One Year After Gurlitt Revelation, No One is Pleased

Art Law Report 5 November 2014
By Nicholas O'Donnell

It has now been one year since Focus magazine in Germany broke the Cornelius Gurlitt story on November 3, 2013.  Looking back at the history of the case as it has unfolded since then, the overriding theme has been difficulty in obtaining accurate information about the current state of affairs.  The appointed Task Force has made only two recommendations, and the status of the bequest to the Kunstmuseum Bern is still up in the air.  And nobody seems remotely pleased. 

The facts are familiar by now to Art Law Report readers, but still worth summarizing.  The Focus article revealed that in early 2012, Gurlitt had attracted the suspicion of customs officials when returning from Switzerland by train (no mean feat in this era of ever-more-invisible borders).  A search warrant followed, leading to the spectacular discovery of more than 1,200 works of art in an unassuming apartment in Schwabing, Munich.  Yet this discovery was not made public, even as the Bavarian prosecutor’s own review raised the concern that many of the objects had been looted by the Nazis.  The name “Gurlitt,” while not well known, was hardly a secret in the realm of Nazi-era art matters.  Cornelius’s father Hildebrand had been an art dealer in the 1930s, and his grandfather (also named Cornelius) was a prominent academic in Dresden.  Hildebrand’s historic significance, however, related to the “Degenerate Art” action of 1937.  Pursuant to this program, Hildebrand Gurlitt was one of only four dealers authorized to trade in the modern and contemporary art that the Nazis deemed “degenerate.”  Thus, he would have had access to many works on the market only because of this declaration, from collectors ranging from persecuted Jews to German state museums.  Gurlitt claimed after the war that the bulk of his collection had been destroyed in the firebombing of Dresden, when it apparently had not.  When Hildebrand died in a car accident, the collection passed to his son. 

The Bavarian prosecutor seized the artwork from Cornelius Gurlitt’s apartment in 2012, but without any apparent plan of what to do with them.  When Focus revealed the collection’s existence, the worldwide reaction was enormous. Between November and April, Gurlitt assembled a legal team to seek return of the artwork, the Bavarian Minister of Culture proposed an amendment to the statute of limitations that became known as the Lex Gurlitt—thought it remains under consideration in the Bundesrat—and other troves of artwork were found, in particular in Salzburg.  The “lost art” center in Magdeburg slowly posted a list of the works, but the website initially crashed and the pace and scope of disclosure was the subject of much criticism.  Eventually Gurlitt’s legal team claimed that only a few works were suspected of being looted, but no one could tell if that meant only a few works had been specifically claimed (which was nearly impossible without knowing what was in the assembly, of course), or whether the universe of potentially looted art was that small. 

Then an agreement was announced.  A Task Force (which had been underway for several weeks by that point) would review all the works within a year.  The agreement has still never been made public, so it remains unknown whether Gurlitt committed to return any work deemed looted, or whether the Task Force would make conclusive determinations within that year, or just identify problem objects.

As those of us following the story were trying to make sense of the agreement, Gurlitt passed away.  In perhaps the biggest surprise since the discovery, he named the Kunstmuseum Bern (Switzerland) as his heir.  Despite conflicting reports that the museum had reached a decision, the world still awaits its decision on November 26, 2014 as to whether it will accept that appointment.

The story has captivated so much attention, in my opinion, because of the right-under-our nose aspects of it.  Gurlitt was living in a dense neighborhood for decades surrounding by great works of art.  But it also stirred up long-dormant questions about looted at in Germany, and unexamined collections. 

With the anniversary this week, a number of writers have also taken stock of the case.  Most coverage of the matter continues to be in German, after the initial reaction there has been very little analysis in English with the notable exceptions of the Wall Street Journal and the New York Times.  I continue to try to follow the German language coverage and make note of important analysis.

What is especially clear is how dissatisfied essentially everyone is with the state of affairs.  Focus, the same magazine that got the ball rolling a year ago, published an article this week in which it reported some claimants are considering claims against the Task Force itself.  Documents remain unavailable, and the pace of response, if any, has been slow.  Any even as to one painting that the Task Force recommended be returned to David Toren, Germany is resisting Toren’s lawsuit rather than giving the painting back.

With regard to the pending decision by the Kunstmuseum Bern, Ronald Lauder stepped into the looted art fray once again in an interview with Der Spiegel to argue that the museum cannot ethically accept the bequest, and that it will face an “avalanche of lawsuits” if it does.  As to the latter point, I’m not so sure relative to the current possession by Germany.  The biggest challenge for claimants has been figuring out whether they are claimants, since so little is known—still—about what there is.  But once known, Bavaria and Germany are open targets, presumably in Germany but certainly in the United States pursuant to the Foreign Sovereign Immunities Act.  If and/or when the artwork goes to the museum, a private Swiss foundation, however, the courts of the United States at least are quite unlikely to have jurisdiction over any such claims.  The museum and Germany seem to be engaged in some sort of negotiation about what happens after the bequest is accepted, but as with everything else, details are sparse.

The museum is going to decide this month.  But we still might not know what the museum was told, and whether the Task Force will say anything publicly. That decision will not really do anything to settle the state of uncertainty about looting and provenance, however. We are also less than six months away from the Task Force’s deadline, but once again what that output will be is anyone’s guess. 

One thing you can be sure of: we’ll keep watching the story and trying to make sense of the legal developments.
© website copyright Central Registry 2024