The recent news that a treasure trove of lost art was discovered in a Munich apartment in 2011 has stunned the art world.
The sheer scale of the find is in itself sensational; 1,406 artworks both framed and unframed were discovered in the flat of Cornelius Gurlitt, the elderly son of a renowned art historian and dealer of the Weimar Republic who promoted progressive German artists. The fact that the discovery included works that were previously unknown, such as a self portrait by Otto Dix, makes the find truly unique.
Much has been made of the fact that it has taken the German authorities 18 months to publicise the discovery and they have still not disclosed full details of the works it includes. Representatives of those persecuted by the Nazi Regime and from whom art was either confiscated, stolen or taken by a forced sale are particularly concerned that a full inventory should be made available so they can assess whether any of the works can be traced to their descendants.
In response, the Augsburg Prosecutor has said that it would be counter-productive to publicise a list of the artworks as they needed to balance the “justified interests of the international public” with the interests of any legal enquiry into ownership of the work. There is concern that by publicising an inventory without having fully investigated provenance they may be subject to proceedings by Gurlitt (albeit they have declined to name him publicly) whilst he is under investigation on suspicion of tax offences or misappropriation. This is all the more controversial given that Germany has accepted the principles of the 1998 Washington Conference on Nazi Confiscated Art which stipulated that every effort should be made to publicise such a discovery so that pre-war heirs or owners can be located. The Washington Conference calls for a “just and fair solution” that would enable those who lost cultural property during the Nazi regime to be recompensed and ownership issues addressed.
In response to the international pressure, a spokesman for the German Chancellor, Angela Merkel, announced earlier this month that Germany will boost efforts to examine the ownership history and will publish details of art believed to be looted by the Nazis. However, there is no guarantee that the Washington principles are binding on private individuals and that claimants would be recompensed, even if they could prove that the pictures were confiscated or otherwise taken from them or their descendants.
In the UK the Spoliation Advisory Panel considers claims from anyone who lost possession of a cultural object during the Nazi era between 1933 and 1945 (or their heirs) if that object is now in the possession of a UK national collection or other UK museum or gallery established for the public benefit. The Panel is also able to advise on any claim for an item in a private collection at the joint request of the claimant and the owner. In considering such claims the Panel must find a just and fair solution considering all available evidence. As the Panel’s proceedings are an alternative to litigation and not a legal process they are able to take into account any non-legal obligations such as the moral strength of the claimant’s case and whether any moral obligation rests on the institution involved before a decision is made.
Once the Panel has made a decision it makes a recommendation to the Secretary of State on any appropriate action to take in response to the claim. If a claim is upheld in principle the Panel can recommend payment of compensation to the claimant (the amount being at the discretion of the Panel), an ex gratia payment to the claimant, or the display, alongside the object, of an account of its history and provenance during and since the Nazi era, with special reference to the claimant’s interests. Further, the Panel also has the ability to recommend that the object is returned to the claimant and, following the enactment of The Holocaust (Return of Cultural Objects) Act 2009, those institutions named in the statute are now able to do so.
Recommendations made by the Panel are not legally binding on the claimant, the institution or the Secretary of State, but given that they are public documents they are highly persuasive, and ignoring clear recommendations would no doubt have consequences for the institution’s reputation and integrity.
The world will therefore watch with interest to see what further announcements are made by the Bavarian authorities to speed up the investigation into provenance and how any claims that arise as a result are dealt with. Do claimants have years of litigation ahead of them or are auction houses looking forward to the prospect of breaking the record price of $142 million recently paid for Francis Bacon’s triptych of Lucian Freud any time soon? Only time will tell.
If you would like more detailed advice on this topic, please contact the partner at Hunters having responsibility for your legal matters, or (for new enquiries) please contact a member of our Heritage Property team.
This article is based on the law in force as at 15th November 2013. Although we endeavour to ensure that the content is accurate and up to date as at that date, it is designed to provide general guidance only and is not intended to be comprehensive or to constitute professional advice. Specific advice should always be sought, and you should only rely on advice which is given, by reference to particular facts and circumstances.