Recommendation

In a letter dated 11 February 2004, the State Secretary for Education, Culture and Science asked the Restitutions Committee for advice on the decision to be taken concerning the application made on 19 September 2002 by Ms S.L.-S. (referred to below as the applicant), on behalf of S.S. Antiquités for the restitution of a number of works from the Netherlands Art Property Collection (NK collection).

General considerations (with regard to private individuals and art dealers)

a) The Restitutions Committee has drawn up its opinion with due regard for the relevant (lines of) policy issued by the Ekkart Committee and the government.

b) The Restitutions Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in subsequent cases. The Committee resolved that such influence cannot be accepted, save in cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.

c) The Restitutions Committee then asked itself how to deal with the circumstance that certain facts can no longer be ascertained, that certain information has been lost or has not been recovered, or that evidence can no longer be otherwise compiled. On this issue the Committee believes that, if the problems that have arisen can be attributed at least in part to the lapse of time, the associated risk should be borne by the government, save in cases where exceptional circumstances apply.

d) The Restitutions Committee believes that insights and circumstances which, according to generally accepted views, have evidently changed since the Second World War should be granted the status of nova (new facts).

Special considerations

1. The applicant and her brother, J.S., are the children of the Jewish art dealer S.S., who at the outbreak of the Second World War was a partner, together with his brother B.S., in the art dealership J.S. VOF. The Jewish art dealership J.S. had had its principle place of business at Rokin 70 in Amsterdam since 1936. The trials and tribulations of this dealership are described in the investigatory report dated 7 March 2005, to which the reader is also referred. The following information shall suffice here: On 12 March 1941 the ‘Removal of Jews from Business’ ordinance took effect. However, until October 1941, the German occupiers left the art dealership J.S. alone. The partners were able to continue dealing undisturbed and were free to travel. In October 1941 that came to an end when the occupiers closed and sealed up the art dealership J.S. A few weeks later, on the advice of a fellow art dealer, B.S. approached a Verwalter himself for his company. “There was no doubt that a ‘Verwalter’ would come anyway. It would be good if I tried to get a relatively good ‘Verwalter’,” B.S. said after the war. He contacted the Dutchman, Johan Peter Joseph Kalb. In a report on the company J.S., found in the archives of the Netherlands Art Property Foundation (SNK) and dated 5 December 1944, Kalb was described as a man “who went over to the Germans immediately after the Netherlands surrendered in May 1940 and worked for them.” In the period between May 1940 and May 1941, Kalb worked as an interpreter for the Sicherheitsdienst [‘Security Service’] in Amsterdam. At the end of 1941 he worked for three months at Lippman Rosenthal & Co. (a clearing house for stolen works of art) on Sarphatistraat in Amsterdam. Kalb took over the running of the art dealership S. on 27 November or 1 December 1941. The partners lost all control of the business, but were expected to continue buying and selling for the Verwalter and each was paid a salary of NLG 125 a week to do so. On 5 August 1942, Kalb bought the company S. The purchase concerned “the antique dealership run by S. in Amsterdam at Rokin 70, as it was, including the property (…), everything in the state as of 1 December 1941, for NLG. 46,765.” The sale included all works of art, antiques, furniture and paintings contained in the building. The price for the fixtures and fittings present was based on the inventory book drawn up by employees of the company S. on the instructions of Kalb. It is unclear whether this inventory book contains the entire list of fixtures and fittings of the art dealership J.S. The employees were instructed to set the value of the items at one-third of the purchase price. Comparing the inventory book with the list of fixtures and fittings in the deed of transfer shows that the sale price was much lower than the sum of the amounts included in the inventory book. Kalb paid the purchase price with a loan that was subsequently paid off using income from the art dealership. Kalb deposited the purchase price with Handelmaatschappij H. Albert de Bary & Co in Amsterdam in the names of S. and B.S. However, the S. brothers never had the money at their disposal. Taking these facts and the various witness statements quoted in the investigatory report together, it can be concluded that the sale to Kalb was not voluntary.
2. B. and S.S. survived the war. After the war, the premises of the company S. on Rokin were found to be almost completely empty. B.S. found a few objects that the S. brothers had sold to Kalb in 1942 at various addresses. On 5 August 1946, the art dealership J.S. filed a petition with the Jurisdiction Department of the Council for the Restoration of Rights in Amsterdam, containing a claim against Kalb for NLG 187,846.11. On 10 June 1947, based on the Decree on Restoration of Legal Transactions, KB E 100, the Council declared “the purchase and sale of the antiques dealership at Rokin 70 in Amsterdam run by the applicant, as well as [of, RC] the goods still on the premises to be invalid”. The Council did not pursue the matter of the damages requested. On 18 June 1947, Kalb was sentenced by the 13th Chamber of the Amsterdam Tribunal to two years and four months’ internment for helping the enemy and because he “had tried to benefit from measures taken by the enemy by becoming the ‘Verwalter’ for the Jewish company J.S. in December 1941.” The tribunal considered it irrelevant that S. had approached Kalb himself to be the Verwalter. An extensive ‘record of objections’, dated 19 March 1951, was found in the archive of the Netherlands Property Administration Institute (NBI), in which all the disputes between S. and Kalb are described. Although this record indicates that the document would be submitted to the Council for the Restoration of Rights with both parties’ agreement, the Council’s archives do not reveal that this case was ever actually submitted. No evidence of a settlement has been found in the available sources. The Restitutions Committee assumes that S. never received any damages from Kalb or from anyone else. S. only recovered the premises and found a few paintings. Based on the above, the Restitutions Committee finds that this matter has not been settled and so the applicant’s applications are admissible.
3. There are currently a few dozen items in the NK collection to which the provenance name S. is linked. The applicant is currently applying for restitution of eleven of these items. Each of these items is considered below.
   NK 179: Delft garniture
   According to an exhibition catalogue, the Delft garniture was part of the trading stock of the art dealership J.S. in 1936. In the S. inventory book that was drawn up on Kalb’s instructions between 1 December 1941 and 5 August 1942, number 108 is given as“1 Bl. Delftsch geribd stel” [“1 Bl. Delft ribbed set”]. The Restitutions Committee assumes that this description refers to NK 179, partly based on the fact that, after inspecting NK 179, J.S. – the brother of the applicant – recently confirmed that the object is the same garniture as the garniture shown in a photograph still in his possession. There is a note in the S. inventory book that this garniture was sold to “a private individual” on 19 September 1941. No further details have been found concerning the sale. Documents in the SNK archives show that NK 179 was sold in 1943 via the art dealership A. Staal to the Kunstsammlungen der Stadt Düsseldorf. After the war, the garniture was recovered and returned to the Netherlands. At the time NK 179 was sold, the art dealership J.S. was not yet under the control of Verwalter Kalb. B. and S.S. had freedom to trade and freedom of movement at the time of the sale. In view of these facts and partly in the light of the consideration included by the Ekkart Committee in the text of the art trade recommendations that “the art trade’s objective is to sell the trading stock, so that the majority of the transactions even at the Jewish art dealers’ in principle constituted ordinary sales”, the Restitutions Committee assumes that the sale of the Delft garniture was a voluntary transaction arranged by the S. brothers in their capacity as art dealers. This assumption is reinforced by the fact that no declaration form or correspondence relating to NK 179 in the name of S. has been found in the SNK archives. The Restitutions Committee will therefore recommend that the application for restitution be rejected.
   NK 2736: N. Molenaer, Skaters near a village
   The art dealership J.S. sold this painting on 25 October 1940 to the art dealership Voorheen J. Goudstikker N.V., which the German businessman, Alois Miedl, had set up on 14 September 1940 using the trade name of the Jewish art dealers J. Goudstikker N.V. Under Miedl’s management, Voorheen J. Goudstikker N.V. sold works of art worth millions of guilders to art buyers in Nazi Germany during the war years. At the time when NK 2736 was sold by the company J.S., the S. brothers were at liberty to trade independently. It is not known whether the sale took place under any form of duress. Owing to the German Miedl’s dubious reputation it cannot be ruled out that the sale was involuntary. Although Miedl helped Jewish families during the Second World War and was himself married to a Jewish woman, he was clearly also pro-Nazi. He benefited from the war through massive profits made trading with the Germans, whereby he made particular efforts for the art collections of his friend Göring and of Hitler.After purchasing the painting, Voorheen J. Goudstikker N.V. sold it again on 11 December 1940 at a profit of several thousand guilders to Heinrich Hoffmann, one of Adolf Hitler’s art advisors. Via Hoffmann the painting came into the possession of the Reichskanzlei in Berlin on 16 December 1940, where on the same day it ended up in the collection for what was known as the Führermuseum in Linz. The question of whether the loss of ownership by the art dealership S. was voluntary or under duress remains unanswered. In line with the ‘General Considerations’, part c, the risk in relation to this uncertainty should be borne by the government. The Restitutions Committee will therefore recommend that the application be granted in respect of this item.
   NK 1594: W. Verschuur I, Interior of a stable with horses and a donkey and
   NK 1596: L. Meléndez de Ribera, Still life with basket of fruit and asparagus
   The art dealership J.S. sold these paintings on 17 July 1940 to the German businessman Alois Miedl who was living in the Netherlands at the time. When these paintings were sold, the S. brothers were still at liberty to trade and travel without restrictions. Owing to the German Miedl’s dubious reputation it cannot be ruled out that the sale was involuntary. Although Miedl helped Jewish families during the Second World War and was himself married to a Jewish woman, he was clearly also pro-Nazi. He benefited from the war through massive profits made trading with the Germans, whereby he made particular efforts for the art collections of his friend Göring and of Hitler. It is known that at an early stage of the occupation he exerted pressure on Jewish art collectors to persuade them to sell – via Miedl – to Göring. One week after purchasing the paintings, Miedl sold them to Heinrich Hoffmann, one of Adolf Hitler’s closest associates. Hoffmann sold the paintings on 29 August 1940 to the Reichskanzlei in Berlin, after which, on the same day, they turned up in Adolf Hitler’s private collection. The question of whether the loss of ownership by the art dealership S. was voluntary or under duress remains unanswered. In line with the ‘General Considerations’, part c, the risk in relation to this uncertainty should be borne by the government. The Restitutions Committee will therefore recommend that the application be granted in respect of these items.
   NK 2822: P. van Hillegaert I (formerly ascribed to R. van den Hoecke), Siege of a town
   Research conducted in the archives of the art dealership P. de Boer in Amsterdam has revealed that that art dealership bought this painting from the art dealership J.S. on 1 September 1940. It is known that the art dealership P. de Boer regularly came to the aid of Jewish colleagues. The sale took place under the direction of B. and S.S., whose freedom to trade and freedom of movement had not yet been curtailed. No post-war declaration form, nor any correspondence relating to this painting has been found in the SNK archives under the name of the art dealership J.S. Based on this information and with reference to the consideration included by the Ekkart Committee in the text of the art trade recommendations that “the art trade’s objective is to sell the trading stock, so the majority of the transactions even at the Jewish art dealers in principle constituted ordinary sales,” the Restitutions Committee concludes that the sale of NK 2822 was a voluntary trading transaction by the S. brothers that took place in their capacity as art dealers. The Restitutions Committee will therefore recommend that the application be rejected in respect of this item.
   NK 2: Louis XV commode
   A Louis XV commode appears in a photograph of the interior of the art dealership J.S in 1936 that was found in the archives of that art dealership. The object was thus part of the former trading stock of J.S. A form in the SNK archive filled in following a post-war “claims exhibition” held in 1949 reveals that S.S. recognised NK 2 as former property: “Probably misappropriated during the time that J. Kalb was managing the business. May, however, have been sold by him or by the company itself before 1941.” No further information has been found in the available sources to establish when, by whom – S. or Kalb – and under which conditions the commode was sold. In an internal declaration form found in the SNK archives and dated 22 January 1947 the SNK indicates that the commode finally turned up via C.E. Pongs in the Düsseldorf Museum collection by way of a voluntary sale by an unknown owner. The available sources reveal no further details about the provenance of NK 2. After the war some correspondence took place about the commode between the company J.S. and the SNK, but the exchange of letters came to an end when S. failed to respond to a question from the SNK as to whether the art dealership S. would be laying a claim to the commode. The fact that further information is not – or no longer – available is a risk to be borne by the government, given part c of the ‘General Considerations’. Consequently, the Restitutions Committee will recommend that the application be granted in respect of this item.
   NK 2240: E.J. Verboeckhoven, A meadow with cows, sheep and ducks
   According to the above-mentioned inventory book, the art dealership S. both bought and sold this painting on 27 January 1942. Further information about the sale was found on an internal SNK declaration form drawn up in 1947, which states that the art dealership S. sold the painting voluntarily to “Höll” via the German art dealership Paffrath. The Restitutions Committee assumes that the qualification ‘voluntarily’ did not come from the S. brothers. At the time of the sale by the art dealership S., Kalb had been appointed as Verwalter for the art dealership, with B. and S.S. working as ‘advisors’. Nothing is known regarding their possible involvement in or approval of this sale. Based on part c of the ‘General Considerations’, this lack of evidence is the government’s risk. It can be assumed that the painting was purchased with the aim of selling it on immediately to the German art dealership. The Restitutions Committee concludes that the goodwill, infrastructure and capital of the company J.S. were used in the sale of the Verboeckhoven painting. The Tribunal found Kalb guilty in this regard in 1947. Based on the information above and due to the fact that the S. brothers never received the purchase price for their art dealership and, after the war, received no financial compensation whatsoever for the losses they had suffered, the Restitutions Committee considers the application for restitution to be sustainable. The Restitutions Committee will therefore recommend that the application be granted in respect of this item.
   NK 1790: P. Gijsels, Church interior with market scene and NK 1863: P. Gijsels, Market scene
   Kalb bought these two paintings on 14 March 1943 as the owner of the art dealership J.S. On the same day, he sold the paintings on to the art dealership Voorheen J. Goudstikker N.V. At the time of the sale, the S. brothers were in hiding. The Restitutions Committee assumes that the buying and selling took place entirely under Kalb’s responsibility. He traded by means of the goodwill, infrastructure and the capital accumulated for the company built up by the S. brothers. The Tribunal in Amsterdam found Kalb guilty in this regard in 1947. Based on the information above and due to the fact that the S. brothers never received the purchase price for their art dealership and, after the war, received no financial compensation whatsoever for the losses they had suffered, the Restitutions Committee considers the application for restitution to be sustainable. The Restitutions Committee will therefore recommend that the application be granted in respect of these items.
   NK 1347: B.H. Thier, Landscape with farm and cattle
   The above-mentioned inventory book does not contain any description that might refer to this water colour. This would indicate that the work came into the possession of the art dealership S. after Kalb came into the business. It is, however, not known whether Kalb acquired the painting in his capacity as Verwalter or as owner of the art dealership. This also means that it is unclear whether the painting was part of the old or the new trading stock. This uncertainty is the government’s risk under part c of the ‘General Considerations’. On 27 April 1944, Kalb, who at that time was the owner of the art dealership J.S., sold the painting by Thier to the art dealership Bierich & Co. in Hamburg. B. and S.S. were in hiding at the time. The Restitutions Committee assumes that the sale took place entirely under Kalb’s responsibility. Kalb made use of the goodwill, infrastructure and the capital of art dealership S. The Tribunal in Amsterdam found Kalb guilty in this regard after the war. Based on the information above and due to the fact that the S. brothers never received the purchase price for their art dealership and, after the war, received no financial compensation whatsoever for the losses they had suffered, the Restitutions Committee considers the application for restitution to be sustainable. The Restitutions Committee will therefore recommend that the application be granted in respect of this item.
   NK 554: Dutch cupboard
   The cupboard cannot be linked to a description in the aforementioned inventory book. This would indicate that the object came into the possession of the art dealership S. after Kalb had come into the business. It is, however, not known whether Kalb acquired the cupboard in his capacity as Verwalter or as the owner of the art dealership. This means that it is still unclear as to whether the cupboard was part of the old or the new trading stock. The available archive material also fails to provide certainty about the date of the sale. All that is known is that the art dealership J.S. sold NK 544 “während des Krieges” [“during the war”] to the Münchener Kunsthandelsgesellschaft. Uncertainty therefore remains as to whether the cupboard was sold during Kalb’s management as Verwalter or by Kalb as the owner after 1 December 1941. This lack of certainty is a risk to be borne by the government under part c of the ‘General Considerations’. A declaration form in the SNK archive shows that the company J.S. on 10 December 1945 reported that a “walnut cupboard” was missing. In this declaration, J.S. indicated that the object had come into the possession of the ‘Münchener Kunsthandel, Ger. München’ in a voluntary sale. A note has been added to the form in pencil – in all probability by employees of the SNK – that reads: “NK 554? Is this the cupboard in question?” The Restitutions Committee assumes that this question can be answered in the affirmative. In view of the qualification ‘voluntary’ given by the company S. in relation to the sale, the Restitutions Committee refers to the Ekkart Committee’s art trade recommendation 5. There, the Ekkart Committee recommends “viewing the qualification binding in all cases in which the art dealer himself, his heirs or an immediate representative appointed by him or by his heirs has filled in “voluntary sale”, unless very clear clues are submitted which make it probable that a mistake was made when the form was filled in or that the filling in of the form took place under disproportionately burdening circumstances.” The Restitutions Committee has found no evidence that makes it likely that an error was made in filling in the declaration form or that it was filled in under unreasonable circumstances, and so the Committee considers that the qualification ‘voluntary’ is binding. The Restitutions Committee will therefore recommend that the application be rejected in respect of this item.
4. In view of the circumstance that the S. brothers never received the purchase price for their art dealership and, after the war, received no financial compensation whatsoever for the losses they had suffered, and in view of the fact that the Restitutions Committee does not know whether the S. brothers were given any freely disposable proceeds from the sale, the Committee will not consider repayment of the proceeds in line with recommendation 4 by the Ekkart Committee.

Summary RC 1.10

APPLICATION FOR THE RESTITUTION OF ELEVEN NK WORKS FROM THE COLLECTION OF THE AMSTERDAM ART DEALER J.S.

In a letter dated 19 September 2002, the daughter of Jewish art dealer S. of Amsterdam applied for the restitution of 11 works from the Netherlands Art Property Collection (NK Collection). The works in question were as follows:

• N. Molenaer, Skaters near a village(NK 2736)
• W. Verschuur I, Interior of a stable with horses and a donkey(NK 1594)
• L. Meléndez de Ribera, Still life with basket of fruit and asparagus (NK 1596)
• Louis XV commode (NK 2)
• E.J. Verboeckhoven, A meadow with cows, sheep and ducks (NK 2240)
• P. Gijsels, Church interior with market scene (NK 1790)
• P. Gijsels, Market scene (NK 1863)
• B.H. Thier, Landscape with farm and cattle (NK 1347)
• Delft garniture (NK 179)
• P. van Hillegaert I (formerly attributed to R. van den Hoecke), Siege of a town (NK 2822)
• Dutch cupboard (NK 554)

In February 2004, the State Secretary referred the application to the Restitutions Committee, after the restitution policy for art-trade cases had been adopted.