Art Law: New Recommendation of the Advisory Commission in Grawi vs. Düsseldorf

On 26 March 2021, the Advisory Commission published its recommendation regarding the restitution claim brought by the heirs of Kurt and Else Grawi against Düsseldorf. As noted earlier, the Advisory Commission appears to be on track for a new record: It started the year with two recommendations regarding  Max Fischer v. Staatliche Kunsthalle Karlsruhe, and Heinrich Rieger v. Stadt Köln within a couple of days, and now issued its third decision in 2021. To put this into perspective: From its inception in 2005 until 2020, the Advisory Commission had issued a total of 18 recommendations. With one exception, it never issued more than two recommendations in one year, and never more than three.

In its most recent decisions, the Advisory Commission recommends that the City of Düsseldorf returns the  Franz Marc painting “Füchse” to the heirs of Kurt and Else Grawi. The recommendation was not made unanimously. It was passed by a majority, with six members voting in favour, and three against the recommendation.

Facts

Kurt Grawi, a former banker and entrepreneur born in 1877, in 1935 suffered the “aryanization” of his businesses, in 1938 was imprisoned in the Sachsenhausen concentration camp and in April 1939 emigrated via Belgium to Santiago de Chile. Kurt Grawi had initially left his family behind, who were able to join him in Chile in December 1939. Kurt Grawi died in exile in September 1944.

Kurt Grawi purchased the painting “Füchse” in 1928. In correspondence in 1939, it was indicated that Grawi had paid USD 3,000 (approx. USD 45,000 in today’s money). In May 1936, Grawi loaned the painting to Galerie Nierendorf in Berlin for its Franz Marc restrospective. When Grawi emigrated, he left “Füchse” with a friend”, Dr. Paul Weill, who arranged for onward shipment to New York where another friend, Ernst Simon was to sell it on  Grawi’s behalf. In a 1939 letter, Grawi stated that “the result of the sale will provide the basis for our emigration”.

In 1939, “Füchse” was offered to the Museum of Modern Art (MoMa) in New York, but it appears that the sale failed as MoMa’s offer was unacceptable to Grawi. Finally, the painting was sold in a transaction arranged within the German exile community in the United States: In 1940, the German-American film director William (Wilhelm) Dieterle (who gave Marlene Dietrich one of her first leading roles in the early 1920s) bought it for an unknown price. The sale was arranged Karl Nierendorf, an art dealer who had also emigrated from Berlin to New York. In June 1961, Dieterle sold the the artwork. It was acquired by German department store mogul Helmut Horten, a beneficiary of “aryanization”, in order to donate it to a museum. Horten donated “Füchse” to the Städtische Kunstsammlung Düsseldorf in 1962; it is now on display at Stiftung Museum Kunstpalast.

Decision

The facts of the case are somewhat different from other restitution cases that centre around the issue of forced sales that coincide with the emigration from Germany in that the transaction under which Kurt Grawi lost the painting took place in the United States and at a time when he was in Chile.

The City of Düsseldorf argued accordingly: It asserted that Kurt and Else Grawi had already managed to pay the levies imposed on them through the sale of their real estate and other assets. These sales would have generated sufficient liquid funds, making a “forced” sale of “Füchse” superfluous. In addition, Grawi was able to arrange for the painting to be shipped to New York and to be sold there, with substantial support from other émigrés who had also fled persecution, which in Düsseldorf’s opinion also showed that the painting was not lost as a result of Nazi persecution. The majority of the Advisory Commission was not convinced that it made a difference that the painting was sold in the United States:

“The Commission believes that the painting Füchse by Franz Marc should be restituted to the claimants, even though the sale took place outside the National Socialist sphere of influence. The sale in 1940 in New York was the direct consequence of imprisonment in a concentration camp and subsequent emigration, and was so closely connected with National Socialist persecution that the location of the event becomes secondary in comparison.

Neither did the Commission believe that the price which Dieterle had paid and which most likely was fair, did play in the City of Düsseldorf’s favour:

“It is immaterial that a fair price was probably paid for the painting. The ‘Guidelines for implementing the Statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property’ of December 1999’* declare the ‘objective market value” to be the decisive criterion in this regard, i.e. the market value “the object would have had at the time of sale had the seller not been subject to persecution”. According to this definition, a fair purchase price would generally be assumed outside the National Socialist sphere of influence because—in purely formal terms—there were always buyers who were not subject to Nazi persecution. However, this conclusion is subject to constraints. The assumption that, on the market outside the National Socialist sphere of influence, participants were fundamentally free and equal between 1933 and 1945 may also be disrupted by longdistance effects of political persecution.”

* Handreichung zur Umsetzung der ‚Erklärung der Bundesregierung, der Länder und der kommunalen Spitzenverbände zur Auffindung und zur Rückgabe NS-verfolgungsbedingt entzogenen Kulturgutes, insbesondere aus jüdischem Besitz

“Foxes” (Füchse) by Franz Marc artist QS:P170,Q44054, Franz Marc 010b, marked as public domain, more details on Wikimedia Commons

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