7. Assessment of the dispute
7.1 The Committee has satisfied itself that the dispute between the Applicant and the City Council has not previously been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the work. Neither has the Applicant previously renounced her rights to the painting. The Committee therefore considers the parties and their request to be admissible.
7.2 The Applicant has asserted she is the only heir of AA. The Committee has taken note of the notarial certificates of inheritance that are in the Committee’s investigation file. It emerges from the notarial certificate of inheritance dated 25 January 2001 concerning the estate of AA and the notarial certificate of inheritance dated 23 July 1996 concerning the estate of CC, the Applicant’s mother, who was married to AA in community of property, that the Applicant is the only person entitled to the estates of AA and his wife, who predeceased him.
7.3 The Committee’s opinion about the ownership issue is as follows. The investigation was not able to provide a clear answer to the question about how and when the work came into AA’s possession, but it was established that he sold the work on 11 February 1941 for NLG 2,500 to Goudstikker-Miedl. This transaction is after all listed in this gallery’s purchase and sales ledgers, and an invoice was also found in the files. In the Committee’s view the listing ‘AA / EE’ in this administrative information provides sufficient grounds for the opinion that it is highly likely that AA was the work’s owner when the work was sold on 11 February 1941.
7.4 As regards the nature of the loss of possession, the Committee finds that it has to be designated as involuntary. Here the Committee refers in the first instance to the Ekkart Committee’s third recommendation of 26 April 2001, which was adopted by the government, which stipulates that sales of artworks by private Jewish individuals in the Netherlands from 10 May 1940 onwards must be considered to be involuntary, unless the facts expressly show otherwise. The Committee finds that this recommendation is correspondingly applicable in the present case. In forming its opinion the Committee also takes account of what the Applicant stated about this, as described under 4.1. The Committee agrees with the Applicant that it is plausible that, as a stateless resident of Jewish descent, AA was unable to practise his profession during the years of the occupation and found it necessary to sell the work to obtain money to live on and in the interests of his safety. The fact that he and his wife participated in the resistance also plays a role.
7.5 Under Dutch law it must be assumed that the City Council is now the owner of the work. The City Council acquired the painting in 1955. The Committee has no indication whatsoever that the City Council acted negligently during the acquisition.
7.6 The Committee now comes to weighing up the interests of the parties in the restitution or retention of the work. In this case, on the basis of the yardsticks of reasonableness and fairness, the City Council’s right of ownership carries insufficient weight to decide the dispute in favour of the City Council. Here the Committee takes into account, since the City Council is a public authority, that the Washington Principles apply correspondingly. As regards the contended ‘high ensemble value’, while it is important that the work links the 1656 Bartholomeus van der Helst group portrait to the portrait dating from around 1790 and attributed to Wybrand Hendriks and is therefore a linking work, it is nevertheless a copy of the portrait of Joan Huydecoper in the 1656 Van der Helst group portrait, the creator of the work is unknown, and it is currently in the Museum’s repository. When looked at in the light of the above, the Committee finds that the interests stated by the City Council do not weigh heavily enough to stand in the way of restitution. Set against this interest of the City Council, there is the emotional and moral value attached to restitution of the work contended by the Applicant. In this regard the Applicant has stated that her actions are being driven by a sense of responsibility regarding her parents’ former possessions and that restitution of the work contributes to maintaining her own children’s memory of their grandparents and awareness of their life history. In this regard it is also important that the Applicant is a first-degree relative of the original owner, who lost possession of the work in an involuntary manner. Bearing this in mind, the Committee perceives that the interest of the Applicant in restitution of the work has greater weight than the interest of the City Council in retaining it.
7.7 This brings the Committee to the question of whether something in return from the Applicant should be linked to the surrender of the work. It is important in this regard that the City Council purchased the work in 1955 for a sum of NLG 5,200 and that there are no indications that the City Council did not act in good faith at the time. The Committee takes the view, however, that this is a relatively modest sum, and that the City Council has after all had the benefit of the work since 1955. This is not affected by the fact that the work has mainly been in the repository because this has been the choice of the Museum. In these circumstances the Committee sees no reason to link surrender of the work to something in return from the Applicant.
7.8 The Committee gives the following binding opinion on the grounds of the foregoing.