Restitutiecommissie = - Recommendation RC 1.96

Recommendation RC 1.96=20

Date	:	3 May 2010
Case number	:	RC 1.96
		Recommendation regarding:
		Stern

______________________________________= _________________________________________________________________________= ____________________
=20

In a letter dated 17 October 2008, the Minister for Education, = Culture and=20 Science (hereafter referred to as: =91the Minister') requested the = Restitutions=20 Committee (hereafter referred to as: =91the Committee') to issue a = recommendation=20 regarding the application of 30 May 2007 by the =91Estate of Dr. Max = Stern' (hereafter referred to as: =91the applicant') for the = restitution of=20 the painting Allegory of Earth and Water by Jan Brueghel I. The = claimed=20 painting was returned to the Netherlands after the Second World War and = is now=20 part of the Netherlands Art Property Collection (NK collection) under = inventory=20 number NK 2303. The work is currently on loan to the Noordbrabants = Museum in Den=20 Bosch. 3Dnk2303-website

The procedure

On 30 May 2007, the =91Estate of Dr. Max Stern', represented = by the=20 Holocaust Claims Processing Office (HCPO) in New York, submitted an = application=20 for restitution to the Minister for Education, Culture and Science. The=20 =91Estate of Dr. Max Stern' is administered by the = =91executors of Dr.=20 Stern's Estate', namely S.F., M.V. and R.V. Following the = above-mentioned=20 request for advice, the Committee conducted a fact-finding = investigation, the=20 results of which were recorded in a draft investigatory report of 9 = November=20 2009. On 19 November 2009, the draft investigatory report was sent to = the=20 applicant for a response, along with several questions from the = Committee. On=20 the same day, the draft investigatory report was also sent to the = Minister with=20 a request for more factual information. The Minister informed the = Committee by=20 email on 4 January 2010 that he had no additional information to = provide.=20 The applicant provided a substantive response in a letter dated 6 = January 2010=20 and responded in more detail in a letter dated 1 March 2010 and in an = email=20 dated 4 March 2010. The investigatory report was adopted on 3 May 2010. = For the=20 facts of the case, the Committee refers to this report.

Considerations:

The applicant is requesting the restitution of the painting = Allegory=20 of Earth and Water by Jan Brueghel I (NK 2303), claiming to be = =91Dr.=20 Stern's legal successor in interest'. The =91Dr. Stern' in = question is=20 German-born Max Stern (1904-1987). The Committee has taken cognisance = of=20 documentation pertaining to his estate, including his will of 13 = December 1985=20 and a codicil of 7 August 1986, which shows that the estate of Max = Stern is=20 administered by a foundation aimed at providing support to three = university=20 institutions in Canada and Israel. The Committee also has a document = that=20 shows that the HCPO is authorised to represent the =91executors of = Dr.=20 Stern's Estate' in the application for restitution. On the basis = of these=20 documents, the Committee sees no reason to doubt the status of the = applicant=20 as the rightful claimant with regard to the estate of Max Stern.
The relevant facts are described in the investigatory report of 3 = May=20 2010. The following is a summary. According to the applicant, the = Jewish art=20 dealer Max Stern (hereafter referred to as: =91Stern') was the owner = of Galerie=20 Julius Stern in D=FCsseldorf (hereafter referred to as: =91(the art = dealership of)=20 Stern'). In 1935, during the Nazi regime, he was prohibited from = practising=20 his profession and instructed to discontinue his company. He = subsequently fled=20 Germany in December 1937. The applicant claims that Stern sold the = current NK=20 2303 as a direct consequence of Nazi persecution in Germany in the = period=20 between September 1936 and November 1937. Correspondence with the = Committee,=20 however, also shows that the applicant has considered the fact that.=20 alternatively, the work may have played a role in Stern's mother's = flight from=20 Germany in September 1938 and that it may have been sold in that = period. After=20 fleeing Germany, Stern established another art dealership, first in = England=20 and then, in 1940, in Canada. Stern married Iris Ester Westerberg in = 1946, and=20 as far as in known, the couple had no children. Stern's wife died in = 1978 and=20 Stern in 1987.
As far as is known, Stern did not submit an application for the=20 restitution of lost art possessions with the Dutch authorities for the = restoration of rights after the war. In the research conducted by the=20 Committee, nothing was found to indicate that Stern was aware that the = currently claimed painting had been returned to the Netherlands after = the war.=20 On the basis of this information, the Committee assumes that there has = not=20 been a previous application for restitution of the current NK 2303 = from the=20 former property of (the art dealership of) Stern. The Committee = therefore=20 deems the application admissible.
Who owned the current NK 2303 before the Nazis took power in 1933 = is=20 unknown. This is also true for the person from whom Stern acquired the = painting. Research data, however, does indicate that, in any case, the = currently claimed work was in Stern's possession in or around = September 1936.=20 This can be inferred from a photo card of the current NK 2303 in the=20 Netherlands Institute for Art History (RKD) with the annotation = =91Gal.=20 Stern, Dusseldorp (1936)'. The RKD archives also contain a = letter,=20 dated 3 September 1936, sent by =91Galerie Stern' = in=20 D=FCsseldorf to Dr. H. Schneider, the director of what was then known = as the=20 Netherlands Institute for Art History and Iconographical = Documentation. The=20 letter mentions several new acquisitions including a =91Bild von = Jan=20 Brueghel d. Ae. und Hendrik v. Balen, Wasser und Erde' [Painting = by Jan=20 Brueghel the Elder and Hendrik van Balen, Water and Earth]. The letter = also=20 states that =91Herr Geheimrat Friedl=E4nder' [privy = councillor=20 Friedl=E4nder] ^_ an art historian who often assessed art = for art=20 dealers ^_ had =91soeben begutachtet' [recently = appraised]=20 the painting. The applicant also sent a copy of a photograph of the = currently=20 claimed painting from Stern's archive in the National Gallery of = Canada. The=20 rear of the photo includes the annotation: =91Holz. H. 60,5, B. 89 = cm. /=20 Gutachten Geheimrat Friedl=E4nder' [Wood. H. 60.5, W. 89 cm / = appraised by=20 privy councillor Friendl=E4nder]. These dimensions are almost = identical to those=20 of the current NK 2303 (61.0 x 89.0 cm). In addition, the applicant = also sent=20 a =91customer card', which came from archival material = concerning Stern=20 in the National Gallery in Canada, which, according to the applicant, = suggests=20 that Stern offered a painting by Jan Brueghel and/or H.O. Balen for = sale to a=20 potential customer on 4 September 1936. The card bears the = inscription=20 =91Nicolaus, Dr. Heinr., G=FCnzach [...]' and includes the = lines=20 =914/9.36. angeb. Kreuzigung (Meister v. Frankf.), Jan Brueghel, = H.O.=20 Balen. / 16/9.36 geantw. = ka=FCft vorla=FCfig=20 nichts mehr' [4/9.36 off. crucifixion (master of Frankf.), Jan = Brueghel,=20 H.O. Balen. answered on 16/9.36. will not be buying anything for the = time=20 being]. From the fact that a purchase price was not mentioned after = the work=20 by Jan Brueghel and/or H.O. Balen, which was customary for Stern to do = when he=20 sold a painting, the applicant has concluded that Nicolaus did not buy = =91the Brueghel/Balen painting'. On the basis of = photos that=20 it also sent to the applicant, the Committee has conducted research = into,=20 among other things, stamps and numbers on the rear of the current NK = 2303.=20 This has failed to uncover any details relevant to this case regarding = the=20 provenance of this painting before or during the war. Based on this=20 information, the Committee deems it highly likely that the current NK = 2303 was=20 owned by Stern in 1936.
Anti-Jewish measures in Germany led to Stern being prohibited from = practising his profession in August 1935. Due to the deteriorating = situation=20 facing the Jews, Stern's sister Hedwig left Germany in 1936 to open a = new art=20 dealership in England. There is evidence that, when she emigrated, she = took an=20 unknown number of Old Masters with her. The applicant declares that, = on the=20 basis of archival research, there is nothing to indicate that the = current NK=20 2303 was exported or taken to England by either Stern or his sister. = Stern was=20 believed to have taken several of his paintings to London and = Amsterdam. In=20 March 1937, he sold the two buildings in D=FCsseldorf that housed the = art=20 dealership and the Stern family home, and in September 1937, he = received=20 definitive notice from the German authorities that his businesses had = to be=20 wound up by 15 December 1937. Stern had what was left of his trading = stock of=20 more than 200 paintings auctioned at Math. Lempertz auction house in = Cologne=20 in November 1937. According to the applicant, this was =91a = so-called=20 "Jewish auction", in which his paintings [were, RC] sold for = a=20 fraction of their fair market value'. The RKD contains an = annotated=20 catalogue of the auction by the Lempertz company in November 1937. The = current=20 NK 2303 is not mentioned in this catalogue. According to the = applicant, those=20 works of art that remained unsold at the auction were returned to = Stern's art=20 dealership and put up for sale until the dealership was wound up. = However, a=20 copy of this final sales catalogue of Stern in Germany, which was sent = by the=20 applicant, does not include NK 2303. On 23 December 1937, Stern left = for=20 England, leaving behind paintings at Lempertz auction house and at = Josef=20 Roggendorf, a storage and shipping company in Cologne. Most of these = paintings=20 were reportedly later confiscated and, according to the applicant, = =91sold=20 by the Gestapo at Hufschmied, a second-rate auctioneer of household=20 goods'. According to the applicant, Stern was not permitted to = take any=20 works of art with him when he emigrated and what was left of his = trading stock=20 and private collection remained in Germany. What happened to these = works of=20 art is unclear. The applicant has stated that some paintings were sold = in 1938=20 in order to obtain an exit visa for Stern's mother, Selma, who had = remained=20 behind in Germany. The documents provided by the applicant support = this=20 theory, but do not offer a comprehensive overview of the paintings = sold and=20 the current NK 2303 is not mentioned. The location of the currently = claimed=20 painting remained a mystery until in or around 1943. The Committee = uncovered=20 details that indicate that the work of art in question was in the = possession=20 of =91Mensing & Zn., Amsterdam' and that it was sold in = 1943 or=20 1944 to the Kunsthalle Hamburg by the art dealer J. Dik jr. This = indicates=20 that Stern or his family lost possession of the current NK 2303 = sometime=20 between 1936 and 1943 or 1944.
Based on the results of the investigation, the Committee then = assessed=20 whether there were any indications to suggest with a high degree of=20 probability that possession of the painting was lost involuntarily as = referred=20 to in the Ekkart Committee's fourth and sixth recommendations of 2003=20 regarding the trading of art. If, as in Stern's case, the post-war = Dutch=20 authorities (the SNK) do not have any declaration forms on which = involuntary=20 loss of possession is indicated, the probability that the loss of = possession=20 was involuntary can also be assumed if the applicant can demonstrate = that=20 there is question of theft, confiscation or coercion. The fourth=20 recommendation states that in making this judgment, threatening = general=20 circumstances with regard to Jewish art dealers must be taken into = account.=20 According to the consideration that led to this recommendation, if = hard=20 evidence is lacking, a measure of flexibility should be exercised and=20 indications that suggest that loss of possession was probably = involuntary=20 should be employed generously.
The Committee considers the following. The way in which Stern lost = possession of the claimed painting is difficult to determine with any=20 certainty; this also goes for the day on which or the period in which = this=20 loss occurred, other than that mentioned in the conclusion to the = fifth=20 consideration above. For this reason, the Committee will also subject = the=20 proposed and other realistic possibilities concerning this loss to an=20 investigation, making a distinction between the relevant periods in = which=20 Stern could have lost possession of the painting, namely:
A. from 4 = September 1936 (the day on which Stern, according to the customer = card,=20 definitely had possession of the painting) until 23 December 1937 (the = day on=20 which Stern left Germany) and
B. after 23 December 1937 until 1943 = or 1944,=20 when the painting was acquired by the Kunsthalle Hamburg, the period = in which=20 Stern resided first in England and then in Canada.
With regard to the period mentioned under A, in which Stern = resided in=20 Germany, the Committee has taken the following circumstances into = account.=20
Based on the Reichskulturkammergesetz of 1 November 1933, Stern = was given=20 four weeks to wind up his activities as an art dealer as of 29 August = 1935.=20 His sister Hedwig, who also worked in the dealership, moved to England = in 1936=20 to open a new art dealership there. In March 1937, Stern sold the two=20 buildings in D=FCsseldorf that housed the art dealership and the Stern = family=20 home. After an attempt to have his business taken over by a third = party, which=20 bought him some time before executing the order of 29 August = 1935, he=20 received definitive notice that his art dealership had to be wound up = on 13=20 September 1937. This date was later set at 15 December 1937 at the = latest. In=20 November 1937, Stern had his remaining trading stock of more than 200=20 paintings auctioned ^_ in the =91Jewish = auction'=20 mentioned above under consideration 5 ^_ which only fetched = a=20 fraction of the market value of the paintings. What remained of the = trading=20 stock was put up for sale in Stern's art dealership until it was wound = up. On=20 23 December 1937, Stern fled to England. To that end, he was forced=20 ^_ in addition to the costs of setting up such an=20 establishment overseas under the given circumstances ^_ to = pay the=20 statutory =91Reichsfluchtsteuer', a substantial escape tax imposed by = the Third=20 Reich.
Although Stern was ordered to cease his professional activities in = August=20 1935, it must be assumed that, given the fact that the execution of = this order=20 was postponed, the claimed work of art was part of his trading stock = during=20 the period in which he resided in Germany. This follows from the = following=20 interrelated circumstances:
- the listing of the work on a = customer=20 card (cons. 4),
- the existence of the art dealership until = December=20 1937 as indicated in the 1937 address book for the city of = D=FCsseldorf,
-=20 the letter from Stern to Dr. Schneider of 3 September 1936 on = =91Galerie Stern'=20 letterhead (cons. 4), and
- the presence of a photo of the = painting in the=20 collection of photos of the paintings in =91Galerie Stern' (cons. 4). =
While=20 this does not explain why the painting was not put up for sale at the=20 =91Jewish auction', it does not outweigh the other = indications=20 either.
The Committee is of the opinion that the circumstances in which = Stern=20 found himself in late 1936 and throughout 1937, as summarised in = consideration=20 8 above, were so menacing and dangerous that had he succeeded in = selling the=20 claimed painting during this period, it should be considered to have = been=20 under duress. In addition, the Committee also attributes importance to = the=20 circumstances that forbade Stern to take his possessions with him from = Nazi=20 Germany and that any such sale would have been intended to raise funds = for his=20 flight.
The following circumstances are key with regard to the period = mentioned=20 under consideration 7.B above in which Stern resided first in England = and then=20 in Canada.
Stern no longer had a trading and residential address in = Germany. The possessions he left behind upon fleeing to England were=20 confiscated by the German authorities and sold by the Gestapo at an = auction=20 unsuitable for the items confiscated. On 26 January 1938, the German=20 authorities gave the order to block Stern's assets in Germany, in = particular=20 to freeze his bank account. On 12 July 1938, he was stripped of his = German=20 citizenship, which also signified the confiscation of his entire = estate.
In=20 summary: Stern was forbidden to trade in Germany, had no place of = business, no=20 business capital or other assets and no practical options to contact = buyers or=20 sellers.
It must also be assumed that Stern could not take the = claimed=20 painting to England. During the occupation, the current NK 2303 was = housed at=20 art dealerships Mensing or Dik in the Nazi-occupied Netherlands (cons. = 5) and=20 later showed up in the Kunsthalle in Hamburg. It is difficult to = imagine why=20 and how the painting should have ended up in Nazi territory from = England.
The Committee is of the opinion that the facts and circumstances=20 established under consideration 11 above lead to the conclusion that = Stern=20 lost possession of the painting involuntarily, even if this occurred = between=20 December 1937 and 1943/1944. As a result, only two possibilities need, = in=20 fairness, to be taken into consideration. The first is that the = claimed=20 painting was sold to help Stern's mother flee to England, as put = forward by=20 the applicant, and the second is that Stern lost possession of the = claimed=20 painting without his consent. The Committee will assess both = possibilities=20 below.
As the applicant has stated, Stern's mother, Mrs Selma Stern, who = was also=20 Jewish, was able to leave Germany on an exit visa in 1938 and joined = her son=20 and daughter in England. A =91Verm=F6gensaufstelling' = [financial=20 statement] drawn up and signed by Selma Stern on 30 June 1938, = evidently with=20 a view to her departure, indicates that she had RM 14,023 but was = still short=20 RM 25,000. With regard to this situation, she stated: =91Den = Fehlbetrag an=20 RM 25.000.--werde ik aus dem Verkauf von Bildern, Plastiken etc.=20 beschaffen' [I will secure the remaining amount of RM 25,000 from = the=20 sale of paintings, sculptures, etc.].
Another key factor is a = letter Stern=20 sent to his former lawyer Dr. Liebermann on 19 June 1953, in which he=20 wrote:
=91You may recall that my Mother was left in Germany = [...*[*]]. I urged in 1938, shortly before Munich, = you to let=20 her come to England. You may remember also that we asked Dr. Peters I = think it=20 was, in Cologne, to assist you as the Nazis at that time claimed my = whole bank=20 account as taxes. You may remember that Dr. Peters told them that it = was more=20 or less blackmail but they answered him: =91We know that but if you do = not pay,=20 Mrs. Stern will not get a passport Now.''
By order of 12 = September=20 1938, Dr. Liebermann was granted permission to transfer RM 10,200 = to=20 Stern, which Stern was only able to access with the authorisation of = the=20 appropriate foreign exchange office. In the Committee's opinion, this = shows=20 that if the painting was sold to fund Selma Stern's flight to England, = it was=20 done so under duress.
The other possibility that remains is that Stern lost possession = of the=20 claimed painting without his consent during the period in which he = resided in=20 England or Canada. By definition, this means that the loss was = involuntary.=20
The Committee is, therefore, of the opinion that the loss of = possession=20 was involuntary as a result of circumstances directly related to the = Nazi=20 regime, and concludes that the application for restitution should be = granted.=20
In addition, the Committee is also of the opinion that in the = event of any=20 sale, the probable sales proceeds must have been used to allow Stern = and his=20 family to flee abroad, or that costs must have been incurred in = connection=20 with this flight at the very least, due in part to the fact that Stern = had to=20 pay excessive taxes for his flight and that, after fleeing, his bank = balances=20 were frozen and/or confiscated. The Committee therefore deems it = unlikely that=20 (the art dealership of) Stern had free disposal of the sales proceeds, = if in=20 fact any sale occurred. The Committee will therefore recommend that = the=20 restitution of the current NK2303 must not be subject to a payment=20 obligation.

Conclusion
The Restitutions Committee advises = the=20 Minister for Education, Culture and Science to grant the application for = the=20 restitution of Allegory of Earth and Water by Jan Brueghel I=20 (NK 2303) to the rightful heirs to the = =91Estate of Dr.=20 Max Stern'.

Adopted at the meeting of 3 May 2010=20 by W.J.M. Davids (chairman), J.Th.M. Bank, E.J. van Straaten, = H.M.=20 Verrijn Stuart, I.C. van der Vlies (vice-chairman), and signed by the = chair and=20 the secretary.

(W.J.M. Davids,=20 chairman) &nbs= p; = ; = =20 (E. Campfens, secretary)

*[*] This is barely legible on the copy provided to = the=20 Committee. It probably says: 'in 1937'.

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