Summary recommendation

The Restitutions Committee has reassessed the application from the heirs of Abraham Adelsberger (1863-1940) for the restitution of two paintings (NK 3277 and NK 3278) by the artist A. von Stadler after a request for reconsideration on the grounds of new facts. The original recommendation issued by the Committee in 2009 (Adelsberger RC 1.91) concerned three works. The restitution application for the two paintings by Von Stadler was rejected because ownership and the circumstances of the loss of possession had not been sufficiently well established.

New research has revealed that a previously unknown archive in the Jewish Historical Museum in Amsterdam contains documents relating to the Adelsberger family and the related Isay family. This family archive, which covers a period of some fifty years, contains personal and commercial documents, including information about the sale of paintings during the 1933-1945 period.

New documentation has also been supplied on behalf of the Adelsberger heirs.

This material and supplementary research have yielded relevant facts and insights about the flight of the Adelsberger and Isay families from Germany to Amsterdam and about the ownership and fate of individual artworks in their possession. These new facts justify the substantive handling of the request for reassessment. It has emerged from the aforementioned records and reporting that Adelsberger’s son-in-law Alfred Isay (1885-1945) acquired ownership of the two Von Stadler paintings in 1933 and took them with him to Amsterdam in 1934.

It has furthermore emerged from the records of the Goudstikker/Miedl gallery that on 13 November 1941 the gallery purchased these two works by Von Stadler from a certain ‘Weinberg’. Research into Weinberg’s identity has revealed that there was somebody in the Isay family’s immediate circle called Weinberg, who also had contacts with the Goudstikker/Miedl gallery.

Given the new facts, the Committee has concluded it is highly likely that Alfred Isay was the owner of the two paintings by Von Stadler at the moment possession was lost in November 1941. The Committee also considers it sufficiently plausible that Alfred Isay, who because of his Jewish background belonged to a persecuted population group, lost possession of these artworks involuntary on 13 November 1941 by selling them through Leopold Weinberg to the Goudstikker/Miedl gallery as a result of circumstances directly related to the Nazi regime. The Committee has therefore advised the Minister of Education, Culture and Science to restitute the two NK works Mountainous Landscape (NK 3277) and Landscape (NK 3278) to the heirs of Alfred Isay.

1. The Request for Reassessment

In a letter of 23 May 2017, the Minister asked the Committee for advice about whether the ministerial decision of 20 April 2009 in the Adelsberger case should be reconsidered. This was prompted by the request from the lawyers L. Fremy (Berlin) and N. Scheftelowitz (Israel), on behalf of the joint heirs of Abraham Adelsberger, to the Minister as included in letters of 20 January and 13 February 2017. During the course of the procedure, two heirs, AA and BB, told the Committee that they were no longer represented by the aforementioned lawyers and that they would look after their own interests in this case.
The earlier recommendation about Adelsberger (RC 1.91) of 9 March 2009 concerned three works from the NK Collection. In that case the Committee recommended restitution of one of the three works to the heirs of Abraham Adelsberger (NK 2425) and rejection of the application relating to the other two works (NK 3277 and NK 3278). The Minister accepted this recommendation. The request for reassessment concerns the two works, NK 3277 and NK 3278, which were not restituted.

3. The Committee’s Procedure

In a letter of 20 January 2017, the Applicants asked the Minister to reconsider the ministerial decision of 20 January 2009 concerning the paintings Mountainous Landscape (NK 3277) and Landscape (NK 3278) by A. von Stadler. In response to this request, on 23 May 2017 the Minister asked the Committee to advise about this request. With their request of 20 January 2017, the Applicants appended a report dated 9 November 2016 by D. Kleefstra of the general partnership Artiaz (hereinafter referred to as the Artiaz report). In a letter of 8 June 2017, the Committee explained the steps in the procedure to the Applicants. In this letter the Committee also requested copies of the documents referred to in the Artiaz report and identification of their sources. Upon request, the Applicants sent additional documents with a letter of 30 October 2017.
On 7 February 2019 the Committee asked the Restitution Expertise Centre (hereinafter referred to as the ECR) to conduct additional research into the facts. The results are recorded in an overview of the facts dated 1 April 2021. This draft overview of the facts was sent with a letter dated 20 April 2021 to the RCE and the Applicants for additional information and/or comments. The Applicants responded in letters of 18 June, 20 June and 22 June 2021, and the RCE in an e-mail of 24 June 2021. The comments in the letters from the Applicants were incorporated in the overview of the facts by the ECR.
The Applicants consented to application of the Assessment Framework accompanying the Decree Establishing the Restitutions Committee of 15 April 2021 (hereinafter referred to as the Assessment Framework). The Assessment Framework is in the Appendix to the Decree Establishing the Restitutions Committee.
This was followed on 16 July 2021 by adoption of the final overview of the facts. On 30 July 2021 the RCE stated that it had no further additions to the final overview of the facts. On 16 September 2021 the Committee asked whether the Applicants needed a hearing. On 22 September 2021 they stated they wanted to waive a hearing.
During the procedure the Applicants had themselves represented by L. Fremy, Rechtsanwalt of Berlin, and Dr E. Scheftelowitz and N. Scheftelowitz of Israel. On 22 June 2021 one of the Applicants, AA, stated that from then on, he did not want a lawyer to act on his behalf.

5. Establishing the Facts

The Adelsberger family

Abraham Adelsberger was born in Hockenheim on 23 April 1863. On 14 June 1893 he married Clothilde Reichhold, who was born in Fürth on 15 July 1872. The couple had two children: Paul, born on 11 March 1894 in Mannheim, and Sofie, born on 21 August 1897 in Nuremberg. In around 1897 Abraham Adelsberger and his family settled in Nuremberg. Initially, like his father, he worked in the hop trade. Later he become co-owner of H. Fischer & Co, which manufactured tin toys. The firm, which also operated internationally and successfully exported products, employed some 300 people. The Adelsbergers’ large family home was a hub in the city’s cultural life. In the house there was a sizeable art collection, which included porcelain and paintings. Clothilde Adelsberger supported artists and furthered their training as painters or musicians. In recognition of his services to the community over the years, Adelsberger was given the honorary title ‘Kommerzienrat’ (Counsellor of Commerce). Friends and acquaintances said they had come to know him as ‘einen sehr grosszügigen und liebenswerten Menschen’ [‘a very generous and lovable person’]. His daughter Sofie Adelsberger married the Cologne businessman Alfred Isay. His son, Paul Adelsberger, left for the United States in 1914 and acquired American citizenship. In 1922 he returned to Nuremberg, where he joined his father’s firm. In 1923 he married Rosalie Weil. In October 1933 he fled Germany, leaving behind all his possessions, and returned to the United States.

The Isay family

Alfred Isay was born on 17 August 1885 in Cologne. On 13 June 1920 he married Sofie Adelsberger. The couple settled in Cologne and had two children: Marlise Ruth (born on 28 June 1921, died 2012) and Walter (born on 14 August 1927, died 2000). Alfred Isay and his cousin Adolf Isay ran the initially flourishing textile factory and wholesaler ‘Gebrüder Isay’ in Cologne. They liquidated this company in 1932 and continued doing business under the name Wistri.

Anti-Semitic measures and deportations in the Netherlands

Anti-Jewish measures were introduced in the Netherlands step by step. On 22 October 1940, for example, regulation 189/1940 was promulgated. It stipulated that Jewish businesses had to be registered by 30 November 1940. Registration was the prelude to further measures that were to follow in the spring of 1941. Regulation 6/1941, which was promulgated on 10 January 1941, stipulated that all Jews in the Netherlands had to be registered. As a result of regulation 48/1941, referred to as the Wirtschaftsentjüdungs [business Aryanization] regulation, which was promulgated on 12 March 1941, businesses were expropriated or placed under Aryan management. Alfred Isay was consequently forced to hand over his shares in EMKA, the textiles factory he had founded, to non-Jewish people. Isay was dismissed on 1 August 1941, as a result of which he received no further salary from that moment. This rapid succession of new measures made life for Jewish residents more and more difficult. One week after Isay’s dismissal, on 8 August 1941, the first Liro regulation came into effect. It stipulated that Jews must surrender their assets above a certain exempt sum (usually NLG 1,000) to the robber bank Lippmann, Rosenthal & Co, which had been established for that purpose. After he had handed over his shares, Isay was forced to deposit the purchase price at this robber bank. Thanks to this and other forms of persecution that had affected him and those in his circle, Alfred Isay tried to dispose of possessions, directly or through intermediaries or front men, in order to pay for his own living expenses or to provide support to others. One of the people in this social and business circle was Leopold Klopfer, who introduced his brother-in-law Leopold Weinberg into Isay’s personal network.
Systematic deportations to death camps started in the summer of 1942. Alfred Isay and members of his family were arrested several times during this period. On 3 July 1943 Alfred Isay obtained a temporary exemption from deportation (Sperre), probably because the Nazis needed him to deal with a foreign exchange issue. Such exemptions were temporary and the degree and duration of this protection were extremely uncertain. The Isay family went into hiding on 1 March 1944. The couple found a place to stay in the loft of a house in Amsterdam and the two children, who were separated from each other, went elsewhere. These events had a dramatic effect on Isay’s condition. He was admitted to hospital for lengthy stays on several occasions because of serious kidney problems. Alfred Isay died in Amsterdam on 3 June 1948. Sofie Isay-Adelsberger died in 1982 aged 85.

6. Substantive Assessment of the Application

The earlier considerations in the recommendation about Adelsberger of 9 March 2009 (RC 1.91)

In its recommendation RC 1.91, the Committee reasoned as follows in its considerations about NK 3277 and NK 3278:
‘10. Ten aanzien van de twee andere thans geclaimde kunstwerken NK 3277 en NK 3278 zijn de herkomstgegevens evenmin sluitend. In de door Bureau Herkomst Gezocht (BHG) verrichte herkomstreconstructie wordt gesteld dat op de in overweging 7 genoemde veiling van 8 oktober 1930 bij veilinghuis Hugo Helbing in München verschillende werken van A. von Stadler uit de collectie Adelsberger ter veiling werden aangeboden. NK 3277 en NK 3278 komen wat betreft de afbeelding en de afmeting respectievelijk overeen met de werken vermeld in de veilingcatalogus onder nummers 155 en 154. Het is onbekend of de schilderijen op deze veiling ook daadwerkelijk zijn verkocht. Van de eventuele kopers is in elk geval geen naam bekend. Uit onderzoek is voorts gebleken dat deze twee kunstwerken op 13 november 1941 door een zekere Weinberg zijn verkocht aan Kunsthandel N.V. voorheen Kunsthandel J. Goudstikker (Goudstikker/Miedl). Het onderzoek heeft geen nader licht kunnen werpen op de gebeurtenissen met betrekking tot deze schilderijen tijdens de oorlog. Verzoekster heeft in dit kader het volgende gesteld:’
[‘10. The provenances of the other two claimed works, NK 3277 and NK 3278, are likewise inconclusive. The provenance published by the Origins Unknown Agency (BHG) states that various works by A. von Stadler from the Adelsberger Collection were put up for sale at the Hugo Helbing auction house in Munich at the sale held on 8 October 1930, as referred to in consideration 7. Both NK 3277 and NK 3278 correspond as regards subject and dimensions to works 155 and 154 in the sale catalogue. It is not known whether the paintings were actually sold at this auction. In any case, the names of the potential buyers are not known. Research has furthermore revealed that the two paintings were sold by a certain Weinberg to Kunsthandel N.V. voorheen Kunsthandel J. Goudstikker (Goudstikker/Miedl) on 13 November 1941. The investigation was unable to shed any more light on what happened to these paintings during the war. In this context, the Applicant stated the following:’]

‘Regarding the two paintings by Toni von Stadler (NK 3277 and NK 3278) no further evidence was found. As both paintings appeared in 1941 in Amsterdam, it has to be concluded that Abraham Adelsberger also managed to take these paintings with him to Amsterdam and that the paintings were sold to finance the subsistence of the family’.
‘11. Met betrekking tot deze stelling van verzoekster overweegt de commissie als volgt. Het is mogelijk dat Adelsberger of diens erven de onderhavige werken in Amsterdam hebben verkocht. Het is echter evenzeer mogelijk dat deze schilderijen door Adelsberger al in 1930 vrijwillig zijn verkocht op de bovengemelde veiling bij Hugo Helbing, of in de jaren daarna. De commissie oordeelt dat bij deze stand van het onderzoek, en bij uitblijven van nieuwe informatie over het bezitsverlies van NK 3277 en NK 3278, onvoldoende grond aanwezig is om verzoekster te kunnen volgen in haar stelling dat de kunstwerken tijdens de oorlog in Amsterdam zijn verkocht ten behoeve van Adelsberger en/of zijn familie. Derhalve kan de commissie ten aanzien van NK 3277 en NK 3278 thans niet aannemen dat Adelsberger of diens erven onvrijwillig bezitsverlies hebben geleden door omstandigheden die direct verband hielden met het naziregime.’
[‘11. The Committee’s response with regard to the Applicant’s assertion is as follows. It is possible that Adelsberger or his heirs sold the works in question in Amsterdam. It is, however, equally likely that they were sold voluntarily by Adelsberger at the aforementioned sale at Hugo Helbing in 1930, or in subsequent years. The Committee takes the view that until new information is discovered about the loss of possession of NK 3277 and NK 3278, the investigation has thus far has yielded insufficient evidence to accept the Applicant’s contention that the works were sold during the war for the benefit of Adelsberger and/or his family. With regard to NK 3277 and NK 3278, the Committee is therefore unable to accept that Adelsberger or his heirs lost possession involuntarily due to circumstances directly related to the Nazi regime.’]

It is clear from these considerations that when advice was given in 2009, it was sufficiently certain that the currently claimed works from Adelsberger’s collection were offered for sale in 1930 at the Hugo Helbing auction house in Munich. At that time, however, it was not known whether they were sold there and what happened to them afterwards. It was established, though, that on 13 November 1941 the two paintings were sold by a certain Weinberg to Kunsthandel N.V. voorheen Kunsthandel J. Goudstikker (Goudstikker/Miedl). However, nothing was known about the identity of Weinberg when advice was issued in 2009.

Ownership requirements (section 2 of the Assessment Framework)

The Committee finds as follows with regard to ownership of the two Von Stadler artworks at the moment possession was lost. It has emerged from the investigation that the histories of the possession and ownership of various parts of Abraham Adelsberger’s very extensive art collection from the end of the nineteen-twenties diverge as a result of the role that the artworks went on to play in a number of commercial constructions. For instance, over the years Abraham Adelsberger took out a number of loans with a range of terms, for which he transferred artworks from his art holdings as security, often in the form of Sicherungsübereignung (transfer by way of security), a business structure under German law that was standard practice in Germany during that period. A number of enterprises, including that of Alfred Isay, the Firma Gebrüder Isay (later Wistri), made loans to Adelsberger in this way. The Amsterdam bank ACM was one of the other parties involved. It was run from 1924 by Julius Kahn, who had previously been a bank director in Cologne.
As early as April 1930, Isay and Adelsberger made agreements about the provision of a loan, in regard to which Adelsberger transferred large quantities of art as security. The term of this loan was short and the Von Stadler works are not on the accompanying lists. The works were, however, referred to in a statement (Abtretungserklärung (declaration of assignment)) dated 7 November 1933. It emerges from the text of this statement that on 28 November 1932 the ACM had transferred various collateral to Alfred Isay’s business. The statement of 7 November 1933 makes it clear that Wistri transferred all existing rights from the previous agreement to Alfred Isay personally. A list on which 34 artworks are specified makes it clear which rights were concerned. These works include the two paintings by Von Stadler. Nothing has emerged about the use of these two paintings in regard to loans by other finance providers. In all likelihood the debt and the property handed over as security were assigned and/or transferred some time later to Alfred Isay’s enterprise and subsequently to Isay personally.
Source research reveals that Alfred Isay took the works, together with other objects, to Amsterdam, probably between 8 and 18 February 1934. Leopold Klopfer, who after his flight from Germany was taken in by the Isay family, was also in Amsterdam from 1938. Starting in 1939, the Adelsbergers, Leopold Weinberg and Hedwig Klopfer also arrived in Amsterdam. Evidence that Leopold Klopfer remained involved with the Isay family during the occupation of the Netherlands emerges, for example, from a list submitted by the Applicants on which Klopfer’s name and the date are written, and from a post-war declaration in which Alfred Isay states that Klopfer offered him support when he went into hiding.
Taking all circumstances into account, the Committee considers it is highly likely that Isay was the owner of the works NK 3277 and NK 3278 when they were sold, as referred to below, on 13 November 1941 to Goudstikker/Miedl.

Conclusion with Regard to the restitution application

The Committee concludes (i) that it is highly likely that Alfred Isay was the owner of the works NK 3277 and NK 3278 at the moment possession was lost in 1941. This means that the restitution application of Adelsberger’s heirs cannot be granted. Isay’s heirs are among the Applicants, and the Committee does not want to oblige them to submit a new application. In this case, the Committee considers Isay’s heirs to be separate Applicants. The Committee furthermore concludes (ii) that, in view of criterion 3.1 of the Assessment Framework, it has to be assumed that Alfred Isay’s loss of possession was involuntary. This means, on the grounds of the end of section 3 of the Assessment Framework, that, since the works are currently held by the Dutch State, the works must be restituted to Isay’s heirs. Since the Dutch State will not be invoking possible acquisition in good faith under any circumstances, no further research has been conducted. (Lower House 25 839, no. 48, under III, point b; Section 3, point 2 of the Assessment Framework).