Summary of Binding opinion

The Restitutions Committee has assessed an application for restitution of a Byzantine ivory relief entitled Hodegetria or Virgin and Child (maker unknown), which is currently held by Rotterdam City Council and is in the collection of Museum Boijmans Van Beuningen. Research by the Expert Centre Restitution (ECR) has shown that this artwork came from the collection of the A.S. Drey art gallery in Munich, which until 1936 was in the hands of the German-Jewish Drey family. It has become sufficiently plausible that possession of the work was lost involuntarily due to circumstances directly connected with the Nazi regime.

The art gallery Kunsthaus A.S. Drey, which was founded in 1837, was a renowned family business, with subsidiaries in Paris, New York, London, Brussels and The Hague. The takeover of power by Hitler in 1933 put an end to a long period of growth. The clients stayed away, and the proceeds dropped sharply. The partners – a son and four grandsons of the founder Aron Siegfried Drey – felt it necessary to sell their large shop and adjoining residence in the centre of Munich and were confronted by disproportionate tax measures that were aimed at Jewish people. The business was furthermore accused of tax fraud on the basis of a dubious investigation. Burdened by the threat of a criminal prosecution and the realization that otherwise leaving Germany would not be possible, in February 1936 partner Siegfried Drey signed a declaration of submission, which meant that the sums being demanded became collectable immediately. A few moments later he had a heart attack in a taxi, collapsed and died. In order to be able to pay the ‘tax debt’ and penalties, the firm sold the lion’s share of its trading stock, including the ivory relief Hodegetria or Virgin and Child, at the Paul Graupe auction house. The art gallery was Aryanized at the end of 1936, and around the same time the partners were able to get out of Germany. In the late nineteen-thirties the ivory relief was in Amsterdam in the Goudstikker gallery, which sold it to the industrialist D.G. van Beuningen. After his death, in 1958 it was acquired by Rotterdam City Council for placement in Museum Boijmans Van Beuningen.

Since Museum Boijmans Van Beuningen, on behalf of Rotterdam City Council, waived the right to invoke good faith in regard to the provenance of the artwork when purchasing it, the Committee did not subsequently conduct research in this regard. The Committee advised the City Council to restitute the artwork Hodegetria or Virgin and Child to the legal successors of the partners of the A.S. Drey gallery.

1. The application

The restitution application concerns a Byzantine ivory relief entitled Hodegetria or Virgin and Child, which is dated to the tenth century (hereinafter also referred to as the artwork). Its maker is not known. The artwork was purchased in 1958 by the City Council from the Van Beuningen heirs for the collection of current Museum Boijmans Van Beuningen (hereinafter also referred to as the Museum).

The Applicants contend that the artwork belonged to the collection of the former art gallery A.S. Drey, an offene Handelsgesellschaft (OHG, general partnership). At the beginning of the nineteen-thirties the firm had as partners Siegfried Drey, his sons Paul and Franz Drey, and his nephews Fritz and Ludwig Stern. The work ceased to be part of the firm’s assets allegedly as the result of a forced sale. As heirs of the original owners of the art gallery, the Applicants claim restitution of the artwork on the grounds of their contention that there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime.

In letters of 23 July and 26 August 2020 the City Council and the Applicants (hereinafter referred to as the parties) requested the Committee to issue a binding opinion. By signing the letter, the parties declared that they accepted the Committee’s regulations applicable at the time for dealing with the request (approved on 3 December 2007; most recently amended on 28 January 2019) and considered the opinion to be issued by the Committee as binding.

Identity of the parties

It follows from the certificates of inheritance that were submitted that Applicants AA, BB, CC, DD, EE, FF and GG are the heirs of Siegfried Drey, Paul Drey, Franz Drey, Fritz Stern and Ludwig Stern; the five partners of the Kunsthaus A.S. Drey, which was Aryanized in 1936. The Applicants had themselves represented during the procedure by Dr Imke Gielen, lawyer (Rechtsanwalt) of Berlin, Germany. Until January 2023 XX, lawyer with Gemeente Advocaten Rotterdam, represented Rotterdam City Council in the procedure pursuant to the Rotterdam Collection management agreement. Since January 2023, Rotterdam City Council has been represented by HH, Director of Museum Boijmans Van Beuningen,

3. Establishing the Facts

The Committee establishes the following facts on the grounds of the literature and archival research conducted by the ECR that involved bodies and individuals in the Netherlands, Germany and the United States.

Kunsthaus A.S. Drey

Kunsthaus A.S. Drey was established in 1837 by Aron Siegfried Drey (1813-1891). The firm was based initially in Würzburg and from 1854 in Munich, the capital of Bavaria, where it developed into a prestigious art gallery and succeeded in acquiring the status of purveyor to the Bavarian royal house. After Drey’s son Siegfried (1859-1936) and son-in-law Adolf Stern (1882-1932) had taken over management of the firm, they opened branches Paris, New York, London, Brussels and The Hague. The firm focussed primarily on classical art. In 1912 in Munich the Antiquitätenhaus, designed by Gabriel von Seidl, was opened at Maximiliansplatz 7, currently Max-Joseph-Straße 2. It served as the Drey family residence and as the firm’s head office.

After the death of Adolf Stern in 1932, his sons Fritz Stern (1888-1970) and Ludwig Stern (1882-1939) together with Siegfried’s sons Paul Drey (1884-1953) and Franz Drey (1886-1952) became partners in the firm. Siegfried Drey owned 26.5%, Paul and Franz Drey 19.25% each and Fritz and Ludwig Stern 17.5% each. Siegfried Drey managed the art business as a whole. In 1910 he had been appointed a Kommerzienrat (Counsellor of Commerce) – a German honorary title for people who had distinguished themselves in economic matters – and in in 1926 he was promoted to Geheime Kommerzienrat (Privy Counsellor of Commerce). He was also a commercial court judge and the first chair of the Verband des Deutschen Kunst- und Antiquitätenhandels e.V (German Art and Antiques Trade Association)

Tax assessment by Regierungsrat (government councillor) Josef Schwarz in 1936

The sale of the Antiquitätenhaus provided barely any relief. In that same year of 1935 the tax inspector Regierungsrat (government councillor) Josef Schwarz investigated the firm’s tax and foreign exchange returns. According to a 1954 statement by Fritz Stern and the heirs of the other partners, the inspector was notorious ‘for his brutality against Jews’. Ludwig Schmauser, the inspector who had dealt with the returns of A.S. Drey previously, was to state in 1948 that Schwarz had told him that he had found nothing incriminating during the investigation. But Schwarz told the partners that a total of 608,796 reichsmarks of undeclared profits had been found in the accounts covering the years 1925 to 1934. According to the aforementioned statement by Fritz Stern, on 8 February 1936 government councillor Schwarz summoned the partners Siegfried Drey and Ludwig Stern to his office. During this meeting Schwarz supposedly announced that the five partners owed 217,599.75 reichsmarks in tax on the 608,796 reichsmarks of undeclared profits that had been ‘discovered’ plus 90,000 reichsmarks in penalties. For the 1935 financial year the partners were furthermore assessed for 240,000 reichsmarks in profits tax, whereas according to the partners themselves there had been a loss in that year. According to Schwarz there was therefore a grand total of 547,599.70 reichsmarks in unpaid debts and penalties. He asked Siegfried Drey and Ludwig Stern to sign a Unterwerfungserklärung (declaration of submission), which meant that the outstanding sums according to him would become collectable immediately. Schwarz allegedly threatened to hand the case over to the public prosecutor if they did not sign. Siegfried Drey signed and died on the way home, in a taxi, from a heart attack.

Tax inspector Ludwig Schmauser testified in 1948 that ‘with full conviction and based on what I know, I want to say that the firm of A.S. Drey and Privy Counsellor of Commerce Drey always fulfilled his tax obligations and those of his family in the most impeccable manner by declaring and paying.’ Schmauser, who had checked the returns of the firm of Drey until Schwarz started handling this file, called Schwarz a ‘very harsh financial official’ and concluded that the discussion with Schwarz at the beginning of 1936 had cost Drey his life. He deemed it out of the question that Schwarz’s threat to institute criminal proceedings against the art gallery was justified.

The firm’s lawyer, Professor Carl Boettcher, also stated on 26 August 1953 that the declaration of submission was clearly signed under pressure. Boettcher represented the firm of Drey in the nineteen-thirties in regard to dealings with the tax authorities, including during the investigation by inspector Schwarz. In his opinion the weak legal position of the Jewish partners in respect of the state was not the only issue. The family’s wish to speedily emigrate also played a role. That emigration could never have gone ahead without the consent of the tax authorities.

Aryanization of Kunsthaus A.S. Drey and the flight of the partners

After the lion’s share of the trading stock had been sold at auction, the partners considered themselves forced to sell the business to a non-Jewish owner, which would Aryanize the firm. At the end of 1936 Bornheim took over the remaining trading stock, which was recorded in the books as having a value of 264,787 reichsmarks, for 180,831.17 reichsmarks. He purchased the rest of the inventory, including the trading house’s library, for one reichsmark. Together with the combined positive bank balances, which added up to 90,490 reichsmarks, the total agreed purchase price was 271,322.17 reichsmarks. This amount was not paid in cash, however, but settled by having Bornheim’s newly established Galerie für alte Kunst GmbH (vorm. A.S. Drey) take over liabilities of A.S. Drey in an equal amount. Most of these liabilities were outstanding debts of the main branch of A.S. Drey in Munich with its subsidiaries in The Hague and New York. These debts were only partially taken over and not in guilders and dollars, which they were listed in in the books, but in reichsmarks. It was furthermore stipulated in the purchase contract that these debts would not be collectable until 1 October 1941, and thereafter only in five equal annual instalments. According to documentation relating to the post-war application for restitution of the firm, these stipulations gave the subsidiaries such major financial problems that they also had to be liquidated. It indeed emerges from the trading records of A.S. Drey & Co. in The Hague that this subsidiary went out of business on 8 August 1939.

In 1936 and 1939 the partners of A.S. Drey succeeded in fleeing Germany. They also had to pay large sums of money to do that. The Nazis used the Reichsfluchtsteuer (Reich capital flight tax), which had been introduced in 1931 to combat the flight of capital from Germany after the stock market crash of 1929, to dispossess Jews who wanted to emigrate of property. It emerges from the money awarded in restitution after the war that, between them, the partners paid 155,964.79 reichsmarks in tax for their emigration. In 1938 the authorities furthermore imposed Judenvermögensabgabe (levy on registered Jewish assets) on the partners’ assets still present in Germany.

Purchase of the relief by A.S. Drey and loss of possession

Little is known about the acquisition of the object by the firm of Drey. In the context of an application for compensation submitted to the German authorities in 1954, Paul Drey’s secretary Emilie Fleischmann drew up a list of the objects that went under the hammer in 1936 at Paul Graupe. It is stated on this list that the A.S. Drey art gallery acquired the claimed ivory relief in 1928 for 30,000 reichsmarks. It is possible that this had been held by Walter Spencer Morgan Burns. Correspondence that was found reveals that Drey and Morgan Burns traded Byzantine art with one another from time to time.

In 1931 the ivory relief was mentioned in a letter from the American art collector Royall Tyler, who wrote to an acquaintance: ‘Drey also showed me a photograph of an ivory, a standing Virgin and Child under a canopy, Xl° or Xll° Century, from the Stroganoff collection, for which he wants $15.000.’ Tyler’s mention of ‘Drey’ referred to the partner Paul Drey, who had shown him the photograph in Paris. In that same year, 1931, the artwork was on view in the exhibition organized by Tyler entitled Exposition internationale d’art byzantin in the Musée des Arts Décoratifs in Paris. In 1934 the relief was included as number 142 and plate LI in the second volume of Die byzantinischen Elfenbeinskulpturen des X.-XIII. Jahrhunderts by Adolf Goldschmidt and Kurt Weitzmann.

As described above, the lion’s share of the firm of A.S. Drey’s trading stock in Germany, including the ivory relief, was sold at auction on 17 and 18 June 1936 at Paul Graupe in Berlin. In the catalogue the relief was included in the ‘Sculpture’ section under lot number 96. The firm had valued it at 12,000 reichsmarks, but it was sold to an unknown buyer for 4,800 reichsmarks. The day after the sale the magazine Pantheon. Monatsschrift für Freunde und Sammler der Kunst reported the low price: ‘The Byzantine ivory only fetched 4,800 reichmarks.’

Just under two years later the relief was in the trading stock of Jacques Goudstikker. It is not possible to deduce from the surviving archive documents of Goudstikker’s firm in the Amsterdam City Archives and the National Archive in The Hague from whom and when Goudstikker purchased the object.

In 1939 Goudstikker sold the object to the Dutch industrialist and collector D.G. van Beuningen. A purchases notebook of Van Beuningen’s mentions the object with the year 1939 and the description ‘1 ivoren Madonna XIe eeuw ex coll Stroganoff Goudst.’ [‘1 ivory Madonna 11th century ex coll Stroganoff Goudst.’]. In 1958 the Van Beuningen Collection, including the relief, was acquired by Rotterdam City Council for placement in Museum Boijmans – since then called Museum Boijmans Van Beuningen.

4. Substantive Assessment of the Application

The Committee has established that the requirements in section 1 a to e of the assessment framework have been met and that the application is therefore eligible for substantive handling.

The Museum, on behalf of the City Council, let it be known that it waived the right to invoke good faith, and therefore the substantive assessment of the restitution application will remain limited to sections 2 and 3 of the assessment framework.

Pursuant to section 2 of the assessment framework, the Committee must assess whether it is highly plausible that the artwork was the property of Kunsthaus A.S. Drey, and on the grounds of section 3 whether it is sufficiently plausible that this gallery lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime. To this end the Committee finds as follows:

Involuntary loss of possession (section 3 of the assessment framework)

Now that it has been established that the five partners of Kunsthaus A.S. Drey were of Jewish descent and that the art gallery lost possession of the artwork after 1933 in Germany, on the grounds of section 3 of the assessment framework, criterion 3.2 (art dealer who belonged to a persecuted population group) involuntary loss of possession must be assumed if there are indications that make this involuntary loss of possession sufficiently plausible.

Since its establishment in 1837, the A.S. Drey art gallery developed into a large and renowned family business, with branches in several different foreign cities in addition to the Antiquitätenhaus in Munich. The takeover of power by Hitler in 1933 put an end to a long period of growth for the firm, which at that time was being run by Siegfried Drey, Paul Drey, Franz Drey, Fritz Stern and Ludwig Stern – a son and four grandsons of the founder Aron Siegfried Drey respectively. The clients stayed away, and the proceeds dropped sharply. The partners were confronted by disproportionate tax measures that were aimed at Jewish people and felt it necessary to sell the large Antiquitätenhaus. The business was furthermore accused of tax fraud on the basis of a dubious investigation. Burdened by the threat of a criminal prosecution and the realization that otherwise leaving Germany would not be possible, in February 1936 partner Siegfried Drey signed a declaration of submission, which meant that the sums being demanded became collectable immediately. A few moments later he had a heart attack in a taxi, collapsed and died. In order to be able to pay the ‘tax debt’ and penalties, the firm sold the lion’s share of its trading stock, including the ivory relief, at auction in June 1936 at Paul Graupe in Berlin. Later that year the firm of A.S. Drey was sold and Aryanized. The partners living in Germany succeeded in leaving the country in 1936 and 1939.

On the basis of the above facts and circumstances, the Committee takes the view that the sale of the artwork Hodegetria or Virgin and Child by Kunsthaus A.S. Drey in 1936 was involuntary; the result of circumstances directly connected with the Nazi regime.

5. Binding opinion

The Restitutions Committee advises Rotterdam City Council to restitute the ivory relief Hodegetria or Virgin and Child (artist unknown), which is in Museum Boijmans Van Beuningen, to the Applicants listed in 2.

This binding opinion was issued on 18 September 2023 by D. Oostinga (Vice-Chair), J.F. Cohen, S.G. Cohen-Willner, J.H. van Kreveld and C.C. Wesselink, and signed by the Vice-Chair and the Deputy Secretary.

(D. Oostinga, Vice-Chair)                  (N.L.E.M. Bynoe, Deputy Secretary)