The Bundesgerichtshof judgment in the Sachs Art Collection Case (see March 19, 2012 post) is now available online in full. The court based its ruling on the concept that restitution in rem (Naturalrestitution) was to remain the standard remedy, and was to take priority (“das vorrangige Ziel der Naturalrestitution”), over monetary compensation, wherever possible. It was on that basis that the scope of the restitution rules had to be interpreted.Hence, the old case law on the 1949 restitution rules (REAO; Anordnung BK/O (49) 180 der Alliierten Kommandantur Berlin betreffend die Rückerstattung feststellbarer Vermögensgegenstände an Opfer der nationalsozialistischen Unterdrückungsmaßnahmen vom 26. Juli 1949, VOBl. für Groß-Berlin I S. 221) was overruled. The court noted, in its interpretation of the rules, that the REAO rules expressly refer to “identifiable” (feststellbare) claims. If the location of assets was unknown, then claims for their resitution were, by definition, not identifiable.
The reading of the full judgment confirms the earlier assessment: It is a carefully argued decision which creates new precedent for a potentially large class of stolen art objects.