Report 2017

ADVISORY COMMITTEE ON THE ASSESSMENT OF RESTITUTION APPLICATIONS

FOR ITEMS OF CULTURAL VALUE AND THE SECOND WORLD WAR

ADVISORY COMMITTEE ON THE ASSESSMENT OF RESTITUTION APPLICATIONS

FOR ITEMS OF CULTURAL VALUE AND THE SECOND WORLD WAR

Report 2017

Visiting address: Lange Voorhout 13Postal address: P.O. Box 556

2501 CN The Hague, The NetherlandsTelephone: +31 (0)70 376 5992

E-mail: info@restitutiecommissie.nlInternet: www.restitutiecommissie.nl/en

Cover illustration:

View of the Abbey of Grottaferrata by Caspar van Wittel

(Recommendation regarding Berolzheimer, RC 1.166)

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Table of Contents

FOREWORD 5

1. INTRODUCTION 7

2. DUTCH RESTITUTION POLICY 8 2.1 History in Brief 8 2.2 Restitutions Committee’s Tasks 9 2.3 Current Restitution Policy 9 2.4 Status of the Announced Changes in Implementation 10 of the Restitution Policy 2.5 Change in Criteria for Assessing Requests for Revised Advice 10

3. A LOOK BACK AT 2017 11 3.1 Composition of the Restitutions Committee 11 3.2 Restitutions Committee Employees 12 3.3 Activities in 2017 12 3.4 Developments in Advisory Activities 12 3.5 Symposiums, Presentations and Study Days 13 3.6 Meeting of European Committees and Conference in London 14

4. OVERVIEW OF RESTITUTIONS COMMITTEE 15 RECOMMENDATIONS AND OPINIONS 4.1 Overview from 2002 to 2017 15 4.2 Dutch National Art Collection Cases 15 4.3 Cases Concerning Works not in the Dutch National Art Collection 16 4.4 Status as at End of 2017 17

5. RECOMMENDATIONS ISSUED IN 2017 18

APPENDICES 53

4 5

Foreword

The 2016 annual report contains the last foreword by my predecessor Willibrord Davids. He served as the Committee’s chair for eight years in an inspired fashion, often in difficult circumstances, and I want to take this opportunity to once again thank him wholeheartedly for his contribution. It goes without saying that my gratitude also extends to Committee members Dick Herrmann and Evert van Straaten, who also stood down on 23 December 2016. Gerdien Verschoor, Jaap Koster and I completed our first year on the Committee with the four sitting members in an atmosphere of cooperation. In accordance with the policy established by the Minister of OCW (Education, Culture and Science), two further members with many years of service, Jan Bank (member since 2001) and Peter van Os (member since 2004), stepped down as of 23 December 2017. Both of them used their extensive knowledge and experience

to make a significant contribution to the Committee’s work. This requires the ability to form a balanced and thoughtful view in circumstances that are always trying. They were ideally suited for this role. The departure of Inge van der Vlies, who joined the Committee in 2004, represented the loss of a Vice-Chair whose specific knowledge made a major contribution to the way the Committee has performed. On behalf of everyone involved I want to express my sincere appreciation for their loyalty to the Committee and their fellowship.

Two new members were appointed at the end of December. The Committee welcomes Dr Claartje Wesselink and Dr Jan van Kreveld as very competent replacements for members who have stepped down. Finally, the member with the longest service on the Committee, Heikelien Verrijn Stuart, was appointed Vice-Chair. With effect from 1 January 2017 Marijn Kooij has been the Committee’s Secretary, filling the vacancy left by Robbert Nachbahr. Annemarie Marck terminated her highly appreciated work for the Committee at the end of 2017.

The transition that has marked 2017 arose from the letter of 4 October 2016 from the Minister of OCW to the Lower House.1 In it the Minister announced that she wanted there to be an expertise centre in which the Committee’s researchers would have places. One of the objectives in this regard was to assure the continuity of the knowledge of and

1 See Report 2016, appendix 5.

1. Chair Dr A. Hammerstein

Disclaimer

This English version is a translation of the original Dutch report ‘Verslag 2017’,

in case of possible differences in translation we refer you to the Dutch report.

Frequently used abbreviations:

BHG Origins Unknown Agency

NK collection Netherlands Art Property Collection

OCW Education, Culture and Science

RCE Cultural Heritage Agency

RKD Netherlands Institute for Art History

SNK Netherlands Art Property Foundation

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research into items of cultural value and looted art in a location where they could also be deployed in a broader context. This transition has been severely delayed as a result of various factors, which I regret and do not address in detail here. These factors have been a major source of difficulties for the Committee’s employees over the last year and have also cost a very great deal of time. The prospects are now favourable because substantial strides towards agreement have been made with the NIOD Institute for War, Holocaust and Genocide Studies, which has adopted a very positive attitude, and space has been found in the National Archives of the Netherlands. This means that the independence of the Committee and the investigations has been assured.

I am very satisfied with the cooperation in the Committee and the collaboration with all the Committee’s supporters. Although the number of decisions has remained modest, the thickness of the files shows that much work has been done. The number of cases being handled averaged about eighteen. During the year under review the Committee was able to issue seven recommendations. Analysis of these recommendations reveals that this year there was a balance between rejection and granting. In three cases the Committee advised granting the restitution application. In the other cases, including one request for revised advice, the Committee advised rejection. Finally, the Committee’s advice with regard to one application was to partially grant it and to restitute some of the paintings. One of the other recommendations to restitute, the advice in the case of Krasicki (RC 1.152) of 20 February 2017, contains a new aspect because it concerned a loss of possession sustained by a non-Jewish owner in Poland.

During the last year the Committee has reviewed the criteria it uses for assessing requests for revised advice. The Committee decided, in line with the Minister’s letter of 4 October 2016 to the Lower House, that only new facts can give rise to advising the Minister to reconsider a previously rejected restitution application. This means that the criterion of procedural errors used previously by the Committee will no longer be applied.

Finally, it can be pointed out that the subject of looted art remains in the spotlight. The degree of attention in the media demonstrates the ongoing need for solutions in this problem area. The international element came very much to the fore through the meeting organized by the British Spoliation Advisory Panel in London on 11 September, when restitution committees from the United Kingdom, Germany, France, Austria and the Netherlands met officially for the first time since the conference organized by the Dutch Restitutions Committee in 2012. In the year ahead the Committee will strive to give further substance to closer international cooperation and continuation of the contacts with those involved.

Fred HammersteinChair

1. Introduction

Since 2002 the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (hereinafter referred to as the Restitutions Committee or the Committee) has been issuing advice about claims to items of cultural value whose owners were involuntarily dispossessed of them between 1933 and 1945 as a consequence of the Nazi regime.

The Restitutions Committee was established by the State Secretary for Education, Culture and Science (OCW) by a decree of 16 November 2001. It comprises lawyers, a historian and an art historian.2 The Committee’s members and employees do their work independently of the Ministry of OCW.

The subject of this sixteenth annual report is the work of the Restitutions Committee and its employees in 2017.

Chapter 2 contains a description of the Restitutions Committee’s history, followed by a review of its remit, current Dutch restitution policy, and the status of this policy’s implementation. The chapter ends with a description of the change in the assessment criteria for requests for renewed advice. Chapter 3 addresses the year under review and includes an introduction to the Committee’s members and employees as well as a description of the activities carried out. A few of the recommendations made by the Committee are also discussed in detail. A quantitative overview of the opinions and recommendations issued from 2002 to 2017 is presented in chapter 4. Finally, in chapter 5 there is the text, with personal data removed, of all the opinions and recommendations that the Committee issued in 2017.

2 Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, 16 November 2001. The Decree Establishing the Restitutions Committee was amended by the State Secretary for OCW by a decree of 4 July 2012. Appendix 1 contains the 2001 Decree Establishing the Restitutions Committee and the associated explanatory notes. The entire amended text of the Decree Establishing the Restitutions Committee, which came into effect on 19 July 2012, can be found in Appendix 2. See section 2.4 of Report 2012 for more information about the amendment of the Decree Establishing the Restitutions Committee.

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2. Dutch Restitution Policy

2.1 History in Brief

Between 1933 and 1945 the Nazis seized, stole or purchased artworks, antiques, jewellery and other objects from private individuals and art galleries on a large scale throughout Europe. After the country was liberated, the allies found many of these items of cultural value, particularly in Germany, after which they were brought back to their country of origin. This recovery was accompanied by the instruction to national governments to manage the art being returned and to ensure it was returned (restituted) to the rightful owners or their heirs. In the Netherlands, the Netherlands Art Property Foundation (SNK) was tasked with the recovery and restitution activities.3 Some of the items of cultural value that were not restituted after the war were auctioned off by the Dutch State during the nineteen-fifties. The remainder was incorporated in the Netherlands Art Property Collection (NK collection), as part of the Dutch National Art Collection.

Starting at the end of nineteen-nineties, renewed interest arose in the Netherlands and other countries in the return of art treasures that had been looted during the Second World War. There were calls for a flexible restitutions policy, for example in such international instruments as the Washington Principles on Nazi Confiscated Art (1998) and in a resolution on Looted Jewish Cultural Property (1999) adopted by the Parliamentary Assembly of the Council of Europe. Recommendations were made to opt for a form of alternative dispute settlement outside the standard judicial process.

The actions taken in the Netherlands in response to these principles included establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (Restitutions Committee) in a decree dated 16 November 2001. The Origins Unknown Committee, also known as the Ekkart Committee, played an important role in its history. Under this committee’s supervision, between 1997 and 2004 the Origins Unknown Agency (BHG) investigated the provenance of all objects in the NK collection. At around the same time, the government gave notice of a more liberal restitutions policy based on recommendations made by Ekkart Committee in 2001, 2003 and 2004. Within the scope of this generous policy, since 2002 the Restitutions Committee has been advising the Minister of OCW about decisions to be taken on individual applications for the restitution of items of cultural value stolen during the Nazi regime.4

3 For a comprehensive overview see Eelke Muller and Helen Schretlen, Betwist Bezit. De Stichting Nederlands Kunstbezit en de teruggave van roofkunst na 1945 [Disputed Ownership. The SNK and the Restitution of Looted Art after 1945] (Waanders Uitgevers, 2002).

4 See Appendix 3 for an overview of the documents concerning the restitution policy.

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2.2 Restitutions Committee’s Tasks

The Restitutions Committee’s primary task is to issue advice to the Minister of OCW about claims to items of cultural value in the Dutch National Art Collection, in other words the collections in the possession of the Dutch State.5 Not all the items of cultural value whose possession was lost by the former owner as a consequence of the Nazi regime ended up in the Dutch National Art Collection. Some can be held by provinces, local authorities, foundations or private individuals. This is why the government gave the Restitutions Committee a second task, which is to issue opinions about restitution issues to which the Dutch State is not a party.6 Such cases therefore involve items of cultural value in the possession of owners other than the Dutch State.

See the Committee’s website for more information about the procedures it employs in the opinion-related tasks referred to above.

2.3 Current Restitution Policy

The original Decree Establishing the Restitutions Committee of 16 November 2001 stipulated that the Restitutions Committee shall conduct its advisory task with regard to claims to items of cultural value in the Dutch National Art Collection giving due regard to government policy in this respect. The most important components of this policy were formed by three sets of recommendations by the Ekkart Committee. These were the Interim Recommendations Concerning Private Art Ownership (2001), the Recommendations Concerning Restitution of Art Dealers’ Artworks (January 2003) and the Final Recommendations (December 2004).7

As a result of an amendment of the Decree Establishing the Restitutions Committee, the assessment framework for evaluating applications for restitution of items of cultural value in the Dutch National Art Collection was changed step by step. With effect from 19 July 2012 claims to items of cultural value in the Dutch National Art Collection that do not belong to the NK collection are assessed using the ‘yardsticks of reasonableness and fairness’. With effect from 30 June 2015 this assessment framework also applies to claims to items of cultural value that do belong to the NK collection. As a consequence of these two changes the assessment framework for claims to items of cultural value in the Dutch National Art Collection is the same as that for items of cultural value belonging to collections other than the Dutch State’s.8 In 2017 the Restitutions Committee handled the last cases in which it had to advise giving due regard to government policy in this respect. In all cases that are still being considered by the Committee, it will advise on the basis of the yardsticks of reasonableness and fairness.

5 Decree Establishing the Restitutions Committee, 16 November 2001, article 2, paragraph 1. Appendix 1.6 Decree Establishing the Restitutions Committee, 16 November 2001, article 2, paragraph 2. For more

information see the explanatory notes to this Decree Establishing the Restitutions Committee. Appendix 1.7 The said sets of recommendations can be consulted via the Restitutions Committee’s website.8 See chapter 2 of Report 2015 for a comprehensive description of these changes and their backgrounds.

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2.4 Status of the Announced Changes in Implementation of the Restitution Policy

At the end of November 2015 the Minister of OCW announced that she would inform the Lower House in 2016 about future policy on the restitution of Nazi looted art. On 4 October 2016 the Minister sent a letter to the Lower House in which she revealed her plans for changes to the implementation of the restitution policy.9 An important change in implementation of the policy announced in this letter is the establishment of the Second World War Plundered Art Expertise Centre. In 2017 the parties involved worked on establishing this expertise centre, which is scheduled for 2018.

2.5 Change in Criteria for Assessing Requests for Revised Advice

The restitution policy does not provide for the option to ‘repeat’ the handling of a case, or to appeal so to speak. However, in 2010 the Committee did create the option, in consultation with the Ministry of OCW, to submit ‘requests for revised advice’ relating to cases that concern items from the Dutch National Art Collection (including the NK collection). This procedure was intended for cases in which, after advice has been issued to reject a claim, a crucial record was unearthed which in retrospect might well have resulted in advice to grant a claim. This procedure also provided for the possibility of raising serious errors of a procedural nature, for example concerning hearing both sides.

In 2017 the Restitutions Committee reviewed the criteria it uses for assessing requests for revised advice. The Committee decided, in line with the Minister’s letter of 4 October 2016 to the Lower House, that only new facts can give rise to advising the Minister to reconsider a previously rejected restitution application. This means that the criterion of procedural errors used previously by the Committee will no longer be applied. In order to underline this change in assessment, the expression ‘a request for revised advice’ will no longer be used. In such cases the Minister of OCW, after she has been requested to do so, will ask the Committee whether there are grounds for reconsidering a previous decision to reject a restitution application.

9 Lower House, session year 2016-2017, 25 839, no. 42. See also Report 2016, appendix 5.

3. A Look Back at 2017

3.1 Composition of the Restitutions Committee

Until 23 December 2017

Until 23 December 2017 the Restitutions Committee comprised the following members: Dr A. Hammerstein (Chair)Professor I.C. van der Vlies (Vice-Chair)Professor J.T.M. BankJ.H.W. KosterP.J.N. van OsH.M. Verrijn StuartDr G.N. Verschoor

Departure and arrival of members with effect from 23 December 2017

Professor I.C. van der Vlies (also Vice-Chair), Professor J.T.M. Bank and P.J.N. van Os stepped down as members of the Committee with effect from 23 December 2017.10

Committee member H.M. Verrijn Stuart was appointed Vice-Chair as of 1 January 2018. Dr C.C. Wesselink and Dr J.H. van Kreveld became members of the Committee with effect from 23 December 2017.11

Members of the Restitutions Committee from 23 December 2017:

Dr A. Hammerstein (Chair)H.M. Verrijn Stuart (Vice-Chair) J.H.W. KosterDr J.H. van KreveldDr G.N. VerschoorDr C.C. Wesselink

10 See also the Chair’s Foreword.11 Appointment Decision, Netherlands Government Gazette, 19 January 2018, no. 2599.

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2. From left to right Bank, Verschoor, Koster, Verrijn Stuart, Van Os and Van der Vlies.

3. From left to right Muller, Mooren, Kooij, Hammerstein, Idema and Kunert.

3.2 Restitutions Committee Employees

During the year under review the Committee’s day-to-day activities were carried out in the Committee’s investigation department and secretariat under the supervision of General Secretary M.C.J. Kooij. The other members of the team were A. Marck (deputy secretary/researcher), A.W.G. Brandse (office manager), I. El Achkar (management assistant), E.J.A. Idema (legal assistant), A.M. Jolles-van Loo (archivist), A.J. Kool (art history researcher), F.M. Kunert (researcher), J.M. Mooren (art history researcher) and E. Muller (researcher).

Deputy secretary Marck left the employ of the Restitutions Committee as of 1 January 2018. Marck was an employee in the investigation department and secretariat from 2004 and made a valuable contribution to the Committee’s work.

The Restitutions Committee’s office is located at Lange Voorhout 13 in The Hague. The investigation team also has an office available in the National Archives of the Netherlands in The Hague.

3.3 Activities in 2017

In 2017 the Committee held eight meetings. During the year under review twenty-one cases were considered. Four of them arose from the Museum Acquisitions since

1933 investigation12 and one case arose from the Missing Works project.13 In 2017 the Committee issued seven recommendations.14 The Committee will advise or give an opinion about the remaining cases in 2018 or thereafter.

3.4 Developments in Advisory Activities

Missing Works Project

Two of the recommendations made in 2017 are explained in detail here. Firstly the advice of 13 November 2017 in the case RC 1.167 Pastel Drawing by Philippus Endlich. A special feature of this case is that the restitution application arose from the BHG’s Missing Works project. This project’s objective is to digitize and give access to information about missing works of art and, where possible, to identify them. Some 15,000 declaration forms and the associated image material from the files of the Netherlands Art Property Foundation (SNK) and the RKD - Netherlands Institute for Art History form the basis for this project. The BHG put the first information on its revamped website in December 2016. The applicants in case RC 1.167 were able on the grounds of this information (an SNK declaration form) to identify a drawing in the Rijksmuseum as former family property and asked the Minister of OCW for its restitution. The Restitutions Committee advised the Minister to restitute it and the Minister accepted this advice. The SNK declaration form

12 For more information about this investigation see http://www.musealeverwervingen.nl and Report 2011, section 4.3.

13 For more information about this investigation see http://www.herkomstgezocht.nl/en/missing-works-art and Report 2016, section 4.5.

14 The complete texts of the recommendations issued in 2017 are in chapter 5.

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that the BHG published on its website played an important part not just in the origin of this case but also in its outcome. Dutch Heritage Act

The Heritage Act came into force on 1 July 2016. The act was discussed in case RC 1.166 Berolzheimer, which concerned a drawing in the Dutch National Art Collection. The Restitutions Committee had to advise about this restitution application on the basis of the yardsticks of reasonableness and fairness. Weighing up interests is part of this assessment. In this context the Minister of OCW referred to advice that the ministry had requested from the Protection Worthiness Assessment Committee on the grounds of article 4.18 of the Heritage Act. The Restitutions Committee included the substance of this advice when it weighed up the interests. In the Restitutions Committee’s opinion the applicants’ interest in restitution of the drawing had to be given greater weight than the importance to the Dutch State of retaining the drawing for the Dutch National Art Collection. The Minister accepted the advice to restitute.

3.5 Symposiums, Presentations and Study Days

In 2017 the restitution of Nazi looted art continued to be very topical. Committee members and employees gave lectures, presided over workshops, attended national and international symposiums and maintained contacts with committees, institutions, researchers and students at home and abroad. The most important activities are summarized below in chronological order.

• March to May: Kunert contributed to a series of tutorials titled Looted Art

and Restitution: History, Theory and Policy, an elective course in, for example, the museums and collections specialist masters at the Humanities Faculty of Leiden University. On 6 April there was a practical in the form of a provenance investigation in the National Archives of the Netherlands. BHG employees helped make the arrangements;

• 23 and 24 March: Idema attended the conference From Refugees to Restitution: The

History of Nazi Looted Art in the UK in Transnational Perspective in Cambridge;• 28 March: Idema and Kunert presented the Restitutions Committee’s work to

members of YoHoCo (association of junior employees of the High Councils of State);• 11 May: Committee members and employees attended the opening of the exhibition

Roofkunst voor, tijdens en na WO II (Looted Art Before, During and After the Second

World War) in the Bergkerk in Deventer;• 11 September: Committee members Bank and Verschoor and researcher Kunert

represented the Restitutions Committee at a meeting with the British, French, German and Austrian committees. The meeting was organized by the UK government and was held in the National Gallery in London;

• 12 September: Bank, Verschoor, Kunert and Mooren attended the conference on Nazi looted art 70 Years and Counting: The Final Opportunity? in the National Gallery in London. Bank was also a speaker in a panel together with delegates from the four other European committees;

• 7 November: Idema gave a lecture about the Restitutions Committee’s work to

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students from Utrecht Law College as part of the art and law module organized by the Trivium committee of the Tilia student association in Utrecht;

• 30 November: researchers Mooren and Kunert gave a guest lecture together with BHG employees about research into Nazi looted art to art history students at the Free University Amsterdam. It was followed by a practical in the form of a provenance investigation;

• 1 December: Hammerstein, Idema, Kunert and Mooren attended the autumn meeting of the VKCR art, culture & law association in Amsterdam on the theme of restitution.

3.6 Meeting of European Committees and Conference in London

On the initiative of the British Spoliation Advisory Panel a meeting took place on 11 September 2017 in London between delegations from the five European restitution committees from the host country the United Kingdom, France, Germany, Austria and the Netherlands. This was the first official meeting of the five committees since the conference organized by the Restitutions Committee in 2012.15 Committee members Bank and Verschoor and researcher Kunert took part in the meeting on behalf of the Restitutions Committee. The meeting was closed. It was intended as a forum for sharing national information and procedures and as an opportunity to talk about future collaboration. The delegations taking part stressed the importance of maintaining contacts and cooperation between the five committees.

This meeting was followed on 12 September 2017 by the conference on Nazi looted art 70 Years and Counting: The Final Opportunity? in the National Gallery in London. Bank was a speaker in a panel together with delegates from the four other European committees.

15 See section 3.3 of Report 2012.

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4. Overview of Restitutions Committee Recommendations and Opinions

4.1 Overview from 2002 to 2017

Between January 2002, when the Restitutions Committee took up its duties, and the end of 2017, the Minister of OCW requested advice or an opinion about 173 cases. Of these, 149 related to items of cultural value from the Dutch National Art Collection; 140 were requests for advice ‘in the first instance’ and nine concerned requests for revised advice or reconsideration of previously issued advice.16 The other 24 cases were about artworks with current owners other than the Dutch State, such as provincial and local authorities, foundations or private individuals.

The data presented in section 4.2 relate to all cases concerning the Dutch National Art Collection. Cases involving works that are not in the Dutch National Art Collection are discussed in section 4.3.

4.2 Dutch National Art Collection Cases

By the end of 2017 the 149 Dutch National Art Collection cases brought before the Committee resulted in the issue of 140 recommendations.17 A few of the cases that had been submitted were withdrawn before advice could be issued, and on occasion a case was combined with a restitution application submitted later. The Committee furthermore considered itself not to be competent to advise in two cases.

Of the 140 recommendations issued, 65 were fully in the applicants’ favour, 56 were to reject the claim in full and 19 were to partly grant and partly reject the claim. The scope of the cases ranged from a single artwork to claims calling for the return of a few hundred items. The 140 recommendations issued concerned approximately 1,560 claimed items of cultural value.

16 See section 2.5 for this difference.17 During the handling of a few cases, the advice was split up into two parts, so there were partial

recommendations. The recommendations and opinions issued by the Committee can be consulted on its website. See Appendix 5 for an index by case number of all the opinions and recommendations issued by the Committee during the 2002-2017 period.

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Dutch National Art Collection cases per year

Submitted to the RC Recommendations issued by the RC 2002 12 2002 5 2003 4 2003 7 2004 9 2004 2 2005 16 2005 7 2006 15 2006 12 2007 35 2007 16 2008 12 2008 15 2009 10 2009 16 2010 6 2010 10 2011 2 2011 13 2012 5 2012 9 2013 3 2013 7 2014 8 2014 2 2015 6 2015 7 2016 2 2016 5 2017 4 2017 7

Total 149 Total 140

4.3 Cases Concerning Works not in the Dutch National Art Collection

As explained, when it was established the Restitutions Committee was assigned a second task in addition to assessing claims to works in the Dutch National Art Collection. This involves investigating and evaluating disputes about items of cultural value from collections other than the Dutch National Art Collection. The Committee discharges this task by giving a binding opinion within the meaning of article 7:900 of the Dutch Civil Code (contract of settlement).

By the end of 2017 the Restitutions Committee had received 24 requests for an opinion in the context of this task. A binding opinion or a decision was issued previously in 13 of these cases.18 In eight of these 13 cases the recommendation was to restitute the disputed objects, the binding opinion in four cases was that the restitution application should be rejected and in one case it was decided not to take a request under consideration. No binding opinions were issued during the year under review.

18 See Report 2008, Report 2010, Report 2012, Report 2013, Report 2013, Report 2015 and Report 2016.

Binding opinion cases per year

Submitted to the RC Binding opinions issued by the RC 2006 2 2006 - 2007 1 2007 - 2008 1 2008 3 2009 - 2009 - 2010 - 2010 1 2011 5 2011 - 2012 1 2012 1 2013 2 2013 4 2014 2 2014 - 2015 4 2015 3 2016 3 2016 1 19 2017 3 2017 -

Total 24 Total 13

4.4 Status as at End of 2017 At the end of the year under review a total of fifteen cases were being dealt with, of which five concern the Dutch National Art Collection and ten are binding opinion cases.20

The time taken to process a request for advice or an opinion varies from case to case. For example, the procedure takes longer if the historical investigation is time consuming. This can be due to the scope or the nature of the research needed. An investigation can take longer if the Committee is dependent on third parties for gathering information, such as archives in the Netherlands and other countries. In addition, procedural reasons often contribute to a longer turnaround time. In some cases, for instance, there are several claims relating to the same work of art, so a number of response stages are desirable and cases have to be kept open until investigation of the various claims has been completed. Applicants also regularly request an extension of the response times, for example so that they can do some research themselves.

19 This concerns a decision and not a binding opinion. See Report 2016, chapter 6, Decision concerning eleven majolica plates (RC 3.153).

20 One binding opinion case has lapsed, and consequently there are ten to consider instead of eleven.

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5. Recommendations Issued in 2017

Below is the full text of the recommendations issued by the Restitutions Committee in 2017. The recommendations are given in chronological order. The dates given for recommendations are based on when they were finalized.21

1. Recommendation regarding Krasicki (case number: RC 1.152)

In a letter dated 6 January 2015 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application of 23 November 2014 from AA of BB, CC (hereinafter referred to as the Applicant) for restitution of the painting Portrait of an Officer by J.F.A. Tischbein. This work is part of the Netherlands Art Property Collection (hereinafter referred to as the NK collection) with inventory number NK 1715 in the custody of the State of the Netherlands.

Assessment framework

Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:a. part of the NK collection orb. among the other holdings of the Dutch State.Pursuant to paragraph 4, the Committee advises about applications as referred to in paragraph 1, under a, submitted to the Minister before 30 June 2015 with due regard for government policy in this respect.

The procedure

The Committee conducted an investigation into the facts in response to the Minister’s request for advice. The results of the investigation are recorded in a draft investigatory report dated 7 March 2016. This report was sent to the Applicant with a letter dated 24 March 2016. In the letter the Committee put additional questions to the Applicant. The Applicant responded in e-mails of 30 March, 1 April and 3 April 2016. In addition the Applicant corresponded frequently during the procedure about the progress of the case. The draft report was sent to the Minister on 24 March 2016 for additional information. The Minister responded to this in an e-mail of 29 April 2016 informing the Committee that she did not wish to bring any additional information to the Committee’s attention.The Committee then had further research conducted in Poland and elsewhere. In a letter of 21 December 2016 the Committee asked the Applicant to respond to some of the results from the additional research. The Applicant responded in e-mails of 25 December 2016 and 4 January 2017. The investigation report was subsequently adopted on 20 February 2017.

Considerations

1. The Applicant was born on [..] in DD, a city that during the interwar years belonged to the Polish state and was known as EE in Polish. The Applicant asserts that until 1939 the currently claimed painting belonged to his father, Count Stanislaw Tomasz August hr. Krasicki z Siecina h. Rogala (1906-1977). The Committee has no reason to doubt the Applicant’s status as a rightful claimant in the context of this restitution application.

2. The relevant facts are described in the investigation report dated 20 February 2017. A summary is sufficient in the following considerations.

21 See Appendix 5 for an index by case number of all the opinions and recommendations published by the Committee during the 2002-2017 period.

The Krasicki family

3. The Applicant is descended from a noble Polish family. A family tree submitted by the Applicant goes back to the mid-eighteenth century. The Applicant’s grandfather was Count August Konstanty Ksawery Hr. Krasicki h. Rogala (1873 Bachórzcu -1946 Cracow). He was married to Izabela Hr. Wodzicka z Granowa h. Leliwa (1882-1966). Six children were born to the marriage, including the Applicant’s father, the Stanislaw Krasicki referred to in consideration 1. Stanislaw was born in Lesko in the dual monarchy of Austria-Hungary. On 12 June 1930 in Lviv he married Jadwiga Maria Ewa hr. Bielska z Olbrachcic h. Jelita (1905-2000). This marriage produced two sons: the Applicant and Andrzej Stanislaw Edmund (1933-2011).

4. Before 1918 the riverside village of Lesko in Eastern Galicia was known as ‘Lisko’ and was part of the dual monarchy of Austria-Hungary. From the beginning of the nineteenth century the Krasicki family owned Lesko Castle, the local fortress on the River San. The castle was the social and intellectual centre of the region, in which the Applicant’s grandfather was active politically and also became well known as a botanical researcher.

Russian troops - who were fighting against the Habsburg monarchy - passed through Lesko during the First World War (1914-18). The castle was not spared. Russian soldiers plundered the castle’s rooms and destroyed the interior before setting fire to the building. Parts of the valuable contents, the archives and the library had been made safe in good time beforehand, however, and as a result they largely survived. The castle was rebuilt after the Great War by August Krasicki.

In September 1939 the village of Lesko, which meanwhile had become part of the Polish Republic, was once again the victim of the ravages of war. The attack by the Red Army on 17 September in the eastern part of Poland, which had been in a life and death struggle with Nazi Germany in the west since 1 September, was so unexpected and was accompanied by such lawlessness that there was no time to take the valuable art collection and furniture in Lesko Castle to a place of safety, and they fell victim to plundering. August Krasicki, the last Count Krasicki to live in the castle, managed to escape with his family.

5. Besides the castle in Lesko, the Krasicki family owned mansions in Bachórzec, Dubiecko and Stratyn. The Stratyn estate came into the possession of the Krasicki family through the spouse of Ignacy Adam Hr. Krasicki (1767-1844), who received the property as her dowry on her marriage. It ultimately ended up in the possession of August Krasicki via a number of inheritances.

According to the Polish historian Professor Roman Aftanazy (1914-2004), who compiled and wrote Dzieje rezydencji na dawnych kresach Rzeczypospolitej, an eleven-volume history of 1,500 palaces and mansions in the eastern regions of Poland and their owners, at the Stratyn estate there was allegedly a valuable library and also a collection of some 200 paintings by mainly foreign artists. During the First World War the mansion was supposedly devastated and the collections in it were destroyed, ‘... except for a small number of family portraits that had been moved beforehand to the main residence of the Krasicki family in Lesko’. According to Aftanazy the staff quarters served as a residence after the mansion had been devastated.

6. When the Second World War broke out, Stanislaw and his family, including the Applicant, were living in Stratyn. The Applicant stated the following about the events of 1939.

‘In 1939 my father went to War, my mother and younger brother stayed in the manor at “Stratyn”, when the news come that Russians were invading Poland from the east, my mother was advised by local police to leave as our lives were in danger, we did immediately, leaving everything behind. It is reasonable to assume that the primary looters were local Ukrainians, who were hostile to all things Polish. Some days after our departure Russians arrived and completed what was left after the Ukrainian looting. Presumably this portrait was then sold or confiscated by that Dutch collaborator from Ukrainians, when germans invaded Russia in 1941 and occupied that part of Poland.’

The claimed painting

7. The painting Portrait of an Officer by J.F.A. Tischbein is part of the NK collection under inventory number NK 1715. The Origins Unknown Agency (hereinafter referred to as the BHG) has the following provenance for the painting on its website (www.herkomstgezocht.nl):

1944-04-03 P.N. Menten (collection), Aerdenhout ICN inventory card; SNK file nos. 435, 865; Bundesarchiv Koblenz B323 no. 575

H. Posse SNK file nos. 435, 865

A. Hitler ICN inventory card; SNK file nos. 435, 865

1944-04-03 Führer Museum (museum), Linz Bundesarchiv Koblenz B323 no. 575

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The BHG also states: The provenance data are inconclusive It is not known when and from whom P.N. Menten acquired the

painting. P.N. Menten returned with 'three wagonloads of possessions' from the Polish town of Lemberg, which was

occupied by the Germans in 1943. It is therefore possible that this painting has a Polish provenance. P.N. Menten was convicted of war crimes in Poland in 1980.

8. The BHG’s provenance does not state who the officer portrayed in NK 1715 is. In his restitution application the Applicant contends that it is one of his ancestors.

‘This painting is in fakt an ancestor, Jan Krasicki, major of cavallery, one of the first recipants of “virtuti Milittari”, highest Polish decoration for valour (…) This decoration is clearly visible in the painting, the light and dark blue ribbon hanging on his brest.’

It emerges from the family tree submitted by the Applicant that this Jan Krasicki (1763-1830) was a brother of the Applicant’s third great-grandfather. The Virtuti Militari is the highest military decoration for bravery in Poland, and it was first awarded in June 1792, just before the Second Partition of Poland. Cavalry Major Jan Krasicki was one of the first soldiers to receive the decoration in 1792.

9. According to the Applicant the painting used to be in his home in Stratyn. ‘As a child I well remember number of portraits adorning the walls of main dining room in Stratyn. The

portrait was displayed there. My father often pointed it out to me stressing the fact that he was national hero, one of the 1st recipants of “Virtuti Militari”, Poland, highest cross for valour in battle.’

Later he added the following. ‘Jan Krasicki was land owner and Polish “Szlachcic” or nobelman, Polish patriot and fighter for

Independence against Russian Tsarist occupation of his native land. This painting together with other family members was displayed on the walls of our dining room in “Stratyn”. As a background, you should be aware that we as children were brought up to be very patriotically minded, as were all Poles. Poland over the centuries was subject to many foreign invasions and occupations, it never accepted subjugation and ferociously fought for its independence, which was greatly valued. Any citizen who took part in these wars was greatly admired, venerated and honoured. I well remember my father pointing to me Jan’s portrait as one of these brave and noble fighters for independence of which our family should be proud. This always stayed in my memory, although it happened so many years ago.’

4. Portrait of an Officer by J.F.A. Tischbein (NK 1715)

10. The Applicant submitted his restitution application thanks in part to the efforts of the Communi Hereditate, a Polish foundation with the goal of documenting and protecting Polish cultural heritage. This foundation published a report the focus of which is on the painting. This report’s author, Marius Pilusz, describes how he found the painting on the BHG website. Shortly thereafter Pilusz accidentally found a photograph of the interior of Lesko Castle in volume 8 of the series of books by Aftanazy referred to above in consideration 5. On the photograph, which dates from before 1914, it was possible to see a portrait that appeared to be a copy of the currently claimed painting. Further investigation brought Pilusz to the conclusion that the portrait on the wall of Lesko Castle was painted by Joseph Pitschmann (1758-1834), who had lived in Lviv during the 1794-1806 period. Today the Pitschmann portrait is in the National Museum in Warsaw. In his report Pilusz concludes on the grounds of further investigation that the work painted by Pitschmann is a copy of the original by Tischbein.

11. Further research was conducted in the archive of the National Museum in Warsaw into the portrait by Pitschmann. The name Jan Krasicki is on the back. It can be deduced from the documentation found that this portrait arrived in the National Museum on 31 January 1948 as part of a collection of paintings, packed in nine crates, that came from Cracow. A list of the works concerned is contained in a protocol prepared by the museum. It is stated that the works were ‘from the collection of the Krasickis’.

There is the following description among the works on the list.

Jan Krasicki z Baranowa Pitschman oil on canvas 70x60 carved

The archive research also unearthed a 1948 receipt the subject of which is given as ‘30 paintings in accordance with enclosed specification / purchased warehouse’ and states ‘person who submitted request’: ‘Krasicki Ksewery, ul. Sienkiewicza 3a m.4’.

It can be deduced from this that the portrait by Pitschmann was sold by Ksawery Franciszek Krasicki (1911-1999), the Applicant’s uncle, to the National Museum in 1948.

Involvement of Pieter Menten

12. It is notable that the provenance prepared by the BHG states that the claimed painting came from the possessions of Pieter Menten (1899-1987). As the provenance mentions, in 1980 Menten was convicted of complicity in the mass murder of Jewish inhabitants of the Galician village of Podhorodce on 7 July 1941. Between 1977 and 1979 a three-person investigation committee, chaired by the historian Professor I. Schöffer, investigated Menten on the instructions of the Dutch government. This resulted in a weighty final report, the Menten Report.

13. Among other things, the following can be deduced from this report. Shortly after the First World War Menten established himself as a businessman in Poland, first in Danzig and Warsaw, and finally in Lviv. In parallel with his normal activities, Menten developed into an art and antiques dealer. He was advised in these matters by his brother Dirk Menten. After the invasion of Poland by the Red Army in September 1939 Menten fled to Cracow via Lviv. He was to continue living there until he left Poland at the beginning of 1943. Menten continued his activities as an art buyer from Cracow. The German conquest of Eastern Galicia and its subsequent annexation by the General Government (the central part of Poland occupied by the Nazis) enabled Menten to travel to Lviv again in order to expand his art holdings among other things. The good relationship that Menten had meanwhile established with Dr Eberhard Schöngarth, commander of the security police and the security service (SD) in the General Government, was most useful to Menten at this point. During this period Menten also acted as an SS Hauptscharführer (equivalent to a company sergeant major) in an Einsatzgruppe zur besonderen Verwendung (task force for special tasks) which was under the command of the aforementioned Schöngarth. It was during this period that Menten was involved in the execution of many Jews in the village of Podhorodce and very probably also in the nearby Urycz.

14. Menten’s acquisition of art during the 1941-43 period is well documented. In geographical terms Menten did not limit himself to Lviv. He also went to Kiev and Riga for instance. However, there is no precise overview of the art and other objects that Menten acquired during this period.

In January 1943 Menten was compelled by order of Heinrich Himmler to leave the General Government. The Mentens returned to the Netherlands and settled in Aerdenhout. The couple left Poland with eleven pieces of luggage and four German railway wagons full of art and valuable objects. An overview prepared by the Haarlem Customs & Excise Inspector on 9 February 1943 of the goods that Menten brought with him from Cracow mentions 87 paintings, but they are not referred to by name.

On 3 April 1944 Pieter Menten sold the claimed painting to the Sonderauftrag Linz (Special Mission Linz) for a sum of NLG 3,000, as BHG states in its provenance. During its own investigation the Committee found information that confirms this transaction. The painting was returned to the Netherlands after the war.

Finally it should be mentioned that during the investigation a photograph of the present NK 1715 was found in the Netherlands Art Property Foundation archive. On the back of the photograph is the note F. Tischbein / D. Menten’. It is not known who made this note.

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Assessment of the claim: ownership

15. The restitution application concerns an item of cultural value from the NK collection and it was submitted to the Minister before 30 June 2015. The means that the Committee must advise the Minister about the application giving due regard to government policy in this respect.

On the grounds of the eighth recommendation of the Ekkart Committee in 2001, there may be restitution if the right of ownership has been established as being very plausible and there are no indications to the contrary. The explanatory notes to this recommendation include the following.

‘It is clear that conclusive proof of ownership and of the correctness of the course of events relating to the loss of possession described by former owners is often difficult to provide, in part because in many cases the documentary evidence concerned was lost as a result of conditions during the war. It is necessary when assessing the burden of proof that the benefit of the doubt should be on the side of the private individual and not on that of the State.…’

16. The following is important in regard to assessing the ownership issue: a) It is known that on 3 April 1944 Menten sold the claimed painting to the Sonderauftrag Linz for a sum

of NLG 3,000. It is still unknown how Menten acquired the painting. It is perfectly possible that Menten acquired the painting in Poland and took it with him to the Netherlands in 1943.

b) It is also known that the person portrayed in the painting is Jan Krasicki (1763-1830), a brother of the Applicant’s grandfather, who received the Virtuti Militari in 1792. This decoration can be seen in the painting.

c) There is also a portrait of this Jan Krasicki by Joseph Pitschmann, which is considered by Pilusz to be a copy of the portrait by Tischbein. In 1948 the portrait by Pitschmann was sold to the National Museum by Ksawery Krasicki, the Applicant’s uncle, and it is still there. The portrait by Pitschmann can be seen on a photograph, dating from before 1914, of the interior of the castle in Lesko.

d) According to Aftanazy the Stratyn mansion was supposedly devastated during the First World War and the collections in it were destroyed, ‘... except for a small number of family portraits that had been moved beforehand to the main residence of the Krasicki family in Lesko’.

17. In addition to the facts referred to in points a) to d) above, the statements by the Applicant, as quoted in considerations 8 and 9, are also important. The Applicant, who was born in 1931, has made emphatic and detailed statements about the painting, the person portrayed in it and his family history. These statements do not contradict the known facts. The Committee attaches great significance to these statements. In addition the claimed painting is linked to the Applicant’s family history in a unique way. The painting depicts an ancestor of the Applicant who was awarded the highest military decoration in Poland. According to the Applicant his father frequently pointed this out to him with pride. It is without doubt plausible that such a painting was among the family’s possessions. This special importance of the painting to the family’s history also reinforces the Applicant’s statement that he remembers the painting from his childhood.

18. As referred to in consideration 10, Pilusz concludes that the work painted by Pitschmann is a copy of the original by Tischbein. The Committee is inclined to agree with Pilusz on this point. The paintings are after all virtually identical. It was furthermore not unusual for noble Polish families to have several versions of a family portrait, which could be hung in different mansions. This, however, gives rise to the question of whether the Applicant is not recalling the claimed painting by Tischbein but the painting by Pitschmann. Besides the physical resemblance between the two paintings, a role is also played by the fact that there is more information about the painting by Pitschmann, on the grounds of which the painting can be placed among the possessions of the Krasicki family, than about the painting by Tischbein. It is known, for instance, that it was in Lesko, in any event before 1914, and in 1948 was sold by Ksawery Krasicki to the National Museum in Warsaw, where it still is. It is plausible that the painting remained in the family’s possession during the intervening period.

The Committee considers it more plausible, though, that the Applicant does indeed recall the painting by Tischbein. The Applicant did after all state this and, after the possibility of an error was pointed out to him, did not retract this statement. In addition the painting by Pitschmann was in Lesko, in any event before 1914. Although this obviously does not mean that it could not have been moved to Stratyn thereafter, there are also no reasons for assuming that this happened.

19. The aforegoing leads to the conclusion that it can be considered highly likely that the claimed painting is from the possessions of the Krasicki family.

Assessment of the claim: loss of possession

20. The next issue is whether the loss of possession of the painting was involuntary as a result of circumstances directly related to the Nazi regime. The Applicant assumes that after the invasion by the Soviet army in 1939, in the first instance Stratyn was looted by ‘local Ukrainians’ and that the plundering was continued by the Red Army, which arrived a few days thereafter. The painting was supposedly also removed at that time and ultimately ended up in the hands of Menten.

This explanation by the Applicant is an assumption. During the Committee’s investigation no

documentation or other evidence was found to support this assumption. Such a scenario is not implausible, but there are also other conceivable scenarios.

21. The Committee considers it plausible that possession was lost during the period immediately after the Applicant and his family fled Stratyn and that this loss of possession was involuntary. It is after all not readily imaginable that the family would voluntarily let go of a painting like this, which had and has such special significance for the family. The Applicant, who was born in 1931, has furthermore stated that the painting hung on the wall in Stratyn. The Committee therefore considers it plausible that the Applicant’s family lost possession of the painting involuntarily in around September 1939. This corresponds with the Applicant’s statement.

22. Trying to establish in 2017 in what way and through whose actions possession of the painting in Stratyn was actually lost at the end of September 1939 is almost impossible. The Committee therefore gives regard to the following facts in its assessment of the restitution application.

At the end of August 1939 Nazi Germany and the Soviet Union concluded a non-aggression treaty

(Molotov – Von Ribbentrop Pact). Agreements were made in a secret clause in this treaty about a new Partition of Poland between the two states and about other border changes in Eastern Europe. A week after the treaty was signed Germany entered Poland from the west on 1 September 1939. This resulted on 3 September 1939 in a declaration of war by the United Kingdom and France against Germany and thus the start of the Second World War. On 17 September 1939 the Soviet Union entered Poland from the east. Soviet troops met German troops and celebrated their cooperation with a parade in Brest-Litovsk (the place where the two countries had made peace in 1918).

Stratyn was in the eastern part of Poland that had been allocated to the Soviet Union and which, after its conquest by the Red Army, was to become part of the Ukrainian Soviet Socialist Republic. According to the Applicant’s statement, the noble Krasicki family felt the need to flee from the Red Army. History has proved them right. Twenty-two thousand Polish soldiers and intellectuals were massacred in Katyn Forest. Nearly three hundred thousand Polish nationals were deported by the Gulag from the eastern provinces between 1939 and 1941. Stalin was already guilty of gruesome mass murders and Hitler would thereafter be a match for him. The family’s flight, which meant giving up possession of Stratyn and therefore the painting, was a response to the prevailing lawlessness. Mansions belonging to the Polish nobility were plundered, for example, be it by local Ukrainians or Russian soldiers.

The Ukraine was conquered by the German army in the summer of 1941. Pieter Menten surfaced in Galicia as an SS-Hauptscharführer and also during this period as an art dealer. On 3 April 1944 he sold the painting concerned to the Sonderauftrag Linz for the collection of the future Führer Museum. Menten’s activities were enabled by the German occupation. It is not clear how he acquired the painting. It is demonstrable, however, that he did not just appropriate artworks from persecuted Jewish owners but from Polish nobility too.

Viewed together, these facts support the conclusion that possession of the painting was lost involuntarily as a result of circumstances directly related to the Nazi regime, namely to its Soviet ally in 1939 and directly from 1941.

23. The only remaining issue is who should be designated as rightful claimants in the event of restitution. According to Aftanazy the Applicant’s grandfather, August Krasicki, was the last owner of both Lesko and Stratyn, until September 1939. This is confirmed by a letter from Ksawery Krasicki, the Applicant’s uncle, dated 16 February 1964, in which he writes as follows. ‘The last owner of Stratyn was my father, and my brother Stanislaw lived there and managed the estate.’

24. The Applicant stated the following after this letter was presented to him by the Committee: ‘I remember well that amongst the grown up in conversation Stratyn was refered as "Stratyn byl majatek

Stasia". Translated "Stratyn was Stas property", Stanislaw was my father and Stas was dimunitive of his name. In any event, assuming that August [grandfather] was the owner, it doesnt follow that that fixtures and fittings also belonged to him’.

The Applicant has furthermore pointed out that if Stratyn and its contents had been the property of August Krasicki, August Krasicki would obviously have hung the painting by Tischbein in Lesko, where he lived. Yet according to the Applicant, the painting by Pitschmann hung in Lesko.

25. Although the Applicant made an emphatic and detailed statement about this point too, in this case the Committee cannot concur. After all Ksawery Krasicki, a direct descendant, stated that August Krasicki was the last owner of Stratyn. It is therefore predisposedly plausible that he was also the owner of the contents, including the currently claimed painting. In the absence of convincing evidence to the contrary, in regard to which the Committee considers the Applicant’s statement concerning this point to be insufficient, in the Committee’s opinion August Krasicki must be designated as the last owner of the currently claimed painting. The result of this is that the Committee will advise the Minister to restitute NK 1715 to the heirs of August Krasicki.

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Conclusion

The Restitutions Committee advises the Minister of Education, Culture and Science to restitute the painting Portrait of an Officer by J.F.A. Tischbein (NK 1715) to the heirs of Count August Konstanty Ksawery Hr. Krasicki h. Rogala (1873-1946).

Adopted on 20 February 2017 by A. Hammerstein (Chair), J.Th.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.

(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)

2. Recommendation regarding Berolzheimer (case number RC 1.166)

In a letter dated 19 October 2016 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application for restitution of the drawing View of the Abbey of Grottaferrata (hereinafter referred to as the drawing) by Caspar van Wittel. The application was submitted to the Minister by the Holocaust Claims Processing Office (HCPO) in New York (hereinafter referred to as the HCPO) on behalf of the heirs of Michael Berolzheimer (hereinafter referred to as the Applicants). Since 1975 the drawing has been among the holdings of the Dutch State and is currently in the Rijksmuseum in Amsterdam (hereinafter also referred to as the Museum).

Assessment framework

Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:a. part of the NK collection orb. among the other holdings of the Dutch State.Pursuant to paragraph 5, the Committee advises with regard to applications as referred to in paragraph 1, under b, on the basis of the yardsticks of reasonableness and fairness.Pursuant to paragraph 6, when discharging its advisory task as referred to in the first paragraph, the

5. View of the Abbey of Grottaferrata by Caspar van Wittel

Committee will give great weight to the circumstances of the acquisition by the owner and the possibility that there was knowledge about the suspect provenance at the time of the acquisition of the item of cultural value concerned.

The procedure

In a letter dated 19 October 2016 the Minister asked the Committee for advice about the application of 16 August 2016 from the Applicants for restitution of the drawing.The Committee conducted an investigation into the facts in response to the Minister’s request for advice. The results of the investigation are recorded in an overview of the facts dated 24 April 2017. The Applicants and the Minister were given the opportunity to respond to this overview of the facts. The Applicants responded in a letter of 25 May 2017. The Minister responded in a letter dated 19 July 2017. The Applicants responded to it in a letter of 31 August 2017.The Committee then adopted the recommendation in the meeting of 4 September 2017.

Considerations

1. The Committee established the relevant facts on the grounds of the overview of facts of 24 April 2017 and the responses to it that the Committee received. The following summary is sufficient here.

2. The Applicants stated that they are heirs of the Jewish lawyer Dr Michael Berolzheimer (1866-1942,

hereinafter referred to as Berolzheimer). The Applicants authorized AA to submit applications for restitution of Dr Michael Berolzheimer’s art collection. AA in turn appointed the HCPO as representative. According to information from the HCPO the Applicants in this restitution application are BB, CC, DD, EE, FF, GG, HH and II.

The Berolzheimer family

3. Berolzheimer was born in Fürth, Germany, on 22 February 1866. He was a lawyer of Jewish descent. On 26 September 1903 he married Melitta Dispecker. The marriage was to remain childless, but Melitta had had three children during her earlier marriage to the banker Eugen Schweisheimer: Waldemar (1889-1986), Nelly (1891-1971) and Robert (1894-1963). In 1905 Berolzheimer and his wife started to live in Untergrainau, a village close to Garmisch-Partenkirchen.

Berolzheimer was very interested in art and among other things was a member of the purchasing committee of the Alte Pinakothek in Munich, of the Graphische Sammlung and the Deutsche Orientgesellschaft. Berolzheimer also owned an art collection. It included paintings and sculptures, but it consisted primarily of a large collection of drawings and etchings. The Berolzheimer collection is thought to have contained over 800 works on paper.

4. During the nineteen-thirties Berolzheimer and his family had to contend with the anti-Jewish measures in Nazi Germany. In response they decided to emigrate to the United States. However, Berolzheimer was compelled to pay a substantial sum in Reichsfluchtsteuer (Reich Flight Tax) in connection with his intended departure. After Berolzheimer had submitted his application for an exit visa, his residence was visited by a representative of the Reichskulturkammer (Reich Chamber of Culture), Dr Ernst Wengenmayr. Wengenmayr, who was also an employee of the Adolf Weinmüller auction house in Munich, valued Berolzheimer’s art collection and also decided which works had to remain behind in Germany because of their cultural value.

On 25 July 1938 Berolzheimer left Germany with New York as his final destination, where he arrived on 15 September 1938. After Berolzheimer’s departure George Keller was appointed Treuhänder (trustee) of the former’s possessions. Three days before he left, Berolzheimer granted power of attorney to his stepson Robert Schweisheimer to sell his possessions in order to pay the required taxes. On 2 November 1938 Robert Schweisheimer signed an agreement with Adolf Weinmüller regarding the sale of the art collection at auction. Ten days later Schweisheimer also left Germany. Berolzheimer’s art collection consequently went under the hammer in two separate sales held by Weinmüller in November 1938 and March 1939.

The persecution of Berolzheimer continued after his departure from Germany. On 10 October 1940 his home was sold so that he would to fulfil his tax obligations, and the proceeds were put into a frozen account. On 10 December 1940 the tax authorities decided that Berolzheimer owed more than RM 55,250 in Judenvermögensabgabe (tax on registered Jewish assets). Ultimately Berolzheimer was deprived of his German citizenship, and his assets were declared forfeited by the Nazis. Berolzheimer died on 5 June 1942 in Mount Vernon, New York. His wife died two weeks later on 21 June 1942.

5. After the war Berolzheimer’s eldest stepson, Dr Waldemar Schweisheimer, acted as executor and he made efforts to track down his stepfather’s lost art collection. To do this Schweisheimer called upon the New York lawyer Robert O. Held among others. Held had some success in tracking down works from Berolzheimer’s collection, thanks in part to a copy of the Weinmüller sale catalogue to which he had obtained access. Held called in the help of a friend in Germany, the lawyer Dr Alfred Holl from Munich. The upshot of the activities of Held and Holl was that the Collecting Point in Munich was able to trace a number of artworks. Held also submitted a claim for damages against Adolf Weinmüller. On 20 November 1950, however, it was rejected by the Wiedergutmachungskammer of the Landgericht München I. In recent years many works of art from the Berolzheimer collection have been restituted to his heirs.

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The claimed drawing

6. The currently claimed work is a drawing with a watercolour wash that depicts the Abbey of Grottaferrata at Frascati in Italy. The drawing measures 26.7 x 41.1 cm. The drawing is attributed to Caspar van Wittel (1663-1736) and it is in the Museum’s collection with inventory number RP-T-1975-52. There is the following handwriting on the back of the drawing. ‘F. van Bloemen (gen. Orizonte)’.

7. The Applicants sent a copy of parts of an annotated catalogue (Protokollkatalog) that the Adolf Weinmüller auction house prepared for the sale of Buchminiaturen und Handzeichnungen als Älterer und Neuerer Zeit that it organized on 9 and 10 March 1939. Lot number 111 in this catalogue is described as follows.

BLOEMEN, JAN FRANS VAN, gen. ORIZONTE 1662 Antwerpen - Rom 1748 ... * 111 Grotta Ferrata bei Frascati. Im Vordergrund ein Brunnen und mehrere Bäume. Feder u. Tusche. 26,5:41. Sz. Bog. Jolles. Ehemalige Slg. Otto Mündler, Paris.

It can be deduced from the handwritten notes in the catalogue that lot number 111 was not sold during the sale. This is confirmed by a list entitled Nicht verkaufte Nummern a/Auktion Nr. 16 found in the file of the Monuments, Fine Arts & Archives (MFA&A) department of the allied army. Lot number 111 is on this list. After the war Adolf Weinmüller stated that he acquired the drawings unsold in the sale ‘zu dem Aufrufpreis’ and sold them during the course of the year.

According to Weinmüller the proceeds of the sale were transferred to Berolzheimer’s account with the Schweisheimer banking house and later to his account with the Bayerische Hypothek- und Wechselbank.

8. In 1975 the currently claimed drawing went under the hammer at the Kunstveilingen Mak van Waay B.V. auction house in Amsterdam as lot number 156 and was acquired for NLG 9,400 by the Rijksprentenkabinet (Rijksmuseum Print Room). It can be deduced from a 1973 publication by An Zwollo that the drawing had previously most probably been in the collection of Einar Perman of Stockholm. According to the Museum, it emerges from the introduction to the catalogue compiled for the sale at Mak van Waay that all the consigned drawings came from Perman’s holdings. The sale catalogue states the following under ‘Provenance’. B. Jolles (L.381a) and Otto Mündler.

The importance of the drawing to the cultural heritage of the Netherlands

9. In view of possible restitution of the drawing, the Minister asked for advice within the meaning of article 4.18 of the Dutch Heritage Act from the Protection Worthiness Assessment Committee (hereinafter referred to as the TCB), which was established by the Dutch Museum Register Foundation. The TCB issued advice to the Minister on 17 July 2017. The Minister sent this advice to the Committee on 19 July 2017. According to the Minister the advice describes the importance of the drawing to Dutch cultural heritage.

10. In its advice the TCB comes to the following conclusion. ‘De TCB acht het “Gezicht op de abdij van Grottaferrata” een topstuk van Caspar van Wittel. Het is een

uitzonderlijk en visueel zeer aantrekkelijk werk, doch niet representatief voor het oeuvre van Caspar van Wittel als belangrijke grondlegger van de Venetiaanse vedute, waar hij beroemd om geworden is.

Een sprekend voorbeeld van Caspar van Wittel als vedute schilder zou de TCB als onvervangbaar en onmisbaar voor het Nederland cultuurbezit kunnen bestempelen. Deze tekening beschouwt de TCB echter niet als onmisbaar voor het Nederlandse cultuurbezit. Zij onderschrijft wel de uitzonderlijkheid en visuele aantrekkelijkheid van de tekening en zal het als een groot verlies beschouwen als dit object uit het publieke domein zou verdwijnen’.

[‘The TCB considers “View of the Abbey of Grottaferrata” to be a Caspar van Wittel masterpiece. It is an exceptional and visually very attractive work, yet not representative of the oeuvre of Caspar van Wittel as a major founder of the Venetian vedute, which made him famous.

The TCB would be able to describe a striking example by Caspar van Wittel as a vedute painter as irreplaceable and indispensable in terms of Dutch cultural heritage. However, the TCB does not consider this drawing to be indispensable to Dutch cultural heritage. It does, though, endorse the singularity and visual attractiveness of the drawing and it will consider it a major loss if this work were to disappear from the public domain.’]

Assessment of the claim

11. The Applicants have stated that they are heirs of Berolzheimer. The Committee has taken note of the various inheritance-law-related documents submitted by the Applicants and on the grounds of them the Committee sees no reason to doubt the Applicants’ status as heirs of Berolzheimer.

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Ownership

12. The Minister asked the Committee for advice about the application for restitution of the drawing by Van Wittel, which is currently in the Rijksmuseum. The committee advises on the basis of the yardsticks of reasonableness and fairness.

When it assesses the application for restitution, in the first place the Committee is faced with the question of whether the claimed drawing belonged to Berolzheimer when it was in the sale at Weinmüller in March 1939, as contended by the Applicants. Before the Committee can deal with this question, however, it must first be established whether the currently claimed drawing is the same drawing as the one put into this sale as lot number 111. The currently claimed drawing is attributed to Caspar van Wittel, whereas the drawing put into the sale was attributed to Frans van Bloemen, called Orizonte. Apart from the difference in attribution, the information in the 1939 sale catalogue corresponds to the data about the currently claimed drawing as regards dimensions, material, subject and provenance information. There is furthermore the following handwriting on the back of the currently claimed drawing. ‘F. van Bloemen (gen. Orizonte)’. All this makes it clear to the Committee that the currently claimed drawing is the same as the one put into the sale at Weinmüller as lot number 111.

13. Little is known about the drawing’s provenance prior to the sale at Weinmüller. No indications were found that the drawing belonged to Berolzheimer. It has been established, however, that a part of Berolzheimer’s extensive art collection went under the hammer at the sale concerned. The sale catalogue states that ‘zwei Münchener Sammlungen und andere Beiträge’ were to be auctioned off, but does not record the names of the owners. The catalogue does, however, contain a Besitzerverzeichnis, an overview containing all lot numbers divided into columns with letters A to H. Lawyer Held wrote the following about this after the war.

‘I note from this catalogue that all objects of art owned by Hofrat Dr. Berolzheimer were specially marked with an asterisk next to the catalogue numbers and enumerated on page 6 under the heading “Besitzerverzeichnis” in a list “A”’. The grounds on which Held arrived at this conclusion are not known.

A copy of the settlement dated 6 April 1939 concerning items from Berolzheimer’s holdings was found in the post-war file that the MFA&A kept about the matter. It is not known who prepared this settlement. This document contains a five-page summary of lot numbers that were sold at the sale. The following is at the top of each page. ‘Abschrift (...) Abrechnung aus Auktion Nr. 16 für Herrn Dr. Michael Berolzheimer, Untergrainau, jetzt USA’. If these lot numbers are compared with the numbers and series of numbers in the Besitzerverzeichnis contained in the Protokollkatalog it emerges that none of the numbers listed under letters ‘B’ to ‘H’ is on this settlement. A generous sample shows that all the numbers on the settlement occur under the letter ‘A’. Among these lot numbers is lot number 111, according to the catalogue the currently claimed drawing.

In view of the above the Committee deems it highly likely that the drawing put into the sale as lot number 111 belonged to Berolzheimer at that moment.

Loss of possession

14. In the assessment of the nature of the loss of possession, also when advising in a Dutch National Art Collection case on the basis of the yardsticks of reasonableness and fairness, significance is attributed to the Ekkart Committee’s third recommendation of 26 April 2001, which stipulates that sales of artworks by private Jewish individuals in Germany from 1933 onwards must be considered to be involuntary, unless the facts expressly show otherwise.

15. It is clear that Berolzheimer lost possession of the currently claimed drawing as a result of the sale in 1939. Although the formal instruction to sell was given by Robert Schweisheimer, who had been authorized to that end by Berolzheimer, it arose from the obligation imposed on Berolzheimer to pay Reich Flight Tax, a measure used by the Nazis to deprive Jews of their possessions. On the grounds of the Ekkart Committee’s third recommendation referred to above, the loss of possession by Berolzheimer of the currently claimed drawing must be considered as involuntary.

With regard to this opinion, the Committee refers to statements by a number of the people involved. For example Weinmüller stated after the war that the Berolzheimer collection ‘unter dem Druck der damaligen Verhältnisse aufgelöst werden [musste]’. In 1950 the Wiedergutmachungskammer expressed the following opinion about the sale. ‘Das Motiv dieses Veräusserungsauftrages war zweifellos der damals für Juden allgemein bestehende Kollektivzwang.’

Weighing up interests 16. The Committee advises about this application according to the yardsticks of reasonableness and fairness

and it therefore now weighs up the interests concerned. In this context the Committee takes account of the following. The Applicants are heirs of Berolzheimer,

who at some point acquired ownership of the currently claimed drawing. Berolzheimer had to sell the currently claimed drawing at auction in 1939 involuntarily as a result of the anti-Jewish measures in Nazi Germany. Although Weinmüller stated that the proceeds of this sale were transferred to Berolzheimer’s account with the Schweisheimer banking house and later to his account with the Bayerische Hypothek- und Wechselbank, the Committee considers it improbable that Berolzheimer obtained the free disposal

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of these proceeds. Nor has it emerged that Berolzheimer’s descendants have ever received any form or compensation or reimbursement regarding the drawing. They did, however, make attempts immediately after the war and more recently, sometimes with success and sometimes not, to regain possession of Berolzheimer’s art collection. The Committee finds on these grounds that the interest of the Applicants has great weight with regard to restitution.

17. Under Dutch law it has to be assumed that the State is at present the owner of the drawing. The Museum acquired the drawing on behalf of the State at a sale in 1975 for a sum of NLG 9,400. No provenance research was conducted prior to the acquisition, but at that time it was also not standard procedure. There are therefore no grounds for assuming that the Museum acted negligently when it acquired the drawing in 1975.

As regards the importance of the drawing to the cultural heritage of the Netherlands, the Minister has referred to the advice from the TCB. The TCB does not consider this drawing to be indispensable to Dutch cultural heritage, but it does endorse the singularity and visual attractiveness of the drawing. The Committee concludes from this that the drawing’s importance to the cultural heritage of the Netherlands is limited.

In view of the foregoing, in the Committee’s opinion the Applicants’ interest in the restitution of the drawing must be given greater weight than the importance to the Dutch State of retaining the drawing for the Dutch National Art Collection. The Committee will therefore advise the Minister to restitute the drawing to Berolzheimer’s heirs.

18. Finally the Committee has addressed the question of whether something in return from the Applicants should be linked to surrender of the work. It is important in this regard that the Museum purchased the drawing on behalf of the State in 1975 for a sum of NLG 9,400 and that there are no indications that the Museum did not act in good faith at the time.

The Committee takes the view, however, that the purchase price was a relatively modest sum, and that the Museum has after all had the work in its collection since 1975. In these circumstances the Committee sees no reason to link surrender of the work to something in return from the Applicants.

Conclusion

The Restitutions Committee advises the Minister of Education, Culture and Science to restitute the drawing View of the Abbey of Grottaferrata by Caspar van Wittel to the heirs of Dr Michael Berolzheimer (1866-1942).

Adopted at the meeting of 4 September 2017 by A. Hammerstein (Chair), J.T.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.

(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)

3. Recommendation regarding Abraham Katz – Kummerlé (case number RC 1.132-A)

In a letter dated 14 May 2012 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice bout the restitution application of 6 March 2012 from AA, BB, CC and DD, represented by Professor H. Loonstein, lawyer of Amsterdam (hereinafter referred to as the Applicants). The Applicants state that they are grandchildren or great-grandchildren of Abraham Katz. The application is for the return of the following paintings.- Bathseba after the Bath, circle of Jan Steen (NK 3752), - Coastal Landscape, by Pieter van der Croos (NK 3753), and- Woman Kneeling by a Bed of Tulips, by an unknown Dutch artist, formerly attributed to Gerard Dou (NK 3754).

These paintings have been part of the Dutch National Art Collection since were handed back by the Federal Republic of Germany to the Dutch State on 4 March 2012.

The procedure

A restitution application concerning these same paintings was submitted on 8 May 2012 by the heirs of Nathan Katz and Benjamin Katz, brothers of Abraham Katz and partners in the art gallery Firma D. Katz in Dieren, both of whom are represented by the lawyer Thomas Kline of Washington DC, USA. The Minister laid this restitution application before the Committee for advice in a letter of 7 June 2012. The two applications concern the same paintings so the Committee combined them in file RC 1.132.

The present recommendation addresses only the application from the heirs of Abraham Katz - hereinafter referred to as the Applicants (recommendation number RC 1.132-A). The Committee will advise about the claim by applicants in regard to Nathan and Benjamin Katz at a later date (recommendation number RC 1.132-B).

In a letter of 12 July 2012 the Committee asked the Applicants to provide further information about their assertion that Abraham Katz was one of those entitled to the currently claimed paintings and, if possible, to underpin it with relevant documents. After the Committee had granted repeated postponements, it received some information in response on 24 October 2012. After the Committee had studied this information it informed the Applicants in a letter dated 6 June 2013 that the information they had sent did not provide sufficient clarity in regard to their assertion that Abraham Katz was one of those entitled to the currently claimed works and gave them another opportunity to provide a more detailed explanation of this assertion. The Committee enclosed a copy of an extract from the Commercial Register of the Chamber of Commerce in Arnhem concerning Firma D. Katz. The Applicants did not respond.

In a letter of 17 April 2014 the Committee notified the Applicants that the application would continue to be handled until 1 November 2014. Since then the deadline was postponed a number of times, at the request of the Applicants or otherwise, most recently until 1 September 2017. In a letter of 5 September 2017 the Committee notified the Applicants that it would not continue handling the application and that it would proceed with formulating advice for the Minister.

Considerations

1. The Applicants contend they are rightful claimants to the assets of Abraham Katz, who was born in Dieren on 9 January 1897 and died in Apeldoorn on 11 December 1984. They base their application on the grounds that Abraham Katz was co-owner of the currently claimed paintings and that he lost possession of the paintings involuntarily during the war.

2. It emerges from Origins Unknown Agency provenance information that the paintings concerned were sold in August 1940 by the Firma D. Katz art gallery to the German Alois Miedl. At some point he sold the paintings on to the German Alfred Kummerlé, after which the works ended up in Germany. The Committee brought the reported provenance information to the attention of the Applicants in letters of 12 July 2012 and 6 June 2013.

3. In an undated document that the Applicants sent the Committee - designated as a petition to the Court of Arnhem – the Applicants contend as follows.

‘De vooroorlogse firma D. Katz te Dieren werd destijds opgericht door David Katz, de overgrootvader van AA en haar zuster DD en de grootvader van EE en BB. Toen (over)grootvader minder goed aanspreekbaar werd, namen de kinderen van overgrootvader de firma over, te weten Nathan, Benjamin, Abraham en Mientje […] Toen overgrootvader kwam te overlijden (zonder een testament gemaakt te hebben), ging de firma definitief over naar zijn kinderen.'

[‘The pre-war Firma D. Katz in Dieren was founded at the time by David Katz, the great-grandfather of

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6. Coastal Landscape by Pieter van der Croos (NK 3753)

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AA and her sister DD and the grandfather of EE and BB. When great-grandfather / grandfather became less competent, great-grandfather’s children, i.e. Nathan, Benjamin, Abraham and Mientje, took the business over.… When great-grandfather died (without having made a will), the firm definitively passed into the hands of his children.’]

The Committee deduces from this that the Applicants adopt the position that Nathan, Benjamin, Abraham and Mientje (and their heirs) should be designated as rightful claimants to the artworks possessed by Firma D. Katz.

4. The Committee is unable to concur with this position. Firma D. Katz, while in name a continuation of the one-man business founded in 1887 by David Katz, was established in 1930 by Nathan Katz and Benjamin Katz. Nathan and Benjamin Katz were also the only partners in the firm until the firm was wound up on 1 June 1943. This emerges from information held by the Chamber of Commerce of Arnhem about the Firma D. Katz art gallery. On the grounds of this information Nathan Katz and Benjamin Katz therefore have to be designated as the only individuals entitled to the assets of the Firma D. Katz art gallery. With regard to this opinion the Committee also refers to its recommendation in the case of Katz RC 1.90-B (consideration 2).

5. The above leads to the conclusion that the Committee will advise the Minister to reject the application.

Conclusion

The Restitutions Committee advises the Minister of Education, Culture and Science to reject the application.

Adopted on 16 October 2017 by A. Hammerstein (Chair), J.T.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.

(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)

7. Bathseba after the Bath, circle of Jan Steen (NK 3752)

4. Recommendation regarding Gosschalk II (case number RC 1.156)

In a letter dated 8 May 2015 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application of 19 March 2015 from AA for the restitution of the following seven paintings, which are part of the Netherlands Art Property Collection (hereinafter referred to as the NK collection).

NK 1477 – A. van Beijeren, Ships near a River Mouth in Stormy WeatherNK 2825 – M. van Cleve I, Landscape with Peasants Milking CowsNK 2070 – J. de Momper II, Rocky Landscape with Figures NK 2532 – M. van Wttenbroeck, Forest Pool with Hermaphroditus and SalmacisNK 2841 – P.F. Mola, Reading Monk in a Rocky LandscapeNK 2935 – G. Schalcken, A Young Draughtsman Sitting at a TableNK 3052 – T. Verhaecht, Landscape with Moses and the Burning Bush

According to the Applicant the seven paintings were formerly owned by his great uncle J.H. Gosschalk (1875-1952), who lost possession of them during the Second World War involuntarily and as the result of the Nazi regime.

Assessment framework

Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, there is a Committee that is tasked with advising the Minister at the Minister's request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:a. part of the NK collection orb. among the other holdings of the Dutch State.Pursuant to paragraph 4, the Committee advises about applications as referred to in paragraph 1, under a, submitted to the Minister before 30 June 2015 with due regard for government policy in this respect.

The procedure

The Committee conducted an investigation into the facts in response to the Minister's request for advice. The results of the investigation are recorded in a draft investigation report dated 10 October 2016. This report was sent to the Applicant with a letter dated 6 March 2017. The Applicant responded in an e-mail of 27 March 2017. The draft report, together with a letter dated 6 March 2017, was also sent to the Minister for additional information. The Minister responded to this in an e-mail of 14 March 2017 informing the Committee that she did not wish to bring any additional information to the Committee's attention.The Committee then had further research conducted. The Committee sent an amended draft investigation report to the Applicant with a letter of 7 September 2017. The Applicant responded to it in a letter dated 3 October 2017. The Committee subsequently adopted the investigation report and the recommendation on 16 October 2017.

Considerations

1. The relevant facts have been described in the investigation report of 16 October 2017. A summary is sufficient in the following considerations.

Gosschalk 2. Joseph Henri Gosschalk (hereinafter referred to as Gosschalk) was born in Zwolle on 12 May 1875 to

the merchant Henri J. Gosschalk and Seline (Sellie) Polak. He had four younger sisters: Elise Josephine (1876-1961), Margaretha Christina (1877-1953), Betsie Martha (1878-1932) and Martha (1880-1960). The family was of Jewish descent. Gosschalk was registered as living at Obrechtstraat 227 in The Hague from 1913. From 7 August 1945 he was registered as living at Wassenaarse Slag 1B in Wassenaar. Gosschalk did not marry and had no children. He had two foster daughters: Jeanne Marcelle Courboulay and Gerardina Clasina Hijst.

3. Gosschalk worked in the art world in various capacities. For example he was an artist, and from around

1912 he worked as a professional painter and draughtsman. His work was regularly on view in solo and group exhibitions in the Netherlands. A number of Dutch museums have work by Gosschalk in their collections. Gosschalk was also well known for his great efforts on behalf of artists' organizations. He was one of the founders and leading individuals in the artists' organization De Onafhankelijken.

Gosschalk was an ardent collector of old and modern art. There is no catalogue or other comprehensive overview of Gosschalk's collection, but it can be deduced from scattered sources that he must have owned

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many dozens of paintings, drawings and objets d'art. In post-war correspondence with the Netherlands Art Property Foundation (SNK) Gosschalk referred to himself as ‘speciaal De Momper-collectioneur’ [‘a special De Momper collector’] and he was well known for lending works from his collection.

He also donated a number of works to museums, among them the Gemeentemuseum Den Haag. Gosschalk was not just a collector. He also dealt in art. A 1953 newspaper article stated the following

about Gosschalk's development in this field. ‘Hij was als kunstenaar autodidact, zoals hij zich alles in dit leven zelf scheen te leren: het vak van kunsthandelaar, van bankier, van werker voor betere sociale en organisatorische omstandigheden voor de kunstenaar’. [‘He taught himself how to be an artist, as he appeared to have taught himself everything in this life; how to be an art dealer, a banker, and a worker for better social and organizational conditions for artists.…’] On 24 February 1933 Gosschalk registered the establishment of the ‘Bureau voor Grafische Kunst’ ['Graphic Art Bureau'] with effect from 1 March 1933 at Chamber of Commerce and Industry in The Hague. The business was located at Obrechtstraat 227 in The Hague, which was also Gosschalk's home address, and it concentrated on ‘Bemiddeling bij opdrachten, uitgave, koop en verkoop van werken van beeldende, speciaal grafische, kunst, en hetzelfde voor eigen rekening. / (Commissiehandel en handel voor zijn rekening)’ [‘Mediation with regard to commissions for, publications about, purchase and sale of works of fine art, especially graphic art, also for the proprietor's own account. / (Commission trading and trading on his own behalf)’]. Gosschalk was the sole owner of the business. On 29 November 1940 he notified the Chamber of Commerce and Industry that the business had been wound up with effect from March 1940.

The German invasion

4. Little is known about Gosschalk during the early years of the occupation. Later on Gosschalk and his sister Elise would be part of the group that was interned from the end of 1942 in Barneveld, which was referred to as the Barneveld group. This group comprised people with an important position in society and influential contacts who were exempted from transportation to camps. Between December 1942 and February 1943 a number of people who Gosschalk knew made statements stressing the importance of his work as conservator and restorer for the purposes of obtaining permission for him to remain in the Netherlands. Among them was Hendrik Schuuring (1883-1955), a scene artist and paintings restorer, who lived at Sweelinckstraat 61 in The Hague and made such a statement in December 1942. Gosschalk and his sister arrived in Barneveld in February 1943. Shortly afterwards, on 21 April 1943, the Barneveld group was taken to Westerbork transit camp. They had their own temporary buildings there and in principle they were exempted from deportation to the death camps. Gosschalk made many drawings of the camp and its immediate vicinity. One of his fellow internees, the artist J. G. Wertheim, wrote the following about this in 1952.

En zo zie ik hem weer voor mij in de kleine werkplaats in de bouwmaterialenbarak in Westerbork, die wij ruim een half jaar deelden bij ons werk en waar de vriendschap mocht groeien. Ik zie hem weerkeren van zijn omzwervingen door het kamp en de directe omgeving – die hij met toestemming van de in kunstenaars geïnteresseerde hoogste macht mocht uitbeelden – verkleumd en moe, maar bezeten en bevredigd door de arbeid. / Wat hij in staat geweest is uit de nuchterheid en troosteloosheid van deze gruwelijke dorre

8. Rocky Landscape with Figures by J. de Momper II (NK 2070)

omgeving te maken, behoort tot het schoonste van zijn oeuvre en was een hernieuwd bewijs dat voor het ware kunstenaarsoog overal en in alles de schoonheid zichtbaar is. [And I can see him before me now in the small studio in the construction materials hut in Westerbork, which we were permitted to share for over six months and where friendship could develop. I can see him returning from his wanderings through the camp and its immediate vicinity – which he was permitted to depict by the most senior people interested in artists – tired and numbed with cold, but absorbed and satisfied by his work. What he was able to make of the soberness and cheerlessness of this abhorrent barren environment belongs to the most beautiful part of his oeuvre and was renewed proof that beauty is apparent to the true artist's eye everywhere and in everything.]

In due course the Barneveld group was taken to Theresienstadt concentration camp, where most group members survived the war. On 3 May 1945 the Nazis handed over control of the camp to the Red Cross and on 8 May Red Army troops arrived. Gosschalk survived the war and would return to the Netherlands. Contacts with the SNK after the war

5. There is no known comprehensive overview of the contents of Gosschalk's collection at the start of the occupation or of the changes to this collection during the occupation. It can be deduced from the documents consulted that during the war Gosschalk bought and sold various artworks. According to post-war communications from Gosschalk to the SNK, he lost the lion's share of his art collection during the occupation. He described four ways in which this happened in a letter to the SNK dated 1 November 1945.

‘In Febr 1943 werd ik als Jood naar Barneveld en later n. de kampen Westerbork en Theresienstadt gebracht. Ik woonde toen in Den Haag Obrechtstraat 227. Vooraf had ik o.m. uit mijn collectie, 1e. een aantal oude schilderijen aan Lippmann Rosenthal’s Bank moeten inzenden, 2e. Een aantal in kisten verpakt op advies van het Dept. V. B.Z. met ander waardevol antiek meubilair naar Barneveld laten volgen, dat mij te Barneveld, of later te Westerbork door de Duitsers ontroofd is, 3e. door tijdgebrek een aantal in mijn woning Obrechtstraat 227 achtergelaten, waar het na eenige maanden weggehaald is. / 4e. werd ik te Parijs voor een waardevol schilderij: “Kruisiging” op paneel uit de school van D. Bouts opgelicht, welk paneel, naar ik vernam, door uw relaties in Duitsland opgedoken werd.’[‘Being Jewish I was taken to Barneveld in February 1943 and later to the camps of Westerbork and Theresienstadt. At that time I was living in The Hague at Obrechtstraat 227. Beforehand I had, firstly, been obliged to send a number of old paintings from my collection to Lippmann Rosenthal’s Bank and secondly I had packed other valuable antique furniture in a number of crates, as recommended by the Dept. V. B.Z, which were to follow me to Barneveld, which was stolen from me in Barneveld, or later in Westerbork, by the Germans, thirdly, because of a lack of time, I left a number behind in my home at Obrechtstraat 227, from where there were taken away after a few months, and fourthly in Paris a valuable painting - “Crucifixion” on a panel by the school of D. Bouts - was stolen from me, which I assume was unearthed by your contacts in Germany-.’]

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9. Forest Pool with Hermaphroditus and Salmacis by M. van Wttenbroeck (NK 2532)

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6. No declaration forms completed by Gosschalk concerning the currently claimed paintings were found in the SNK archive. Similarly no indications were found that the SNK had contact with Gosschalk after the war about the works concerned and/or that he had tried to regain possession of them. However, there are various references in the SNK management file on Gosschalk and elsewhere to other artworks that he lost possession of during the occupation.

In the letter referred to above that Gosschalk wrote to the SNK on 1 November 1945 he reported that works had disappeared from his collection during the war and he asked what he had to do to get them back. He stated in his letter that it was difficult to give particulars about the missing works. ‘Daar de Duitsers mijn koffers met papieren ook achtergehouden hebben bezit ik geen aanteekeningen meer om een lijst te kunnen geven met nauwkeurige omschrijving. Herkennen kan ik de stukken wel’. [‘The Germans kept hold of my cases containing papers so I no longer have any notes for making a list with accurate descriptions. I am able to recognize the objects, however.’] On 16 November 1945 the SNK answered that it was barely possible to find out what happened to the artworks stolen from Gosschalk without receiving further information from him. The SNK advised him to consider requesting the necessary forms for the purposes of providing information. On 5 December 1945 twenty-five SNK declaration forms were consequently sent to Gosschalk. Gosschalk returned three forms, but they did not concern the currently claimed works.

7. In a letter to the SNK dated 5 July 1946 Gosschalk once again stated that it was difficult for him to report detailed information.

‘Zooals ik u al vroeger mededeelde ben ik het grootste deel van mijn kunstbezit kwijt geworden in de bezettingstijd en heb ik de moeilijkheid dat ook alle gegevens verdwenen zijn en mijn geheugen mij deerlijk in den steek laat. Waar u in Uw formulieren allerlei gegevens vraagt was het mij niet mogelijk die in te vullen. Hoogstens kan ik van enkele stukken die mij invallen een vage beschrijving geven. […]

Mijn vertrek uit Den Haag liet mij al te weinig tijd om aanteekeningen te maken, zelfs niet om te onthouden of schilderijen enz. naar “Bewaarders”, naar Barneveld (waar ze ook verdwenen), naar Lippmann gingen of in mijn huis achterbleven en daar later weggehaald werden.’

[‘As I notified you previously, I lost the lion's share of my art holdings during the occupation and I have difficulties because all my information has disappeared and my memory lets me down badly. It was not possible for me to answer questions in your forms requesting all sorts of data. The most I can do is give vague descriptions of a few objects that come to mind.…

My departure from The Hague gave me too little time to make notes, and not even to remember whether paintings etc. went to “Custodians”, to Barneveld (where they also disappeared), to Lippmann or whether they remained in my home, from where they were later taken away.’]

Gosschalk called on the SNK to identify and retrieve his works of art. ‘Waar de bedoeling van uw werkzaamheid zeker is kunstobjecten niet alleen naar Nederland terug te

brengen, doch zoo mogelijk ook aan den oorspronkelijken Nederl. eigenaar, ben ik zoo vrij uw medewerking nogmaals in te roepen om voor mij ook nog wat te redden, al kan ik dan niet alle details nauwkeurig opgeven. // […] //

Daar verscheiden van mijn dingen op tentoonstellingen, in musea, enz geleend werden, zullen deze misschien in natura of volgens foto door u als van mij afkomstig herkend kunnen worden. Mag ik u beleefd vragen daarover ingelicht te worden om zoo tot teruggaaf te kunnen komen.’ [‘The purpose of your activities is without doubt not just to bring artworks back to the Netherlands but also, if possible, to return them to the original Dutch owner, so therefore I am taking the liberty of once again asking for your help in recovering some objects for me, even though I cannot specify the details accurately.....

A number of my possessions were lent to exhibitions, museums etc., so perhaps you can recognize them as originating from me by inspecting them or examining photographs of them. I would therefore ask you to please make enquiries in this regard so that there can be restitution.’]

In the end one painting, by an artist from the school of Rogier van der Weijden, was restituted by the SNK to Gosschalk in 1948. In 2002 another painting (NK 3409) was restituted to Gosschalk's heirs after the Restitutions Committee had issued advice to that effect.

8. After the war Gosschalk settled in Wassenaar. He died at the age of 77 on 6 October 1952 in The Hague after a moped accident. He was buried three days later at the Dutch Reformed cemetery in Wassenaar. In 1953 the Amsterdam Stedelijk Museum honoured Gosschalk with a commemorative exhibition of his landscape drawings.

Vitale Bloch

9. Detailed information about the seven currently claimed NK works is to be found in the investigation report of 16 October 2017 and is referred to, in so far as necessary, in considerations 12 to 21.

It emerges from the investigation report that Vitale Bloch (1900-1975) played a role in the provenance of five of the seven currently claimed paintings. Bloch was an art historian, art dealer and art collector of Russian Jewish descent and during the occupation he provided support to the activities of Erhard Göpel,

an art buyer for the planned Führer Museum in Linz, who offered Bloch protection in exchange. It can be deduced from the documentation consulted that Gosschalk knew Bloch and may have sold artworks to him.

During research in the SNK archive no declaration forms completed by Bloch were found concerning the currently claimed paintings. Correspondence dating from the nineteen-fifties about three of the currently claimed paintings (NK2841, NK2935 and NK3052) was found in the SNK's management files about Bloch however. The SNK wrote in a request for information of 14 February 1950 that it had emerged from third party information that these works were sold through the ‘bemiddeling’ ['mediation'] of Bloch.

Assessment of the claim

10. The Applicant is requesting, also on behalf of BB, CC and DD, restitution of the seven NK works in his capacity as an heir of Gosschalk. The Committee has taken note of various inheritance-law-related documents on the grounds of which it has no reason to doubt the Applicant's status as a rightful claimant in the context of this restitution application.

Applicable policy

11. In the adoption of the recommendation, the Committee has taken into consideration whether there is reason to designate Gosschalk as an art dealer. This would mean that advising about the restitution application has to give due regard to the Ekkart Committee's Recommendations for the Art Trade (2003), as adopted by the Dutch government.

As emerges from consideration 3, prior to the German invasion Gosschalk was active in the art world in a number of capacities - as an artist, a conservator and restorer, a collector and a dealer, and as someone who actively championed artists' interests. So although Gosschalk also actively dealing in art, it appears that it was more of a side-line in which he only participated sporadically. On the grounds of the facts that came to light during the investigation, the Committee concludes that in any event Gosschalk cannot be considered as someone, in the words of the Ekkart Committee, who ‘verkoop van handelsvoorraad als doelstelling had' [‘had the objective of selling trading stock']. There are therefore insufficient factual grounds for designating him as an art dealer within the meaning of the Recommendations for the Art Trade. This means that the Committee will advise about the restitution application giving due regard to the Ekkart Committee's Recommendations (2001), as adopted by the Dutch government.

The Committee assesses the restitution application for each individual painting in the following considerations.

NK 2825 (M. van Cleve I, Landscape with Peasants Milking Cows)

12. The only indication that NK 2825 might have been the property of Gosschalk at some point comes from a photograph in the RKD's pictorial documentation, on the back of which the name ‘J.H. Gosschalk’ is stamped. The photograph's date is unknown. It is also known that on 6 December 1941 the painting was sold by the Dutch art dealer Jan Dik Jr to Bruno Lohse, one of Hermann Göring's leading art agents. The Committee did not find any specific indications that the painting was in Gosschalk's possession when the Germans invaded or thereafter. The Committee therefore concludes that Gosschalk's ownership rights to NK 2825 have not been made highly plausible. This means that the application for restitution of this painting is not admissible.

NK 1477 (A. van Beijeren, Ships near a River Mouth in Stormy Weather)

13. It can be deduced from its listing in the catalogue accompanying the exhibition Oude kunst uit Haagsch bezit staged in the Gemeentemuseum Den Haag from December 1936 to January 1937 that the painting NK 1477 was Gosschalk's property at that time. After 11 October 1940 the painting was in any event no longer in his possession because it was sold on that date by the St. Lucas art gallery in The Hague to the Goudstikker-Miedl art gallery. Pictorial documentation from the RKD indicates that the St. Lucas gallery held the painting before 1940. The Committee concludes that Gosschalk's ownership rights to NK 1477 at time of the German invasion have not been made highly plausible. This means that the application for restitution of this painting is not admissible.

NK 2841 (P.F. Mola, Reading Monk in a Rocky Landscape)

14. During the investigation an SNK internal declaration form dated 2 February 1946 concerning NK 2841 was found. As provenance it gives ‘Verz. Gosschalk’ ['Gosschalk collection'] but it gives Bloch as the original owner. It is not clear what the SNK based this information on. Perhaps it was based on input from Bloch. According to the form the work was sold voluntarily to Dr Hüpp, director of the Museum Kunstpalast in Düsseldorf. However, two other sources cite the art collector Thurkow from The Hague as the vendor of the work to the museum in Düsseldorf. Thurkow was an acquaintance of Bloch and most probably also Gosschalk.

The Committee concludes that the aforementioned information is not sufficient to regard Gosschalk's ownership rights to NK 2841 at time of the German invasion as being highly plausible. This means that the application for restitution of this painting is not admissible.

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NK 3052 (T. Verhaecht, Landscape with Moses and the Burning Bush)

15. The names Schuuring and Gosschalk, and also Bloch, are mentioned with regard to NK 3052 in a number of documents. For example Schuuring was involved, as an intermediary or otherwise, in the sale of the painting to Göpel in June 1943. An SNK inventory card for the painting gives ‘Coll. J.H. Gosschalk, The Hague’ as the ‘ORIGIN’ but ‘H. Schuuring, The Hague’ as ‘OWNER’. An SNK internal declaration form dated 12 February 1946 gives no names under ‘Herkomst’ ['Provenance'] but states that the painting was ‘oorspronkelijk in bezit’ ['originally in the possession'] of ‘Bloch, Den Haag’ ['Bloch, The Hague'], and that it came into the possession of ‘Goepel op 10 Juni 1943’ [‘Goepel on 10June1943']’ through ‘vrijwillige verkoop’ ['voluntary sale']. On the grounds of these documents, as described in detail in the investigation report, the Committee does not consider it highly plausible that NK 3052 belonged to Gosschalk at time of the German invasion. This means that the application for restitution of this painting is not admissible. NK 2070 (J. de Momper II, Rocky Landscape with Figures)

16. As regards NK 2070, it is known that Gosschalk put this painting up for auction in a sale at the firm of A. Mak in Dordrecht in 1933, where it remained unsold. In a letter of 6 December 1936 Gosschalk referred to a ‘berglandschap’ ['mountain landscape'] by De Momper, possibly NK 2070. The painting was sold by Bloch in November 1940 to Dr Hans Posse for the purposes of the Führer Museum in Linz. It can be deduced, however, from a document originating from the file of the Referat Sonderfragen (Special Questions Section) that Bloch did not sell the painting for himself. This same document gives the painting's provenance as ‘verz. Gosschalk’ ['Gosschalk collection']. Taking this information into consideration, the Committee concludes that it is sufficiently plausible that NK 2070 belonged to Gosschalk prior to the German invasion. Some doubt may exist with regard to the question of whether this was still the case when the German invasion took place, but on the grounds of the explanatory notes to the eighth recommendation of the Ekkart Committee (2001), the Applicant should be given the benefit of the doubt. This means that the ownership of NK 2070 has been made sufficiently plausible.

17. As regards the loss of possession of NK 2070, on the grounds of the preceding consideration it can be concluded that Gosschalk lost possession of the painting at some point during the period between 10 May and November 1940. It is not known precisely how this happened, but the most probable scenario is that Bloch sold the painting on Gosschalk's behalf. On the grounds of the third recommendation of the Ekkart Committee (2001), this has to be considered as a forced sale, unless there is express evidence to the contrary. The Committee concludes that there is no such evidence here. In the Committee's opinion it is not readily conceivable, also in the case of other scenarios, that Gosschalk lost possession of the painting voluntarily. The Committee points out that Gosschalk described himself as a collector of De Momper's work.

It follows from the above that the application for restitution of NK 2070 is admissible.

10. A Young Draughtsman Sitting at a Table by G. Schalcken (NK 2935)

NK 2532 (M. van Wttenbroeck, Forest Pool with Hermaphroditus and Salmacis)

18. It emerged from the investigation that NK 2532 was lent by Gosschalk in 1931 to the Gemeentemuseum Den Haag, and that it was still there in 1935. The painting was sold in 1943 by W.J. Mooijman, a ‘kantoorbediende bierbrouwerij’ ['clerk in a brewery'], to Göpel. It is not known precisely how and when Gosschalk's loan ended, but there are various indications on the grounds of which it can be concluded that the painting still belonged to Gosschalk when the Germans invaded. For example, the following was noted about NK2532 in the document referred to above in consideration 16 from the file of the Referat Sonderfragen. ‘Moz. v. Uijtenbroeck, Landscape with nymphs / Gosschalk collection / previously G.M.’. An SNK internal declaration form dated 11 December 1945 about this painting gives the original owner as Gosschalk, and there is a note stating ‘Loan Gemeente Museum ’s-Gravenhage’. Finally it can be pointed out that after the war the Dienst voor Schoone Kunsten der Gemeente ’s-Gravenhage (Fine Art Department of The Hague City Council) advised the SNK to contact Gosschalk about this painting because the department considered it highly likely that this work belonged to him.

On the grounds of these pieces of information, when considered together, the Committee concludes that ownership of NK 2532 has been made sufficiently plausible.

19. With respect to the loss of possession, it can be concluded that Gosschalk lost possession of the painting at some moment after 10 May 1940. It is not known precisely how this happened. In a scenario where Gosschalk sold the painting, on the grounds of the third recommendation of the Ekkart Committee (2001), this sale has to be considered as a forced sale, unless there is express evidence to the contrary. The Committee concludes that there is no such evidence here. Also in the case of other scenarios where the painting left the Gemeentemuseum Den Haag at some point and - via Mooijman – ultimately ended up with Göpel, in the Committee's opinion it is not readily conceivable that Gosschalk lost possession of the painting voluntarily.

It follows from the above that the application for restitution of NK 2532 is admissible. NK 2935 (G. Schalcken, A Young Draughtsman Sitting at a Table)

20. NK 2935 is listed in a 1924 catalogue as the property of Gosschalk. In January 1941 the painting was sold by Bloch to the Hoogendijk gallery. It can be deduced from various documents, however, that in this transaction Bloch acted as an intermediary and that the painting originated from Gosschalk's collection. In post-war correspondence Bureau Hergo (Bureau for Restoration Payments and the Restoration of Property) informed Gemeentemuseum Den Haag that there was a ‘claim’ to the painting. In a letter of 8 December 1952 the Rijksinspecteur voor Roerende Monumenten (State Inspectorate for Movable Relics) stated that this claim had lapsed. The Committee considers it perfectly possible that this was linked to the death of Gosschalk on 6 October 1952. In view of the aforementioned information, the Committee concludes that ownership of NK 2935 has been made sufficiently plausible.

21. With respect to the loss of possession, it can be concluded on the grounds of the preceding consideration that Gosschalk lost possession of the painting at some point between 10 May 1940 and January 1941. It is not known precisely how this happened, but the most probable scenario is that Bloch sold the painting on behalf of Gosschalk. On the grounds of the third recommendation of the Ekkart Committee (2001), this has to be considered as a forced sale, unless there is express evidence to the contrary. The Committee concludes that there is no such evidence here. In the Committee's opinion it is not readily conceivable, also in the case of other scenarios, that Gosschalk lost possession of the painting voluntarily.

It follows from the above that the application for restitution of NK 2935 is admissible.

22. Finally the Committee raises the question of whether a payment obligation should be specified in regard to restitution of NK 2070, NK 2532 and NK 2935 in connection with the consideration received when one or more of the paintings may have been sold. Under the present restitution policy, repayment is only addressed if and in so far as the former vendor or his heirs actually had free control of the proceeds of the sale, and that the former vendor or his heirs should be given the benefit of the doubt. The Committee takes the view that there are doubts about whether Gosschalk obtained the free control of the proceeds of any sale. There is therefore no reason to link a payment obligation to the restitution of the three aforementioned paintings.

Conclusion

The Restitutions Committee advises the Minister of Education, Culture and Science to:I Reject the application for restitution of NK 2825, NK 1477, NK 2841 and NK 3052, andII Restitute NK 2070, NK 2532 and NK 2935 to the heirs of J.H. Gosschalk.

Adopted on 16 October 2017 by A. Hammerstein (Chair), J.T.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.

(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)

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5. Recommendation regarding a pastel drawing by Philippus Endlich (case number RC 1.167)

On 11 January 2017 AA of BB and CC, also of BB (hereinafter referred to as the Applicants) requested the Minister of Education, Culture and Science (hereinafter referred to as the Minister) to restitute a pastel drawing by Philippus Endlich. The drawing is in the Rijksmuseum and is part of the Dutch National Art Collection. On 21 February 2017 the Minister asked the Restitutions Committee to advise about the restitution application.

Assessment framework

Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:a. part of the NK collection orb. among the other holdings of the Dutch State.Pursuant to paragraph 5, the Committee advises with regard to applications as referred to in paragraph 1, under b, on the basis of the yardsticks of reasonableness and fairness.Pursuant to paragraph 6, when discharging its advisory task as referred to in the first paragraph, the Committee will give great weight to the circumstances of the acquisition by the owner and the possibility that there was knowledge about the suspect provenance at the time of the acquisition of the item of cultural value concerned.

The procedure

In a letter dated 21 February 2017 the Minister asked the Committee for advice about the application of 11 January 2017 from the Applicants for restitution of the drawing.The Committee conducted an investigation into the facts in response to the Minister’s request for advice. The results of the investigation are recorded in an overview of the facts dated 4 September 2017. The Applicants and the Minister were given the opportunity to respond to this overview of the facts. The Applicants responded in a letter dated 16 September 2017. The Minister responded in an email of 2 October 2017.

Considerations

1. The Committee established the relevant facts on the grounds of the overview of the facts of 4 September 2017 and the responses to it that the Committee received. The following summary is sufficient here.

2. Applicant AA is a grandson of DD (born in 1881). Applicant CC is a granddaughter of EE (born in 1878).

According to the Applicants the claimed drawing was originally the joint property of their grandfathers and was confiscated by German occupying forces during the Second World War.

The claimed work, a drawing in pastels on paper by Philippus Endlich, depicts a gentlemen sitting in a library beside a table with a violin on it. The drawing is dated 1747 and measures 440 mm x 394 mm. The drawing was acquired by the Rijksmuseum Print Room on 24 May 1944 at a sale in the Odeon building in Amsterdam. The work’s Rijksmuseum inventory number is RP-T-1944-247.

3. The brothers EE and DD were bankers by profession and for a period were directors of the Amsterdamsche Bank N.V., which was founded in 1871 by, among other people, their father FF (1844-1924). According to the Applicants the currently claimed drawing was part of a large collection of family portraits in FF’s estate. A valuation report prepared on 14 December 1931 by the Bernhard Houthakker art gallery concerning ‘schilderijen en pastels van de familie […]’ [‘paintings and pastels of the […] family’] lists the drawing as ‘Portret van een heer in zijn bibliotheek. Pastel’ [‘Portrait of a gentleman in his library. Pastel’]. According to the Applicants, until May 1940 the drawing was is the residence of DD and his wife GG at Breitnerstraat in Amsterdam. This dwelling was confiscated by occupying forces immediately after the German invasion. At that moment DD was in New York, where he remained for the duration of the occupation. Initially his wife moved in with her married daughters. Later on she went into hiding, was betrayed, was arrested and was transported to Theresienstadt concentration camp via Westerbork transit camp. After the liberation she returned to Amsterdam.

4. According to the Applicants, before GG left her home in Breitnerstraat she tried to safeguard valuables, including the collection of paintings, by putting the goods in a safe at the Amsterdamsche Bank N.V., and a smaller proportion with the haulier De Gruyter. It is stated on a declaration form of the Netherlands Art Property Foundation (SNK), which was signed by EE on 10 October 1945, that the family’s collection contained objets d’art, paintings (oil on canvas) and pastels, dated between 1680 and 1920, and that these works came into the possession of the German authorities as a result of confiscation. According to the declaration form, the artworks stored at the Amsterdamsche Bank were in the name of DD.

5. On the grounds of regulation 58/1942, ‘betreffende de behandeling van joodsche vermogenswaarden’ [‘concerning the treatment of Jewish assets’], promulgated in May 1942 by the Reichs Commissioner for occupied Dutch territory, also called the second Liro regulation, Jews were compelled to surrender their valuable goods, including precious metals, antiques and works of art, to the robber bank Lippmann, Rosenthal & Co, Sarphatistraat (hereinafter referred to as Liro). Businesses that that might be holding Jewish possessions, for example furniture storage and removal companies, auction houses and banks, received instructions from occupying forces to supply an overview of such possessions. Goods owned by Jews had to be surrendered by the organizations or were seized at the organizations’ premises by the authorities.

6. The Applicants state that the goods stored at the Amsterdamsche Bank and at De Gruyter were seized by the German authorities during the occupation. This is stated on an SNK declaration form signed by EE on 17 November 1945 concerning the currently claimed drawing. After this drawing had been seized at the Amsterdamsche Bank in Van Baerlestraat, it ended up at some point at the looting organization Liro. This emerges from a ‘Liro list’, a list of artworks surrendered to Liro and handed over to the SNK after the war, which was found in the SNK archive. This was probably done by the post-war administrator on the grounds of the information available at that time from the Liro records. This list contains twelve artworks that were surrendered from the possessions of ‘GG / Stadionkade / Amsterdam’. The maker of one of these twelve artworks is named as ‘Ph. Endlich’ for the depiction of ‘Man m/viool op tafel’ [‘Man with violin on a table’] with the date 7 June 1943. It is also stated that the drawing was sold to ‘[M.v.Waay]’, that the appraised value was NLG 25, and that the selling price was NLG 31.25.

A year later, on 24 May 1944, the drawing went under the hammer as lot number 873 at an art sale organized by Chr.J. Bolle & W. Dirkse in the Odeon building in Amsterdam. It is not known who put the drawing up for auction. It is known, however, that the Rijksmuseum Print Room acquired it for NLG 207.10. The drawing was consequently listed in the Rijksmuseum’s ‘Inventarisboek 1944’ [‘1944 Inventory Book’].

7. DD was still in the United States after the war. EE contacted the SNK about the missing family property.

On 10 October 1945 he sent a completed declaration form to the SNK and referred to a list that he had submitted to Dr A.B. de Vries, director of the SNK. This list, which was found in the SNK archive, refers to 28 portraits. Under the heading ‘Portretten ontvreemd door Lippmann Rosenthal & Co Sarphatistraat / eerst in safe Amsterdamsche Bank NV Bijkantoor Van Baerlestraat Amsterdam / behoord hebbende aan DD / Breitnerstraat Amsterdam Zuid’ [‘Portraits stolen by Lippmann Rosenthal & Co Sarphatistraat / initially in safe at Amsterdamsche Bank NV Van Baerlestraat branch Amsterdam / having belonged to DD / Breitnerstraat Amsterdam South’], the currently claimed drawing is number 19 on the list.

In response to his letter, the SNK requested EE to complete a declaration form for each work. A form signed on 17 November 1945 related to a drawing by the artist P. Endlich of a ‘heer in bibliotheek met viool’ [‘gentleman in library with violin’]. According to the form the drawing was approximately 40 cm high and 30 cm wide and was dated ‘1747’. The provenance of the missing artwork was stated as ‘familiebezit’ [‘family property’]. As regards ownership, it was stated that the artwork was originally the ‘gemeenschappelijk’ [‘joint’] property of ‘EE, Apollolaan, A’dam [Amsterdam]’ and ‘DD, thans te New York [currently in New York]’. According to the form the drawing came into the possession of the ‘Duitsche autoriteiten’ [‘German authorities’] as a result of confiscation. As far as the circumstances of the loss of possession are concerned, EE wrote ‘gerequireerd uit safe Amsterdamsche Bank A’dam’ [‘requisitioned from safe Amsterdamsche Bank Amsterdam’] on the form. This declaration did not result in restitution of the currently claimed drawing however.

8. Afterwards EE continued to correspond with the SNK, the Office for Reparation Payments and Restoration of Property (Bureau Hergo), which took over the SNK’s tasks, and the Netherlands Property Administration Institute in his attempts to get back the missing artworks. He also approached the Amsterdam auctioneers Mak van Waay in connection with works from the former […] family property purchased by this auction house from Liro. The Applicants sent the Committee a 1949 agreement (‘Acte van dading’ [‘Instrument of Compromise’]) between EE, DD and GG (designated as ‘owner’) on the one hand and N.V. Maatschappij voor kunst- en antiekveilingen (Mak van Waay), designated as ‘purchaser’. The agreement concerned five artworks that the purchaser had bought from Liro in 1943, including the currently claimed drawing. These five works had been valued in 1931 by the Bernard Houthakker gallery (see also consideration 3) at a total of NLG 1,525, and the currently claimed drawing had been valued at NLG 250. The agreement stipulated that the purchaser would pay the owner the aforementioned sum of NLG 1,525 and that the owner would transfer to the purchaser the full ownership of all rights and claims that he might have against the liquidators of Liro or third parties in connection with the sale to Liro in 1943. The agreement furthermore stipulated, however, that as a result of this agreement the owner would not lose the ownership rights or the right of recovery of the five works in so far as the owner still might have had these rights at that moment. If the owner were to regain possession of one or more of the works, he was obliged to restitute to the purchaser the amount paid by the purchaser in regard to those works.

9. If Liro sold valuable objects from Jewish owners, initially the proceeds were booked by the organization in a named account. From 1 January 1943 all amounts were booked in a summary account known as the Sammelkonto. The post-war administrators of Liro were faced with the task of unravelling this summary account and tracing the sums back to individuals. It emerged from the investigation that after the war GG disputed the magnitude of the compensation awarded in a lawsuit brought before the Judicial Division of

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the Council for the Restoration of Rights. However, it is no longer possible to ascertain exactly how much was paid and to what extent this concerns the currently claimed drawing.

10. According to the Applicants, between 1945 and today efforts to retrieve the objects have only been made through declarations to the SNK. In December 2016 the Origins Unknown Agency (Bureau Herkomst Gezocht) published information from the ‘Vermiste Werken’ [‘Missing Works’] project on its website. This project’s objective is to digitize and give access to information about missing works of art and, where possible, to identify them. Some 15,000 declaration forms and the associated image material from the files of the SNK and the RKD - Netherlands Institute for Art History form the basis for this project. One of the published declaration forms was the form signed by EE on 17 November 1945, as referred to in consideration 6. After the publication of this form the Applicants identified the drawing reported on it as the currently claimed drawing and they requested the Minister to restitute it.

Assessment of the claim

11. Applicant AA claims to be an heir of DD. Applicant CC claims to be an heir of EE. The Committee has taken note of the inheritance-law-related documents submitted by the Applicants and on the grounds of them the Committee sees no reason to doubt the Applicants’ status as heirs of EE or DD.

12. The agreement with Mak van Waay referred to in consideration 8 gives rise to the question of whether

EE and DD through this agreement expressly waived their rights to the currently claimed drawing, which could stand in the way of the admissibility of the present restitution application. The Committee answers this question in the negative because the owner’s property rights and the right of recovery with regard to, among other things, the currently claimed drawing were not lost as a result of the agreement.

13. On the grounds of the facts referred to in considerations 3 to 7 is it sufficiently plausible that the currently claimed drawing was surrendered to Liro in 1943 as a result of the second Liro regulation and that at that moment it was the joint property of EE and DD. In this way they lost possession of the drawing involuntarily as a result of the Nazi regime. The Minister has stated that the drawing is of moderate importance to the Rijksmuseum, the Dutch National Art Collection and the cultural heritage of the Netherlands. The Committee finds that this limited importance is outweighed by the interest of the Applicants with regard to restitution. The Committee will therefore advise the Minister to restitute the drawing to the heirs of EE and DD.

14. The Committee sees no reason to link handing over the drawing to something in return from the Applicants. In this regard it notes that the State acquired the drawing in 1944 for a modest sum. The content of the agreement concluded in 1949 referred to in consideration 8 similarly gives no reason for such a link to something in return.

Conclusion

The Restitutions Committee advises the Minister of Education, Culture and Science to restitute the drawing by Philippus Endlich (Rijksmuseum inventory number RP-T-1944-247) to the heirs of EE and DD.

Adopted at the meeting of 13 November 2017 by A. Hammerstein (Chair), J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.

(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)

6. Recommendation regarding Katz (case number RC 4.168)

In a letter of 16 March 2017 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (hereinafter referred to as the Committee) for advice about the question of whether the Minister should reconsider her decision of 24 January 2013 in the case of Katz (RC 1.90-B). The decision concerned the rejection by the Minister of an application by heirs of Nathan and Benjamin Katz (hereinafter referred to as the Applicants) for restitution of 188 works from the Netherlands Art Property Collection (hereinafter referred to as the NK collection) on the grounds of the Committee’s recommendation to that effect of 17 December 2012 regarding case RC 1.90-B (hereinafter referred to the earlier recommendation). The present request for advice arises from the Applicants’ request to the Minister of 13 January 2017.

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The Procedure

In a letter of 13 January 2017, read in conjunction with a letter from the Applicants to the Committee of 15 December 2016 and to the Minister of 23 December 2016, the Applicants asked the Minister to reconsider her decision of 24 January 2013. In response to this request, in a letter dated 16 March 2017 the Minister asked the Committee to advise her about this request. In a letter dated 17 May 2017 the Committee explained the steps in the procedure to the Applicants. The Applicants sent additional documents upon request with a letter of 9 November 2017. The Committee saw no need to conduct further research or to prepare an investigation report.

Considerations

Assessment criteria

1. The Minister asked the Committee for advice about the question of whether she should reconsider her decision of 24 January 2013. The Minister made this decision on the grounds of the Committee’s earlier recommendation. The Committee will formulate its recommendation with regard to the Applicants’ request of 13 January 2017 in the following considerations. The Committee will answer the question of whether there are grounds for reconsidering the decision of 24 January 2013 on the basis of the following two criteria:

(a) new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion, and/or

(b) errors during the earlier procedure that resulted in harm to the applicants’ fundamental interests. The earlier recommendation

2. The earlier recommendation was issued on the grounds of the application for restitution of 189 NK works. The application was submitted by rightful claimants to the estates of the brothers Nathan and Benjamin Katz, who were the only partners in the company Firma D. Katz (Katz Gallery) in Dieren, which they founded in 1930. The earlier recommendation related to 189 NK works that were sold by the Katz Gallery to various buyers. Four lists (I to IV) concerning the different buyers of the NK works involved were appended to the earlier recommendation.

-List I is of 101 works that were sold to Alois Miedl/kunsthandel v/h J. Goudstikker N.V. -List II is of 65 works sold to the Sonderauftrag Linz (Special Mission Linz). -List III is of 14 works sold to Hermann Göring. -List IV is of the other 9 works. In the earlier recommendation an assessment was made per list of the ownership and the voluntariness of

the sale of the works referred to on the list. The Committee advised the Minister to restitute one NK work (NK 1668) from list II and to reject the application for the others. The Minister decided accordingly.

Procedural errors (criterion b)

3. In their letter of 15 December 2016 the Applicants expressed their complaints about the procedure followed previously. First and foremost the Applicants contend that in this case the Committee incorrectly applied its own standards regarding the burden of proof for involuntariness and ownership. According to the Applicants, the Committee wrongly did not apply the principle that sales by the Katz Gallery were involuntary unless there is express evidence to the contrary. According to the Applicants, in addition the Committee allowed itself to be affected by post-war events when drawing conclusions. The Applicants also assert that the Committee demanded too high a level of proof with respect to the ownership issue.

The Committee finds as follows with regard to these complaints. On the grounds of the Decree Establishing the Restitutions Committee, the Committee advised about the earlier restitution application giving due regard to ‘government policy in this respect’. Since this case was about an art gallery, the most important part of this government policy was the Ekkart Committee’s Recommendations for the Art Trade (2003), as adopted by the Dutch government. According to these recommendations, ownership by the original owner must be made highly plausible and it needs to be demonstrated that a sale was involuntary. Unlike the case of a private owner, the reversal of the burden of proof, as formulated in the third recommendation of the Ekkart Committee (2001), does not apply in cases where the original owner was an art gallery. The Committee’s earlier recommendation was in line with the Recommendations for the Art Trade. To this extent the Applicants’ complaints are therefore wide of the mark.

As regards the Applicants’ complaint that the Committee supposedly allowed itself to be affected by post-war events when drawing conclusions, the Committee finds that it attributed significance to, among other things, statements that Benjamin Katz made after the war. The Applicants do not concur with the Committee’s evaluation of these statements, but this does not mean that involving these statements in its earlier recommendation is a procedural error. This complaint is therefore also wide of the mark.

4. In their letter of 15 December 2016, the Applicants also asserted that in its assessment of the restitution application the Committee improperly addressed the loss of possession first. According to the Applicants the Committee should first of all have assessed whether ownership of the claimed works by the Katz Gallery was highly plausible. According to the Applicants, if the Committee had conducted the research necessary to address this question, the Committee would supposedly have obtained a better and more

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complete understanding of the circumstances associated with the loss of possession. With respect to this complaint the Committee finds as follows. On the grounds of the assessment

framework applicable to this claim, ownership must be highly plausible and the involuntary nature of the loss of possession must be demonstrated. If there is failure to meet one or both of these requirements, a restitution application is not admissible. Contrary to the Applicants’ assertion, there was and is no obligation on the Committee to assess ownership first and the loss of possession thereafter. This complaint is therefore wide of the mark.

5. Finally, the Committee has taken note of the Applicants’ complaint to the effect that, when submitting the

current application, they were restricted in their options to conduct research themselves because according to the Minister they would have to bear the costs of photographing and investigating approximately fifteen of the currently claimed works that are outside the Netherlands. However, the Committee sees no reason to address this issue in depth here in view of what is considered further in this recommendation.

New facts (criterion a)

6. The Applicants submitted the following three reports together with their request for reconsideration. -Report of AA, Duress on Dutch Jews before and during the occupation (hereinafter referred to as the AA

Report) - Katz heirs’ response to the Committee Recommendation in RC 1.90B, dated 17 December 2012, and Report

on RC 1.132, by BB (hereinafter referred to as the Response) - Provenance Report by BB, corrected 13 January 2017 (hereinafter referred to as the Provenance)

The AA Report and the Response address the asserted involuntary sales by the Katz Gallery. The Provenance discusses the contended ownership of the claimed works by the Katz Gallery. New facts are invoked in these three reports; they are recorded in the documents submitted as appendices to the reports. In the following considerations the Committee will address the extent to which these reports contain new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion (criterion a).

The AA Report

7. On the basis of a number of examples, this report addresses the treatment of Dutch Jews by the Nazis in Germany prior to 10 May 1940. The documents appended to the report concern complaints by the Dutch Embassy in Berlin to the German Ministry of Foreign Affairs about the treatment of Dutch Jews in Germany. The documents concern 1935, 1936 and 1938. Some documents are complaints about the treatment of named Dutch Jewish art dealers in Germany. Other documents relate to complaints about the treatment of Dutch Jews in Germany in general, including as a result of Kristallnacht (Night of Broken Glass). In the case of some of the recorded complaints, the response of the German authorities to them is also known.

The AA Report moreover considers the treatment of Jews in the Netherlands after the German invasion on 10 May 1940. This analysis is based on the reports drawn up by the German authorities in the Netherlands during the first months of the occupation. They are primarily reports by the diplomat Gesandtschaftsrat W.F. Wickel in The Hague and were destined for Berlin.

According to AA the documents show that the Nazis’ intentions were well known in the Netherlands before the German invasion and that the Katz brothers must have been aware of them. According to AA it emerges from the documents dating from the first months of the occupation that the Nazis immediately started to make plans to remove Jews from Dutch society. In AA’s opinion the Katz brothers, in view of the measures that the Nazis would take against them, had no other recourse than to sell their trading stock as soon as possible.

8. The Committee confirms that when the earlier recommendation was adopted it did not know of the documents upon which the AA Report was based. If the Committee had known about them at the time, however, it would not have resulted in a different conclusion about the nature of the loss of possession. The basic premise underlying the art trade policy was and is after all ‘dat de kunsthandel verkoop van handelsvoorraad als doelstelling heeft, zodat een belangrijk deel van de verrichte transacties, ook bij joodse kunsthandelaars, in principe gewone verkoop was’ [‘that the art trade’s objective is to sell trading stock, so a significant fraction of transactions, including by Jewish art dealers, in principle constituted ordinary sales’]. This means that the involuntary nature of a specific sale or group of sales has and had to be made plausible by the Applicants. The documents submitted with the AA Report are insufficient because they do not concern the Katz Gallery or sales by the Katz Gallery.

The Response

9. As the full title indicates, the Response contains arguments on the grounds of which the Applicants believe that the earlier recommendation was incorrect. These arguments are based on the one hand on research results that are already known and on the other hand on contended new facts. In view of the restricted assessment framework (criterion a) applicable to this request for reconsideration, the arguments put forward that are not based on any new facts cannot result in recommendation to the Minister to reconsider her earlier decision. In so far as there are new facts underlying the arguments put forward

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in the Response, first of all the Committee has to evaluate whether there really are new facts and, if so, whether these facts, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion. The Committee will conduct this evaluation on the basis of the documents enclosed with the Response, in which there are 85 footnotes referring to them.

10. Under ‘B - Response to RC’s Historic Overview’ BB addresses the activities of the Katz Gallery prior to the

German invasion. The documents submitted in this regard (footnotes 1 to 5) contain information about the activities and conduct of the Katz Gallery before the war. Leaving aside the matter of whether these documents were known when the earlier recommendation was adopted, in the Committee’s opinion they cannot result in a different conclusion about the nature of the loss of possession because of the period they cover.

11. Under 2 ‘Firma Katz’s business after 1939 and the Katzes’ awareness of the spread of anti-Jewish measures’ BB discusses the period between the outbreak of the Second World War and the German invasion in May 1940 on the basis of documents referred to in footnotes 6 to 12. The range of correspondence referred to in footnote 6, from which according to BB it emerges how difficult it is to establish precisely the titles to ownership of the paintings referred to in this correspondence, bears no relation to the currently claimed works and therefore does not lead to a different conclusion. The documents referred to in footnotes 10 and 11 describe anti-Jewish measures in Germany before the war and the reaction to them in the Netherlands. This concerns general information that does not relate specifically to Katz and therefore does not lead to a different conclusion.

Footnote 7 contains a transcript of an autobiographical tape by Max Stern, a Jewish art dealer from Düsseldorf, who is known to have made attempts in 1935 to have his business taken over by a third party (see consideration 8 of recommendation RC 1.96). It emerges from the transcript that Nathan Katz attempted to take over Stern’s gallery but the Nazis did not permit him to because of his Jewish descent. Footnote 8 concerns a letter to Nathan Katz dated 10 July 1939 in which he is asked to provide financial support to Max Friedländer, who because of his Jewish descent was not able to bring any possessions with him from Germany. Footnote 9 contains various documents from the archive of Gustav Cramer. Footnote 12 contains correspondence dating from January 1940 between Dr Hans Schneider, Director of the RKD (Netherlands Institute for Art History) and E. Pelinck, Director of Museum de Lakenhal, about the loaned collection of the German Jewish collector Dr Alphons Jaffé, who had fled to London. Only some of these loaned works could eventually be transferred to London, and the rest were confiscated by the Dienststelle Mühlmann (Mühlmann Agency).

According to BB it emerges from the documents referred to in footnotes 7, 8, 9 and 12 that the Katz brothers had to have been aware of the increasing severity of the anti-Jewish measures and their implications. The Committee can concur with this but points out that at the time the earlier recommendation was adopted it was already known that the Katz brothers had been worried even before the German invasion about the possible implications of anti-Jewish measures. See in this regard the statements by David Katz, the son of Nathan Katz, cited in part 1, section 1.7, of the Investigation Report of 17 December 2012 prepared in case RC 1.90-B (hereinafter referred to as the Investigation Report). The documents referred to in footnotes 7, 8, 9 and 12 therefore do not lead to a different conclusion.

12. Under 3 ‘The German invasion has immediate consequences for Dutch Jews’ BB analyzes the implications of the German invasion for Dutch Jews. She underpins this on the basis of documents referred to in footnotes 13 to 28. With the exception of the references in footnote 25, these documents are newspaper articles and official German and American reports about the situation in the Netherlands during the first months of the German occupation. Given that their import is general, they do not lead to a different conclusion.

In footnote 25 there is a reference to a letter, probably from Nathan Katz, dating from March 1941. This letter was already known when the earlier recommendation was adopted.

13. BB addresses Alois Miedl under 4a ‘Alois Miedl: Buyer for Hitler and Goering’. She does this on the basis of footnotes 29 to 39. The documents referred to in them are reports from the British Ministry of Economic Warfare about Miedl (footnote 29), a 1937 memo by Miedl concerning a tax matter (footnote 30), a 1947 statement by Kajetan Mühlmann about Miedl (footnote 31), an exchange of letters in July 1940 between Schneider and the art dealer Karl Haberstock about the takeover of Goudstikker by ‘ein deutsches Konsortium’ (footnote 32), documents about a lawsuit in Switzerland at the end of the nineteen-forties that involved Miedl (footnotes 36, 37 and 38) and a 1951 report written as a result of a request by Miedl for termination of his enemy status (footnote 39). None of these documents was known when the earlier recommendation was adopted. They are not relevant for assessing the nature of the transactions between Katz and Miedl, however, because they do not specifically relate to them. It is for this reason that these documents do not lead to a different conclusion.

In footnotes 34 and 35 BB refers to a report by the public prosecutor W.H. Overbeek dated 18 January 1951. This report was known when the earlier recommendation was adopted and is referred to in footnote 22 on page 20 of part 2 of the Investigation Report.

14. Under 4b ‘Walter Andreas Hofer: Buyer for Hermann Goering’ BB refers in footnote 40 to documents that were known when the earlier recommendation was adopted (Art Looting Investigation Unit Consolidated Interrogation Reports (CIR), Report No. 2, The Goering Collection and the Adriaan Venema book, Kunsthandel in Nederland 1940-1945).

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15. Under 4c ‘Hans Posse: Buyer for Hitler’s Sonderauftrag Linz’ BB discusses Hans Posse. In this context she refers to documents mentioned in footnotes 41 to 48. The letter of 24 July 1940 mentioned in footnote 41 is referred to on page 15 of part 2 of the Investigation Report. Footnotes 42 and 46 refer to the 2004 book by Birgit Schwarz ‘Hitler’s Museum. Die Fotoalben Gemäldegalerie Linz: Dokumente zum´Führermuseum’. This book was known when the earlier recommendation was adopted and was taken into account in the investigation. Footnotes 43 and 44 have references to the draft investigation report concerning RC 1.90-B (footnote 43) and the RC’s recommendation regarding RC 1.102 of 6 September 2010 (footnote 44). They therefore do not relate to new facts.

Footnote 45 mentions a letter 21 September 1942 from Posse to Wickel about the art dealer De Boer. According to BB it emerges from this letter that Posse used art dealers as tools. However, that was already known as is evident from the quotation by Posse about Nathan Katz on page 43 of part 2 of the Investigation Report. The letter referred to in footnote 45 therefore does not lead to a different conclusion.

Footnotes 47 and 48 refer to documents that describe the organization of the Sonderauftrag Linz (Special Mission Linz). These documents were not known when the earlier recommendation was adopted but on the other hand they do not contain any new relevant perspectives. They therefore do not lead to a different conclusion.

16. Under 5 ‘Purchases by Miedl, Goering and Hofer’ BB addresses the transactions of the Katz Gallery with Miedl, Hermann Göring and Walter Hofer. Footnote 50 refers to three documents that BB uses to support her argument that market prices were not paid in sales to Miedl. Footnote 51 refers to various documents from which it emerges, according to BB, that the transactions with Miedl were not normal transactions for the Katz Gallery.

When the earlier recommendation was adopted the Committee was not familiar with these documents, but it did know the information they contain. As regards the purchase and sale prices, reference can be made to the Goudstikker/Miedl’s purchases and sales ledgers cited in the Investigation Report. As regards BB’s assertion that the transactions with Miedl were not normal ones for the Katz Gallery, reference can be made to the statement by Benjamin Katz cited under c) in the earlier recommendation that in normal circumstances he and his brother would never have considered selling such a large batch of paintings to Miedl in one transaction. The documents referred to in footnotes 50 and 51 therefore do not contain any relevant new facts.

11. Michiel Pompe van Slingelandt at the age of six (NK 1695)

17. Under 6 ‘Aryanization of Firma Katz’ BB refers in footnotes 52 and 54 to reports from the American consul in Amsterdam in the autumn of 1940. These reports contain a general description of the anti-Jewish and other measures being taken by the German occupying forces and therefore do not lead to a different conclusion.

The letters mentioned in footnote 53 are referred to on pages 21 and 61 of part 2 of the Investigation Report.

18. Under 7 ‘The acquisition of the Lanz Collection for Linz’ BB refers in footnote 55 to a letter that was probably from Nathan Katz, dating from March 1941. This letter is referred to on page 20 of part 2 of the Investigation Report. BB also refers to an exchange of letters between Nathan Katz and W.R. Valentiner, Director of the Detroit Institute of Art, in the summer of 1941. The Committee will address this in the following consideration.

19. Under 8 ‘Katz family’s plans to flee the Netherlands’ BB discusses Nathan Katz’s plans to flee the Netherlands. She does this on the basis of documents referred to in footnotes 56 to 70. Some of the documents referred to in these footnotes contain general information about the situation in the occupied Netherlands as described in reports from the American consul (footnotes 57, 58 and 59). Although these particular documents were not known when the earlier recommendation was adopted, the descriptions they contain are not relevant to assessing the nature of the loss of possession. The descriptions are after all not specifically related to the transactions that the Applicants had to demonstrate were involuntary. They therefore do not lead to a different conclusion. This also applies to the references in footnotes 61 and 62 to the book by Robin te Slaa ’1941. Het masker valt’.

A number of other documents that are referred to in footnotes were known when the earlier recommendation was adopted and were taken into account in the investigation. This concerns footnotes 65, 66, 67, 68 and 70. Footnote 69 serves to underpin the fact that Nathan and Benjamin Katz’s mother and their brother Simon remained behind in the Netherlands and were later interned in Westerbork camp. This is described in part 2 of the Investigation Report and the footnote therefore does not contain any new facts.

20. As regards the documents referred to in footnotes 56, 60, 63 and 64, the Committee finds as follows. Nathan Katz’s departure from the country for Switzerland in 1942 and the run-up to it are described in section 6 of part 2 of the Investigation Report and in the earlier recommendation in the historical overview under h) ‘Uitreisplannen’ [‘Plans to leave the country’]. This departure from the country played a role in the Committee’s considerations and its recommendation to restitute NK 1668 (considerations 22 and 23 of the earlier recommendation).

In footnote 56 there is a reference to a letter from Schneider to Hanns Schaeffer dated 9 January 1941. This handwritten letter was not known when the earlier recommendation was adopted. Schneider wrote that he had left with his family for Switzerland just before Christmas 1940. He also wrote,

‘Vor den Abreise von dort haben mir die beiden Brüder Katz gebeten Ihnen Grüssen zu bestellen und Ihnen zu sagen Sie [seihen?] dazu das ganze dortige Geschäft zu liquidieren. Sie tun es schon jetzt bei Zeiten da aus zuverlässigen Quelle erlautete, dass alle nicht arischen Geschäfte auf 1. Apr. 1941 arisiert oder liquidiert sein müssten. ‘Gouverner cést prévoir’. Nathan ist damit beschäftigt seine Ausreise aus Holland zu ermöglichen, für sich + seine familie. Er bittet bei ev. Anfrage dort entsprechend mitwirken zu wollen. Ferner er[...dt] er Sie keinerlei geschäftlich-finanzielle Sachen mehr an die Firma zu korrespondieren i.B. über die Angelegenheit mit der fa. Agnew oder ev. Verkäufe etc. Sonst könnte die Liquidation oder die Ausreise compliziert oder verzögert werden’.

Footnote 63 refers to an exchange of letters between Nathan Katz and Valentiner in the summer of 1941. These two letters were not known when the earlier recommendation was adopted. The date of Nathan Katz’s letter is not known, but it is known that it was written at Schneider’s postal address in Basel in Switzerland. It is known that Nathan Katz was in Switzerland from 18 July to 8 August 1941. Valentiner’s answer is dated 26 August 1941. Nathan Katz wrote the following in his letter.

‘… In Holland leben wir zwar under gewältigen Druck, sind jedoch bis heute am Leben, und bis heute dem Konzentrationslager, bzw. Gefängenis noch ferne geblieben.’

Nathan Katz also wrote about his desire to start up an art gallery in the United States. The documents referred to above were not known when the earlier recommendation was adopted. The

Committee answers in the negative the question of whether these letters, had they been known at that time, would have resulted in a different conclusion. In considerations 22 and 23 the Committee attributed importance to several circumstances with regard to NK 1668 in order to link the sale of NK 1668 directly to the departure of Nathan Katz’s family from the country and, following on from this, to consider this sale as involuntary. These circumstances, however, manifested themselves from September 1941. Although it emerges from the documents submitted so far that Nathan Katz had been thinking about leaving the Netherlands for some time, in view of the exchange of letters between Schneider and Schaeffer since the end of 1940, this does not necessarily mean, also in conjunction with the known letter from Nathan Katz of 1 March 1941, that the transactions of the Katz Gallery from that moment were directly connected to the departure of Nathan Katz’s family from the country and were therefore also involuntary.

Footnote 64 refers to a letter from the collector H.E. ten Cate to Valentiner of 19 August 1941. The Committee did not know of this letter when the earlier recommendation was adopted, but takes the view that its content does not lead to a different conclusion.

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21. Under C ‘Post-War Investigations and Claims’ BB discusses the events after the war. She does this on the basis of footnotes 71 to 84. Some of the documents referred to in these footnotes were known when the earlier recommendation was adopted. This concerns footnote 78 (a reference to the book Betwist Bezit), footnote 79 (a statement by the Chair of the Board of Management of the SNK (Netherlands Art Property Foundation), Jonkheer D.C. Röell, which is referred to in part 3, page 17, of the Investigation Report) and footnote 80 (a post-war statement by P. Reelick, referred to in part 3, page 7, of the Investigation Report). Other footnotes concern documents that are new, but whose contents were known when the earlier recommendation was adopted. This concerns footnote 73 (a reference to the obligation to declare to the SNK art sold during the war) and footnote 77 (a report from the American consul in Amsterdam of 13 January 1947 about recovery of artworks).

Footnotes 72, 74, 75 and 76 refer to various documents regarding Katz that were not known when the earlier recommendation was adopted, but are not relevant to assessing the claim. They therefore do not lead to a different conclusion. The same applies to footnote 81 (documents about a Rembrandt exhibition in Basel in 1948 in which Katz was involved) and footnote 82 (documents about the research in Switzerland by P.C. Overdijk, which is described in section 4.6.5 of part 3 of the Investigation Report).

BB addresses the disappearance of the blue inventory book on the basis of footnotes 83 and 84. This is described in section 4.6.2 of part 3 of the Investigation Report. The documentation referred to in footnotes 83 and 84 was largely known when the earlier recommendation was adopted and provides no new insight. It therefore does not lead to a different conclusion.

The Provenance

22. In the Provenance BB addresses the origins of the claimed works, which is relevant to the question of whether it is highly plausible that the artworks belonged to the Katz Gallery. In her analysis BB employs six categories:

*** Fully documented ownership ** Evidence of ownership making it more than highly probable that Firma Katz was the owner * Evidence of ownership making it very possible to highly probable that Firma Katz was the owner ##* Third party involvement not conclusive ## Conclusive evidence of intermediary role or commission # No evidence of Katz ownership

In view of this and in view of the considerations above, it is not necessary to discuss all the arguments that BB puts forward in her Provenance. The Committee explains this below.

12. Saskia van Uylenburch. The painter's wife

by (studio of) Rembrandt van Rijn (NK 2608)

23. First and foremost it follows from considerations 7 to 21 that the information and arguments put forward by the Applicants about the voluntary nature of the sales to Miedl (list I) do not lead to a conclusion that differs from the one contained in the earlier recommendation with regard to the nature of the loss of possession. This means that there is no reason to address the information in the Provenance about the origins of the artworks referred to on list I.

24. As regards the sales to the Sonderauftrag Linz (list II) it follows from considerations 7 to 21 that the information and arguments put forward by the Applicants about the voluntary nature of the sales to the Sonderauftrag Linz (list II) does not lead to a conclusion that differs from the one contained in the earlier recommendation with regard to the nature of the loss of possession.

In the earlier recommendation the Committee came to the conclusion with regard to NK 1668 that it was sufficiently plausible that the work was the property of the Katz Gallery and the sale of this work was involuntary. The date of the sale to Posse, on or around 19 November 1941, was one of the important factors in reaching this conclusion. As regards the other works that the Katz Gallery supplied to Posse in the period from the end of September 1941, the Committee took the view that the ownership had not been established. This implies that if ownership of works sold to the Sonderauftrag Linz in the period from the end of September 1941 could be made highly plausible, there would be reason to reassess the sale of these works. The Committee therefore considers there is reason to assess whether, with regard to the question of ownership of the works sold to Posse from the end of September 1941, the Applicants have put forward new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion regarding the plausibility of ownership by the Katz Gallery. This concerns the works with numbers 50 to 65 on list II.

BB places four of these artworks (numbers 61, 62, 64 and 65) in the category ‘# No evidence of Katz ownership’. Also no new facts have been advanced with regard to these four works. The Committee will therefore give no further consideration to these four artworks.

25. BB appended documentation to the Provenance with respect to the other works on this list. This

documentation consists primarily of copies from a notebook kept by Posse. The book records the date of purchase, the purchase price and the vendor from whom Posse bought the work of art concerned, namely ‘N.K.’, which according to the Applicants means Nathan Katz. The Committee also considers this to be plausible. In some cases the notebook has more information about a specific artwork, for example NK 1648, which according to a note made by Posse came ‘aus englischen Privatbezitz’.

The Committee did not know of this notebook when the earlier recommendation was adopted. The notebook confirms that Posse purchased the artworks for the purposes of the Sonderauftrag Linz, but in the Committee’s opinion it confirms no more than the fact that Nathan Katz was involved in the sale of the artworks concerned. The different mentions by Posse of the name Nathan Katz in regard to the different artworks and other references do not as such make it highly plausible that the Katz Gallery was the owner of these works of art.

This is also the case with the shipping note that was submitted concerning the transport on 15 December 1941 of 23 crates of artworks from Dresden to Munich. This note contains a list of the particulars displayed on the crate, the number of paintings in the crate and the titles of the paintings. A number of crates bear the designation ‘D.K.’ followed by a Roman number. According to BB this indicates Katz as the origin. The Committee can accept this but also takes the view that these references are not enough in themselves to comply with the criteria employed by the Committee in consideration 8 of the earlier recommendation. This is also the case with the photographs of the backs of the artworks submitted by the Applicants.

It follows from the above that, with regard to the ownership of the works sold to the Sonderauftrag Linz (list II), the Applicants have not put forward any new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion regarding the plausibility of ownership by the Katz Gallery.

26. As regards the sales to Herman Göring (list III) it follows from considerations 7 to 21 that the information and arguments put forward by the Applicants about the transactions with Herman Göring (list III) do not lead to a conclusion that differs from the one contained in the earlier recommendation with regard to the voluntary nature of these sales.

With respect to category b) of these transactions, in consideration 30 of the earlier recommendation the Committee reasoned that it did not exclude the possibility ‘dat ook de overige onder categorie b vermelde schilderijen tijdens het bezoek aan Göring zijn verkocht. In geval van een dergelijke aankoop, door Göring persoonlijk bij een joodse kunsthandelaar, is onvrijwilligheid van het bezitsverlies niet onaannemelijk. De commissie komt aan een oordeel hierover echter niet toe, aangezien ten aanzien van alle werken onder deze categorie b geen aanwijzingen zijn gevonden die de eigendom van Kunsthandel Katz in hoge mate aannemelijk maken.’ [‘that the other paintings listed in category b were also sold during the visit to Göring. In the case of such a purchase, by Göring personally from a Jewish art dealer, it is not implausible that the loss of possession was involuntary. The Committee does not draw a conclusion about this, however, because with regard to all the works in this category b no indications were found that make ownership by the Katz Gallery highly plausible.’]

The Committee therefore considers there is reason to assess whether, with regard to the question of ownership of the works specified in category b), the Applicants have put forward new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion

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regarding the plausibility of ownership by the Katz Gallery. In addition to NK 2608, which belonged to Ten Cate’s collection, category b) contains three works: NK 2465, NK 1751 and NK 1695. The Provenance only states new facts about the first two works so the Committee will limit its assessment to the new facts put forward about the two artworks concerned (NK 2465 and NK 1751).

27. BB submitted documents regarding NK 2465 that show, according to her, that this work was sold to Göring in September/October1940 rather than in 1942. But this is not a new fact. It is stated in consideration 29 of the earlier recommendation that the aforementioned artworks listed in category b were sold by or through the Katz Gallery for the purposes of Hermann Göring’s art collection ‘op of omstreeks 27 september 1940’ [‘on or around 27 September 1940’].

BB submitted two documents regarding NK 1751. These documents contain no new facts however. It follows from the above that, with regard to the ownership of the works sold to Hermann Göring (list

III), the Applicants have not put forward any new facts that, had they been known at the time the earlier recommendation was adopted, would have led to a different conclusion regarding the plausibility of ownership by the Katz Gallery.

28. As far as the sales of the Other artworks (list IV) are concerned, the Committee finds that the Applicants have not invoked any new facts.

29. In view of the considerations above, the Committee will advise the Minister not to reconsider the decision

of 24 January 2013 regarding RC 1.90-B.

Conclusion

The Restitutions Committee advises the Minister of Education, Culture and Science not to reconsider the decision of 24 January 2013 in so far as it concerns rejection of the application for the restitution of 188 NK works, which the Committee had advised on 17 December 2012 under number RC 1.90-B.

Adopted on 15 November 2017 by A. Hammerstein (Chair), J.T.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.

(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)

7. Recommendation regarding Katz – Kummerlé (case number RC 1.132-B)

In a letter dated 7 June 2012 the State Secretary for Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application of 8 May 2012 from the heirs of Nathan and Benjamin Katz (hereinafter referred to as the Applicants) for restitution of the following three paintings, which are part of the Netherlands Art Property Collection (hereinafter referred to as the NK collection).- Bathseba after the Bath, circle of Jan Steen (NK 3752), - Coastal Landscape, by Pieter van der Croos (NK 3753), and- Woman Kneeling by a Bed of Tulips, by an unknown Dutch artist, formerly attributed to Gerard Dou (NK 3754).

These paintings have been part of the Netherlands Art Property Collection since they were handed back by the Federal Republic of Germany to the Dutch State on 4 March 2012.

Assessment Framework

Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:a. part of the NK collection orb. among the other holdings of the Dutch State.Pursuant to paragraph 4, the Committee advises about applications as referred to in paragraph 1, under a, submitted to the Minister before 30 June 2015 with due regard for government policy in this respect.

The procedure

A restitution application concerning the three claimed paintings had been submitted on 6 March 2012 by the heirs of Abraham Katz represented by Professor H. Loonstein, a lawyer of Amsterdam. Since the applications of 8 May 2012 and 6 March 2012 concern the same paintings, the Committee combined the applications in file RC 1.132, but separate recommendation has been issued for each application. On 16 October 2017 the Committee issued her recommendation about the application of the heirs of Abraham Katz (recommendation number RC 1.132-A). This recommendation was to reject the application for restitution. The current recommendation concerns the application by the heirs of Nathan and Benjamin Katz of 8 May 2012 (recommendation number RC 1.132-B). The Applicants applied to the Minister for restitution of the three paintings on 8 May 2012. The Minister laid this application before the Committee for advice in a letter of 7 June 2012. Upon request the Applicants explained their application in a letter dated 28 September 2012. In a letter of 18 April 2013 the Committee asked the Applicants whether the recommendation issued on 17 December 2012 in the case RC 1.90-B (Katz) gave reason for them to amend or supplement their application. In a letter of 22 April 2013 the Applicants announced that they were conducting additional research and asked the Committee to put case RC 1.132 on hold. The Committee granted this request. In a letter of 15 December 2016 the Applicants supplemented the underpinning of their application. The Committee then conducted an investigation. This resulted in a draft investigation report dated 16 October 2017, which was sent to the Applicants for a response and to the Minister for additional information. The Applicants responded in a letter of 9 November 2017. In an e-mail of 13 November 2017 the Minister stated that there was no additional information. The Committee then adopted the recommendation and the investigation report in its meeting of 18 December 2017.

Considerations

1. The Committee has taken note of various inheritance-law-related documents on the grounds of which it has no reason to doubt the Applicants’ status as rightful claimants in the context of this restitution application.

2. The three currently claimed paintings were part of the collection of the Museum für Bildende Künste der Stadt Leipzig (hereinafter referred to as the Museum). The paintings ended up there in around 1953/1954 from the former collection of Emil Kummerlé, who had acquired the paintings during the Second World War. After a claim from the Netherlands to works from this collection, on 4 March 2012 works from this collection, including the current three paintings, were returned to the Netherlands. This return of works was preceded by a decision by the Bundesamt für zentrale Dienste und offene Vermögensfragen [Federal Office for Central Services and Unresolved Property Issues] (hereinafter referred to as the BADV) of 17 June 2011. After their return the three paintings were incorporated in the NK collection. According to the Applicants the three paintings were sold involuntarily during the Second World War by the Firma D. Katz (Kunsthandel Katz) art gallery to Alois Miedl/kunsthandel v/h J. Goudstikker N.V (hereinafter referred to as Goudstikker-Miedl).

3. The present restitution application is linked in part to an earlier application for the restitution of

189 works from the NK collection, about which the Committee advised on 17 December 2012 in case RC 1.90-B (Katz). The present case concerns the same Applicants and the same stated original owner (Kunsthandel Katz). In addition the present application concerns paintings that came into the possession of Goudstikker-Miedl in August 1940 in the same way as the paintings on list I accompanying recommendation RC 1.90-B.

The Committee will therefore check with regard to the currently claimed paintings whether there are grounds for arriving at advice that is different from recommendation RC 1.90-B issued with regard to the paintings on list I. First the Committee will address the application for restitution of NK 3754 because it is not clear whether this is the painting by Gerard Dou that was sold to Goudstikker-Miedl by or through the Kunsthandel Katz gallery in August 1940.

NK 3754

4. In the request for advice of 7 June 2012, NK 3754 is described as a painting entitled ‘Vrouw knielend voor een tulpenbed in gesprek met een man’[‘Woman Kneeling by of a Bed of a Tulips Talking to a Man’] by an unknown Dutch artist, previously attributed to Gerard Dou. It is a painting in oil on panel measuring 44.3 by 35.7 cm. With their application to the Minister of 8 May 2012 the Applicants enclosed the list sent by the BADV (hereinafter referred to as the BADV list), on which NK 3754 is referred to under number 40. The information about this work on the BADV list came from the Museum and from the Dutch Ministry of Education, Culture and Science (OCW). According to information on the BADV list originating from the Museum, the painting concerned is entitled ‘Vor einem Tulpenbeet kniende Frau in Unterhaltung mit einem Mann’ by an unknown Dutch painter, previously attributed to Gerard Dou. According to information on the BADV list originating from the OCW the painting concerned is a ‘Vrouwenportret’ [‘Portrait of a woman’] by Gerard Dou. The information from the Museum and shown on the BADV list includes the painting’s dimensions (44 x 35.5 cm) and a provenance that goes no further back than Emil Kummerlé. The information on the BADV list from the OCW does not contain any measurements, but

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it does include a provenance that mentions Emil Kummerlé, Goudstikker-Miedl and Katz, and refers to Goudstikker inventory number 5216. These differences in description give rise to the question of whether this matter concerns one and the same painting.

5. The information on the BADV list that came from the OCW about a ‘Vrouwenportret’ [‘Portrait of a

woman’] by Gerard Dou corresponds to information from various documents found during the investigation that refer to a ‘Vrouwenportret’ [‘Portrait of a woman’] by Gerard Dou, which was allegedly sold by the Kunsthandel Katz gallery to Goudstikker-Miedl on 7 August 1940 and thereafter to Emil Kummerlé of Brandenburg on 12 March 1942. The documents found are an internal SNK (Netherlands Art Property Foundation) declaration form of 3 December 1945, a list from the SNK archive entitled ‘Collectie Katz’ [‘Katz collection’] and a list from the NBI (Netherlands Property Administration Institute) archive about Goudstikker-Miedl headed ‘‘Schilderijen - Lange Voorhout 35, den Haag’ [‘Paintings - Lange Voorhout 35, The Hague’]. On this last list the painting under Goudstikker inventory number 5216 is recorded as follows.

[5216] [v] G. Dou, vrouwenportret [portrait of a woman] (Cook) [München {Munich} 2778 f 32000 11000]

It is stated in the draft investigation report of 16 October 2017 that, in the absence of an illustration and measurements, it is not clear whether the painting sold to Kummerlé on 12 March 1942 is NK 3754.

6. In response to the draft investigation report the Applicants wrote on 9 November 2017 that NK 3754 is not the painting referred to in the documents mentioned above in consideration 5 that was sold to Goudstikker-Miedl by the Kunsthandel Katz gallery. In this context they refer to information from a stockbook of the Agnew gallery in London, in which a portrait of a woman by Gerard Dou is recorded. According to the Applicants, this painting, which the Kunsthandel Katz gallery purchased on 8 March 1940 from the Cook collection, is the work mentioned in the various documents referred to above. The Applicants sent an image of the painting, which measures 21 x 15.5 cm. It emerges from the image that the painting’s subject is Gerard Dou’s mother.

7. The Committee takes the same view as the Applicants that NK 3754 is not the portrait of a woman

by Gerard Dou that is mentioned in the documents referred to above in consideration 5 and that was sold by the Kunsthandel Katz gallery to Goudstikker-Miedl in August 1940.

Looking at the illustration, it is difficult to label NK 3754 as a portrait of a woman.

13. Woman Kneeling by a Bed of Tulips by an unknown Dutch artist,

formerly attributed to Gerard Dou (NK 3754)

It moreover emerges from the documents sent by the Applicants as enclosures to their letter of 9 November 2017 that the Kunsthandel Katz gallery did indeed purchase a portrait of a woman on 8 March 1940 from the Cook collection, which has characteristics that correspond closely with the portrait of a woman described in documents referred to above in consideration 5. In that light, and in the absence of other provenance information about NK 3754 that can link this painting to the Kunsthandel Katz gallery, the Committee will advise the Minister to reject the application for the restitution of NK 3754.

NK 3752 and NK 3753

8. It is known that NK 3752 and NK 3753 were sold to Goudstikker-Miedl by or through the Kunsthandel Katz gallery in August 1940, after which they ultimately came into the possession of Emil Kummerlé. In addition to the two currently claimed paintings, a further 101 paintings were sold to Goudstikker-Miedl by or through the Kunsthandel Katz gallery in August 1940 and thereafter. The Committee issued recommendation about these transactions in RC 1.90-B. In consideration 14 of this recommendation the Committee concluded that the Miedl works were the subject of business transactions in line with the starting point for the art trade policy formulated by the Ekkart Committee ‘dat de kunsthandel verkoop van handelsvoorraad als doelstelling heeft, zodat een belangrijk deel van de verrichte transacties, ook bij de joodse kunsthandelaars, in principe gewone verkoop was’ [‘that the art trade’s objective is to sell the trading stock so that the majority of the transactions, even at the Jewish art dealers, in principle constituted ordinary sales’]. See consideration 14 of the recommendation concerning RC 1.90-B for the reasoning behind this conclusion.

9. The question is whether there are reasons for coming to a different conclusion with regard to the loss

of possession of NK 3752 and NK 3753. The Applicants refer to the BADV decision of 17 June 2011 and assert that in Germany and other countries the involuntary nature of the loss of possession is taken as a starting point in the case of a Jewish owner. The Applicants argue that if the Committee were to stand by the starting point of the art trade policy ‘dat de kunsthandel verkoop van handelsvoorraad als doelstelling heeft, zodat een belangrijk deel van de verrichte transacties, ook bij de joodse kunsthandelaars, in principe gewone verkoop was’ [‘that the art trade’s objective is to sell trading stock, so a significant fraction of transactions, including by Jewish art dealers, in principle constituted ordinary sales’], it would be repudiating the international consensus that sales under the German occupation were not normal.

The Committee limits its response to this line of reasoning by stating that on the grounds of the Decree Establishing the Restitutions Committee it is obliged to advise giving due regard to ‘government policy in this respect’. This case is about an art gallery, so this means that the Ekkart Committee’s Recommendations for the Art Trade (2003), as adopted by the Dutch government, are applicable. These recommendations are based on the starting point referred to above, on the grounds of which the involuntary nature of the transactions at issue must be made plausible. Since this case concerns a sale by a Jewish art dealer under the Nazi regime, application of the Dutch restitution policy results in this sale not being designated as involuntary.

10. The Committee has taken note of the additional information sent by the Applicants on 15 December 2016, including reports by AA and BB. They do not provide any grounds for reaching a conclusion with regard to the nature of the loss of possession of NK 3752 and NK 3753 that is different from that stated in consideration 14 of the recommendation concerning RC 1.90-B. In this context the Committee also refers to the recommendation concerning RC 4.168, which addresses the additional information sent by the Applicants.

There are also no grounds in other respects for reaching a conclusion with regard to the nature of the loss of possession of NK 3752 and NK 3753 that is different from that stated in consideration 14 of the recommendation concerning RC 1.90-B. This means that the Committee will advise the Minister to reject the application for restitution of NK 3752 and NK 3753. The Committee therefore does not need to address the ownership issue.

Conclusion

The Restitutions Committee advises the Minister of Education, Culture and Science to reject the application for restitution of NK 3752, NK 3753 and NK 3754.

Adopted on 18 December 2017 by A. Hammerstein (Chair), J.T.M. Bank, J.H.W. Koster, P.J.N. van Os, H.M. Verrijn Stuart, G.N. Verschoor and I.C. van der Vlies (Vice-Chair) and signed by the Chair and the Secretary.

(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)

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53

Appendices

1. Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, 16 November 2001 (text valid until 18 July 2012).

2. Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (text valid with effect from 19 July 2012).

3. Overview of the documents on which the restitution policy is based.

4. Regulations for opinion procedure under article 2, paragraph 2, and article 4, paragraph 2 of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (text valid with effect from 3 March 2014).

5. Index by case number of the Restitutions Committee’s recommendations and opinions (2002 to 2017).

54

60

63

64

68

52

54 Appendix 1, p.1 – Decree establishing the Advisory Committee

Decree issued by the State Secretary for Education, Culture and Science, F. van der Ploeg, establishing a committee to advise the government on the restitution of items of cultural value of which the original owners Reference involuntarily lost possession due to circumstances directly WJZ/2001/45374(8123) related to the Nazi regime and which are currently in the possession of the State of the Netherlands (Decree Zoetermeer establishing the Advisory Committee on the Assessment of 16 November 2001 Restitution Applications) The State Secretary for Education, Culture and Science, F. van der Ploeg, Acting in accordance with the views of the Council of Ministers; Having regard to Article 15, third paragraph, of the 1995 Public Records Act; Herewith decrees as follows: Article 1 For the purposes of this Decree, the terms below shall be defined as follows: a. the Minister: the Minister for Education, Culture and Science; b. the Ministry: the Ministry for Education, Culture and Science; c. the Committee: the Committee as referred to in Article 2 of this Decree. Article 2 1. There shall be a Committee whose task is to advise the Minister, at his request, on decisions

to be taken concerning applications for the restitution of items of cultural value of which the original owners involuntarily lost possession due to circumstances directly related to the Nazi regime and which are currently in the possession of the State of the Netherlands.

2. A further task of the Committee shall be to issue an opinion, on the Minister’s request, on disputes concerning the restitution of items of cultural value between the original owner who, due to circumstances directly related to the Nazi regime, involuntarily lost possession of such an item, or the owner’s heirs, and the current possessor which is not the State of the Netherlands.

3. The Minister shall only submit a request for an opinion as referred to in the second paragraph to the Committee if and when the original owner or his heirs and the current possessor of the item in question have jointly asked the Minister to do so.

4. The Committee shall carry out its advisory role as referred to in the first paragraph in accordance with the relevant government policy.

5. The Committee shall carry out its advisory role as referred to in the second paragraph in accordance with the requirements of reasonableness and fairness.

Article 3 1. The Committee shall comprise no more than 7 members, including the chairman and the

deputy chairman. 2. Both the chairman and the deputy chairman shall be qualified lawyers (meester in de

rechten).

55Appendix 1, p.2 – Decree establishing the Advisory Committee

3. The Committee shall include at least one member whose expertise on matters concerning World War II constitutes a substantial contribution to the work of the Committee.

4. The Committee shall include at least one member whose expertise on matters concerning art history and museology constitutes a substantial contribution to the work of the Committee.

5. The Minister shall appoint the chairman, the deputy chairman and the other members for a period not exceeding three years. They shall not form part of the Ministry or work in any other capacity under the responsibility of the Minister.

6. The chairman, the deputy chairman and the other members may be reappointed once at most.

Article 4 1. Each request for advice shall be considered by a group of at least three Committee

members, to be selected by the chairman, with the proviso that at least the chairman or the deputy chairman shall be involved in the consideration of the request.

2. The Committee may issue further regulations pertaining to the method to be adopted. Article 5 1. The Minister shall provide the Committee with a Committee Secretariat. 2. The Secretariat shall be headed by the Committee Secretary, who shall be a qualified lawyer

(meester in de rechten). 3. The Secretary shall be accountable only to the Committee for the work performed for the

Committee. Article 6 1. If required for the execution of its task, the Committee may, at a meeting, hear the person

that has submitted a restitution application as referred to in Article 2, first paragraph and a Ministry representative or, as the case may be, the parties whose dispute, as referred to in Article 2, second paragraph, has been submitted to the Committee for advice.

2. If required for the execution of its task, the Committee may directly approach any third parties in order to obtain information, and may invite such third parties to a meeting so as to learn their views.

3. The Minister shall ensure that all documents that the Committee needs in order to execute its task and that are in the Ministry’s files are made available to the Committee in time and in full.

4. Each and every officer of the Ministry shall comply with a summons or a request issued by the Committee.

5. The restrictions relevant to the public accessibility of records as referred to in Section 1, subsection c, under 1 and 2 of the 1995 Public Records Act that the Committee needs for the execution of its task and are filed in State Archives shall not be applicable to the Committee.

Article 7 1. Every year the Committee shall report to the Ministry of Education, Culture and Science on

the current situation regarding the tasks referred to in Article 2. 2. The first report shall be submitted in January 2003. Article 8 The members of the Committee shall receive a fee plus reimbursement for travel and subsistence expenses in accordance with the relevant government schemes.

56 Appendix 1, p.3 – Decree establishing the Advisory Committee

Article 9 The Committee’s records shall be transferred to the archives of the Ministry’s Cultural Heritage Department after dissolution of the Committee or at such earlier time as may be dictated by circumstances. Article 10 From the date that this Decree takes effect, the following persons shall be appointed for a period of three years: a. J.M. Polak of Ede, chairman b. B.J Asscher of Baarn, deputy chairman c. Prof. J. Leyten of Nijmegen d. E. van Straaten of Beekbergen e. Prof. J.Th.M. Bank of Amsterdam f. H.M. Verrijn-Stuart of Amsterdam Article 11 This Decree shall come into effect on the second day after the date of the Government Gazette in which it is published. Article 12 This Decree shall be cited as the Decree establishing the Advisory Committee on the Assessment of Restitution Applications. This Decree and the associated explanatory notes will be published in the Government Gazette. The State Secretary for Education, Culture and Science [signed] F. van der Ploeg

57Appendix 1, p.4 – Decree establishing the Advisory Committee

Explanatory notes General The Ekkart Committee is one of the committees established in the Netherlands since 1997 to carry out research in the extensive field of post-World War II restitutions. The Committee supervises research into the origins of the ‘NK collection’, i.e. the collection of art objects that were recovered from Germany after World War II and have been held by the State of the Netherlands since then. Given the size of the NK collection, which comprises some 4000 objects, and the nature of the research, which involves tracing transactions that took place more than fifty years ago and of which, in many cases, very few documents have survived, the Ekkart Committee will not be able to finalise its research until the end of 2002. In addition to supervising the research into the origins of collection items, the Committee is charged with issuing recommendations to the Minister of Education, Culture and Science on the government’s restitution policy. The Committee submitted its interim recommendations to me on 26 April 2001. As stated in the accompanying letter, the Committee decided to draw up interim recommendations because in its view the urgency of policy adaptations is such, considering, among other things, the advanced age of some of the interested parties, that they should be implemented before the overall research project has been completed. In formulating its recommendations, the Committee aims to create scope for a more generous restitution policy. In its view, the strictly legal approach as laid down in the government’s policy paper of 14 July 2000 is no longer acceptable. I sent the Cabinet’s response to these recommendations to the Speaker of the Lower House of Parliament on 29 June 2001, and a supplementary reaction of the government by letter of 16 November 2001. In its reaction to the Ekkart Committee recommendations, the government has not opted for a purely legal approach to the restitution issue, but rather for a more policy-oriented approach, also in the light of international developments in these matters, in which priority is given to moral rather than strictly legal arguments. This view was expressed, for example, in the outcome of the conference held in Washington in 1998 for a global discussion of World War II assets (known as the ‘Washington Principles’). One of these principles is the establishment of “alternative dispute resolution mechanisms for resolving ownership issues.” Countries like France and the United Kingdom have implemented this principle and have established committees charged with judging individual applications for restitution. The establishment of an Advisory Committee in the Netherlands to consider individual applications for restitution is consistent both with the Ekkart Committee recommendations and with the international developments outlined above. The main reason for setting up an Advisory Committee was the need for the Ministry of Education, Culture and Science to decide on applications for restitution in as objective a manner as possible. Since the Minister of Education, Culture and Science, being the possessor/administrator of the NK collection, is directly concerned in the matter, the existence of an advisory committee will enhance the independence of the decision process. By letter of 7 June 2001 the parliamentary Education, Culture and Science Committee expressed its preference for an independent committee. Based on its own experience, the Ekkart Committee currently expects that the Advisory Committee will be asked to consider 30 to 50 cases relating to objects currently held by the State. There are no indications as yet about the number of applications that might be submitted to the Advisory Committee by private individuals, nor is it clear how many years the Committee is going to need to fulfil its tasks. The figures mentioned seem to point to a term of 3 to 5 years.

58 Appendix 1, p.5 – Decree establishing the Advisory Committee

Explanatory notes on each article Article 2 The main task of the Committee is to advise the Minister of Education, Culture and Science, at his request, on individual applications for restitution of items that form part of the NK collection. In addition, the Minister may also ask for advice on restitution applications that relate to items in the state collection that do not form part of the NK collection but nevertheless came into the possession of the State due to circumstances directly related to the Nazi regime. Following the example of similar committees abroad and at the express request of the Lower House of Parliament, the Minister may also refer to the Committee disputes between private individuals, provided that the parties involved have made a request to that effect and provided that the dispute concerns an object of which the original owner lost possession involuntarily due to circumstances directly related to the Nazi regime. The Minister will ask the Committee to give an opinion if and when he receives an application for restitution that complies with the relevant framework conditions. The Minister himself will only directly deal with applications that evidently fall outside the Committee’s remit, for example because they do not relate to the restitution of items of cultural value that were transferred within the context of World War II. It has been decided to present the applications to the Committee via the Minister so as to avoid overburdening the Committee with requests that fall outside its mandate. The Committee’s advisory framework corresponds with the relevant outlines of government policy; first and foremost, the general government policy on World War II assets as laid down in the letter issued by the government on 21 March 2000. In addition, the government has issued rules that more specifically concern the restitution of items of cultural value. These rules form part of the policy the government announced to the Lower House of Parliament in its policy paper of 14 July 2000. However, the Ekkart Committee recommendations and the government’s response to them have led to major amendments to that policy. The government’s letters continue to be effective and, together with the Ekkart Committee recommendations and the government’s response to these recommendations, constitute the policy framework within which the Advisory Committee is to operate. It goes without saying that any further recommendations from the Ekkart Committee in the future may cause the government to make adaptations to this policy framework. The Advisory Committee will judge any application for restitution in the light of this policy framework. It may then conclude that: - the application, while being covered by the regular legal rules, falls beyond the Advisory Committee’s mandate. If so, the Advisory Committee will incorporate this in its opinion to the Minister. - the application falls within the Advisory Committee’s mandate and therefore qualifies for an opinion. The government also wishes to make available a facility for the settlement of disputes between private individuals concerning an object of which the original owner lost possession involuntarily due to circumstances directly related to the Nazi regime. In its assessment of such applications from private individuals the Advisory Committee will be guided by the principles of reasonableness and fairness. The intervention by the Minister – since it is the Minister who refers disputes between private individuals to the Advisory Committee – is the result of pragmatic considerations. As it is the Minister who is responsible for ensuring that the Advisory Committee receives the support it needs, the Minister must be aware of the number of opinions the Advisory Committee is expected to issue.

59Appendix 1, p.6 – Decree establishing the Advisory Committee

Articles 3 and 4 The decisions about the Advisory Committee’s size, composition and working method were taken with due regard to the need to balance the requirement of expertise against the requirement of efficiency in the formulation of Committee opinions. The Advisory Committee is composed in such a way that at least the legal, historical and art history expertise required for the assessment of a restitution application is represented. The requirement that the chairman and deputy chairman be legal experts stems from the fact that in spite of the choice for a moral policy-oriented approach, legal expertise obviously remains indispensable in the assessment of the laws and regulations involved in applications for restitution. The availability of legal expertise is ensured in all cases, given that no opinion is formulated without he involvement of either the chairman or the deputy chairman. The intention is for the Advisory Committee to comprise seven members from the time of its inception. It is up to the chairman to decide which particular members, in a specific case, should contribute to the formulation of an opinion. The involvement of a member in a particular application for restitution may influence this decision. The number of members to be involved in the opinion on a particular application will depend on the complexity of the case. As a minimum requirement, each application must be considered by the chairman or the deputy chairman and at least two other committee members. Article 5 The Minister will provide a Committee Secretariat that is able to give the advisory committee the required level of support. The Committee Secretary must be a qualified lawyer (meester in de rechten). In addition, the Secretariat should be able to offer research capacity as well as the required level of administrative and organisational support. The size of the Secretariat will be variable and geared to the Advisory Committee’s workload. Article 6 It is of the utmost importance that the Advisory Committee has access to all the relevant information in drawing up its recommendations: both information from claimants and information provided by the Ministry or third parties. I have lifted the restrictions on the public accessibility of records filed in State Archives by virtue of Article 15, fifth paragraph of the 1995 Public Archives Act so as to enable the Advisory Committee to gather all the information it needs in the shortest possible time. This obviously only concerns those records that are relevant to the execution of the Advisory Committee’s task. The fact that the Committee is allowed to inspect restricted documents does not automatically open up those documents to others as well, given that the members of the Advisory Committee themselves are bound to observe secrecy under Article 2:5 of the General Administrative Law Act regarding information that comes to their knowledge and the confidential nature of which is evident. Article 10 By the time this Decree establishing the Advisory Committee was signed, the six persons referred to in this Article had already expressed their willingness to become members of the committee. This is why I have provided for their appointment in this Decree. One more member will be appointed (separately) as soon as possible. The State Secretary for Education, Culture and Science, [signed] (F. van der Ploeg)

60 Appendix 2, p.1 – Decree (text valid as from 19-07-2012)

Unofficial English translation

Decree Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (text valid as from 19-07-2012) Decree Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War The State Secretary for Education, Culture and Science, Dr. F. van der Ploeg; Acting in accordance with the views of the Council of Ministers; Having regard to Article 15, third paragraph, of the 1995 Public Records Act, Herewith decrees as follows: Article 1 For the purposes of this Decree, the terms below shall be defined as follows: a. the Minister: the Minister for Education, Culture and Science; b. the Ministry: the Ministry for Education, Culture and Science; c. the Committee: the Committee as referred to in Article 2 of this Decree; d. NK-collection: collection of recuperated cultural objects that are presently in the possession of the

State of the Netherlands and which are registered with the National Service for Cultural Heritage in the NK-inventory section.

Article 2 1. There shall be a Committee whose task is to advise the Minister, at his request, on decisions to be

taken concerning applications for the restitution of items of cultural value of which the original owners involuntarily lost possession due to circumstances directly related to the Nazi regime and which: a. are part of the NK-collection; or b. belong to the other possessions of the State of the Netherlands.

2. A further task of the Committee shall be to issue an opinion, on the Minister’s request, on disputes concerning the restitution of items of cultural value between the original owner who, due to circumstances directly related to the Nazi regime, involuntarily lost possession of such an item, or the owner’s heirs, and the current possessor which is not the State of the Netherlands.

3. The Minister shall only submit a request for an opinion as referred to in the second paragraph to the Committee if and when the original owner or his heirs and the current possessor of the item in question have jointly asked the Minister to do so.

4. The Committee gives advice about applications within the meaning of the first paragraph, under a, submitted with the Minister before 30 June 2015, with due observance of the relevant government policy. Applications within the meaning of the first paragraph, under a, submitted on or after 30 June 2015 are handled by the Committee in accordance with the fifth paragraph.

5. The Committee gives advice about applications within the meaning of the first paragraph, under b and the second paragraph based on the principles of reasonableness and fairness.

6. In its advisory role, referred to in the first paragraph, the committee attaches great importance to the circumstances of the acquisition by the possessor and the possibility of knowledge of the suspicious origin at the time of the acquisition of the cultural object in question.

61Appendix 2, p.2 – Decree (text valid as from 19-07-2012)

Unofficial English translation

Article 3 1. The Committee shall comprise no more than 7 members, including the chairman and the deputy

chairman. 2. Both the chairman and the deputy chairman shall be qualified lawyers (meester in de rechten). 3. The Committee shall include at least one member whose expertise on matters concerning World

War II constitutes a substantial contribution to the work of the Committee. 4. The Committee shall include at least one member whose expertise on matters concerning art

history and museology constitutes a substantial contribution to the work of the Committee. 5. The Minister shall appoint the chairman, the deputy chairman and the other members for a period

not exceeding three years. They shall not form part of the Ministry or work in any other capacity under the responsibility of the Minister.

6. The chairman, the deputy chairman and the other members may be reappointed. Article 4 1. Each request for advice shall be considered by a group of at least three Committee members, to

be selected by the chairman, with the proviso that at least the chairman or the deputy chairman shall be involved in the consideration of the request.

2. The Committee may issue further regulations pertaining to the method to be adopted. Article 5 1. The Minister shall provide the Committee with a Committee Secretariat. 2. The Secretariat shall be headed by the Committee Secretary, who shall be a qualified lawyer

(meester in de rechten). 3. The Secretary shall be accountable only to the Committee for the work performed for the

Committee. Article 6 1. If required for the execution of its task, the Committee may, at a meeting, hear the person that has

submitted a restitution application as referred to in Article 2, first paragraph and a Ministry representative or, as the case may be, the parties whose dispute, as referred to in Article 2, second paragraph, has been submitted to the Committee for advice.

2. If required for the execution of its task, the Committee may directly approach any third parties in order to obtain information, and may invite such third parties to a meeting so as to learn their views.

3. The Minister shall ensure that all documents that the Committee needs in order to execute its task and that are in the Ministry’s files are made available to the Committee in time and in full.

4. Each and every officer of the Ministry shall comply with a summons or a request issued by the Committee.

5. The restrictions relevant to the public accessibility of records as referred to in Section 1, subsection c, under 1 and 2 of the 1995 Public Records Act that the Committee needs for the execution of its task and are filed in State Archives shall not be applicable to the Committee.

Article 7 1. Every year the Committee shall report to the Minister on the current situation regarding the tasks

referred to in Article 2. 2. The first report shall be submitted in January 2003.

62 Appendix 2, p.3 – Decree (text valid as from 19-07-2012)

Unofficial English translation

Article 8 The members of the Committee shall receive a fee plus reimbursement for travel and subsistence expenses in accordance with the relevant government schemes. Article 9 The Committee’s records shall be transferred to the archives of the Ministry’s Cultural Heritage Department after dissolution of the Committee or at such earlier time as may be dictated by circumstances. Article 10 From the date that this Decree takes effect, the following persons shall be appointed for a period of three years: a. mr. J.M. Polak in Ede, chairman; b. mr. B.J. Asscher of Baarn, deputy chairman; c. Prof. mr. J. Leyten of Nijmegen; d. Dr. E. van Straaten of Beekbergen; e. Prof. J.Th.M. Bank of Amsterdam; f. mr. H.M. Verrijn-Stuart of Amsterdam. Article 11 This Decree shall come into effect on the second day after the date of the Government Gazette in which it is published. Article 12 This Decree shall be cited as: Decree Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War. This Decree and the associated explanatory notes will be published in the Government Gazette. The State Secretary for Education, Culture and Science, F. van der Ploeg

63

Policy framework of the Restitutions Committee

The Decree establishing the Restitutions Committee stipulates that to the extent that the applications for restitution concern objects in the National Art Collection, the Committee shall conduct its advisory task with due regard for relevant national policy. Below is an overview of the documents from which the policy framework emanates. Some of this documentation can be found in the appendices to previous annual reports of the Committee.

Date Description

April 1998 Recommendations of the Origins Unknown Supervisory Committee

20 May 1998 State Secretary’s response to the recommendations of the Origins Unknown Supervisory Committee

21 March 2000 Letter to the Dutch Lower House concerning the government’s overall position on WWII Assets

14 July 2000 Letter to the Dutch Lower House concerning the government’s position on restitution and recuperation of items of cultural value

26 April 2001 Recommendations by the Ekkart Committee regarding the restitution of works of art

29 June 2001 Government response to the Ekkart Committee’s recommendations

16 November 2001 Additional government response to the Ekkart Committee’s recommendations

28 January 2003 Ekkart Committee’s recommendations regarding the restitution of works of art belonging to art dealers

5 December 2003 Government response to the Ekkart Committee’s recommendations regarding the art trade

14 December 2004 Ekkart Committee’s final recommendations

8 March 2005 Government response to the Ekkart Committee’s final recommendations

22 June 2012 Letter from the State Secretary of OCW to the Lower House with his response to the advice of the Council for Culture about the restitution policy in regard to items of cultural value.

Appendix to this letter: Advice of the Council for Culture about the policy for restituting items of cultural value, 25 January 2012.

4 July 2012 Decree regarding an amendment of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, in connection with evaluation of the restitution policy.

Appendix 3 – Policy framework of the Restitutions Committee

64

1

Please note this is an unauthorised translation of the original Dutch text “Reglement inzake adviesprocedure in het kader van artikel 2, tweede lid, en artikel 4, tweede lid, Besluit adviescommissie restitutieverzoeken cultuurgoederen en Tweede Wereldoorlog” Regulations for opinion procedure under Article 2, paragraph 2, and Article 4, paragraph 2 of the Decree establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War. Definition Article 1 The terms used in these regulations are defined as follows: a. the Committee: the Advisory Committee on the Assessment of Restitution Applications

for Items of Cultural Value and the Second World War pursuant to the Decree establishing the advisory committee on the assessment of restitution applications (hereinafter the Decree);

b. the Secretariat: the Secretariat as referred to in Article 5 of the Decree; c. the Minister: the Minister of Education, Culture and Science; d. the Ministry: the Ministry of Ministry of Education, Culture and Science; e. the work: the item or items of cultural value, as referred to in Article 2, paragraph 2 of the

Decree, that is or are the subject matter of the dispute; f. the applicant: the person applying for restitution of the work; g. the owner: the current owner, other than the State of the Netherlands; h. the parties: the applicant and the owner.

Task Article 2 1. At the request of the Minister, the Committee has the task of giving an opinion to the

parties about disputes concerning the return of the work. 2. The Committee does this by issuing a binding opinion within the meaning of Article 7:900

of the Dutch Civil Code (contract of settlement) or by promoting a settlement between the parties.

Article 3 The Committee issues an opinion on the basis of reasonableness and fairness and may, in any event, take the following into consideration: a. internationally and nationally accepted principles such as the Washington Principles and

the government’s policy guidelines concerning the restitution of looted art in so far as they are applicable;

b. the circumstances in which possession of the work was lost; c. the extent to which the applicant has endeavoured to recover the work; d. the circumstances in which the owner acquired the work and the inquiries the owner

made prior to acquiring it; e. the significance of the work to the applicant; f. the significance of the work to the owner; g. the significance of the work to public art collections. Admissibility Article 4 The Committee can declare an application inadmissible if: a. it concerns a dispute regarding which one of the parties has already instituted

proceedings before a court, or

Appendix 4, p.1 – Regulations on binding opinion procedure

N.B. These new regulations were published on 3 March 2014, and have applied since then. See Appendix 4 of Report 2012 or the website (http://www.restitutiecommissie.nl/en/publications.html) for a copy of the old regulations, which applied until 3 March 2014.

65Appendix 4, p.2 – Regulations on binding opinion procedure

2

b. this is a dispute on the substance of which a court has already given a decision, or c. the applicant has previously explicitly relinquished his or her rights to the work at issue,

or d. it emerges that the applicant does not represent all those entitled to the assets of the

supposed original owner.

The hearing of disputes Article 5 1. The application is submitted to the Minister and may be addressed to the Committee. 2. Both parties request the Minister to submit their dispute to the Committee in accordance

with Article 2, paragraph 3 of the Decree. 3. After the Minister has presented the dispute to the Committee, it will hear the dispute

after the parties have stated in writing that they accept these regulations and that they accept the opinion to be issued by the committee as binding.

4. If the parties, after a request to that effect, have not complied with the stipulation referred to in paragraph 3 within four weeks, the dispute will not be heard.

5. The Committee may extend the terms. 6. The chairman decides which Committee members will issue the binding opinion.

Article 6 1. The Committee sends both parties these regulations and notifies them in writing that it

has received the request for an opinion from the Minister. 2. The Committee gives the parties the opportunity to provide an explanation concerning

their viewpoint within six weeks and to provide the Committee with further information. 3. In their explanation, each of the parties can express the wish that:

a. the Committee conducts further investigation, if required, of specified items, and b. there is a hearing.

4. The Committee may decide at any point during the handling that: a. there will be a hearing; b. the Committee will obtain information and/or conduct further investigation itself; c. the parties will be given the opportunity to respond subject to a term of six weeks and/or d. the applicant and/or the owner will provide further documents or information, such as a certificate of inheritance, subject to a term to be set by the Committee.

5. The Committee may extend the terms. Article 7 1. Should the Committee decide that it will carry out further investigation itself, it will record

its findings in an overview of the facts. 2. The Committee sends the overview of the facts to the parties. The parties may respond

to it in writing within a term of six weeks. 3. At the request of the parties, the Committee will arrange for an (unauthorised) English

translation of the overview of the facts. 4. Should further investigation be limited to hearing witnesses or experts or having

research conducted by one or more experts it designates, it will then suffice for the Committee to send the report concerned to the parties, to which they may respond within a term of two weeks.

5. The Committee may extend the terms.

Article 8 1. Should the Committee decide that a hearing is to take place, it sets the place, day and

time and informs the parties accordingly.

66

3

2. The Committee may allow the parties to bring witnesses or experts and have them heard. The names and addresses of such persons are to be given to the Committee at least two weeks before the hearing.

3. In regard to the planned hearing, the parties may send documents to the Committee at least four weeks beforehand.

Article 9 The Committee sends copies of the documents it receives from a party to the other party. Article 10 If the parties reach a settlement, the Committee will record its contents in the form of a binding opinion. Opinion Article 11 Among other things the Committee may recommend that: a. the work be handed over to the applicant; b. the work be handed over to an impartial third party on behalf of all those entitled to the

assets of the former owner, if necessary subject to the provisions of an arrangement about the associated costs;

c. the work be handed over for a consideration, to be specified, to be paid by the applicant to the owner;

d. the work be handed over to the applicant subject to further provisions; e. rejection of the request for restitution; f. rejection of the request for restitution, subject to the obligation on the owner to exhibit

the work stating the provenance and the original owner; g. rejection of the request for restitution, subject to the specification of a consideration to be

paid by the owner to the applicant; h. rejection of the request for restitution subject to further provisions.

Article 12 1. The Committee's chairman or vice-chair and the director sign the opinion, which is sent

to the parties with a copy to the Minister. 2. The Committee's Chairman may correct evident errors and/or evident calculation or

writing errors in the opinion, either on his or her own accord or in response to a written request from one of the parties submitted no later than two weeks after the opinion was sent.

3. The parties are informed in writing of any changes or corrections. Article 13 1. The handing over takes place where the work is located, unless the Committee decides

otherwise. 2. Any costs incurred by the parties themselves with regard to the handling of the dispute

and the implementation of the opinion are to be borne by the parties, unless the Committee decides otherwise.

Confidentiality, objection and exemption Article 14 Without prejudice to the provisions in articles 9, 12 and 16, the Committee is obliged to treat as confidential all information relating to the parties of which it has become cognizant during the handling of the dispute.

Appendix 4, p.3 – Regulations on binding opinion procedure 67Appendix 4, p.4 – Regulations on binding opinion procedure

4

Article 15 1. One or both parties may object to a member of the Committee on the basis of facts or

circumstances that might make the formation of an impartial opinion difficult. 2. Having regard to the provisions in Article 4 of the Decree, the chairman decides about

allowing an objection. If the objection concerns the chairman, the vice-chair decides. 3. A member of the Committee may claim exemption in respect of a dispute on the basis of

facts or circumstances as referred to in the first paragraph. The member is obliged to do so if the Committee's chairman is of the opinion that the said facts and circumstances do indeed exist in his or her case.

4. The parties are informed of the decision as referred to in the second paragraph. Publication Article 16 The Committee may publicize its opinion, if necessary by anonymizing personal details, unless one of the parties has compelling reasons why that should not be done.. Liability Article 17 The chairman, vice-chairman, members, director and other Committee staff are not liable for any actions or omissions with regard to a dispute the parties have submitted to the Committee. Reversal Article 18 1. The Dutch courts are exclusively competent to rule on disputes about the binding force

on the parties of a binding opinion issued by the Committee. 2. The Committee’s binding opinion may only be reversed if it has been submitted to the

ordinary court for review within two months after the opinion was sent to the parties. This relates exclusively to review as referred to in Title 15 of Book 7 of the Dutch Civil Code. The opinion becomes irreversible if the decision is not submitted to the ordinary court within the said term.

Unforeseen Article 19 The Committee decides in all cases not provided for in these regulations on the basis of the yardsticks of reasonableness and fairness. Transitional and final provisions Article 20 1. These regulations will be published on the Committee’s website. 2. The regulations will take effect as soon as they have been published. 3. The regulations as sent to the parties will apply to any cases being considered at the

time the regulations take effect. Article 21 These regulations were adopted at the Committee meeting on 3 December 2007 and amended at the meetings on 12 January 2009, 19 September 2011 and 27 January 2014.

68

Index recommendations Restitutions Committee by case number (2002 t/m 2017)

RC case no.

Recommendation regarding: Date recommendation

1.1 Paschal Lamb by J. Beuckelaer 25 March 2002

1.2 The Gutmann collection 25 March 2002

1.3 Venus in Vulcan's Smithy after F. Boucher 22 April 2002

1.4 Portrait of a man with a greyhound by Thomas de Keyser and The sleeping innkeeper after Nicolaas Maes

7 April 2003

1.5 Portrait of a woman with a little dog and View of Binnen-Amstel and the Blauwbrug

23 September 2002

1.6 The Koenigs collection 3 November 2003

1.7 Portrait of Don Luis de Requessens y Zuñiga 28 October 2002

1.8 Still life with kippers, oysters and smokers' accessories by Floris van Schooten 24 April 2003

1.9 Still life with fish on trestle table by Van Beyeren 18 September 2003

1.10 Art dealership J. Stodel 18 April 2005

1.11 The Rhine near Coblenz by Gerard Battem 18 September 2003

1.12 18th century Frankfurts cupboard 18 September 2003

1.13 Herri met de Bles 29 June 2005*

1.14 Three paintings by Troost and Van der Mijn owned abroad 7 February 2005

1.15 Goudstikker 19 December 2005

1.16 Elegant company making music on a terrace by Dirk Hals 15 December 2003

1.17 Fisherman on horseback by Jozef Israëls 22 March 2004

1.18 Four nineteenth-century landscapes 18 May 2004

1.19 Art dealership Vecht 30 March 2005

1.20 Three paintings by Troost and Van der Mijn owned abroad 7 February 2005

1.22 Family portrait by J.M. Quinckhard 6 March 2006

1.24 Venus and Adonis with Amor by J.A. Uytewael 7 September 2005

1.25 Landscape with river and windmills by J.M. Graadt van Roggen 27 June 2005

1.26 Charles, Prince de Rohan Soubise by J.F. Voet and four 18th-century Louis XV armchairs

3 July 2006

1.27 A saucer and the painting Woman and child at a cradle by J.S.H. Kever 12 March 2007

1.28 Poultry by M. d'Hondecoeter and Saint Peter repentant by G. Reni 24 April 2006

1.29 Three men in a boat on turbulent water by A.H. Lier and Mountain landscape with castle by T. le Feubure

12 June 2006

1.30 A ceremonial Kiddush cup 3 April 2006

1.31 Wooded landscape with shepherd and cattle by B.C. Koekkoek 3 July 2006

1.32 Drawing by Hendrick Goltzius on the back of a playing card 15 May 2006

1.33 A girl in a pastoral dress holding a basket by J. van Noordt 12 March 2007

1.34 Still life with fruit and dead fowl by J. Fyt 14 May 2007

1.35 Koenigs III (Kiev claim) 14 April 2014

1.36 Portrait of a man by N. de Largillière 31 July 2006

1.37 Art dealership Mozes Mogrobi 12 February 2007

1.38 Estate of Anne Frank 24 April 2006

1.39 Von Marx-May 25 June 2007

1.41 Wooded landscape with herd near a pond by J.S. van Ruysdael 27 November 2006

1.42 Hakker/Anholt 12 March 2007

1.43 Couple in an Interior after A. van Ostade 14 May 2007

1.44 The circumcision, anonymous, previously attributed to Meester van Kappenburg 18 December 2006

1.46 Kaufmann 18 December 2006

1.47 Four gilded silver chalices and a fiftheenth-century silver crosier 14 May 2007

* no substantive advice

Appendix 5, p.1 – Index recommendations by case number

RC case no.

Recommendation regarding: Date recommendation

1.49 Art dealership Stodel (II) 7 April 2008

1.50 Marcus de Vries 3 December 2007

1.51 Art dealership Mossel 7 January 2008

1.52 An eighteenth-century commode in the style of Louis XVI 12 February 2007

1.53 Van Brabant 4 February 2008

1.54 Unloading the hay wagon by Isaac van Ostade 1 October 2007

1.55 Reclining Nude by J.C.B. Sluijters 11 June 2007

1.56 A bamboo quiver and an oak three-door milk cupboard 12 March 2007

1.57 Van Messel 4 February 2008

1.58 An eighteenth-century Savonnerie carpet 16 April 2007

1.59 Letowski 6 August 2007

1.60 A bronze statue Stonemason by C.E. Meunier 13 April 2011

1.61-A Arnhold (A) 21 November 2011

1.61-B Arnhold (B) 17 December 2012

1.62 Art dealership Staal 7 April 2008

1.63 China 'Famille Rose' plate with flower vase decor 7 January 2008

1.64 Art dealership Rubens 6 May 2008

1.65 Nardus 6 April 2009

1.66 Lachmann 3 March 2008

1.67 Oppenheimer 4 February 2008

1.68 Weijers 1 December 2008

1.69 A tin Maccabee lamp 3 December 2007

1.70 Larsen 1 July 2009

1.71 Behrens 3 July 2008

1.72 Dotsch 3 July 2008

1.73 Von Podwinetz 2 June 2008

1.75 Semmel 1 July 2009

1.76 May 10 November 2008

1.77 Proehl 9 February 2009

1.78 Bachstitz 14 September 2009

1.79 Heppner 9 March 2009

1.80 Von Pannwitz 6 April 2009

1.81 Schönemann 12 October 2009

1.82-A Rosenbaum (A) 31 January 2011

1.82-B Rosenbaum (B) 19 December 2011

1.84 Cassirer 6 April 2009

1.86 Wassermann 1 December 2008

1.87 Art dealership Van Lier 6 April 2009

1.88 Bachstitz (II) 12 January 2009

1.89-A Mautner (A) 12 October 2009

1.89-B Mautner (B) 17 December 2012

1.90-A Art dealership Katz (A) 1 July 2009

1.90-B Art dealership Katz (B) 17 December 2012

1.91 Adelsberger 9 March 2009

1.96 Stern 3 May 2010

1.97 Hollander 12 October 2009

1.98 Art dealership Koch 3 June 2013

69Appendix 5, p.2 – Index recommendations by case number

70

RC case no.

Recommendation regarding: Date recommendation

1.99 Glaser 4 October 2010

1.100 Zadick 3 May 2010

1.101 Wolf 9 November 2009

1.102 Van Aldenburg Bentinck 6 September 2010

1.103 S. van Leeuwen 2 April 2012

1.104 A persian medallion carpet (Wolf/Van den Bergh) 29 March 2010

1.105 Rosenberg 3 May 2010

1.106 De Haan 13 October 2011

1.107 Morpurgo (II) 5 March 2012

1.108 Mathiason 31 January 2011

1.109 Joseph Stodel 7 June 2010

1.110 Von Goldschmidt-Rothschild 6 December 2012

1.111 Mayer 7 March 2011

1.112 May (II) 19 September 2011

1.113 Gutmann (II) 29 June 2010

1.114-A Gutmann (III-A) 6 December 2010

1.114-B A sculpture in Fritz Gutmann's collection (Gutmann III-B) 11 April 2011

1.115-A Gutmann (IV-A) 19 December 2011

1.115-B A Gubbio dish from the Gutmann collection (Gutmann IV-B) 18 June 2012

1.116 Hiegentlich 14 November 2011

1.117 Jonas 19 December 2011

4.118 Weijers (II) 6 September 2010

4.119 De Vries (II) 6 September 2012

1.120 A bronze sculpture Hercules (Oppenheimer II) 7 June 2011

4.123 Koenigs (II) 12 November 2013

4.124 Larsen (II) 22 March 2013

4.125 Van Aldenburg Bentinck II 5 March 2012

1.130 Hamburger (II) 9 December 2013

1.132-A Abraham Katz - Kummerlé (A) 16 October 2017

1.132-B Katz - Kummerlé (B) 18 December 2017

1.133 Tapestry Chastity with two putti (Oppenheimer III) 8 April 2013

1.134 Goudstikker - Kummerlé collection 2 September 2013

1.136 S.B. Levie 27 January 2014

1.137 Hamburger 4 March 2013

4.138 Revised recommendation Bachstitz 1 December 2015

1.139 Stettiner 2 February 2015

4.142 Revised recommendation De Haan 18 May 2015

1.143 Bachstitz (III) 1 December 2015

1.145 Mogrobi (II) 20 July 2015

1.146 Witmond 18 May 2015

1.147 Tapestry 7 March 2016

1.148 Juda Heijman de Vries 2 February 2015

1.149 Children on the Beach by Isaac Israels 20 July 2016

1.150 De Haan (II) 8 November 2016

1.152 Krasicki 20 February 2017

Appendix 5, p.3 – Index recommendations by case number 71

RC case no.

Recommendation regarding: Date recommendation

1.155 Jacobson-Granaat (II) 29 June 2016

1.156 Gosschalk (II) 16 October 2017

1.160 Hamburger (III) 29 June 2016

1.166 Berolzheimer 4 September 2017

1.167 A pastel drawing by Philippus Endlich 13 November 2017

4.168 Katz 15 November 2017

RC case no.

Binding opinion regarding: Date binding opinion

3.45 A Prayer Before Supper by Jan Toorop (Flersheim I) 7 April 2008

3.48 Thames at London by Jan Toorop (Flersheim II) 3 March 2008

3.93 The Marriage of Tobias and Sarah by Jan Steen (Von Saher/The Hague Municipal Council)

6 October 2008

3.95 Road to Calvary, Brunswijker monogrammist 3 May 2010

3.126 The Landing Stage by M.F. van der Hulst (Semmel/Groninger Museum) 25 April 2013

3.127 Stag Hunt in the Dunes by Gerrit Claesz. Bleker (Semmel/Municipality of Haarlem)

25 April 2013

3.128 Christ and the Samaritan Woman at the Well by B. Strozzi (Semmel/De Fundatie)

25 April 2013

3.129 Allegory of autumn by Jacob de Wit (Gutmann/Province of Drenthe) 3 September 2012

3.131 Madonna and Schild with Wild Roses by Jan van Scorel (Semmel/Centraal Museum)

25 April 2013

3.135 Riddle of Nijmegen by Christiaen Coeuershof (Vita Israël/Nijmegen City Council)

20 July 2015

3.140 Two paintings by Ferdinand Bol (Hamburger/municipality of Roosendaal) 13 April 2015

3.144 Portrait of Joan Huydecoper after Bartholomeus van der Helst 30 March 2015

3.153 Decision regarding eleven majolica plates 1 February 2016

Appendix 5, p.4 – Index recommendations by case number

Publication of: The Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War

Visiting address: Lange Voorhout 13

Postal address: P.O. Box 556

2501 CN The Hague, The Netherlands

Telephone: +31 (0)70 376 59 92

E-mail: info@restitutiecommissie.nl

Internet: www.restitutiecommissie.nl/en

Text and production: The office of the Restitutions Committee

Translated by: Lynne & Paul Richards, Seaford, England

Lay-out: Studio Eric Dietz BNO, Leiden

Illustration credits: Cover, fig. 5 Rijksmuseum Amsterdam

Fig. 1, 2, 3 Anne Reitsma

Fig. 4, 6, 7, 11, 12, 13 RCE

Fig. 8 Bonnefantenmuseum, Maastricht

Fig. 9 Mauritshuis, The Hague

Fig. 10 Peter Cox, Het Noordbrabants Museum

Published: July 2018