“We can definitely see here that the plaintiff is in an awkward position,” said the presiding judge of the fifth civil senate of the BGH, Bettina Brückner, at the hearing on May 24, 2023 (file no.: V ZR 112/22). Brückner conceded that the “Calabrian Coast” by the painter Andreas Achenbach (1815-1910), which is the subject of the case, would be difficult to sell. In 1935, the Reich Chamber of Fine Arts imposed a professional ban on the Jewish art dealer Max Stern, but did not implement it. In 1937 he sold the coastal painting to a private individual in Essen, gave up the Düsseldorf gallery and emigrated to Canada.
Plaintiff legal owner since 1999
The plaintiff acquired the picture in 1999 at an auction in London. The representative of the opposing party, attorney Siegfried Mennemeyer, also explained to the court that he was the legal owner under German law BGH. The opposing party are trustees of a Canadian trust administering Stern’s estate. The plaintiff does not want his property to be further criticized because Stern may have sold the painting under Nazi persecution pressure. The trustees had published a search report for the picture on the Lost Art database website. It has been noted there since June 29, 2016. “Circumstance of loss reported as cultural property confiscated as a result of Nazi persecution,” it says.
Painting noted in database since 2016 and put out for search
The German Lost Art Foundation based in Magdeburg operates this database, which documents cultural assets that were confiscated from Jewish owners in particular under the National Socialists – or for which such a loss cannot be ruled out. According to the information, previous owners or their heirs should be brought together with current owners and supported in finding a just and fair solution about the whereabouts of the works. At an exhibition in Baden-Baden, the plaintiff learned about the search report and about a search for the painting by the criminal police organization Interpol in Canada. Should he fail in Karlsruhe – as in the lower courts – with his application for a cessation of action, he would at least like the trustees to have to apply for the search report to be deleted from the database.
Trustee representative refers to database operator – this does not comment
Trustee representative Mennemeyer said the register is there to record historical facts. This would have delivered his clients. “We did no more and no less.” It’s not about ownership issues. In Germany, pictures listed in the database were also resold lucratively, he said – but admitted that things could be different overseas. In his view, the plaintiff would have to contact the operator of the database in order to delete the entry. “That’s not our responsibility,” said Mennemeyer. Representing the plaintiff, Wendt Nassall countered that the list had a specific purpose: to mediate in property disputes. The reporter’s consent is required for publication – he can therefore have the entry withdrawn. He described trying to contact the German Lost Art Foundation as a detour. Because the center is not a party in the dispute, it did not comment on it. But it is not the first procedure for database entries.