On 2 November 2016 the “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property” adopted rules of procedure in consultation with the German Federal Government, the Federal States and the National Associations of Local Authorities. The Advisory Commission is often referred to as the “Limbach Commission” after its former chairwoman Jutta Limbach, who passed away in September 2016.
The new rules were adopted a year after the head of the Prussian Heritage Foundation, Hermann Parzinger publicly called for substantial changes to the Commission’s working methods. One of Parzinger’s key demands was that it should be possible to call upon the Commission unilaterally, i.e. even if only the heirs of the Nazi persecutees wish the Commission to deal with a restitution request. This suggestion has not made it into the new procedural rules. Monika Grütters (Christian Democratic Party), the Federal Government’s Commissioner for Culture and Media, argued against Parzinger’s proposal in November 2016. In an answer to a written question by Sigrid Hupach, an opposition member of the Federal Parliament (“The Left”) she said that the current system had proven its worth in the past. She also saw legal restraints: Allowing the Commission to issue a recommendation if only one party asked for it would have required introducing new legislation, i.e. involving parliament. She also argued that this approach would come close to the introduction of a new type of court. This in turn would probably violate Article 92 of the German Basic Law, wrote Grütters. The article stipulates that only judges and courts are fit to bindingly decide cases without the consent of the participants. Despite these arguments Rüdiger Mahlo, the head of the German section of the Conference on Jewish Material Claims against Germany (JCC), has called for the adoption of Parzinger’s suggestions.
Grütters Unwilling to Involve Parliaments
Grütter’s answer will have raised eyebrows with Hupach and a member of the Bavarian legislator, Georg Rosenthal (Social Democrats). A brief inquiry by Rosenthal and – on the federal level – by Hupach aiming at the participation of the state and federal parliaments in the discussion of the new procedural rules had earlier been given short shrift by the Federal and the Bavarian Governments. The governments let the legislators know that it was for the the executive branch of government to decide upon these questions, and that they were not a matter for the parliaments.
In December 2016 Rosenthal and other members of the opposition Social Democrats even wanted the Bavarian Parliament to require the Bavarian Government to withhold its consent to the changes and have the matter discussed and decided in parliament. In January the Bavarian Parliament’s Committee for Cultural Affairs and Sciences nevertheless resolved that the matter was settled (probably because Bavaria had already agreed to the new rules in October). Although everything seems sorted out now and the Commission has issued two recommendations on Nazi looted art since November 2016, the political initiative of the JCC may re-open the political debate on the question despite, or even with a view towards the approaching federal elections in September.
Claimants Dependent on German Good Will
Critics (including the author) see the following shortcoming of the current system: It is now up to the German States and municipalities, who typically run public museums, to decide whether they wish the Advisory Commission to issue a recommendation or not. The fact that they cannot be forced to consent to the involvement of the Commission maintains a situation in which the heirs of the persecutees remain dependent on the political good will of the German authorities. And that good will may sometimes be missing. One case in point is the dispute between the heirs of Traube v. the City of Düsseldorf regarding an old master by Mignon. It took the city from 2009 to 2013 and a public campaign before they agreed to accept the involvement of the Commission. In 2015 the Commission recommended that Düsseldorf should pay half the estimated value (€200,000) to the heirs. Another case in point is Behrens v. Düsseldorf. The question of whether Ms. Grütters is right in saying that a legal situation like this really “has proven its worth”, depends on one’s own political standpoint towards restitution. At any rate: It would be interesting to know the number of cases where German cities and states have refused to accept the involvement of the Commission.
Recommendations or Decisions?
Grütter’s legal argument that Parzinger’s suggestion would come too close to introducing unconstitutional courts has to be seen in light of the circumstance that the Advisory Commission used to not actually decide at all. At least in the past it was careful to emphasize the fact that its recommendations were not binding. The founders of the Commission only “expected” that the parties would follow the recommendations. Even recently, the founders stressed the role of the Commission as a mediator. In the past it was a political question whether a museum followed the recommendation or not – just like restitution without the involvement of the Commission was such a question. One may argue that the new procedural rules have changed that. The new rules make it necessary for both parties to agree to abide by the recommendation before the commission takes on a case. It may be that the solution to the constitutional problem lies in doing away with this requirement which the Commission itself introduced after consultations with the Commission’s founders.
Implications on the Guelph Treasure Case in the US
While it is difficult to say how many more cases would be heard by the Commission if Parzinger’s suggestion were to be enacted, it is possible to say that this question is under discussion in the law suit regarding the “Guelph Treasure”. The case has been pending in Washington, D.C. since early 2015. The treasure in question is a collection of medieval art, currently owned by the Prussian Heritage Foundation. It is on exhibit in Berlin. The former German state of Prussia bought it in 1934 from a consortium of mainly Jewish art dealers. Several of the dealers’ heirs have sued the Foundation for its restitution. The Foundation says that the Washington court did not have jurisdiction, partly because Germany had established an adequate forum for cases like this – the Advisory Commission – with the “moral authority” to deal with such cases. The claimants say that the Commission was insufficient for this purpose and had – after both sides had agreed – dealt with the case insufficiently in 2014, making it necessary for the heirs to seek justice outside of Germany.
It is probably true to say that the plaintiffs‘ argument would have less weight if it were possible for the heirs of persecutees to involve the Commission in other cases, even in those in which the public museums want to avoid the Commission scrutinizing how a work of art came into the museum’s holdings. In other words: the chances of keeping the Guelph Treasure may improve if Germany adopts Parzinger’s suggestion.
Henning Kahmann, www.kahmann-law.de