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Paul W.L. Russell, LL.M.
Paul W.L. Russell, LL.M.
senior partner

Paul Russell is a lawyer for international and national businesses, art dealers, museums, and affluent individuals. He specializes in corporate governance, contracts and corporate litigation. He has been a lawyer at Russell since 1976.
 

@: paul.russell@russell.nl
t: +31 20 301 55 55


Dutch government can block restitution of Nazi-looted art by designating it a protected cultural object

Publishing date: 4 December 2020

   Nederlandse versie

Even if the Restitutions Committee recommends to return looted art, it is not certain that the work of art will actually return to its rightful claimants. It could be that the work of art is irreplaceable and indispensable to Dutch cultural heritage and may not leave the Netherlands.
 

Assessment of restitution application for looted art

The Dutch government’s art property contains works of art that may have been looted by the Nazis. The owners therefore involuntarily lost possession of these works of art. This applies in particular to the Collectie Nationaal Kunstbezit (NK-collectie; Netherlands Art Property Collection). Next of kin of the original owners of these objects can submit a request for restitution to the Restitutions Committee. The Restitutions Committee assesses the request by looking at the interests of the claimants and those of the current owner, among other things. In addition, the interests of public art property are taken into account. If the Restitutions Committee is convinced of the legitimacy of the claim, it advises the Minister of Education, Culture and Science to return the work of art. This concludes that case and the work of art can be returned, can’t it?
 

Procedure for alienation of works of art

If the government wishes to dispose of a cultural good or collection, this must always be published on the basis of the Heritage Act. It is done by publishing the intention to alienate the cultural good in the Staatscourant (Government Gazette). See, for example, this recent publication. Then, everyone has six weeks in which to submit an opinion “on the question whether the cultural object or collection is of special cultural-historical or scientific significance and is irreplaceable and indispensable to Dutch cultural property”. Besides, the Minister can ask a special committee for advice on this. If the answer to the question is positive, the work of art can be designated a protected cultural property. This scheme also applies to the implementation of a recommendation by the Restitutions Committee.
 

Consequences of designation as protected cultural property

A designation as protected cultural property means that a work of art cannot be sold, given away, auctioned, leased, and given in loan without permission. Relocation within the Netherlands must also be reported.
 

No relocation to a foreign country

Most relevant in this context, however, is the provision that the owner needs permission from the Minister if he wants to take the work abroad. It does not matter whether it concerns sale, loan, or moving it to the owner’s home.

Most looted art was owned by Jewish families. During and after the Nazi regime, these families were often scattered all over the world. Thus, many claims come from abroad.

The consequence of the procedure for alienation is that after a successful claim there will still be the chance that they will not be able to freely dispose of their property. Surely that is not what this procedure is for? Besides, the Restitutions Committee has already taken into account the interests of public art possession in its judgment. Why should the Committee’s decision be called into question in this way? And why should it be called in question by the government itself?

The underlying problem is that the scheme for the designation as protected cultural good does not take into account the special situation of restitution. The procedure is based on the situation that the owner of a cultural object in the Netherlands is a resident of the Netherlands, as can be seen, for example, from the provision that a protected cultural good may not go to a non-resident in the event of a division of an estate. However, in the case of restitution claims this principle is not correct.
 

Change in designation policy

Fortunately, so far it has not occurred that a work of art had to remain in the Netherlands after its return. This is partly due to a reluctant designation policy. However, this policy was terminated on the advice on the Pechtold Committee in December 2019.
 

Evaluation of restitution policy

The same Committee also recommended that the ongoing evaluation of the restitution policy should include “a final judgement on whether returned art could qualify for designation” (Recommendation 3.2). In our opinion, this evaluation is indeed highly desirable and there can only be one answer: an unequivocal “no”. Art to be returned should not be preserved for the Netherlands via this “detour”. This is not compatible with the core idea of restitution: the reparation of the material injustice done to victims of persecution. In other words: art objects lost involuntarily must return to the original owners or their descendants.

So what can be done? Of course, in consultation with the rightful owners it is possible to see whether they are willing to leave the work of art in the Netherlands. This has happened, for example, in a case handled by Russell Advocaten at the Restitutions Committee. After the restitution application was granted, Jan Toorop’s painting “Gebed voor de maaltijd” was bought again by the Zeeuws Museum. However, this will always be on a voluntary basis and not enforced by an instruction. This is not compatible with the Washington Principles.
 

More information

Do you have any questions about he new policy of the Dutch Art Property Collection? Do you want to know what the consequences might be for your art property? Or are you looking for advice about the sale of art outside the Netherlands, distribution of art in the family, or all other art related questions? Please contact our team of specialized lawyers of call or Paul W.L. Russell, LL.M. (paul.russell@russell.nl).
 

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