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New rules restitution policy also apply to old cases

Publication date 30 March 2021

The Dutch restitution policy returns to its original principles and is rightly becoming more generous. Cases that have already been settled can also be resubmitted. What will change in the policy?

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The Dutch restitution policy returns to its original principles and is rightly becoming more generous. Cases that have already been settled can also be resubmitted. What will change in the policy?

The Dutch Minister of Education, Culture and Science van Engelshoven reacted to the recommendations of the committee appointed to evaluate the restitution policy on Nazi-looted art, the Kohnstamm Committee. She adopts these recommendations in full and in some respects even goes further than what was suggested by the Committee. In doing so, the Netherlands returns to the original principles of the restitution policy, the Washington Principles.

No more balancing of interests

The most important change is that the balancing of interests between the current owner and the rightful claimant will be dropped. The importance of public art ownership also, and rightly so, no longer plays a role.

When this balancing of interests was introduced in 2007, I already observed that it would introduce “an internationally unprecedented criterion”. The Washington Principles leave some space for a balancing of interests (“just and fair solution”), however, it is only relevant for the way in which the restitution is made (return or compensation) and not for the question whether restitution should take place at all. Unfortunately, the Restitutions Committee has interpreted this differently and has rightly been blown the whistle on for this.

What are the new criteria?

In the event of a request, the Restitutions Committee has to assess the following:

  1. Is the applicant the original owner or his/her heir? This must be highly plausible.
  2. Was the loss of possession caused by circumstances directly related to the Nazi regime? Here, the threshold is slightly lower: it must be sufficiently plausible.

If both questions are answered in the affirmative, restitution will always take place in case of State property.

If it concerns property of others – for which there are binding-opinion proceedings – one more question has to be answered:

  1. Was the current owner in good faith or did he know that the original owner had lost ownership as a result of the Nazi regime? The rule here is that local authorities should not invoke good faith if their investigation into the provenance was inadequate according to current standards. Formally, however, they still may do so.

If this question is answered in the affirmative, the Restitutions Committee must search for a mediatory solution. It no longer has the discretion to turn down the restitution application if the first two questions were answered in the affirmative.

Outrightly rejecting restitution on the basis of balancing the interests of the museum against those of the grandchildren and great-grandchildren is no longer possible. In that case, restitution is the starting point and there must at least always be some compensation for the heirs. This also means, it is no longer the case that the more valuable the work of art, the less likely it is to be returned. And this is entirely in line with a “fair and just solution” that must be reached under the Washington Principles.

A new chance for old cases

Earlier, I wrote about the report and observed that it is unclear what the consequences of a change in the restitution policy would be for cases that have already been settled. On this point, the Minister’s reaction now provides more clarity: Cases that have already been settled can be resubmitted to the Restitutions Committee. Here, different conditions apply, depending on the owner:

  • State property: The rejection of the original application must be based on the criteria that have now been changed.
  • Property of others: Both parties have to agree with the resubmission of the application. This means the rightful claimants first will have to get in touch with the current owner.

Conclusion

The new criteria put the core of the restitution policy back in focus: the restoration of the right for the victims of the Nazi regime. That is a good thing. The criteria must be applied generously, so that justice is done, also in cases that have already been settled.

In that respect, it is to be hoped hat the minister’s observation that it becomes more and more difficult to determine who the rightful claimants are and whether the loss of possession was involuntary, will not be an excuse to still reject requests. The policy is yet to be incorporated in the rules of the Restitution Committee. So this is undoubtedly to be continued.

More information

Russell Advocaten has extensive experience with cases before the Restitution Committee and was the first law firm to successfully assist a client in a binding opinion request. Do you want to submit a case to the Restitutions Committee? Or do you want us to assess whether a closed case is suitable for resubmission? We will be happy to assist you. Please contact Paul W.L. Russell, LL.M. (paul.russell@russell.nl or +31 20 301 55 55).

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