Gurlitt Task Force Issues Fifth Recommendation for Restitution

Art Law Report 15 December 2015
By Nicholas O'Donnell

Sophisticated Analysis of  Adolph von Menzel Drawing Distinguishes Itself from Recent Revisionism Elsewhere

As the original term of the Gurlitt Task Force (Taskforce Schwabinger Kunstfund) winds down, the panel has issued a report on a work that it deems appropriate for restitution: Interior of a Gothic Church (Inneres einer gottischen Kirche) by Adolph von Menzel (pencil drawing, signed/dated 1874).  The drawing has been called Church in Hofgastein in some English language articles.

Click here to view image.

(Gasteiner Tal/Bad Hofgastein © 2013 Nicholas M. O’Donnell)

This is the fifth work on which the panel has made a public statement.  The decision is interesting for many reasons, among them that any pronouncement about the works formerly in the possession of Cornelius Gurlitt has been rare, and that unlike the previous four, this opinion is much more formalistic.  Whereas the first three were just announced, and the fourth was revealed in an annotation to a list of the entire collection, this report is a standalone analysis of the provenance and context of a single work.  Most importantly, the report applies properly the presumptions and principles of the Washington Principles on Nazi Looted Art, rather than the German government’s other recent attempts to deny the obvious in circumstances of looting and coerced sales.  That alone is cause for optimism at least with regard to the Gurlitt trove.

We have been critical for the last two years of the state of progress and transparency.  It is easy to understand why such a report would take time, and in this case the work product is worthy of praise.  Harder to understand is why the German government did not create the support necessary to proceed in this way on the first day the collection was seized almost three years ago.  In other words, it is important to distinguish the work of the art historians on the panel from the politicians who created but largely ignored it.  And, this commendable scholarship is still only publicly-available in German, leaving many heirs in the dark.

The Task Force was created quickly after the disclosure in late 2013 of the massive trove of art seized from Cornelius Gurlitt’s apartment in Munich.  It was incorporated into the agreement that Gurlitt made with Bavaria before he died to allow the examination of the provenance of those 1,280-odd works, as well as the few hundred in his house in Salzburg, Austria.  After his surprising decision to name the Kunstmuseum Bern in Switzerland as his sole heir, that museum, Bavaria, and Germany announced an agreement roughly a year ago that the Task Force would continue its work and the museum would not take possession of works deemed to have been looted.

For anyone new to the story, the prospect of looting arises from the complicated history of Cornelius’s father, Hildebrand, who was one of just four authorized dealers in so-called “degenerate art” in Nazi Germany, and someone who visited and purchased art in occupied France in particular.  Hildebrand was flatly deceitful with the occupying Allies after the war, and managed to retain possession or even have returned looted works while claiming that his property had been destroyed in the firebombing of Dresden.  The artworks stayed in the Gurlitt family thereafter, sold off piecemeal from time to time to support Cornelius, who it appears never worked or even left his home very much.

The new report frames itself by asking three questions about the Menzel drawing: (1) is it “looted art” that was taken from a private owner under persecution within the meaning of the Washington Principles; (2) if yes, from whom was the drawing taken; and (3) how did the drawing come to be in the possession of Hildebrand, and thus Cornelius, Gurlitt?

With regard to the first question, the Task Force determined that the drawing had once belonged to Dr. Albert Martin Wolffson ,who died in 1913.  The inheritance of Dr. Wolffson passed to his wideo and then to his children Ernst Julius Wolffson and Elsa Helene Cohen (née Wolffson).  The report states that both children were persecuted during the Nazi era (as Jews).

Elsa apparently offered the drawing for 150 RM in 1938 to Hildebrand (as part of a group of 10 drawings).  Elsa shortly thereafter fled Germany, following her own son.  Critically, the report makes the following refreshingly enlightened statement (my translation):

It can therefore be assumed that the drawing was sold as a result of persecution, i.e., to finance her flight to the United States.  According to entry into the [Gurlitt] ledger, a price of 150 Reichsmark for subscription was agreed upon.  Whether Ms. Cohen received the money is to be assumed, though not demonstrated by the current state of knowledge.As a result, it can be assumed that this is a persecution-induced taking within the meaning of the Washington Principles as implemented by the Federal Republic of Germany.

Notably, the report does not quibble with the market value of the price.  It does not question whether there was a real negotiation.  It assumes, rightly, that any sale followed by flight from Nazi Germany is, by definition, confiscatory—even if Elsa retained 100% of the proceeds.

The report also takes the proper perspective on questions of uncertainty.  Specifically, while documents indicate that Elsa offered the work, it remains possible that her brother actually oversaw the conveyance transaction.  The report notes that Hildebrand Gurlitt came into possession of three different combinations of works from the Wolffson collection. Regardless of which one the drawing at issue was in, all the other members were subjected to what the report calls “massive persecution.”

Other than the entry in Gurlitt’s ledger, the Task Force concluded that Hildebrand had never publicized or offered the work after its acquisition from Elsa Cohen.  No claim has been made for the drawing as of the report, according to the Task Force.

It is hard to read this report without a sense of what might have been.  Since the beginning, it has been apparent that the Task Force has not received the logistical support that it needed from the government.  This report is a sophisticated and sensitive handling of the issues that applies the proper presumptions under the Washington Principles—in stark contrast to the ongoing fiasco at the Advisory, or Limbach Commission, which in each successive recommendations contorts its way to avoid the obvious with regard to persecution of Jews in the 1930s.  Where the Limbach Commission repeatedly looks to excuse and deny the pressure faced by Jews in the 1930s, this report acknowledges the obvious.  One would not think that would be cause for celebration in 2015, but here we are.

This decision also does not occur in a vacuum.  Analysis of the Bavarian government’s handling of the Gurlitt case, and the uncertain future of and lack of support for the work of the Task Force has shifted—particularly in Germany—to sharp criticism of public relations over substance.  Last month, Catrin Lorch and Jörg Häntzschel published a scathing rebuke in the Süddeutsche Zeitung of the national state of restitution entitled simply “Disgrace.”  The Task Force’s initial term of appointment expires at the end of this month, yet the government seems to have done nothing more than offer its members the option of staying on.  Just as the Task Force achieves a measure of progress, it is being relegated to the back burner.  Despite broad public assurances of transparency in 2013 and then again last year in its announcement of the agreement with the Kunstmuseum, the result at the federal level has been anything but.
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