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What is “just and fair”? Prof Dr Rainer Jacobs on dealing with Nazi looted art
For over 40 years, Professor Dr Rainer Jacobs has worked as a lawyer for trademark, design and copyright law as well as competition and advertising law, and expropriation law. Distinguished by ‘Best Lawyer’ multiple times, he has published on the subjects of art law, restitution law, copyright and art forgery, additionally property and compensation law. He talks to Isabel Apiarius-Hanstein about looted art, property law and the current handling of the Washington Principles.
I.A.H. When is it looted art?
R.J. Nazi-looted art refers to artworks that were forcibly taken from persecutees of the Nazi regime during the period from January 30th 1933 to May 8th 1945. This includes artworks that owners had to sell or sold during this time as it is presumed that they would not have sold them without persecution.
Immediately after the end of the war, the Central Collecting Points established by the Western Allied powers returned looted art to owners. Subsequently, there was restitution and financial compensation based on the restitution rights of the Allies and later based on the Federal Restitution Act. The deadlines provided in these regulations for filing claims have long expired. The issue resurfaced in public attention through the Washington Conference in December 1998. The ‘Washington Principles’ were established for the first time, outlining international principles regarding artworks confiscated by the Nazis (‘Nazi-Confiscated Art’). This declaration aims to identify affected artworks, research their provenance, locate the pre-war owners or their heirs, and reach a “just and fair” solution with them.
I.A.H. To whom do the Washington Principles apply?
R.J. These are exclusively non-binding recommendations.
The principles of the ‘Washington Declaration’ were implemented in the Federal Republic of Germany by the ‘Joint Declaration of the Federal Government, states and leading municipal associations’ of 1999 and were made binding for public museums, libraries, and archives. All public cultural institutions are obliged to comb their holdings and establish if they contain Nazi looted art. This has led to the return of looted art to the heirs or the former owners and to “just and fair solutions” with them.
The ‘Washington Declaration’, conversely, does not bind private individuals and private collectors. This would have been contra- dictory for the ownership of Nazi looted art legally acquired since. The obligation of private collectors to return such works of art to their former owners or their heirs would mean expropriation, which, according to the Basic Law, is only permissible against compensation. This compensation would then have to be state borne.
I.A.H. Is it possible to legally acquire ownership of such looted art?
R.J. Under German law, a person who has possessed an artwork for at least 10 years and acquired it in good faith—meaning they did not know and could not have known that it was Nazi-looted art—acquires ownership through a process known as ‘acquisitive prescription’ or ‘Ersitzung’ (acquisitive prescription). This is based on the consideration that ownership and possession should not be permanently separate. Additionally, the claim for restitution based on ownership expires after 30 years, so it is already long past its limitation period. The answer to the question is clearly yes: one can acquire legal ownership of such looted art. The situation is different under US law. According to US law, Nazi-looted art is generally considered ‘stolen’, and nobody can acquire ownership it. However, American law does allow for the expiration of restitution claims in specific cases.
I.A.H. If a private collector suspects they may own looted art, how should they proceed?
R.J. They should ask the Lost Art Register in Magdeburg whether the work of art is registered as missing. If not, the suspicion is usually resolved. However, the information does not provide absolute certainty that it is not looted. Due to an entry in the Lost Art Register only being made on application. If no one makes an application, a work of art is not listed. In such cases, if there are still doubts, consultation with an expert follows, such as an art historian specialising in provenance research or an art dealer.
I.A.H. What is the Lost Art Register and what effect does an entry in the register have?
R.J. The Lost Art Register was launched in April 2001 shortly after the adoption of the ‘Joint Declaration’ to implement the ‘Washington Declaration.’ A plausibility check takes place when applying for an entry, although the current owners of the affected artworks are not informed. I see this as a fundamental flaw of this database. Since it, as a private foundation, performs a public task, it should grant the affected parties an opportunity to be heard before. The entry has devastating effects on the potential sale of the artwork. Once the artwork is registered, it becomes practically unsellable. This deeply encroaches upon property rights. The Federal Court of Justice recently ruled that entry in the Lost Art Database does not constitute an impairment of property rights. However, I consider this highly doubtful, even unrealistic.
I.A.H. How can such a registration be deleted?
R.J. In the mentioned verdict, the Federal Court of Justice advised the plaintiff, also a private collector, to sue the foundation in Magdeburg for deletion. In my legal opinion, the registration must be deleted if the applicant cannot prove that it is Nazi-looted property. There is no legal basis for presuming that all art sales between January 30th 1933 and May 8th 1945, were ‘persecution- related’, as invoked by the Federal Court of Justice, at least not in relation to private collectors.
I.A.H. Wouldn’t the state also be liable if works of art were acquired in good faith after the war?
R.J. This question is likely aimed at whether the state is generally liable to heirs of the previous owners if the current owners acquired the artwork in good faith and thus have legal ownership. Such a liability of the state could be implied, as according to the case law of the Federal Constitutional Court, the Federal Republic of Germany is identical with the German Reich, thus identical with the perpetrator. Nevertheless, there is no statutory provision establishing such liability.
I.A.H. How do you think these regulations should be changed in the future?
R.J. Insofar as the Federal Republic of Germany has subjected public cultural institutions to the Washington Principles, it is primarily up to provenance research and the provision of corresponding research funds to return as many works identified as looted art as possible to the heirs of the previous owners or to reach a ‘just and fair’ solution with them. Compensation claims resulting from expropriation do not arise in these cases because the federal government, states, and municipalities are not holders of fundamental rights and cannot claim property protection for themselves. The situation is much more difficult for Nazi-looted art owned by private individuals, as property protection in favour of current owners comes into play, and deprivation would only be permissible with compensation. For such cases, I can envision a state-funded fund that can help find solutions that are in line with the interests and appropriate.