By Leila Amineddoleh
I recently authored an article "Nazis, Monuments Men, Hidden Treasures, and the Restitution of Looted Art" to appear in the Entertainment, Arts and Sports Law Journal Spring issue(publication any day now...). The article discusses legal concerns related to the Munich Art Trove (the collection of works hidden by the Gurlitt Family for decades, discovered in Germany in March 2012, and then disclosed to the public in November 2013). Since I wrote the article in January, there have been many developments in the matter.
In addition to the 1,400 works that were hidden by Cornelius Gurlitt in Munich, an additional 238 works were discovered at another one of his properties in Austria. It was also determined that at least 310 of the works in the trove are legitimately Cornelius Gurlitt's property because his father, an art collector, acquired them before the Nazis came to power.
Due to fear that all restitution cases will be dismissed on statute of limitations grounds, two months ago, a bill was introduced to the German legislature to eliminate the 30-year limitations period for certain cases involving stolen property, such as Nazi-looted art. The legislation would apply retroactively and prevent someone from acquiring an object in bad faith and then invoking the limitations period to avoid restitution. On the same day that the new legislation was introduced, Cornelius Gurlitt filed a lawsuit claiming that German authorities used false charges of tax evasion to illegally seize the art; he demanded that his property should be returned to him immediately. Gurlitt asserts that there is no legal basis for the German government to possess the works.
Then earlier this month, a major development was announced. Gurlitt and the German government reached an agreement. Gurlitt will allow provenance researchers to investigate the works once they are released from police custody. An appointed task force will research the provenance of works suspected of having been confiscated by the Nazis. The group of researchers will include someone appointed by Gurlitt, and the investigation must be completed within a year. Artworks suspected of being Nazi loot will remain in secure custody and on www.lostart.de. This process is being funded by the German federal government and state of Bavaria. As part of the agreement, works for which the Task Force has not completed provenance research within the year will be returned to Gurlitt, but the researchers will have continued access for their examination. Gurlitt also agreed to recognize the Washington Principles (non-binding principles intended to assist in resolving issues related to Nazi-confiscated art) by means of restitution for persons claiming ownership of the works. And works that are definitively determined not to have been confiscated by the Nazis will be returned to Gurlitt and deleted from the Lost Art website. This agreement takes effect when the works are released to Gurlitt. Fortunately for claimants, the agreement bypasses the damning 30-year statute of limitations.
However, there are major problems with the agreement. It has been argued that the 1-year research deadline is insufficient, and that it is unlikely that true owners will file a claim without knowing the identity of works in the collection (at this point, fewer than 600 works have been listed on www.lostart.de). The solution also leaves too much in the hands of the selected provenance investigators. Most troubling is that the burden of proof is on claimants to prove ownership. As discussed in my article, proving ownership is a formidable task. The difficulty in filing a claim is reflected in the surprisingly low number of claims already filed. Gurlitt's spokesperson stated that he does not expect more than five percent of the works to be claimed by those in search of works stolen or extorted by the Nazis, and that the bulk of the collection was legally acquired by his family. In fact, thus far only six demands for restitution have been made. One of those works is now being claimed by two separate parties.
One of the first works that Gurlitt agreed to return was "Seated Woman", by Matisse, which was set to be restituted to the heirs of Paul Rosenberg (he was a prominent art dealer in Paris, known for representing famous artists, including Picasso and Matisse). Although negotiations had taken place and Gurlitt consented to the return of Seated Woman, the deal quickly came to a halt earlier this month when a second person came forward to claim the painting. The restitution process has been indefinitely delayed as authorities are required to investigate the new claim.
Although claimants were hopeful because Cornelius Gurlitt agreed to cooperate in the restitution process, the struggle for the arts' return continues to be difficult. Not only is the one year deadline insufficient, but proving ownership is an insurmountable hurdle for the vast majority of claimants. However, it should also be noted that the agreement negotiation involved the German government and Cornelius Gurlitt; therefore, claimants are not obliged to resolve their claims exclusively by terms of the settlement agreement.
Yet this is not the end of the drama. Some of the biggest questions will occur after Gurlitt's death. Cornelius Gurlitt is 83 years old and does not have any heirs (except for a few far-removed cousins). He purportedly drafted a will that includes provisions for the art trove. At that point, another slew of legal questions will arise.