The procedure

The application for restitution is based on a letter to the applicants from the Origins Unknown Agency (BHG) dated 1 December 2004 requesting information about the above-mentioned works of art, which are currently in the Netherlands Institute for Cultural Heritage (ICN). This letter stated that the works had probably been in the possession of Mr Martin Israel Aufhäuser, who sold them to German art dealer Alois Miedl in Amsterdam. BHG alerted the applicants to the possibility of filing a restitution request if the sale had been involuntary.

In response to this, applicant R.A., the son of the original owner of the works, supplied further details of his parents’ history. The applicants then filed a restitution request with the State Secretary in February 2005. The Committee thereupon instituted a fact-finding investigation. The results of the investigation were set down in a draft report dated 24 March 2006, submitted to the applicants’ representative for comment and adopted on 12 June 2006. As regards the facts of the case, the Committee refers to the report, the contents of which are considered an integral part of this recommendation.

Special considerations

1. The applicants request the restitution of the painting Three men in a boat on turbulent water by A.H. Lier (NK 3228) and the watercolour Mountain landscape with castle by T. le Feubure (NK 3229) as heirs of Martin Aufhäuser, who died in the United States in 1944. Martin Aufhäuser was married to Auguste Sara Aufhäuser-Ortlieb, who died in 1961. The couple had three children, D., W. and R. (applicant). Applicant M.A.-H. was married to W.A., who died in 1980. Applicant P.E. is the only son of the late D.E.-A.
2. The applicants wrote a short description of the lives of Martin Aufhäuser and his wife from the 1920s on. The description tells us that Martin Aufhäuser, born on 26 June 1875, was of Jewish extraction, that he was a banker and majority shareholder of the H. Aufhäuser bank in Munich. He is said to have put together a substantial collection of paintings and prints in the pre-war years. After the ‘Night of Broken Glass’ on 8/9 November 1938 during which the Gestapo ransacked the couples’ house, Aufhäuser was interned in the Dachau concentration camp. The bank was ‘Aryanised’ and continued under another name. After Aufhäuser’s release, the German authorities gave him permission to move to the Netherlands in March 1939. According to the applicants, they were able to take a number of works from their collection with them, among which the items claimed. In exchange for the sale of a painting in which Göring had expressed an interest, the couple were allowed to go to the United States in May 1941.
3. The investigation has revealed that both works were sold to German art dealer Alois Miedl of Kunsthandel Voorheen J. Goudstikker NV (Gallery formerly known as J. Goudstikker N.V.) in Amsterdam by ‘M. Aufhauser’ on 23 April 1941, together with a number of other paintings and objects of applied art. This information was discovered on a purchase invoice that was found in the art dealer’s archive. The painting by A.H. Lier and the T. le Feubure watercolour were then sent to a depot in Munich and returned to the Netherlands after the war.
4. In late 1952, the Bureau Herstelbetalings- en Recuperatiegoederen (Bureau for restoration payments and the restoration of property) informed the Aufhäuser family’s lawyer in writing that the Van Lier and Le Feubure works had been recovered and would be eligible for restitution, on condition that ownership be proven and the purchase price received at the time returned. A reply from the Aufhäuser family was not found in the documentation. For this reason, the Committee considers that there can be no question of the matter having been dealt with in the past and deems the claim admissible.
5. Pursuant to current national policy in respect of the restitution of works of art, the Committee is obliged to ask itself whether it is sufficiently plausible that the claimed works were originally the property of Martin Aufhäuser, and whether he relinquished possession of the works involuntarily as a consequence of circumstances directly associated with the Nazi regime.
6. As regards the question of ownership, the Committee considers the applicants’ account convincing that Martin Aufhäuser did indeed own the claimed works in 1939 and was able to take them with him to the Netherlands. It has, in any event, been established that the works belonged to Martin Aufhäuser in April 1941, as he sold the works at that point. In respect of the loss of ownership of the works of art, the applicants stated that Martin Aufhäuser was forced to sell both works ‘in order to support his survival and the costs for his emigration to the United States’. The Committee considers this highly plausible and is therefore of the opinion that pursuant to current national policy, the sale of both works must be regarded as having taken place involuntarily as a consequence of circumstances directly associated with the Nazi regime. On a related note, the Committee also takes into consideration the post-war declaration of Auguste Aufhäuser-Ortlieb, stating that during their stay in the Netherlands, she and her husband regularly sold items from their household effects in order to assure their livelihood.
7. In the light of the above, the Committee regards the claim for restitution of the works Three men in a boat on turbulent water by A.H. Lier (NK 3228) and the watercolour Mountain landscape with castle by T. le Feubure (NK 3229) admissible. The Committee is of the opinion that the obligation to pay back the purchase prices received at the time should not be imposed as a condition for restitution, in view of the fact that it is highly likely that Martin Aufhäuser used this money to pay for his emigration and was therefore not able dispose of it at will. The Committee refers in this regard to the Ekkart Committee’s explanatory notes to its recommendations dated 26 April 2001, declaring that: ‘There are no grounds for repayment in all cases in which payment was received, and with regard to which it is probable that such payment was used solely in attempts, successful or otherwise, to leave the country or to go into hiding.’

Summary RC 1.29

THREE MEN IN A BOAT ON TURBULENT WATER BY A.H. LIER AND MOUNTAIN LANDSCAPE WITH CASTLE BY T. LE FEUBURE

The application for the restitution of Three men in a boat on turbulent water by A.H. Lier and Mountain landscape with castle by T. le Feubure was based on a letter to the applicants from the Origins Unknown Agency (BHG). Both works were part of the Netherlands Art Property Collection (NK 3228 and NK 3229) and were in storage at the Netherlands Institute for Cultural Heritage (ICN). An investigation had revealed that Mr Martin Israel Aufhäuser had sold the works to German art dealer Alois Miedl in 1941. Various members of Aufhäuser’s family were traced in the United States, namely his son, grandson and daughter in law, and they filed an application for restitution in February 2005.