HEAR and the Guelph Treasure Recovery Efforts: Restitution in Review

By Nina Mesfin*

On June 7, 2016, the Senate Judiciary Committee heard a bipartisan-backed piece of legislation called the Holocaust Expropriated Art Recovery (HEAR) Act, S. 2763, 114th Cong. (2016). As recently reported by Center for Art Law and elsewhere, the HEAR Act aims to allow “civil claims or causes of action to recover artwork or other cultural property unlawfully lost because of the persecution during the Nazi era, or for damages for the taking or detaining of such artwork or cultural property.” In other words, the HEAR Act proposes a federal statute of limitations on restitution claims as opposed to statutes of limitation that vary by state in order to “lift unfair restrictions from heirs’ claims.” In addition to garnering support from both the Republican and Democratic parties, the HEAR Act also offers advocates outside of the political realm.

Screen Shot 2016-08-09 at 11.21.25 AMFollowing the bill’s introduction, on June 7th actress Helen Mirren testified before the Senate on behalf of the bill. Mirren’s support, in part, stems from her recent portrayal of Maria Altmann in the film Woman in Gold (released in 2015). Altmann was a Jewish woman who successfully reclaimed five Nazi-looted works by Gustav Klimt from the Austrian government in the landmark case Republic of Austria v. Altmann (03-13) 541 U.S. 677 (2004) 327 F.3d 1246, affirmed. The Altmann case set a legal precedent in which the Foreign Sovereign Immunities Act (FSIA) was applied retroactively, allowing a sovereign body to be tried in a U.S. court.

The timing of Woman in Gold, which has drawn public attention to Altmann’s success, coupled with recent congressional efforts to facilitate the restitution of Nazi-looted works, may impact the outcome of other restitution claims. One of these cases involves the Welfenschatz or Guelph Treasure– a collection of medieval art currently in the Kunstgewerbe Museum in Berlin—with an estimated value of $250 million dollars. On February 23, 2015, the heirs of the art dealers who sold the Guelph Treasure to Germany filed a civil action in a U.S. district court against Germany and the Prussian Cultural Heritage Foundation. The case of the Guelph Treasure will test further the limits of both the U.S. government’s dedication to Holocaust-era restitution claims and ability to broker restitution deals.

What is the Guelph Treasure?

The Guelph Treasure, consisting of 82 gold, silver and gem encrusted liturgical objects from the Church of St. Blaine in Brunswick, Germany, and according to art historian Christina Nielsen, it is considered to be “the greatest group of medieval objects ever offered for sale.” The objects range in date from the 8th to the 15th century and the majority are works of German craftsmanship while other notable pieces are Italian and Byzantine in origin. One of the most extraordinary characteristics of this collection is its indisputable authenticity; records indicate that prior to its auction, the Treasure has been in continuous care of the same noble German family for more than 800 years.

Subsequent Sales of the Treasure

Duke Ernst August was the last of his German ancestors to possess the Guelph Treasure. Due to economic hardship in 1928, the Duke was forced to put a price on what was considered a collection of “incalculable intrinsic value” because of “its antiquity and art-historical importance”(Nielsen, 442). To the dismay of many German citizens and the State itself, the Duke sold the Treasure to a consortium of Jewish art dealers in 1930: Julius F. Goldschmidt of Frankfurt, Berlin, and New York and Z.M. Hackenbroch and J. Rosenbaum of Frankfurt. Although the Duke intended for the collection to stay together, the consortium of art dealers, having failed to resell the collection in its entirety, began to sell off pieces of the Treasure.

After meticulously cataloging the collection, the dealers began selling, or rather attempting to sell, portions of the Guelph Treasure in Germany. As Germany frowned upon the sale of what it considered to be cultural patrimony, the new owners, a consortium of Jewish art dealers, then tried to sell the collection in the United States. The Guelph Treasure was first exhibited in New York in 1929, and by 1934, the consortium sold 40 of the Treasure’s 82 pieces to several museums in the United States, including the Cleveland Museum of Art (Nielsen 443). In 1935, the remaining 42 pieces of the Treasure were sold to the State of Prussia for 4.25 million Reich marks, or $1.7 million. High-ranking Nazi official Hermann Göring oversaw the acquisition and later gifted it to Adolf Hitler. It is the legality of the second sale in 1935 that the heirs of the consortium are disputing.

Appearing before the German Advisory CommissionScreen Shot 2016-08-09 at 11.27.45 AM

Before their U.S.-based lawsuit, the heirs of art dealers J. and S. Goldschmidt, I. Rosenbaum and Z.M. Hackenbroch appeared before the German Government Advisory, also called the Limbach Commission. The Commission is a joint initiative of the Federal Commissioner for Cultural and Media Affairs and the Länder and the National Association of Local Authorities; it invites claims concerning Nazi-looted property that public institutions in Germany currently possess. The Commission serves as a mediator between these public institutions and former owners as well as their heirs, hearing cases and offering resolution recommendations. The New York Times reported that the heirs’ lawyers cited the “climate of fear and uncertainty for the [dealers’] futures in which Jews in Germany found themselves in 1935,” arguing that these dire circumstances suggest that any “purchase by the state from Jewish businessmen must be considered as having taken place under duress.” The lawyers representing the heirs attempted to prove that the sale was, in fact, forced by explaining that the dealers sold the pieces for $4.3 million less than they had paid for it five years earlier. The panel attributed the ten percent market price decease to the economic downtown wrought by the Great Depression.

After contemplating this argument, in March of 2014 the Commission’s panel recommended that the 42 “jewel-encrusted, intricately wrought silver and gold crucifixes, altars and other relics of the Guelph Treasure should remain in the possession of the state-run foundation.” Bloomberg News noted that the Commission went on to state that “[f]ar from selling under duress, the consortium had been attempting to unload the Guelph Treasure for years,” pointing to the correspondence among consortium members celebrating the sale.” The Commission also noted that the Guelph Treasure is an exception to the Washington Conference Principles on Nazi-Confiscated Art, which all German museums have agreed to uphold. The Principles are a set of guidelines that maintain that “any art object sold by Jews for less than its fair value during this period (Jan. 30, 1933, through 1945) is a candidate for restitution,” a period that includes the Guelph Treasure.”

This ruling, in favor of the Kunstgewerbe Museum is one of many made by the Commission that has been met with criticism. As art journalist Catherine Hickley reports, the Limbach Commission has recently “come under fire for a lack of transparency, the length of time it takes, failure to appoint a Jewish member and the low number of cases it has mediated.” The Commission has only mediated thirteen cases since its founding in 2003, whereas its Dutch counterpart has issued more than 140 since 2002.** In July of 2016, Germany’s culture minister, Monika Gütters, actually announced plans to reform the Limbach Commission.

The Civil Lawsuit over the Treasure

Screen Shot 2016-08-09 at 11.32.39 AMAlmost a year after the Commission made its non legally binding recommendation, the heirs to the Guelph Treasure, filed a civil lawsuit in U.S. District Court for the District of Columbia. Philipp et al. v. Federal Republic of Germany et al., 15-cv-00266 (D. D.C.). According to a Washington Jewish Week article, the seventy-one page complaint alleges that the consortium sold the 42 pieces to the State of Prussia “via a manipulated sham transaction spearheaded by Dresden Bank, which was acting on behalf and by order of the two most notorious Nazi leaders and war criminals,” Göring and Hitler. The complaint further notes that the heirs used the fact that the alleged forced sale was made for less than 35 percent of its actual value and that the payment “was then subjected to flight taxes that were demanded so the Jewish dealers could flee Germany,” as evidence backing their claim. One of the dealers, Hackenbrock,was able to leave Germany in 1935, although died shortly thereafter in London in 1937. Details concerning the other two dealers, Rosenbaum and Goldschmidt, are unknown.

In order to justify filing this suit in a U.S. court, attorneys for the claimants invoked the Foreign Sovereign Immunities Act, which “provides jurisdiction over foreign states that conduct business in the U.S. via exhibitions and other museum-related activity.” According to O’Donnell, one of the attorneys representing the claimants, FSIA’s applicability to this case is straightforward, as “Jewish victims of persecution like the Plaintiffs’ ancestors are victims of takings in property in violation of international law.” He further explains, “[a]s a result, and because the Defendants are engaged in commercial activity in the United States, this case presents precisely the category of claims over which § 1605(a)(3) of the FSIA, the expropriation exception, creates jurisdiction.”

In March 2016, Germany and the Prussian Heritage Cultural Foundation responded by filing an eighty-five page motion to dismiss the case, contesting the jurisdiction of the U.S. courts. Within the motion, the defendants contend “that the persecution and expropriation of property from its Jewish residents were a sufficiently internal affair so as not to be a violation of international law.” O’Donnell has described this motion as “revisionist” and “troubling.” Most recently, on May 11, 2016, claimants filed an opposition to the motion to dismiss. The latest filing in the case was in June a reply to opposition to motion re motion to Dismiss the Plaintiffs’ First Amended Complaint. Now we are waiting for the court to review the filings.


The pending case involving ownership of the Guelph Treasure has brought two interesting issues into focus. The first is whether the blanket application of forced sales to an entire time period, in this case the years immediately preceding and spanning WWII, is legitimate, not taking into account the market or the profession of the seller, i.e. an art dealer who is almost always in the process of making a deal. The Guelph Treasure also tests the authority of advisory commissions with no binding power, as rulings made by the Limbach Commission are unenforceable. On the other hand, there are several other European arbitrating bodies whose opinions are binding, such as the Austrian Restitution Binding Commission and the Dutch Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War. As Hickley points out in her article “German minister promises to reform Limbach Commission after mounting criticism,” unlike the Limbach Commission, the Austrian and Dutch advisory committees do not require both parties to agree in order to mediate disputes.

In challenging the Limbach Commission’s clout, the case of the Guelph Treasure may bring a foreign body into conflict with the crux of the U.S. court system. It will be interesting to see if and how the U.S. judicial system, in its dealings with the Guelph Treasure, will impact the authority enjoyed by European advisory board’s ruling on contested art. As Elazar Barkan explains in The Guilt of Nations: Restitution and Negotiating Historical Injustices, restitution as a means of acknowledging gross historical injustices is a relatively novel phenomenon. Nowadays, it “is a large part of the growing attention being paid to human rights.” The question becomes: in which instances is restitution warranted and in which does it potentially exploit society’s overeagerness to atone for past atrocities? Furthermore, at what point, if at all, is it appropriate for a third party state to hear these claims and issue rulings? While the United States at times offers a venue to bring restitution claims, the outcome and the cost of these claims is unpredictable.

Select Sources:

**There are currently five restitution commissions: United Kingdom, Austria, France, Germany, and the Netherlands. In 2007, the United States government considered establishing its own restitution advisory commission, to no avail.

About the Author: Nina Mesfin is a Summer 2016 legal intern at Center for Art Law. She is a rising junior at Yale University majoring in Ethnicity, Race and Migration and concentrating in Art, Literature and Narratives of Race and Ethnicity. Nina is also a scholar in the Yale Multidisciplinary Academic Program in Human Rights.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Why Ronald Lauder Is Right About Nazi-Looted Art in Museums

*From the Editors: The following article  first appeared on ArtNet. It is a response to two recent articles, an editorial authored by Ronald S. Lauder, a New York businessman and art collector, and a related commentary by Nicholas O’Donnell, Boston-based attorney and editor of Art Law Report. The article is reprinted with the permission of the author, attorney for Leone Meyer.

By Pierre Ciric*

In his article titled “Lauder Editorial on Stolen Art and Museums Fails the Glass House Test,” Nicholas O’Donnell attempts to respond to Ronald S. Lauder’s editorial published in the Wall Street Journal on June 30, 2014, titled “Time to Evict Nazi-Looted Art From Museums.”

O’Donnell attempts to find legal shortcomings in Lauder’s editorial, which simply expresses the need for art museums to act responsibly by returning Nazi-looted artwork instead of raising technical defenses and mere pretexts to deny the rights of the claimants.

In his article, O’Donnell refers to the ongoing case brought by Léone Meyer against the University of Oklahoma, among other defendants, to obtain the restitution of “La bergère rentrant des moutons” (Camille Pissarro, 1886), currently on permanent display at the Fred Jones Jr. Museum of Art in Norman, Oklahoma.

Although O’Donnell—counsel to David Findlay, Jr. Gallery, a defendant no longer involved in the case—recognizes that the recent court decision is limited to whether the Oklahoma defendants could be sued in New York, he repeatedly brings up a 1953 Swiss court decision involving Camille Pissarro’s La Bergère as grounds for why Léone Meyer’s claim should fail, and why Mr. Lauder’s argument is baseless.

O’Donnell’s argument fails the common sense test. First, no one disputes that the Nazis stole La Bergère from Léone Meyer’s family.

Second, the 1953 Swiss court decision was not decided based on a late claim, as O’Donnell argues, but was decided against Léone Meyer’s father because he could not prove the “bad faith” of the art dealer who acquired La Bergère after it crossed the Swiss border from France.

Third, prior Swiss decisions involving looted art have long been held as doubtful or baseless in several U.S. jurisdictions. Even the Swiss government itself recognized in 1998 that the deck was stacked against claimants who wanted to file art restitution claims in Switzerland after World War II. New York courts have found/determined that “Swiss law places significant hurdles to the recovery of stolen art, and almost ‘insurmountable’ obstacles to the recovery of artwork stolen by the Nazis from Jews and others during World War II and the years preceding it.”

Finally, O’Donnell misses the point of Mr. Lauder’s editorial. As French government officials have recently stated in a public forum dedicated to France’s efforts to track and restitute looted art, the time for “clean museums” has come. Hiding behind technicalities and procedural loopholes to delay basic justice, i.e. restitution of looted property, is not morally appropriate, even less so when public institutions are involved.

Ronald Lauder is right. It is time for museums to do the responsible thing. It is time for museums to “clean” their collections of any tainted artwork by returning Nazi-looted artwork.


Abut the Author: Pierre Ciric is a New York attorney, the founder of the Ciric Law Firm, PLLC, and a board member of both the French–American Bar Association and the New York Law School Alumni Association.

Sotheby’s to auction restituted Pissarro’s “Boulevard Montmartre”

By Sarah Gordon, Esq.

Screen shot 2014-01-14 at 12.08.43 AMOn February 5, 2014, Sotheby’s London will auction Camille Pissarro’s Boulevard Montmartre, matinee de printempts (Boulevard Montmartre), formerly in the Silberberg collection. In 1935, German Jewish industrialist and world-renowned art collector, Max Silberberg, was forced to sell this painting at auction in Berlin. In 1999, his daughter-in-law and sole heir, Gerta Silberberg, found the work hanging in the Israel Museum in Jerusalem. The Israel Museum transferred title to Gerta Silberberg in 2000. In a symbolic gesture, Mrs. Silberberg loaned the painting to the Israel Museum, where it remained on display for the remainder of her life.

According to Sotheby’s, this painting is “one of the most important Impressionist masterworks to come to auction in the last decade.” The upcoming auction raises compelling questions regarding the future of restituting Holocaust era loot. (Sotheby’s. Press Office. One of The Most Important Impressionist Paintings to Come to Auction in the Last Decade Will Be Offered in Sotheby’s February 2014 Impressionist Modern Art Evening Sale. Sotheby’s London, 23 Dec. 2013. Web. 27 Dec. 2013. .; Bazyler, Michael J. Holocaust Justice: The Battle for Restitution in America’s Courts. New York: New York UP, 2003. 205.)

In a Press Release dated December 23, 2013, Sotheby’s underscores the artistic and historical significance as well as the compelling provenance of the Boulevard Montmartre. Max Silberberg’s collection of works, including pieces by Manet, Monet, Renoir, Sisley, Cezanne and van Gogh, was well published and exhibited around the world up through 1933. By 1935, Max Silberberg had become victim to the Third Reich’s antiemetic laws. After his company was Aryanised and sold and his home was acquired by the SS, Silberberg was compelled to consign most of his collection at a series of auctions at Paul Graupe’s auction house in Berlin in 1935 and 1936 (including Boulevard Montmartre). While Silberberg’s son, Alfred, fled to England after brief internment at Buchenwald, Max Silberberg and his wife were eventually deported to Theresienstadt and then Auschwitz in 1942, where they both perished. (Sotheby’s Press Office, 23 Dec. 2013; Bazyler, Holocaust Justice, 205.)

After Alfred Silberberg’s death, his wife, Gerta, became the sole surviving heir to Max Silberberg’s estate, taking up the difficult but at times successful search for his lost art collection. For example, she was the first British relative of a Holocaust victim to recover a work of art under the Washington Conference Principles on Nazi-looted art. The piece, Van Gogh’s, L’Olivette (Les Baux), Olive groces with Les Alpilles in the background (L’Olivette), was restituted to Gerta Silberberg from the National Gallery of Berlin in 1999. Shortly thereafter, she sold the LOlivette at auction at Sotheby’s in December 1999 for 5.3 million pounds. Mrs. Silberberg used the proceeds from that Sotheby’s auction to fund her ongoing search for further works of art that belonged to her father-in-law. The new owner of L’Olivette gifted the work to the Museum of Modern Art in New York City.

In anticipation of the February sale, Sotheby’s issued a Cataloguing preview detailing the complete provenance of Boulevard Montmartre. After it was sold under duress at the Paul Graupe auction house in Berlin on March 23, 1935, Boulevard Montmartre passed through a number of hands, including the famous Knoedler & Co. gallery, which acquired the piece on November 9, 1959. Knoedler eventually sold the painting to John and Frances L. Loeb on January 4, 1960, who thereafter donated the work to the Israel Museum in Jerusalem in 1997, where it remained even after it was restituted to Gerta Silberberg on February 1, 2000, thanks to Mrs. Silberberg’s generous loan.

With Mrs. Silberberg’s passing in early 2013, Boulevard Montmartre s now up for auction at Sotheby’s with an estimated value of seven to ten million pounds. (Sotheby’s. Cataloguing Preview, Impressionist & Modern Art Evening Sale (L14002). London: Sotheby’s, 2014. Print.)   The auction of Boulevard Montmartre raises important questions about the future of Holocaust restitution. How do we balance the goals of financial retribution to individual victims with the need for public access to cultural property? The sale of Boulevard Montmartre is an example of how these two goals might conflict.

On the one hand, this sale will redress theft on an individual level. On the other hand, a piece of Jewish cultural heritage is at risk of being lost to a private owner’s hands unless its purchaser donates it to a public institution. While on display in the Israel Museum, this piece served as a symbol of many things to its viewers. For example, to Holocaust survivors and their families, coming to view the painting in Jerusalem evoked images of closure and new beginnings after the unjustified displacement of not only property, but of the people to whom that property belonged. Yet, the piece is at risk of becoming part of a private collection where it can no longer serve as such a symbol. Further, the sale of this painting in the aftermath of Mrs. Silberberg’s death raises another difficult question – what is the future of restituting Holocaust era loot as a new generation is charged with the task? While the restitution of hundreds of works of art and property remains unaccomplished to date, there is an undeniable sense of urgency to complete restitution efforts while the rightful heirs are still able to pursue this goal.

As to the identity of the consignor (person or entity that inherited and is selling the Boulevard Montmartre), according to Mina Mitzi, Head of Sotheby’s London Press Office, “the painting is being sold to benefit people and causes close to Gerta [Silberberg’s] heart.” No further information is available from the Silberberg estate at this time.

One can only hope that the Silberberg estate will address this sale in a manner similar to how Mrs. Silberberg approached the restitution and sale of Van Gogh’s L’Olivette. In that case, the piece was displayed in a public space and the funds from its sale were used to continue the restitution of Max Silberberg’s lost art collection. As the painting heads for the auction’s block, may the soon-to-be new owner realize that the lot is not only precious but also encumbered with important history.


To view the full Sotheby’s Press Release on Boulevard Montmartre, click here. Further, to view a Cataloguing Preview that documents the complete provenance of the work, click here.   Sotheby’s. Press Office. One of The Most Important Impressionist Paintings to Come to Auction in the Last Decade Will Be Offered in Sotheby’s February 2014 Impressionist Modern Art Evening Sale. Sotheby’s London, 23 Dec. 2013. Web. 27 Dec. 2013. .   Bazyler, Michael J. Holocaust Justice: The Battle for Restitution in America’s Courts. New York: New York UP, 2003. 205.; Sotheby’s Press Office. 27 Dec 2013.   Sotheby’s. Cataloguing Preview, Impressionist & Modern Art Evening Sale (L14002). London: Sotheby’s, 2014. Print.