The Limbach Commission, set up in 2003 by the German government to mediate Nazi-looted art restitution disputes, has been heavily criticised for its inactivity. Will proposed reforms secure the Commission’s future, or are they too late?
The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property convened for its constituent session in Berlin on 14 July 2003. The Commission was formed in agreement with the Federal Government Commissioner for Culture and the Media, the Conference of State Ministers of Education and Cultural Affairs (KMK) and the national associations of local authorities. It can be called upon to mediate in disputes involving the restitution of cultural assets confiscated during the Third Reich, especially from persecuted Jewish citizens (commonly called Nazi-looted art), which are now held by museums, libraries, archives or other public institutions in the Federal Republic of Germany. Anyone submitting a claim to the Commission must take into consideration the principles outlined in the German ‘Declaration by the Federal Government, the Federal States and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property’ of 1999 (the ‘Joint Declaration’). Both parties involved must agree to the Commission reviewing their case. The Commission takes on the role of mediator between the former owners of cultural property, or their heirs, and the institutions holding the collections. It can make legally non-binding recommendations in order to settle differences.
The Commission has so far given 13 recommendations, a figure occasionally criticised for being too small. But restitution disputes are usually resolved between the parties involved without the Commission being called upon. The Commission is consulted only in particularly difficult cases. To date, the Commission’s recommendations have covered the whole range of just and fair solutions in accordance with the Washington Principles of 1998 and the aforementioned Joint Declaration of 1999, including the return of artworks, mutual compromise agreements, and compensation. The recommendations have been accepted by museums and public collections; in only two cases, where the claimant’s request to the Commission for restitution was unsuccessful, were courts in Germany (the Sachs poster collection) and the USA (the Welfenschatz or ‘Guelph Treasure’) involved. In the interests of transparency, all of the Commission’s recommendations are published on the Lost Art Foundation’s website.
The Commission’s international cooperation includes meetings in Paris and Berlin with the French Commission for the compensation of victims of expropriation as a result of anti-Semitic legislation during the German occupation), and with the Dutch Restitution Committee in The Hague and Berlin.
As with any organisation carrying out successful work over a long period, discussions have now taken place about whether and how the Commission can be further developed, based on its experience to date. The government and the Federal States accordingly put out a press release on 17 June 2016 stating that: ‘…The Culture Minister is also in discussions with the Federal States and associations of local authorities over the further development of the Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property’ (known as the Limbach Commission). Monika Grütters said: “The Advisory Commission has an excellent reputation at home and abroad. I would like to express my thanks for the outstanding work it has undertaken, and for the huge voluntary effort of its members. These things notwithstanding, 13 years after its inception it is time to think about the further development of the Commission, in the interests of an improved implementation of the Washington Principles.” It has been decided that the government, the Federal States and the associations of local authorities will form a joint working group to agree with the Commission on a set of concrete suggestions for its future development.’
Michael Franz is director of the Department for General and Administrative Matters, German Lost Art Foundation, and head of the Administration Office of the Advisory Commission.
Nicholas M O’Donnell
Recent indications that Germany may be willing to reform the Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property (also known as the Limbach Commission) have been greeted with some optimism. Enthusiasm should be tempered, however, because the proposed reforms do not address the Commission’s inability to actually resolve ownership disputes, and are targeted more at reversing recent public relations embarrassments. At a basic level, the proposed reforms fail to accomplish anything meaningful.
Even the supposed changes are still far from concrete. At most, Germany’s ministry of culture has indicated that it will propose changes that include: a revision so that commissioners are no longer appointed for life, but for a fixed term; that some aspects of the proceedings will be made more transparent by being available online; and funding will be offered to obtain outside expert opinions.
The Commission has also been criticised for failing to appoint a Jewish member. It was shocking when, in a statement to the New York Times in February, culture minister Monika Grütters indicated that a Jewish member would be ‘prejudiced’. Attempting to clarify her remarks, Grütters told the Sueddeutsche Zeitung that such a person ‘would be the only voice that would have a potential conflict of interest’. Aside from being offensive, the explanation also fails as a matter of logic. Accepting the premise that the Jewish member would have some ‘conflict’ by virtue of his or her ethnicity, then the same would be true of the German members who comprise the overwhelming majority of the panel. The willingness now to include members of the Jewish community is an improvement, yet it is important to distinguish between something that may be marginally better than the status quo, from something that materially improves the situation.
The main problem with the Commission is that it cannot decide what it wants to be, and its decisions are meaningless without further compulsive effect on German museums. The formation of any alternative dispute resolution (ADR) mechanism involves making decisions about how to present and evaluate the importance and reliability of information. The Austrian Kunstrückgabebereit, for example, has addressed hundreds of claims in the same period. While not free from controversy, the panel embodies a number of ideal ADR methods.
Standardised procedure before the German Advisory Commission, however, does not exist. There are no prospective rules to guide the parties’ presentation of the case or the panel members’ obligations. In the hearing on a claim submitted by the heirs of Alfred Flechtheim concerning the 1913 painting Violon et encrier by Juan Gris, in the collection of the Stiftung Kunstsammlung Nordrhein Westfalen in Düsseldorf, the entire panel did not even attend. Worse, the claimants’ attorneys were rebuffed when they submitted evidence at the hearing that they had said they would, and were told that a decision was in process. When the heirs withdrew from the proceedings, the Commission issued a decision anyway.
Nor would the proposed reforms address the fact that German museums can simply decline to appear at hearings, or refuse to respect the recommendation. This has been a particular problem with the Bayerische Staatsgemäldesammlungen, the Bavarian State Paintings Collections in Munich, which is embroiled in its own scandal over returning art to Nazi officials’ families after the war while deflecting survivors’ claims.
The Advisory Commission has handled 13 cases since 2013 – barely one case a year. Any meaningful reform must address its inadequacies to resolve disputes, and enable it to handle a volume of cases commensurate with the demand. Too many ministry announcements have been about polishing the ministry’s image: until that changes, the proposed changes are just window dressing.
Nicholas M. O’Donnell is a litigation partner at Sullivan & Worcester LLP and the editor of Art Law Report blog.