Case Review: German Advisory Commission’s Recommendation in Rieger v. City of Cologne (2021)

June 29, 2021

By Rachel Sundar.

Until 2021, with one exception, the German Advisory Commission on the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (“the Commission”), had recommended merely one to two restitutions annually.^[1] Yet with its recent recommendation in Rieger v. City of Cologne, issued on February 8th, 2021, and the ensuing recommendation published on March 26th, 2021, the Commission may be setting a new record.^[2] The former recommendation came six days after the Commission had published its opinion in Max Fischer v. Staatliche Kunsthalle Karlsruhe, leading to the restitution of Egon Schiele’s Kauernder weiblicher Akt (Crouching Female Nude) to the heirs of Heinrich Rieger, the initial owner of the watercolour in question.^[3] An examination of the history and purpose of the Advisory Commission, as well as its recent recommendation in Rieger v. City of Cologne offer insight into what will occur in future German restitution claims of Nazi-looted artworks.

History and Purpose of the Commission

The Advisory Commission was established in 2003 as a national effort (between the German government, the sixteen German federal states, and the municipalities) to fulfill restitution obligations as stipulated in the Washington Principles of 1998,^[4] as well as in the 1999 Joint Declaration of the Federal Government, the Länder and the central municipal associations on the discovery and restitution of Nazi-confiscated cultural property.^[5]

In its original state, the Commission consisted of eight members, all of whom were appointed for an unlimited term by the Federal Commissioner for Culture and the Media in agreement with the Standing Conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany and the central local government associations.^[6] Following a revision of the aforementioned agreement in 2016, the Commission may now comprise a maximum of ten members. New appointments are subject to a limited term of ten years.^[7] Members of the Commission have traditionally represented a wide variety of backgrounds, ranging from academics and experts in the fields of law, art history, and philosophy to esteemed judges and political figures.^[8] This diversity has proven to be an integral aspect in ensuring that the Commission’s recommendations remain equitable.^[9]

The Commission is responsible for addressing requests to intervene in various disputes concerning the restitution of cultural assets seized as a result of Nazi persecution, particularly from Jewish victims of Nazi oppression during the National Socialist regime from January 30th, 1933 to May 8th, 1945. Such requests for intervention are not limited to former owners or their heirs. Both public and private institutions including museums, libraries, archives as well as private persons currently in possession of the asset in question are equally able to make such requests.^[10] Their ability to do so is a direct application of both the Washington Principles and the Joint Declaration.[11] A key prerequisite for such intervention and a vital element of the efficacy of the Commission’s recommendations is the agreement of the involved parties to enter into such mediation procedures and to respect and apply in good faith the non-binding recommendation set forth by the Commission.^[12] As such, the ultimate objective of a recommendation is not only the successful repossession of seized cultural assets, but also the amicable settlement between both, or all parties involved. In its efforts to achieve such ambitious goals, the Commission must handle each case with a strong sense of objectivity and attention to detail. In doing so, it carefully considers any and all circumstances in which the loss and subsequent acquisition of ownership of the cultural property took place.

The Commission in Rieger v. City of Cologne

Since its conception in 2003, the Commission has issued a total of twenty-one recommendations.^[13] The Commission published one of its most recent decisions in Heinrich Rieger v. Stadt Köln on February 8th, 2021.^[14] The recommendation addresses the request made by both heirs of Dr. Rieger as well as the city of Cologne regarding a watercolor by Egon Schiele, titled Crouching Female Nude.^[15]

While originally a central piece in Dr. Rieger’s personal art collection, the watercolor was procured in 1966 by the Freunde des Wallraf-Richartz-Museum und des Museum Ludwig e.V, a society tasked with supporting the work of Cologne’s two main art museums.^[16] The painting is currently part of the Museum Ludwig’s collection.^[17] Although the heirs of Dr. Rieger wished for a resolution that would result in the restitution of the Schiele painting, the City of Cologne hoped that by requesting further research into the circumstances of the loss of ownership, a different outcome might be achieved.^[18] In order to establish the validity of such a restitution claim the Commission had to carefully examine the transactional history of the watercolor in question, thereby determining whether it was seized from Dr. Rieger as a result of Nazi persecution, or sold freely, prior to the annexation of Austria in March 1938.^[19]

Facts

Dr. Rieger (1868–1942) himself was a Jewish-Austrian dentist, and one of the most prominent early collectors of Schiele and his contemporaries.^[20] The quality of his extensive collection was considered superior even to that of public institutions and was thought to comprise over 800 works at its peak.^[21] However, the annexation of Austria in 1938, the ensuing systematic persecution of Jews, and the Aryanization of Jewish property quickly led to the dissolution of Dr. Rieger’s prized collection.^[22] Although it has been deduced from letters between his wife, Berta Rieger, and their son that most of the collection was forcibly sold, no specific transactional documentation of the Crouching Female Nude has been found.^[23] Dr. Rieger and his wife were murdered in the Theresienstadt Ghetto and in Auschwitz respectively. They were, however, survived by their son, Robert, who managed to escape to New York in 1938.^[24]

In his quest to effect the restitution of his father’s lost collection, Robert Rieger submitted an official loss report to the Austrian National Monuments Office in 1947, consisting of 130 to 150 Schiele drawings.[25] While it cannot be proven that the Crouching Female Nude was part of the aforementioned list, Dr. Rieger’s heirs were able to demonstrate to the satisfaction of the Commission that Robert’s knowledge of his father’s collection was substantial enough for him to be certain that the watercolor in question was not sold prior to the annexation of Austria.[26] The painting was eventually found to be in the art dealer Walter Geyerhahn’s possession, upon its reemergence on the market in 1965.[27] While the exact date of acquisition remains unknown, the City of Cologne has indicated the possibility that Mr. Geyerhahn’s father, Norbert, a Jewish merchant who fled to Brazil in 1938, had purchased the painting prior to his exile.[28] Dr. Rieger’s heirs contest this hypothesis and claim that the painting was most likely purchased by the younger Mr. Geyerhahn on the art market after 1945.^[29]

Recommendation

Based on the aforementioned facts, and further evidence collected and provided by both parties, the Commission addressed the main question at issue: until when was the painting part of Dr. Rieger’s collection, and most importantly, was it sold voluntarily prior to 1938 or lost as a direct result of Nazi persecution?^[30] After much consideration, the Commission concluded that despite a number of uncertainties in the painting’s exact transactional history, the heirs of Dr. Rieger satisfactorily fulfilled their burden of proof.^[31] As such, the Commission decided that the painting in question was indeed most likely forcibly sold under circumstances of persecution after Austria’s annexation in March 1938.^[32] The official recommendation of the Commission is that the Crouching Female Nude be restituted to Dr. Rieger’s heirs. The City of Cologne has accepted this recommendation.^[33]

Takeaways

Nazi restitution cases are unique in that they are often deeply complex and incredibly sensitive in nature. Germany’s efforts to address and rectify its past (through a variety of legal, political, educational, and cultural efforts) have received much praise across the societal spectrum. However, despite its adoption of and dedication to the Washington Principles in 1998, the German government’s lagging approach to the issue of restitution has since garnered much criticism.^[34] Although the role and function of the Advisory Commission have been critical in this context, issues related to the rate of addressed claims, the access to and quality of provenance research, and enforceability of recommendations have cast doubt on the country’s dedication to improving its restitution system. At the same time, the Commission’s noticeably rapid publication of three recommendations in the past six months may be indicative of a general shift in the rate with which such cases will be dealt with going forward. Moreover, the conversation over restitution has recently expanded to include not only Nazi-looted art but also cultural objects from Africa and the Pacific Islands, whose display in the collections of leading German museums has become increasingly controversial.^[35] Based on the growing political and public engagement with restitution, it is reasonable to expect the momentum of art restitution cases, and especially the word of the Advisory Commission, to continue.

Endnotes:

1. Previous Recommendations of the Advisory Commission, Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property. ↑
2. Ibid. ↑
3. Recommendation of the Advisory Commission in the case of the heirs of Heinrich Rieger v. The City of Cologne, Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property (February 8, 2021). ↑
4. The Washington Principles guide the restitution of art confiscated by the Nazi regime in Germany before and during World War II. The document was published after the Washington Conference on Holocaust-Era Assets on 3 December 1998. In the two decades since the Washington Conference, the Washington Principles have thrust the issue of Nazi-looted art onto the international scene and profoundly changed the way cultural property disputes in this specific context are addressed. For more, see Washington Conference Principles on Nazi-Confiscated Art, Commission for Looted Art in Europe (December 3, 1998). ↑
5. Advisory Commission, Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property. ↑
6. Recommendation of the Advisory Commission in the case of the heirs of Heinrich Rieger v. The City of Cologne, Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property (February 8, 2021). ↑
7. Ibid. ↑
8. Advisory Commission, German Lost Art Foundation. ↑
9. Prominent members of the Commission have included for­mer Fed­er­al Pres­i­dent Richard von Weizsäck­er, for­mer pres­i­dent of the Ger­man Bun­destag Ri­ta Süss­muth, for­mer pres­i­dents of the Fed­er­al Con­sti­tu­tion­al Court Jut­ta Lim­bach and Hans-Jür­gen Pa­pi­er, diplo­mat and for­mer Min­is­ter of Jus­tice Hans-Ot­to Bräutigam, and Mar­i­on Eck­ertz-Höfer, for­mer pres­i­dent of the Fed­er­al Ad­min­is­tra­tive Court. For more, see Advisory Commission, German Lost Art Foundation. ↑
10. Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially from Jewish possession, the Central Registry of Information on Looted Cultural Property 1933-1945. ↑
11. Washington Conference Principles on Nazi-Confiscated Art, U.S. Department of State (December 3, 1998). ↑
12. Recommendation of the Advisory Commission in the case of the heirs of Heinrich Rieger v. The City of Cologne, Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property (February 8, 2021). ↑
13. Previous Recommendations of the Advisory Commission, Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property. ↑
14. Recommendation of the Advisory Commission in the case of the heirs of Heinrich Rieger v. The City of Cologne, Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property (February 8, 2021). ↑
15. Ibid. ↑
16. Ibid. ↑
17. Ibid. ↑
18. Ibid. ↑
19. Ibid. ↑
20. Ibid. ↑
21. Ibid. ↑
22. Ibid. ↑
23. Ibid. ↑
24. Ibid. ↑
25. Ibid. ↑
26. Ibid. ↑
27. Ibid. ↑
28. Ibid. ↑
29. Ibid. ↑
30. Ibid. ↑
31. Ibid. ↑
32. Ibid. ↑
33. Ibid. ↑
34. Emily Gould, Progress on the Washington Principles: a glass half full after 20 years?, Institute of Art and Law (December 5, 2018). ↑
35. See Stuart Braun, Looted colonial art: Is there the political will to return pilfered artifacts?, Deutsche Welle (January 1, 2019) and The Humboldt Forum in Berlin is a new kind of museum, The Economist (November 17, 2020). ↑

About the Author: Rachel Sundar is a rising second year student at Sciences Po Paris’s Law School, where she is majoring in Economic Law. Simultaneously, she is pursuing the Diploma in Art Law at the Institute of Art and Law. Previously, she graduated from Sciences Po Paris with a B.A. in Government and Political Science. During her studies she has developed a strong interest in intellectual property law in relation to artists’ rights as well as auction law and international and cross border considerations.