Recommendation

In a letter dated 4 May 2007, the Minister for Education, Culture and Science (hereafter referred to as: ‘the Minister’) requested the Restitutions Committee (hereafter referred to as: ‘the Committee’) to issue a recommendation regarding the application submitted by A.R.W.I. on 22 March 2007, also on behalf of his sister M.F.J.C.-Y. (hereafter jointly referred to as: ‘the applicants’), for the restitution of 25 works of art. When these works were returned to the Netherlands after the Second World War, they became part of the Netherlands Art Property Collection (NK collection) and are registered under inventory numbers NK 394, NK 602, NK 604a-b, NK 615, NK 620, NK 631, NK 636a-b, NK 864a-b, NK 1552, NK 1553, NK 1618, NK 1627, NK 1763, NK 1787, NK 1798, NK 1892, NK 1940, NK 2436, NK 2447, NK 2484, NK 2581, NK 2707a-b, NK 2904, NK 2905 and NK 2919.

Considerations

1. The applicants request the restitution of 25 works of art from the NK collection in their capacity as heirs of their grandfather, Kurt Walter Bachstitz (hereafter referred to as: ‘Bachstitz’), who, according to the applicants, involuntarily lost possession of the works as a consequence of the Nazi regime. In this context, the Committee has taken cognisance of several legal inheritance documents submitted by the applicants, which have not led the Committee to question their status as heirs.The facts
2. The relevant facts are described in the investigatory report of 14 September 2009. The following is a summary. Bachstitz was born on 4 October 1882 in what was still the German town of Breslau. He was of Jewish origin and held Austrian nationality. He married Elfriede Pesé and the couple had two children. His son Walter died, probably in 1940 or 1941 and, as far as the Committee is aware, unmarried and childless. His daughter, Margit Martha, is the applicants’ mother. After his first marriage ended, Bachstitz remarried in 1918, his second wife being the German, non-Jewish Elisa Emma Hofer. As far as the Committee is aware, this marriage remained childless. In 1938, the couple settled permanently in the Netherlands. Bachstitz waived his Austrian nationality, thus becoming a stateless citizen.
3. Bachstitz was an internationally renowned art dealer. The head office of the art dealership was in The Hague. Since 1920, this gallery was run as a public limited company under the name Kunsthandel K.W. Bachstitz (Bachstitz Gallery) N.V. (hereafter referred to as: ‘Bachstitz Gallery’). From 1922 until 1926, Bachstitz’ brother-in-law Walter Andreas Hofer, who later became an art buyer for Hermann Göring, managed the gallery. In the period from 1926 to 1931, the company had no board of management, which meant that supervisory director Bachstitz was the de facto manager. When war broke out, Bachstitz was the only person actually involved in the management of the Bachstitz Gallery. The investigation did not establish who the shareholders of the company were, but it is very likely that Bachstitz himself had a substantial interest in the business. The Committee considers it sufficiently proven that Bachstitz was indeed a stakeholder. In the context of the current application for restitution, his heirs can therefore be regarded as rightful claimants.
4. Bachstitz continued working as art dealer after the German invasion of the Netherlands in May 1940. The investigation has shown that in the early years of the war, the Bachstitz Gallery sold a large number of paintings to the Germans, in particular to Dr H. Posse, an art buyer for Hitler, and to other Nazi buyers such as Dr E. Göpel and Bachstitz’ brother-in-law W.A. Hofer. This is discussed under consideration 16. On 17 February 1941, K.W. Bachstitz formally resigned as supervisory director of the Bachstitz Gallery, while his non-Jewish wife became managing director. In this way, they avoided having the Gallery placed under the administration of a Verwalter for the duration of the war. Moreover, the couple had their marriage dissolved on 27 September 1943, probably to prevent the confiscation of the gallery. After the war, the couple were again registered as officially married. During the occupation, the actual management of the Bachstitz Gallery probably rested with Bachstitz himself, in any case up until his emigration in 1944.
5. The investigation revealed that in the early years of the German occupation, the Germans left both the gallery and Bachstitz himself undisturbed. People in mixed marriages, such as Bachstitz, were at first protected from deportation. Post-war statements indicate that Bachstitz and his wife held anti-Nazi sentiments and were dedicated to protecting Jews by offering them a place to hide and holding their goods in trust. From 1942, things apparently became more difficult for Bachstitz. For instance, in 1942, he was summoned to the Wirtschaftsamt (economic office) in The Hague because he had failed to register the gallery as ‘non-Aryan property’. Extant documents have shown that he was subsequently declared a ‘Volljude’ [full Jew] as defined in the Neuremberg Racial laws in May 1943. In July 1943, Bachstitz was arrested by the Sicherheitsdienst and put in Scheveningen prison. However, thanks to his marriage to Hofer’s sister, and on account of his position as art supplier to the German art market, Bachstitz had some important connections who afforded him protection from the Nazis. In July 1943, Hofer managed to secure his brother-in-law’s release from prison within a week, putting forward Bachstitz’ importance as art dealer for the German market as an argument. In his letter of 5 July 1943 to the Brigadeführer in The Hague, Hofer wrote:Fuer das Linzer Museum wurden in den letzten Jahren von Prof.Posse hochklassige Kunstwerke durch Vermittlung von Bachstitz angekauft; auch andere deutsche Museen haben durch Bachstitz wichtige Kunstgegenstaende erworben.[In recent years, Prof. Posse purchased high-quality works of art for the Museum in Linz through the agency of Bachstitz; other German museums have also acquired key art objects through Bachstitz.]Hofer also reported that Göring was taking Bachstitz under his wing:

   Der Herr Reichsmarschall wuenscht, dass Bachstitz die Ausreise in das Ausland ermoeglicht & das Verfahren gegen ihn solange ausgestellt wird, bis ich ihm ueber die Angelegenheit persoenlich Bericht erstattet habe. Im Auftrage des Herrn Reichsmarschalls bitte ich um Freilassung des Bachstitz, der schwer Herzkrank ist & um Rueckfuehrung in seine Wohnung. Ich uebernehme jede Verantwortung dafuer, dass Bachstitz bis zur Regelung der Angelegenheit durch den Reichsmarschall seine Wohnung nicht verlasst,dass jede Veraenderung seines bis heute Einwandfreien Geschaeftsbetriebes & jede Verschiebung seines Geschaeft- & Privatvermoegens unterbleibt.

   [The Reichsmarschall wishes that Bachstitz be allowed to travel abroad and that the procedure against him be postponed until I have personally notified him about the matter. By order of the Reichsmarschall I hereby request that Bachstitz, who has a severe heart condition, be released and allowed to return home. I will take all responsibility to ensure that Bachstitz does not leave his home until the affair has been settled by the Reichsmarschall and that no changes are made to his to date impeccably run business, nor any shift in his business and private capital.]

   Bachstitz was moreover exempted from the obligation to wear a Star of David on account of his importance as art dealer for Hitler’s Führermuseum that was to be established in Linz (Sonderauftrag Museum Linz). This is evidenced by a report of a meeting of Germans held in The Hague in October 1943, in the course of which Dr E. Göpel, Hitler’s art buyer, pleaded in favour of Bachstitz:

   Unter den von Tragen des Sterns befreiten befindet zich auch Bachstitz, auf dessen besondere Verdiensten für den Sonderauftrage von Seiten Dr. Göpel hingewiesen wurde.

   [Among those exempted from wearing the Star was Bachstitz, whose special merits for the Sonderauftrage had been pointed out by Dr Göpel.]

6. Bachstitz no longer left his house after his release in July 1943. After various raids by the Sicherheitsdienst, Bachstitz wanted to emigrate. Ultimately, with the help of his brother-in-law and with Göring’s permission, he obtained an exit visa for Switzerland, and left in 1944. In exchange for this help, Bachstitz did have to surrender several precious works of art to Göring, without receiving payment for them. These works of art are, however, not part of the current application for restitution.
7. Shortly after the war, in letters dated 2 and 18 July 1945, Bachstitz’ wife wrote to the Netherlands Art Property Foundation (SNK) in her capacity as director of the Bachstitz Gallery, submitting a declaration regarding the art sales by the gallery to the Germans. The letters do not indicate the sums for which the works were sold, nor whether the sales were, in Mrs Bachstitz-Hofer’s opinion, voluntary. In doing so, she met an obligation as laid down in post-war regulations. Contrary to the applicants’ opinion, an application for restitution on the grounds of involuntary sale cannot be concluded from this. Based on the information provided, the SNK completed internal declaration forms, indicating that the sales had been voluntary. Bachstitz himself said the following after the war about his sales to Germans to an official handling his request for naturalisation:‘dat hij verschillende schilderijen naar Duitsland had verkocht. Volgens hem moest hij verkopen. Had hij zulks niet gedaan, dan was alles weg geweest. Hij moest, zoals dat met iedereen het geval was, af en toe bukken voor de pressie. Hij kon dit ook makkelijker doen dan menigeen, doordat hij vrijwel alle kopers kende. Zoals hij toen verklaarde, werden alle verkopen gedaan aan musea-directeuren, met wie hij lang vóór de oorlog zaken had gedaan.’[that he had sold various paintings to Germany. He said he was forced to sell. If he had not, everything would have been gone. Like everyone, he had to bend to pressure every once in a while. This was easier for him than for many others, because he knew almost all the buyers. As he declared at the time, all sales were made to museum directors, with whom he had done business long before the war.]
8. Bachstitz died in 1949. In early 1950, the SNK asked Mrs Bachstitz-Hofer for more information about the provenance of some twenty works of art that had been recovered from Germany. After indicating that the works all originated from the Bachstitz Gallery’s collection, Mrs Bachstitz-Hofer replied to the SNK’s question whether the works had been sold voluntarily or under duress on 6 February 1950 as follows:‘In antwoord op Uw schrijven van 30 Januari jl. deel ik U mede, dat mijn man ook de genoemde kunstvoorwerpen – evenals de destijds opgegeven verkopen – tijdens de vijandelijke bezetting onder onbehoorlijke invloed heeft moeten verkopen.’In answer to your letter dated 30 January 1950, I state that during the enemy occupation my husband was forced to sell the art objects listed – as well as the sales recorded at the time – under undue influence.]
9. The post-war correspondence between the Bachstitz Gallery and the SNK was directed in particular to the return of three objects that Göring had appropriated. No evidence was found in the archive records that the Bachstitz Gallery had submitted a request for restitution after the war or that they had explicitly refrained from applying for restitution. Referring to the first recommendation of the Ekkart Committee of April 2001, which also applies to art dealership cases, the Committee concludes that this case cannot be considered to have been settled in the past and deems the applicants’ request admissible.Assessment of the claim
10. The applicants are claiming 25 NK works. Pursuant to current restitution policy, when assessing whether restitution can be considered, it is important whether it can be assumed with a high degree of probability that the works were indeed in the possession of the Bachstitz Gallery at the time of sale during the occupation. The investigation has shown that the majority of the works were part of the Bachstitz Gallery’s trading stock well before the war. In common with the applicants’ argument in response to the draft investigatory report, the Committee also accepts that these works were owned by the Bachstitz Gallery during the occupation and that they had not been commissioned for sale.
11. With regard to three claimed works, the Committee does not consider it highly likely that the Bachstitz Gallery was the owner at the time of sale during the occupation:
    • NK 1763: the investigation results point to the Bachstitz Gallery as a possible intermediary in the sale of this work to Dr E. Göpel on behalf of a customer, so that ownership has not been sufficiently demonstrated.
    • NK 1940: the provenance details of this work are inconclusive. Given that evidence has been found suggesting that the work was sold by a Dutch auction house to the Dienststelle Mühlmann during the occupation, it cannot be demonstrated with a high degree of probability that the Bachstitz Gallery sold it to a German buyer.
    • NK 2905: although there are indications that this object was in the possession of the Bachstitz Gallery in 1920, it cannot be concluded from the provenance details whether it still belonged to the Gallery at the time of sale during the war.The Committee advises the Minister to reject the application for restitution of these three works for this reason alone.
12. As for the other claimed works, the Committee investigated whether there is any evidence from which involuntary loss of possession by the Bachstitz Gallery could be demonstrated with a high degree of probability. Pursuant to current restitution policy in respect of the art trade as stipulated in the Recommendations for the Art Trade 4, 5 and 6 issued by the Ekkart Committee, only in such cases can restitution be recommended. Loss of possession is, in any case, deemed involuntary if objects were stolen or confiscated by the Nazis, or sold under duress. Pursuant to the sixth recommendation, evidence for involuntary loss of possession can be found in post-war declaration forms, among others, in which the art dealer or their heir or representative indicates that the sale was involuntary. In the absence of declaration forms, threats of reprisals and promises to supply passports or safe-conduct as part of the transaction constitute evidence of involuntary sale.
13. The Committee first concludes that none of the claimed works were stolen or confiscated. This can be inferred from Mrs Bachstitz-Hofer’s letter of 6 February 1950 (consideration 8) in which she states that the works were, in all cases, sold. In as far as documentation has been kept, it is plausible to assume that prices were paid that were in line with market conditions. Reference is made to considerations 15 and 16. The question is, therefore, whether the sales made by the Bachstitz Gallery should nonetheless be deemed involuntary in the sense that the seller was pressurised by or on behalf of the Nazis. No mention is made of the nature of the loss of possession in the declaration made by the Bachstitz Gallery in July 1945. That Bachstitz and his wife were of the opinion that the sales were involuntary, because otherwise ‘alles weg [was] geweest’ [everything would have been gone] and hence that the sales had taken place under ‘onbehoorlijke invloed’ [undue influence] is evident from the passages quoted in considerations 7 and 8.
14. The Committee finds that the Bachstitz Gallery either sold or consigned three works to Dutch buyers – who were, as far as we know, not collaborators. In the absence of proof to the contrary, the Committee deems it plausible that these were everyday transactions and that there was no question of duress.
    • This concerns NK 394, regarding which the Committee considers it plausible that the object was sold or consigned to Amsterdam art dealership Delaunoy between 1934 and 1943. This art dealership sold the object to the Kunstsammlungen der Stadt Düsseldorf in 1943.
    • With respect to NK 1618, it is plausible that the Bachstitz Gallery sold the work to a Dutch collector (Thurkow) in 1941, who sold it to a German museum in 1942.
    • With respect to NK 1787, the Committee considers it plausible that the Bachstitz Gallery sold the work to a Dutchman (Wigman) (…),  who sold it to Posse in 1944.
15. During the occupation, the Bachstitz Gallery sold four works to German museums. In the light of the purchase prices paid for them, it is again reasonable to assume that these were also normal transactions with clients. Nor is there any evidence that Bachstitz was pressurised. In connection with this, the Committee refers to Bachstitz’ statement quoted in consideration 7, namely that he sold work to ‘musea-directeuren, met wie hij lang vóór de oorlog zaken had gedaan.’ […museum directors, with whom he had done business long before the war.] This concerns the works NK 602, NK 604a-b and NK 615, which the Bachstitz Gallery sold to Dr W.H. Hupp, director of the Kunstsammlungen der Stadt Düsseldorf, in 1942. RM 4,000 was paid for NK 602, a sum of RM 1,000 for NK 604a-b, and NLG 2,500 for NK 615. During the occupation, NK 2436 was sold for an unknown sum to K. Martin, director of the Kunsthalle in Mühlhausen.
16. With regard to the remaining objects, it has been established that they were sold to Hitler and Göring’s art buyers.a) The works NK 620, NK 631, NK 636a-b, NK 864a-b, NK 1552, NK 1553, NK 1627, NK 1798, NK 2484, NK 2581 and NK 2707a-b were sold to Posse for the Führermuseum in Linz in the period from August to 10 December 1940. NK 2904 was sold for an unknown sum to the Führermuseum on 21 June 1941, presumably also through Posse. The following sums were paid: a sum of NLG 6,000 for NK 620, together with another statue; a sum of NLG 4,750 for NK 631; a sum of NLG 8,000 for NK 636a-b; a sum of NLG 24,000 for NK 864a-b, together with two other gold objects; a sum of NLG 50,000 for NK 1552; a sum of NLG 50,000 for NK 1553; a sum of NLG 30,000 for NK 1627; a sum of NLG 5,400 for NK 1798; a sum of NLG 10,000 for NK 2484; a sum of NLG 12,000 for NK 2581 and a sum of NLG 45,000 for NK 2707a-b.b) The works NK 2447 and NK 2919 were sold to Hofer for Carinhall, Göring’s estate, on 10 June 1940. NLG 6,800 was paid for NK 2447 and NLG 2,600 for NK 2919.c) The work NK 1892 was sold on 10 June 1943 to Göpel for the Führermuseum in Linz for the sum of NLG 15,000.
17. The following applies to the sold objects in categories a and b. While allowing for the fact that, as a result of the pressures of war, Bachstitz effected transactions with representatives of the Nazis and could therefore count on a certain degree of protection, the Committee is of the opinion that these sales were not involuntary. In cases concerning the art trade, the Committee considers the sole fact that the purchasing party was part of the Nazi regime insufficient to conclude involuntariness, especially if these were transactions for which prices appear to have been paid that were in line with the market and, moreover, no evidence has been found of direct threats or sale under duress. Bachstitz’ statement (see consideration 7) that ’zoals dat met iedereen het geval was, [hij] af en toe [moest] bukken voor de pressie’ [Like everyone, [he] had to bend to pressure every once in a while] refers not so much to a direct threat to Bachstitz himself as to the difficult circumstances during the occupation for art dealers in general. The Committee also points out that the majority of sales to Posse and Hofer took place in 1940, the first months of the German occupation of the Netherlands. Object NK 2904 was also sold in the early stages of the occupation. Due to his connections in the art world in the early years of the war, Bachstitz was evidently able to operate freely on the market and do business. No evidence was found of coercion towards his person or his family at that stage.
18. The sale of NK 1892, referred to under category c, took place under completely different circumstances, however. This work was sold on 10 June 1943, the year in which the persecution of the Jews was at its most violent. One month prior to the sale, Bachstitz had been declared a ‘Volljude’ [full Jew]. Bachstitz, who was a stateless, Jewish resident at the time of the sale, was therefore in a very delicate position. In contrast to the early years of the occupation, he had attracted the attention of the German police who may have suspected him of helping Jews to go into hiding and who were aware of statements that were in breach of Nazi laws (see consideration 5). Eventually, this did indeed lead to his arrest in July 1943. Under such circumstances, Bachstitz is likely to have felt himself browbeaten by someone such as Göpel when the latter expressed his desire to buy NK 1892 for Hitler’s museum. The fact that Göpel had seen to it that Bachstitz had been released from the obligation to wear the Star of David in 1943 (see end of consideration 5) may well have been part of the deal. Pursuant to current restitution policy as described in consideration 12, the Committee concludes that this therefore constitutes evidence of involuntary sale and therefore advises the Minister to grant the application for restitution and return the painting NK 1892.
19. The Committee sees no reason to recommend repayment of the consideration received at the time (see consideration 16, under c). It is, after all, plausible that Bachstitz had to use this sum for his escape to Switzerland, so that he was not able to freely dispose of this money within the meaning of the restitution policy. In this context, the Committee refers to the fourth recommendation of the Ekkart Committee of 2001.