The coordination office in Magdeburg continues to post details about works of art seized from Cornelius Gurlitt in Schwabing, with a total of 327 works now available for viewing. There has been almost no discussion yet, however, of what process the government will employ to allow claimants to make their case. Those in the United States have options discussed further below.
Frustratingly, the works on www.lostart.de can be sorted by artist or title, but the database is still not searchable. Weekly additions have been promised, out of totals that the office now describes as follows:
- Approximately 970 works are suspected of having Nazi-related connection, whether having been seized from Jewish owners, or condemned as “degenerate art.”
- Of those, approximately 380 were confiscated as part of the “degenerate art” action/seizure of 1937 (after which Hildebrand Gurlitt was among the handful of approved dealers in what was by then otherwise considered contraband).
- That leaves roughly 590 works to check for concerns about looting, theft, or sales under duress.
It must be said that this is a huge improvement over the state of affairs (and information) when the story broke just about a month ago. It has also been long enough, however, that the German government needs to be more transparent about its intentions. The task force is no doubt working very hard, with the goal of releasing to the website only those works whose ownership is genuinely in doubt (since they have been clear from the outset that the remaining works are simply other art owned by Gurlitt, which they intend to return to him). Merely listing the contact information for the Augsburg prosecutor is not enough.
As a result, however, the burden remains entirely on potential claimants, both as to what may be in the collection, and as to what their options might be. It may well be that the German government (or the Bavarian government) sets up a specific claims process. That would certainly be ideal. If not, expect Germany itself to the be the subject of claims. We can’t speak to German law, but once again we commend you to the Dispute Resolution in Germany Blog (a go-to resource for the German legal analysis on the topic) by Peter Bert. Bert posts a guest publication by Professor Matthias Weller, co-director of IFKUR and director of the EBS Dispute Resolution Center, who notes that once the authorities suspected there was a crime, they were required to seize the paintings pursuant to Sec. 108 German Code of Criminal Procedure (Strafprozessordnung; StPO). Now that there is a dispute about to whom the paintings actually belong, the authorizes cannot simply give them back to Gurlitt. Rather, “If it is not sufficiently clear to the public prosecution that another person has a better right to possession than the person from whom the items were seized, the public prosecution must inform potential right-holders and set a time limit for initiating civil proceedings in which a civil court will decide the issue.” The post also concludes that the act of seizure cuts off Gurlitt’s right to claim ownership by prescription, i.e., the argument that having had possession for a sufficient period, he is now the owner. The Bavarian prosecutors have also stated that they believe the statute of limitations does not apply.
On this side of the Atlantic, the question seems to be this: when will the authorities act in that manner, if they ever do? Based on the line of cases since Altmann v. Republic of Austria, and all the ups and downs in them, I believe a U.S. resident has a strong case for a civil claim against Germany and/or Bavaria as the holder of the paintings under the Foreign Sovereign Immunities (“FSIA”). Specifically:
- The most critical point is that the defendant would be a sovereign nation (Germany) or a political subdivision (Bavaria). Claims against Gurlitt alone would post jurisdictional issues (Gurlitt seemingly has no contact with the United States).
- The paintings were clearly alleged to to have been taken in violation of international law. Even seizures by governments merely aligned with the Nazis (e.g., Hungary) have been held (at the pleadings stage) to be colorable violations of international law, so acts by the Nazi government itself would present an easier hurdle to clear. That would satisfy the so-called “expropriation exception” to sovereign immunity under the FSIA, the road map provided by Altmann.
- Germany clearly engages in commercial activity in the United States. Moreover, there is some that that certain of the paintings themselves came to the United States, which could satisfy the “commercial activity” exception in the FSIA as well.
- Perhaps unique among claims in the last two decades, there is barely even a debate to be had about the statute of limitations. Hildebrand Gurlitt advised the Art Looting Investigation Unit that the works had been destroyed in the Dresden bombing, and it appears that he was believed. There was, quite literally, no way for any claimant to know either that the art still existed, where it was, or who had it.
- Other prudential doctrines applied by some federal courts could still pose a challenge, but the application of those is harder to gauge in the abstract.
The foregoing is merely a jurisdictional analysis, that is, whether claims to ownership may be litigated in U.S. courts. It seems that they could, though substantive German property law may be applied. Even there, though, while German and other continental countries allow good faith purchasers to establish title, is that something Cornelius Gurlitt could prove?
The fact is this: Germany has taken major steps to make available information from which claimants and their families can learn if their collections are involved. But there has been no concrete sense yet of whether any meaningful process will follow. For those here in the U.S., you may well be in a position to make the next move. Anyone interested in more discussion can utilize the contact information at the left side of this page.