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Germany Moves to Dismiss Claims for Guelph Treasure in DC Lawsuit

November 22, 2015. The Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (Prussian Cultural Heritage Foundation or “SPK”) moved a US court to dismiss claims for restitution by the heirs of Jewish art dealers who sold a magnificent collection of church artifacts under duress in 1935. The collection is known both as the “Guelph Treasure” and the “Welfenschatz.” (See US Heirs Sue Germany Over Guelph Treasure, February 19, 2015) The sale was arranged by Nazi leader Hermann Göering, who presented the collection to Adolph Hitler soon after. Germany has averred that what appears to be a bargain sale was not a forced sale.

Perhaps the most alarming argument raised by Germany to dismiss the heirs’ claims is that their claim is invalid because the forced sale “predated the Holocaust by several years.”

The attorney for plaintiffs Alan Philipp and Gerald Stiebel, Nicholas O’Donnell, stated that he had expected a Motion to Dismiss to be filed (and rejected by the US court), he expressed surprise at the positions taken by the German government. According to O’Donnell, writing in the online Art Law Report:

“The motion does not merely argue that the transaction at issue was ”fair” on its own terms, a tactic that the SPK has employed before.  Now, Germany and the SPK have made a claim so shocking that it speaks for itself: ‘the alleged taking of the Welfenschatz in 1935 predated the Holocaust by several years.’ … Then further, ‘the German government of Prussia indisputably spent money to obtain the collection… The Welfenschatz was not then sold again for profit, but has remained in the possession of German entities and on display for the general public’s education and enjoyment to this day.”

O’Donnell points out that Germany’s position that the Nazi terror did not begin until years after 1935 is indefensible, given the fact that Hitler took power in Germany in 1933, that Jewish persecution began well before the war, and that the Nuremberg Race Laws of 1935 were implemented in Frankfurt long before they became official.

Stewart Ain, writing in The Jewish Week on November 3, 2015, quoted the response of Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center in Los Angeles, who called the German government’s argument “simply disgusting and dangerous.”

“I understand the tactic of what they are trying to do — saying that the sale was normal,” he told The Jewish Week. “But for a Jew in Germany in 1935 life was anything but normal. … The fact that it was sold in 1935 — you would have to prove to me there was no linkage… At a time when there is so much Holocaust revision, one of the most reliable allies we have had about the historic truth was Germany. It is beyond the pale that such an argument would actually be put down on paper in the name of Germany. … It should be stricken from the record.”

Further, in its motion to dismiss, Germany argued that the heirs claims are barred by the statute of limitations, despite Germany having signed the Washington Principles on Nazi-Looted Art, which commit the signatories to seek resolution of claims on the merits, not on technical defenses. In a press release accompanying the motion, Germany and the SPK state that they will not assert a statute of limitations defense if the Guelph Treasure heirs bring their claims to a German Court rather than an American one.

Germany’s motion asserts that a 2014 German Advisory Commission mediation “adjudicated” the property rights, denying the claim, although German courts have found in the past that the Advisory Commission does not have judicial authority. Germany’s motion to dismiss also states that neither Gerald Stiebel nor Alan Philipp are proper claimants; Philipp is the grandson of one of the Jewish dealers in the consortium that sold the collection and Stiebel is the nephew of one of the Jewish dealers and grand-nephew to another.

See “Defendants’ Motion to Dismiss and Incorporated Memorandum of Law,” 10-19-15, filed by the Federal Republic of Germany and Stiftung Preussischer Kulturbesitz.

512px-Looted_Art_-_German_loot_stored_at_Schlosskirche_Ellingen_-_Ellingen_(Bavaria_-_Germany)Images: Dome reliquary from the Welfenschatz, end of 12th century (Kunstgewerbemuseum Berlin).

GI guarding looted art stored at Schlosskirche Ellinged, Bavaria (April 1945), By Department of Defense. Department of the Army. Office of the Chief Signal Officer (http://research.archives.gov/description/5757187) [Public domain], via Wikimedia Commons.

Gurlitt Will Leaves Entire Collection to Museum of Fine Arts in Berne, Switzerland

German art hoarder Cornelius Gurlitt, who died on May 6, 2014, left two ‘complementary’ wills bequeathing his entire estate to the Kunstmuseum Bern in Switzerland. The estate includes 1,280 artworks, including important 20th century paintings and drawings that were found during an investigation by German tax authorities in Gurlitt’s Munich apartment in 2012, and another cache of 238 artworks later discovered in Gurlitt’s house in Salzburg, Austria. Among the artists represented in the Gurlitt hoard are Monet, Corot, Renoir, Manet, Courbet, Pissaro, Gauguin, Toulouse-Lautrec, Liebermann, Cezanne and Nolde.

Gurlitt was unmarried and childless, but claims may be made by more distant heirs; Ekkeheart Gurlitt, a grand nephew of Gurlitt’s living in Spain has said he may challenge the distribution under the will. Numerous claims could also be made by heirs to Jewish victims of World War II from who art was appropriated with the assistance of Gurlitt’s father, a prominent art dealer for the Nazis. It is not known why the small Swiss museum was chosen; Gurlitt was said to have been angered by the German authorities’ investigation. If the Bern museum accepts the bequest, it may have to deal with what could be hundreds of future legal claims, although that task was apparently taken on in April by German authorities, in an agreement with Bavarian Justice Ministry, the federal culture minister’s office and Gurlitt’s representatives. Taskforce spokesman Matthias Henkel stated that, “We feel ourselves duty bound to stick to the agreement we reached with Mr. Gurlitt.”

April 1, 2014

In late March, a lawyer for Cornelius Gurlitt, the son of a Nazi-era art dealer, announced that Gurlitt has told his legal team to return the artworks from his Salzburg, Austria residence to Jewish owners from whom the works were taken – or to their descendants. The first to be returned will be a portrait of a seated woman by Matisse. This appears to be a significant change from his prior position of returns.  Gurlitt’s website as of today continues to state that any decision to return art, “applies to only very few works in the collection from the “Schwabing art discovery,” [at the German apartment location] according to current information at most 3% of the 1,280 confiscated works.” The deal made with German authorities agreed that the artworks would be evaluated by a taskforce of 15 experts within a year.

In 2013, German authorities revealed that they had discovered approximately 1400 artworks acquired by Gurlitt’s father during WW2 as part of the Nazi program to cleanse German culture of “degenerate” art. Hildebrandt Gurlitt also acted as a art buyer for Nazi leaders. The artworks in the Munich were seized in the context of a tax investigation and have been published online.

In February, Gurlitt’s legal advisers revealed that Cornelius Gurlitt’s second home in Salzburg contained another 60 works. They have now revised that number upwards to 238 works, including 39 oil paintings and watercolors. These additional artworks were stored in rooms unreachable in February because the house was full of clutter. Gurlitt was a hoarder and major artworks are said to have been jammed together with expired food and other trash.

Objections have been voiced that an independent entity not associated with Gurlitt’s team should review and decide on claims by heirs. The future of the works stored in Germany is not known as a 30-year statute of limitations under German law may apply to keep them from being returned to heirs of Holocaust victims. Gurlitt also had many works originally in museums.  Cornelius Gurlitt inherited the art from his father, Hildebrandt Gurlitt, who had claimed falsely that his well-known collection of artworks had been destroyed during the 1945 fire-bombing of Dresden.

Second Gurlitt Cache Discovered in Austria

Another 60 artworks, primarily paintings in oils, and including works by Claude Monet, Eduard Manet, Pierre-Auguste Renoir, and Pablo Picasso were discovered in the Salzburg, Austria home of Cornelius Gurlitt. Gurlitt is the son of Nazi-era art dealer Hildebrand Gurlitt, a specialist in modernist works who was hired to collect works for the Hitler regime. The Jewish Claims Conference has sought publication of all the works held by Gurlitt in order to to facilitate identification by possible claimants. Gurlitt’s spokesperson said that the works would not be published, since they were a private collection and properly acquired. Gurlitt’s lawyers have created a website in English and German making Gurlitt’s claim for lawful ownership of the works and providing legal documents.

Last year, the German government revealed that some 1400 works, many of them graphic works on paper, had been found in Gurlitt’s Munich apartment as part of a 2012 tax investigation. After international criticism for its failure to announce the discovery earlier, Germany’ s government pledged to work with Jewish organizations to investigate how the works were acquired. The works held by Gurlitt  in Munich appear divisible into three groups: 380 artworks are thought to have been taken from German museums in a cleansing of “degenerate art,”  380 works classified as stolen or extorted from previous owners, and 310 which appear to have been purchase either before or after WWII, as part of Hildebrand Gurlitt’s ordinary work as an art dealer. The work of German government provenance researchers may be found at lostart.de.

Hearing on Ownership of Guelph Treasure at Limbach Commission

A hearing will take place soon on the ownership of a $200 million Medieval collection of artifacts known as the Welfenschatz, or Guelph treasure. The dispute is between the heirs of four German Jewish art dealers and the SPK, the Prussian Cultural Heritage Foundation, which overseas the museums in Berlin. The controversy has added focus to allegations that German museums have failed to keep their pledge to be more transparent in restituting art taken from Jews during the Nazi era. The Washington Principles on Holocaust restitution signed by Germany require a current owner to prove provenance of claimed artworks. Both the U.S. State Department and the Israeli Cultural Ministry have expressed interest in the matter, noting problems in the reviewing panel’s operation.

The case should also bring attention to the importance of creating digital databases of art to facilitate identification, claims, and enabling quiet title for artworks; Israeli officials have pointed to German museums’ refusal to use digital technology to put collections online to facilitate identification of art lost during the Holocaust.

The matter is before Germany’s “Advisory Commission in connection with the return of Nazi-confiscated art, especially Jewish property.” The group is generally referred to as the “Limbach Commission” after its head judge, Jutta Limbach.  This advisory board for Holocaust-related claims has limited powers compared to its Austrian counterpart; museums cannot be compelled to come before the commission. Its recommendations are sought when negotiations between museums and claimants are at an impasse.

The collection of medieval reliquaries, altars, and crucifixes was kept for centuries in Prussia’s Brunswick Cathedral. In the 17th century, approximately 80 items were removed from the cathedral by John Frederick, Duke of Brunswick-Luneburg.

In 1929, the Duke’s descendant Ernest Augustus, head of the House of Hanover, needed cash. He sold the collection, also known as the “Welfenschatz,” to German Jewish art dealers Zacharias Max Hackenbroch, Isaac Rosenbaum, Julius Falk Goldschmidt. The art dealers took parts of the collection to the United States, where some were exhibited in Cleveland. In the first few years, the dealers sold about half the collection.

Prussian premier Hermann Goering supervised the purchase of 42 works from the dealers in 1935 for between 4.1-4.25 million Reichsmarks. ( A major auction house has estimated their worth at the time at 10-11 million Reichsmarks.) Goering then issued a press release that he would soon present Adolf Hitler with a “surprise gift” –the medieval treasure – worth $2.5 million according to a 1935 article in the Baltimore Sun.

During the war, the collections appears to have been transferred to the salt mines of Altaussee in Austria. [See Art News, The True Monuments Men of Williams College, December 3, 2013.] After the war, the Allies turned the collection over to the German government. It has been on exhibit at the Kunstgewerbemuseum (Museum of Decorative Arts) of the Staatliche Museen zu Berlin (National Museums in Berlin) since the 1950s.

Sales of artworks by Jews after 1933 are deemed made under duress under German law, but the thirty year statute of limitations on this sale has long since expired. German museums are the first point of contact for restitution claims, and while some claims have been negotiated and settled, others are simply denied. Recourse to the panel of judges on the Limbach Committee is uncertain; the panel follows no specific standards or procedural rules, and in the seven cases on which it has ruled in the past, observers find its decisions unpredictable.

Hermann Parzinger, president of the Prussian Cultural Heritage Foundation, which now manages the collection, has argued that the sale was a consensual transaction at a fair price given the depressed art market in 1935. At the time of the sale, the artworks were in Amsterdam, not in Germany. The families have countered that the Jewish art dealers who owned the works had remained in Germany and were in fear for their and their families lives. It was not possible for German Jews to negotiate a fair business deal with Hermann Goering in 1935. Mel Urbach, an attorney representing the families, has stated that “the prominent collection was a curse” drawing attention to the families and that the dealers negotiated to keep the Nazis at bay.

Guelph case is the first to go before the Linbach Commission after the November 2013 revelation that German officials had known for several years of the 1,400 artworks found in the apartment of Cornelius Gurlitt, son an art dealer for Hitler, before making the cache public. The Guelph case could influence not only the Gurlitt case but also all future art restitution cases brought before the commission and both the U.S. and Israeli governments say they see it as a test of Germany’s art-restitution system. U.S. officials are planning a second meeting with German counterparts in Berlin for mid-February in which the matter may be raised.

Image: By unknown, Braunschweig workshop (?) (self-made) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons,

 

The True Monuments Men of Williams College

Among the 350 men and women of the Monuments, Fine Arts and Archives section (MFAA) of the Allied forces in WW2 – made famous in the recent film, Monuments Men – were two young graduates from Williams College whose writings and later interviews were incorporated into the 2006 book of the same name by Robert M. Edsel. A recent article in Williams Magazine gives the true history of these real-life Monuments Men, who spent the post-war years rescuing Nazi-looted art, then returned to Williams to build its Art Department from 13 to 250 students and teach an extraordinary generation of scholars who came to be known as the ‘Williams Mafia,’ many of whom became leading U.S. museum directors and notable figures in the arts.

Charles Parkhurst left a post-graduate job at the National Gallery of Art to enlist as a gunnery officer in 1941, then transferred to the MFAA after the Allied victory. Parkhurst spent months directing the transportation of 49 freight cars of art from the key Nazi repository at Neuschwanstein Castle. He describes an amazing find:

“I was heading for a remote castle in some woods, but I couldn’t get to it with the Jeep because it was perched high on a rock. So I got out and started walking through the forest. Soon I spotted some woodsmen who looked as though they were taking a break, standing around in a group talking. As I got nearer, it occurred to me they were standing quite close together and looked rather dejected … and they weren’t moving much. And if they were talking, they certainly were being quiet about it. Then in a flash I realized I had stumbled on The Burghers of Calais, Rodin’s famous bronze grouping of six men about to be martyred, just sitting in the woods!” — Charles Parkhurst

S. Lane Faison Jr. had been teaching soldiers to use radar to track enemy planes when he was sent a notice that he had been transferred to a special OSS Art Looting Investigation unit. He soon found himself working in Austria at the salt mines at Altaussee, where artworks were stacked and piled up by the thousands in caverns deep in the mountains. His unit pieced together the picture of the German art looting operation from research into the Nazi’s detailed records and interrogations of officers involved in the looting activities of the Einstazstab Rosenberg. Faison researched and wrote the official history of Hitler’s art collecting and the plans for the Führermuseum.

When the American government attempted to transfer German-owned works to the National Gallery in Washington, D.C., Parkhurst and others refused an order to pack and send the important artworks in their custody to the United States. Parkhurst was a signatory to the Wiesbaden Manifesto in November 1945, which sparked a public debate about the propriety of seizing artworks in war. Although some artworks were eventually sent to the US, they were returned to German after a series of exhibitions ending in 1949.

$1.3 Billion Secret Nazi Period Art Cache Seized

On November 4, the German magazine Focus broke news of the discovery of an estimated $1.3 billion worth of Nazi-looted and appropriated art that has been hidden since the war in a Munich apartment. According to Focus, Cornelius Gurlitt, the eighty-year old son and heir of art dealer Hildebrand Gurlitt, lived as a recluse and hoarded the artworks, refusing to allow relatives or anyone else into the apartment. He never worked, but lived by selling an artwork from time to time. The collection of 1406 artworks includes paintings, lithographs, drawings and prints by Pablo Picasso, Marc Chagall, Henri Matisse, Emil Nolde, Paul Klee, Franz Marc, Max Beckmann, Paul Klee, Oskar Kokoschka, Ernst Ludwig Kirchner, Max Liebermann, Albrecht Dürer and others.

The artworks were discovered in March 2012 by authorities investigating Gurlitt on suspicion of tax evasion. Officials kept the find secret for a year and a half. Pressure is now being brought on the German government by the families of Jewish art collectors and dealers whose art was seized during the Holocaust and may have claims against the collection. German authorities have promised to soon provide a list of the seized artworks. Focus magazine has stated that there are international warrants out for at least 200 artworks, based primarily on claims of Jewish heirs. German authorities announced that they have collected an additional 22 paintings from Cornelius Gurlitt’s brother in law Nikolaus Fraessle, who contacted police after the story broke.

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A 1930 painting by Max Beckmann from the Gurlitt cache was sent for auction in Cologne in 2011 and sold for $1.1 million. Before the sale, the painting was identified as belonging to a pre-war collector and  the proceeds were divided between Gurlitt and the heirs.

Gurlitt’s father Hildebrand Gurlitt was an art dealer of part-Jewish origin with progressive tastes who later collaborated with the Nazis and exploited the official rejection of modern art. He began his art career as director of the König Albert Museum in Zwickau, Germany, where he showed contemporary works and promoted the cause of Expressionism. He lost this and subsequent posts because of his interest in the avant garde, but by 1935 established himself as a successful dealer in modern art.

After the famous Munich exhibition “Entartete Kunst” “Degenerate Art” in 1937, Hildebrand Gurlitt was one of four German art dealers familiar with modern art who were licensed to sell the exhibited works abroad on consignment from the German government. Some sources have stated that between 200-300 works in the Gurlitt collection were actually in the “Entartete Kunst” exhibition. In 1940, Hildebrand Gurlitt is said to have purchased several thousand graphic works with funds earned through sales on behalf of the Nazi regime. The German tabloid Bild am Sonntag published a list of 200 paintings including works by Emil Nolde, Otto Dix, August Macke, Ernst Ludwig Kirchner and Karl Schmidt-Rottluff on its website, saying that Hildebrand Gurlitt bought them for a total of 4,000 Swiss francs, according to a contract dated May 22, 1940.

 

In 1943, Gurlitt was hired by Goebbels to build Hitler’s art collection. He was given special privileges and allowed to source artworks from across Europe, including from Nazi-occupied regions. He purchased paintings, rugs, drawings, miniatures, portraits, and sculptures for the planned “Führer Museum” in Linz, Austria.

WPTV-art-stolen-by-Nazis_20131104133847_320_240Part of the Gurlitt collection was once in Allied hands. In 1950, troops from the U.S. Holocaust Art Restitution Project confiscated and examined a part of Hildebrand Gurlitt’s collection, but determined that he had title and later returned the works to him.

German authorities, who had hired a single art historian to do the research on the provenance of the artworks, now say that they will move expeditiously to identify prior history and ownership of the works. They have stated that they have not determined whether a crime has been committed. German law creates no obligation to restitute the works to prior owners unless they were loaned to museums by private individuals or had foreign owners. The terms of the Washington Conference Principles on Nazi-Confiscated Art (1998) are non-binding. Despite the likelihood that many works were sold under duress, Cornelius Gurlitt has a legal claim to many of them.