Was this Picasso lost to the Nazis? Waris and Bavaria disagree.

BERLIN — About two decades ago, Germany established a national commission to resolve disputes over art that was looted or sold in the Nazi era. While the opinion of the Advisory Commission is not binding, its recommendations have been followed regularly and approximately 20 artifacts have been returned to the heirs of those who suffered because of the Third Reich.

But now the Bavarian State Painting Collections, which is owned by the state of Bavaria, has refused to refer Picasso’s case to the commission, a break from tradition that has drawn scrutiny from the federal government and a warning from the president’s advisor. Commission itself.

“It is not clear whether the state should refuse to use an arbitration mechanism that it has established itself,” said Hans-Jurgen Papier, the commission’s chairman and former chairman of Germany’s constitutional court.

Critics of the decision say that, whatever the merits of a particular claim, the 16 German states should respect the authority of the panel they established with the federal government in 2003, when Germany endorsed the Washington Principles. , a 1998 international agreement responding to claims arising from “just and fair” conduct in the Nazi era.

“Regardless of the individual case, the agreement to go to the commission must be a matter of course,” said Ulf Bischoff, a Berlin-based lawyer for the heirs of Paul von Mendelssohn-Bartholdi, a Jewish banker who once owned Picasso. “The historical context and the demands of fairness and respect require a lot.”

The authorities of the Bavarian collection have made restorations for a total of 20 artifacts – most recently on 31 May – often acting on the basis of their own proven research, without the need for commission to step in. In three cases, where there was disagreement, they agreed to involve the Advisory Commission. But in this instance he states that the painting, “Portrait of Madame Soler”, dated 1903, was not sold as a result of Nazi persecution, a position the heirs are fighting.

The painting depicts the wife of a tailor who befriended Picasso in Barcelona and supported the artist in troubled times with commissions in exchange for clothes and cash. It is one of five Picasso works of the Mendelssohn-Bartholdi family, which were published in 1934 and 1935 by Berlin art dealer Justin K. Thanhauser was sold.

The Bavarian State Painting Collections purchased the painting from Thanhauser in 1964. That institution and the government of Bavaria maintain that, in their view, the family did not sell the “Portrait of Madame Soler” as a result of Nazi persecution and the case was closed.

The successors argue that Mendelssohn-Bartholdi sold the work under pressure. They also state that the current holder of a disputed act should not be the sole judge of a claim, and that they want the matter to be investigated by an explicitly established advisory commission to arbitrate such disputes.

Though the commission is seen as the national tribunal for such matters, it can be called for arbitration only if both the parties agree.

German Culture Minister Monica Grüter has said she expects all German museums to refer matters to the panel if the heirs request, according to a December 2016 letter she sent to the Mendelssohn-Bartholdi heirs. His ministry reiterated that position in a recent email.

But the ministry noted that, under Germany’s federal structure, the decision rests with the states.

Bavaria had once earlier refused to refer a case to the Commission. This was a case involving six works of Max Beckmann, which were claimed by the heirs of the art dealer Alfred Flechtheim. However, the controversy arose in 2013, before the Minister of Culture made clear his expectation that all state-funded museums submit cases to the commission.

“I have absolutely no understanding for the fact that some publicly funded institutions refuse to refer matters to the advisory commission,” Gruters said at a 2018 conference to mark the 20th anniversary of the Washington Principles .

Commission President Papier rejected Bavaria’s view that the claim is “irrelevant” as unreasonable, saying it is up to the Commission to evaluate such matters, and not the holder of the disputed artwork. Bavaria’s resistance to refer the matter to the panel “should leave the impression that Germany has no will or proper means to remedy historical injustice,” he said in an email.

He has discussed the matter with the Bavarian Culture Minister in recent months and brought it to the attention of the head of state, Markus Söder. But the state government is adamant. The state’s culture ministry said in an email that Bavaria believes the advisory commission in dispute with the heirs “is not a proper means of achieving final legal peace” because the painting was not lost due to Nazi persecution.

Paul von Mendelssohn-Bartholdi was a relative of the famous composer Felix Mendelssohn and the Enlightenment philosopher Moses Mendelssohn. The heirs say that by the time he sold the paintings to Thanhauser, he had suffered extensive financial damage at the hands of the Nazis. He was expelled from the Central Association of German Banks and Bankers in 1933 and from the board of the Reich Insurance Office in 1934. He died in 1935.

The heirs, including German historian and political scientist Julius H. Shops Incorporated, previously asked Bavaria to refer the matter to the Advisory Commission in 2010. When Bavaria refused, they filed suit in the United States. The case was eventually dismissed by the Supreme Court in 2016, which upheld the District Court for the Southern District of New York’s decision that Bavaria was entitled to sovereign immunity and had no grounds for trial in the United States.

But over the past 12 years, other entities have agreed to either return or pay compensation for four other Picassos of the Mendelssohn-Bartholdi family sold to Thanhauser under similar circumstances. In 2009, Solomon R. The Guggenheim Foundation settled the claim for “Le Moulin de la Galette” and the Museum of Modern Art in New York settled for “Boy Leading a Horse”. The museums had previously attempted to block the claims, which they said had “no basis” by requesting a court declaration confirming their ownership. The final terms of the settlements were not disclosed, although both artifacts remained in the museum collection.

Later that year, the heirs entered into an agreement with the Andrew Lloyd Webber Foundation in 1903 for “Portrait of Angel de Fernando Soto”, also known as “The Absinthe Drinker”, which the Foundation acquired at auction in 1995. and was sold in 2010 for $51.8. Million with commission at Christie’s in London.

And just last year, the National Gallery in Washington Said it would return a pastel, “the head of a woman”, to Mendelssohn-Bartholdi’s successors.. The museum’s rationale for transferring ownership of the artwork was “to avoid the heavy toll of litigation”. This decision, it said, “does not constitute an acknowledgment of the merit or validity of the claims made.”

The family’s only Picasso claim remains unresolved “Portrait of Madame Soler”.The advisory commission, which is not a court, is the only recourse for heirs in Germany, where trials to recover Nazi-plundered art are rarely successful due to limited laws and other legal constraints.

This is not the first time that the limited powers of the Commission have been tested. In another recent case, a foundation in Bavaria refused to pay a settlement recommended by the panel to the heirs of a Jewish dealer in music supplies for a valuable violin lost in the Nazi era. After The New York Times and the German Media reported the matter, the Foundation agreed to pay.

The difference with “Portrait of Madame Soler” is that this time the state itself is disregarding the authority of the advisory commission, Bischoff said.

“If Bavaria gets away with this, then priority is set and the commission is a forum for arbitration on minor tasks where agreeing to a hearing may seem opportunistic because the outcome does not matter,” he said.

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