there are new facts underlying the arguments put forward in the Response, first of all the Committee has to evaluate whether there really are new facts and, if so, whether these facts, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion. The Committee will conduct this evaluation on the basis of the documents enclosed with the Response, in which there are 85 footnotes referring to them.
- Under ‘B - Response to RC’s Historic Overview’ BB addresses the activities of the Katz Gallery prior to the German invasion. The documents submitted in this regard (footnotes 1 to 5) contain information about the activities and conduct of the Katz Gallery before the war. Leaving aside the matter of whether these documents were known when the earlier recommendation was adopted, in the Committee’s opinion they cannot result in a different conclusion about the nature of the loss of possession because of the period they cover.
- Under 2 ‘Firma Katz’s business after 1939 and the Katzes’ awareness of the spread of anti-Jewish measures’ BB discusses the period between the outbreak of the Second World War and the German invasion in May 1940 on the basis of documents referred to in footnotes 6 to 12. The range of correspondence referred to in footnote 6, from which according to BB it emerges how difficult it is to establish precisely the titles to ownership of the paintings referred to in this correspondence, bears no relation to the currently claimed works and therefore does not lead to a different conclusion. The documents referred to in footnotes 10 and 11 describe anti-Jewish measures in Germany before the war and the reaction to them in the Netherlands. This concerns general information that does not relate specifically to Katz and therefore does not lead to a different conclusion.
Footnote 7 contains a transcript of an autobiographical tape by Max Stern, a Jewish art dealer from Düsseldorf, who is known to have made attempts in 1935 to have his business taken over by a third party (see consideration 8 of recommendation RC 1.96). It emerges from the transcript that Nathan Katz attempted to take over Stern’s gallery but the Nazis did not permit him to because of his Jewish descent. Footnote 8 concerns a letter to Nathan Katz dated 10 July 1939 in which he is asked to provide financial support to Max Friedländer, who because of his Jewish descent was not able to bring any possessions with him from Germany. Footnote 9 contains various documents from the archive of Gustav Cramer. Footnote 12 contains correspondence dating from January 1940 between Dr Hans Schneider, Director of the RKD (Netherlands Institute for Art History) and E. Pelinck, Director of Museum de Lakenhal, about the loaned collection of the German Jewish collector Dr Alphons Jaffé, who had fled to London. Only some of these loaned works could eventually be transferred to London, and the rest were confiscated by the Dienststelle Mühlmann (Mühlmann Agency).
According to BB it emerges from the documents referred to in footnotes 7, 8, 9 and 12 that the Katz brothers had to have been aware of the increasing severity of the anti-Jewish measures and their implications. The Committee can concur with this but points out that at the time the earlier recommendation was adopted it was already known that the Katz brothers had been worried even before the German invasion about the possible implications of anti-Jewish measures. See in this regard the statements by David Katz, the son of Nathan Katz, cited in part 1, section 1.7, of the Investigation Report of 17 December 2012 prepared in case RC 1.90-B (hereinafter referred to as the Investigation Report). The documents referred to in footnotes 7, 8, 9 and 12 therefore do not lead to a different conclusion.
- Under 3 ‘The German invasion has immediate consequences for Dutch Jews’ BB analyzes the implications of the German invasion for Dutch Jews. She underpins this on the basis of documents referred to in footnotes 13 to 28. With the exception of the references in footnote 25, these documents are newspaper articles and official German and American reports about the situation in the Netherlands during the first months of the German occupation. Given that their import is general, they do not lead to a different conclusion.
In footnote 25 there is a reference to a letter, probably from Nathan Katz, dating from March 1941. This letter was already known when the earlier recommendation was adopted.
- BB addresses Alois Miedl under 4a ‘Alois Miedl: Buyer for Hitler and Goering’. She does this on the basis of footnotes 29 to 39. The documents referred to in them are reports from the British Ministry of Economic Warfare about Miedl (footnote 29), a 1937 memo by Miedl concerning a tax matter (footnote 30), a 1947 statement by Kajetan Mühlmann about Miedl (footnote 31), an exchange of letters in July 1940 between Schneider and the art dealer Karl Haberstock about the takeover of Goudstikker by ‘ein deutsches Konsortium’ (footnote 32), documents about a lawsuit in Switzerland at the end of the nineteen-forties that involved Miedl (footnotes 36, 37 and 38) and a 1951 report written as a result of a request by Miedl for termination of his enemy status (footnote 39). None of these documents was known when the earlier recommendation was adopted. They are not relevant for assessing the nature of the transactions between Katz and Miedl, however, because they do not specifically relate to them. It is for this reason that these documents do not lead to a different conclusion.
In footnotes 34 and 35 BB refers to a report by the public prosecutor W.H. Overbeek dated 18 January 1951. This report was known when the earlier recommendation was adopted and is referred to in footnote 22 on page 20 of part 2 of the Investigation Report.
- Under 4b ‘Walter Andreas Hofer: Buyer for Hermann Goering’ BB refers in footnote 40 to documents that were known when the earlier recommendation was adopted (Art Looting Investigation Unit Consolidated Interrogation Reports (CIR), Report No. 2, The Goering Collection and the Adriaan Venema book, Kunsthandel in Nederland 1940-1945).
- Under 4c ‘Hans Posse: Buyer for Hitler’s Sonderauftrag Linz’ BB discusses Hans Posse. In this context she refers to documents mentioned in footnotes 41 to 48. The letter of 24 July 1940 mentioned in footnote 41 is referred to on page 15 of part 2 of the Investigation Report. Footnotes 42 and 46 refer to the 2004 book by Birgit Schwarz ‘Hitler’s Museum. Die Fotoalben Gemäldegalerie Linz: Dokumente zum´Führermuseum’. This book was known when the earlier recommendation was adopted and was taken into account in the investigation. Footnotes 43 and 44 have references to the draft investigation report concerning RC 1.90-B (footnote 43) and the RC’s recommendation regarding RC 1.102 of 6 September 2010 (footnote 44). They therefore do not relate to new facts.
Footnote 45 mentions a letter 21 September 1942 from Posse to Wickel about the art dealer De Boer. According to BB it emerges from this letter that Posse used art dealers as tools. However, that was already known as is evident from the quotation by Posse about Nathan Katz on page 43 of part 2 of the Investigation Report. The letter referred to in footnote 45 therefore does not lead to a different conclusion.
Footnotes 47 and 48 refer to documents that describe the organization of the Sonderauftrag Linz (Special Mission Linz). These documents were not known when the earlier recommendation was adopted but on the other hand they do not contain any new relevant perspectives. They therefore do not lead to a different conclusion.
- Under 5 ‘Purchases by Miedl, Goering and Hofer’ BB addresses the transactions of the Katz Gallery with Miedl, Hermann Göring and Walter Hofer. Footnote 50 refers to three documents that BB uses to support her argument that market prices were not paid in sales to Miedl. Footnote 51 refers to various documents from which it emerges, according to BB, that the transactions with Miedl were not normal transactions for the Katz Gallery.
When the earlier recommendation was adopted the Committee was not familiar with these documents, but it did know the information they contain. As regards the purchase and sale prices, reference can be made to the Goudstikker/Miedl’s purchases and sales ledgers cited in the Investigation Report. As regards BB’s assertion that the transactions with Miedl were not normal ones for the Katz Gallery, reference can be made to the statement by Benjamin Katz cited under c) in the earlier recommendation that in normal circumstances he and his brother would never have considered selling such a large batch of paintings to Miedl in one transaction. The documents referred to in footnotes 50 and 51 therefore do not contain any relevant new facts.
- Under 6 ‘Aryanization of Firma Katz’ BB refers in footnotes 52 and 54 to reports from the American consul in Amsterdam in the autumn of 1940. These reports contain a general description of the anti-Jewish and other measures being taken by the German occupying forces and therefore do not lead to a different conclusion.
The letters mentioned in footnote 53 are referred to on pages 21 and 61 of part 2 of the Investigation Report.
- Under 7 ‘The acquisition of the Lanz Collection for Linz’ BB refers in footnote 55 to a letter that was probably from Nathan Katz, dating from March 1941. This letter is referred to on page 20 of part 2 of the Investigation Report. BB also refers to an exchange of letters between Nathan Katz and W.R. Valentiner, Director of the Detroit Institute of Art, in the summer of 1941. The Committee will address this in the following consideration.
- Under 8 ‘Katz family’s plans to flee the Netherlands’ BB discusses Nathan Katz’s plans to flee the Netherlands. She does this on the basis of documents referred to in footnotes 56 to 70. Some of the documents referred to in these footnotes contain general information about the situation in the occupied Netherlands as described in reports from the American consul (footnotes 57, 58 and 59). Although these particular documents were not known when the earlier recommendation was adopted, the descriptions they contain are not relevant to assessing the nature of the loss of possession. The descriptions are after all not specifically related to the transactions that the Applicants had to demonstrate were involuntary. They therefore do not lead to a different conclusion. This also applies to the references in footnotes 61 and 62 to the book by Robin te Slaa ’1941. Het masker valt’.
A number of other documents that are referred to in footnotes were known when the earlier recommendation was adopted and were taken into account in the investigation. This concerns footnotes 65, 66, 67, 68 and 70. Footnote 69 serves to underpin the fact that Nathan and Benjamin Katz’s mother and their brother Simon remained behind in the Netherlands and were later interned in Westerbork camp. This is described in part 2 of the Investigation Report and the footnote therefore does not contain any new facts.
- As regards the documents referred to in footnotes 56, 60, 63 and 64, the Committee finds as follows. Nathan Katz’s departure from the country for Switzerland in 1942 and the run-up to it are described in section 6 of part 2 of the Investigation Report and in the earlier recommendation in the historical overview under h) ‘Uitreisplannen’ [‘Plans to leave the country’]. This departure from the country played a role in the Committee’s considerations and its recommendation to restitute NK 1668 (considerations 22 and 23 of the earlier recommendation).
In footnote 56 there is a reference to a letter from Schneider to Hanns Schaeffer dated 9 January 1941. This handwritten letter was not known when the earlier recommendation was adopted. Schneider wrote that he had left with his family for Switzerland just before Christmas 1940. He also wrote,
‘Vor den Abreise von dort haben mir die beiden Brüder Katz gebeten Ihnen Grüssen zu bestellen und Ihnen zu sagen Sie [seihen?] dazu das ganze dortige Geschäft zu liquidieren. Sie tun es schon jetzt bei Zeiten da aus zuverlässigen Quelle erlautete, dass alle nicht arischen Geschäfte auf 1. Apr. 1941 arisiert oder liquidiert sein müssten. ‘Gouverner cést prévoir’. Nathan ist damit beschäftigt seine Ausreise aus Holland zu ermöglichen, für sich + seine familie. Er bittet bei ev. Anfrage dort entsprechend mitwirken zu wollen. Ferner er[...dt] er Sie keinerlei geschäftlich-finanzielle Sachen mehr an die Firma zu korrespondieren i.B. über die Angelegenheit mit der fa. Agnew oder ev. Verkäufe etc. Sonst könnte die Liquidation oder die Ausreise compliziert oder verzögert werden’.
Footnote 63 refers to an exchange of letters between Nathan Katz and Valentiner in the summer of 1941. These two letters were not known when the earlier recommendation was adopted. The date of Nathan Katz’s letter is not known, but it is known that it was written at Schneider’s postal address in Basel in Switzerland. It is known that Nathan Katz was in Switzerland from 18 July to 8 August 1941. Valentiner’s answer is dated 26 August 1941. Nathan Katz wrote the following in his letter.
‘… In Holland leben wir zwar under gewältigen Druck, sind jedoch bis heute am Leben, und bis heute dem Konzentrationslager, bzw. Gefängenis noch ferne geblieben.’
Nathan Katz also wrote about his desire to start up an art gallery in the United States.
The documents referred to above were not known when the earlier recommendation was adopted. The Committee answers in the negative the question of whether these letters, had they been known at that time, would have resulted in a different conclusion. In considerations 22 and 23 the Committee attributed importance to several circumstances with regard to NK 1668 in order to link the sale of NK 1668 directly to the departure of Nathan Katz’s family from the country and, following on from this, to consider this sale as involuntary. These circumstances, however, manifested themselves from September 1941. Although it emerges from the documents submitted so far that Nathan Katz had been thinking about leaving the Netherlands for some time, in view of the exchange of letters between Schneider and Schaeffer since the end of 1940, this does not necessarily mean, also in conjunction with the known letter from Nathan Katz of 1 March 1941, that the transactions of the Katz Gallery from that moment were directly connected to the departure of Nathan Katz’s family from the country and were therefore also involuntary.
Footnote 64 refers to a letter from the collector H.E. ten Cate to Valentiner of 19 August 1941. The Committee did not know of this letter when the earlier recommendation was adopted, but takes the view that its content does not lead to a different conclusion.
- Under C ‘Post-War Investigations and Claims’ BB discusses the events after the war. She does this on the basis of footnotes 71 to 84. Some of the documents referred to in these footnotes were known when the earlier recommendation was adopted. This concerns footnote 78 (a reference to the book Betwist Bezit), footnote 79 (a statement by the Chair of the Board of Management of the SNK (Netherlands Art Property Foundation), Jonkheer D.C. Röell, which is referred to in part 3, page 17, of the Investigation Report) and footnote 80 (a post-war statement by P. Reelick, referred to in part 3, page 7, of the Investigation Report). Other footnotes concern documents that are new, but whose contents were known when the earlier recommendation was adopted. This concerns footnote 73 (a reference to the obligation to declare to the SNK art sold during the war) and footnote 77 (a report from the American consul in Amsterdam of 13 January 1947 about recovery of artworks).
Footnotes 72, 74, 75 and 76 refer to various documents regarding Katz that were not known when the earlier recommendation was adopted, but are not relevant to assessing the claim. They therefore do not lead to a different conclusion. The same applies to footnote 81 (documents about a Rembrandt exhibition in Basel in 1948 in which Katz was involved) and footnote 82 (documents about the research in Switzerland by P.C. Overdijk, which is described in section 4.6.5 of part 3 of the Investigation Report).
BB addresses the disappearance of the blue inventory book on the basis of footnotes 83 and 84. This is described in section 4.6.2 of part 3 of the Investigation Report. The documentation referred to in footnotes 83 and 84 was largely known when the earlier recommendation was adopted and provides no new insight. It therefore does not lead to a different conclusion.
- In the Provenance BB addresses the origins of the claimed works, which is relevant to the question of whether it is highly plausible that the artworks belonged to the Katz Gallery. In her analysis BB employs six categories:
*** Fully documented ownership
** Evidence of ownership making it more than highly probable that Firma Katz was the owner
* Evidence of ownership making it very possible to highly probable that Firma Katz was the owner
##* Third party involvement not conclusive
## Conclusive evidence of intermediary role or commission
# No evidence of Katz ownership
In view of this and in view of the considerations above, it is not necessary to discuss all the arguments that BB puts forward in her Provenance. The Committee explains this below.
- First and foremost it follows from considerations 7 to 21 that the information and arguments put forward by the Applicants about the voluntary nature of the sales to Miedl (list I) do not lead to a conclusion that differs from the one contained in the earlier recommendation with regard to the nature of the loss of possession. This means that there is no reason to address the information in the Provenance about the origins of the artworks referred to on list I.
- As regards the sales to the Sonderauftrag Linz (list II) it follows from considerations 7 to 21 that the information and arguments put forward by the Applicants about the voluntary nature of the sales to the Sonderauftrag Linz (list II) does not lead to a conclusion that differs from the one contained in the earlier recommendation with regard to the nature of the loss of possession.
In the earlier recommendation the Committee came to the conclusion with regard to NK 1668 that it was sufficiently plausible that the work was the property of the Katz Gallery and the sale of this work was involuntary. The date of the sale to Posse, on or around 19 November 1941, was one of the important factors in reaching this conclusion. As regards the other works that the Katz Gallery supplied to Posse in the period from the end of September 1941, the Committee took the view that the ownership had not been established. This implies that if ownership of works sold to the Sonderauftrag Linz in the period from the end of September 1941 could be made highly plausible, there would be reason to reassess the sale of these works. The Committee therefore considers there is reason to assess whether, with regard to the question of ownership of the works sold to Posse from the end of September 1941, the Applicants have put forward new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion regarding the plausibility of ownership by the Katz Gallery. This concerns the works with numbers 50 to 65 on list II.
BB places four of these artworks (numbers 61, 62, 64 and 65) in the category ‘# No evidence of Katz ownership’. Also no new facts have been advanced with regard to these four works. The Committee will therefore give no further consideration to these four artworks.
- BB appended documentation to the Provenance with respect to the other works on this list. This documentation consists primarily of copies from a notebook kept by Posse. The book records the date of purchase, the purchase price and the vendor from whom Posse bought the work of art concerned, namely ‘N.K.’, which according to the Applicants means Nathan Katz. The Committee also considers this to be plausible. In some cases the notebook has more information about a specific artwork, for example NK 1648, which according to a note made by Posse came ‘aus englischen Privatbezitz’.
The Committee did not know of this notebook when the earlier recommendation was adopted. The notebook confirms that Posse purchased the artworks for the purposes of the Sonderauftrag Linz, but in the Committee’s opinion it confirms no more than the fact that Nathan Katz was involved in the sale of the artworks concerned. The different mentions by Posse of the name Nathan Katz in regard to the different artworks and other references do not as such make it highly plausible that the Katz Gallery was the owner of these works of art.
This is also the case with the shipping note that was submitted concerning the transport on 15 December 1941 of 23 crates of artworks from Dresden to Munich. This note contains a list of the particulars displayed on the crate, the number of paintings in the crate and the titles of the paintings. A number of crates bear the designation ‘D.K.’ followed by a Roman number. According to BB this indicates Katz as the origin. The Committee can accept this but also takes the view that these references are not enough in themselves to comply with the criteria employed by the Committee in consideration 8 of the earlier recommendation. This is also the case with the photographs of the backs of the artworks submitted by the Applicants.
It follows from the above that, with regard to the ownership of the works sold to the Sonderauftrag Linz (list II), the Applicants have not put forward any new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion regarding the plausibility of ownership by the Katz Gallery.
- As regards the sales to Herman Göring (list III) it follows from considerations 7 to 21 that the information and arguments put forward by the Applicants about the transactions with Herman Göring (list III) do not lead to a conclusion that differs from the one contained in the earlier recommendation with regard to the voluntary nature of these sales.
With respect to category b) of these transactions, in consideration 30 of the earlier recommendation the Committee reasoned that it did not exclude the possibility ‘dat ook de overige onder categorie b vermelde schilderijen tijdens het bezoek aan Göring zijn verkocht. In geval van een dergelijke aankoop, door Göring persoonlijk bij een joodse kunsthandelaar, is onvrijwilligheid van het bezitsverlies niet onaannemelijk. De commissie komt aan een oordeel hierover echter niet toe, aangezien ten aanzien van alle werken onder deze categorie b geen aanwijzingen zijn gevonden die de eigendom van Kunsthandel Katz in hoge mate aannemelijk maken.’ [‘that the other paintings listed in category b were also sold during the visit to Göring. In the case of such a purchase, by Göring personally from a Jewish art dealer, it is not implausible that the loss of possession was involuntary. The Committee does not draw a conclusion about this, however, because with regard to all the works in this category b no indications were found that make ownership by the Katz Gallery highly plausible.’]
The Committee therefore considers there is reason to assess whether, with regard to the question of ownership of the works specified in category b), the Applicants have put forward new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion regarding the plausibility of ownership by the Katz Gallery. In addition to NK 2608, which belonged to Ten Cate’s collection, category b) contains three works: NK 2465, NK 1751 and NK 1695. The Provenance only states new facts about the first two works so the Committee will limit its assessment to the new facts put forward about the two artworks concerned (NK 2465 and NK 1751).
- BB submitted documents regarding NK 2465 that show, according to her, that this work was sold to Göring in September/October1940 rather than in 1942. But this is not a new fact. It is stated in consideration 29 of the earlier recommendation that the aforementioned artworks listed in category b were sold by or through the Katz Gallery for the purposes of Hermann Göring’s art collection ‘op of omstreeks 27 september 1940’ [‘on or around 27 September 1940’].
BB submitted two documents regarding NK 1751. These documents contain no new facts however.
It follows from the above that, with regard to the ownership of the works sold to Hermann Göring (list III), the Applicants have not put forward any new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion regarding the plausibility of ownership by the Katz Gallery.
- As far as the sales of the Other artworks (list IV) are concerned, the Committee finds that the Applicants have not invoked any new facts.
- In view of the considerations above, the Committee will advise the Minister not to reconsider the decision of 24 January 2013 regarding RC 1.90-B.
The Restitutions Committee advises the Minister of Education, Culture and Science not to reconsider the decision of 24 January 2013 in so far as it concerns rejection of the application for the restitution of 188 NK works, which the Committee had advised on 17 December 2012 under number RC 1.90-B.
Adopted on 15 November 2017 by A. Hammerstein (Chair), J.T.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.
(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)