Reports that Gurlitt Task Force may not meet deadline—what happens then?

Art Law Report 10 November 2014
By Nicholas M. O'Donnell

There were reports over the weekend that the Gurlitt Task Force, currently reviewing the provenance of more than 900 of the 1,280 works of art seized from Cornelius Gurlitt’s apartment, may not complete that review within the year reportedly set out in the agreement between Bavaria and Gurlitt before he died.  There is still confusion about whether the Task Force was indeed foreshadowing a missed deadline (the agreement was in April, so the notion that the review would continue “into 2015” is not necessarily inconsistent with completing its task within one year), but assuming it was, what happens then?

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Above all else, it spotlights the ongoing transparency problem.  When the agreement was announced, all that was made public was a press release.  To the best of my knowledge, an actual copy of the agreement has never been made public.  Issued on the letterhead of the Bavarian Ministry of Justice, the parties stated in that press release that Gurlitt:

stated his willingness to allow provenance research on a voluntary basis once the works are released from police custody. Mr Gurlitt will allow the Task Force to continue researching the provenance of those works in the trove suspected of having been confiscated from their owners by the Nazis or of being works the Nazis considered “degenerate art”

With regard to the Task Force, it went on that the Task Force:

aims to complete the main substance of its provenance research within a year. Works for which the Task Force has not completed provenance research within the year will be returned to Mr Gurlitt. But Mr Gurlitt will ensure continued access to the works for the provenance research to continue. If any claims for restitution have been or could be made, the works will remain in fiduciary custody even after the year has elapsed.  Mr Gurlitt can designate at least one researcher to work with the Task Force to ensure his interests are protected.

The most pointedly that any German official would describe Gurlitt’s actual commitment was to say that he had “expressly” agreed to “fair and just solutions” pursuant to the Washington Principles. 

In the absence of a copy of the agreement, all of this simply begged the question of exactly what binding commitments the parties made—if any.  Even if the Task Force recommended restitution, what if Gurlitt (or now his heirs, including the Kunstmuseum Bern if it accepts that role) disagreed?  Has he committed to follow the Task Force recommendation, or merely consider it in reaching a “fair” result? 

The latest news lays bare the other latent concern that many expressed when the deal was struck: a year is likely insufficient to make conclusive provenance determinations absent a massive investment of resources and time.  What then, if the research is not complete?  First, it would seem to oblige the physical return of everything whose review is incomplete to Gurlitt and/or his heirs.  That would, despite dire predictions of litigation, probably reduce the available forums for claimants, certainly with respect to Germany which would no longer have custody of the objects and be vulnerable to FSIA suits here in the US (though one can still be liable for conversion if one wrongfully disposes of property that one shouldn’t have). 

Second, the vagueness as to the enforceable covenants makes the consequence even harder to gauge.  Assume that Gurlitt’s heirs are bound to continue to make the works available for provenance research, and that they fulfill that commitment.  And assume that a year from now, the Task Force issues more recommendations that some objects be returned.  Is the only obligation to be “fair and just”?  That sounds terrific, but what does it mean in private contract?  If contract terms can’t be understood, they can’t be enforced. 

Lastly, while one assumes the agreement was drafted well, to what extent were Gurlitt’s contract rights enforceable by or against his heirs and successors?  We still do not know. 

After our review of the Gurlitt saga last week, Anne Webber of the Commission for Looted Art in Europe penned what I think is the best retrospective on the story yet on the anniversary.  She noted:

While exemplary in the way it has dealt with the rest of its Nazi legacy, art is Germany’s Achilles heel. Bound up with its identity as the creator of great art, it is still immensely difficult for Germany to come to terms with the role it played in enabling Jewish collectors to be persecuted and Jewish collections to be seized.

This latest news only adds to that concern.
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