Recommendation

In a letter dated 18 October 2006, the Minister for Education, Culture and Science (OCW) asked the Restitutions Committee to issue a recommendation regarding the application for restitution submitted on 10 July 2006 by S.L.-S. en J.S., through their representative R.W. Polak, master of laws. After the death of J.S. on 18 March 2007, his daughter L.E.B.-S. takes his place as applicant (together with S.L.-S. hereafter referred to as ‘the applicants’). Initially, the application for restitution concerned the following objects:

NK 205: bowl
NK 244: box
NK 251: commode
NK 296: dish
NK 505: plate
NK 508 A-B: two beaker vases
NK 510: vase
NK 511: bowl
NK 512: small jug
NK 530 A-B: tobacco pot
NK 532 A-B: two jars and covers
NK 633: miniature cannon
NK 652: armchair
NK 685: tapestry
NK 810 A-B: two armchairs
NK 891: miniature cannon
NK 1074: bordure of a tapestry
NK 1075: portière
NK 1079: tapestry
NK 2131: G. de Witte, Italian landscape with herdsmen
NK 2310: S.J. van Ruysdael, Dune landscape with travellers near Egmond aan Zee
NK 2443: B.C. Koekkoek, View on the Rhine near Xanten
NK 3202: mirror

According to the applicants, these objects were originally part of the trading stock of art dealers J. Stodel v.o.f., established in Amsterdam (hereafter referred to as ‘art dealership Stodel’). Since their return to the Netherlands after the Second World War, the claimed objects have been part of the Netherlands Art Property Collection (hereafter referred to as the ‘NK collection’) under the inventory numbers listed above. According to information from the Netherlands Institute for Cultural Heritage in Rijswijk (hereafter referred to as ‘ICN’), most of these objects can now be found in various government institutions and museums in the Netherlands and abroad, as well as in the ICN depot. Furthermore, the ICN reported that NK 510 and NK 633 are missing and that NK 3202 is effectively no longer part of the NK collection.

General considerations

a) The Committee has drawn up its opinion with due regard for the relevant (lines of) policy issued by the Ekkart Committee and the government.

b) The Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in subsequent cases. The Committee resolved that such influence cannot be accepted, save in cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.

c) The Committee then asked itself how to deal with the circumstance that certain facts can no longer be ascertained, that certain information has been lost or has not been recovered, or that evidence can no longer be otherwise compiled. On this issue, the Committee believes that if the problems that have arisen can be attributed at least in part to the lapse of time, the associated risk should be borne by the government if the art was privately owned, save in cases where exceptional circumstances apply.

d) The Committee believes that insights and circumstances which, according to generally accepted views, have evidently changed since the Second World War should be granted the status of new facts.

e) It is highly probable that loss of possession was involuntary if the object was sold without the art dealer’s consent by ‘Verwalters’ [Nazi-appointed caretakers who took over management of firms owned by Jews] or other custodians not appointed by the owner of items from the old trading stock under their custodianship, in so far as the original owner or his heirs did not receive all the profits of the transaction, or in so far as the owner did not expressly waive his rights after the war.

Special considerations

1. After the withdrawal of the application for restitution of NK 2310 and NK 2443, this recommendation concerns the following twenty-one objects: NK 205, NK 244, NK 251, NK 296, NK 505, NK 508 A-B, NK 510, NK 511, NK 512, NK 530 A-B, NK 532 A-B, NK 633, NK 652, NK 685, NK 810 A-B, NK 891, NK 1074, NK 1075, NK 1079, NK 2131 and NK 3202.
2. The applicants stated that they are the heirs of Salomon Stodel, who, with his brother Bernhard Stodel, was partner in the art dealership J. Stodel v.o.f. during the Second World War. Furthermore, the applicants stated they are the sole shareholders of Stodel Holding B.V., in which Salomon Stodel Antiquités is incorporated. According to the applicants, the latter company is the successor of art dealership J. Stodel v.o.f. Further relevant information is contained in the investigatory report of 3 March 2008. The following summary suffices here. Art dealership Stodel was founded in 1898 by Jacob Stodel (senior), a Jewish art dealer, with its premises initially at Nieuwe Hoogstraat 15 in Amsterdam. After Jacob Stodel’s death, his sons Salomon and Bernhard Stodel carried on the business. From 1936, art dealership Stodel was established at Rokin 70 in Amsterdam.
3. During the Second World War, the German occupying forces in the Netherlands put in place a number of measures designed to successively register, manage and then wind up Jewish companies. On 12 March 1941, Verordnung 48/1941 was issued, the ‘decree ordering the removal of Jews from all business’. Pursuant to this decree, companies owned by Jewish entrepreneurs were taken over and then wound up by a Liquidations-Treuhänder or bought by / placed under the permanent administration of a Verwaltungs-Treuhänder (in short: Verwalter). However, until October 1941, the German forces left art dealership Stodel alone. The partners were able to go about their business unimpeded and were at liberty to travel. This came to an end in October 1941, when the occupying forces closed and sealed the art dealership. Some weeks later, at the recommendation of an art dealer colleague, Bernhard Stodel approached Johan Peter Joseph Kalb requesting him to act as Verwalter of art dealership Stodel. On 27 November or 1 December 1941, Kalb took over the management of the company. The partners lost all control.
4. Kalb purchased art dealership Stodel on 5 August 1942 for NLG 46.765. The art dealership’s employees who had to assess the value of the stock were instructed by Kalb to put the value of the objects at one third of the purchase price. A comparison of the stock book with the inventory in the deed of share transfer shows that, moreover, the sales price was much lower than the sum of the amounts contained in the stock book. Kalb paid the purchase price with a loan later repaid with income from the art dealership. Kalb paid the purchase price to Handelsmaatschappij H. Albert de Bary & Co N.V. in Amsterdam, crediting it to Salomon and Bernhard Stodel. However, the Stodel brothers never had access to this money. It can be concluded from a combination of these facts and the various statements made by witnesses referred to in the investigatory report that the sale to Kalb was not made voluntarily.
5. Bernhard and Salomon Stodel survived the war. After the liberation, the premises of art dealership Stodel at Rokin were found to be nearly empty. On 5 August 1946, a petition was submitted on behalf of art dealership Stodel to the Jurisdiction Department of the Council for the Restoration of Rights in Amsterdam, in which the amount to be claimed from Kalb was calculated at NLG 187,846.11. On 10 June 1947, pursuant to the Restitution of Legal Rights Decree, KB E 100, the Council declared the sale of the art dealership null and void. It did not discuss the requested compensation. Kalb was convicted on 18 June 1947 by the Amsterdam Tribunal because by becoming Verwalter of art dealership Stodel, he had attempted to take advantage of the measures implemented by the enemy. According to the Tribunal, the fact that the Stodel brothers had asked Kalb to become Verwalter did not detract from this.
6. An official record of objections dated 19 March 1951 was found in the archive of the Netherlands Property Administration Institute (hereafter referred to as ‘NBI’), in which the disputes between art dealership Stodel and Kalb were discussed in detail. Although it says that the parties agreed to the record of objections being submitted to the Council for the Restoration of Rights, there is no evidence in the Council’s archive to show that the record was actually submitted. Seeing as no information was found in available sources about a definitive settlement, the Committee argues that this case should not be regarded as settled, and therefore deems the applicants’ claim admissible.
7. The applicants currently request the restitution of the objects registered under 21 NK numbers. They hold the view that their application should be assessed with due observance of the general considerations c and e, as they read up to 12 November 2007, given that they filed their application on 10 July 2006 and responded to the draft report in a letter dated 22 June 2007. Moreover, this is said to have constituted a ‘change in policy in a current case, with regard to elements of which the Committee has already decided otherwise.’ The Committee rejects this position on the grounds that it has given the applicants the opportunity to alter their assertions to the new wording of the general considerations c and e, and because it considers this an independent application submitted on 10 July 2006, hence after the recommendation of 18 April 2005 (RC 1.10) cited earlier. Below are the considerations per category.
8. NK 685, NK 1079, NK 810 A-B and NK 205
   The investigation has revealed the following facts with regard to the ownership of the objects registered under the four NK numbers shown above. Based on the BHG’s reconstruction of the provenance and the archive documents found, the Committee concludes that art dealership Stodel sold these objects during the war. The Committee then investigated whether these works were part of the old trading stock (purchased under the owners’ management) or the new trading stock (purchased under the management of the Verwalter). This investigation has shown that NK 685 and NK 1079 were sold to the Münchener Kunsthandelsgesellschaft (Munich Art Dealers) in November 1940, that NK 810 A-B was sold to art dealers Kunsthandel v/h J. Goudstikker N.V. at an unknown date in 1940, and that NK 205 was sold to the Historisches Museum in Frankfurt am Main on 5 April 1941. The Committee concludes from this that these four objects were sold prior to Kalb taking office as Verwalter and that they are therefore to be considered part of the old trading stock.The Committee also investigated whether there were any indications to suggest that it was highly likely that this is a case of involuntary loss of possession as stipulated in Recommendations for the Art Trade 4, 5 and 6 issued by the Ekkart Committee. In the absence of claim forms indicating involuntary loss of possession, the required high degree of probability can also be assumed if the applicants can prove it was a case of theft, confiscation or coercion. The applicants argued that there is a realistic chance that the sales at issue were of an involuntary nature because the buyers were German and the first two had close connections to the Nazis. The applicants are of the opinion that although this can no longer be established with certainty, the associated risk should lie with the government. However, the Committee does not go along with this reasoning, seeing as it is not in keeping with the Ekkart Committee’s Recommendations for the Art Trade. On this matter, the introduction to these Recommendations states that the recommendation to regard sales by private parties at the beginning of the war as forced sales, unless clearly shown to be otherwise, does not apply mutatis mutandis to the art trade. This resulted in the modified wording of general consideration c, from which it follows that a reversal of the burden of proof does not apply to cases involving the art trade. The Committee is of the opinion that the applicants have not demonstrated that in this case loss of possession was involuntary and a result of circumstances directly related to the Nazi regime.
9. NK 1074
   The investigation revealed the following facts with regard to the ownership of the above object. Based on the BHG’s reconstruction of the provenance and the archive documents found, the Committee concludes that art dealership Stodel sold this object during the war. The Committee then investigated whether this work was part of the old trading stock (purchased under the owners’ management) or the new trading stock (purchased under the management of the Verwalter). After studying the inventory of the trading stock of art dealership Stodel, drawn up on Verwalter Kalb’s instructions, the Committee regards it as highly probable that this object was part of Stodel’s old trading stock.The Committee also investigated whether there were any indications to suggest that it was highly likely that this is a case of involuntary loss of possession as stipulated in Recommendations for the Art Trade 4, 5 and 6 issued by the Ekkart Committee. The Committee found claim forms for NK 1074 in the SNK archive, stating on behalf of art dealership Stodel that this work was sold voluntarily. In view of the qualification ‘voluntarily’ used here for the sale by art dealership Stodel, the Committee refers to the Ekkart Committee’s art dealers recommendation no. 5 in which the latter recommends ‘viewing the qualification binding in all cases in which the art dealer himself, his heirs or an immediate representative appointed by him or his heirs has filled in “voluntary sale”, unless very clear clues are submitted which make it probable that a mistake was made when the form was filled in or that the filling in of the form took place under disproportionately burdening circumstances”. The Committee has found no indications making it probable that a mistake was made filling in the claim form or that the filling in of the form took place under disproportionately burdening circumstances, so that it regards the qualification ‘voluntarily’ as binding.
10. NK 244, NK 510, NK 512, NK 530 A-B, NK 532 A-B and NK 3202
    The investigation revealed the following facts with regard to the ownership of the objects registered under the six NK numbers shown above. Based on the BHG’s reconstruction of the provenance and the archive documents found, the Committee concludes that art dealership Stodel sold these objects during the war. The Committee then investigated whether these works were part of the old trading stock (purchased under the owners’ management) or the new trading stock (purchased under the management of the Verwalter). After studying the inventory of the trading stock of art dealership Stodel, drawn up on Verwalter Kalb’s instructions, the Committee regards it as highly probable that these six objects were part of the dealership’s old trading stock.The Committee also investigated whether there were any indications to suggest that it was highly likely that this is a case of involuntary loss of possession as stipulated in Recommendations for the Art Trade 4, 5 and 6 issued by the Ekkart Committee. In the absence of claim forms indicating involuntary loss of possession, the required high degree of probability can also be assumed if the applicants can prove that the sale was made by a Verwalter, insofar as the original owners or their heirs did not receive all the profits of the transaction or expressly waive their rights after the war. The applicants argue that these works were sold under Verwalter Kalb’s management. Based on the information in the cited inventory, the Committee is of the opinion that it is sufficiently plausible that the Verwalter sold these six objects and that this is therefore a case of involuntary loss of possession due to circumstances directly related to the Nazi regime.
11. NK 251, NK 296, NK 505, NK 508 A-B, NK 511, NK 633, NK 652, NK 891 and NK 1075
    The investigation has revealed the following facts with regard to the ownership of the objects registered under the nine NK numbers shown above. Based on the BHG’s reconstruction of the provenance and the archive documents found, the Committee concludes that art dealership Stodel sold these objects during the war. The Committee then investigated whether these works were part of the old trading stock (purchased under the owners’ management) or the new trading stock (purchased under the management of the Verwalter). However, on the basis of the currently available facts, the Committee did not succeed in establishing when these objects became part of art dealership Stodel’s trading stock. The applicants have not put forward any facts to indicate that these objects belonged to the old trading stock. For this reason, the Committee does not consider it very probable that these objects were part of art dealership Stodel’s old trading stock.The applicants also argue that if the claimed objects, in particular NK 633 and NK 891, are not considered as part of the old trading stock, they must then have been bought and sold by the Verwalter using Stodel’s goodwill, infrastructure and capital, by virtue of which these objects should be returned to them. With reference to its explanation of general considerations c and e, which, among other things, state that only objects that were effectively part of the old trading stock are eligible for restitution, and, in the light of the considerations in paragraph 7, the Committee rejects this argument.
12. NK 2131
    The investigation has revealed the following facts with regard to the ownership of this object. Based on the BHG’s reconstruction of the provenance and the archive documents found, the Committee concludes that the name Stodel does not occur in the provenance history, but that Kalb bought the work at auction house Mak van Waay on 29 June 1943.The applicants argue that when he bought the work, Kalb was already Verwalter of the art dealers and that it is therefore plausible that when he purchased it, he made use of the company’s goodwill, infrastructure and capital by virtue of which these objects should be returned to them. With reference to its explanation of general considerations c and e, which state that only objects that were effectively part of the old trading stock are eligible for restitution, and, in the light of the considerations in paragraph 7, the Committee rejects this argument.
13. Further consideration about NK 510 and NK 3202
    There is a specific problem with regard to NK 510 and NK 3202. The ICN has given to understand that NK 510 is missing and NK 3202 no longer exists. Although the application for the restitution of these two works is admissible, the consequence is that the Committee cannot advise restitution, but merely recommend that the applicants’ claim be resolved in a request for compensation for NK 510, insofar as that work remains untraceable.