Recommendation

In a letter dated 2 April 2007, the Minister for Education, Culture and Science asked the Restitutions Committee to issue a recommendation regarding a decision to be taken on the application submitted on 14 March 2007 by E.S. in Paris, acting as the authorised representative of the heirs of Rosa and Jakob Oppenheimer (hereafter referred to as ‘the applicants’) for the restitution of the following works of art:

NK 1771: P. Bordone, Portrait of a man;
NK 2244: H.G. Pot, Merry company at a table.

According to the applicants, both paintings originally came from one of the enterprises of the Margraf group in Berlin, the sole stockholders of which were said to have been the Jewish art dealers Rosa and Jakob Oppenheimer. Since their return to the Netherlands after the Second World War, the claimed works of art have been part of the Netherlands Art Property Collection (hereafter referred to as ‘NK collection’), and are currently located in the repository of the Netherlands Institute for Cultural Heritage in Rijswijk (hereafter referred to as ‘ICN’).

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 and 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. The applicants are requesting the restitution of the paintings NK 1771 and NK 2244. The applicants have stated that they are the heirs of Rosa and Jakob Oppenheimer who, during their lives, are said to have been the sole stockholders of the German Margraf group. To this purpose, the Committee has taken cognisance of the law of inheritance documents submitted by the applicants.
2. The relevant facts are contained in the investigatory report dated 4 February 2008. The following summary of events will suffice for the present purposes. In 1912, Albert Loeske founded the Margraf & Co. GmbH company in Berlin, an enterprise that traded in jewels and gold. In the years following, he expanded the Margraf group with the establishment of various subsidiary companies, including the art dealerships Van Diemen & Co. GmbH, Dr. Benedict & Co. GmbH, Dr. Burchard & Co. GmbH, and the antiques business Altkunst & Co. GmbH. Loeske put the management of his businesses in the hands of the Jewish art dealer Jakob Oppenheimer and his wife Rosa Oppenheimer-Silberstein. At the time of Loeske’s death in 1929, the abovementioned art dealerships had grown into prominent companies. Loeske left the Oppenheimers the shares of his companies. However, the execution of Loeskes’ estate was delayed due to years of legal battle, which was only settled shortly before the Nazis took power in 1933. Jakob Oppenheimer died in France in 1941. Rosa was later deported by the Nazis and died in Auschwitz in 1943. Their three children survived the war.
3. Shortly after the Nazis seized power in 1933, they aimed their sights on the Margraf group, which they viewed as an exponent of the ‘international Jewish jewel and art trade’. On 1 April 1933, the Nazi authorities attempted to intern Jakob and Rosa Oppenheimer, but the couple were able to escape to France. Because of these developments, the shares of the Margraf group were never registered in the Oppenheimers’ name. After Loeske’s death, the shares had been given to the Tiergarten tax office to serve as collateral for the payment of the inheritance taxes on the release of Loeske’s estate. When the tax debts were paid in 1937, the Nazi authorities would only release the shares on the condition that they would be transferred to the Jewish Rosa Beer who, under pressure from the authorities, agreed. She was the heir to Loeske’s remaining estate and was still living in Germany. In so doing, the Nazis were able to maintain their hold on the estate.
4. A decision of the Landesgericht (Court of Justice) in Berlin dated 2 December 1933 determined that the Oppenheimers were forbidden to perform any legal transactions for the various enterprises in the Margraf group. Bolko Freiherr von Richthofen, a close acquaintance of Hermann Göring was appointed administrator of the group. From 1938 on, Von Richthofen acted as liquidator of the companies. In order to liquidate the Margraf group, the stock of the subsidiary companies was sold during at least eight auctions under execution. According to an auction catalogue, the two paintings currently being claimed were auctioned at auction house Paul Graupe in Berlin on 25 and 26 January 1935. According to the applicants, these were forced auctions, then known as Judenauktionen, intended to steal possessions from Jewish owners.
5. After the war, in a letter dated 25 July 1957, Willi Schulz, tax consultant in Berlin, submitted a request to the German authorities demanding compensation on behalf of Jakob and Rosa Oppenheimer’s children among others. In addition, documents from the German Entschädigungsamt (Compensation Office) show that an application for RM 500,000 in damages was submitted on behalf of Firma Galerie Van Diemen & Co. GmbH’s (in liquidation) on 25 July 1956 for losses as a result of the sale of paintings at cut-rate prices. According to these documents, on 13 June 1957 a settlement was reached and damages to the amount of DM 75,000 (the maximum sum) were awarded to art dealership Van Diemen & Co, for losses.
6. The committee’s investigation into the claimed paintings revealed no post-war correspondence between the Netherlands Art Property Foundation and the Oppenheimer heirs and/or the art dealers Van Diemen & Co. (in liquidation). No evidence was found to indicate that the parties involved were aware of the fact that the claimed paintings had been in the custody of the Dutch Government since the war.
7. The present application for restitution regards two paintings, which are currently registered as NK 1771 and NK 2244. The criteria for restitution for each work of art are described below.NK 1771As regards the ownership of the painting, the investigation has shown that this work of art was part of the trading stock of one of the corporations Galerie Van Diemen & Co GmbH/Altkunst Antiquitäten GmbH/Dr. Otto Burchard & Co GmbH, all in liquidation, all of whose trading stocks were sold under the hammer at auction house Paul Graupe on 25 and 26 January 1935. Subsequently, the Committee attempted to determine whether this work of art was part of the old trading stock (acquired by the owner) or the new trading stock (acquired by Von Richthofen). Archive material revealed that the painting was almost certainly already present on the premises of the art dealer Van Diemen & Co in 1928 and therefore can 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 the Recommendations for the Art Trade 4 and 6 issued by the Ekkart Committee. The required degree of probability can be assumed if the applicants can prove it was a case of theft, confiscation or forced sale. In the Committee’s opinion, the applicants have sufficiently shown that the work of art was auctioned at a forced auction set up by the Nazi authorities to implement anti-Jewish measures and the Committee therefore adjudges that it can be considered involuntary loss of possession as a result of circumstances directly related to the Nazi regime.NK 2244As regards the ownership of the painting, the investigation has shown that this work of art was part of the trading stock of one of the three abovementioned corporations, all of whose trading stocks were auctioned at auction house Paul Graupe on 25 and 26 January 1935. Subsequently, the Committee attempted to determine whether the work of art was part of the old trading stock (acquired by the owner) or the new trading stock (acquired by Von Richthofen). The Committee was not able to trace a date of acquisition for this painting. The Committee deems it highly probable that no further art was acquired by the art traders involved between the time when the Oppenheimers fled and the auction and that therefore this work of art should 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 the Recommendations for the Art Trade 4 and 6 issued by the Ekkart Committee. The required degree of probability can be assumed if the applicants can prove it was a case of theft, confiscation or forced sale. In the Committee’s opinion, the applicants have sufficiently shown that the work of art was auctioned at a forced auction set up by the Nazi authorities to implement anti-Jewish measures and the Committee therefore adjudges that it can be considered involuntary loss of possession as a result of circumstances directly related to the Nazi regime.
8. The Committee asked itself whether the proceeds of the auctions under execution went to the Oppenheimers. However, no proof of this was found during the investigation. Given the nature and objective of these auctions and all of the surrounding circumstances, the Committee deems it highly unlikely that the married couple in exile ever saw any of the auction proceeds. The Committee is therefore of the opinion that the proceeds of the auctions under execution can be left out of the discussion.
9. Subsequently, the Committee asked itself whether in case of restitution of the paintings concerned a sum of money should be paid (by the heirs of Rosa en Jakob Oppenheimer) in connection with the damages issued by the German authorities in 1957. The Committee took into consideration that the damages issued do not compare to the actual losses suffered by the Margraf group as a result of the Nazi measures. Therefore, the Committee is of the opinion that these damages can also be left out of the discussion.