Art Law: Limbach Commission Advises against Restitution of Adolf von Menzel’s “Pariser Wochentag”

On February 3, 2015, the Advisory Commission on the Return of Cultural Property (Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter) or Limbach Commission for short, published its recommendation regarding a claim for restitution of the Behrens family. The Behrens family requested that a painting by Adolph von Menzel, “Pariser Wochentag”, which is now owned by the Düsseldorf Museum Kunstpalast, should be returned to them. The Limbach Commission finds that the sale of the painting in 1935 to the Düsseldorf municipal museum (Städtische Kunstsammlung Düsseldorf) for 33,000 Reichsmark was not a forced sale or a sale at an undervalue which resulted from Nazi persecution of the Behrens family.

The Behrens family were the owners of L. Behrens & Söhne, a private bank in Hamburg, led at the time by George E. Behrens. His grandfather, Eduard Ludwig Behrens, had bought the painting in or around 1886.

The Limbach Commission explicitly acknowledges that George E. Behrens, having been classified as a “non-Aryan”, was persecuted by Nazi Germany. He was detained in a concentration camp in November 1938 and later had to emigrate. However, with respect to the 1935 transaction regarding the painting, the Limbach Commission was not convinced that that sale was at an undervalue and that George Behrens was forced to sell it as a result of the economic distress that the family’s banking operations had suffered at the time.

The heirs had argued that as of March 1933, the bank, now being classified as a Jewish bank, suffered a decline in revenue. Between 1933 and 1935, George Behrens lost eleven appointments as a board director, which is also indicative of the professional and business consequences the increasing discrimination of Jews in the run-up to the Nuremberg Laws had on his business. The heirs also relied on earlier valuations of the painting, which were substantiated higher, of up to 50,000 Reichsmark. They also point out that the family was forced to sell the family estate in Hamburg in 1934. Therefore, they believed that the painting was sold because Behrens was in financial distress.

Düsseldorf, on the other hand, argued that the purchase price was adequate and indeed the highest price for any comparable Menzel painting actually paid between 1928 and 1935. Also, Jewish banks in general, and L. Behrens & Söhne in particular, enjoyed somewhat of boom in the early Nazi period until 1935 – a fact that apparently was supported by a post-war publication, “175 Years of L. Behrens & Söhne”.

The Commission followed Düsseldorf’s line of argument. It held that while the Behrens Family suffered from persecution later on, the 1935 transaction was a legitimate one. With the Commission’s recommendation as the only document that I have seen on the case, I cannot really come to an assessment of my own. However, the case appears to have a striking resemblance to the Guelph Treasure (Welfenschatz) case, in that the key arguments centre around the extent to which sales by Jewish owners in 1935 were voluntary and at a fair market value. In the Welfenschatz case, the Limbach Comission had in March 2014 recommended that the art works should not be restituted.

Nick O’Donnell, who last week filed civil action against the Federal Republic of Germany and Stiftung Preussischer Kulturbesitz in the US District Court in Washington, DC seeking the restitution of the Guelph Treasure, has described the circumstances of what his clients believe was a forced sale in his blog, Art Law Report.  It remains to be seen whether the Behrens heirs accept the recommendation.

On a separate note, the Limbach Commission is not very transparent in disclosing who actually participated in the deliberations that lead to the specific recommendation. At the end of the published recommendation, all it does is list some of the members of the Limbach Commission, namely former Federal President Richard von Weizsäcker – who passed away on January 31, 2015 and most likely did take an active role in this case, former president of the German Parliament (Deutscher Bundestag) Rita Süssmuth, the former president of the Federal Constitutional Court (Bundesverfassungsgericht) Jutta Limbach as well as Hans Otto Bräutigam, Dietmar von der Pfordten, Reinhard Rürup, Wolf Tegethoff and Ursula Wolf. In my view, it would help the credibility of the Commission’s recommendations, if it disclosed which individuals were involved in the case. If all of its members are involved, all the better.

 

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