Restitutiecommissie = - Binding advice RC 3.95

Binding advice RC 3.95=20

Date	:	3 May 2010
Case number	:	RC 3.95
		Binding advice concerning the dispute over:
		the painting Road to=20 Calvary

___________________________________= _________________________________________________________________________= ______

=20

Binding advice

in the dispute between:

The heirs of Oppenheimer and = the=20 company
Van Diemen & Co. in the process of being wound=20 up
represented by
Ms E. Sterzing, Avocat =E0 la = cour=20
in Paris
hereafter referred to as: =91the Oppenheimer family', =

and:=20

Ms J.F.K.
represented by Mr J.W.A. = Vesterink=20
in Amsterdam
hereafter referred to as: =91Ms K.',
given = by the=20 Advisory Committee on the Assessment of Restitution Applications for = Items of=20 Cultural Value and the Second World War in The Hague (the Restitutions=20 Committee), hereafter referred to as =91the Committee', with the = application of=20 Article 2, paragraph 2 of the Decree Establishing the Restitutions = Committee.=20

1. Introduction
The reason for the dispute = is a=20 possible division of the proceedings from the sale of the painting = Road to=20 Calvary, Brunswijker Monogrammist, also known as the = Bearing=20 the Cross, Hans van Wechelen, hereafter referred to as: (the = painting)=20 Road to Calvary or the work of art. During the Nazi regime in = Germany,=20 the Oppenheimer family lost possession of this painting as a result of = an order=20 by Nazi authorities to have their art property auctioned. The painting = is=20 currently owned by Ms K., who would like to sell it. The parties = are=20 divided on how the proceeds from the sale of the painting should be = shared=20 between Ms K. and the Oppenheimer family.

2.=20 Procedure
2.1 The parties have submitted a joint request to = the=20 Minister for Education, Culture and Science (hereafter referred to as: = =91the=20 Minister') to have the dispute settled by the Committee. The Minister = submitted=20 a written request to the Committee on 2 October 2008, asking the = Committee to=20 advise the parties on the dispute in accordance with the procedure laid = down in=20 Article 2, paragraphs 2 and 3 of the Decree Establishing the = Restitutions=20 Committee of 16 November 2001 (hereafter referred to as: =91the = Decree'). In=20 accordance with Article 2, paragraph 5 of the Decree, the Committee = issued=20 advice in this procedure according to the standards of reasonableness = and=20 fairness.

2.2 In letters dated 8 March 2009 and 13 March 2009=20 respectively, Ms K. and the Oppenheimer family declared that they = deferred=20 to the regulations established by the Committee concerning the binding = advice=20 procedure and that they would consider the Committee's recommendation to = be=20 binding. The Committee has verified the identities of the parties and = has=20 received powers of attorney from the representatives which attest to = their=20 authority to act on behalf of the parties in this procedure.

2.3 = The=20 representative of the Oppenheimer family, Ms Sterzing, is not only = acting=20 as the lawyer for the Oppenheimer heirs, but also as the liquidator of = the=20 company Van Diemen & Co., charged with winding up the art = dealership. The=20 Committee has also received documentation which shows that a German = court has=20 appointed Ms Sterzing as Nachtragsliquidatorin. On 19 = April 2010,=20 Ms Sterzing explained to the Committee in person that her role of=20 Nachtragsliquidatorin of Van Diemen & Co is =91only for the = purpose=20 of claiming works of art that were the property of the company [art = dealership=20 Van Diemen & Co., addition by Committee]' and that in the event of=20 successful claims, it would be her =91obligation to distribute money = among the=20 heirs'.

2.4 The Committee informed the parties about the = procedure in a=20 letter dated 2 February 2009. After being invited to do so, both parties = explained their positions in two written rounds, by providing = documentation and=20 by responding to one another: the Oppenheimer family doing so in letters = dated=20 18 May and 12 October 2009 and Ms K. in letters dated 5 July = and=20 5 December 2009. On 28 January 2010, the Committee wrote a letter = to=20 Ms K. requesting information concerning the value of the painting.=20 Ms K. responded in writing on 15 and 27 February 2010. The enclosed = valuation report, drawn up by Mr Broekhof of Amsterdam Auctioneers = Glerum on 25=20 February 2010, valued the painting at =8080,000. The dispute was heard = at the=20 hearing in The Hague on 19 April 2010 in the presence of both parties.=20

2.5 During the hearing, the Committee ascertained that the = parties still=20 disagreed on the desired resolution of the dispute. For this reason, the = Committee concluded the hearing with the announcement that it would = formulate a=20 solution to end the dispute. After the hearing, a document discussed at = the=20 hearing was exchanged in letters dated 20 April 2010, after which the = Committee=20 informed the parties in writing on 22 April 2010 that the procedure is = closed=20 and confirmed that it would now proceed to issue a binding = recommendation.=20

3. Basic principle of the binding advice
On = the=20 basis of the letters sent by the parties to the Minister, enclosed with = the=20 request for advice to the Committee dated 2 October 2008, the letters = from the=20 parties to the Committee during the procedure and the discussion of the = dispute=20 during the hearing with the parties, the Committee assumes the following = facts=20 with regard to this case:

(i) During the Nazi regime, the = grandparents=20 of the Oppenheimer heirs, Rosa and Jakob Oppenheimer, involuntarily lost = possession of the painting Road to Calvary as a result of what = was=20 known as a =91Judenauktion' [Jewish auction] that took place at = Paul=20 Graupe auction house in Berlin on 25/26 January 1935.
(ii) Rosa and = Jakob=20 Oppenheimer were the owners of the Berlin-based Margraf group, which = included=20 the art dealership Van Diemen & Co., also known as Galerie Van = Diemen &=20 Co. At the time of the auction mentioned under (i), Road to = Calvary=20 belonged to the trading stock of this art dealership. The current = applicants on=20 the side of the Oppenheimer family are all grandchildren of Jakob and = Rosa=20 Oppenheimer.
(iii) After the proclamation of what are known as the=20 Washington Principles in 1998, the Oppenheimer family = registered the=20 painting Road to Calvary in the late 1990s in the public = registers of=20 looted art, the Art Loss Register and Lost Art=20 Register.
(iv) The Oppenheimer family discovered the location of = the=20 painting in 2006 after a report by Sotheby's auction house in Amsterdam=20 (hereafter referred to as: =91the auction house'), where Road to = Calvary=20 had been taken by MsK. to be valued.
(v) MsK. is the current = owner of=20 the painting Road to Calvary. She took possession of the = painting under=20 universal title (as a result of inheritance) from her father, who died = in 1999.=20 MsK.'s father had acquired the painting under singular title (sale), = probably at=20 a jumble sale or fair in the province of Noord-Holland in the period = between=20 1985 and 1995, for the approximate sum of one hundred guilders (approx. = =8045). He=20 also acquired a painting by Paulus Bril there during this period, which = MsK.=20 also inherited.
(vi) During the 2006 valuation mentioned under item = (iv), it=20 came to light that the two paintings mentioned under item (v) were = stolen from=20 their former owner, the Stichting P. & N. de Boer in Amsterdam = (hereafter=20 referred to as: =91the foundation') in or around 1984. The foundation = was informed=20 of this and had the paintings seized in 2006. Later that same year, the=20 foundation had the seizure reversed and has since made no claim to = either=20 Road to Calvary or the other painting. The police also had the=20 paintings seized during an investigation into MsK.'s ownership. The case = was=20 dismissed, however, and the seizure reversed. Road to Calvary = is=20 currently housed in MsK.'s residence.
(vii) The foundation acquired = the=20 painting Road to Calvary in the Netherlands in 1964. The = identity of=20 the painting's owner(s) prior to this, going as far back as the auction = in 1935,=20 is unknown. After her father, MsK. is (at least) the fourth owner of the = painting Road to Calvary since the auction in 1935.
(viii) = The=20 conclusions from the recommendations of the Committee of 4 February 2008 = (NK=20 1771 and NK 2244, RC 1.67 Oppenheimer), in particular with = regard to=20 the suffering of the Oppenheimer family as a result of Nazi rule and the = involuntary loss of their art collection in connection with the = above-mentioned=20 auction, have not been called into question by either party, nor has the = subsequent decision to grant restitution.
(ix) The Committee has also = ascertained under item (viii) of the advice that research failed to = uncover any=20 evidence that the Oppenheimers received any of the proceeds from the=20 Judenauktion held in 1935. The Committee adds that = given the=20 nature and aim of the auction as well as all the other circumstances, it = is=20 highly unlikely that the Oppenheimers, having fled the country, ever = received=20 any of the proceeds.

4. The essence of the dispute and a = brief=20 account of the different standpoints
4.1. Ms K. would = like to=20 sell the painting Road to Calvary and the parties are disputing = about=20 the proportion of the proceedings that Ms K. should give to the = Oppenheimer=20 family. The parties would like the Committee to issue a binding = recommendation=20 with regard to this. In a letter dated 8 January 2007, the Oppenheimer = family=20 sought =91eine faire und gerechte L=F6sung und (..) eine Teilung des = Kaufpreises=20 (..)' [a fair and just resolution and (...) a share of the purchase = price=20 (...)]. In a letter dated 6 March 2008, Ms K. expressed the wish = =91to allow=20 [the Restitutions Committee] to determine a possible distribution of the = sales=20 proceeds between the owner and the Oppenheimer heirs'.

4.2. = Referring to=20 the Washington Principles, the Oppenheimer family have based = their=20 claim to the painting Road to Calvary primarily on the = involuntary loss=20 of possession in connection with the Judenauktion held = in=20 Germany in 1935 mentioned under 3 above. The Oppenheimer family = therefore=20 believe they still have a right to claim (ownership of) the painting. = The=20 Oppenheimer family derive an additional argument from the uncertainties = that=20 surround the purchase of the painting at a jumble sale or fair by = Ms K.'s=20 father, in connection with the unsolved theft of the painting from its = former=20 owner (not the Oppenheimer family) in 1984. According to the Oppenheimer = family,=20 Ms K.'s father and Ms K. herself cannot be considered to be in = good=20 faith. The claim by the Oppenheimer family is specifically aimed at = receiving a=20 proportion of the proceeds from the sale of the painting by Ms K.. = The=20 family is not interested in acquiring or purchasing the painting. The=20 Oppenheimer family lastly stated during the hearing that they would be = satisfied=20 with 40% of the proceeds.

4.3 Ms K. has stated that her = father was=20 unaware of the title, the painter, the value and the provenance of the = painting=20 Road to Calvary, and that she was not aware of this herself = until the=20 work was valued in 2006 (item 3 above). Ms K. also stated that = there is no=20 question about her father acting in good faith when he purchased the = painting.=20 Furthermore, she has acknowledged the severity of the circumstances in = which the=20 Oppenheimer family lost possession of the painting in 1935. Ms K. = has also=20 added that the relationship with the events of 1935 has since become = diluted and=20 that the previous history of the painting cannot be attributed to her = given the=20 period of time that has elapsed. During the hearing, however, Ms K. = declared that she was willing to give the Oppenheimer family 20% of the = proceeds=20 from the sale, the reason for this being her compassion for what the=20 Oppenheimers suffered during the Nazi regime.

5. = Considerations=20 of the Committee
5.1 In accordance with = the=20 regulations mentioned under 2.2 above, the Committee may, in any event, = take the=20 following into consideration:
a. the government's line of policy = concerning=20 the restitution of stolen works of art in so far as they apply by = analogy;
b.=20 the circumstances in which possession of the work was lost;
c. the = extent to=20 which the applicant has endeavoured to trace the work;
d. the = circumstances=20 in which the owner acquired the work and the inquiries the owner made = when=20 acquiring it;
e. the significance of the work for the = applicant;
f. the=20 significance of the work for the owner;
g. the significance for the = public=20 art collection.
The Committee hereby states that the line of policy = mentioned=20 under a is based on the Washington Principles.

5.2 The = dispute=20 between the parties focuses on the extent to which Ms K. should = share the=20 proceeds from the sale of the painting Road to Calvary - = currently=20 owned by Ms K. but deemed to be looted art due to the = Judenauktion=20 mentioned under 3 above - with the Oppenheimer family.

5.3 Given = that=20 Ms K., through her representative at the hearing, agreed to = acknowledge the=20 Oppenheimer family's entitlement to the painting, the Committee sees it = as its=20 limited task to determine the measure of this entitlement. The Committee = hereby=20 takes into account that Article 2, paragraph 1 of the regulations = mentioned=20 under 2.2 above do speak of =91disputes concerning the restitution of = items of=20 cultural value', but that an agreement concerning the division of the = sales=20 proceeds could constitute a logical alternative in a situation such as = this one,=20 in which the heirs of the former owner have no interest in acquiring = possession=20 of the work and the current owner is planning to sell it. The Committee = will now=20 outline the steps that led to its binding recommendation.

5.4 = Ms K.=20 inherited the painting from her father, who probably bought it at a = jumble sale=20 or fair in the province of Noord-Holland sometime between 1985-1995. = Further=20 details concerning the time and place are unknown. The Committee sees no = reason=20 to doubt the good faith of either Ms K. or her father. With regard = to the=20 ownership of the painting Road to Calvary, Dutch civil law = stipulates=20 that Ms K.'s right of ownership is inviolable.

5.5 = According to=20 Ms K., her father probably paid around 100 guilders (approx. =8045) = for the=20 painting. She bases this on conversations she had with her father, in = which he=20 stated that he normally did not want to spend more than 100 guilders on=20 purchases at jumble sales and fairs. Ms K. thinks it unlikely that = her=20 father would have paid more for Road to Calvary given her = father's=20 limited, if not lack of, capital. The Committee assumes that an amount = to the=20 tune of =8045 was paid.

5.6 Given this low purchase price, the = Committee=20 is of the opinion that (with hindsight) the purchase price by no means = reflects=20 the true value of the painting, which is currently assessed at many = times the=20 purchase price. It is noted here that Ms K. stated that her father = was=20 unaware of what he had purchased and had no special knowledge of the art = of=20 painting. Given the low purchase price combined with the place of = purchase (a=20 jumble sale) and the fact that to a layman the painting lacks any = striking=20 characteristics, the Committee is of the opinion that it could not be = reasonably=20 expected or demanded of Ms K.'s father, or later of Ms K. = herself, to=20 have instigated research into the provenance of the painting. =

5.7 The=20 Committee deems it inexpedient in this dispute to assess the entitlement = of the=20 Oppenheimer family at a particular sum of money based on the valuation = of the=20 painting at a certain moment. It deems it more appropriate to express = that=20 entitlement in a proportion or percentage of the future sale proceeds, = linking=20 the entitlement to the actual proceeds from the sale of the painting. In = this=20 way, the Oppenheimer family will acquire an economic interest in the = painting,=20 which will remain the legal property of Ms K. until it is sold to a = third=20 party.

5.8 In establishing the percentage of the proceeds that=20 Ms K. will have to give to the Oppenheimer family , the Committee = takes=20 into consideration that as a Jewish family, the Oppenheimer family must = have had=20 to endure considerable personal and professional suffering as a result = of the=20 Nazi regime. At a professional level, this led to the liquidation of = Jakob and=20 Rosa Oppenheimer's companies, including the renowned art dealership Van = Diemen=20 & Co. The couple involuntarily lost possession of property that = belonged to=20 these companies, including the painting Road to Calvary at a=20 Judenauktion held in Germany in 1935. The proceeds from this = auction=20 did not accrue to the Oppenheimers. The Oppenheimer family members = represented=20 in this procedure, who are direct, second generation descendents of = Jakob and=20 Rosa Oppenheimer, are not especially attached to the painting. The = Oppenheimer=20 family do not wish to acquire possession of the painting, but rather to = receive=20 a proportion of the sale proceeds as recognition of the original rights = of Jakob=20 and Rosa Oppenheimer.

5.9 That said, the Committee also takes = into=20 consideration that Ms K.'s father bought the painting in good faith = many=20 years ago, namely in the period between 1985 and 1995. He was unaware of = the=20 nature or value of the painting when he bought it at a jumble sale or = fair for=20 an amount that was far too low to reflect the value the painting = appeared to=20 have some 10 years after his death. As stated in section 5.6, it cannot = be=20 reasonably expected or demanded of either Ms K.'s father or = Ms K.=20 herself to have instigated research into the provenance of the painting. = Furthermore, the Committee concludes that Ms K. is also not = especially=20 attached to the painting and wishes to sell it. She is willing to give a = proportion of the proceeds to the Oppenheimer family, the motive for = which is=20 based on a sense of moral obligation.

5.10 In weighing up the = positions=20 of each party in considerations 5.8 and 5.9, the Committee has come to = the=20 conclusion that according to the standards of reasonableness and = fairness,=20 Ms K.'s share should be twice that of the Oppenheimer family, = meaning that=20 in the event of a sale, Ms K. must relinquish a one-third share of = the net=20 proceeds to the Oppenheimer family. This conclusion reflects that = Ms K.'s=20 right of ownership is beyond all doubt and, all in all, carries the most = weight=20 for the Committee, but that the ownership of Road to Calvary as = a=20 looted work of art has brought forth a moral obligation towards the = Oppenheimer=20 family, which will now be met in the above-mentioned manner, thanks to = the=20 cooperation of Ms K. in working towards a solution. =

6.=20 BINDING ADVICE

The Committee issues the following = binding=20 advice:

a. In the event that the painting Road to Calvary, Brunswijker=20 Monogrammist (also known as the Bearing the Cross, Hans van=20 Wechelen) is sold, Ms K. will, upon submission of verificatory = documents, relinquish a one-third share of the net proceeds to = Ms Sterzing=20 in her capacity as Nachtragsliquidatorin for Van Diemen & = Co, or=20 her legal successor in this position;

b. the Oppenheimer family = will do=20 all they can to effect the sale of the painting in question by = Ms K.,=20 including deletion of the entry from the Lost Art Register, = Art=20 Loss Register or any other such register.

This binding = advice was=20 given on 3 May 2010 by W.J.M. Davids (chair), J.Th.M. Bank, P.J.N. = van Os,=20 E.J. van Straaten, H.M. Verrijn Stuart, I.C. van der Vlies (vice-chair) = and=20 signed by the chair and the secretary.

(W.J.M. Davids,=20 chair) &= nbsp; &n= bsp; =20 (E. Campfens, secretary)

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