Blick auf Murnau mit Kirche by Wassily Kandinsky

Binding opinion regarding the dispute about restitution of the painting Blick auf Murnau mit Kirche, by Wassily Kandinsky, currently in the possession of Eindhoven City Council

Recommendation number: 
RC 3.162
Type: 
Binding expert opinion
Publishing date: 
29 January 2018
Period loss of possession: 
unknown
Private owner/art dealer: 
Private individual

Binding Opinion

regarding the dispute between

AA, also on behalf of
BB, CC, DD, EE, FF, GG, HH, II and JJ
(hereinafter referred to as the Applicants),

and

Eindhoven City Council (hereinafter referred to as the City Council),
represented by KK, Director of the Van Abbemuseum
(hereinafter also referred to as the Museum).

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 titled Blick auf Murnau mit Kirche (hereinafter referred to as the work) by Wassily Kandinsky since 1951. The work is part of the Museum’s collection. The Applicants contend that the work belonged to the collection of their grandmother/great-grandmother Johanna Margareta Stern-Lippmann (1874-1944, hereinafter also referred to as (Margareta) Stern-Lippmann). They state that they are the only rightful claimants to the estate of Stern-Lippmann and they claim restitution of the work on the grounds of their contention that there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime. The Applicants have conducted their own research and the findings are recorded in a report titled Collectie Stern (2015).

2.         The Procedure

In a joint letter, received by the Committee on 18 February 2016, the parties laid the Applicants’ claim to the work before the Committee for investigation and a binding opinion.

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 27 January 2014, 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 findings of the investigation are recorded in an overview of the facts dated 16 October 2017. The Applicants responded to it in an email of 15 November 2017. The City Council responded in a letter dated 20 November 2017.

There was a hearing about the case in The Hague on 25 January 2018. AA accompanied by LL appeared on behalf of the Applicants. The City Council was represented by KK and MM, the Museum’s curator and head of collections. Minutes were taken of the hearing.

3.         The Facts

The Committee established the facts on the grounds of the overview of the facts and the responses to it that were received. The following summary is sufficient here.

3.1       Johanna Margareta Lippmann was born on 6 January 1874 in Berlin and was of Jewish origin. She married Samuel Siegbert Stern (1864-1935), who was also of Jewish descent and among other things was an art collector. The couple lived in Babelsberg near Berlin and had four children: Annie Regina Stern (1899-1989), Hilde Sophie Stern (1901-1984), Hans Martin Stern (1907-1953) and Luise Henriette Stern (1909-1944). Mr and Mrs Stern built up a substantial art collection. This emerges, for example, from a will drawn up by the couple in 1924. It refers to 144 numbered artworks, including over 100 paintings and drawings. This will mentions one painting by Kandinsky (‘Landschaft’). The Applicants submitted a copy of a transcript of a typescript of this will, on which it is stated, ‘Verkündet am 14. Oktober 1935’. It is not known when this painting was acquired. A part of Mr and Mrs Stern’s art collection can also be seen in an album containing photographs of the interior of their residence in Babelsberg. One of these photographs is of a room in which there are two paintings on the wall, including the currently claimed work by Kandinsky. Further artworks can be seen in other photographs, including the painting The Circumcision, about which the Committee advised in case RC 1.44. According to the Applicants it is plausible that the photograph album dates from the 1933/1934 period, in any event before the death of Siegbert Stern in 1935 because he is in one of the photographs. A photography expert who examined the album at the request of the Committee concluded that the album was compiled between around 1915 and 1940. The photography expert did not give a more precise dating of the photographs on which the currently claimed work can be seen, and there is no other method available for doing so.

3.2       Samuel Siegbert Stern died on 7 August 1935 in Berlin. Stern-Lippmann moved to Badenweiler in southern Germany in the spring of 1937 in connection with the anti-Jewish measures. Stern-Lippmann took a small proportion of her possessions with her when she moved. She was also faced with anti-Jewish measures in Badenweiler, so in the summer of 1938 she fled to the Netherlands via Switzerland. A number of Stern-Lippmann’s relatives also fled to the Netherlands. Her brother-in-law Albert Stern, for instance, was registered as living in Amsterdam in March 1937 and her brother Heinrich Lippmann in June 1938. Stern-Lippmann’s children had also settled in the Netherlands in the nineteen-twenties and -thirties.
Meanwhile, from Switzerland Stern-Lippmann instructed Konstantin Balaszeskul in Berlin, whom she had appointed as her authorized agent, to take care of her financial affairs in Germany, including managing and liquidating her assets. This was a complex task because the Nazi authorities were keeping a close eye on the possessions of Jewish emigrants. Among other things Balaszeskul sold off Stern-Lippmann’s property, including the mansion in Babelsberg, which was finally sold on 2 November 1940. Prior to this sale he also arranged to have the household contents moved to the Netherlands. In order to obtain permission from the German authorities for the shipment, among other things Balaszeskul had to submit an inventory and provide an opportunity for the goods to be inspected. A number of gold and silver objects were removed from the household effects because they had to be surrendered on the grounds of anti-Jewish measures. Ultimately the household contents were transported to Amsterdam, probably in December 1939. Four lists of possessions were found concerning the shipment of Stern-Lippmann’s household effects. An entry on one list refers to approximately 38 ‘Bilder’, while another mentions ‘1 Ölbild’ in the ‘Groβes Wohnzimmer’.

3.3       Stern-Lippmann was registered as living at various addresses in Bloemendaal and Amsterdam during the 1938-1940 period. She lived with her youngest daughter Luise in Bloemendaal from 15 September 1939. According to the haulage company’s invoice that was found, the household effects that were sent to the Netherlands in December 1939 went to ‘Amsterdam - Doklaan’. It is not clear which paintings were shipped and where they ended up thereafter. It is possible that part of Stern-Lippmann’s collection came to the Netherlands outside this official household removal.
In the autumn of 1940 Stern-Lippmann moved to Hilversum, where she lived at several addresses, including Wernerlaan 30. Hermann Stern (not a relative), a merchant of German-Jewish descent who fled to the Netherlands in 1938, had lived at this address previously. In 1937 one of his two daughters, Doris, married Salomon George Kaufmann, the son of Carl and Alice Kaufmann. The name Kaufmann plays a role in the work’s provenance. No information was found, however, to show that this refers to Salomon Kaufmann or his family.
Stern-Lippmann was declared stateless in 1941. She then tried to obtain an emigration visa for herself and her family. Part of this process involved putting the painting Portrait of Miss Edith Crowe by Fantin-Latour at the disposal of the Dienststelle Mühlmann (Mühlmann Agency), a German organization that acquired works of art for Germany. This painting was not in the Stern-Lippmann collection. She bought it at the end of 1941 especially for this purpose from the firm of D’Audretsch in The Hague for NLG 40,000. The German-Jewish art dealer Myrtl Frank, who had been living in Hilversum since the beginning of 1941, was an intermediary in this purchase. Frank handed over the painting to the Mühlmann Agency but the emigration visa was never issued.
Stern-Lippmann went into hiding in Amsterdam in 1942. She was ultimately apprehended and was then deported via Westerbork transit camp to Auschwitz, where she was murdered on or around 22 May 1944. Her daughter Luise and her husband also became victims of the persecution of the Jews, as did other relatives. Her other children survived the war.

3.4       Little is known about what happened to Stern-Lippmann’s art collection during the war. Part of it proved to be still present after the liberation. Attempts were made to regain possession of artworks that were known to be missing. For example, declarations of the loss of possession of several works were made to the Stichting Nederlands Kunstbezit (Netherlands Art Property Foundation) (hereinafter referred to as the SNK). This resulted in 1949 in the restitution of only one work, the painting by Fantin-Latour referred to above. A number of individuals compiled overviews and made valuations of the Stern-Lippmann collection, for example for the purposes of dividing her estate in 1954. As part of this division a number of paintings that were still present after the liberation or had been returned to the estate were distributed among the different heirs.
The services of a number of different valuers, including the art dealer Bernard Houthakker, were used in regard to dividing the paintings. During the Committee’s investigation a number of lists of valuations of artworks were found in his archive that relate to the Stern-Lippmann art collection. On one of these lists, dated 29 October 1950 and titled ‘BILDERLISTE MIT PREISSCHAETZUNGEN’, there are 40 paintings and drawings including a ‘Landschaft’ by ‘Kandinsky’, stating the country as ‘USA’ and an estimated value of ‘[DOLLAR] 500.-’. This list gives the country as ‘USA’ and estimated values in dollars for eleven other works. The work by Kandinsky is the only one on the ‘Bilderliste’ to have been crossed out by hand. All 40 paintings and drawings on the ‘Bilderliste’, with the exception of three paintings including the painting by Kandinsky, are referred to on an expert’s certificate issued by Houthakker on 18 September 1952 that concerned 37 paintings 'behorende tot de nalatenschap van Mevrouw M.J. Stern-Lippmann en zich bevindende in diverse percelen te Nunspeet (Gld.) en te Amsterdam in het Stedelijk Museum en in het gebouw van de Associatie Cassa' [‘belonging to the estate Mrs M.J. Stern-Lippmann and that are present in various properties in Nunspeet (Gelderland) and in the Stedelijk Museum in Amsterdam and in the Associatie Cassa building’].
Apart from the aforementioned ‘Bilderliste’, there is no mention of a painting by Kandinsky on the other lists of valuations found in Houthakker’s archive. The name is also not referred to in the other documentation found after the liberation.

Paintings from the Stern-Lippmann collection were still missing after the division of Stern-Lippmann’s estate in 1954. This emerges from a letter from the financial and legal advisor W.H.C. Schukking of 12 May 1955 to the SNK, which was subsequently closed down. Enclosed with this letter was a list of 28 artworks headed 'Schilderijen van wijlen Mevr. Marg. Stern-Lippmann, welke na 1945 niet meer in de boedel werden aangetroffen' [‘Paintings of the late Mrs Marg. Stern-Lippmann that after 1945 were no longer found in the estate’] (hereinafter also referred to as the Schukking list). It is stated in the letter that it concerns works that belonged to Stern-Lippmann in 1940. No work by Kandinsky is mentioned on the Schukking list. Similarly no work by Kandinsky is referred to on the 1958 list of missing artworks that was sent in 1959 to the Wiedergutmachungsämter von Berlin (WGA), which corresponds largely with the Schukking list. The WGA file contains a statement by Schukking stating that the sums accompanying the artworks concerned were taken from insurance policies dating from the 1934-1938 period.

3.5       The currently claimed work was purchased by the Museum in 1951 from the art dealer Karl Alexander Legat in The Hague. The following handwritten provenance information is noted on one of the painting’s inventory cards submitted by the Museum. ‘Légat, Den Haag (1951) f. 11.500-’; ‘Vroeger verzameling A. Kaufmann; door diens in Nederl. wonende dochter verkocht Légat. (opg. Légat)’ [‘Légat, The Hague (1951) f. 11.500-’; ‘Previously the collection of A. Kaufmann; whose daughter living in the Netherlands sold it to Légat. (stated by Légat)’]. It can be deduced from correspondence about the purchase in 1951 that Legat had paid NLG 10,000 for the work. It is not clear who ‘A. Kaufmann’ refers to.
Previously, in 1949, Legat had offered the Museum another work by Kandinsky, Kirche in Murnau. In the end this work did not go to a Dutch museum but was acquired in 1950 by the Museum of Modern Art in New York. Before that, the work was submitted by Legat for the exhibition Expressionisme: Van Gogh tot Picasso [Expressionism: Van Gogh to Picasso], which was staged in the Stedelijk Museum in Amsterdam from July to September 1949. The currently claimed work was not on display in that exhibition.

4.         The Positions of the Parties

4.1       The Applicants contend that the currently claimed work was sent from Germany to the Netherlands in 1939 and that Stern-Lippmann had to sell the work at the end of 1941 in order to be able to buy the painting by Fantin-Latour, which was intended to secure an emigration visa. As regards the purchase of the painting by Fantin-Latour, they refer to connections between Frank and Stern-Lippmann, who were both living in Hilversum in 1941, and to the connections between Frank and Legat. According to the Applicants’ original position the name ‘A. Kaufmann’ in the work’s provenance was invented by Frank. It was stated during the hearing on behalf of the Applicants that nobody with the name Kaufmann could be found who can be linked to this painting. According to the Applicants the fact that the currently claimed work is not mentioned on the different lists of valuations after the liberation shows that the currently claimed work did not come into the possession of the heirs after the liberation. According to the Applicants the reference to the work on the ‘Bilderliste’ can be explained because the compilers of this list were counting on the return of the painting. The Schukking list was drawn up on the basis of insurance documents dating from the 1934-1938 period, which according to the Applicants can explain why a work of ‘entartete Kunst’ [degenerate art] such as the currently claimed work is not mentioned on it. 

4.2       The City Council has taken note of the Applicants’ research as recorded in the Collectie Stern report and of the restitution application. The City Council defers to the Committee’s opinion.

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 importance of the work to both parties and of public art treasures. 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 Applicants have asserted that they are the rightful claimants to Margareta Stern-Lippmann’s estate. To this end they submitted a transcript of a certificate of inheritance executed on 1 April 2011 before M.R. Meijer, notary in Amsterdam, and a certificate of inheritance executed on 16 June 2016 before G.W. Gramser, notary in Amsterdam. It follows from these certificates that the natural persons named below are heirs of Margareta Stern-Lippmann:
a) BB;
b) CC;
c) DD;
d) EE;
e) FF;
f) GG;
g) HH;
h) II;
i) JJ;
j) AA. 
The aforementioned named persons a to j inclusive are Applicants in this case. It emerges from the two certificates of inheritance referred to above that the Applicants represent all those entitled to the assets of Margareta Stern-Lippmann.

6.2       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. The Committee therefore considers the parties and their request to be admissible.

6.3      Given the Committee’s task as referred to under 5.2, it must be highly plausible that the currently claimed work, as the Applicants contend, belonged to Stern-Lippmann and be sufficiently plausible that she lost possession of it involuntarily as a result of circumstances directly related to the Nazi regime.
In the assessment the Committee is faced first of all by the question of whether the work belonged to Stern-Lippmann, as the Applicants have asserted. In this regard it is firstly important that the 1924 will refers to a ‘Landschaft’ by Kandinsky. The photograph album submitted by the Applicants is also important. It contains a photograph in which the work can be seen. In view of this the Committee deems it highly plausible that the work belonged to the Stern-Lippmann collection.

6.4      As regards the question of whether it is sufficiently plausible that Stern-Lippmann lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime, the Committee concludes that there are no known facts to show what happened to the work during the period between 1924 (the will) and 1951 (purchase by the Museum). The Applicants have referred to the photograph album, which they date to 1933/1934, and the 1935 transcript from the will that they submitted. As discussed above, it is however not possible to give a precise dating for the photographs in which the work can be seen. In view of the statement ‘Verkündet am 14. Oktober 1935’, on the 1935 transcript of the will, it is not possible to conclude that the work still belonged at that moment to the Stern-Lippmann collection.
The Committee has addressed the question of whether, in the absence of information about what happened to the work in the 1924-1951 period, it can be deemed sufficiently plausible that Stern-Lippmann lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime. The Committee included the scenarios advanced by the Applicants in its considerations. The Committee considers that there are insufficient factual grounds to support any of these scenarios. The following is important in this regard.

- The Applicants contend that the work was transported from Germany to the Netherlands in 1939. They assert that the Ölbild’ from the ‘Groβes Wohnzimmer, which is referred to in documentation concerning the shipment of Stern-Lippmann’s household effects to the Netherlands in December 1939, has to have been the currently claimed work. In earlier contacts with the Museum they advanced the possibility that the work was transferred from Germany in secret. In view of the presence of a Kandinsky, ‘Landschaft’, on the 1950 ‘Bilderliste’, the Committee cannot rule out the possibility that the work, in common with a number, possibly a large number, of Stern-Lippmann’s other paintings, was transported in around 1939 from Germany to the Netherlands, but the significance of this list has not become sufficiently clear.
- With the exception of the 1950 ‘Bilderliste’, the work is not mentioned on the different post-war lists of valuations of artworks from the Stern-Lippmann collection that were found during the investigation. The ‘Bilderliste’ refers to a ‘Landschaft’ by Kandinsky, stating the country as ‘USA’ and an estimated value of ‘[DOLLAR] 500.-’. This statement on the ‘Bilderliste’ was crossed out by hand. This was the only work on the list concerned to be treated thus. In the Committee’s opinion, however, no unambiguous conclusions can be draw from this statement and crossing out, or from the absence of a mention of the work on the other lists that were found.
- In the Committee’s view an exception to this last point is the fact that the work does not appear on the Schukking list of artworks that belonged to Stern-Lippmann in 1940 but were no longer found in the household effects after 1945, nor is it on the list sent to the WGA in 1959. This makes it plausible that the work was not considered to be missing during the 1945-1959 period. The explanation given by the Applicants, namely that the work is not on the Schukking list because it was ‘entartete Kunst’, which according to the Applicants could not be insured, is not convincing because examples of ‘entartete Kunst’ are decidedly on the Schukking list, for example a painting by Munch.
- It is known that at the end of 1941 Stern-Lippmann tried to obtain an emigration visa for herself and her family. Part of this process involved putting the painting Portrait of Miss Edith Crowe by Fantin-Latour at the disposal of the Dienststelle Mühlmann. Stern-Lippmann had to buy this painting for this purpose from the firm of D’Audretsch in The Hague for NLG 40,000. Frank was an intermediary in this purchase.
- The Applicants advance the possibility that Stern-Lippmann had to sell various works from her collection, including the currently claimed work, in order to be able to buy the painting by Fantin-Latour. The painting was allegedly sold at the end of 1941 via Frank to Legat, who then supposedly held on to the painting until 1951. In the Committee’s opinion there is not sufficient prima facie evidence for this course of events, as asserted by the Applicants, although it cannot be entirely ruled out that art from the collection was sold during the war. There is, however, no indication that Stern-Lippmann actually sold artworks for the purposes of purchasing the painting by Fantin-Latour.

6.5      In view of the above, the Committee is of the opinion that insufficient facts and circumstances have been established on the grounds of which it can be deduced with the required degree of plausibility that the work ceased to be in the possession of Stern-Lippmann during the Nazi regime. Basing its considerations on the yardsticks of justice and fairness, the Committee will issue an opinion that the City Council is not obliged to restitute the work.

BINDING OPINION

Eindhoven City Council is not obliged to restitute the painting Blick auf Murnau mit Kirche by Wassily Kandinsky to the Applicants.

This binding opinion was issued on 29 January 2018 by A. Hammerstein (Chair), J.H.W. Koster, J.H. van Kreveld, H.M. Verrijn Stuart (Vice-Chair), G.N. Verschoor and C.C. Wesselink, and signed by the Chair and the Secretary.

(A. Hammerstein, Chair)                          (M.C.J. Kooij, Secretary)