Recommendation

In a letter dated 4 August 2009, 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 of AA (hereafter referred to as: applicant) dated 6 July 2009 for the return of ceramic objects which were returned to the Netherlands after the Second World War and are now part of the National Art Collection. The applicant is the granddaughter of Aron Salomon Hiegentlich (hereafter referred to as: Hiegentlich), to whom the objects were said to have belonged during the Second World War. This recommendation concerns:

• two miniature slippers, glazed pottery with polychrome decor (NK 302 A-B),
• a glazed pottery dish with blue and white decor with flowers (NK 915),
• a China dish with blue and white decor of flowering branches, brown on the outside (NK 936 B), and
• a Delft dish with blue and white decor with peacock on a bank in Wan Li style (NK 941).

Considerations

1. The applicant requests the restitution of the ceramic objects NK 302 A-B, NK 915, NK 936 B and NK 941 in her capacity as heir of her grandfather Hiegentlich. In this context, the Committee has taken cognisance of several inheritance law documents, on the basis of which documents the Committee sees no reason to doubt the applicant’s status as Hiegentlich’s heir.The applicant argues that the claimed objects were from her grandfather Hiegentlich’s art dealership and that they found their way to German art dealer M. Lempertz in Cologne under dubious circumstances.
2. The relevant facts are described in the investigatory report. The following summary of events will suffice for the present purpose. Hiegentlich was born on 22 May 1868 in Assen and was of Jewish origin. He married Hannie de Löwe (1864-1934) in 1893, from which marriage a son, Salomon Jacob, and a daughter, Esther, were born.From 1893, Hiegentlich had an antiques business on Spiegelgracht 7 in Amsterdam (up to 1925 on Spiegelgracht 9), a relatively small one-man business in which his son also worked. Hiegentlich and his family lived above the antiques business. His daughter Esther married Leo Wolff, a German, in 1929 and moved to Germany. She and her family fled to the Netherlands at the end of the 1930s, where they lived with Hiegentlich (temporarily). The marriage of Hiegentlich’s son Salomon Jacob to Judith Katoen in 1941 remained childless. They went into hiding and survived the war. Hiegentlich himself was picked up at his house in Amsterdam at the end of 1942. Then, on 22 January 1943, he was deported from the ‘Apeldoornse Bosch’ psychiatric unit to Auschwitz, where he perished on 25 January 1943. His daughter Esther, her husband and both their sons perished in November 1943 and March 1944 in or near Auschwitz. The only member of the Wolff-Hiegentlich family to survive the war is the applicant, who was in hiding in Friesland.
3. Because the records of the antiques business disappeared after the war and Hiegentlich himself did not survive the war, there is no good overview of what took place during the war. Moreover, Hiegentlich’s trading stock contained objects of applied art that are difficult to identify. However, on the basis of the investigation results, the following line can be reconstructed.After the German invasion, Hiegentlich could not count on any protection from anti-Jewish measures, as was the case with some other Jewish art dealers. It is not clear whether he was in a position to do any active trading after the start of the occupation. No indications were found during the investigation suggesting that he acquired any objects after May 1940. After the occupying forces issued the so-called Decree ordering the removal of Jews from all business on 12 March 1941, there followed a period that led to the disbanding of Hiegentlich’s antiques business on 17 October 1941. Hiegentlich reported the closure of his business to the Trade Register on 3 September 1942, probably just before he was deported. This date of closure of the art dealership on 17 October 1941 is confirmed in a letter dated 28 March 1950 by his son Salomon Jacob, in which he states that ‘onze zaak den 17 Oct. 1941 door de Duitschers geliquideerd is’ [Our business was liquidated by the Germans on 17 October 1941].After the closure on 17 October 1941, the art dealership may have been sealed by the Nazis for a length of time, as was also the case with two premises further down Spiegelgracht, which housed Mozes Mogrobi’s art dealership, also a one-man business (see RC 1.37).  Then, on 12 November 1942, the Nazi authorities called in German looting organisation Omnia Treuhand GmbH as Treuhänder (administrator) in connection with the liquidation of Hiegentlich’s business. It would seem that part of Hiegentlich’s trading stock was at that point still on the premises. Omnia confiscated and sold objects from the trading stock. Evidence for this are valuations of Hiegentlich’s trading stock which were made around 21 November 1942 and 26 January 1943 on Omnia’s instructions, and the payment of a sum of NLG 28,697.52 by auction house Dorotheum in Vienna into the account opened by Omnia in connection with the liquidation of Hiegentlich. The latter suggests that Omnia organised a large-scale sale of objects from Hiegentlich’s antiques business either at or to Dorotheum.
4. Eventually, Hiegentlich’s apartment above the antiques business was ransacked (‘gepulst’) by the occupying forces on 22 March 1943. The Committee considers it likely that any objects that may have been on the premises below the apartment would at that point also have been stolen.
5. In so far as the Committee knows, the members of the Hiegentlich family who survived the war did not report the loss of any art objects in the period after the war. In response to requests from the post-war restitution authorities for information about objects that may have been part of Hiegentlich’s trading stock, Hiegentlich’s son could only report that ‘met geen mogelijkheid kon herinneren‘ [there is no way I can remember] which objects had been sold during the war. Nor is there any evidence that rights to the currently claimed objects were relinquished. It has not been established, therefore, that this case has been conclusively settled in the past and the Committee considers the applicant’s application for restitution admissible.
6. The Committee considers that as an antiques dealer, Hiegentlich would also have been engaged in trading art, which means that as part of current national policy, this application for restitution has to be assessed in accordance with the Recommendations for Art Dealerships by the Ekkart Committee (2003). To do so, it is first of all necessary that it be proved to a high degree of probability that the claimed objects were part of Hiegentlich’s trading stock. Following that, it has to be investigated whether there are indications that would make it highly probable that loss of possession was involuntary as referred to in the Ekkart Committee’s Recommendations for Art Dealerships. In the absence of declaration forms with the post-war restoration of rights authorities indicating involuntary loss of possession, as is the case with Hiegentlich, the required high degree of probability of involuntary loss can also be assumed if this was a case of theft, confiscation or coercion. The fourth Recommendation implies that when assessing this, threatening general circumstances with regard to Jewish art dealers must be taken into account. The sixth Recommendation defines involuntary sale as, among other things, the sale from stocks placed under their management by Verwalter or other administrators not employed by the owner. According to the Ekkart Committee’s explanation of these recommendations, if hard evidence is lacking, a measure of flexibility should be exercised and any indications that suggest that loss of possession was probably involuntary should be interpreted generously.
   Identification of the objects as being Hiegentlich’s property
7. With regard to ownership of the claimed objects, the Committee’s investigation has found that the claimed objects were probably acquired in the Netherlands by the firm of ‘Math. Lempertz/Buchhandlung und Antiquariat’ of Cologne in the period between 1941 and 1944. This company was active on the Dutch art market during the war and was also one of the main customers of Jewish art surrendered to looting organisation Lippmann, Rosenthal & Co. A list was found in the SNK archive entitled ‘LISTE A DER NOCH VORHANDENEN, IN HOLLAND ERWORBENEN KUNSTGEGENSTÄNDE IM BESITZE DER FIRMA MATH. LEMPERTZ, KÖLN, SCHILDERGASSE 107/9’ [list of still available art objects acquired in Holland under the ownership of Math. Lempertz, Cologne, Schildergasse 107/9] (hereafter referred to as: the Lempertz list). The list was attached to a statement dated ‘Köln, den 30.6.46’ [Cologne, 30 June 1946] compiled by the owner of Lempertz, Josef Hanstein. In the statement, Hanstein reports that Lempertz had acquired the objects on the list in the period between 1941 and 1944 ‘in Holland bei folgenden Firmen, teils auf Versteigerungen’ [in Holland from the following firms, partly at auctions]. This is followed by the numbers 1 to 12, followed by twelve names including ‘2. Hiegentlich, Amsterdam, Nieuwe Spiegelstraat’. Hanstein went on to state that in connection with the loss of his business records during the war, he was not able to say with certainty from whom he had acquired every single object. If he could remember from which dealer he had bought an object on the list, he had indicated this ‘durch Beifügung einer der obigen Zahlen 1 bis 12’ [by adding one of the above numbers 1 to 12]. That there were commercial ties with Lempertz is confirmed in a letter to the SNK dated 9 April 1950 from Hiegentlich’s son, in which he wrote that he could remember that his father had sold ‘eenige kleine dingen’ [some small things] to Lempertz in Cologne. Whether this transaction involved the currently claimed objects is not known: ‘Ik herinner mij nog wel dat mijn vader aan Lempertz enige kleine dingen verkocht heeft. Dat is dan gebeurd voor den 16 October 1941. [..] De zaak is geliquideerd en de boeken zijn weg. Gaarne zou ik u alle mogelijke inlichtingen willen geven. Maar ik kan mij met geen mogelijkheid herinneren wat het geweest is‘. [I do remember that my father sold some small things to Lempertz. That happened before 16 October 1941. (..). The business was wound up and the records no longer exist. I would be happy to give you all possible information. But there is no way I can remember what the items were.]
8. It appears from the investigation report that the claimed objects can all be identified on the Lempertz list.a. NK 302 A-B – Two miniature slippers, glazed pottery with polychrome decor Delft (2), first half 18th century, earthenware.
   In connection with these objects, the SNK documentation refers to the index number 3089, a number that probably refers to the number under which these objects were included in the Lempertz list. Under ‘Erkennungsmerkmal 3089’ [identifying mark 3089] the list states: ‘2 polychrome Delfter Schuhe’ [two polychrome Delft slippers]. As the figure 2 has been placed before the description of the objects, according to the Lempertz list they were probably acquired from Hiegentlich.b. NK 915 – A glazed pottery dish with blue and white decor with flowers, China, 18th century
   Various index numbers were found in the SNK documentation concerning the dish NK 915 that were also found on the Lempertz list, viz. 3308 and 3328/3329. Under Erkennungsmerkmal 3308 on the Lempertz list is a ‘Delfter Teller, blau-weiss’ [Delft dish, blue and white] without a code, and under Erkennungsmerkmal 3328/3329 a ‘blaue China-Teller’ [blue China dish], next to which the code 2 is noted.The question is which of the index numbers (3308 or 3328/3329) could relate to NK 915. The SNK inventory card states that the identifying mark ‘L 3329’ is written on the back of NK 915. Apart from this identifying mark on the back of NK 915, the material from which NK 915 was made (porcelain) would suggest that NK 915 is not a dish made in Delft (3308 on the Lempertz list) but a Chinese dish (3328/3329 on the Lempertz list). [1]The conclusion is that the description of NK 915 as ‘Delfts bord, blauw wit/3308’ [Delft dish, blue and white/3308] on an internal SNK declaration form is probably the result of an error and it is likely that NK 915 can be identified as being the object 3329  on the Lempertz list that was acquired from Hiegentlich.

   c. NK 936 B – China dish with blue and white decor of flowering branches, brown on the outside, China, 18th century
   As regards the dish NK 936 B, the SNK documentation gives the number L 3327, which probably refers to the Lempertz list. Under 3327, that list mentions ‘blaue China-Teller’ [blue Chinese dish], with the code ‘2’, which suggests Hiegentlich as the provenance.

   d. NK 941 –  Delft dish with blue and white decor with peacock on a bank in Wan Li style, Delft, 18th century
   For this object too, documents consulted by the Committee give two index numbers that probably refer to numbers on the Lempertz list: 3336 and 1319. It is stated under number 3336 on the Lempertz list: ‘China-Schüssel, blau-weiss’ [China dish, blue and white] with code ‘2’, therefore probably from Hiegentlich. According to the SNK inventory card, ‘L 1319’ is written in ink on the back of the dish. On the Lempertz list, under 1319, we also find the annotation ‘Delfter Pfauenschwanz-Schüssel’ [Delft peacock tail dish]. No provenance code is given with this number, which suggests that Lempertz was not able to give the provenance of number 1319. There are arguments that would favour identifying NK 941 as being number 1319 rather than number 3336 on the Lempertz list. First of all because of the identifying mark L 1319 written in ink on the back of NK 941. Secondly, because NK 941 is a Delft earthenware dish, which concurs with the description on the Lempertz list of number 1319 (Delfter Pfauenschwanz-Schüssel), but not with the description of number 3336 (‘China-Schüssel’). Thirdly, because number 1319 is described as a ‘Pfauenschwanz-Schüssel’, which matches the representation of a peacock on NK 941. As regards the provenance of number 1319 on the Lempertz list, and in light of the fact that a provenance code is missing, nothing else can be said than that Lempertz probably bought this object from one of the twelve agencies Hanstein mentions in his statement, including the looting organisation Lippmann, Rosenthal & Co.

9. To sum up, the Committee considers it highly likely that four of the five objects this recommendation is concerned with (NK 302 A-B, NK 915 and NK 936 B) were the property of Hiegentlich during the war and were part of his trading stock. The Committee considers Hiegentlich as the provenance of the object NK 941 possible but not probable to a high degree. As regards NK 941, the Committee’s recommendation will be to reject the application for restitution of this object.
   Assessment of the involuntary nature of the loss of possession
10. The Committee has not been able to ascertain how and when Hiegentlich lost possession of the claimed objects NK 302 A-B, NK 915 and NK 936 B. In light of Hanstein’s statement (see point 7 above) in connection with the Lempertz list, it has to be assumed that possession of the objects passed to Lempertz at some point between 1941 and 1944, either directly or through a third party. This means that the Committee will have to take the following possibilities into account:
    a. it concerned a sale that took place in a period of ten months between January 1941 and 17 October 1941, in which sale Hiegentlich may have been personally involved;
    b. it concerned a purchase by Lempertz within a period of three years (7 October 1941 to 1944) after the closure of Hiegentlich’s company.In so far as the sales of the claimed objects took place after 17 October 1941 (possibility b), the Committee believes that involuntary loss of possession automatically has to be assumed. The events described under consideration 2 do, after all, point to a loss of possession that, in all probability, was a result of confiscation of the objects by the German looting organisation Omnia, or of looting of the remaining objects when the apartment above Hiegentlich’s antiques business was plundered (‘pulsen’) in 1943 (see point 2 above).As regards the assessment of Hiegentlich’s loss of possession in the period prior to that (possibility a), the Committee considers as follows.First of all, Hiegentlich’s business was a relatively small one-man business belonging to a Jewish owner, who, compared to some colleagues, did not enjoy special protection from anti-Jewish measures. As for the period from 12 March 1941, the Committee draws attention to the importance of the ‘Decree ordering the removal of Jews from all business’. The proclamation of this measure would at the very least have seriously compromised the freedom of Jewish dealers such as Hiegentlich to deal in art. In addition, it is plausible that at this point, Hiegentlich would have felt additional pressure from German buyer Lempertz, given the latter’s dubious reputation in the war years (see for this ‘Investigation report on the auction house M. Lempertz-Cologne’ of 12 May 1947).There is a possibility that the objects were sold to Lempertz with Hiegentlich’s consent in the two months between January and March 1941. In view of the shortness of this period and the fact that, in the Committee’s opinion, the lack of sufficient information for the period since the beginning of the occupation is not entirely due to the applicant, this possibility does not outweigh facts and circumstances that have been established with more certainty and over a far longer period.
11. Summing all this up and taking account of the policy framework within which the Committee is obliged to operate (see point 6 above), the Committee comes to the conclusion that it is probable to a high degree that Hiegentlich lost possession of the works referred to under 8 a, b and c involuntarily.

[1] An object is called ‘Delft’ if it was made of relatively soft fired and glazed earthenware. The provenance is Northern Netherlands. An object is generally called ‘Chinese’ if, like NK 915, it is made of (hard) porcelain, a material that was exclusively made in China up until the late 18th century.