Art Law: Advisory Commission – New Recommendation, First Default

Yesterday, the Advisory Commission on the return of cultural property seized as a result of Nazi persecution, also known as the Limbach Commission, has issued a new recommendation in the restitution matter of the heirs of Max Fischer vs.  Staatliche Kunsthalle Karlsruhe, a museum of the State of Baden-Württemberg. In January 2021, the Advisory Commission had gone public with the first case in its history where a recommendation had not been implemented.

Max Fischer vs. State of Baden-Württemberg

The Advisory Commission unanimously held that the State of Baden-Württemberg should return Ernst Heckel’s painting “Geschwister” to the heirs of Max Fischer; the heirs in turn intend to donate the painting to the Virginia Museum of Fine Arts. The painting currently is part of the collection of Staatliche Kunsthalle Karlsruhe. In 1936, Max Fischer, a Jewish journalist, had emigrated to the United States, where he died in 1954. The Heckel painting had been acquired by Ludwig und Rosy Fischer, Max Fischer’s parents in 1917/19 and had been in his possession until 1934. The whereabouts of the artwork between 1934 and 1944 remain unknown. In January 1944, the painting was back with Heckel, who kept it in the cellar of his Berlin home. Heckel donated it to the Kunsthalle Karlsruhe in 1967. It could not be established how and when between 1934 and 1944 Ernst Heckel came into possession of the painting. In the opinion of the Advisory Commission, it had to be assumed that it must have been as the result of Nazi persecution-related seizure.

Fe­lix Hil­des­hei­mer vs. Franz Hof­mann and So­phie Ha­ge­mann Foundation

In January 2021, the Advisory Commission went public with a statement that, for the first time in its history, one of its recommendations had not been implemented. The Advisory Commission had issued a recommendation in December 2016 that the Franz Hof­mann and So­phie Ha­ge­mann Foundation pay EUR 100,000 to the heirs of Felix Hildesheimer as compensation for a Guarneri violin in its possession. At the time, this recommendation was accepted by both parties as a fair and just solution. However, the compensation payment was never made. Initially, the Foundation had explained the delays with difficulties in making the funds available and with restrictions imposed on it by the law governing foundations. The Advisory Commission states:

“However, it is not clear to what extent the Hagemann Foundation has expressed to the Supervisory Board its serious intention to comply with the recommendation of the Advisory Commission. Other ways of raising the compensation amount were not pursued with the required effort. The Advisory Commission regrets that none of the public institutions involved has been able to induce the Hagemann Foundation to follow the Advisory Commission’s recommendation and to support it in doing so.

In response to the Advisory Commission’s request to explain its further course of action, the Hagemann Foundation has now referred to new research findings that prove that Felix Hildesheimer was not forced to sell his business as early as 1937 – as it was assumed in 2016 – but only on 11 January 1939. The Hagemann Foundation therefore considers itself entitled not to make any further efforts to implement the recommendation. In doing so, it not only contradicts the applicable principles for the restitution of Nazi looted property as laid down in the Washington Principles and the Guidance (Handreichung), but also ignores the established state of knowledge about life in National Socialist Germany, especially after 9 November 1938.”

While this restitution matter obviously is an exemption, it highlights the problems arising from the fact that the Advisory Commission’s recommendations are non-binding and not enforceable as such. In the specific circumstances of the Hildesheimer case, one could probably argue that the explicit acceptance of the recommendation by the Foundation amounts to an independent acknowledgement of debt (Schuldanerkenntnis), which in turn could be enforced in court. This would of course depend on the exact wording and the form of the statements made by the Foundation at the time. Pursuant to Sec. 781 German Civil Code (BGB), the acknowledgement of debt requires written form.

The Foundation’s decision is all the more surprising, as it was the Foundation that had researched the provenance of the Guarneri violin and had reached out to the Hildesheimer family. The Foundation’s account of the matter can be found here.

Photo: Portrait of Ernst Heckel by Ernst Ludwig Kirchner, Ernst Ludwig Kirchner creator QS:P170,Q229272, Kirchner – Erich Heckel an der Staffelei, marked as public domain, more details on Wikimedia Commons.


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