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Why the Germans Haven’t Returned $1 Billion Worth of Nazi-Looted Paintings

Munich authorities seem more interested in protecting an art dealer than in returning stolen works to their rightful heirs

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A self portrait by Otto Dix is seen on screen at a press conference on Nov. 5, 2013, in Augsburg, Germany, on the discovery of nearly 1,500 paintings, including works by Picasso and Matisse, looted by the Nazis. (Johannes Simon/Getty Images)
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The discovery of the largest cache of looted Nazi art since the end of World War II, with an estimated worth of well over a billion dollars, in a shabby Munich apartment belonging to an 80-year-old art dealer named Cornelius Gurlitt was an obvious revelation. The discovery that local authorities had chosen to keep that information to themselves for nearly two years was a disturbing shock. In the opinion of many scholars and legal experts, it calls into question Germany’s commitment to the restoration of looted art to its rightful owners.

On Monday, after a mounting uproar, a list of 25 artworks—three paintings and 22 drawings—was released on the Lost Art Internet Database, the official German governmental website for looted art. But the overwhelming majority of works in Gurlitt’s collection remain unknown, an enormous black hole for potential claimants, some number of whom have surely died during the delay. “The amount of information that’s available is just really astonishingly small,” said Frank Lord, a lawyer at Herrick, Feinstein with experience in looted-art cases. An initial accounting offered on the site indicated that less than half of Gurlitt’s artworks were suspected to be looted from Jewish collectors. “If they have a sense that 590 works are from Jewish ownership, then they need to be published now,” said Anne Webber, co-chair of the Commission for Looted Art in Europe.

According to reports, the local authorities in Augsburg stumbled across Gurlitt’s collection in early 2012, after the 80-year-old art dealer flashed an envelope crammed with 500-euro notes on a train, raising suspicions and prompting an investigation into his finances. A raid on Gurlitt’s apartment uncovered 1,400 works of art—paintings and drawings—many of which were suspected to have been looted from Jewish owners during the Nazi era. “Something like this is in and of itself extraordinary,” Lord said. “There’s really nothing like it. It’s sort of unprecedented.” But no word of the Gurlitt cache emerged publicly until a report early this month in the German magazine Focus.

Gurlitt’s father Hildebrand had been a prominent art dealer in the 1930s and ’40s and had been known to be involved in forced sales by Jewish art dealers and collectors. After the war, Hildebrand Gurlitt testified that the overwhelming majority of his collection had been destroyed during the Allied bombing of Dresden. The younger Gurlitt had occasionally sold lesser-known artworks through auction houses willing to turn a blind eye to issues of murky provenance but had otherwise passed below the art world’s radar. The delay between the discovery of Gurlitt’s cache and its coming to the attention of the public, as well as the seeming intransigence of the German authorities, brought up inevitable questions about Germany’s mixed record regarding looted art. Was the German government hoping to run out the clock on potential claimants?

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According to Webber, the German authorities in another looted-art case had suggested they would need 18 months to research the provenance of each individual work in doubt. “I think that, if the past is prologue, the tendencies at work here are much more bureaucratic than anything else,” said Gary Osen, managing partner of Osen LLC, who has successfully represented claimants in the past. “It’s not so much a function of trying to run the clock out as having a complete lack of consideration or any thought process that they have a moral obligation and a sense of responsibility for returning this kind of property. They just don’t see it that way.” Osen believes that local authorities may have hoped to quietly repatriate these artworks into the collections of Bavarian museums and that only the resulting controversy has caused them to rethink their plans for the Gurlitt collection. “I don’t think that was the first thing, or the second thing, that entered their minds when they started with this.”

The uncovering of the Gurlitt haul prompts a multitude of questions about the legal options open to potential claimants—and most of those questions cannot be answered until the German authorities release a full list of the works in the collection. Some experts raised concerns that the 30-year statute of limitations on recovering stolen property might limit claims by the descendants of Nazi-era owners. Most, though, were in agreement that the statute of limitations was unlikely to play a significant role in the resolution of any such claims.

Art Loss Register Chairman Julian Radcliffe suggests that a deal is likely imminent whereby Gurlitt gives up all rights to the disputed artworks in exchange for leniency on the back taxes on his collection. “If the German authorities do what I suggest,” Radcliffe said, “then the 30-year limitation would not be relevant.” If Gurlitt were deemed to have been in possession of stolen property and taken efforts to conceal it, the statute of limitations would similarly not take effect. “There’s also a lot of misinformation in the media about this issue because, frankly, most of the people, including the people speaking from the government, haven’t really thought this through very carefully,” Osen said.

Germany’s patchwork of laws regarding restitution of stolen art would be more likely to hinder potential claimants. After the 1998 Washington Conference on Holocaust-Era Assets, Germany indicated it would streamline the process of sorting, assessing, and resolving all such claims, but such efforts have been halting at best. As a result, rather than a smooth transition of stolen artworks back to their rightful owners, each painting in Gurlitt’s stash may face a different fate, depending on the technical details of its provenance—who had originally owned it, the location it had been taken from, whether a private collector or public institution had originally been in possession of it, and even whether or not a given artwork had ever been hidden in what is now the former East Germany.

‘It is not sufficient for Germany to say, “Well, the law prevents us from doing this.” Germany must ensure that the law enables justice to be done, even at this late hour.’

“One would have hoped that in the years since 1998, Germany would have established a process to sort these kinds of issues out, and even to modify their legal framework to deal with rather unusual, but not unforeseeable, kinds of circumstances,” Osen said. “Unfortunately, they’ve really dropped the ball on that entirely. And so the way that the German bureaucracy thinks of this is really in the narrowest possible legal terms, following civil or administrative law to its random but inexorable conclusion, depending on what serves their immediate interest.” Currently, institutions are left to adjudicate their own claims, meaning that a claim against a looted artwork is ultimately left to the determination of the museum itself. Instead of a unified German policy for handling looted-art claims, such matters are often left to regional authorities, who may or may not be aware of the highly sensitive moral and political dimensions of their work.

“The German state authorities who were running this investigation probably did not appreciate the international and German national interest in the Washington agreement signed by Germany, which means that they had the duty to publish these items,” Radcliffe said. “The local government thought that doing so would breach their legal responsibilities to the person they’re investigating, i.e., to Gurlitt. I think that’s why the federal government has now stepped in.”

Advocates for those seeking restitution were adamant that change in the German government’s handling of such cases was long overdue. “Germany has dealt very well with most of the Nazi past, but art is really an Achilles’ heel,” said Webber. “It has not been dealt with. And it needs to be dealt with urgently, on every level. Works in public collections, works in private collections, works that the auction houses and dealers are returning to the consigners, which they are legally allowed to do, if the consigner doesn’t wish to return them, [or] to come to any settlement with the families. If the law needs to be changed, then the law must be changed. It is not sufficient for Germany to say, ‘Well, the law prevents us from doing this.’ Germany must ensure that the law enables justice to be done, even at this late hour.”

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The halting German effort can be compared with the Dutch Restitutions Committee, which works in tandem with claimants to research claims and offers suggestions about how best to pursue them. The German authorities have reluctantly opened the door to hearing from claimants, where other countries have sought out and contacted families they believed to have potential claims on looted artworks. A clearer framework for the processing of claims would also assist in streamlining the process for claimants. Currently, claimants do not even have the name of a person to contact with their claim. The initial list of works on lostart.de includes an address in Augsburg, and a fax number, but no official to reach out to.

According to Webber, the government official in charge of claims has refused to publish a complete list because doing so would generate a multitude of claims—which would seem to be the point of such an effort. “Their idea originally was that people like ourselves would write in and say, ‘We’re looking for the following pictures. Have you got them?’ ” Radcliffe said. “Well, we’ve got something like 50,000 pictures on our database for the Holocaust. And that would completely overwhelm them. So, it was a really stupid action. I could see the merits of keeping the existence of the cache of pictures secret while they investigated previous sales, other contacts, Gurlitt himself, but not for 18 months. Six months might have been reasonable.”

Experts’ recommendations for how to improve the faltering German response to the discovery of the Gurlitt collection primarily revolved around issues of transparency and openness. The first step is a complete accounting of the collection. “What we really need is just some information on what the pictures are—photographs, descriptions, sizes, attributions, so that we can go through and see whether it matches anything on this catalog of missing works that we have,” Lord said.

Second is a willingness to open up the process of researching the provenance of these works—preferably one that embraces the work of outside scholars. “For somebody who works with claimants that have done a lot of research already, we’re in a position to tell the German government a lot about a picture, potentially, if it’s looted from one of our clients’ collections, because there’s been a lot of work done to establish what was there and identify it,” Lord said. “Something that we frequently do is provide a sort of dossier of our information on a claim. That would be much faster, I imagine, than having the German officials recreate the wheel and start over and have their provenance researchers do all the work that we’ve already done.”

Radcliffe said he had offered access to the Art Loss Register’s database, and the services of a German-speaking staffer, from the moment the Gurlitt collection was revealed. “Another X number of items which are probably on our database would have been claimed, and the families notified before the whole list was published later. I think that if they’d done this earlier, that would have been in everybody’s interest.”

Webber also suggested the necessity of issuing all such updates in English, not just German. “Because of the history of the families, most of the people to whom this information is of crucial relevance don’t speak German.” More research would be necessary, as well, to determine whether Gurlitt had sold any prior works at auction beyond the pieces already known about, donated works to museums, or given paintings to relatives or friends. She also would like to see the release of documentation related to the Gurlitt collection, including the account books belonging to the elder Gurlitt, said to have been discovered in Cornelius Gurlitt’s apartment, for outside researchers to study.

The German government’s arrival on the scene may not help much, either—unless the rest of the world speaks up. “In my experience, the German federal government lacks those same sensitivities until and unless they’re hit with a firestorm of criticism,” Osen said. “They are remarkably obtuse about these things in their own right, except when the spokesperson for the chancellor is peppered with questions or it leads on the front page of the newspaper. Other than that, their capacity to see the moral and cultural implications of these sorts of things is almost nonexistent.”

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Why the Germans Haven’t Returned $1 Billion Worth of Nazi-Looted Paintings

Munich authorities seem more interested in protecting an art dealer than in returning stolen works to their rightful heirs