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Why the Germans Haven’t Returned $1 Billion Worth of Nazi-Looted Paintings

Munich authorities seem more interested in protecting an art dealer than in returning stolen works to their rightful heirs

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A self portrait by Otto Dix is seen on screen at a press conference on Nov. 5, 2013, in Augsburg, Germany, on the discovery of nearly 1,500 paintings, including works by Picasso and Matisse, looted by the Nazis. (Johannes Simon/Getty Images)
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The discovery of the largest cache of looted Nazi art since the end of World War II, with an estimated worth of well over a billion dollars, in a shabby Munich apartment belonging to an 80-year-old art dealer named Cornelius Gurlitt was an obvious revelation. The discovery that local authorities had chosen to keep that information to themselves for nearly two years was a disturbing shock. In the opinion of many scholars and legal experts, it calls into question Germany’s commitment to the restoration of looted art to its rightful owners.

On Monday, after a mounting uproar, a list of 25 artworks—three paintings and 22 drawings—was released on the Lost Art Internet Database, the official German governmental website for looted art. But the overwhelming majority of works in Gurlitt’s collection remain unknown, an enormous black hole for potential claimants, some number of whom have surely died during the delay. “The amount of information that’s available is just really astonishingly small,” said Frank Lord, a lawyer at Herrick, Feinstein with experience in looted-art cases. An initial accounting offered on the site indicated that less than half of Gurlitt’s artworks were suspected to be looted from Jewish collectors. “If they have a sense that 590 works are from Jewish ownership, then they need to be published now,” said Anne Webber, co-chair of the Commission for Looted Art in Europe.

According to reports, the local authorities in Augsburg stumbled across Gurlitt’s collection in early 2012, after the 80-year-old art dealer flashed an envelope crammed with 500-euro notes on a train, raising suspicions and prompting an investigation into his finances. A raid on Gurlitt’s apartment uncovered 1,400 works of art—paintings and drawings—many of which were suspected to have been looted from Jewish owners during the Nazi era. “Something like this is in and of itself extraordinary,” Lord said. “There’s really nothing like it. It’s sort of unprecedented.” But no word of the Gurlitt cache emerged publicly until a report early this month in the German magazine Focus.

Gurlitt’s father Hildebrand had been a prominent art dealer in the 1930s and ’40s and had been known to be involved in forced sales by Jewish art dealers and collectors. After the war, Hildebrand Gurlitt testified that the overwhelming majority of his collection had been destroyed during the Allied bombing of Dresden. The younger Gurlitt had occasionally sold lesser-known artworks through auction houses willing to turn a blind eye to issues of murky provenance but had otherwise passed below the art world’s radar. The delay between the discovery of Gurlitt’s cache and its coming to the attention of the public, as well as the seeming intransigence of the German authorities, brought up inevitable questions about Germany’s mixed record regarding looted art. Was the German government hoping to run out the clock on potential claimants?

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According to Webber, the German authorities in another looted-art case had suggested they would need 18 months to research the provenance of each individual work in doubt. “I think that, if the past is prologue, the tendencies at work here are much more bureaucratic than anything else,” said Gary Osen, managing partner of Osen LLC, who has successfully represented claimants in the past. “It’s not so much a function of trying to run the clock out as having a complete lack of consideration or any thought process that they have a moral obligation and a sense of responsibility for returning this kind of property. They just don’t see it that way.” Osen believes that local authorities may have hoped to quietly repatriate these artworks into the collections of Bavarian museums and that only the resulting controversy has caused them to rethink their plans for the Gurlitt collection. “I don’t think that was the first thing, or the second thing, that entered their minds when they started with this.”

The uncovering of the Gurlitt haul prompts a multitude of questions about the legal options open to potential claimants—and most of those questions cannot be answered until the German authorities release a full list of the works in the collection. Some experts raised concerns that the 30-year statute of limitations on recovering stolen property might limit claims by the descendants of Nazi-era owners. Most, though, were in agreement that the statute of limitations was unlikely to play a significant role in the resolution of any such claims.

Art Loss Register Chairman Julian Radcliffe suggests that a deal is likely imminent whereby Gurlitt gives up all rights to the disputed artworks in exchange for leniency on the back taxes on his collection. “If the German authorities do what I suggest,” Radcliffe said, “then the 30-year limitation would not be relevant.” If Gurlitt were deemed to have been in possession of stolen property and taken efforts to conceal it, the statute of limitations would similarly not take effect. “There’s also a lot of misinformation in the media about this issue because, frankly, most of the people, including the people speaking from the government, haven’t really thought this through very carefully,” Osen said.

Germany’s patchwork of laws regarding restitution of stolen art would be more likely to hinder potential claimants. After the 1998 Washington Conference on Holocaust-Era Assets, Germany indicated it would streamline the process of sorting, assessing, and resolving all such claims, but such efforts have been halting at best. As a result, rather than a smooth transition of stolen artworks back to their rightful owners, each painting in Gurlitt’s stash may face a different fate, depending on the technical details of its provenance—who had originally owned it, the location it had been taken from, whether a private collector or public institution had originally been in possession of it, and even whether or not a given artwork had ever been hidden in what is now the former East Germany.

‘It is not sufficient for Germany to say, “Well, the law prevents us from doing this.” Germany must ensure that the law enables justice to be done, even at this late hour.’

“One would have hoped that in the years since 1998, Germany would have established a process to sort these kinds of issues out, and even to modify their legal framework to deal with rather unusual, but not unforeseeable, kinds of circumstances,” Osen said. “Unfortunately, they’ve really dropped the ball on that entirely. And so the way that the German bureaucracy thinks of this is really in the narrowest possible legal terms, following civil or administrative law to its random but inexorable conclusion, depending on what serves their immediate interest.” Currently, institutions are left to adjudicate their own claims, meaning that a claim against a looted artwork is ultimately left to the determination of the museum itself. Instead of a unified German policy for handling looted-art claims, such matters are often left to regional authorities, who may or may not be aware of the highly sensitive moral and political dimensions of their work.

“The German state authorities who were running this investigation probably did not appreciate the international and German national interest in the Washington agreement signed by Germany, which means that they had the duty to publish these items,” Radcliffe said. “The local government thought that doing so would breach their legal responsibilities to the person they’re investigating, i.e., to Gurlitt. I think that’s why the federal government has now stepped in.”

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Why the Germans Haven’t Returned $1 Billion Worth of Nazi-Looted Paintings

Munich authorities seem more interested in protecting an art dealer than in returning stolen works to their rightful heirs