W.A.E. and A.J.C-E.
represented by mr. P.W.L. Russell
hereafter referred to as ‘E. and C.’,
De Zeeuwse Museumstichting
represented by mr. R.W. Polak
in The Hague
hereafter referred to as ‘the Museum’,
given 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), hereafter referred to as ‘the Committee’.
Ernst Flersheim (1862-1944), hereafter referred to as ‘Flersheim’, was the owner of the painting A Prayer before Supper (1907) by Jan Toorop (hereafter referred to as: ‘the painting’ or ‘the work of art’) before losing possession of it around 1938. In 1981, the painting was bought by the Zeeuwse Museumstichting (hereafter referred to as ‘the Museum’) and is currently part of the collection in the Zeeuws Museum in Middelburg. E. and C. are Flersheim’s heirs and have submitted an application for the restitution of A Prayer before Supper, based on their assertion that the painting was relinquished involuntarily as a result of circumstances directly related to the Nazi regime. The Museum has rejected E. and C.’s claim.
The parties have submitted a joint request to the Minister for Education, Culture and Science (OCW) to have the dispute settled by the Committee. The Minister submitted a written request to the Committee on 2 May 2006, asking the Committee to advise the parties on the dispute in accordance with the procedure laid down in Section 2, subsections 2 and 3 of the Decree establishing the Advisory Committee on the Assessment of Restitution Applications of 16 November 2001. In letters dated 31 March 2006 and 5 April 2006 respectively, the Museum and E. and C. declared that they will consider the Committee’s recommendation to be binding.
The Committee has taken cognisance of all documents submitted by the parties. The dispute was heard at the hearing in Utrecht on 16 April 2007 in the presence of both parties, who explained their respective positions on the basis of the written pleadings.
During the hearing, E. and C. offered to compensate the Museum for the sum that it paid for the painting in 1981 (NLG 150,000). No agreement could be reached between the parties during the hearing, after which the Museum was granted some time to respond to E. and C.’s proposal.
In a letter dated 18 June 2007, the Museum rejected the proposal, citing their reasons for doing so, after which the Committee resumed the procedure.
In a letter dated 18 September 2007, the Committee requested that both parties provide more detailed information, whereupon they both responded in writing. Finally, a Jan Toorop expert was consulted by the Committee, and the results of the investigation were communicated to both parties in a letter dated 19 November 2007, to which both have responded in writing.
The following indisputable facts can be assumed in this procedure.
1. E. and C. submitted an application for the restitution of the painting A Prayer before Supper (1907) by Jan Toorop to the Museum in 1999. Their grandfather, Ernst Flersheim (1862-1944), lost possession of the painting around 1938. A Prayer before Supper was bought by the Museum in 1981 from the art dealer Ivo Bouwman in The Hague (hereafter referred to as ‘Bouwman’) who acquired the painting in 1973, probably from the estate of the art dealer Herman d’Audretsch in The Hague (hereafter referred to as ‘D’Audretsch’). A Prayer before Supper has been part of the Museum’s collection since 1981 and is on permanent display. The application for restitution submitted by E. and C. to the Museum did not result in the painting’s restitution.
2. In the 1930s, Flersheim lived with his wife Gertrud Flersheim-Freiin von Mayer (1872-1944) in Frankfurt am Main, Germany, where he ran an international family business. The Flersheims were of Jewish extraction and had three children: Hans (1893-1933), Edith (1895-1992) and Margarete (1904-1940). Over the years, Flersheim had built up a private art collection that included, at least from 1909 onwards, A Prayer before Supper. The painting can be seen in a photograph taken at E. and C.’s parents’ wedding.
Under Nazi rule, the Flersheim family lost the security of its livelihood as well as a substantial part of its estate. In 1936 and 1937, the two Flersheim daughters fled to London and Brussels respectively, after Flersheim had negotiated with the German authorities about moving his business abroad in the years previously (1935-36). In March 1937, Flersheim fled to the Netherlands. On 2 March, he was issued with a visa; on 12 March, he was given a residence permit due to his Jewish extraction and the political situation in Germany; and on 16 March, he was included in the population register in Amsterdam. His wife initially remained in Frankfurt am Main but joined her husband in Amsterdam one year later, in March 1938. The German authorities declared that the Flersheims were no longer German citizens and took possession of their estate.
In May 1937, the Flersheims auctioned part of their art collection in Frankfurt am Main. The owner of the auction house declared in 1953 that the Flersheims had put their collection up for auction following coercion by the Nazi authorities. A Prayer before Supper, however, was not on his list of works of art that were offered for auction in May 1937.
According to a post-war statement made by Edith Eberstadt-Flersheim to the Wiedergutmachungskammer des Landgerichts Frankfurt am Main (Chamber of Reparation of the District Court of Frankfurt am Main), a number of other artworks from the Flersheim collection were confiscated by the Gestapo around 1938, including artworks that the Flersheim’s had put into storage in Germany. According to this post-war statement, A Prayer before Supper (German title: Tischgebet) was one of the works confiscated. No further evidence concerning any such confiscation was found in this procedure, partly due to the possibility that relevant information concerning Gestapo activities was lost during the war.
Neither party disputes that the painting was part of Flersheim’s estate and that it was in his possession until around 1938, neither do they dispute that it was relinquished involuntarily as a result of circumstances directly related to the Nazi regime.
The Flersheim couple were deported in 1943 and died in Bergen-Belsen concentration camp in 1944. Only their daughter, Edith Eberstadt-Flersheim, survived the war along with her family.
3. The Committee has been unable to determine in this procedure what happened to the painting in the period after the confiscation in or around 1938 suggested by E. and C. and where and in whose possession it was. The painting was probably returned to the Netherlands several years after it was confiscated and was, in all probability, in the hands of the art dealer H.E. d’Audretsch in November 1942. The archive of photographer L. Dingjan in The Hague, who carried out assignments for D’Audretsch, contains a glass plate negative of A Prayer before Supper from that period and another from 1944. Furthermore, a card on the back of the painting gives an indication about the possible inclusion of the painting in a number of Dutch collections including those of ‘G. Oudshoorn (Rotterdam Bank) The Hague’ and ‘Collection of Mr. W.A.M., Nijmegen’. This card is undated but the names correspond with those of persons in the 1940s and 50s. The next clue is the acquisition of the painting by Bouwman in 1973. As he remembers it, he received the work from D’Audretsch’s estate. The Museum then bought the painting from Bouwman in 1981 for the sum of NLG 150,000, half of which (NLG 75,000) was donated by the Rembrandt Association.
It is unknown whether or not the Museum knew at the time it bought the work that the painting was previously owned by Flersheim before 1940 and that it had been confiscated by the Nazis due to its owner being Jewish. The Museum states that it has been impossible to determine what research was conducted at the time to uncover the provenance of the painting, but any such research was probably superficial.
4. In 1999, the Museum asked the Committee for the Code of Ethics for Museums for advice concerning E. and C.’s application for restitution, particularly with respect to the conscientiousness of the Museum at the time of the acquisition. In May 2000, this committee issued the following advice:
‘The Committee for the Code of Ethics for Museums is of the opinion that the Zeeuws Museum did not act carelessly with regard to the acquisition of the painting concerned in 1981 by not instigating a further investigation into the provenance of the painting. (..) The committee concludes that the Zeeuws Museum could not have known in 1981 that there may have been a problem concerning the provenance of Toorop’s work.’
Moreover, the Committee for the Code of Ethics for Museums came to the conclusion after considering self-formulated factors that, in its opinion, the Museum did not act improperly in rejecting the application for restitution of A Prayer before Supper. They added the following:
‘The provenance of the painting, however, contains ‘elements that point to dubious trading’ (as described by article 5 of the Guidelines concerning Museum Acquisitions 1940-1948) in the period between 1938 and 1945, which is why the committee deems that in the spirit of those guidelines a possible alternative should be sought for a reasonable and fair solution that will do justice to the emotional importance to the applicant on the one hand and the importance of the piece for the Museum’s collection on the other.’
The Committee for the Code of Ethics for Museums then decided that it was not in their mandate to broker such solutions. Their advice also contained the following consideration:
‘The painting was acquired at the time for NLG 150,000, of which NLG 75,000 came from financial support provided by the Rembrandt Association. In that light, the committee considers it reasonable that compensation be paid that covers the purchase price and the costs of maintaining the painting. However, the committee has been unable to determine whether the heirs are prepared to do this.’
5. On 27 September 2006, the Museum introduced a dated written statement by Prof. R.E.O. Ekkart from the Netherlands Institute for Art History in The Hague into the procedure, in which Ekkart gives his opinion about the acquisition practices used by museums and art dealerships in 1981 with regard to the possible war history of acquisitions. The purport of this statement is that such practices did not exist in those days and that more recent awareness of such cannot be projected back to 1981. Incidentally, E. and C. dispute the accuracy, in part, of this statement.
6. On 30 January 1956, the Wiedergutmachungskammer des Landgerichts Frankfurt am Main paid compensation to the sole surviving member of the Flersheim family, Edith Eberstadt-Flersheim, for the works of art that were taken by the Nazi authorities from the Flersheims’ collection. In the Wiedergutmachungskammer’s statement, an artwork by Jan Toorop called Tischgebet was included (A Prayer before Supper). Compensation for this painting amounted to DM 3,000.
7. The Committee asked Jan Toorop expert G. van Wezel about the quantity, quality and availability of paintings by Toorop. Van Wezel said he could only name two other paintings of the same quality as A Prayer before Supper. Van Wezel commended the quality of the painting and declared that a work of comparable quality never or very rarely appears on the market. However, he also pointed out that there are possibilities that a painting by Jan Toorop of this quality could be put out on loan for exhibition purposes. There are a relatively large number of good quality paintings with themes relating to Zeeland available in various Dutch museums that in Van Wezel’s opinion probably offer ample opportunities to be placed on loan.
E. and C. argue that their grandfather, Ernst Flersheim, lost possession of the painting A Prayer before Supper by Jan Toorop involuntarily, having had it confiscated by the Gestapo in Frankfurt am Main in 1938. In connection with this involuntary loss, they submitted an application for restitution of the painting to the Museum. According to E. and C., their application, received in 1999, is their first application with regard to A Prayer before Supper and has been considered as such by the Committee. The fact that compensation was paid to their mother, Edith Eberstadt-Flersheim, by the Wiedergutmachungskammer des Landgerichts Frankfurt am Main in 1956, does not, in E. and C.’s opinion, imply that their application for restitution should be seen as a case that has already been dealt with (explanation 30.8.2006, p.7). The Museum’s refusal to grant their application has prompted them to request the Committee to recommend the restitution of the painting.
Due to the lack of official documentation concerning the confiscation, the sole survivor of the Flersheim family, Edith Eberstadt-Flersheim, drew up two lists with her lawyer, Kappus, on 19 January 1954 of artworks that were said to have been confiscated by the Gestapo. According to E. and C., the painting A Prayer before Supper appears on one of the two lists concerning works by non-German artists that were put into storage by Flersheim and then confiscated. The date of confiscation was not given in the statement and was, according to E. and C., probably unknown.
E. and C. also point to a decision taken by the Landgericht Frankfurt am Main in 1956, in which they say that given the German State’s inability to provide evidence to the contrary, it must be assumed that the lists drawn up by Edith Eberstadt-Flersheim are correct and that a sum of DM 3,000 must be awarded as compensation for the confiscation of
A Prayer before Supper. E. and C. argue that this award of compensation should not influence the consideration of their application for restitution.
According to E. and C., the criteria regarding the restitution of items of cultural value in the possession of the state that were relinquished involuntarily should also be applied to the restitution of items of cultural value in the possession of the Museum. Hence, recommendations issued to date by the Committee with regard to the former situation should also have significance in this case.
Only after the painting was acquired by the Museum did E. and C. become aware of where it was housed. They were not in a position to trace the painting before that time and were never approached by third parties with regard to the location of the work.
E. and C. contend that the Museum neglected to conduct any research into the painting’s provenance and that this prevents an appeal by the Museum based on the fact that they acted in good faith when they acquired the painting. They are of the opinion that even bound by the criteria of 1981, the Museum could have been expected to have conducted more thorough research into the provenance of the painting than they actually did at the time, and that, at the very least, the names on the back of the painting warranted closer investigation.
E. and C. dispute the accuracy of elements of the statement made by Prof. R.E.O. Ekkart from the Netherlands Institute for Art History in The Hague on 27 September 2006, which was introduced into the procedure by the Museum. They point to international rules of ethics that have applied to museums since 1970 requiring that museums carry out thorough research into the provenance of acquisitions. They also point to the fact that awareness within society regarding the fate of victims of persecution began to increase in the early 1970s. In addition, they are also of the opinion that even if such neglect with regard to researching the provenance of a painting was not uncommon in 1981, neglect regarding A Prayer before Supper cannot be justified on that basis alone.
Furthermore, E. and C. consider their interest in A Prayer before Supper as significant, given that their grandfather was a friend of Jan Toorop and bought the painting directly from the artist. Their interest can be further underlined by the presence of the painting in their parents’ wedding photo.
In addition to the above, they also argue that the Museum’s interest in the work should play a minor role in the judgement of the dispute, which would be in line with the Committee’s advice regarding the restitution of works in the possession of the state. E. and C. would also like to modify the statement made by Toorop expert Van Wezel, since Van Wezel can only speak for works by Toorop he has knowledge of and that, in general terms, as yet unknown paintings by Toorop still surface every year. According to them, it cannot, therefore, be discounted that a superior or comparable painting will crop up.
E. and C. have offered to pay the Museum NLG 150,000 as recompense, this being the price the Museum paid to Bouwman in 1981.
The Museum argues that the application for restitution submitted by E. and C. should be rejected, or, at the very least, that it should not be granted without E. and C. compensating the Museum in a manner to be determined by the Committee and that the Museum be indemnified against third-party claims to the painting (explanation 28.9.2006, no.33 and rejoinder 16.12.2006).
The Museum refers to the Committee’s judgement concerning the involuntary loss of possession. Moreover, the Museum is not arguing that the application be dismissed as a result of the compensation paid by the Wiedergutmachungskammer des Landgerichts Frankfurt am Main in 1956, but refers in this respect to the judgement of the Committee (explanation 28.9.2006, nos.7 and 26-27). The Museum does not rely on the prescription of E. and C.’s claims because they consider this to be inconsistent with (its consent to) presenting the dispute to the Committee (explanation 28.9.2006, no. 28).
According to the Museum, there is uncertainty as to whether the painting was lost as a result of confiscation, as E. and C. contend, although they admit that it is a possibility. The Museum acknowledges that the painting was owned by Ernst and Gertrud Flersheim until approximately 1938, and, according to the Museum, the facts and circumstances put forward by E. and C. do not rule out the possibility that the work was confiscated by the Gestapo at that time.
The Museum argues that it is now difficult to determine what research was carried out at the time into the provenance of A Prayer before Supper. It is plausible, according to the Museum, that when the painting was acquired in 1981, any such research was superficial (explanation 28.9.2006, no. 9), but that, when purchasing modern art, it was unusual for research into the war history of a piece to be conducted either in the Netherlands or abroad. In 1981, the Museum did not know or could not in all reasonableness have known that a work of art had belonged to a Jewish family prior to the war. The substantial amount of documentation that appeared after 1981 and insights that originated later should not be projected back to that year. This should also apply to the names on the back of the painting, which, according to E. and C., constituted grounds for further investigation by the Museum. The Museum is of the opinion that, in 1981, the knowledge that an artwork was once in the possession of someone with a dubious war history did not constitute the need for further investigation.
Furthermore, the Museum bought the painting from a dealer with a significant reputation, Bouwman, subject to a normal market transaction for which a considerable price was paid (NLG 150,000). Moreover, the purchase of the painting was supported financially by the well-respected Rembrandt Association (NLG 75,000). This offer of support can also be interpreted to mean that others in the museum world saw no reason to question the acquisition.
In response to a question from the Museum, Prof. R.E.O. Ekkart from the Netherlands Institute for Art History in The Hague declared in writing on 27 September 2006 that, in 1981, museums and art dealers were not in the habit of researching whether or not works of art acquired or documented had a war history. Ekkart also argued that the manner in which museums and art dealers traded in 1981 cannot be judged on the basis of an awareness that originated much later.
According to the Museum, the abovementioned details can lead to no other conclusion than that when the painting was purchased in 1981, the Museum acted in good faith. The Museum is also of the opinion that this should play a role in the Committee’s final judgement in the dispute with E. and C., albeit as a secondary point now that Bouwman’s power of disposition is no longer open to discussion.
The Museum also deems that the above factors are reason enough for them to have a different, stronger position in this dispute than the State would in disputes regarding the national art collection.
After E. and C. submitted their claim to the Museum in 1999 and the parties were unable to reach agreement, the Museum requested advice from the Committee for the Code of Ethics for the Association of Dutch Museums (25 May 2000), which determined that the criteria of decent trading by museums governing the acquisition of A Prayer before Supper in 1981 did not require that additional research be carried out.
The Museum argues that their interest in keeping A Prayer before Supper in their collection is significant. The loss of the painting from the collection would represent a substantial loss for the Museum, which they have explained as follows. Jan Toorop lived and worked in Zeeland during different periods and A Prayer before Supper is important for the province because it links an international artistic movement with a local theme. The painting depicts a family portrait of Toorop’s friends from Domburg, the Louwerse family, and represents the painter’s glorification of piety of the citizens of Zeeland.
After consideration, the settlement offer proposed by E. and C. during the hearing was rejected. The Museum explained that keeping A Prayer before Supper in their collection and a decision by the Committee is more important to them than any financial remuneration.
Under Section 2, subsection 2 of the Decree of 16 November 2001, the Committee has the task of providing advice to parties concerning their dispute over the restitution of items of cultural value between the original owner, who relinquished possessions involuntarily as a consequence of circumstances directly related to the Nazi regime, or their heirs and the current owner, other than the State of the Netherlands. In accordance with Section 2, subsection 5 of the Decree, the Committee will make a recommendation in accordance with the requirements of reasonableness and fairness. This advice is binding within the meaning of Section 7: 900 of the Dutch Civil Code.
1. The Committee firstly states that its advice is based on deliberations concerning the circumstances in which the possession of the work was lost, the extent to which the party requesting restitution has exerted itself to retrieve the work, as well as the period and the circumstances in which the current owner acquired the work and the investigation carried out by the current owner before the work was acquired. In addition, the respective importance of the work for both parties and for the public art collection can be taken into consideration. With respect to artworks in the possession of the State that were recuperated from Germany after the Second World War (what is known as the NK-collectie [Netherlands Art Property Collection]), the government’s policy guidelines regarding the restitution of stolen works of art apply. However, as this case does not revolve around such artworks, but rather around works that are in possession of someone other than the State, the abovementioned guidelines are not, contrary to E. and C.’s contention, directly applicable, but can be included in the consideration in so far as they, in the Committee’s opinion, apply by analogy.
2. The Museum is not invoking the prescription of E. and C.’s claims, and deems that such an appeal is inconsistent with (its consent to) presenting the case to the Committee.
3. Documents pertaining to the law of inheritance suggest that E. and C. are their mother’s sole heirs, Edith Eberstadt-Flersheim, and that she in turn was their father’s sole surviving heir. The Committee, therefore, regards E. and C. as being entitled to apply for restitution of a work of art formerly in the possession of Ernst Flersheim.
4. The Committee has ascertained that the dispute between E. and C. and the Zeeuws Museum has not been settled previously. The Committee considers this application for restitution of A Prayer before Supper submitted by E. and C. in 1999 to be the first application.
Furthermore, the Committee has found no evidence of a court ruling concerning restitution of A Prayer before Supper or of an explicit waiver of rights. The compensation of DM 3,000 paid by the Wiedergutmachungskammer des Landgerichts Frankfurt am Main mentioned under 6 above is not deemed to be an impediment in the current application for restitution. The Committee considers both parties’ cases admissible.
5. Neither party disputes that Flersheim was forced to relinquish possession of A Prayer before Supper due to circumstances directly related to the Nazi regime. It can be assumed that the painting was confiscated by the Gestapo around 1938.
6. It can be deduced from the information provided by E. and C. to the Committee that the applicants have sufficiently exerted themselves to retrieve the painting.
7. E. and C. argue that when the Museum acquired the painting in 1981, it did not act in good faith. The Committee rejects this argument, endorsing Prof. R.E.O. Ekkart’s expert opinion the Museum did not act negligently by not instigating a special investigation into the painting’s provenance between 1933 and 1945 before acquiring it in 1981. As also included as a consideration in the recommendation given by the Committee for the Code of Ethics for Museums mentioned under 4 above, the ICOM Code of Professional Ethics was not published until 1986, which included the requirement that all acquisitions must be accompanied by reliable proof of provenance and that museums are obliged to conduct research into the provenance of a work of art.
8. In terms of the importance of the painting to both parties, the Committee finds the following.
A Prayer before Supper was part of E. and C.’s grandparents’ art collection. The collection included many works by Jan Toorop, who lived and worked in Domburg during a period when the grandparents frequently holidayed in the area and with whom he struck up a friendship. The painting can be clearly seen on the wall in a photograph taken at E. and C.’s parents’ wedding. E. en C. attach great emotional value to the painting (rejoinder 26.10.2006, par. VIII.a, p.20-21) and given their advanced years, would like to see the painting restituted quickly.
The Museum describes the painting’s importance as follows (explanation 28.9.2006, item 29 under iii, p.7): ‘the loss of the work [would] constitute a huge loss for the museum. It is an important piece for the province of Zeeland because it links an international artistic movement (luminism; painting with light) with a local theme. It is a family portrait of Toorop’s friends from Domburg, the Louwerse family. In addition, it is a portrait that represents the painter’s glorification of piety of the citizens of Zeeland. In sweeping brushstrokes, the painting depicts the divine glow that surrounds the family during their evening prayer.’
9. The Committee deems that in all reasonableness and fairness the Museum should return A Prayer before Supper to E. and C. The Committee has taken the following into account: 1) that Flersheim lost possession of the painting involuntarily as a result of circumstances directly related to Nazi regime and that this involuntary loss came in the form of confiscation by the Gestapo, 2) the emotional importance to E. and C., as described under 8 above, which the Committee considers to be significant, 3) that E. and C. are prepared to pay compensation, and 4) that although the Museum cannot be reproached for acting unconscientiously during the acquisition of the painting, there are elements in the provenance of the work that point to dubious dealings (as described in art. 5 of the Guidelines concerning Museum Acquisitions 1940-1948). The painting has a sticker on the back with the name ‘Mr W.M.A. Weitjens’, who, as argued by E. and C. and not contradicted by the Museum, played a key role in dealing with the Nazis during the Second World War. The questionable role played by Weitjens was also referred to in the recommendation made by the Committee for the Code of Ethics for Museums on 17 May 2000.
The Museum’s interest in keeping the painting – which the Committee considered to be considerable – and the fact that a work of art of comparable quality to A Prayer before Supper is no longer available for purchase (according to Jan Toorop expert G. van Wezel) carry, in the committee’s opinion, insufficient weight to compel the Committee to reach an alternative judgement. The Committee is of the opinion, however, that in all reasonableness and fairness restitution of the painting can only take place upon repayment of the sale price (NLG 150,000) indexed according to the general price index. The Committee proposes that E. and C. pay an indexed sum of EUR 121,500 (NLG 270,000).1
The Committee considers it reasonable and fair that E. and C. cover the cost of insuring and transporting the painting from the moment of transfer from the Museum. Furthermore, as the Museum requested, E. and C. will indemnify the museum against third-party claims to the painting. Finally, the Committee is of the opinion that in the event that the painting is resold by E. and C. or their legal successors within ten years of the date of this recommendation, the Museum should be offered the right of first refusal.
10. On the basis of the above-mentioned information, the Committee recommends the following.
1. The Museum is obliged to return the painting A Prayer before Supper to E. and C. on payment by E. and C. to the Museum of EUR 121,500.
2. E. and C. are obliged to cover the costs of insuring and transporting the painting from the moment of transfer from the Museum.
3. E. and C. are obliged to indemnify the Museum against third-party claims to the painting.
4. Should the painting be resold within ten years of the date of this recommendation, E. and C. or their legal successors are obliged to offer the Museum the right of first refusal.
This binding advice was given on 7 April 2008 by R. Herrmann (chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart, I.C. van der Vlies (vice-chair), and signed by the chair and the secretary.(R. Herrmann, chair) (E. Campfens, secretary)
1 The following price index figures (yearly averages) were taken from Statistics Netherlands (CBS) on 5 March 2008: 1900=100; 1981=1.405; 2007=2.510. The multiplication factor of 1.8 (2.510/1.405) has been determined on the basis of these figures.