The procedure  

The reason for the application for restitution was a letter from the Origins Unknown Agency (hereafter referred to as ‘BHG’) of 12 November 2004 to the applicant concerning the aforesaid works of art. In response to the application for restitution that was subsequently submitted, the Restitutions Committee instituted a fact-finding investigation, the results of which were summarised in a draft report dated 15 January 2007. This draft report was submitted to the applicant and to the Minister of OCW on 14 February 2007. Because the investigation revealed that the work of art NK 2558 originally belonged to the applicant’s great uncle, Robert May, and the applicant is not his legal heir, the applicant withdrew the claim in his letter dated 20 March 2007. Therefore, the application for restitution now only includes five works of art from the Netherlands Art Property Collection (hereafter referred to as the NAP collection). The investigatory report was subsequently adopted on 25 June 2007. For the facts of the case, the Committee refers to its investigatory report, which is considered an integral part of this recommendation.

Special considerations

1. The applicant requests the restitution of five works of art from the NAP collection. It is possible that the paintings NK 2132 and NK 2717 belonged to his grandparents, Siegfried Paul Daniel May and Rosine Mariane May-Fuld. The remaining works claimed, NK 1959, NK 2421 and NK 2896, may have belonged to his parents, Ellen van Marx-May (1897-1970) and Alexander van Marx (1895-1980).^[1] This recommendation addresses the claims to the NAP works of art belonging to Mr and Mrs May-Fuld separately from the claim to those of Mr and Mrs Van Marx-May.
2. The applicant requests the restitution of the paintings in his capacity as heir of his parents and grandparents. He has stated to be acting on behalf of the heirs who are, according to the applicant, his sister V.M.-V.M. and himself. In this context, the Committee has taken cognisance of a certificate of inheritance from 1947 in which Ellen van Marx-May is listed as sole heir of her parents, Siegfried Paul Daniel May and Rosine Mariane Fuld.
3. The applicant’s grandparents, Siegfried Paul Daniel May (hereafter referred to as Paul May) and Rosine Mariane May-Fuld (hereafter referred to as Rosine Fuld) were of Jewish extraction and were living in Zeist at the time the Second World War broke out. Paul May was a partner in the Lippmann, Rosenthal en Co bank on the Spiegelstraat in Amsterdam (hereafter referred to as Liro-Spiegelstraat).^[2] The married couple committed suicide on 15 May 1940. Their only daughter, Ellen May, had fled to the United States around 14 May 1940 with her husband, Alexander van Marx, and their three children (among whom, the applicant). The Liro-Spiegelstraat bank was declared enemy property and was placed under the administration of a German Verwalter, A. Flesche.
   May-Fuld provenance history
4. The investigation revealed the following regarding the claimed works which formerly belonged to Paul May and Rosine Fuld. One of Paul May’s brothers, Robert May, also a partner at the Liro-Spiegelstraat bank, had been designated administrator of the estate of Paul May and Rosine Fuld. On the instructions of Verwalter Flesche, Robert May reported both estates as enemy property to the Deutsche Revisions- und Treuhand A.G. (hereafter referred to as DRT) on 27 February 1941. The reason for this was the fact that heir Ellen van Marx-May (temporarily) was on or had been on enemy territory. In March of 1941, the occupation authorities appointed a German administrator for the estate of Paul May and his wife. On the administrator’s orders, part of the estate was auctioned off at Frederik Muller & Co auction house in Amsterdam in the period from 14-17 October 1941 and 2-5 December 1941. The auctions yielded roughly NLG 450,000, of which NLG 441,000 was booked to the DRT’s bank account in April 1942.
5. Various archived documents show that Ellen van Marx-May, as sole heir, instituted various lawsuits with regard to the sale of her parents’ estate and the auction proceeds. In its decision of 29 December 1947 concerning an auctioned object from the estate, the Council for the Restoration of Property Rights, Jurisdiction Department in Amsterdam ruled that the sale had been ‘against the will of the rightful claimant (the applicant) and that she had not received the proceeds of that sale’. The Committee also considers the sale of Mr and Mrs May-Fuld’s estate by the German administrator to be a sale under duress. In all probability, at least a part of the auction proceeds was paid to Ellen van Marx-May in the end. However, it is no longer possible to determine the sum involved.
6. In reference to the claimed painting NK 2132 (Jacob de Wit, Allegory of transitoriness), the investigation has shown that the work of art was bought at the aforementioned auction of 17 October 1941 by Kunsthandel Voorheen J. Goudstikker N.V., managed by the German Alois Miedl at the time. The auction catalogue that has survived states that the painting came from the May-Fuld estate. Furthermore, it has been established that Miedl sold the painting in 1943 to a buyer in Germany. After the war, the painting was recovered and returned to the Netherlands, but there is no indication that Mr and Mrs May-Fuld’s surviving relatives were informed of this by the Dutch authorities.
7. Now that it has been determined that the case was not settled in the past, the Committee deems the application for restitution admissible. Furthermore, the Committee considers that the requisites for restitution have been satisfied. After all, the investigation has made it clear that the work of art originally belonged to Mr and Mrs May-Fuld and that it was taken from them without their consent. The Committee recommends allowing the application for restitution of NK 2132.
8. With regard to the claimed work of art NK 2717 (J.A. van Walscappelle, Still life with grapes, medlars and mouse), the investigation has revealed no conclusive evidence of its provenance. However, the investigation did show that Paul May in all likelihood bought it in or after 1917 from Kunsthandel J. Goudstikker. In addition, archive documents from the Netherlands Art Property Foundation (SNK) indicate that the work of art was sold by Amsterdam art-dealer Jan Dik Jr and, in the end, was acquired for the establishment of the Fuehrer museum in Linz. It never became clear when and from whom Jan Dik Jr purchased the work. Nor is it possible to determine whether the work of art was still in the possession of Paul May or whether it was given up involuntarily.
9. Pursuant to national policy in respect of the restitution of works of art, restitution can only be recommended if it is highly probable that the claimed work belonged to Paul May or his wife, and if the work of art was given involuntarily due to circumstances directly related to the Nazi regime. Because there are no records for the period 1917-1944, the Committee deems it possible but not probable that the work of art was still in the possession of Mr and Mrs May-Fuld at the beginning of the war. A fact that suggests that the work was not part of their belongings is that the painting NK 2717 was not included in Frederik Muller & Co’s auction catalogue for the sale of the couple’s entire estate in 1941. As the investigation currently stands, the Committee sees insufficient grounds for admitting the application for restitution of this painting and recommends dismissing the request.
   Van Marx-May provenance history 
10. The investigation revealed the following regarding the claimed works which formerly belonged to Mr and Mrs Van Marx-May (NK 1959, NK 2421 and NK 2896). Post-war correspondence between Robert May and the SNK clearly indicate that a few years after they fled to the United States, the couple’s entire estate was auctioned off on the instructions of Verwalter Flesche at auction house Frederik Muller & Co in the period from 18-21 July 1944. Several sources show that the works of art NK 1959, NK 2421 and NK 2896 were also sold. The Committee has taken cognisance of various items including the auction catalogue and documents from the SNK archives that confirm that these paintings were originally property of Mr and Mrs Van Marx-May. After the auction, the three claimed works of art eventually ended up in Germany. There is evidence suggesting that the net auction proceeds were transferred to Liro-Spiegelstraat’s bank account in the name of Ellen van Marx-May. No information has been discovered from which it can be deduced that the proceeds were indeed received by her.
11. After the war, the aforementioned works of art were recovered from Germany. As regards NK 1959, the SNK corresponded with a representative of the Liro-Spiegelstraat, who was acting in the name of Ellen van Marx-May in September 1950. Even though the correspondence indicates that Ellen van Marx-May did not show any interest in the return of the paintings, the Committee is of the opinion that this cannot affect the admissibility of the current application for restitution, as the case did not at the time result in a judgement by a competent authority concerning the restoration of rights nor a formal settlement, and therefore, based on the current restitutions policy as stated in the Ekkart Committee’s first recommendation from 2001, it is not a case that was settled in the past. As regards the other two claimed paintings from the NAP collection, no proof was found of the SNK having contacted Mr and Mrs Van Marx-May, so that again there are no objections to consider the application for restitution.
12. In the opinion of the Committee, the paintings NK 1959, 2421 and 2896 are eligible for restitution now that it has been established that the works of art belonged to the couple at the time of the auction and were sold without their permission.
13. The Committee has no reason to make the restitution of NK 2132, NK 1959, NK 2421 and NK 2896 conditional on the payment of a fee. Even though it is probable that Mr and Mrs Van Marx-May received a portion of the various auction proceeds, the sums involved can no longer be determined. Moreover, pursuant to the Ekkart Committee’s fourth recommendation of April 2001, repayment of sums received is only in order if the money was at the free disposal of the original owner or owner’s heirs, and applicants are to be given the benefit of the doubt in cases where this cannot be ascertained. The Committee’s opinion is that this policy rule should be interpreted in such a way that applicants will not be enriched unduly. In the case in question, the Committee finds that there is no question of undue enrichment. In this respect, it deems it very probable that a major portion of Mr and Mrs May-Fuld’s and Mr and Mrs Van Marx-May’s collections of art and antiques were lost to the family as a result of the Nazi regime, while it is plausible that Mr and Mrs Van Marx-May benefited from only a part of the sales proceeds after the war. Moreover, the Committee notes that NK 2421 was irrecoverably damaged by fire and is considered a total loss.

_{[1] The family’s original name was Von Marx. The name was changed to Van Marx when they became American citizens.
[2] The term ‘Liro-Spiegelstraat’ is used here to differentiate the bank from the German looting organisation Lippmann, Rosenthal & Co on the Sarphatistraat.}