Painting with Houses by Wassily Kandinsky
Binding opinion regarding the dispute about restitution of the painting Painting with Houses by Wassily Kandinsky, currently in the possession of Amsterdam City Council
Binding opinion regarding the dispute between
AA, of XX, XX
BB, of XX, XX
CC, of XX
(hereinafter referred to as the Applicants),
all represented by J. Palmer of Mondex Corporation, Toronto, Canada and assisted by G.J.T.M. van den Bergh, lawyer of Amsterdam
Amsterdam City Council (hereinafter referred to as the City Council),
represented by P.L. Loeb, lawyer of Amsterdam.
issued by the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague (the Restitutions Committee), hereinafter referred to as the Committee.
1. The Dispute
The City Council has owned a painting, dating from 1909, titled Painting with Houses (hereinafter referred to as the work) by Wassily Kandinsky since 1940. The work is held by the Stedelijk Museum, Amsterdam (hereinafter referred to as the Museum). The Applicants assert that until 1937 the work belonged to Hedwig Lewenstein-Weijermann. Afterwards it was obtained through hereditary succession by her two children Robert Lewenstein and Wilhelmine Lewenstein. According to the Applicants they then lost possession of the work in 1940 involuntarily as a result of circumstances directly related to the Nazi regime. The Applicants have asked the City Council to restitute the work. The City Council and the Applicants (hereinafter referred to jointly as the parties) submitted the dispute to the Restitutions Committee for investigation and a binding opinion.
2. The Procedure
In a letter dated 16 December 2013 the Minister of Education, Culture and Science requested the Committee to issue an opinion to the parties under the terms of article 2 paragraph 2 of the Decree Establishing the Restitutions Committee. The Minister notified the parties of her request to the Committee to issue an opinion. Pragmatic reasons prompted the intervention of the Minister. The State of the Netherlands has not become a party in the procedure at any time.
The Applicants for restitution in the first instance were AA, BB and their mother Shirley Winifred Ozgen-Goodman. The last of these died in 2014. The Applicants’ representative notified the Committee in a letter dated 1 June 2015 that he also represented CC. Upon request the City Council stated it had no objection to CC being considered as one of the Applicants.
The parties declared in writing that they would submit to the Regulations for the Binding Opinion Procedure in accordance with article 2, second paragraph, and article 4, second paragraph, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (approved by the Committee on 3 December 2007, most recently amended on 19 September 2011, hereinafter referred to as the Regulations) and would accept the Committee’s opinion as binding. The Committee satisfied itself of the identity of the parties.
The Committee took note of all the documents submitted by the parties. It forwarded to the other party copies of all documents. The Committee also conducted additional independent research. As part of its investigation the Committee put questions in writing to the parties and requested information. The results of the investigation are recorded in a draft investigation report dated 19 December 2014. The parties responded to it.
The Committee conducted additional research as a result of these responses and a second draft investigation report was adopted on 24 April 2017. The Applicants responded to it in a letter of 6 December 2017, and the City Council in a letter of 28 December 2017. The Applicants sent a further response in a letter dated 16 January 2018.
The Committee submitted written questions to the parties on 14 March 2018. The City Council responded to them in a letter dated 27 March 2018. The Applicants responded in a letter dated 28 March 2018. In a letter dated 12 April 2018 the City Council reacted to the Applicants’ letter of 28 March 2018.
The Committee put further questions to the Applicants in a letter of 1 June 2018, to which they responded in a letter of 5 June 2018.
The Committee adopted the investigation report and the opinion on 22 October 2018.
3. The Facts
The Committee based its considerations on the following facts.
Before the war
3.1 Emanuel Albert Lewenstein (1870-1930, hereinafter also referred to as Emanuel Lewenstein) was director of Naaimachinehandel Lewenstein (hereinafter also referred to as NV Lewenstein) in Amsterdam, which was founded by his father. In 1900 he married Hedwig Weijermann (1875-1937) in community of property. Besides a daughter who died at an early age, the Lewensteins had two children: Robert Gotschalk (also called Bob; 1905-1974) and Wilhelmine Helena (also called Willy; 1912-2007). Emanuel Lewenstein collected art, with a particular focus on works by modern artists. There is no complete overview of his collection, but in any event it included two paintings by Wassily Kandinsky, i.e. the currently claimed Painting with Houses and The Colourful Life.
After Emanuel Lewenstein’s death in 1930, his wife Hedwig and daughter Wilhelmine went to live in a rented home at 13h Bachplein in Amsterdam. In May 1934 Wilhelmine Lewenstein got married out of community of property to the Portuguese José Augusto Rodrigues da Silva Jr, after which they settled in the vicinity of Lisbon. On 11 October 1933 Robert, who had succeeded his father as director of NV Lewenstein, married a second time, in community of property, the German Irma Edith Ruth Klein (1902-1983). This marriage remained childless, as had Robert’s first one. After Hedwig had a stroke, her daughter and son-in-law returned to Amsterdam at the beginning of 1937. Hedwig Weijermann died on 25 May 1937. Robert and Wilhelmine were her legal heirs. The following is stated about Hedwig’s art collection in a will of hers dated 1 February 1937.
‘dat de op haar overlijden in haar bezit zijnde schilderijen en etsen na haar overlijden door een door hare kinderen in onderling overleg aan te wijzen deskundige in twee, zooveel mogelijk gelijkwaardige, kavelingen moeten worden verdeeld, waarna door loting zal moeten worden uitgemaakt welke kavelingen aan ieder harer kinderen zal worden toegewezen’. [‘The paintings and etchings in her possession at the time of her death must be divided by an expert to be designated by her children in consultation into two portions that are as much as possible of equal value, after which lots will have to be drawn to ascertain which portions will be assigned to each of her children.’]
There are no indications that the said drawing of lots and division of the collection actually took place. On 24 January 1938 the deed of division of Hedwig’s estate was executed before the notary Samuel Teixeira de Mattos. Two days later Wilhelmine Lewenstein and her husband emigrated to Mozambique.
3.2 Robert Lewenstein and Irma Klein moved to 13h Bachplein in Amsterdam two months after the death of his mother Hedwig. Shortly afterwards Irma’s mother, Meta Hayn, moved in with them. The marriage between Robert Lewenstein and Irma Klein did not last. Robert entered into a relationship with the American Shirley Goodman (1913-2014). Robert left his wife Irma Klein in around mid-August 1938. Op 13 December 1938 Isaac Coopman requested permission from the Court of Amsterdam on behalf of Irma Klein to submit a claim for a legal separation against Robert Lewenstein. A number of lawsuits were to follow. A legal separation was granted by the court on 27 June 1940, and their divorce followed on 20 March 1944. It was not until after the war, on 10 June 1947, that a notarial deed of division of the joint matrimonial property was drawn up.
On 6 April 1939 Robert Lewenstein requested and was granted permission to resign as director of NV Lewenstein. He did, however, continue to receive an annual payment of NLG 3,500. Robert appointed the Jewish Benjamin Levi as administrator of his private assets and Alfred Levy, who was also Jewish, as his lawyer and local counsel. Afterwards he left for the South of France in April 1939 with Shirley Goodman. Irma Klein remained living with her mother at 13h Bachplein. The term of the rental agreement, which was in Robert Lewenstein’s name, ended on 1 May 1940. On 15 May 1940, Irma Klein and her mother were registered as living at 9a¹ Beethovenstraat in Amsterdam. There are indications that Irma then put part of her household effects into storage.
3.3 As stated above, the divorce between Robert Lewenstein and Irma Klein involved a number of proceedings in court. Some of these proceedings took place while Robert was abroad. These proceedings related primarily to the amount of maintenance that Robert owed Irma. The documentation associated with these proceedings provides an understanding of Robert’s and Irma’s financial positions before and during the war. Where necessary reference is made to this documentation in the following considerations.
3.4 Robert Lewenstein was Jewish. When the German invasion of the Netherlands took place on 10 May 1940 he was in the South of France with Shirley Goodman. After the Vichy regime came to power in France, Robert and Shirley Goodman fled in June 1940 via Spain to the United States, where they went to live in New York. During the war they lived in difficult circumstances because NV Lewenstein was no longer able to make Robert’s annual payments and he was not permitted to work.
3.5 Irma Klein was Jewish, as were her two brothers, Günther and Hans Klein, and her mother. When Germany invaded she was still living in Amsterdam with her mother. Her brothers also lived in Amsterdam. Hans Klein left Germany for the Netherlands in March 1933 after he had been dismissed as editor of a Berlin newspaper on political grounds. He became stateless after his departure from Germany. Hans Klein went into hiding immediately after the German invasion in May 1940 because he was registered with the Aliens Police as a refugee from Germany and as an editor of a pro-democracy newspaper. Hans Klein was able to flee to Switzerland in September 1942. Günther Klein was also affected by the anti-Jewish measures. In 1941 a German administrator was appointed to run his garment business. Günther Klein fled to Switzerland in 1942. His wife Eva Schuit was arrested while fleeing and was murdered in November 1942 in Auschwitz. Their two children survived the war in Belgium.
Irma Klein remained in Amsterdam throughout the German occupation. In a statement included in a report by a neurologist in 1982 it was reported that initially Irma Klein ‘als niet zó kwetsbaar (beschouwde), omdat zij geen typische Jodennaam had, niet een z.g. eerstegraads Jodin was en voor het overige een heel beroemde grote toneelspeelster was. Nadien kwam het toch wel tot moeilijkheden’ [‘did not consider herself to be so vulnerable because she did not have a typical Jewish name, was not a Jewess of the first degree, and was furthermore a very well-known major actress. Later there were nevertheless difficulties’]. It emerges from post-war documents that she wore a Star of David from 1942. A request made in 1942 to have her registration as a descendant of four Jewish grandparents changed because she was half-Aryan was rejected. Irma Klein was rounded up and detained by the Germans a number of times. In 1942 she attempted to escape from the Gestapo by jumping out of a window, which resulted in concussion and memory loss. Irma Klein was able to avoid deportation. According to her own statement this was because she was exempted from deportation.
The aforementioned 1982 report stated that Irma Klein continued to live at 9a¹ Beethovenstraat during the occupation. Irma Klein’s mother was registered as living at 123h Apollolaan from 7 June 1941. She died in Amsterdam on 19 January 1942. According to a post-war statement by Irma Klein she had a heart attack.
Sale at Frederik Muller
3.6 As referred to above, Emanuel Lewenstein had a substantial art collection, including the currently claimed work by Kandinsky. He probably acquired the work in 1923 for NLG 500. In consideration 6.3 the Committee addresses the questions of who came to possess the work after Hedwig Lewenstein’s death and what happed to the work thereafter.
It is known that the work was put up for auction in a sale held on 8 and 9 October 1940 at the Frederik Muller auction house in Amsterdam. According to the accompanying catalogue it was a sale of ‘MODERNE SCHILDERIJEN AQUARELLEN, TEEKENINGEN, ETC. AFKOMSTIG VAN DE COLLECTIE VAN WIJLEN J. GOUDSTIKKER, AMSTERDAM’ en van ‘DIVERSE VERZAMELINGEN EN NALATENSCHAPPEN’ [‘MODERN PAINTINGS, WATERCOLOURS, DRAWINGS, ETC. FROM THE COLLECTION OF THE LATE J. GOUDSTIKKER, AMSTERDAM’ and from ‘VARIOUS COLLECTIONS AND ESTATES’]. According to the sale catalogue the first part of the sale, concerning the Goudstikker Collection, took place on 8 October 1940 and covered lot numbers 1 to 150. The second part, concerning various collections and estates, followed on 9 October 1940 and covered lot numbers 151 to 277. The catalogue gave no details about the provenance of some of the works from ‘DIVERSE VERZAMELINGEN EN NALATENSCHAPPEN’ [‘VARIOUS COLLECTIONS AND ESTATES’]. There was, however, an additional designation above lot numbers 195 to 277, namely ‘MODERNE EN OUDE SCHILDERIJEN REMBRANDT ETSEN, TEEKENINGEN, PRENTEN, BOEKEN, ENZ. NALATENSCHAP, L………, AMSTERDAM’ [‘MODERN AND OLD PAINTINGS, REMBRANDT ETCHINGS, DRAWINGS, PRINTS, BOOKS ETC. ESTATE, L………, AMSTERDAM’]. In an annotated copy of the catalogue from the Rijksmuseum in Amsterdam the designation ‘NALATENSCHAP, L………’ [‘ESTATE, L………’] was filled in by hand as ‘NALATENSCHAP, Leuwenstein’ [‘ESTATE, Leuwenstein’].
The listing of the currently claimed work by Kandinsky in the sale catalogue states, ‘O. Kandinsky / […] / 205 / Compositie. / Geteekend en gedateerd 1909. / Doek. - Hoog 97, breed 132 cent.’ [‘O. Kandinsky / … / 205 / Composition. / Signed and dated 1909. / Canvas. - Height 97, width 132 centimetres.’] After it there is a handwritten note: ‘160 / Röell’. Jonkheer D.C. Röell was director of the Museum at the time.
It can be concluded from documentation handed over by the Museum that the currently claimed work was purchased at the said sale for NLG 160. Including 10% buyer’s premium, the Museum acquired it for a cost of NLG 176. It is stated in a letter of 2 November 1940 from the Stedelijk Museum Acquisitions Committee to the Finance Department of Amsterdam City Council that this committee had decided to ‘aankoop van een schilderij “Landschap met huizen” door W. Kandinsky, voor een bedrag van f. 176.-, op de veiling van Frederik Muller. d.d. 9 October 1940’ [‘purchase a painting “Landscape with Houses” by W. Kandinsky, for a sum of NLG 176, at the Frederik Muller sale on 9 October 1940’].
The work has been in the Museum since 1940.
3.7 A number of artworks from the ‘NALATENSCHAP, L………’ [‘ESTATE, L………’] other than the currently claimed painting were up for auction at the sale at Frederik Muller. One of them was another work by Kandinsky, namely The Colourful Life. This painting was loaned to the Museum by the Lewenstein family in 1933 but it was not purchased by the Museum at the sale.
Some documentation concerning this work was found during the investigation. A document dated 8 December 1938 and signed by Röell, for example, states that he had taken The Colourful Life into safekeeping from ‘mevr. Leeuwenstein, Bachplein 13, Amsterdam’ [‘Mrs Leeuwenstein, 13 Bachplein, Amsterdam’]. Under the typescript in this document there is handwriting that includes the note, ‘afgegeven. Querido’s Kunsthandel / Waalstr 104. / 5-9-40. …’ [‘Delivered to Querido’s Kunsthandel / 104 Waalstr. / 5-9-40.…’]. A Querido’s art gallery business card was found with the following in handwriting on the back. ‘5/9 ‘40 / Gelieve brenger mede te geven / 1 Schilderij. / “Das Bunte Leben” / v. Kandinsky / Hoogachtend / A.M. Querido’ [5/9 ‘40 / Please give to the bearer / 1 Painting. / “The Colourful Life” / by Kandinsky / Yours sincerely / A.M. Querido’].
After the war
3.8 Wilhelmine Lewenstein, Robert Lewenstein and Irma Klein survived the war. Wilhelmine was divorced from her husband Da Silva in December 1940 but continued to live and work in Mozambique. Towards the end of the war Wilhelmine Lewenstein left Mozambique for Portugal, where in 1946 she married Eric Castillo Serra, an officer in the Portuguese army she had met in Mozambique. Wilhelmine remained childless and died on 18 October 2007 in Portugal.
3.9 The marriage between Robert Lewenstein and Irma Klein was dissolved during the war by a divorce decree of 20 March 1944 issued by the court. Some further legal proceedings took place after the war in connection with the finalization of the divorce and division of the community property. This division was finally recorded in a notarial deed 10 June 1947.
Meanwhile Robert Lewenstein had married Shirley Goodman on 20 August 1945 in New York. It was his third marriage. The couple settled in the Netherlands at the beginning of 1946 but left for the United States again in 1950. Robert Lewenstein and Shirley Goodman had two children: AA and BB (Applicants). Robert Lewenstein died on 26 January 1974. Shirley Goodman died in 2014.
3.10 After the war Irma Klein continued to live at 9a¹ Beethovenstraat in Amsterdam. She did not remarry after her divorce from Robert Lewenstein. It is also known from documentation found that she was placed under guardianship for an extended period. According to a statement by applicant CC, after the war Irma Klein took care of a survivor of the persecution of the Jews who had returned to the Netherlands as an orphan, Gijsbert (Bob) Stoker. The applicant CC was the partner of this Bob Stoker, who she refers to as a foster child of Irma Klein. According to CC they jointly looked after Irma Klein when her health declined. Irma Klein died in 1983 in Amsterdam.
3.11 After the war Robert and Wilhelmine Lewenstein conducted restoration of rights legal proceedings. On 4 October 1947, for instance, they had ownership of the shares in NV Lewenstein restored to them by a decision of the Securities Registration Division of the Council for the Restoration of Rights. During the nineteen-fifties Irma Klein submitted claims to the German authorities for compensation for ‘Schadens an Freiheit’ and ‘Schadens am Körper und Gesundheit’. No indications were found that the Lewenstein or Klein families tried via the Dutch or German recovery and restoration of rights authorities to get back any confiscated or involuntarily sold art from the Lewenstein Collection.
It is known, though, that Irma Klein had further contact with the Museum after the war. In 1954 Irma Klein loaned a number of works by the artist Nanninga to the Museum for an exhibition. According to a handwritten list in the Museum’s archives, Irma Klein wanted to sell a number of the exhibited works, but the Museum intended to tell her ‘dat we momenteel niet kopen’ [‘that we are not buying at the moment’]. On 17 June 1954 ‘Irma Klein-Lewenstein’ signed a receipt for the return of three loaned paintings. Betty Lewenstein, the aunt of Robert and Wilhelmine Lewenstein, also loaned work by Nanninga to the Museum for the exhibition concerned.
3.12 The name of Betty Lewenstein also occurs in documentation about the other Kandinsky in Lewenstein’s collection, The Colourful Life. In a letter of 22 March 1947 the artist César Domela asked the then museum director Willem Sandberg for the address of, among others, ‘Lewenstein-Weijerman’. Sandberg replied on 1 May 1947 that, ‘“Das bunte Leben”, wat vroeger van Lewenstein-Wegeman was, is nu in bezit van S.B.S. Slijper, Dorpstraat 14, Blaricum’ [‘“The Colourful Life”, which formerly belonged to Lewenstein-Wegeman, is now in the possession of S.B.S. Slijper, 14 Dorpstraat, Blaricum’].
A year later the aforementioned Betty Lewenstein wrote the following to Sandberg in a letter dated 31 May 1948.
‘Uit naam van mijn in Portugal wonende nicht, Mevr. W. de Castilho Serra-Lewenstein, kom ik u het volgende vragen. Er is n.m. een Kandinsky door wijlen mijn broer, de heer E.A. Lewenstein aan Uw museum in bruikleen afgestaan. Dit schilderij behoort nu de erven Lewenstein en bovengenoemde nicht is een van de 2 erven. / De lezing, die haar gegeven werd over hetgeen er met dit schilderij gebeurd is, schijnt haar geheel onaannemelijk toe. / Daarom zoudt U haar ten zeerste verplichten, mij hieromtrent even te willen inlichten.’ [‘On behalf of my niece, Mrs W. de Castilho Serra-Lewenstein, who lives in Portugal, I would like to ask you the following favour. There is a Kandinsky that my late brother, Mr E.A. Lewenstein, loaned to your museum. This painting is now the property of Lewenstein’s heirs and my niece is one of the 2 heirs. / The version that she was given about what happened to this painting seems to her to be completely improbable. / You would therefore do her a great favour by providing me with information in this regard.’].
There is the following handwritten note at the bottom of the letter from Betty Lewenstein. ‘bewaring / terug aan Kunsthandel Querido / Waalstraat 104 / 5-9-40 / “Das bunte Leben”/ op order van Mevr. Lewenstein-Weijerm[an]n / Bachplein 13’ [‘Safekeeping / back to Querido’s art gallery / 104 Waalstraat / 5-9-40 / “The Colourful Life”/ on the instructions of Mrs Lewenstein-Weijerm[an]n / 13’ Bachplein]. On 2 June 1948 Hans Jaffé, the acting museum director, sent Betty Lewenstein the following letter in reply.
'Naar aanleiding van Uw schrijven van 31 Mei betreffende het schilderij van Kandinsky “Das bunte Leben”, dat wij voor de oorlog enige jaren in bewaring hadden, deel ik U mede, dat dit werk op verzoek van de eigenaresse, Mevrouw Lewenstein-Weyermann, op 5 September 1940 door ons werd afgeleverd aan de kunsthandel Querido, Waalstraat 104 te Amsterdam.’ [‘With reference to your letter of 31 May concerning the painting “The Colourful Life” by Kandinsky, which we had in our safekeeping for a few years before the war, I can inform you that at the request of the owner, Mrs Lewenstein-Weyermann, on 5 September 1940 we delivered this work to the Querido art gallery, 104 Waalstraat in Amsterdam.’]
3.13 The Museum conducted research into the provenance of works of art in the collection under the auspices of the national research project Museum Acquisitions 1940-1948 (1998-1999). The publication relating to this project states the following about the currently claimed work.
‘Een punt van aandacht vormt de aankoop van een schilderij van Kandinsky op een veiling bij de firma Frederik Muller & Co. in oktober 1940. Dit schilderij maakte voor de oorlog waarschijnlijk deel uit van de collectie van een Joodse verzamelaar. Het is onbekend wie opdracht heeft gegeven tot de verkoop van het schilderij.’ [‘The purchase of a painting by Kandinsky at a sale at the firm of Frederik Muller & Co. in October 1940 is an area of attention. Before the war this painting was probably part of the collection of a Jewish collector. It is not known who gave instructions for the painting to be sold.’]
In 1999, around the time this publication appeared, Wilhelmine Lewenstein and her then authorized agent Karel Citroen visited the Museum.
The results of the national Museum Acquisitions since 1933 follow-up project were published on the website www.musealeverwervingen.nl. On this website the Museum stated that the currently claimed painting has a potentially problematic provenance. The Museum’s conclusion was, ‘Het schilderij is in 1940 geveild bij Frederik Muller in Amsterdam uit de nalatenschap van een joodse verzamelaar’ [‘The painting was sold at auction in 1940 at Frederik Muller in Amsterdam. It came from the estate of a Jewish collector’.] This was explained as follows.
‘Het schilderij is op 9 oktober 1940 door het Stedelijk Museum gekocht op de veiling van Frederik Muller & Co. in Amsterdam. … Dit lotnummer was afkomstig uit ‘Nalatenschap L., Amsterdam’. / De joodse eigenaresse had het schilderij in 1930 geërfd van haar echtgenoot, die het schilderij in 1923 had gekocht van Paul Citroen die het in commissie had gegeven aan kunsthandel J.H. de Bois, Amsterdam. ….’ [‘The Stedelijk Museum bought the painting on 9 October 1940 at a Frederik Muller & Co sale in Amsterdam. … This lot number was from ‘Estate L., Amsterdam’. / The Jewish owner had inherited the work in 1930 from her husband, who had purchased it in 1923 from Paul Citroen, who had placed it on commission with the J.H. de Bois art gallery in Amsterdam.….’]
4. The Positions of the Parties
4.1 The Applicants assert that the work, together with the rest of the art collection collected by Emanuel Lewenstein, belonged to Hedwig Lewenstein until her death on 25 May 1937. According to the Applicants it is impossible to establish with certainty whether and how the work was divided after Hedwig’s death between her two heirs, her children Wilhelmine and Robert. Neither, in the Applicants’ opinion, is it possible, in so far as the work may have been assigned to Robert, to establish whether and how the work was divided between Robert and Irma after the court pronounced their legal separation on 27 June 1940. According to the Applicants there are no indications that Wilhelmine, Robert or Irma cooperated in the sale of the work at Frederik Muller or that they had access to the proceeds of this sale, so therefore it has to be assumed that they lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime. It is no longer possible to establish with certainty which of the aforementioned three individuals owned the work when possession was lost, and therefore the Applicants have agreed among themselves that they will all share in the outcome of the current restitution application. Specifically, the Applicants have agreed that AA and BB will each have a 37.5% share in the outcome and CC a 25% share.
The Applicants contend that the Museum did not act in good faith when it acquired the work during the sale at Frederik Muller on 9 October 1940. They assert that at the time of the acquisition Sandberg and Röell have to have been aware of the work’s provenance and that there were sufficient reasons for them to assume that the artworks from Lewenstein’s collection put into the sale had been stolen or sold under duress. The Applicants feel that since the Museum nevertheless purchased the work for a modest sum, they had acted in bad faith. The Applicants furthermore believe that during the period after the acquisition the Museum unjustly failed to give clarification about the circumstances in which the work had been acquired. Betty Lewenstein’s letter in 1948 and Wilhelmine Lewenstein’s visit to the Museum in 1999 should have given the Museum reason to do so.
As far as the City Council’s contended interest in the work is concerned, the Applicants take the view that according to the Museum’s own publications the work is not considered to be one of the collection’s masterpieces. The Applicants assert that the Museum’s website also has relatively little to say about the work.
4.2 In the opinion of the City Council it seems plausible that after Hedwig Lewenstein’s death the work was assigned to Robert Lewenstein. According to the City Council there are no indications that the work was stolen, confiscated or sold under duress during the Nazi regime. The mere fact that the work went under the hammer on 9 October 1940 is not, in the City Council’s view, sufficient for assuming that there was involuntary loss of possession as a result of the Nazi regime. The City Council believes that the facts that have been established indicate voluntary sale of the work by Irma Klein, with or without the cooperation of Robert. This sale was probably the consequence of the precarious financial situation in which Robert Lewenstein and Irma Klein found themselves at the time, which resulted among other things from their marital problems and Robert Lewenstein’s departure as director of NV Lewenstein in 1939. The City Council points out in this context that during the divorce proceedings before the war Robert Lewenstein’s lawyer was already urging the sale of the family’s art collection. The City Council furthermore draws attention to the fact that no evidence has come to light that attempts were made after the war to get the currently claimed work back through the Dutch restoration of rights and recovery authorities, and that after the war Irma Klein loaned paintings to the Museum. According to the City Council this does not indicate that Irma Klein and Robert Lewenstein took the view that possession of the work was lost involuntarily.
The City Council disputes the Applicants’ assertion that the Museum did not act in good faith when it acquired the work and during the period thereafter. The City Council points out that there are after all no indications that the work was stolen, confiscated or sold under duress and that it is not likely that further research by the City Council at the time would, could or should have resulted in a bid not being made at the auction concerned. The City Council argues that the claimed work is important to the Museum. It is on permanent display and in the City Council’s opinion it is the essential link in the limited overview of Kandinsky’s work in the Museum’s collection between the impressionist-style painting Kochel - The Bridge dating from 1904 and the almost abstract work Improvisation 33 (Orient I) made in 1913 and the late abstract painting Two Surroundings produced in 1934.
5. The Committee’s Task
5.1 On the grounds of article 2 paragraph 2 of the Decree Establishing the Restitutions Committee, the Committee is tasked at the request of the parties with issuing an opinion about disputes relating to the return of items of cultural value between the original owner who involuntarily lost possession as a result of circumstances directly linked to the Nazi regime, or his or her heirs, and the current owner, not being the State of the Netherlands. This opinion is a binding opinion within the meaning of article 7:900 of the Dutch Civil Code
5.2 The committee advises on the basis of the yardsticks of reasonableness and fairness. This means that first of all an assessment is made of whether the requirements have been met for establishing that it is highly likely that the original owner was indeed the owner and that it is sufficiently plausible that he or she lost possession of the artwork involuntarily as a result of circumstances directly related to the Nazi regime. Advising on the basis of the yardsticks of reasonableness and fairness furthermore provides scope to take into account how the current owner acquired the object and other circumstances and to weigh up the interests of the different parties involved.
5.3 In its advisory role pursuant to article 2, second paragraph of the Decree Establishing the Restitutions Committee, the Committee—in accordance with article 3 of the Regulations—may in any event take account during its considerations of the circumstances in which possession of the work was lost, the degree to which the parties requesting restitution have made efforts to recover the work, as well as the timing and the circumstances of the acquisition of possession by the current owner and the investigation conducted by the current owner before the acquisition. It may in addition take account in its considerations of the respective importance of the work to both parties and of the public art stock. Nationally and internationally accepted principles, such as the Washington Principles and the government’s guidelines concerning the restitution of looted art, are included in the considerations in so far as they, in the Committee’s opinion, are correspondingly applicable in the specific case.
This broad assessment framework also does justice to the Washington Principles, according to which the restitutions policy must be aimed at achieving ‘a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case’.
6. Assessment of the Dispute
6.1 The Committee first of all checks whether there is reason to declare a party inadmissible on the grounds of one of the reasons specified in article four of the Regulations applicable to this case. The Committee has satisfied itself that the dispute between the Applicants and the City Council has not previously been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the work. Nor has it emerged that the Applicants previously explicitly renounced their rights to the work. In this regard the Applicants and their request are admissible.
6.2 Secondly, before it begins a substantive assessment the Committee checks whether the Applicants are entitled to the estates of the individuals who they contend were the original owners of the currently claimed work.
The Applicants assert that the work belonged to Robert Lewenstein, who at the time he obtained it was married in community of property to Irma Klein, and Wilhelmine Lewenstein. The applicants AA and BB have stated they are heirs of both Robert Lewenstein and Wilhelmine Lewenstein. In the Committee’s opinion the applicants AA and BB have proved their entitlement to Robert Lewenstein’s estate by submitting the legal opinion of 11 February 2016 drawn up by DD. The applicants AA and BB have proved their entitlement to Wilhelmine Lewenstein’s estate, at least in so far as it concerns the currently claimed work, by submitting the legal opinion of 20 March 2018, drawn up by the law firm of Vieira de Almeida & Associados of Lisbon, Portugal.
The applicant CC has stated she is entitled to Irma Klein’s estate. In the Committee’s opinion she proved this by submitting the ‘Statement’ of EE, notary in Amsterdam, of 7 May 2015.
6.3 It follows from 5.2 that an assessment based on the yardsticks of reasonableness and fairness begins with assessing whether the requirements have been met for establishing that it is highly likely that the original owner was indeed the owner and that it is sufficiently plausible that he or she lost possession of the artwork involuntarily as a result of circumstances directly related to the Nazi regime. This means that the Committee first addresses the question of who the claimed work belonged to when the sale took place on 9 October 1940. The parties do not dispute and also the Committee assumes on the grounds of the investigation report that the work belonged to Hedwig Lewenstein-Weijermann until her death on 25 May 1937.
6.3.1. The parties are not in agreement about who the work was assigned to after her death. According to the City Council it seems plausible that the work was assigned to Robert Lewenstein, and consequently the work ended up in the community property of Robert Lewenstein and Irma Klein and they obtained actual possession of the work. The Applicants believe that it cannot be established with certainty who the work was assigned to. The Applicants handed over a recommendation of 21 November 2017 drawn up by the lawyer FF at their request. Assignment of the work to Robert Lewenstein is referred to in it as a possibility. Another possibility that FF identified is that the work and the rest of the collection remained outside the scope of the deed of division of property of 24 January 1938 for taxation reasons. In their response to the draft investigation report the Applicants pointed out that the deed of 24 January 1938 contained no specific provisions concerning the art collection that Hedwig Lewenstein left, so therefore other documentary evidence needs to be studied. In this context they referred to the letter from Betty Lewenstein of 31 May 1948 to the Museum in which she wrote that the work The Colourful Life belonged to Lewenstein’s heirs and that Wilhelmine was one of the two heirs. According to the Applicants this indicates that Hedwig Lewenstein’s wish to leave her art collection to both her children was respected. In the Applicants’ opinion the fact that Wilhelmine Lewenstein left for Mozambique two days after signing the deed of 24 January 1938 indicates that the drawing of lots specified in the will was never carried out.
The Applicants believe that it should have been up to the Museum to clarify ambiguities about ownership of the work prior to its acquisition by the Museum in 1940. Betty Lewenstein’s letter in 1948 and Wilhelmine Lewenstein’s visit to the Museum in 1999 should have prompted the Museum to do this.
In the Applicants’ view, at the time of the sale the claimed work belonged to Wilhelmine Lewenstein, Robert Lewenstein and Irma Klein. The Applicants have agreed among themselves to divide the proceeds arising from the present restitution application according to an allocation formula irrespective of the Committee’s conclusion about who the work belonged to at the time of the sale.
6.3.2. The Committee finds as follows. Hedwig Weijermann’s will of 1 February 1937 contained an arrangement with regard to the paintings and etchings, namely division into two portions, which had to be assigned to her two children on the basis of drawing lots. It is not known whether this drawing of lots was ever carried out. No artworks were explicitly identified in the deed of 24 January 1938. There was, however, a reference to ‘nog aanwezige roerende lichamelijke zaken’ [‘movable tangible property still present’], elaborated as ‘inboedelgoederen, sieraden en verdere roerende lichamelijke zaken’ [‘household effects, jewellery and other movable tangible property’]. It was stated that this ‘movable tangible property still present’ was valued by the broker N. Jacobson of Amsterdam. No report was found during the investigation however.
In the deed the ‘movable tangible property still present’ was assigned to Robert Lewenstein. There are no indications that artworks, including the currently claimed work, were exempted from this assignment. It can be pointed out in this context that the parties to the deed declared in that same deed that the part of the estate to be divided consisted of nothing else than the possessions as specified in the deed. It was also expressly stated in the deed that a one-fifth undivided share in property in Amsterdam remained outside the scope of the division. There was no such provision with regard to artworks.
Various judicial documents, as referred to below in 6.3.3., furthermore mention the inventory of valuables, including artworks, which were still in the residence at 13h Bachplein after Robert’s departure in August 1938. None of these documents state that Wilhelmine still had rights with regard to these possessions.
In the Committee’s opinion the assignment of the ‘movable tangible property still present’ to Robert Lewenstein can be readily explained by the fact that Wilhelmine owed her mother NLG 16,250, as can be seen from the deed of 24 January 1938. It emerges from that same deed that Robert owed his mother NLG 2,000. In the deed the value of the ‘movable tangible property still present’ was set by the parties to the deed at NLG 14,250, with a reference to ‘het feit dat al deze nog aanwezige zaken aan den deelgenoot genoemden heer Robert Gottschalk Lewenstein worden toegedeeld waardoor deze alleen van een eventueele waardestijging zou genieten’ [‘the fact that all this property still present is assigned to the beneficiary named Mr Robert Gottschalk Lewenstein as a result of which he alone would benefit from any increase in value’]. In this way the claims the estate had on Robert and Wilhelmine and the ownership of the ‘movable tangible property still present’ were settled through a paper transaction. This course of events was also described thus in a biography of Wilhelmine Lewenstein (Bewegte Zeit - Bewegtes Leben. Das ungewöhnliche Leben der Wilhelmine de Castillio Serra) that a relative started to write in 2003, in which discussion of the division of the legacy includes the statement that ‘der Haushalt mit seinem wertvollen Inventar’ was offset against Wilhelmine’s debt to her mother.
The fact that Wilhelmine was on the point of emigrating to Mozambique with her husband is a further reason that explains why the ‘movable tangible property still present’ was assigned to Robert Lewenstein.
It is less easy to explain Betty Lewenstein’s letter to the Museum of 31 May 1948 referred to by the Applicants in which she wrote that The Colourful Life belonged to Lewenstein’s heirs, namely Robert Lewenstein and Wilhelmine Lewenstein. This letter, however, does not relate to the currently claimed work but to The Colourful Life, which is known to have been on loan to the Museum before the war. In addition, this single pointer which could suggest that Hedwig Lewenstein’s art collection remained undivided is not sufficient to set aside the indications, which in the Committee’s view are stronger, that the currently claimed work was assigned to Robert Lewenstein.
The Committee believes on the grounds of the above that it should be assumed that the work was assigned to Robert Lewenstein after Hedwig Lewenstein’s death. The Committee has taken note of the agreement made by the Applicants among themselves. This agreement cannot, however, affect the Committee’s task of answering the question about who the work belonged to at the moment possession was lost and, following on from this, who can claim the work in 2018. Answering this question is not only necessary for establishing who the entitled party is. It is also important to assessing the loss of possession and ultimately weighing up the interests involved.
6.3.3. At the time Robert Lewenstein obtained the work he was married in community of property to Irma Klein. There are no indications that the work remained outside the community of property. The following considerations address what most probably happened to the currently claimed work between its assignment to Robert Lewenstein and its sale by auction at Frederik Muller on 9 October 1940.
After Hedwig Lewenstein died, Robert Lewenstein and Irma Klein moved into her former home at 13h Bachplein in Amsterdam. Robert Lewenstein left in August 1938. Various judicial documents found during the investigation mention the valuables that were still in the residence at 13h Bachplein. On 4 May 1939, for example, Isaac Coopman wrote that Robert Lewenstein had left Irma Klein behind ‘in het groote huis (vol kostbare familie-inventaris)’ [‘in the large residence (full of valuable family possessions)’]. Robert Lewenstein’s lawyer, Alfred Levy, wrote on 11 May 1939 about the ‘bedoeld heerenhuis met kostbaren inboedel (schilderijen, antiquiteiten en andere kostbaarheden)’ [‘said residence with its valuables contents (paintings, antiques and other valuables)’] and on 2 November 1939 about ‘den kostbaren inventaris, herkomstig van gedaagdes ouders uit lang vervlogen financieel-goede tijden’ [‘the valuable inventory, originally owned by the respondent’s parents in financially good times of long ago’] over which Irma Klein had actual power. On 2 January 1940 Isaac Coopman wrote that Irma Klein found it immoral ‘als zij de kostbare familie-eigendommen, antiek en schilderijen thans zou verkoopen’ [‘if she were to sell the valuable family possessions, antiques and paintings now’]. In the Committee’s view it can be assumed on the grounds of these references that the art collection assigned to Robert Lewenstein after Hedwig Lewenstein’s death remained behind at 13h Bachplein, and that Irma Klein had actual power over it after Robert Lewenstein’s departure.
The term of the rental agreement for the residence at 13h Bachplein, which was still in Robert Lewenstein’s name, ended on 1 May 1940. Five days after the German invasion, on 15 May 1940, Irma Klein and her mother were registered as living at 9a¹ Beethovenstraat in Amsterdam. There are no indications that Irma Klein no longer had actual power over the art collection after this relocation.
6.3.4. The following can be assumed on the basis of the above. In the summer of 1940 the currently claimed work was with Irma Klein, or was otherwise in storage, and she had actual power over the work. As a result of the order of the Court of Amsterdam of 27 June 1940, which became final and conclusive on 27 September 1940, the work belonged to the dissolved but not yet divided community property of Robert Lewenstein and Irma Klein. The work was sold by auction on 9 October 1940 and purchased at the sale by the Museum.
Loss of possession
6.4 Despite extensive research, it has remained unclear how exactly the work ended up in the sale, on whose instructions and in which circumstances. The fate of the proceeds of the sale is also unclear. The Applicants contend that the work was stolen and then put into the sale. The have referred to the possible involvement of the Dienststelle Mühlmann (Mühlmann Agency) and Aloïs Miedl in the sale of Lewenstein’s art collection. They did not provide any evidence, however, and no indication whatsoever of the involvement of the Mühlmann Agency or Aloïs Miedl was found during the investigation conducted by the Committee. It is also important that, at this stage of the occupation, no anti-Jewish measures had come into force that were targeted at the confiscation of Jewish possessions, such as the later first and second Liro regulations in 1941 (VO 148/41) and 1942 (VO 58/42).
Regulation VO 26/1940 of 24 June 1940 concerning the treatment of enemy assets, however, was in force before and at the time of the sale. Under this regulation the assets, including movable goods, of Dutch nationals who lived or were staying in an enemy state, also including France, had to be declared and were not at their disposal. As described above, when the German occupation started Robert Lewenstein was in France, and he fled to the United States in around June 1940. At that time Germany did not yet consider the latter country to be an enemy state. No indications were found during the investigation that the German occupying forces confiscated the currently claimed work on the grounds of this regulation, something that in view of the regulation’s text was also not possible.
The Committee is aware that throughout the entire occupation, including outside these regulations, possessions were seized, but it found no indication that the currently claimed work was confiscated. In the case of a confiscation it would furthermore have been an obvious step to file a declaration after the occupation, for example with the Netherlands Art Property Foundation or in the context of requests for compensation. This did not happen however.
6.4.1 The Committee found two pointers that could lead to the conclusion that Irma Klein played a part in having the currently claimed work put into the sale. Firstly the biography of Wilhelmine Lewenstein, referred to earlier, states that there was a suspicion that Irma Klein played a part in the sale of the art collection: ‘Für den Rest ist ihr Bruder Bob Schlüsselfigur: Recherchen der Familie lassen vermuten, dass dessen zweite Ehefrau Irma, geb. Klein - Willy nennt sie, in Anspielung auf ihre rote Haarfarbe, nur ‘das rote Aas’ - etwas eigenmächtig die Bilder veräuβerte, das in holländischen Museen dem Zugriff der Nazis entgangen waren.’
A second indication of Irma Klein’s involvement in the sale arises from information that is known about The Colourful Life, as stated in 3.12. In 1948 acting museum director Jaffé wrote in September 1940 that this painting was handed over ‘op verzoek van de eigenaresse, Mevrouw Lewenstein-Weyermann’ [‘at the request of the owner, Mrs Lewenstein-Weyermann’]. The Committee assumes this refers to Irma Klein. Hedwig Lewenstein-Weyermann was, after all, already dead.
Although it is not crystal clear that the claimed work was put into the sale with cooperation from Irma Klein, the Committee has insufficient leads to conclude that her cooperation was absent. The Committee has after all established that prior to the sale the claimed work was under the actual power of Irma Klein. While Irma Klein was not entitled to put the work, which belonged to a dissolved but not yet divided community of property, up for auction without the cooperation of Robert Lewenstein, there is nothing to indicate that Robert Lewenstein did not provide this cooperation. It is also plausible that Robert Lewenstein would have provided this cooperation in view of the wish expressed by his lawyer before the occupation to proceed with selling the art collection. Furthermore, the possible absence of cooperation by Robert in the sale in respect of Irma Klein was provided for by the deed of division of 10 January 1947, as explained in 6.6 below.
6.5 When assessing the circumstances in which possession of the work was lost, the key question is whether it is sufficiently plausible that the owner lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime. It is important when answering this question that the Committee believes it is most plausible that the work was sold with the cooperation of Irma Klein and Robert Lewenstein. It has not been established, however, that their loss of possession of the work was voluntary and that the loss of possession cannot be linked to the Nazi regime. In this context the Committee first of all refers to the Ekkart Committee’s third recommendation of 2001, on the grounds of which sales by private Jewish individuals in the Netherlands from 10 May 1940 onwards must be considered to be involuntary, unless the facts expressly show otherwise. This recommendation, which involves a reversal of the burden of proof and is not directly applicable to binding opinion cases, was based on a judgment of the Council for the Restoration of Rights of 1 July 1952 in the Gutmann case. In this judgment the Council concluded that, even though there had not been direct coercion by the purchasers of the artworks, the special circumstances justified claiming they were forced sales. According to the Ekkart Committee this judgment represented a clear basis for a policy principle, namely that sales of artworks by Jewish Dutch nationals from 10 May 1940 will be classified as forced sales unless there is express evidence to the contrary. The Ekkart Committee concluded as follows. ‘Reeds bestaande of dreigende maatregelen van de bezetter tot inlevering van kunstvoorwerpen bij een bezettingsinstantie en het feit dat bij een vlucht uit lijfsbehoud de achtergebleven bezittingen zouden worden geconfisqueerd, vormden immers veelal de drijvende motieven om kunstbezit te gelde te maken.’ [‘Existing or threatened measures by the occupying forces under which works of art had to be surrendered to an agency of the occupying forces, and the fact that flight in order to save their own lives would mean confiscation of the possessions they left behind, usually represented compelling reasons for selling art holdings.’]
6.5.1. The reasons identified by the Ekkart Committee for Jewish owners to sell their art holdings appear to explain to an extent why Irma Klein and Robert Lewenstein put the currently claimed work and the rest of the art collection up for sale. In this context reference can be made to the following:
- In the nineteen-thirties Irma Klein fled to the Netherlands from Nazi Germany, where she was no longer able to find work as an actress because of her Jewish descent. She was therefore very probably well aware of the anti-Jewish measures taken by the Nazis in Germany and could clearly imagine what she could expect in the Netherlands.
- At a certain point Irma Klein began to provide for her brother and others. She also took care of her mother, who had fled Germany and lived with her. She would have needed financial resources for this, as well as for her own living expenses. The opportunities for an exiled German Jewish woman, legally separated from her husband, to acquire sufficient income on a regular basis will have been extremely limited.
- When the sale was held at Frederik Muller, no anti-Jewish measures aimed at confiscating Jewish possessions had yet come into force. Regulation VO 26/1940 of 24 June 1940, concerning the treatment of enemy assets, was already in force however. Although there are no indications that the currently claimed work was confiscated on the grounds of this regulation, there were at the time already fears that such a measure could be expected. In this context reference can be made a statement made by Irma in a summons of 31 August 1945 that during the war she had not requested division and distribution as part of her divorce action. She allegedly refrained from doing so because there was a risk ‘dat het aan gedaagde toekomende gedeelte der gemeenschap door Duitse instanties zou worden in beslag genomen’ [‘that the part of the community property allocated to the respondent would be seized by the German authorities’]. This impending measure could have been a possible reason for Irma to sell the art collection.
- As far as Robert’s position is concerned, it can be pointed out that he had already left the Netherlands in 1939 and that it is difficult to consider that departure as a direct consequence of the Nazi regime. This changed after May 1940 however. Robert made the prudent decision to flee France for the United States. While there, he lived in difficult financial circumstances however. It was not possible for his monthly allowance from the NV to be paid to him and he did not have the permits needed for working. These trying financial circumstances in which Robert found himself, although he was in a safe country, cannot be considered in isolation from the Nazi regime, and could have given him reason to cooperate in the sale of the art collection.
6.5.2. In view of the circumstances described above, there is a possible link between the sale of the currently claimed work and the threat the Nazi regime represented for Irma Klein, and to a lesser extent for Robert Lewenstein. Yet during the investigation no information was found on the grounds of which it can be concluded that the aforementioned circumstances played a role for Irma Klein or Robert Lewenstein in regard to putting the work into the sale.
It did emerge from the investigation, however, that the financial position of Robert and Irma deteriorated in the years prior to the sale. Reference can be made in this context to the decline of the assets and income of Robert Lewenstein’s parents prior to their deaths and the loss of NLG 100,000 that NV Lewenstein made in the 1935-1938 period. The departure of Robert Lewenstein as director of the NV and the divorce of Robert Lewenstein and Irma Klein will have contributed to these financial reversals. This financial decline was the consequence of events that were set in motion well before the German invasion and was therefore not the result of the Nazi regime.
There are also concrete indications that there was discussion about selling the art collection before the German invasion. On 2 November 1939 Alfred Levy wrote that ‘de stand van beide echtgenooten allerminst toelaat, den kostbaren inventaris, herkomstig van gedaagdes ouders uit lang vervlogen financieel-goede tijden, aan te houden, doch integendeel gebiedt, dien inventaris zoo spoedig mogelijk te gelde te maken’ [‘the position of the two spouses is far from permitting the retention of the valuable inventory, originally owned by the respondent’s parents in financially good times of long ago, but on the contrary calls for their inventory to be sold as quickly as possible’]. On 2 January 1940 Isaac Coopman wrote in response that Irma Klein ‘het immoreel (vindt) als zij de kostbare familie-eigendommen, antiek en schilderijen thans zou verkoopen, nu voor deze goederen geen koopers (buitenlanders) op de markt zijn, en slechts afbraakprijzen voor te krijgen zijn. / Het is bovendien niet in het belang van Lewenstein èn appellante als deze familie-stukken in het openbaar geëxecuteerd moeten worden, waarop dit geheele drijven dreigt uit te loopen’ [‘believes it would be immoral if she were to sell the valuable family possessions, antiques and paintings now since there are currently no buyers (foreigners) for these goods on the market and they would only fetch knock-down prices. / It is furthermore not in the interests of Lewenstein and the appellant if these family possessions have to be sold in public under duress, whereupon this whole matter could get out of hand’].
6.5.3. All in all this brings the Committee to the conclusion that the sale of the currently claimed work cannot on the one hand be considered in isolation from the Nazi regime, but on the other hand has to have been caused to an extent by the deteriorating financial circumstances in which Robert Lewenstein and Irma Klein found themselves well before the German invasion, also in view of the comments of those involved during the nineteen-thirties. In this case the determining factor is therefore the weighing up of interests to be conducted by the Committee.
Consequences of the division in 1947
6.6 Given consideration 6.3.4., it has been sufficiently well established that at the time of the sale the work belonged to the dissolved but not yet divided community property in the marriage between Robert Lewenstein and Irma Klein. As regards who can claim the work now, it is important to establish to whom the work was assigned in the end. The division of the community property was recorded in a deed of ‘scheiding en deling van al hetgeen behoort tot de in hun huwelijk bestaan hebbende gemeenschappelijke boedel’ [‘division and distribution of what belongs to the community of property existing in their marriage’] executed on 10 June 1947 before notary August Henri Ketel. There is no explicit reference in the deed to the claimed work or any other artwork. There is, however, the following comment about the distribution of the movable tangible property belonging to the community property.
'Zij [Robert Lewenstein en Irma Klein] verklaarden daartoe vooraf: [...] dat de tot de gemeenschappelijke boedel behorende roerende lichamelijke zaken reeds door partijen zijn verdeeld, hebbende ieder het hem of haar toebedeelde ontvangen, en dat voorts diverse activa en passiva, waarvan door partijen of een van hen wordt gepretendeerd, dat zij tot de gemeenschappelijke boedel behoren, in dier voege zijn gescheiden en verdeeld, dat ieder de in zijn of haar bezit zijnde activa behoudt en de door hem of haar betaalde passiva voor zijn of haar rekening houdt, behoevende er terzake van een of ander geen verrekening plaats te hebben.’ [‘They [Robert Lewenstein and Irma Klein] stated to that end beforehand ... that the movable tangible property belonging to the community of property has already been distributed by the parties, each of them having received what is assigned to him or her, and that furthermore various assets and liabilities, which are claimed by one or both of the parties, that belong to the community of property, have been divided and distributed in such a manner that each of them retains assets in his or her possession and the liabilities paid by him or her are retained for his or her account and that no settlement is necessary in regard to all this.’]
On the grounds of the law applicable at the time, this division was declarative and came into effect retroactively on the day the community of property was dissolved as a result of the legal separation. In the Committee’s opinion it follows from this that Irma Klein, who at the moment that the community of property was dissolved had actual possession of the currently claimed work, as a result of the retroactive division agreement in any event until 27 September 1940, the date on which the separation order became final and conclusive, became sole owner of the currently claimed work. This leads to the conclusion that only the heir of Irma Klein, the applicant CC, can claim the work.
Acquisition by the City Council
6.7 Under Dutch law it must be assumed that the City Council is now the owner of the work. The Applicants have argued that the City Council acted in bad faith when it acquired the work at a sale in 1940. They did not, however, make this plausible with facts that could underpin their argument. The mere fact that at a sale in October 1940 the City Council purchased a work that came from a Jewish owner does not mean that this transaction did not take place in good faith.
Weighing up interests
6.8 The Committee now comes to weighing up the interests involved. It follows from the foregoing that the Committee will take into account the interests of the applicant CC in restitution of the artwork and the interests of the City Council in retaining the work. Upon request, the applicant CC explained her interest in restitution of the work in a letter dated 5 June 2018 as follows. ‘For me, as far as it matters, I think the story simply may not end with people, institutions, governments, or anyone, getting away with what they wrongfully did. This is about more than the painting itself. Returning the ownership of the painting would do justice to the memory of Irma and Robert and to those who stand near them’.
The Committee takes account of the following.
- The sale of the currently claimed work in October 1940 cannot be considered in isolation from the Nazi regime, but it was also in part the consequence of the deteriorating financial circumstances in which Robert Lewenstein and Irma Klein found themselves well before the German invasion. In the Committee’s view this provides a less powerful basis for restitution than a case in which there was theft or confiscation.
- It has furthermore not emerged that Irma Klein made efforts during the period after the German occupation to request the Museum to return the currently claimed work despite the reasonable assumption that she knew or could have known the work was there. In view of the various loans, the Museum had a good relationship with the Lewenstein family and with Irma Klein before and after the war. Irma Klein’s heir, the applicant CC, similarly did not make any attempts to request the return of the work and initially was not among the Applicants for restitution in this case.
- It has not emerged that the City Council did not acquire the work in 1940 in good faith. It has had the work in its possession since then. Its contention that the work has important art historical value and is an essential link in the limited overview of Kandinsky’s work in the Museum’s collection, has a corresponding place in that collection, and is included in the permanent display has been insufficiently contested by the Applicants and is in accordance with the Committee’s own opinion.
- As regards the interests of the applicant CC, all that is known is that she is acting as Irma Klein’s heir without declaring any past emotional or other intense bond with the work.
Taking all this into account, the Committee concludes that the interest of the applicant CC in restitution does not outweigh the interest of the City Council in retaining the work.
7. The above leads to the conclusion that the Committee will reject the restitution application.
Amsterdam City Council is not obliged to return the painting Painting with Houses to the Applicants.
This binding opinion was issued on 22 October 2018 by A. Hammerstein (Chair), J.H.W. Koster, J.H. van Kreveld, E.H. Swaab, H.M. Verrijn Stuart (Vice-Chair), G.N. Verschoor and C.C. Wesselink, and signed by the Chair and the Secretary.
(A. Hammerstein, Chair) (E.J.A. Idema, Secretary)