Art Law: The Gurlitt Paintings – A Treasure Trove of Looted Art

Picasso, Chagall, Marc, Nolde, Spitzweg, Renoir, Macke, Courbet, Beckmann, Kandinsky, Kokoschka, Matisse, Liebermann and Dix – the names of the artists, and the sheer amount of art seized by German authorities in Munich in 2012 is making headlines around the world, since news magazine FOCUS broke the news on Sunday. Almost 1,500 paintings were seized, as part of a customs and tax investigation by German authorities, in the apartment of Cornelius Gurlitt. It is both temping and somewhat dangerous to come up with a legal assessment at this point in time, where many facts are not known. The Augsburg’s public prosecutor’s office (Staatsanwaltschaft Augsburg) held a press conference this morning and press reports are coming through as this post is written (here’s the link to the live blog from that press conference on FOCUS).

Here is my understanding, in a nutshell, of the key facts: Cornelius Gurlitt’s father, Hildebrand Gurlitt (1895 – 1956) was a German art historian and dealer. After he had been fired from museum positions he had held for exhibiting ‘degenerate art’ (entartete Kunst) he started trading in it, in  throughout the Third Reich. Allegedly – sources are not entirely clear on this – he also was appointed as a dealer for the Führermuseum in Linz. It now turns out that Hildebrand Gurlitt used his shady but unique position as one of the few art dealers permitted to do so to build the collection – I use that word with some hestitation – now found with his son, Cornelius Gurlitt. We can only speculate at this time about the ways and means Hildebrand Gurlitt employed to acquire the art work.

After the war, Hildebrand Gurlitt claimed that the February 1945 bombing of Dresden destroyed his entire collection. Had he felt confident to disclose the provenance and existence of his collection, that lie certainly would not have been necessary. His son kept the secret, only selling off individual pieces from time to time. The latest that is known was, through the Lempertz auction house, the sale of Max Beckmann’s Lion Tamer (Löwenbändiger). The sale took place even after the authorities started to investigate Gurlitt back in September 2010, when he was held at the German-Swiss border with a  large amount of cash in his possession, but his apartment was not searched until February 2012.

FOCUS, FAZ and Die ZEIT provide extensive and up-to-date coverage. For English language sources, see the New York Times and Nick O’Donnell’s Art Law Report.

So with the caveat that the factual basis is very thin, to say the least, here some first thoughts: The original owners, or more realistically, the heirs of the owners of paintings found in Gurtlitt’s apartment will need to provide evidence of title. One will need to look in detail at each transfer in the entire chain between the original owner and Gurlitt to see whether Gurlitt father and son ever acquired legal title, or whether the transactions were illegal and did not confer valid title. German law does not recognize a good faith acquisition of title in lost property (Sec. 935 German Civil Code, BGB). Showing title appears to be a hurdle that can be overcome legally, provided that German law always applied to these transactions. However, as in many restitution cases, documentary evidence may the Achilles’ heel.

From a procedural perspective the prescription periods (Verjährungsfristen) of course are relevant. In that respect, in my current opinion, the Hans Sachs judgment of the Federal Supreme Court (Bundesgerichtshof) of March 2012 (extensively covered here, and here) appears to come to the assistance of the original owners. In this case, the Federal Supreme Court had held that the specific regulations on the restitution claims and the time limits prescribed therein do not apply, if the works of art were lost (verschollen) and the owners did not know where they were at the time these time limits expired. From the press reports, it appears that this will apply to the majority, if not to all of the works of art found in the Gurlitt collection.

What became clear in today’s press conference was that the public prosecution was looking at the Gurlitt investigation primarily as a tax matter, and would not have made the matter public, had FOCUS not broken the story, because they believed it to be counter-productive to their investigations. („Die Staatsanwaltschaft ist überhaupt nicht an die Öffentlichkeit gegangen. Bis heute. Es ist – wie gesagt – für uns kontraproduktiv, mit dem Fall an die Öffentlichkeit zu gehen.”)

The stand the public prosecution took is incomprehensible to me – a blatant disregard of the property law and political aspects of the matter, and arguably also of the Washington Principles, section V. of which reads: “Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.”

I would hope and expect that, if nothing else, the public pressure will force the authorities to publish a register of what they seized. Given the sheer magnitude of the claims, all interest groups involved should think about setting up some sort of special task force of the Limbach Commission to help sort things out efficiently.

P.S.: “The Monuments Men”, a movie about directed by and starring George Clooney is released on December 18, 2013. “Based on the true story of the greatest treasure hunt in history, The Monuments Men focuses on an unlikely World War II platoon, tasked by FDR with going into Germany to rescue artistic masterpieces from Nazi thieves and returning them to their rightful owners.” Perfect timing….


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