Recommendation

Both applications for restitution concern (amongst other things) the art objects under inventory number NK 3223 a-e, which are part of the Dutch National Art Collection (hereafter referred to as: ‘NK collection’), namely: NK 3223 a-e, Unknown, Five-piece garniture, consisting of three jars and two vases, first quarter of 18th century, porcelain, 46.5 cm x 15.2 cm This set of five vases (hereafter referred to as: the garniture) is now part of the Rijksmuseum collection in Amsterdam.

Considerations

Applicants

1. Applicants I are the heirs of Friedrich Bernhard Eugen Gutmann (hereafter referred to as: ‘Fritz Gutmann’), as evidenced by a certificate of inheritance executed on 18 March 2005 by Amsterdam-based public notary M.R. Meijer. Applicants I contended that the current garniture was the property of Fritz Gutmann and that he lost possession of it involuntarily as a result of circumstances directly related to the Nazi regime.
2. Applicants II claim to be heirs of Herbert Max Magnus Gutmann (hereafter referred to as: ‘Herbert Gutmann’). To prove this, they submitted several legal inheritance documents, which have given the Committee no reason to doubt their status. Applicants II claim that the current garniture belonged to the undivided estate of Eugen Gutmann, who died in 1925, and that his son Herbert Gutmann was entitled to one-sixth of this inheritance. Applicants II also claim that Fritz Gutmann merely administered the art collection, which was part of the inheritance referred to, on behalf of the six heirs.The Gutmann family
3. Jewish banker Eugen Gutmann (1840-1925) was co-founder of the Dresdner Bank AG established in Dresden in 1872. He was married to Sophie Magnus (1852-1915), with whom he had seven children, namely Lili, Antonie (Toinon), Walter, Herbert, Kurt, Max and Fritz Gutmann. When the head office of the Dresdner Bank moved to Berlin in 1884, the family followed. Eugen Gutmann built up an art collection that was famed in the art circles of the day. After Eugen Gutmann’s death in 1925, this collection was held in joint ownership by his six children, each being entitled to one sixth (the eldest son Walter had already died in 1917). However, in the period after Eugen Gutmann’s death, various changes had apparently taken place in the ownership and the composition of the collection. The N.V. Trust & Administratie Maatschappij (Trustenad) was established in Amsterdam on 4 July 1921 to look after the financial interests of Eugen Gutmann’s children.
4. Herbert Gutmann, the testator of applicants II, was born on 15 October 1879 as the fourth of Eugen Gutmann’s children. He became deputy director of the Dresdner Bank branch in London in 1903. He had three children with his wife Daisy Stephanie Thekla Anna Bertha Luise von Frankenberg und Ludwigsdorf(f). The family lived alternately in Berlin and Potsdam, where Herbert Gutmann amassed his own art collection. From 1933, the Dresdner Bank, which was under government supervision, fell under control of the National Socialists. Herbert Gutmann was forced to resign from various advisory bodies and found himself faced with financial difficulties. In April 1934, he put his art collection up for auction. He left Germany in October 1936 to settle in London. Herbert Gutmann died on 22 December 1942.
5. Fritz Gutmann, father and grandfather of applicants I, was born on 15 November 1886 as the youngest child of Eugen Gutmann. He married baroness Louise von Landau, with whom he had two children, namely Bernhard Gutmann (later: Bernard Goodman) (1914-1994) and Lili Gutmann (born 1919). Fritz Gutmann settled in the Netherlands in 1918 and was granted Dutch nationality in 1924. He lived with his family in ‘Huize Bosbeek’, a country house near Heemstede, where he, too, built a large art collection. He also administered art objects from his deceased father’s collection, which, according to applicants I, he kept in a separate safe in Huize Bosbeek.
6. After the start of the occupation of the Netherlands in 1940, the Gutmann-Von Landaus made plans to escape from the country, part of which entailed selling as many of their works of art as possible. For instance, in three transactions, Fritz Gutmann sold a significant number of art objects to German art dealers Böhler and Haberstock. In one of these transactions on 24 March 1942, he sold several numbered works of art to Böhler and Haberstock, itemised on a list accompanying this agreement. An object that may relate to the current NK 3223 a-e is named on this list. For fear that they would be confiscated, Fritz Gutmann also gave many objects from Eugen Gutmann’s collection to the said dealers Böhler and Haberstock for safekeeping. The Gutmann-Von Landaus’ escape plan failed and they were arrested in 1943 and taken to Theresienstadt concentration camp, where Fritz Gutmann died in 1944. His wife died in Auschwitz that same year. The couple’s two children survived the war abroad.Assessment of the claim
7. Pursuant to current restitution policy, the first question to consider when assessing the current claim is whether the ownership rights of applicants I and/or II concerning the current NK 3223 a-e have been proven with a high degree of probability.
8. The current NK 3223 a-e was put up for auction at auction house Frederik Muller & Co. in Amsterdam on 6 May 1919. The auction catalogue in question says about the provenance of the garniture: ‘provenant de la succession d’un membre de la famille Van Andringa de Kempenaer’ [originating from the inheritance of a member of the Van Andringa de Kempenaer family]. No documentation was found during the investigation suggesting who owned NK 3223 a-e after the auction on 6 May 1919.In 1954, the provenance of the garniture was given in the inventory book of the Amsterdam Rijksmuseum, where it is at present, as: ‘Afkomstig verzameling E. Gutmann’ [from the collection of E. Gutmann]. The same annotation appears on the museum’s inventory card. It is not known on which sources these annotations are based. This information was then replicated in the catalogue ‘Chinese ceramics in the Rijksmuseum’ dated 1997, which includes the following about the provenance of the garniture: ‘Formerly in the collection of Andringa de Kempenaer. Acquired at sale Frederik Muller, Amsterdam, 6-5-1919, lot 91. Collection of E. Gutmann’.It appears from information in the archive of the Stichting Nederlands Kunstbezit (Netherlands Art Property Foundation), hereafter referred to as: ‘SNK’, and the Federal Archive in Koblenz that in 1944, NK 3223 a-e was sold to E. Göpel, a German buyer for the planned Führermuseum in Linz via art dealer N. Beets of Amsterdam. The garniture was returned to the Netherlands from Germany in 1951. Based on the annotations in the Rijksmuseum’s inventory book and the inventory card, the Committee believes it highly likely that the garniture was at some point part of the collection of a member of the Gutmann family.
9. The following is important with regard to the question to which member of the Gutmann family the garniture belonged.
10. Applicants I claim that, in all likelihood, Fritz Gutmann purchased this garniture at auction house Frederik Muller & Co. in 1919, when he was furnishing his new house and his new office in Amsterdam. With regard to the provenance Eugen Gutmann, which they consider a mistake on the part of the Rijksmuseum, the heirs claim that Fritz Gutmann’s collection was regularly referred to as the E. Gutmann collection because Eugen Gutmann’s collection was of greater acclaim: ‘This is one more instance where E. Gutmann was listed, in error, instead of F. Gutmann (E. Gutmann being the more famous collector)’.They also note that in 1919, Eugen Gutmann was no longer active as collector because he was ill and of such advanced age. Moreover, he did not collect Chinese vases and not he, but Fritz Gutmann was the owner of a ‘widely acclaimed Chinese collection’. To underpin the last statement, applicants I submitted copies of various catalogues in which reference is made to Chinese ceramic objects from Fritz Gutmann’s collection.Applicants I also refer to two lists, the first an inventory list of Huize Bosbeek, which applicants I date ‘5/10/1942’ and the second being the list accompanying the sales contract with Böhler and Haberstock of 24 March 1942, referred to in consideration 6. Objects that may be related to the current NK 3223 a-e occur on both lists, although this cannot be verified for certain because the objects are not described in detail on the lists. Applicants I claim that if the current garniture is believed to be on the list accompanying the sales contract of 24 March 1942, the assumption must then be that NK 3223 a-e was Fritz Gutmann’s private property. They point out that during the war, Fritz Gutmann repeatedly refused to sell his father’s art collection, which he administered, and that on the contrary, he sought to ensure that the collection was secured by entrusting it to the management of Böhler and Haberstock.
11. With regard to the provenance of the current NK 3223 a-e, applicants II claim that this garniture originated from Eugen Gutmann’s estate, referring here to the provenance specification ‘(Vlg. Cat. Frederik Muller, Amsterdam 6 mei 1919. nr. 91; Eugen Gutmann (collection)’ [Cf Auct. Cat. Frederik Muller, Amsterdam 6 May 1919, no. 91; Eugen Gutmann (collection)] in the catalogue ‘Chinese ceramics in the Rijksmuseum’ of 1997. Applicants II also claim that: ‘Fritz was not the owner of the Eugen Gutmann collection but acted as a trustee for all heirs of Eugen Gutmann’. Applicants II argue that Eugen Gutmann’s collection remained intact and that their testator, Herbert Gutmann, was entitled to one-sixth of that inheritance. They submitted several documents including a letter dated 6 May 1945 in which Lili Gutmann states that ‘(..) her father was the trustee of Eugen Gutmann collection’.
12. As for the question who should be regarded as the former owner, Fritz Gutmann (position of applicants I) or the joint heirs of Eugen Gutmann (position of applicants II), the Committee considers the following.In its investigation, the Committee found insufficient basis for the argument of applicants II that NK 3223 a-e belonged to the undivided estate of Eugen Gutmann when ownership was lost during the war. Nor has it been made very plausible that the garniture was part of this collection at some point. In their underpinning of this statement, applicants II rely merely on the mention of the name ‘E. Gutmann’ in the Rijksmuseum documentation and they were not able to submit further information to corroborate this provenance.On the basis of all information and its own investigation, the Committee considers it most plausible that Fritz Gutmann was the owner of NK 3223 a-e, for the following reasons:
    • The garniture is not featured in the descriptions of the Eugen Gutmann collection that are known to the Committee.
    • There is evidence suggesting that the garniture featured on lists of the Fritz Gutmann collection during the war. Number 28 on the Huize Bosbeek inventory list (‘28 / 1 Satz blauer chines. Väschen (5 Stck)’) [1 set of small blue Chinese porcelain vases (5 items)] shows strong similarities with the current NK 3223 a-e (a set of five blue Chinese porcelain vases). In addition, it appears that number 48 (‘1 Satz von blauen chinesischen Porzellanväschen’) [1 set of small blue Chinese porcelain vases] on the inventory list accompanying a sales contract of 24 March 1942 also bears a great resemblance to the current garniture. The sales contract states that Fritz Gutmann is ‘Eigentümer der Gegenstände’ [owner of the objects] and, according to the Committee, it can be assumed that this does not refer to objects from his father’s collection, which Fritz Gutmann administered. After all, these objects had been given separately to Böhler and Haberstock for safekeeping.
    • The Fritz Gutmann collection was frequently confused with that of Eugen Gutmann because the latter was better known. In the Committee’s opinion, the annotation ‘E. Gutmann’ made in 1954 in documentation of the Rijksmuseum cannot, therefore, be considered decisive.
    • The Committee goes along with the assertion of applicants I that it is more likely that it was Fritz Gutmann – who was, at the time, resident in the Netherlands and engaged in furnishing his new house and offices in Amsterdam – who made the purchase, which presumably took place in 1919 or later in the Netherlands, and that it is less probable that this was a purchase made by Eugen Gutmann, who lived in Berlin.Based on the considerations 7 to 12, the Committee concludes that sufficient proof has been provided that on 24 March 1942, the garniture NK 3223 a-e was the property of Fritz Gutmann and that it was not part of Eugen Gutmann’s undivided estate.Hence the basis of the claim of applicants II falls away, impelling the Committee to recommend rejecting that claim.Below, the Committee will subject the claim of applicants I to further investigation.
13. On the basis of current restitution policy, the conditions for restitution have been met if the original owner involuntarily lost possession of the claimed object due to circumstances directly related to the Nazi regime. With regard to the nature of the loss of possession, the Committee has considered the following. The Committee recognises two situations in which Fritz Gutmann may have lost possession of the garniture, both of which imply involuntariness.
    1. If the current NK 3223 a-e was part of the sale to Böhler and Haberstock on 24 March 1942, involuntariness of the loss of possession was already established by the Jurisdiction Department of the Council for the Restoration of Rights (hereafter also referred to as: ‘the council’) in its ruling of 1 July 1952. The Council decided that the sales were influenced by unique war-related circumstances, given the fact that, at that moment, the Gutmann family was already under threat. For this reason, the sales had already been declared null and void. The said ruling is described in more detail under consideration 15.
    2. The list accompanying the 1942 sale features an annotation next to the number in question ‘Gestrichen von der Liste’ [removed from the list], the exact significance of which is unclear. If this is to be understood to mean that the current NK 3223 a-e was originally part of the 1942 sale and then eventually not, it is not known how Eugen Gutmann lost possession of the garniture. The object may have been confiscated or stolen after the Gutmanns were deported but he may well have sold it. In these cases too, the Committee considers that this would constitute an involuntary loss as a direct consequence of the Nazi regime. The Committee refers to the third recommendation of the Ekkart Committee concerning private art property, which states that ‘sales of works of art by Jewish private owners in the Netherlands from 10 May 1940 onwards be treated as forced sales, unless there is express evidence to the contrary.’
14. Next, the question to be answered is whether the current NK 3223 a-e concerns a case that has been settled in the past. Investigations have shown that after the war, Bernard Goodman and Lili Gutmann, Fritz Gutmann’s two adult children, spent years trying to recover the lost family possessions. Various works of art, which were known to have been confiscated by the Nazis in France and which had never been sold, were returned to the heirs by the SNK in the years immediately after liberation. Eugen Gutmann’s collection, which Fritz Gutmann administered, was also recovered from Germany, with the exception of various missing items, and returned to the rightful owners by the SNK in 1949.
15. The restitution of the works that had been sold to Böhler and Haberstock and then found after the war was more problematic. The SNK decided that these objects had been sold voluntarily and did not grant the application for restitution submitted by the heirs. Rather than accepting this judgement, the heirs submitted an application for the restoration of rights to the Jurisdiction Department of the Council for the Restoration of Rights. The Council dismissed the SNK’s argument and, in its judgment of 1 July 1952, ruled that the sales transactions with Böhler and Haberstock qualified for the restoration of rights on the grounds of the restoration of rights regulation laid down in Royal Decree E 100. The Council decided that the sales were influenced by unique war-related circumstances, given the fact that at that moment, the Gutmann family was already under threat. In its judgement, the Council determined that the sale was null and void and that the heirs of Fritz Gutmann should be considered the owners of the works of art that had been sold:De Raad voor het Rechtsherstel, Afdeling Rechtspraak, (…)Doet ten behoeve van verzoekers sub 1 en 2 [de erven F.B.E. Gutmann, RC] herleven de rechtsbetrekking van eigendom van wijlen F.B.E. Gutmann tot de bij bovengenoemde drie overeenkomsten verkochte goederen, voor zover zich bevindende in het bezit van gerequestreerde [de SNK, RC];Verklaart in zoverre die overeenkomsten en alle met deze herleving strijdige rechtsbetrekkingen nietig;

    [The Council for the Restoration of Rights, Jurisdiction Department, (…)

    Revives the legal relationship of ownership of the late F.B.E. Gutmann to goods sold under the three aforementioned agreements in favour of the applicants under 1 and 2 (the heirs of F.B.E. Gutmann, RC), in so far as these goods are in the possession of the respondent (the SNK, RC);
    Declares all agreements and legal relationships invalid in so far as they are contrary to this revival;]

    The Council also determined that, upon delivery of the objects, the heirs should pay the restoration of rights authorities the proceeds from the sale of the objects. Arguing that the selling price paid to Trustenad had disappeared during the war, as a result of which it had never accrued to them, the heirs attempted, without success, to contest this ruling.

16. During the post-war years, the heirs of Fritz Gutmann actually bought back a number of recovered works of art from the SNK. The remainder of works from Fritz Gutmann’s collection that were returned to the Netherlands remained in the national collection. As a result of the introduction of a more relaxed restitution policy in 2002 and following advice issued by the Restitutions Committee (RC 2.1), the State Secretary for Education, Culture and Science returned a large number of these objects to the heirs of Fritz Gutmann, without setting specific conditions. Following the Committee’s recommendation of 29 June 2010 (RC 1.113), it was decided on 22 July 2010 to return a further five NK works to Fritz Gutmann’s heirs.
17. The Committee is of the opinion that if the garniture was part of the sale to Böhler and Haberstock on 24 March 1942, the current application for restitution should be examined in light of the judicial ruling from 1952 discussed above. The Committee will have to consider the question of whether the applicants’ request can, with due regard for the applicable government policy, be deemed admissible. The basic premise of this restitution policy is, after all, that the restoration of rights is not repeated, unless there are new facts or insights, summarised in the policy as ‘new facts’. Under this policy, cases that are deemed to have been settled include cases ‘in which the Council for the Restoration of Property Rights or another competent court has pronounced judgment’ (first recommendation of the Ekkart Committee from April 2001).The Committee is of the opinion that the judicial ruling concerning Gutmann from 1952 does not render the applicants’ case inadmissible. The purport of this ruling is, after all, to restore the heirs’ ownership of these works of art given that there is evidence of involuntary loss of possession. The fact that the garniture was not returned in 1952 has no bearing on this admissibility. In its 1952 ruling, the Council wished to restore the Gutmann heirs’ ownership of these works of art and there is no evidence to suggest that the Gutmann heirs ever waived their ownership rights to the remaining objects.Even if the current NK 3223 a-e was not part of the said sale to Böhler and Haberstock, there is still no question of a case that was already settled in the past since there is no evidence that the applicants applied for restitution of the garniture after the war, nor is there any evidence suggesting that the garniture was ever the subject of post-war negotiations about restitution. The applicants’ request for restitution is, therefore, admissible on both counts.
18. The Committee considers that if the current NK 3223 a-e was part of the said sale to Böhler and Haberstock on 24 March 1942, the following can be said with regard to the proceeds from the sale of the object to be returned. The proceeds were assigned to Trustenad during the war. In the year 2010, it is impossible to ascertain whether these proceeds ever actually accrued to the heirs of Fritz Gutmann, a fact that the applicants contest and the heirs already argued after the war. Based on this, the Committee is of the opinion that the transfer of NK 3223 a-e under the applicable restitution policy should not be subject to a repayment obligation. It refers for this to the Ekkart Committee’s fourth and fifth recommendations concerning private art property (April 2001), which, with regard to the payment of purchase sums received during the war, states that an obligation to repay only exists if the former seller or their heirs actually obtained the free disposal of the said proceeds, and that whenever it is uncertain whether the seller or their heirs actually enjoyed the proceeds, the rightful claimants be given the benefit of the doubt.In light of the court ruling to the contrary in 1952, the Committee invokes ‘new facts’ within the meaning of current restitution policy, on the basis of which a previous ruling can be reconsidered. Based on the Ekkart Committee’s second recommendation from April 2001, ‘new facts’ are understood to mean ‘differences compared to judgments pronounced by the Council for the Restoration of Property Rights (…) as well as the results of changed (historic) views of justice and the consequences of the policy conducted at the time’.Furthermore, if the current NK 3223 a-e was not part of the said sale, the Committee considers the following. If Fritz Gutmann lost possession of the garniture in a way other than through a sale to Böhler and Haberstock, the requirement to pay back the sales proceeds as imposed by the Council in 1952 did not pertain to the current NK 3223 a-e. In that case, it suffices for the Committee to observe that as far as the current garniture is concerned no sales price is known and restitution can therefore take place without imposing an obligation to that effect on the applicants.