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

In May 2014, I had reported the decision of the Administrative Court of Appeal (Oberverwaltungsgericht) Magdeburg in a dispute about the deletion of a painting in the Lost Art database, once the painting had been found. The Administrative Court of Appeal at the time had held that, once a painting has been found, it must be deleted from the Lost Art database, as otherwise, the continued registration of the artwork would “taint” it and make it unmarketable. In a judgment issued on February 19, 2015, this decision has now been overruled by the Federal Administrative Court (Bundesverwaltungsgericht).

A quick recap of the facts:  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 located 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. The Coordination Office for Lost Cultured Assets (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 second group had not agreed to it being deleted in the database.

The Lost Art database was, at the relevant time, coordinated by the Ministry for Culture of the State of Sachsen-Anhalt (Koordinierungsstelle Magdeburg), hence the jurisdiction of the administrative courts in that state.*

The lower courts had argued that an entry in the Lost Art Database has become obsolete, once the art work has been found. Hence, the owners had to withdraw the registration even if the dispute as to title to the art work was still undecided. The Federal Administrative Court overruled the lower courts. The court based its decision on a wider understanding of the mandate of the database. In its opinion, the entry in the database has not yet served its purpose once the artwork has been found, as long as there is no clarity about the final destiny of the artwork (“Die Suchmeldung ist nicht schon mit dem Auffinden des Gemäldes rechtswidrig geworden, weil noch keine Klarheit über das endgültige Schicksal des Bildes besteht.”). In reaching this conclusion, the court considered the Washington Principles: The Coordination Office has been established to implement these principles, according to which the pre-war owners and their heirs should be encouraged to file their claims for lost art. Subsequently, the Coordination office would continue to assist in finding a fair and equitable solution. Since the mere location of the painting does not result in such a final solution for the artwork, an entry, in the opinion of the Federal Administrative Court, still serves that purpose, and is hence not in violation of the law.

In my earlier post I had said the judgment now overturned made perfect sense to me. The Federal Administrative Court has not persuaded me to change my mind: I am not convinced that the widening of the mandate of the Lost Art database is legally necessary, or that it does the parties a service. First, I believe it burdens the Coordination Office with some unavoidable involvement in title dispute, which it cannot decide. Secondly, the continued entry in the database creates a de facto restraining order for the artwork, but in a somewhat arbitrary Fashion and not based on an independent review of the legal situation. The parties involved in the title dispute, however, are free to approach the civil courts to obtain such a restraining or protective order if they can show a good case. Therefore, competing heirs do not go unprotected, even if the entry is removed from the Lost Art database after the art work has been found. The dispute is then in the forum where it belongs, namely in the civil courts.

* The Lost Art Database is now part of the German Centre for Lost Cultural Property (Deutsches Zentrum für Kulturgutverluste), an independent foundation established, in the wake of the Gurlitt affair, as of January 1, 2015. All the Federal Administrative Court had to say in this context was that it did not change the outcome that the foundation is now administering the database.

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