Recommendation

In a letter dated 28 April 2011, the State Secretary for Education, Culture and Science (hereafter referred to as: the State Secretary, OCW) requested the Restitutions Committee (hereafter referred to as: the Committee) to issue a revised recommendation on a previously handled application for restitution regarding Larsen (RC 1.70) concerning twelve paintings from the Netherlands Art Property Collection (hereafter referred to as: the NK collection). The works have the following inventory numbers: NK 1410, NK 1412, NK 1414, NK 1417, NK 1420, NK 1424, NK 1428, NK 1441, NK 1447, NK 1451, NK 2243 and NK 2463. The previous application for restitution of these twelve paintings was awarded by decree of the Minister for OCW on 1 September 2009 on condition of payment of EUR 325,000 by the applicants. This is what the Committee advised the Minister in its recommendation on RC 1.70 dated 1 July 2009.

The application for a revised recommendation concerns the repayment condition the Committee attached to its recommendation to return the paintings.

Considerations

1. The current revised recommendation concerns twelve paintings that were originally part of the collection of the Jewish industrialist Hans Ludwig Larsen (hereafter referred to as: Larsen), who died in 1937 and was the applicant’s grandfather. At the time of the loss of possession, which occurred during the German occupation of the Netherlands and after Larsen’s death, the claimed works of art were part of Larsen’s undivided estate.In its recommendation RC 1.70, the Committee judged that the loss of possession of the works of art is to be qualified as involuntary due to circumstances related to the Nazi regime. This is not in dispute.

   The Committee also judged that the applicants’ request was admissible and that the written statement regarding the Larsen estate from the executors (hereafter referred to as: ‘the executors’) dated 23 July 1947 in which they waived the possibility of restoration of rights cannot be invoked against the heirs themselves, who were in the United States at the time.

   However, in its previous recommendation, the Committee was of the opinion that the sales proceeds received for the twelve currently claimed works of art during the war were in fact received by the executors after the war and that, as appointed by Larsen in his will dated 16 March 1937, they were entitled to receive the same. The Committee concluded that the owners obtained the free disposal of the money received for the sale of the works and that, pursuant to the guidelines applied by the Committee, this money has to be repaid in the event of restitution of the works of art. On 1 July 2009, the Committee therefore recommended to return the twelve works of art in exchange for the obligation to pay an amount of EUR 325,000, which is based on the indexation of the payment received for these twelve works of art. This is what the Minister decided.

2. In her explanation, the applicant objects to this obligation to pay. She puts forward new information on the basis of which she – in brief – contends that there is reason to doubt whether the purchase price of the claimed works of art was actually paid during the war to the Verwalter who the Germans had appointed to manage Larsen’s estate and whether he actually received that. She also contends that had that been the case, there is doubt as to whether this amount was then put to the free disposal of Larsen’s heirs. Based on this, she states that the repayment obligation should be waived.
3. The Committee assesses this request for a revised recommendation by applying two review criteria, namely whether, in the explanation provided by the applicant, there are
   a. any new facts, which, had they been known when the recommendation on RC 1.70 was made, would have led to a different conclusion, and/or b) any errors were made during the procedure in case RC 1.70 as a result of which the applicant’s fundamental interests were harmed.Seeing as the applicant’s explanation does not involve procedural objections but is based on the invocation of new facts, the current recommendation is confined to a review of criterion a.
4. The Committee inventoried and studied the explanation with a view to new facts invoked by the applicant.
   The Committee first of all considers that some of the information provided by the applicant in the current procedure was already known and formed part of the file on RC 1.70. The documents in question were also used as a basis for the summary of the facts as presented in the RC 1.70 investigatory report of 1 July 2009 and are, where relevant for assessing the application for restitution, described and considered in the recommendation on RC 1.70.
5. The following documents now submitted by the applicant can be regarded as new: a. Provenance details on some of the paintings [Memorandum, tab b]. These are works of art regarding which the applicant states that they were part of the Larsen collection and which were sold to the Dutch State after the war. b. Copy of a copy or draft of a letter dated 13 February 1943 to the N.V. Hollandsche Buitenland-Bank in The Hague, probably written by CC [Memorandum Annex 2]; c. English translation of a letter dated 29 August 1952 from DD to the Netherlands Property Administration Institute (NBI) [Memorandum Annex 5]; d. Copy of a copy of a petition to the ‘Raad van Advies en Herstelaangelegenheden’ in Amsterdam dated June 1945 [Memorandum Annex 6]; e. Copy of an annotated auction catalogue of Van Marle & Bignell relating to an auction on 25 January 1943, with the annotation ‘Exemplar Dr. Göpel’ [Memorandum Annex 11]; f. Copy of a letter from EE to FF, 2 February 1972 [Memorandum Annex 14]; g. Copy of a letter from bank Labouchere & Co. N.V. to the executors of the estate of H.L. Larsen, 22 June 1948 [Memorandum Annex 16]; h. Copy of a cover page of a 1947 auction catalogue of Parke-Bernet Galleries Inc. in New York regarding paintings and drawings from the estate of H.L. Larsen [Memorandum Annex 18]; i. Copy of a copy ‘Note reg. credit for GG’, 23 January 1941, writer unknown, probably bank Van Mierlo & Zoon [Memorandum Annex 19]; j. Copy of a copy of a letter dated 2 January 1942 to GG, writer unknown, probably bank Van Mierlo & Zoon [Memorandum Annex 20]; k. Copy of a copy of a note ‘Conversation with GG’, writer unknown, probably bank Van Mierlo & Zoon, 30 October 1941 [Memorandum annex 21]; l. Transcription and translation of an agreement between GG and HH, 10 August 1942 [Memorandum Annex 22]; m. Transcription of a letter or note dated 4 September 1944 [Memorandum Annex 23]; n. Copy of a copy of a letter or draft to GG and HH, sender unknown, 29 August 1942 [Memorandum Annex 24]; o. Copy of a copy of a letter or draft to GG and HH, sender unknown, 18 August 1943 [Memorandum Annex 25]; p. Copy of a copy of a letter from GG and HH to II, 25 August 1942 [Memorandum Annex 26]; q. Copy of a copy of a letter or draft to GG and HH, not dated [Memorandum Annex 27]; r. Copy of a note ‘FAO Mr. x’, 29 April 1948, writer unknown [Memorandum Annex 28]; s. Copy of a copy of a letter or draft to GG, 2 October 1944, writer unknown [Memorandum Annex 30]; t. Translation of a list of works of art of GG’s heirs [Memorandum Annex 31a]; u. Transcription and translation of a letter from JJ to HH, 2 September 1944 [Memorandum Annex 31b]; v. Copy of a list of goods in the estate of H.L. Larsen’s mother, 27 January 1938 [Memorandum Annex 32]; w. Copy of a letter from JJ to the NBI, 28 November 1946 [Memorandum Annex 33]; x. Copy of a carbon copy of a letter from the NBI to KK, 18 June 1948 [Memorandum Annex 34]; y. Copy of a copy of a letter from the NBI to LL, 12 July 1948 [Memorandum Annex 35]; z. Copy of a letter or note from the Netherlands Art Property Foundation (SNK), 2 July 1946 [Memorandum Annex 36].
6. In her explanation, the applicant puts forward various objections to the repayment obligation. In the current recommendation, these will be summarised and discussed as part of the various main items.
7. Larsen was co-founder and shareholder of a business dealing in chemicals, known by the name of Wijnhoff, Van Gulpen & Larsen N.V. During the occupation, the Verwalter appointed by the Nazi regime to manage Larsen’s estate sold Larsen’s shares in the business. A significant portion of the documents specified above in consideration 5 is related to these events and the related restoration of rights after the war, namely the documents listed under c, g, i, j, k, l, m, n, o, p, q, r, s, t, u, w, x and y.As regards these data, the Committee considers that, while they do give an idea of the damage to the company resulting from war-time events, they do not offer any relevant information that sheds a different light on the assessment of the application for restitution of the works of art. The Committee has found no evidence that there is a clear link between the aryanisation or the sales of the shares in the company and the claimed paintings. More specifically, the Committee has found no evidence of a relevant connection between the events described in these documents and the extent to which the proceeds from the sales of these works eventually accrued to the Larsen estate.
8. The applicant argues that it is not certain whether, after the war, the Larsen heirs themselves had free disposal of the money paid in exchange for the paintings. This argument was already presented during the procedure for RC 1.70, in which it was stated in a letter dated 25 April 2008 that the proceeds from the sold works of art supposedly never reached the family in the United States. After reconsidering the matter, the Committee is still of the opinion that what occurred after the war in relation to settlement of Larsen’s estate in the internal relationship between the executors and the individual heirs is something that goes beyond the Committee’s policy framework. The question whether, after the war, Larsen’s heirs eventually received the part of the sales proceeds of the works of art to which they were entitled from the executors appointed thereto by Larsen in his last will and testament, made of his own volition, should be considered an internal (family) matter in which the Committee cannot and does not wish to be involved. As the Committee deems the transfer and receipt of the proceeds from the sales of the paintings to the executors appointed by Larsen in his will a proven fact, the sales proceeds became part of the heirs’ assets and the conclusion therefore is that the entitled parties had free disposal of the sales proceeds.
9. However, the Committee does see the relevance in the question of whether the new information referred to above raises doubts as to the conclusion in the previous recommendation concerning Larsen’s estate that after the liberation, the executors actually received the consideration for the (involuntary) sale of the twelve currently claimed works of art for the benefit of the estate they managed. In its previous recommendation, the Committee was of the opinion that this was the case, based on the following indications:
   • administrative data that suggest payment by (German) buyers;
   • a post-war statement from the Verwalter appointed for Larsen’s estate that the amounts and been received and were retained;
   • a statement from the executors dated 28 December 1946 that the sales proceeds from the works of art claimed at the time were retained, with a specification of the amounts received.After studying the new information submitted as part of this new request for advice, the Committee answers the question as to whether doubt has arisen on the matter of whether, after the war, the entitled parties had free disposal of the consideration in the negative, partly in view of the following.
10. The Committee first of all understands from the applicant’s explanation that she is of the opinion that a decisive factor for the Committee was the question whether the Verwalter intended throughout the occupation to manage Larsen’s property on behalf of the heirs. That interpretation is incorrect.
    The only decisive factor to assess the question whether repayment of a consideration must be a condition for restitution is the observation that the money that was managed was retained until after the war and was put at the free disposal of the entitled parties. After all, the basis for the repayment obligation in the Committee’s policy is preventing double compensation in the form of both the consideration paid for forced sale during the war years of which the owners had free disposal and the sold work itself in case of restitution. For this, the Committee refers to section 5 of the recommendations issued in 2001 by the Ekkart Committee and to the explanation to final recommendation 8 from 2004. In this context, the Verwalter’s intention, which the applicant refers to in her explanation, is not relevant for the Committee’s opinion on (the amount of) a repayment obligation to be imposed in the event of restitution.
11. The applicant argued that there are no bank statements or other documentary evidence that the amounts in question were actually received by the Verwalter or the executors, that the executors were not aware of what actually happened during the occupation as the Verwalter did not involve them in their management, and that the executors used incorrect information, as a result of which they erroneously reported having received the amounts.
    The Committee does not agree with the applicant. The fact that the executors were aware of what happened (including payments) can be deduced from the fact that they were in contact with the SNK about Larsen’s art collection at least from August 1945 onwards and that they were able to present specific information, such as sales amounts, at an early stage. As outlined in the previous recommendation, this contact resulted in a request for restitution by the executors. This request was accompanied by the offer ‘to recompense the rightful person for all that the paintings from this estate have accrued’ and concerned 14 paintings from the Larsen collection, among which 11 from the 12 works to be returned in this case. As already referred to in the recommendation on RC 1.70, the executors wrote a letter to the SNK dated 28 December 1946 saying that the proceeds from these works of art had been ‘saved’:De desbetreffende gelden zijn door een toevallige omstandigheid gered, zoodat wij in dit geval niet behoeven te volstaan met een cessie van vorderingen op het een of andere roofinstituut der Duitsche bezetting. [The relevant moneys were opportunely saved, so that, in this case, we do not need to limit ourselves to an assignment of claims against some German looting body.]

    The Dutch authorities were willing to honour this application for restitution, but the executors abandoned their application in a letter dated 23 July 1947 following valuation of the paintings. They confirmed this point of view in a letter by referring to their previous decision when, in 1949, the Dutch authorities again drew their attention to the presence of recovered art from the Larsen collection.
    After studying the information sent in as part of this new request for advice, the Committee concludes that there is no evidence to suggest that the executors were misled or had insufficient reliable information in this respect. Likewise, the Committee has found no indications to suggest that the executors, who corresponded with the SNK at least until 1949, at any point in time reconsidered their position that the relevant amounts had been received. The Committee is of the opinion, therefore, that, in light of the available evidence, it can be assumed that the executors’ statement is correct and that they were able to take on the management of the proceeds received for the works that were lost during the war. The new data sent in as part of this new application do not justify any conclusion to the contrary on this point either.

12. The applicant also contends that the repayment obligation should be waived because three works of art that were lost from the Larsen collection during the war were auctioned by the Dutch State after recovery. As regards the said three paintings, the Committee observes the following facts:
    a) the works were part of the Larsen collection and, like the 12 paintings to be returned in this case, were recovered after the liberation and placed under SNK management;
    b) the works were part of the executors’ application for restitution dated 28 December 1946 as described in more detail in consideration 11;
    c) in a letter dated 23 July 1947, the executors stated that they waived restoration of rights, also to these paintings, which they repeated in 1949;
    d) as claimed by the applicant, the paintings were auctioned by the Dutch State in or around 1951, which the Committee deems plausible.The Committee assumes that the amount to be repaid in the event of restitution equals the indexed sales proceeds the entitled parties received at the time for twelve works of art to be returned. Given what is stated below, the Committee sees no reason to deduct the value of other works of art from this amount.

    The Committee is of the opinion that it cannot be held against the Dutch State that, in 1951, after the executors had repeatedly indicated that they wished to waive restoration of rights, it believed it had free disposal of the works of art form the Larsen collection that had been returned.
    Moreover, the argument that the heirs had suffered financial losses to the amount of the value of the three works of art because of the 1951 auction is invalid. Given what is stated under b and in considerations 9-11, the executors, i.e. the legal representatives of the entitled parties, had free disposal of the consideration for the sales of the three works during the war. At the time, they renounced restitution and opted to keep this consideration instead.

13. Finally, in the explanation the applicant argues that the Dutch State has been able to enjoy the twelve paintings to be returned for 65 years without paying any consideration. This cannot be considered a new fact. After all, the Committee was already aware of this when it drew up its recommendation in case RC 1.70. This was no reason to reduce the amount to be repaid. After all, the basis for the repayment obligation in its policy, as considered under 10 above, is to prevent double compensation.
    Finally, the Committee notes that the 2001 recommendations and final recommendations 7 and 8 from the Ekkart Committee state that, in the event a compensation is reclaimed, restitution policy dictates that the amounts in question will be divided among Jewish cultural causes.
14. Based on the above, the Committee concludes that the applicant has not presented any new relevant facts that could constitute a reason to reconsider the repayment obligation advised in the case of the application for restitution RC 1.70.