Art Law and the New German Government: Legislative Goals for Looted Art and Restitution

Today’s election of Olaf Scholz as Angela Merkel’s successor marks the official start of the new „traffic light“ coalition government. The new government draws its name from the colours traditionally associated with the supporting parties: „red“ Social Democrats, „yellow“ Liberals and the “Green” Party. These three parties have set out their legislative programme in a 177-page coalition agreement (Koalitionsvertrag). Both Nazi looted art and art from a colonial context feature in the Coalition Agreement. Almost inevitably, like in other fields, the Coalition Agreement is short on detail. For Nazi looted art, however, its brevity notwithstanding, the Coalition Agreement defines four concrete legislative goals*. Here they are, with my initial assessment:

Creating of a Right to Information

The creation of an information right (Auskunftsrecht) appears to be the most straightforward of the four goals. Of course, in a legal culture that is traditional adverse to concepts of discovery and disclosure, creating information rights for potential claimants against third parties would be rather innovative, but technically, I do not see any major obstacles to reaching this goal.

Excluding the Statute of Limitations for Restitution Claims

To the extent that property-based claims have already become time-barred, any new piece of legislation must not violate the prohibition of retroactive legislation (Rückwirkungsverbot). Long-standing readers of this blog may recall that the animated public debate of looted art and the restitution issue following the Gurlitt art find in 2013/2014 did lead to some legislative activity. Back then, Bavaria proposed a solution to the problem and put forward a draft Art Restitution Act (Kulturgut-Rückgewähr-Gesetz), which we discussed here and here. In his guest post, Professor Lorenz Kähler was critical of the proposal. He thought it was likely to be counterproductive and harm the owners of looted art. In any event, the Bavarian bill was never moved forward. From a legal perspective, excluding the statute of limitations for restitution claims would of course have a monumental impact on how restitution claims are being handled. But at the same time, it is also the most difficult goal to achieve.

Creating a Central Place of Jurisdiction

The Coalition Agreement somewhat vaguely talks about “striving for a central place of jurisdiction” (zentralen Gerichtsstand anstreben). Jurisdiction would not have been high up on my list of priorities. On the one hand that is because formal litigation is of minor importance in resolving restitution claims, given the law on the statute of limitation as it currently stands – but things might of course change if goals one and two are implemented. On the other hand, it is because I cannot think of situations where the lack of jurisdiction would have been or could be a problem that stood in the way of restitution. On the other hand, centralising jurisdiction should lead to the creation of a specialised bench, which I always welcome.

Strengthening the “Advisory Commission”

Currently, the Advisory Commission acts as a mediator. The procedure is voluntary and the recommendation issued by the Advisory Commission is non-binding. The Accord establishing the Advisory Commission states that it “may be jointly called upon in individual cases in which, in connection with the restitution of cultural property seized as a result of Nazi persecution, especially Jewish property, the claimant and the holder of the cultural property seek mediation.” I am not sure what would “strengthening” the Advisory Commisson in that setting. Making the procedure mandatory and/or the decisions of the Advisory Commission binding would change the entire set-up and move the Advisory Commission in the direction of an (arbitral) tribunal. So let’s wait and see what the new government will propose under this heading.

Art Objects from a Colonial Context

On this topic, the Collation Agreement is less specific. This is what it has to say on art with a colonial history:

“In order to advance the examination of German colonial history, we also support the digitisation and provenance research of colonially exposed collection items and make them accessible on platforms. In dialogue with the societies of origin, we strive for restitution and deeper cross-departmental international cooperation. In particular, we support the return of objects from a colonial context. We are also developing a concept for a place of study and remembrance of colonialism.”**

All in all, this new government’s plans to tackle thorny issues strike me as ambitious. We will no doubt closely monitor the implementation of these goals. The Green Party politician Claudia Roth will be at the helm – she takes over from Monika Grünters as Minister of State for Culture and Media (Staatsministerin für Kultur und Medien). 

 

*„Wir werden uns weiterhin der Aufgabe stellen, NS-verfolgungsbedingt entzogene Kulturgüter –entsprechend dem Washingtoner Abkommen – an die Eigentümerinnen und Eigentümer zurückzuführen. Wir verbessern die Restitution von NS-Raubkunst, indem wir einen Auskunftsanspruch normieren, die Verjährung des Herausgabeanspruchs ausschließen, einen zentralen Gerichtsstand anstreben und die „Beratende Kommission“ stärken.“ (Seite 125)

 

We will continue to take on the task of returning cultural assets seized as a result of Nazi persecution to their owners – in accordance with the Washington Principles. We will improve the restitution of Nazi looted art by establishing a right to information, excluding the statute of limitations for claims for restitution, striving for a central place of jurisdiction and strengthening the “Advisory Commission”. (page 125)
** „Um die Aufarbeitung der deutschen Kolonialgeschichte voranzutreiben, unterstützen wir auch die Digitalisierung und Provenienzforschung des kolonial belasteten Sammlungsgutes und dessen Zugänglichmachung auf Plattformen. Im Dialog mit den Herkunftsgesellschaften streben wir Rückgaben und eine vertiefte ressortübergreifende internationale Kooperation an. Wir unterstützen insbesondere die Rückgabe von Objekten aus kolonialem Kontext. Außerdem entwickeln wir ein Konzept für einen Lern- und Erinnerungsort Kolonialismus.“ (Seite 125)

 

Photo: Tsvetoslav Hristov on Unsplash

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