Recommendation

In a letter dated 17 October 2008, the Minister for Education, Culture and Science (hereafter referred to as: ‘the Minister’) requested the Restitutions Committee (hereafter referred to as: ‘the Committee’) to issue a recommendation regarding the application of 30 May 2007 by the ‘Estate of Dr. Max Stern’ (hereafter referred to as: ‘the applicant’) for the restitution of the painting Allegory of Earth and Water by Jan Brueghel I. The claimed painting was returned to the Netherlands after the Second World War and is now part of the Netherlands Art Property Collection (NK collection) under inventory number NK 2303. The work is currently on loan to the Noordbrabants Museum in Den Bosch.

Considerations

1. The applicant is requesting the restitution of the painting Allegory of Earth and Water by Jan Brueghel I (NK 2303), claiming to be ‘Dr. Stern’s legal successor in interest’. The ‘Dr. Stern’ in question is German-born Max Stern (1904-1987). The Committee has taken cognisance of documentation pertaining to his estate, including his will of 13 December 1985 and a codicil of 7 August 1986, which shows that the estate of Max Stern is administered by a foundation aimed at providing support to three university institutions in Canada and Israel. The Committee also has a document that shows that the HCPO is authorised to represent the ‘executors of Dr. Stern’s Estate’ in the application for restitution. On the basis of these documents, the Committee sees no reason to doubt the status of the applicant as the rightful claimant with regard to the estate of Max Stern.
2. The relevant facts are described in the investigatory report of 3 May 2010. The following is a summary. According to the applicant, the Jewish art dealer Max Stern (hereafter referred to as: ‘Stern’) was the owner of Galerie Julius Stern in Düsseldorf (hereafter referred to as: ‘(the art dealership of) Stern’). In 1935, during the Nazi regime, he was prohibited from practising his profession and instructed to discontinue his company. He subsequently fled Germany in December 1937. The applicant claims that Stern sold the current NK 2303 as a direct consequence of Nazi persecution in Germany in the period between September 1936 and November 1937. Correspondence with the Committee, however, also shows that the applicant has considered the fact that. alternatively, the work may have played a role in Stern’s mother’s flight from Germany in September 1938 and that it may have been sold in that period. After fleeing Germany, Stern established another art dealership, first in England and then, in 1940, in Canada. Stern married Iris Ester Westerberg in 1946, and as far as in known, the couple had no children. Stern’s wife died in 1978 and Stern in 1987.
3. As far as is known, Stern did not submit an application for the restitution of lost art possessions with the Dutch authorities for the restoration of rights after the war. In the research conducted by the Committee, nothing was found to indicate that Stern was aware that the currently claimed painting had been returned to the Netherlands after the war. On the basis of this information, the Committee assumes that there has not been a previous application for restitution of the current NK 2303 from the former property of (the art dealership of) Stern. The Committee therefore deems the application admissible.
4. Who owned the current NK 2303 before the Nazis took power in 1933 is unknown. This is also true for the person from whom Stern acquired the painting. Research data, however, does indicate that, in any case, the currently claimed work was in Stern’s possession in or around September 1936. This can be inferred from a photo card of the current NK 2303 in the Netherlands Institute for Art History (RKD) with the annotation ‘Gal. Stern, Dusseldorp (1936)’. The RKD archives also contain a letter, dated 3 September 1936, sent by ‘Galerie Stern’ in Düsseldorf to Dr. H. Schneider, the director of what was then known as the Netherlands Institute for Art History and Iconographical Documentation. The letter mentions several new acquisitions including a ‘Bild von Jan Brueghel d. Ae. und Hendrik v. Balen, Wasser und Erde’ [Painting by Jan Brueghel the Elder and Hendrik van Balen, Water and Earth]. The letter also states that ‘Herr Geheimrat Friedländer’ [privy councillor Friedländer] _ an art historian who often assessed art for art dealers _ had ‘soeben begutachtet’ [recently appraised] the painting. The applicant also sent a copy of a photograph of the currently claimed painting from Stern’s archive in the National Gallery of Canada. The rear of the photo includes the annotation: ‘Holz. H. 60,5, B. 89 cm. / Gutachten Geheimrat Friedländer’ [Wood. H. 60.5, W. 89 cm / appraised by privy councillor Friendländer]. These dimensions are almost identical to those of the current NK 2303 (61.0 x 89.0 cm). In addition, the applicant also sent a ‘customer card’, which came from archival material concerning Stern in the National Gallery in Canada, which, according to the applicant, suggests that Stern offered a painting by Jan Brueghel and/or H.O. Balen for sale to a potential customer on 4 September 1936. The card bears the inscription ‘Nicolaus, Dr. Heinr., Günzach […]’ and includes the lines ‘4/9.36. angeb. Kreuzigung (Meister v. Frankf.), Jan Brueghel, H.O. Balen. / 16/9.36 geantw. kaüft vorlaüfig nichts mehr’ [4/9.36 off. crucifixion (master of Frankf.), Jan Brueghel, H.O. Balen. answered on 16/9.36. will not be buying anything for the time being]. From the fact that a purchase price was not mentioned after the work by Jan Brueghel and/or H.O. Balen, which was customary for Stern to do when he sold a painting, the applicant has concluded that Nicolaus did not buy ‘the Brueghel/Balen painting’. On the basis of photos that it also sent to the applicant, the Committee has conducted research into, among other things, stamps and numbers on the rear of the current NK 2303. This has failed to uncover any details relevant to this case regarding the provenance of this painting before or during the war. Based on this information, the Committee deems it highly likely that the current NK 2303 was owned by Stern in 1936.
5. Anti-Jewish measures in Germany led to Stern being prohibited from practising his profession in August 1935. Due to the deteriorating situation facing the Jews, Stern’s sister Hedwig left Germany in 1936 to open a new art dealership in England. There is evidence that, when she emigrated, she took an unknown number of Old Masters with her. The applicant declares that, on the basis of archival research, there is nothing to indicate that the current NK 2303 was exported or taken to England by either Stern or his sister. Stern was believed to have taken several of his paintings to London and Amsterdam. In March 1937, he sold the two buildings in Düsseldorf that housed the art dealership and the Stern family home, and in September 1937, he received definitive notice from the German authorities that his businesses had to be wound up by 15 December 1937. Stern had what was left of his trading stock of more than 200 paintings auctioned at Math. Lempertz auction house in Cologne in November 1937. According to the applicant, this was ‘a so-called “Jewish auction”, in which his paintings [were, RC] sold for a fraction of their fair market value’. The RKD contains an annotated catalogue of the auction by the Lempertz company in November 1937. The current NK 2303 is not mentioned in this catalogue. According to the applicant, those works of art that remained unsold at the auction were returned to Stern’s art dealership and put up for sale until the dealership was wound up. However, a copy of this final sales catalogue of Stern in Germany, which was sent by the applicant, does not include NK 2303. On 23 December 1937, Stern left for England, leaving behind paintings at Lempertz auction house and at Josef Roggendorf, a storage and shipping company in Cologne. Most of these paintings were reportedly later confiscated and, according to the applicant, ‘sold by the Gestapo at Hufschmied, a second-rate auctioneer of household goods’. According to the applicant, Stern was not permitted to take any works of art with him when he emigrated and what was left of his trading stock and private collection remained in Germany. What happened to these works of art is unclear. The applicant has stated that some paintings were sold in 1938 in order to obtain an exit visa for Stern’s mother, Selma, who had remained behind in Germany. The documents provided by the applicant support this theory, but do not offer a comprehensive overview of the paintings sold and the current NK 2303 is not mentioned. The location of the currently claimed painting remained a mystery until in or around 1943. The Committee uncovered details that indicate that the work of art in question was in the possession of ‘Mensing & Zn., Amsterdam’ and that it was sold in 1943 or 1944 to the Kunsthalle Hamburg by the art dealer J. Dik jr. This indicates that Stern or his family lost possession of the current NK 2303 sometime between 1936 and 1943 or 1944.
6. Based on the results of the investigation, the Committee then assessed whether there were any indications to suggest with a high degree of probability that possession of the painting was lost involuntarily as referred to in the Ekkart Committee’s fourth and sixth recommendations of 2003 regarding the trading of art. If, as in Stern’s case, the post-war Dutch authorities (the SNK) do not have any declaration forms on which involuntary loss of possession is indicated, the probability that the loss of possession was involuntary can also be assumed if the applicant can demonstrate that there is question of theft, confiscation or coercion. The fourth recommendation states that in making this judgment, threatening general circumstances with regard to Jewish art dealers must be taken into account. According to the consideration that led to this recommendation, if hard evidence is lacking, a measure of flexibility should be exercised and indications that suggest that loss of possession was probably involuntary should be employed generously.
7. The Committee considers the following. The way in which Stern lost possession of the claimed painting is difficult to determine with any certainty; this also goes for the day on which or the period in which this loss occurred, other than that mentioned in the conclusion to the fifth consideration above. For this reason, the Committee will also subject the proposed and other realistic possibilities concerning this loss to an investigation, making a distinction between the relevant periods in which Stern could have lost possession of the painting, namely:
   A. from 4 September 1936 (the day on which Stern, according to the customer card, definitely had possession of the painting) until 23 December 1937 (the day on which Stern left Germany) and
   B. after 23 December 1937 until 1943 or 1944, when the painting was acquired by the Kunsthalle Hamburg, the period in which Stern resided first in England and then in Canada.
8. With regard to the period mentioned under A, in which Stern resided in Germany, the Committee has taken the following circumstances into account. Based on the Reichskulturkammergesetz of 1 November 1933, Stern was given four weeks to wind up his activities as an art dealer as of 29 August 1935. His sister Hedwig, who also worked in the dealership, moved to England in 1936 to open a new art dealership there. In March 1937, Stern sold the two buildings in Düsseldorf that housed the art dealership and the Stern family home. After an attempt to have his business taken over by a third party, which bought him some time before executing the order of 29 August 1935, he received definitive notice that his art dealership had to be wound up on 13 September 1937. This date was later set at 15 December 1937 at the latest. In November 1937, Stern had his remaining trading stock of more than 200 paintings auctioned _ in the ‘Jewish auction’ mentioned above under consideration 5 _ which only fetched a fraction of the market value of the paintings. What remained of the trading stock was put up for sale in Stern’s art dealership until it was wound up. On 23 December 1937, Stern fled to England. To that end, he was forced _ in addition to the costs of setting up such an establishment overseas under the given circumstances _ to pay the statutory ‘Reichsfluchtsteuer’, a substantial escape tax imposed by the Third Reich.
9. Although Stern was ordered to cease his professional activities in August 1935, it must be assumed that, given the fact that the execution of this order was postponed, the claimed work of art was part of his trading stock during the period in which he resided in Germany. This follows from the following interrelated circumstances:
   • the listing of the work on a customer card (cons. 4),
   • the existence of the art dealership until December 1937 as indicated in the 1937 address book for the city of Düsseldorf,
   • the letter from Stern to Dr. Schneider of 3 September 1936 on ‘Galerie Stern’ letterhead (cons. 4), and
   • the presence of a photo of the painting in the collection of photos of the paintings in ‘Galerie Stern’ (cons. 4).While this does not explain why the painting was not put up for sale at the ‘Jewish auction’, it does not outweigh the other indications either.
10. The Committee is of the opinion that the circumstances in which Stern found himself in late 1936 and throughout 1937, as summarised in consideration 8 above, were so menacing and dangerous that had he succeeded in selling the claimed painting during this period, it should be considered to have been under duress. In addition, the Committee also attributes importance to the circumstances that forbade Stern to take his possessions with him from Nazi Germany and that any such sale would have been intended to raise funds for his flight.
11. The following circumstances are key with regard to the period mentioned under consideration 7.B above in which Stern resided first in England and then in Canada. Stern no longer had a trading and residential address in Germany. The possessions he left behind upon fleeing to England were confiscated by the German authorities and sold by the Gestapo at an auction unsuitable for the items confiscated. On 26 January 1938, the German authorities gave the order to block Stern’s assets in Germany, in particular to freeze his bank account. On 12 July 1938, he was stripped of his German citizenship, which also signified the confiscation of his entire estate. In summary: Stern was forbidden to trade in Germany, had no place of business, no business capital or other assets and no practical options to contact buyers or sellers. It must also be assumed that Stern could not take the claimed painting to England. During the occupation, the current NK 2303 was housed at art dealerships Mensing or Dik in the Nazi-occupied Netherlands (cons. 5) and later showed up in the Kunsthalle in Hamburg. It is difficult to imagine why and how the painting should have ended up in Nazi territory from England.
12. The Committee is of the opinion that the facts and circumstances established under consideration 11 above lead to the conclusion that Stern lost possession of the painting involuntarily, even if this occurred between December 1937 and 1943/1944. As a result, only two possibilities need, in fairness, to be taken into consideration. The first is that the claimed painting was sold to help Stern’s mother flee to England, as put forward by the applicant, and the second is that Stern lost possession of the claimed painting without his consent. The Committee will assess both possibilities below.
13. As the applicant has stated, Stern’s mother, Mrs Selma Stern, who was also Jewish, was able to leave Germany on an exit visa in 1938 and joined her son and daughter in England. A ‘Vermögensaufstelling’ [financial statement] drawn up and signed by Selma Stern on 30 June 1938, evidently with a view to her departure, indicates that she had RM 14,023 but was still short RM 25,000. With regard to this situation, she stated: ‘Den Fehlbetrag an RM 25.000.–werde ik aus dem Verkauf von Bildern, Plastiken etc. beschaffen’ [I will secure the remaining amount of RM 25,000 from the sale of paintings, sculptures, etc.].
    Another key factor is a letter Stern sent to his former lawyer Dr. Liebermann on 19 June 1953, in which he wrote: ‘You may recall that my Mother was left in Germany […^[1]]. I urged in 1938, shortly before Munich, you to let her come to England. You may remember also that we asked Dr. Peters I think it was, in Cologne, to assist you as the Nazis at that time claimed my whole bank account as taxes. You may remember that Dr. Peters told them that it was more or less blackmail but they answered him: ‘We know that but if you do not pay, Mrs. Stern will not get a passport Now.’’
    By order of 12 September 1938, Dr. Liebermann was granted permission to transfer RM 10,200 to Stern, which Stern was only able to access with the authorisation of the appropriate foreign exchange office. In the Committee’s opinion, this shows that if the painting was sold to fund Selma Stern’s flight to England, it was done so under duress.
    _{[1] This is barely legible on the copy provided to the Committee. It probably says: ‘in 1937’.} 
14. The other possibility that remains is that Stern lost possession of the claimed painting without his consent during the period in which he resided in England or Canada. By definition, this means that the loss was involuntary.
15. The Committee is, therefore, of the opinion that the loss of possession was involuntary as a result of circumstances directly related to the Nazi regime, and concludes that the application for restitution should be granted.
16. In addition, the Committee is also of the opinion that in the event of any sale, the probable sales proceeds must have been used to allow Stern and his family to flee abroad, or that costs must have been incurred in connection with this flight at the very least, due in part to the fact that Stern had to pay excessive taxes for his flight and that, after fleeing, his bank balances were frozen and/or confiscated. The Committee therefore deems it unlikely that (the art dealership of) Stern had free disposal of the sales proceeds, if in fact any sale occurred. The Committee will therefore recommend that the restitution of the current NK 2303 must not be subject to a payment obligation.