30 January 2008

The Work of the Spoliation Advisory Panel

Amber Melville-Brown
Partner | US

The Panel mediates claims from people, or their heirs, who lost art during the Nazi era and which is now held in UK national collections, museums or galleries.  The Panel advises both the claimant and the institution where the object is held, as well as the Secretary of State, on the appropriate action to take.  It aims to achieve a solution which is fair and just to everyone involved, taking not only legal but also moral considerations into account.

The Panel has made 7 recommendations.  Each has required the skills of all the Panel members to work out the history of the relevant art; to unravel knotty and often foreign legal issues; as well as to weigh up the moral strength of each side’s case. 

The first case concerned an oil painting showing a beautiful panoramic view of Hampton Court Palace.  How did this painting, purchased in Dusseldorf by the Claimant’s father, a Jewish banker, arrive at the Tate Gallery in London?  In 1939 the Claimant’s mother managed to escape across the German / Belgian frontier with her paintings and furniture, where she remained in hiding and sold her paintings one by one, “for an apple and an egg” in order to survive.  The Claimant’s father was probably killed in a concentration camp and the rest of the family had earlier escaped to England. 

The painting next came to light on 24 November 1955 when it was sold at auction in Cologne to Rowland Browse & Delbanco who, in January 1961, offered the painting for sale at Sotheby’s.  However, the painting was withdrawn, at the request of the Friends of the Tate, who purchased it for £400 and donated it immediately to the Tate. 

The Claimant visited the Tate in 1990 / 1991 and recognised the painting as belonging to his family. 

The history of the painting was well documented from 1955 but there was little evidence to substantiate the mother’s account.  However, the Panel was assisted by the fact that her story coincided with the history of the German occupation of Belgium and in particular the severe food shortages and great hardship imposed on Jews there, who had to sell their possessions for food.

The Panel took the advice of Belgian and German lawyers who both concluded that the family’s claim was time-barred.  Equally, as more than six years had passed since their good faith purchase from Sotheby’s, the Friends could claim good title under English statute of limitation.  By 1967, the Friends had an unassailable legal title.

The Panel in considering the moral issues, concluded: -

“As a Jew struggling to survive in a hostile environment, and faced with the threat of starvation, she had no alternative but to dispose of her valuable possessions, including the picture, in order to survive, and she had been forced to sell it at an undervalue.  If she was still the Claimant, we would be persuaded by the moral strength of her case”.

The Panel also had to consider whether any moral obligation rested on the Tate, particularly given the circumstances of its acquisition.  The Panel concluded that the scope of the Tate’s enquiry was reasonable by the standards of the time, when museum buyers were characteristically more concerned with the history and importance of the picture, rather than with spoliation.

Having upheld the claim in principle, the Panel recommended an ex-gratia payment to the Claimant and his family.  Having obtained several valuations, the Panel came to the conclusion that a fair value was in the order of £140,000.  However, this was discounted by the amount which the family would have had, as prudent owners, to expend to ensure the conservation of this fragile painting.  Ultimately, an ex-gratia payment of £125,000 was made and the Tate displays alongside the picture an account of its history, with special reference to the Claimant’s family.

A Still Life attributed to Chardin possessed by Glasgow City Council

The next case concerned a Still Life attributed to Chardin which had been bequeathed to what became Glasgow City Council as part of the Burrell collection. 

The Claimants were the heirs of the Jewish shareholders of a famous art gallery in Munich.  The gallery was forced to liquidate its entire stock to satisfy an extortionate, trumped up tax demand by a Nazi tax inspector.  The gallery’s usual tax inspector later gave evidence that the senior partner, who died of a heart attack having signed the false tax declaration, and his family had always impeccably discharged their tax liabilities.

Sir William Burrell acquired the painting a few days after the forced liquidation sale.  At the time of the Burrell bequest to Glasgow City Council, comprising 8,000 items and over 900 paintings, the Panel felt that Glasgow could not reasonably  have been expected to be alerted to the dubious provenance of this painting.

Unusually and unlike the principal national collections, the Burrell collection was not prohibited from disposing of its works of art.  So the Panel recommended that the painting should be restored to the claimants.

The Beneventan Missal

The story of the Beneventan Missal, still in the British Library, is worthy of a film but so far only a radio programme has been made about the exciting story.  Its origins trace back to its creation in the 12th century in the monastery of Santa Sophia in Benevento, Southern Italy. 

The Panel first decided that a loss by an institution due to Allied action was within its remit.  It then decided that it was more likely than not that the Missal had been looted among scenes of chaos during the Allied bombing of Benevento in 1943. 

The Panel had to consider carefully the British Museum’s conduct in acquiring the Missal.  In 1946 it was told by a British Soldier, Captain Ash, that he had acquired the Missal from a second hand book seller in Naples in 1944, but the British Museum was still concerned that it might have been spoliated.  Nine months later, notwithstanding these concerns, the British Museum acquired the Missal following a public auction but made no attempt itself to investigate the provenance, leaving it to the auctioneer, Sotheby’s.  The Panel was not convinced that the British Museum had made sufficient enquiries as to the Missal’s provenance.

The Panel considered that Benevento had a strong moral claim for the return of its sacred work but its hands were tied by the British Library Act 1972.  Hence, the Panel recommended legislation to enable the Missal to be returned to Benevento and meanwhile that it be loaned to Benevento.  No legislation has yet been introduced to allow restitution.

“Portrait of a Young Girl in a Bow Window” by Mair von Landshut in the Ashmolean Museum

This was a claim by the heirs of Jakob Goldsmith.  He was a prominent Jewish banker and well known art collector.  His Danatbank, which specialised in financing industrial mergers, collapsed on 11 July 1931.  His art collection was given as security for his debts and Thyssen, a large industrial concern, took over responsibility for the debt and the security of the art collection in 1932.  The painting was sold with others at auction, at a fair value, in 1936 to reduce Goldsmith’s liabilities. 

The Panel concluded that the sale was forced by the collapse of the Danatbank and not by Nazi laws prohibiting Jews from operating banks.  The Ashmolean Museum in Oxford, on the other hand, had acquired the painting in good faith and had an unassailable legal title.  The claim was, therefore, rejected.

Drawings in the British Museum and the Courtauld Institute

The next two claims were brought by the heirs of Dr Arthur Feldmann, who lost possession of his drawings when they were seized by the Gestapo from his home in Czechoslovakia.  The claims, against two separate institutions, were clearly within the Panel’s remit and the most violent act of spoliation so far considered.

The first claim was stayed while the Commission for Looted Art in Europe asked the Attorney General to allow the return of the drawings to the family notwithstanding the British Museum Act 1963, which prohibits this.  The Commission argued that the British Museum had a moral obligation to return the drawings which overrode the statute.  This argument was tested in the High Court and failed.  The parties then jointly addressed the Panel, which decided the Claimants should receive an ex-gratia payment of £175,000.

In the second claim, as the deaccessioning restriction was not applicable to the Courtauld Institute in London, the Panel recommended the return of the drawings to the Feldmanns. 

Three Paintings by Rubens remain at the Courtauld

The latest claim considered by the Panel concerns three valuable paintings by Rubens in the Courtauld, which were once owned by Franz Koenigs, a businessman and art collector.  The claim was brought by his granddaughter, Christine Koenigs. 

Franz Koenigs moved to the Netherlands between the wars and in 1935 he lent his collection of Old Masters to the Boymans Museum, Rotterdam.  At the same time, he borrowed money from the Lisser  & Rosenkranz Bank of Hamburg, formalising an earlier 1931 loan and providing his art collection as collateral.  Koenigs intended to give the majority of his art collection to the Museum and to sell the rest to discharge his loan.

With the threat of war, the Bank relocated to the Netherlands and, on the eve of the Nazi invasion, was put into voluntary liquidation.  It called in Koenigs’ loan and repossessed his art collection, with Koenigs’ knowledge.  The paintings were then sold to a well known collector, Count Antoine Seilern, who subsequently bequeathed them to what became the Courtauld.

Ms Koenigs argued that the Bank loan and sale were both part of a plan to get Koenigs’ collection out of Europe and the hand of the Nazis and that her grandfather always intended to reclaim the paintings after the war, but was prevented from doing so as he was brutally murdered in April 1941.

The Panel concluded, however, having carefully considered all the evidence, that Koenigs was deprived of the paintings because the Bank called in its loan.  This was for commercial reasons and not a case of spoliation.  The Panel, therefore, rejected Ms Koenigs’ claim on 28 November 2007. 

In “The Independent on Sunday” of 9 December 2007, Ms Koenigs is reported as saying that she does not accept the Panel’s recommendations and that she may well take legal action.

There are further claims being considered by the Panel, so watch this space.

Category: Article