A pioneer of abstract art in the early 20^th century, Kandinsky is still making the headlines today because of a link between Holocaust-looted art and claims involving his works. The present case, in this regard, is no different. However, an important point of distinction about the present case that is worthy of note and close examination is that the latest decision by the Dutch Restitutions Commission (Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague) is actually an appeal on a previous ruling it had issued back on the 29th of January 2018. It is most unusual indeed for the Restitutions Committee to accept to reassess a case and we consider below the reasons why it decided to do so.

View of Murnau with Church, the contested painting by Kandinsky.

For contextualisation, the original case involved a group of 12 heirs against the Eindhoven City Council, as the legal entity associated with the Van Abbemuseum museum. The artwork in question is a painting by Wassily Kandinsky (1866 – 1944) known as Blick auf Murnau mit Kirche (View of Murnau with Church). Whilst the painting has been at the museum in Eindhoven since 1951, the family’s heirs contested the legality of the original purchase by the museum in that post-war era. At this point it is interesting to note that whilst the museum “does not doubt that the work was purchased in good faith”, it “does not wish to invoke good faith” [Summary, item 1] as legal grounds for protecting its right to the artwork.

In the original case heard by the Restitutions Committee, the Committee had found that the heirs had “insufficient factual grounds to support” [section 6.4] their account of the painting’s provenance and the events surrounding its looting, such that when taking into account a “degree of plausibility” [section 6.5], the Committee was not satisfied that the artwork in question had, in fact, been looted and therefore the heirs’ claim did not prevail.

The change of direction came when, faced with this decision, the heirs engaged in further research and uncovered new evidence, facts and correspondence which had not been considered by the Committee when reaching its original ruling. The heirs believed that these new findings would suffice to significantly alter the official account of the facts in their favour, without room for the doubts initially cast by the Committee. As such, they proceeded to file a civil lawsuit against Eindhoven’s City Council, requesting a reversal of the Committee’s initial binding decision and a reassessment of the case, taking into consideration the new evidence.

However, the Committee did not initially agree to reconsider the case, stating that the heirs’ appeal was “inadmissible on the grounds of the Committee’s regulations applicable at the time because it concerned a dispute in regard to which the Applicants had instituted legal proceedings before a court” [section 1]. In the civil case, nonetheless, the Eindhoven City Council made an executive decision to agree to commit to a reconsideration of the dispute by the Restitutions Committee, which in turn prompted the Committee to accept the reconsideration request and reassess the case. This also meant the parties agreed to extinguish the civil lawsuit and pursue only the Restitutions Committee’s proceedings.

As part of the new evidence, the heirs contended that the art dealer Karl Legat, who is listed on the artwork’s provenance as the seller in the 1950s, could not have actually been in possession of the artwork at the time, but rather that it would have found its way into the museum’s collection by a transaction involving an altogether different dealer (Myrtil Frank), who “during the war (…) was involved in transactions, or attempted transactions, relating to obtaining works owned by the Applicants’ grandmother/great-grandmother” [Summary, item 3]. The smoking gun, in this regard, came from a postcard sent by the art dealer’s (Myrtil’s) wife in 1966, featuring an image of the artwork in question, and on the back, her words “This was our Kandinsky” [Section 4].

In the resulting ruling, the Restitutions Committee ultimately reversed its original decision primarily due to the change in the prevailing account of the facts, concluding that “it is highly plausible that the work (…) came from the collection of Margarethe Stern-Lippmann and that it is sufficiently plausible that she lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime” [Section 4, conclusion]. The significant shift in the fact pattern prompted a reversal of the original ruling to allow the heirs’ claim to prevail and a determination that “the work is to be restituted to the heirs of Margarethe Stern-Lippmann” [Section 4, conclusion]. It is important to note that the museum’s waiver of their right to invoke good faith as a protective element of its purchase was also considered by the Committee in its decision.

Whilst this decision must certainly have been welcomed by the claimants, the case serves as a reminder that even when Holocaust-looted art claims do turn out favourably for the heirs, it is rarely an easy victory. In this case, it took years of research, time, and relentless dedication to file the first claim with the Restitutions Committee, but a civil court case followed by an appeal to the same Committee were then required before a result was reached. Not an easy journey indeed!

An in-depth case note of this claim (to be written by Tabitha Oost) will be published in a forthcoming issue of our journal, Art Antiquity & Law.

Image credit: CC Commons ©G.Lanting