"Fair and just?" The German arts and rare book trade discuss provenance and restitution

This article was first published on the website of the German antiquarian booksellers association, Verband Deutscher Antiquare. The original article in German language can be viewed here.

On 14 October 2019, more than 120 art dealers, gallery owners, lawyers, collectors and antiquarians met at the Munich auction house Karl & Faber to shed light on the historically and legally complex topic of Nazi looted art from the point of view of the market players.
A first.
The restitution of Nazi looted art is intensely discussed in public. Since the Washington Declaration in 1998 and the Joint Declaration of 1999, spectacular cases of restitution such as Ernst Ludwig Kirchner's "Berlin Street Scene" (Alfred Hess Collection, restituted 2006) or Paul Klee's "Swamp Carers" (Sophie Lissitzky-Küppers Collection, Comparison 2017) have made a name for themselves. In addition, the Federal Government and the Länder have taken measures, such as the establishment of the German Centre for the Loss of Cultural Assets, based in Magdeburg, and the Lost Art Database, which has been in existence since 2001, most recently the still highly controversial Cultural Assets Protection Act (Kulturgutschutzgesetz). The resulting challenges for dealers, trading in paintings, prints, books and manuscripts, are often relegated to the background. And it is precisely these questions that are of central, even existential importance for the art and antiquarian book market.

This makes it all the more important that the initiative of the Interessengemeinschaft Deutscher Kunsthandel (a joint initiative of, among others, the Bundesverband Deutscher Kunstversteigerer and the Verband Deutscher Antiquare) to organise a conference titled "Fair und gerecht? Restitution und Provenienz im Kunstmarkt". The conference was attended by leading experts of the trade. However, the Federal Government Commissioner for Culture and the Media, Monika Grütter, had neither appeared nor sent a representative - a "devastating" finding for Prof. Dr. Michael Wolfssohn. In his introductory lecture, Wolfssohn, whose family had waived restitution even after a trial lasting more than 12 years, pleaded for a "visualization" of the injustice committed. The art objects seized from Jewish families between 1933 and 1945 as a result of persecution carried a "Kain sign", the art trade and the public were obliged to point this out. "Justice is not enough", he said, "reconciliation" was important.

Legal uncertainty

It became clear in all lectures and plenary discussions how extremely difficult, and in many cases even impossible, it can be to establish law and justice in restitution cases of Nazi looted art almost 75 years after the end of the Nazi regime. A fundamental problem is the legal uncertainty. Even the Washington Declaration, in which 44 states, 12 non-governmental organizations and the Vatican voluntarily committed themselves to locating cultural property confiscated, stolen or seized for persecution during the Nazi era, to finding the rightful owners or their heirs, and to working out a fair and just solution for restitution or compensation, cannot change this. As a "soft law" (Michael Eggert), the Washington Declaration lacks any legal certainty. There are no legally binding guidelines, complained Prof. Dr. Hans-Jürgen Papier, former president of the Federal Constitutional Court and chairman of the so-called Limbach Commission (advisory commission in connection with the restitution of cultural property seized as a result of Nazi persecution). Dr. Papier sees it as the duty of the Federal Government to finally establish legal certainty by means of a moderate law that takes all sides into account. In the concluding panel discussion, there were unmistakable doubts as to whether the Federal Government would take on this task in the foreseeable future. How should the Federal Republic, how should public institutions as legal successors of the Nazi state deal with claims for compensation in the case of a restitution law? What would happen if such a law were to regulate not only the compensation of Nazi looted art, but also of real estate or company shares seized as a result of persecution? Prof. Dr. Hans-Jürgen Hellwig stated in his controversial lecture on "Developments since the Washington Principles" that one probably did not want to risk social peace.

What is "reasonable"?

Hans-Jürgen Hellwig acted as a consultant for the Cultural Property Protection Act and is now regarded as one of its harshest critics. The law had been drafted with "fake facts", because there was no evidence, for example, that Germany was a money-laundering centre for antique dealers. The legislation, he continued, concentrated one-sidedly on the perspective of the then owners of paintings, graphics and other cultural assets, but ignored the situation of today's owners and did not provide any sensible guidelines for a private restitution of looted art. The current owners are only rarely identical with the descendants of the perpetrators. Many works of art were acquired in good faith decades ago by private collectors at auctions or in the trade, without having any information that they might be Nazi looted art. The situation was different for museums and archives that already existed during the Nazi era or were considered legal successors. In this role, they would have the duty to restitute, or at least to bring about a fair and just solution for all those involved in the sense of the Washington Declaration. Other agreements would have to be found for private restitutions.

What is fair and just? This question can only be answered through careful research into the provenance of all objects, stressed Dr. Uwe Hartmann of the German Centre for the Loss of Cultural Assets and Dr. Christian Fuhrmeister of the Central Institute for Art History. If a work of art were to fill a provenance gap, it would be under general suspicion. Hans-Jürgen Hellwig explained that the new law on the protection of cultural property imposed an extended provenance inspection obligation on the art trade, which ultimately meant that a dealer could only bring a work of art onto the market "if he had previously carried out provenance research to the point of economic ruin". According to Hellwig, this was "unconstitutional". Prof. Dr. Peter Raue agreed: Essential aspects of the Cultural Property Protection Act were unconstitutional, and it would be appropriate to correct this in an evaluation process. Provenance research has been part of everyday life for every retailer for decades, especially the larger auction houses have their own departments that deal with it, explained Dr. Rupert Keim of auction house Karl & Faber and Carl-Christof Gebhardt, former employee at Sotheby's Germany. But how much provenance research is economically feasible and reasonable? Art dealers and antiquarian bookshops not only feel largely left to their own devices by the federal government on this question, and are confronted with sometimes unfulfillable demands.

Insufficient - The Lost Art Database

All the more serious was the fact that the Lost Art Database operated by the German Centre for the Loss of Cultural Property had considerable shortcomings. Criticism of the database, which since 2001 has recorded cultural objects that were stolen, transferred or relocated as a result of the Nazi tyranny and the Second World War, was expressed in almost all of the lectures of the day. The information was too general and did not allow exact identification. It also contained works of art that had already been legally sold before 1930. For an entry in the Lost Art database, unproven allegations were sufficient; in the case of unjustified claims, however, the deletion of an entry was almost impossible. This makes these issues all the more fatal in view of the central role played by the Lost Art database in the decision of restitution cases. Carl-Christoph Gebhardt and Dr. Christoph Andreas of the Frankfurt art dealer J. P. Schneider emphasized that the database had "blackmail potential". Dr. Christina Berking, spokeswoman for IG Kunsthandel, put it in a nutshell: collectors are "pushed" by the state, by the public to restitution, "the main means of pressure" is the entry in the Lost Art database.

So what's next?

At the end of a long and insightful day, Christina Berking summarized the precarious situation of the art market. So far, there have been no binding solutions for the restitution of Nazi looted art from private sources. Different standards would have to be applied for the restitution of artworks from museums and archives. Collectors and dealers should finally be included in the Limbach Commission, which had previously only discussed cases of public restitution. The Federal Government and the Länder were obliged to draw up a restitution law that took into account the conditions of the art market and the private acquisition of works of art and included a law on compensation. So far, however, the political will to do so has been missing: "The state gets the required restitution virtually free of charge".

This forces the actors of the art market, who see themselves just as committed to the Washington Declaration as the public institutions, to act on a legally unclear basis and under constantly growing public pressure. The burden of proof can only be clearly clarified in a few cases. According to Dr. Rupert Keim at the auction house Karl & Faber, 11 cases have been restituted in recent years, although the evidence in none of the cases was unequivocal. It was important to make amends, to acknowledge the injustice that had occurred and to establish legal peace.

What do the descendants of the victims and legal owners need, what do today's owners need? How can both be brought to the same table and how can a fair and just solution be found for both? The trade has an important mediating function in this pressing problem. If the state continues to leave the trade alone in its efforts to find solutions, the limits of what is reasonable will soon be reached. Fair and just - this applies to all parties involved in every respect. "We have not found any solutions today, but we have discussed many solutions," summarized Christina Berking. The Munich conference was a strong, clear signal from the art trade to face up to the responsibility of history and to tackle the resulting problems together. That gives hope for the future.

Text and Images: Dr. Barbara van Benthem, VDA