Recommendation

In a letter dated 22 September 2010, the State Secretary for Education, Culture and Science (hereafter referred to as: the State Secretary) requested the Restitutions Committee (hereafter referred to as: the Committee) to issue a recommendation regarding a decision to be taken on the application filed on 23 April 2010 by the heirs of Rosa and Jakob Oppenheimer (hereafter referred to as: the applicants) for restitution of the bronze sculpture Hercules by sculptor Hubert Gerhard (former attribution). The applicants claim that the statue originates from one of the Margraf group companies in Berlin, of which the Jewish art dealers Rosa and Jakob Oppenheimer were said to have been the sole shareholders. Following a donation, the claimed object has been part of the Dutch National Art Collection (inventory number RBK 15247) since 1938 and is currently in the Rijksmuseum in Amsterdam (hereafter referred to as: RMA).

Considerations

1. The applicants request restitution of the bronze statue Hercules by (formerly attributed to) Hubert Gerhard, which is part of the Dutch National Art Collection under inventory number RBK 15247. The applicants have claimed that they are the heirs of Rosa and Jakob Oppenheimer, who are said to have been the sole shareholders of the German Margraf group. In this regard, the Committee has taken cognisance of legal inheritance documents sent by the applicants, based on which the Committee sees no reason to doubt the applicants’ status.
2. The relevant facts are included in the investigatory report dated 7 June 2011. The following is a summary. In 1912, Albert Loeske founded Margraf & Co. GmbH in Berlin, a company trading in jewellery and gold. In the years that followed, he expanded the Margraf Group with various subsidiary companies including the art dealerships Van Diemen & Co. GmbH, Dr. Benedict & Co. GmbH, Dr. Burchard & Co. GmbH, as well as the antiques business Altkunst & Co. GmbH. These companies were managed on behalf of Loeske by Jakob Oppenheimer, who was an art dealer, and his wife Rosa Oppenheimer-Silberstein. By the time of Loeske’s death in 1929, the said dealerships had grown into reputable businesses. Loeske left his shares in the companies to the Oppenheimers. However, settlement of Loeske’s estate was delayed because of a lengthy legal battle that was not decided until just before the Nazis assumed power in 1933.
3. Early on in the Nazi regime in 1933, the Nazi authorities started targeting the Margraf group, which they considered an exponent of the ‘international Jewish jewellery and art trade’. On 1 April 1933, the Nazi authorities tried to intern Jakob and Rosa Oppenheimer, but the couple avoided this fate by fleeing to France. Due to these developments, the shares in the Margraf group were never made out in their names. Following Loeske’s death, the shares had been pledged to Tiergarten tax firm as security for payment of inheritance tax on Loeske’s estate. After this tax debt had been paid in 1937, the Nazi authorities were only prepared to release the shares on condition that they were transferred to a Jewish woman, Rosa Beer, who, forced by the authorities, acquiesced. She was heir to Loeske’s other assets and still lived in Germany. This measure enabled the Nazis to keep control of these assets. Jakob Oppenheimer died in France in 1941. Rosa Oppenheimer-Silberstein was deported by the Nazis and perished in Auschwitz in 1943. Their three children survived the war.
4. According to a decision taken by the Landgericht Berlin [Berlin District Court] on 2 December 1933, Jakob Oppenheimer was forbidden to perform any legal duties for the various companies of the Margraf concern. Bolko Freiherr von Richthofen, a good acquaintance of Hermann Göring, was appointed administrator of the group. As of 1938, Von Richthofen acted as liquidator for these companies. With a view to the winding-up of the Margraf concern, the subsidiaries’ stocks were capitalised at eight or more sales under execution. According to the applicants, these were forced sales, known at the time as Judenauktionen. According to an auction catalogue entitled ‘Die Bestände der Berliner Firmen / Galerie Van Diemen & Co /GMBH / Altkunst / Antiquitäten / GMBH / Dr. Otto Burchard & Co / GMBH / sämtlich in Liquidation’ [The inventory of the Berlin companies Galerie Van Diemen & Co/ GmbH / Altkunst/Antiquitäten/ GmbH / Dr. Otto Burchard & Co/ GmbH, all in liquidation ], the currently claimed statue was part of the trading stock of the above-mentioned companies that was auctioned off at Paul Graupe auction house in Berlin on 25 and 26 January 1935. The work of art is listed in the catalogue under lot number 406 with a photograph and the following description: ‘Grosse Herkulesstatuette von Hubert Gerhard (1560-1609, 1568 bis 1595 im Dienste Herzogs Wilhelm V. von Bayern), in der erhobenen Rechten Keule, in der Linken Flammenbündel. Marmorsockel. H. 78 cm. Erworben aus den Beständen der Münchener Residenz. Tafel 75’ Large Hercules statue by Hubert Gerhard (1560-1606, in the service of William V, Duke of Bavaria, from 1568 until 1595), in the raised right hand a club, in the left thunderbolts. Marble base. H 78 cm. Acquired from the property of the Munich Residenz. Table 75.] Whether the statue was sold at the auction is unknown.
5. After the war, in a letter dated 25 July 1956, Willi Schulz, a tax consultant from Berlin, filed a claim for damages with the German authorities, also on behalf of Jakob and Rosa Oppenheimer’s children. In addition, documentation from the German Entschädigungsamt [Compensation Office] has shown that a claim for damages to the amount of RM 500,000 was filed on behalf of Firma Galerie Van Diemen & Co. GmbH (in liquidation) on 25 July 1956 because of financial losses due to selling of paintings at knock-down prices. According to this documentation, a settlement was reached on 13 June 1957, in which damages worth DM 75,000 (the maximum amount) were awarded to art dealership Van Diemen & Co because of financial losses.
6. Information received from the RMA shows that the claimed statue has been part of the national collection since 1938. It is noted on the RMA inventory card on this work of art that the statue was a gift’ van een museumvriend, die onbekend wenscht te blijven (de heer xx; Internat. Antiquiteitenhandel)’ [from a friend of the museum, who wishes to remain anonymous (Mr xx; Internat. Antiquiteitenhandel)]. The RMA has informed the Committee that there is no acquisition file for the work of art. No further details about the gift are known.
7. During the Committee’s investigation, no evidence was found of post-war correspondence between the Dutch authorities and the Oppenheimer heirs and/or (a subsidiary of) the Margraf group concerning the currently claimed statue There is no indication that the parties concerned were aware at the time of the fact that the claimed statue had been part of the Dutch national art collection since 1938.
   
   Assessment of the claim
8. Pursuant to current national policy in respect of the restitution of works of art, restitution can only be recommended if the title to the item can be proven with a high degree of probability and loss of possession of the claimed item was involuntary as a result of circumstances directly related to the Nazi regime.
9. The investigation of the title to the currently claimed statue has shown that this work of art was part of the trading stock of one of the companies Galerie Van Diemen & Co GmbH, Altkunst Antiquitäten GmbH and Dr. Otto Burchard & Co GmbH, all in liquidation, whose trading stocks were all auctioned off at Paul Graupe auction house in Berlin on 25 and 26 January 1935.
   The Committee then tried to establish whether this work of art was part of the old trading stock (acquired by the owner) or the new trading stock (acquired by Von Richthofen). No acquisition date for this statue was found during the investigation. However, the Committee thinks it is highly probable that the art dealerships in question no longer acquired any art between the Oppenheimers’ escape and the said auction, which means that this work is to be considered part of the old trading stock.
10. The Committee then investigated whether there are indications to prove to a high degree of probability that loss of possession in this case was involuntary, as referred to in the Recommendations for Art Dealerships 4 and 6 by the Ekkart Committee. The required high degree of probability can be assumed if the applicants have proof of theft, confiscation or forced sale. According to the Committee, the applicants provided sufficient proof that this work of art was auctioned off at an auction enforced by the Nazi authorities pursuant to anti-Jewish measures and the Committee is therefore of the opinion that loss of possession was involuntary and came about as a result of circumstances directly related to the Nazi regime.
11. The Committee then investigated the question of whether the Oppenheimer couple received the proceeds from the sales under execution. The investigation did not reveal any evidence that they did. Given the nature and purpose of this auction and considering all the circumstances mentioned above, particularly the Oppenheimers’ escape in 1933, the Committee deems it highly unlikely that the couple ever received any proceeds. The Committee therefore believes that the sales proceeds need not be considered.
12. As regards the compensation for losses paid by the German authorities in 1957, the Committee considers the following. In so far as it were possible to ascertain which part of the damages paid relates to the currently claimed statue, any payment of this amount is a matter between the Oppenheimer heirs and the German state.