The procedure

The reason for the application for restitution was a letter from the Origins Unknown Agency (BHG) of 23 October 2006 to the applicant’s son with a request for further information about Robert May’s reasons for not claiming the painting after the war. The application for restitution concerns not only the painting registered as NK 2558, but also various other objects from Robert May’s former property. In a letter dated 24 April 2007, the Minister informed the applicant that with regard to these other objects, the application for restitution was not specific enough for submission to the Committee. Until 11 February 2008, the applicant was represented by R.O.N. van Holthe tot Echten, a lawyer based in Vreeland. In response to the request for a recommendation concerning NK 2558, the Committee instituted a fact-finding investigation, the results of which were summarised in a draft investigatory report dated 2 June 2008. On 7 July 2008, the draft report was sent to the applicant with a request for additional information, to which she responded by letter on 10 August 2008. On 8 July 2008, the draft investigatory report was sent to the Minister 2008 to provide an opportunity to add information. The report was subsequently adopted on 10 November 2008. On 13 July 2008, the applicant informed the Committee that she was also acting on behalf of her cousins P.A.H. S. and A.J. S. For the facts of the case, the Committee refers to this report. R. Herrmann, former chair of the Committee, acted as advisor in this matter.

Special considerations

1. The applicant requests restitution of the painting Portrait of a man by H.W. Wieringa (NK 2558) from the former property of Robert May. The painting was previously attributed to the 17th-century painter Thomas de Keyser. The applicant says she is sole heir of C.W. S. (who died in 1991), who himself was heir of J.P. (who died in 1986). The latter was sole heir of Robert May (hereafter referred to as: ‘May’). The applicant’s cousins, P.A.H. S. jr. and A.J. S., on whose behalf the applicant is also acting, are heirs of P.A.H. S. sr., who himself was also heir of J.P. Accordingly, the Committee has taken cognisance of several legal inheritance documents.
2. The relevant facts are stated in the investigatory report dated 10 November 2008. The following summary of events will suffice for the present purpose. May was of Jewish extraction and a partner in the banking firm of Lippmann, Rosenthal & Co located at Nieuwe Spiegelstraat in Amsterdam. In this recommendation, the bank is referred to as Liro-Spiegelstraat, in order to distinguish it from the German clearing house for stolen artworks, Lippmann, Rosenthal and Co. at Sarphatistraat in Amsterdam (Liro-Sarphatistraat). In early July 1940, Liro-Spiegelstraat was placed under the administration of a Verwalter, the German banker A. Flesche. It can be concluded from statements made by May and co-proprietor Fuld after the war that in his capacity as Verwalter, Flesche behaved appropriately. Lou de Jong wrote the following about Flesche in his work ‘Het Koninkrijk der Nederlanden in de Tweede Wereldoorlog’ (The Netherlands in the Second World War, part 5, p. 608, The Hague 1974):‘Fuld en May beschermde hij: toen alle Joden gedeporteerd waren, wist hij hen en Fulds moeder van deportatie te vrijwaren. Bovendien zorgde hij er voor dat de twee bankiers een redelijk inkomen behielden, dat hun vermogens intact bleven (die behoorden, zei hij, tot het vermogen van de bank die hij beheerde) en dat de aangemelde Joodse bedrijven waarvan Lippmann-Rosenthal-Nieuwe Spiegelstraat de administratie gevoerd had, geen van alle geliquideerd werden.’[‘He protected Fuld and May: after all Jews had been deported, he managed to protect them and Fuld’s mother against deportation. Moreover, he made sure that the two bankers kept a reasonable income, that their assets remained intact (they were, he said, part of the bank’s capital, which he managed) and that none of the registered Jewish firms whose accounts were kept by Lippmann-Rosenthal-Nieuwe Spiegelstraat were wound up.’]
3. The surviving Liro-Spiegelstraat accounts show that in 1940, May had ran up a substantial debt with the bank, the greater part of which was unsecured. In connection with that, in November 1940, Liro-Spiegelstraat stipulated that a right of pledge be enforced on all May’s movable property, which included his porcelain and silver collection, as well as the painting that is currently being claimed.
4. From May 1942, Regulation 58/1942 prescribed that all Jews were to hand in valuable possessions at Liro-Sarphatistraat. May, on the other hand, was ordered at the end of June 1942 by the then Department of Education, Science and Cultural Protection (a predecessor of today’s Ministry of Culture, Education and Science) to lodge his (pledged) collection of silver and porcelain, as well as the currently claimed painting, with the Rijksmuseum in Amsterdam (RMA) for safekeeping. According to a surviving valuation report, the painting was valued at NLG 20,000.
5. The RMA was informed in late 1942 that Jewish works on loan, including May’s art objects, were to be sold by Liro-Sarphatistraat. The RMA was given the opportunity to purchase any works in which the Germans were not interested at the price at which they had been valued . The RMA let it be known that it wished to purchase the entire May collection. In late January 1943, whilst the negotiations were still in progress, the Dienststelle Mühlmann demanded delivery of the painting NK 2558. It can be concluded from post-war documents that the painting ended up in Hermann Göring’s collection. The investigation did not reveal the exact amount the Dienststelle Mühlmann paid for the painting. A sum of NLG 15,000 is mentioned in various records and May himself refers to a sum of NLG 18,000. It appears from a statement made after the war, cited below, that May received the purchase price.
6. After the war, in a letter dated 7 November 1945, May informed the Netherlands Art Property Foundation (SNK) that Dienststelle Mühlmann had claimed the painting NK 2558 during the war, saying:‘De opbrengst van de verkoop, zijnde F.18.000.-, hetgeen zonder twijfel te laag was, is mij ter hand gesteld, zodat uit dien hoofde ik geen schade te vorderen heb. Echter lijkt het mij, dat dit schilderij een kunsthistorische waarde heeft om de voorgestelde persoon zelf, en voor Nederland behouden zou moeten blijven, weswege ik U bij dezen hierop attent maak.’[‘The income from the sale, to wit F. 18,000, which was doubtless too low, was consigned to me, so that on that account, I cannot claim damages. However, I do believe that this painting is of art-historical value because of the person it features, and should therefore be preserved for the Netherlands, which is the reason I am drawing your attention to it.’]
7. he painting was recovered in 1946. Since it was damaged, the SNK valued it at between NLG 5,000 and 6,000. In 1949, the SNK offered to sell back the painting to May for the sum of NLG 15,000 (the assumed selling price in 1943) plus administration costs. In response, May wrote in a letter on 10 October 1949: ‘In antwoord op Uw brief van 5 October j.l. (…), deel ik U mede, dat het niet in mijn intentie is, om teruggave van de “Thomas de Keyser” te verzoeken.’[‘In answer to your letter of 5 October (…), I am informing you that I have no intention of applying for the restitution of the “Thomas de Keyser”’].Based on this, the SNK made a note in its records next to the painting that the former owner was not claiming the work. No evidence has been revealed that May later reneged on his former statement.
8. In the light of the above, and with due regard for relevant national policy concerning the restitution of items of cultural value, the Committee must first of all investigate whether the applicant can bring a claim. The principle of Dutch restitution policy is that the post-war restoration of rights should not be comprehensively repeated unless new insights are gained. This means that in principle, cases that have been conclusively settled are not reopened. Although the scope of the term ‘settled case’ has been limited as a result of the interpretation given it in the first recommendation on private art property by the Ekkart Committee (April 2001), the government decided that a case should in any event be considered conclusively settled if ‘the claimant has explicitly withdrawn the claim for restitution’ (Government response of 29 June 2001, TK 2000-2001, 25 839, no. 26)
9. In his letter of 7 November 1945 to the SNK, May wrote that he had at the time received the purchase price, that he claimed no damages on that account and, in his letter of 10 October 1949, that it was not his intention to apply for the restitution of the ‘Thomas de Keyser’. It must be concluded, therefore, that May explicitly refrained from applying for restitution of the painting.
10. The Committee is of the opinion that no new facts have come to light that would necessitate a reopening of the case. It considers the following of significance in this respect. May received the purchase price at the time and indicated that he would not claim damages. Although May received less than the sum at which the work was valued during the war, there is no question of substantial loss of capital. Nor did May backtrack on his decision in later years. Moreover, there is no reason to assume that the post-war procedure was negligently performed.