No “Lex Gurlitt” before German Elections in September
In March 2014, the German Bundesrat, the upper house of parliament, called on the Federal Government to review whether there was a need for an Act introducing new legislative provisions on the subject of art looted by the Nazis (BR-Drs 94/14). This was prompted by the scandal surrounding the art collection of Cornelius Gurlitt. Although the Federal Ministry of Justice produced a draft bill setting out amendments to the German Civil Code in August 2015, it was blocked by the Federal Chancellery and the Ministry of Finance since.
The proposals in the draft would have made it more difficult for someone in possession of a work of art today to argue that he has obtained title by acquisitive prescription (Ersitzung) or to plead the statute of limitations, and thus object to restitution claims made by parties injured by the Nazi regime. The draft also stipulated that under certain circumstances the person currently in possession, would receive compensation from the state if he was obliged to surrender the work as a consequence of this legislative impairment of his position. As late as May 2017 the Federal Government still had plans to discuss the subject in cabinet before their term of office ended. This emerged from their published project planning dated May 2017, p. 65. It led Sigrid Hupach, the cultural policy spokeswoman for the parliamentary group of the party Die Linke in the lower house of parliament, to ask the Justice Ministry how the Federal Government had settled its internal differences and whether a vote in the Bundestag could be expected before the end of the current legislature. On June 9, 2017 the Ministry let it be known(BT-Drs 18/12750, page 21) that no agreement had been reached as yet. Although the projected legislation was the subject of intense discussions, they said, they were “discussing other solutions” as well. So, there will probably be no “Lex Gurlitt” before the elections in September.
As I see it, the draft bill is no great loss. It’s main aim was to tighten up the liability of private individuals, while leaving the liability of the German state – which was after all the main perpetrator – more or less as it has been till now. Quite apart from that, the new regulations would have applied only in a very small number of the cases where art was lost due to Nazi persecution. This is because the statute of limitation or acquisitive prescription only apply in cases where the original owner retained ownership under the Nazi regime. Yet situations where that happened were few and far between. In the vast majority of cases Nazi persecution resulted not only in the persecutees losing possession of their works of art, but also in losing their ownership. This is especially true in the cases of forced sales. Thus, in most cases nothing would have changed. The outcome would have been a virtually pointless piece of legislation.