Art Law: German Court Rules on Deletion of Entries in the Lost Art Database

This judgment, by the Administrative Court of Appeal (Oberverwaltungs-gericht) in Magdeburg, State of Sachsen-Anhalt, is unrelated to the Gurlitt matter, courtesy of which the Lost Art database has gained unprecedented name recognition worldwide. The court had to rule on the issue whether a work of art has to be removed from the database, once it has been found, even if the title to the art work remains disputed. 

The facts of the case: The Lost Art database is coordinated by the Ministry for Culture of the State of Sachsen-Anhalt (Koordinierungsstelle Magdeburg), hence the jurisdiction of the administrative courts in that state. In 2005, the heirs of a Jewish art dealer had registered a search entry in the Lost Art database for a painting known as “Portrait of an Old Man in Traditional Oriental Costume” (Bildnis eines alten Mannes in orientalischer Tracht). It was at the time believed to be a Rembrandt. Today, it is attributed to Isaac Jouderville. The story behind their request to enter the painting in the database was as follows: Their ancestor fled Berlin in April 1933 to escape arrest by the Gestapo. The art work left behind in his gallery was sold, at an undervalue, in Nazi Germany in 1935. Since then, it was unknown were “The “Portrait of an Old Man” was and who had possession.

In 2009, the painting was located in South Africa. The heirs subsequently applied to the Lost Art database to delete their search entry. Koordinierungsstelle Magdeburg did not comply with that request, on the basis that in 2009, competing claims to the painting had been made by another group of heirs, namely of the shareholders of a bank which had acquired the painting in 1935. This group had not agreed to its being deleted in the database.

Both the Administrative Court and the Administrative Court of Appeal (Verwaltungsgericht und Oberverwaltungsgericht Magdeburg) held in favour of the applications and ordered that Lost Art database delete the search entry related to the Portrait of an Old Man in Traditional Oriental Costume. The courts argued that once the painting had been found and its whereabouts has been established, the purpose of the Lost Art database has been fulfilled. It was beyond the scope of the database to get involved with sorting out the ownership issues. Leaving the painting in the register, on the other hand, would severely diminished the commercial value of the painting, as reputable auction houses and art dealers would abstain from dealing in the painting, as long as it remained registered in the database.

The judgment makes perfect sense to me. The Lost Art database has enough issues to deal with within its mandate, so I fail to see why they would want to get involved in the title dispute in the fist place. In addition, by leaving the entry in the database, they would create a de facto restraining order on the art work, and they would do so in a somewhat arbitrary fashion. But as the civil courts are perfectly capable of issuing such restraining or protective orders if a good cause can be shown, the competing heirs to not go unprotected, if the entry is removed.

*****

The judgment apparently is not available in a free database: Oberverwaltungsgericht Sachsen-Anhalt, Urteil vom 23. Oktober 2013 – 3 L 84/12. The first instance citation is Verwaltungsgericht Magdeburg,   Urteil vom 17. Januar 2012 – 7 A 326/10 MD.

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