This is a searchable text-only copy of recommendations originally published by the Advisory Commission on the return of cultural property  (Beratende Kommission NS-Raubgut)

• Robert Graetz
• Kurt and Else Grawi
• Heinrich Rieger
• Max Fischer
• Dr. and Mrs. Max Stern
• Max J. Emden
• Max und Margarethe Rüdenberg
• Felix Hildesheimer
• Alfred Salomon 
• Alfred Flechtheim
• Ludwig Traube
• Eduard L. Behrens
• Clara Levy geb. Isaak
• J.S. Goldschmidt, I. Rosenbaum und Z.M. Hackenbroch 
• Paul Westheim
• Alexander Lewin
• Julius und Clara Freund

Background: "On January 1, 2019, the five commissions in Europe that deal with the research and return of cultural property that was confiscated due to Nazi persecution joined forces to form the Network of European Restitution Committees on Nazi-Looted Art: the Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property (Germany), the Commission for the Compensation of Victims of Spoliation (France), the Spoliation Advisory Panel (Great Britain), the Restitutions Committee (Netherlands) and the Commission for Provenance Research (Austria) have agreed to cooperate closely. The management of the network changes annually."

Beratende Kommission NS-Raubgut insbesondere aus jüdischem Besitz

https://web.archive.org/web/20230414025727/https://www.beratende-kommission.de/en/recommendations

    Graetz Stiftung Stadtmuseum Berlin

    Grawi Landeshauptstadt Düsseldorf

    Rieger Stadt Köln

    Fischer Land Baden-Württemberg

    A. B. Bayerische Staatsgemäldesammlungen

    Stern Bayerische Staatsgemäldesammlungen

    Emden Bundesrepublik Deutschland

    Rüdenberg Landeshauptstadt Hannover

    Hildesheimer Hagemann Stiftung

    Salomon Stadt Gelsenkirchen

    Flechtheim Stiftung Kunstsammlung Nordrhein-Westfalen

    Traube Landeshauptstadt Düsseldorf

    Behrens Landeshauptstadt Düsseldorf

    Levy Bayerische Staatsgemäldesammlungen

    Welfenschatz-Consortium Stiftung Preußischer Kulturbesitz

    Flechtheim Stadt Köln

    Westheim Stadt Neuss

    Graetz Land Berlin

    Lewin Bundesrepublik Deutschland

    Baumann Land Hessen

    Sachs Deutsches Historisches Museum

    Freund Bundesrepublik Deutschland

22.07.2021
Recommendation of the Advisory Commission in the case of the heirs of Robert Graetz v. Stiftung Stadtmuseum Berlin

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier, decided unanimously on 12 July 2021 in the case of the heirs of Robert Graetz versus Stiftung Stadtmuseum Berli,n not to recommend restitution of the painting Portrait of Alfred Kerr by Lovis Corinth to the heirs of Robert Graetz.

    The subject of the proceedings is the Painting Portrait of Alfred Kerr (1907) by Lovis Corinth (1858–1925). It is an oil painting on canvas, framed, measuring 103.5 x 58.5 cm.

    The painting was acquired by the Staatliche Schauspielbühnen Berlin in 1956/1957 and transferred to the Berlin Museum in 1974. It is in the holdings of the Stiftung Stadtmuseum Berlin (Inv. No. GEM 74/74). The claimants are the heirs of Robert Graetz.

    Robert Graetz (1878–1945) was indisputably persecuted individually and collectively under National Socialism. From 1907, together with equal partner Georg Glass, he ran the textile manufacturer Glass & Graetz oHG, based in Berlin. He had two children, Hilda (1912–2013) and Helmut (1914–1989) from his first marriage to Ella, née Wagner (1880–1926). On 28 April 1934, Robert Graetz married the widow Bluma Haas, née Brin (1899–1985), called Betty, who already had a son, Werner Haas (b. 1925). The family lived in a villa at Erdener Str. 13-15 in Berlin-Grunewald from 1919. This was also the location of the art collection, which by the mid-1930s had grown to about 245 works, including notable Impressionist and Expressionist paintings. Under the pressure of Nazi persecution, the villa had to be rebuilt and divided into several apartments around 1935/1936, one of which the Graetz family occupied while the rest was rented out.

    Eventually, on 31 March 1939, the liquidation of Glass & Graetz oHG began, and on 18 April 1940, the company was deleted from the commercial register. Also on 18 April 1940, the marriage of Robert and Bluma Graetz was dissolved. A number of statements consistently confirm that the Graetzes continued to live together despite the divorce. As a result of the divorce, Bluma recovered her Latvian citizenship, presumably in the hope of being able to better protect assets and to enable emigration to Riga. In December 1940, Robert Graetz was forced to sell his property at Erdener Strasse 13-15 to Deutsche Erd- und Steinwerke GmbH, an SS company. As a consequence, on 25 February 1941, Bluma Graetz consigned furniture, household goods and art objects to be auctioned via the firm of Gerhard Harms. From March 1941, the formally divorced couple lived together in two rooms of a four-room apartment as subtenants with their neighbor Artur Barasch (1872–1942) at Wissmannstraße 11 in Berlin-Grunewald. Barasch had already been forced to sell his property in May 1939.

    Robert Graetz’s daughter Hilda was able to emigrate to Johannesburg around 1935/1936, and his son Helmut managed to escape to Argentina on 9 December 1938. Werner, then fourteen years old, was brought to England on a Kindertransport on 22 August 1939. After the invasion of the Soviet Union on 22 June 1941, Bluma Graetz was classified as an “enemy of the state” because of her nationality and extradited to Russia via Turkey, where she had to do forced labor for six years. From 1947 she was employed as a nurse in Riga for 20 years. Only in 1969 was she able to leave Russia and emigrated via London to Buenos Aires to live with her stepson Helmut Graetz and his wife, Hilde, née Kann. Robert Graetz presumably planned to emigrate to Switzerland, but was deported on 14 April 1942, on the 14th transport to the Trawniki concentration camp near Lublin. A last message to his daughter Hilda has survived from the Warsaw Ghetto, dated 16 June 1942. He was declared dead on 31 December 1945.

    The painting was created in 1907 by Lovis Corinth to mark the 40th birthday of the Berlin journalist and theater critic Alfred Kerr (1867–1948). Until at least 1922 it was with the artist himself. By 1926 at the latest, it was the property of the architect Leo Nachtlicht (1872–1942). Based on a handwritten date note by Charlotte Berend-Corinth, both parties assume that Robert Graetz acquired the painting from Leo Nachtlicht on 27 May 1932. The subsequent fate of the portrait, however, is hard to trace. At the auction of 25 February 1941 by the firm of Gerhard Harms, commissioned by Bluma Graetz, only a few oil paintings were offered; the only work by Corinth among them was a drawing entitled Hände, but not the Portrait of Alfred Kerr. According to Bluma Graetz’s recollections, the auction concerned a quarter to a third of her movable property. Some remaining items, such as furniture and carpets, which could not be accommodated in the new, much smaller apartment in Wissmannstraße, were stored at the forwarding companies Hess & Co and Gebr. Inventories of these items have not survived.

    About a month after the deportation of Robert Graetz on 14 April 1942, the Reichsfinanzverwaltung visited the apartment at Wissmannstraße 11. In addition to a few items of clothing, suitcases and other paraphernalia, three unspecified paintings and two bronzes, each valued at 10 Reichsmark, were confiscated. The total value of the listed assets was estimated by the tax authorities at 118 Reichsmark. A registration sheet on 27 June 1942 for Bluma Graetz, by then already in the Soviet Union, concerning “im Inland befindliches feindliches Vermögen” [“enemy property located in Germany”] listed household effects and clothing worth 691.89 REichsmark, as well as debts for storage fees with Hess & Co in the amount of 316.50 Reichsmark.

    On 24 August 1948, Hilda Rush (Ruschkewitz), née Graetz, and Helmut Graetz filed a claim for damages against the German Reich for the unjustified seizure of valuable art objects. Among other things, the “Porträt Kerr” was listed, albeit erroneously attributed to Max Slevogt. The proceedings dragged on for several years, as the claimants were unable to provide more detailed information about the seizure process and their own legitimacy as heirs. The reparation authority subsequently declared itself unable to clarify the facts of the case and rejected the claim in September 1954. Before this decision became legally binding, the whereabouts of the painting at issue here became known. From at least February 1956, Ilse Valecka, née Kahle, div. Meyer-Thoene (1921–unknown) and Wolfgang Kahle (1925–unknown) offered the Portrait of Alfred Kerr on the art market. They were the children of the marriage of Fritz Kahle (1891–1958) and Gertrud Kahle, née Neumann (1897–1945) in 1919. The couple divorced in the spring of 1939; and in October 1940 Fritz Kahle married his second wife Gertrud Kopischke (1905–unknown). Gertrud Kahle, née Neumann, had been living at “Konstanzer Straße 10, with Schneider”, since September 1941. She was listed at this address in a declaration of assets prepared on 12 April 1942 by Robert Graetz, who stated to the Oberfinanzpräsident Berlin-Brandenburg that he was committed to make monthly payments of 50 Reichsmark to her. Shortly before submitting the declaration, on 3 April 1942, Gertrud Kahle had been arrested by the Gestapo. On 18 June 1942, she was deported to Theresienstadt. Her property was confiscated by the Gestapo on 1 May 1942; according to Ilse Valecka’s recollection, this included “3 Ölgemälde, 1 Porträt, 18. Jahrhundert, Art des Tischbein” [“3 oil paintings, 1 portrait, 18th century, Tischbein type”] and “2 Landschaften, frühes 19. Jahrhundert, Rottmann-Schule” [“2 landscapes, early 19th century, Rottmann school”].

    Gertrud Kahle survived imprisonment in a concentration camp and returned to Berlin in August 1945. There she lived with her daughter, who had married in the meantime. On 7 November 1945, she took her own life. Ilse Valecka filed an application for compensation for damage to her mother’s property and assets on 6 February 1956. On the same day, the newspaper Die Welt published an article by Friedrich Luft entitled Ein Bild will nach Berlin. Das Kerr-Portrait von Lovis Corinth wird angeboten [A painting wants to go to Berlin. The Kerr portrait by Lovis Corinth is on offer]. The Schiller Theater Berlin expressed an interest in purchasing the painting, and the acquisition was approved on 16 April 1956 for 10,500 Deutschmark. Attorney Leonhard, authorized representative of Hilda Rush, née Graetz, and Helmut Graetz in the Robert Graetz compensation proceedings, contacted the legal representative of the heirs of Gertrud Kahle after the whereabouts of the painting became known in order to negotiate a voluntary restitution. Although he achieved an interruption of the purchase process, he was only able to reach a settlement as a result. The purchase by the Schiller Theater was completed after the parties Graetz/Rush and Kahle/Valecka were able to agree on 26 April 1957 on a payment of 3,000 Deutschmark – and thus 28.5 % of the purchase price – to the heirs after Robert Graetz.

    Since 1974, the Portrait of Alfred Kerr has belonged to the Berlin Museum through transfer by the Schiller Theater.

    It is undisputed between the parties that Robert Graetz acquired ownership of the painting Portrait of Alfred Kerr before 1933 and included it in his collection. According to current knowledge, the portrait was neither sold at auction through Gerhard Harms in 1941 nor confiscated by the Gestapo in 1942.

    In 1956, it was owned by Ilse Valecka, née Kahle, and Wolfgang Kahle; in the course of the settlement negotiations in 1956/1957, it was claimed that the painting had come into the possession of Gertrud Kahle as a result of a donation by Robert Graetz.

    The heirs of Robert Graetz are of the opinion that the claim of a donation was a protective assertion which was not unusual in the post-war period and which also lacked plausibility in the present case. The only comprehensible connection between Robert Graetz and Gertrud Kahle consisted in a statement about a payment of alimony made under duress shortly before the deportation. This is no evidence of a relationship between the two that proves an “Anstandsschenkung” [“gift arising from a moral duty”]. Rather, the claimants assume a loss of the painting due to its storage at the freight office Fritz Kahle. It is to be assumed that the monthly payment of 50 REichsmark to Gertrud Kahle served to camouflage the storage costs. Since Fritz Kahle was obliged to support his divorced wife, he ultimately profited from the payments made by Robert Graetz. This also explained why the Portrait of Alfred Kerr had not been among the assets seized from Gertrud Kahle. The portrait had been misappropriated by Fritz Kahle and subsequently passed on to his children Wolfgang and Ilse, who had declared it as a gift to their mother in order to conceal its origin. The claimants therefore assume that Robert Graetz did not voluntarily give up ownership of the painting, but lost it as a result of Nazi persecution. The settlement which the heirs after Graetz concluded with the heirs after Kahle in 1957 was the result of erroneous assumptions and a lack of alternatives. In the overall view, it was therefore null and void and accordingly did not stand in the way of restitution of the painting.

    The Stiftung Stadtmuseum Berlin, on the other hand, argues that the claimants have not succeeded in proving that the painting was seized before 1945. Thus, no sufficient evidence for a delivery to the forwarding agent Fritz Kahle had been produced so far, neither for the Portrait of Alfred Kerr nor with regard to other assets of Robert Graetz. The maintenance payment obligation to Gertrud Kahle stated by Robert Graetz supported the assumption of a donation, as it had been asserted in the course of the settlement negotiations. Therefore, it could not be assumed that there had been a deprivation as a result of Nazi persecution. In any case, however, the private settlement concluded in 1957 between the heirs of Graetz and Kahle precluded restitution. Insofar as this settlement was now annulled on the basis of moral considerations, the Kahle family was implicitly being accused of criminal conduct without evidence of this being available.

    In the opinion of the Advisory Commission, the painting Portrait of Alfred Kerr by Lovis Corinth is not to be restituted to the heirs of Robert Graetz. The Commission assumes that Robert Graetz lost most of his art collection as a result of Nazi persecution. In the opinion of the Commission, however, it has not been demonstrated with sufficient probability that the painting in dispute was also seized from Robert Graetz as a result of persecution and that he may have been the primary victim. Furthermore, in this case, the settlement concluded in 1957 precludes a restitution to the heirs of Robert Graetz.

    It has not yet been possible to clarify when the picture entered the collection of Robert Graetz. There is agreement among the parties that Robert Graetz acquired the painting before 30 January 1933. However, the commission does not find this convincing. In 1926, the Portrait of Alfred Kerr was part of the Gedächtnisausstellung Lovis Corinth at Nationalgalerie Berlin. The lender and owner at the time was the architect Leo Nachtlicht (1872–1942). Nachtlicht ran his own practice in Berlin from 1904. With his wife Anna Nachtlicht (1880–1942), née Levy, he had two daughters, Ursula (1909–1999) and Ilse (1912–unknown). With the onset of National Socialism, the family was subjected to repression and Nachtlicht’s professional practice became increasingly difficult. Attempts to obtain a work permit in London failed; only the two daughters managed to escape to London in April 1939. Nachtlicht himself died in September 1942 in the Jewish Hospital in Berlin. His wife Anna was deported to Riga in October 1942 and murdered.

    Leo Nachtlicht had some works of art from his extensive collection offered for sale by the Berlin auction house Max Perl as early as 6 February 1932. The auction offer included the painting Inneres einer Tiroler Bauernstube [Interior of a Tyrolean Peasant’s Parlor] as well as some drawings and prints by Lovis Corinth, but not the Portrait of Alfred Kerr. The claimants assume that the painting in dispute was sold by Leo Nachtlicht to Robert Graetz on 27 May 1932. This assumption is based exclusively on an unspecified date “27.5.32”, which Charlotte Berend-Corinth included in her manuscript for the catalog raisonné of Lovis Corinth’s paintings published in 1958. The value of this already limited information is further diminished by the fact that it was later crossed out. Nor can it be concluded from other evidence that the painting was already in Robert Graetz’s collection before 30 January 1933. Robert Graetz commissioned Leo Nachtlicht to remodel the villa in 1935, so there were connections between the two that certainly make a later purchase of the painting possible.

    In light of the couple’s history of persecution, Leo and Anna Nachtlicht, it cannot be ruled out that a sale after 30 January 1933 took place under circumstances that, from today’s perspective, could be reason for restitution. The Guidelines for implementing the statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property, of December 1999 (New edition 2019)” (hereinafter: Guidelines) are still based on the principle that of several aggrieved parties, only the first is entitled to restitution. Therefore, proof – even in the form of prima facie evidence – is required that the painting was already in the collection of Robert Graetz before 30 January 1933. An agreement between the parties cannot replace this proof.

    In light of the persecution fate of the Graetz family, the Commission assumes that most of the family’s extensive art collection was lost during National Socialism as a result of persecution. Evidence to date includes the auctioning of assets in 1941, the storage of furniture and carpets at the Hess & Co and Gebr. Berg shipping companies, and the various confiscations by the Gestapo in 1942. Family members were able to transfer a few works of art abroad.

    The Portrait of Alfred Kerr was presumably neither among the auctioned or confiscated works of art, nor among those transferred abroad. In February 1956, it was in the possession of Ilse Valecka, née Kahle, and Wolfgang Kahle. How it got there is unknown. The Stiftung Stadtmuseum Berlin considers the claimants to be obliged to prove not only the loss but also the circumstances surrounding it, citing Allied restitution legislation. To what extent this appeal is justified can be left open here, for there are several indications in favor of the interpretation of the events put forward by the Stiftung Stadtmuseum Berlin.

    In the declaration of assets that Robert Graetz had to submit shortly before his deportation on 12 April 1942, there is a monthly maintenance payment in the amount of 50 Reichsmark listed from Graetz to Kahle. This documents a connection between Graetz and Kahle, which suggests that a transfer of ownership of the Portrait of Alfred Kerr from Robert Graetz to Gertrud Kahle or her divorced husband, Fritz Kahle, took place by 1942 at the latest, and that the picture passed from there to the Kahle children at a later date. A loss related to Nazi persecution by way of a disguised safekeeping agreement with subsequent misappropriation, as stated by the applicants, is only insufficiently supported by the submitted reports from memory. Conversely, the nature of the relationship between Robert Graetz and Gertrud Kahle cannot be deduced solely from the declaration of assets submitted immediately prior to the deportation. It should be added, however, that in the same declaration Graetz also listed alimony payments to his sister and a cousin, i.e. named recipients with whom a closer relationship may presumably have existed. Moreover, when the painting was offered for sale by the children of Gertrud Kahle in 1956, her former husband Fritz Kahle – who had remarried in 1940 – was still alive. This justifies the assumption that the picture passed from Gertrud Kahle directly to her children, which also speaks against the declaration of a concealed custody agreement with Fritz Kahle, unless one accused the entire Kahle family of collusive action at the expense of the Graetz family – and Gertrud Kahle herself.

    Ultimately, however, the private settlement that Hilda Rush, née Graetz, and Helmut Graetz concluded with Ilse Valecka, née Kahle, and Wolfgang Kahle in 1957 regarding the painting in question stands in the way of restitution in this case. The Guidelines considers it grounds for exclusion of restitution if a former owner “reached a private settlement with the holder of the confiscated artwork after 1945 on the basis of the Allies’ restitution laws; such settlements allowed the artwork to remain in the possession of the holder if the holder paid compensation to the party entitled to restitution.” This implies the possibility of examining such agreements to determine whether, from today’s perspective, they can be granted an effect that excludes restitution. Thus, it is quite conceivable that one side entered into an unfavorable settlement only because it was still suffering from the continuing effects of National Socialist persecution.

    In the present case, too, there are indications that the settlement between the heirs of Robert Graetz and the heirs of Gertrud Kahle should not be taken into account in the assessment of an obligation to restitution. For example, the painting in dispute was – still under false attribution – part of the compensation proceedings that had been ongoing since 1948, but the settlement was reached outside of these compensation proceedings. It was, therefore, precisely not a settlement reached “on the basis of the Allies’ restitution laws” in the sense of the Guidelines. In addition, the children of Robert Graetz had difficulties with their application for compensation, among other reasons, because they were unable to prove their entitlement to inherit. This, in turn, was a direct consequence of the National Socialist persecution, under the pressure of which Robert Graetz had first transferred his assets to his second wife and then divorced her as a subterfuge. His children from his first marriage thus faced considerable problems in proving their continued legitimacy.

    As far as the settlement is concerned, however, it should be borne in mind that the donation to Gertrud Kahle, which had already been asserted at that time, could – to this day – neither be proven nor disproven. A lawsuit by the heirs of Robert Graetz against the heirs of Gertrud Kahle for the return of the painting would hardly have had any chance of success. The heirs of Gertrud Kahle, who for their part also belonged to the circle of those persecuted by the Nazis, cannot, however, be assumed to have acted immorally or even criminally, especially since the presumption rule of the Guidelines does not refer to events of the post-war period. Despite a legal situation that was favorable to them, the heirs of Gertrud Kahle agreed to a similar arrangement for “Gründe der Pietät” [“reasons of respect”] and waived 28.5 % of the purchase price achieved. This may also have been due to the fact that the purchase by the Schiller Theater was threatened with a delay due to the intervention of the heirs of Robert Graetz, which the heirs of Gertrud Kahle were keen to avoid. In this respect, the settlement was not only an expression of the legal situation at the time, but also followed an economically comprehensible logic. In the Commission’s view, there is, therefore, no reason to subject the settlement concluded at the time to an ethical and moral correction.

    In its overall assessment, the Advisory Commission has therefore come to the conclusion that the painting is not to be restituted to the heirs of Robert Graetz. However, the commission attaches importance to the statement that the painting’s history is closely bound to the stories of three – if one adds the sitter, of four – families persecuted by the Nazis. The families of Alfred Kerr, Leo Nachtlicht, Robert Graetz and Gertrud Kahle were all victims of Nazi persecution. They were oppressed, robbed, deported, forced to flee or murdered. The Commission recommends that the Stiftung Stadtmuseum Berlin acknowledge this provenance in an appropriate manner in its future display of the Portrait of Alfred Kerr.

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18.03.2021
Recommendation of the Advisory Commission in the case of the Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier, decided on 10 February 2021 in the case of the heirs of Kurt and Else Grawi versus Landeshauptstadt Düsseldorf, to recommend that the painting Füchse (Foxes) by Franz Marc be restituted to the heirs of Kurt and Else Grawi. The case was decided by a majority of six votes (with three votes against).

    This case concerns the painting Füchse (Foxes) (1913) by Franz Marc (1880–1916). The painting is oil on canvas, 79.5 x 66 cm. The painting entered the holdings of the Städtische Kunstsammlung Düsseldorf (Stiftung Museum Kunstpalast, inv. no. 0.1962.5490) in 1962 as a donation from Helmut Horten (1909–1987). Landeshauptstadt Düsseldorf is the body responsible for the Stiftung Museum Kunstpalast and is represented by the cultural department. The claimants are the heirs of Kurt and Else Grawi.

    Kurt (Denny) Grawi (1877–1944) was persecuted during the National Socialist era, both individually and collectively. Grawi had qualified as a banker and worked at Darmstädter und Nationalbank (Danat-Bank) as a broker with general powers to execute transactions until 1931. After the collapse of Danat-Bank and its merger with Dresdner Bank during the global economic crisis, Grawi lost his job and became an independent 2 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf entrepreneur. He acquired stakes in various companies and managed the Gesellschaft für den Bau medico-technischer Apparate m.b.H., based in Berlin. From 1933 onwards, Grawi and his family increasingly suffered as a result from the pressure of Nazi persecution. Grawi had married the widowed Else Breit, née Schultz (1894–1964), in August 1929. Else Grawi, who was not of Jewish descent, had two sons from her first marriage: Wolfgang and Peter. Because Else Grawi’s deceased first husband Erich Breit (1878–1925) had been of Jewish descent, the two sons were vilified and discriminated against as “Mischlinge 1. Grades” [first degree half-breeds]. Grawi’s younger sister, the actress Irma Neumann, was banned from her profession after 1933. Her resistance activities led to her arrest along with that of her husband on 22 July 1944— her husband was sentenced to three years’ imprisonment by the People’s Court, while Irma Neumann was deported to Auschwitz. She survived the Holocaust. Grawi’s elder sister, Dr. Erna Grawi, was deployed as a forced laborer in armaments factories from 1939; she died from the effects of this work in Berlin at the end of February 1943. Her sister Irma found the body which she secretly disposed of outdoors because she thought a proper burial would be too risky. Kurt Grawi was also subjected to extensive repressive measures. All his enterprises and shareholdings were forcibly dissolved or “Aryanized” after 1935. The family bought a residential building with six apartments in Berlin-Lankwitz in 1937. In order to protect the asset, Else Grawi acted as the buyer. The family used one apartment for themselves and rented out the others. After the Kristallnacht pogrom, Kurt Grawi was imprisoned in Sachsenhausen concentration camp for several weeks. At the end of April 1939, he emigrated via Belgium to Santiago de Chile, where he joined relatives of his wife’s deceased first husband on 4 June 1939. Grawi was only allowed to take 10 Reichsmark with him when he left Germany. He signed the rest of his assets over to his non-Jewish wife Else, who initially remained in Berlin with the two sons. Else Grawi sold the property in Berlin-Lankwitz in August 1939 so that she could emigrate to join her husband, and triggered the imposed compulsory levies: Jewish property tax, emigration tax and Golddiskontbank levy. In December 1939, she and her two sons left Germany and traveled via Italy to Chile, where the reunited family—now virtually penni-less—began to forge a new existence. Else Grawi proceeded to earn a living as a dressmaker. Kurt Grawi died from cancer on 5 September 1944.

    In information he provided to Alois J. Schardt who compiled the catalogue raisonné of Franz Marc’s works, Kurt Grawi stated that he had purchased the painting Füchse in 1928. The previous owner had been Max Leon Flemming (1881–1956), who had first offered the work for sale via Galerie Neumann-Nierendorf in 1927. The price Grawi paid is unknown; a sum of 3,000 US dollars was retrospectively indicated in 1939, although it is not known what exchange rate was applied. In May 1936, Grawi loaned Füchse to Galerie Nierendorf in Berlin for its large Franz Marc memorial exhibition.

    While in Brussels shortly before continuing his onward journey to Chile, Kurt Grawi wrote a letter on 30 April 1939 to Ernst (Ernest) Simon, who had been driven by persecution to emigrate in 1937. The letter says that Füchse had been left with a “mutual friend”, Dr. Paul Weill, for onward shipment to New York. Weill was staying in Paris at that time, with the aim of emigrating from there to Argentina. The painting was shipped from Le Havre to New York, where Simon was to sell it on behalf of Grawi “despite the unfavorable times”. Grawi further emphasized that, for himself and his family, “the result of the sale will provide the basis for our emigration”.

    On 9 August 1939—while Else Grawi was in Berlin preparing to leave Germany—Ernst Simon informed the Museum of Modern Art (MoMA) in New York that he had the painting Füchse in his possession and that the owner was a German refugee who urgently needed cash (“The owner of this painting is a German refugee who is trying to obtain some cash which he is in dire need.”). Grawi was said to have originally purchased the painting for 3,000 US dollars. By 6 November 1939, the painting had been taken to the museum to be viewed. On 2 January 1940, a purchase price of 800 US dollars was offered at the suggestion of the director Dr. Alfred Barr. Simon announced that he would consult the owner on the matter. Among the notes relating to the offer, there is a telegram from Montevideo dated 9 February 1940, addressed to Simon in which a limit of “1,250” is stated. The parties agree that this can be interpreted as a rejection of the offer and the setting of a minimum price by Grawi. Simon had the painting collected from MoMA by art dealer Curt Valentin, who had emigrated from Berlin to New York in 1937. Between 19 February and 27 September 1940, it was sold for an unknown price to the German-American film director William (Wilhelm) Dieterle and his wife Charlotte in Los Angeles by the art dealer Karl Nierendorf, who had likewise emigrated from Berlin to New York. In June 1961, the couple consigned the artwork to an auction held by Galerie Klipstein & Kornfeld in Berne. It was withdrawn from this auction and acquired by Helmut Horten for the purpose of donating it to a museum. Horten donated Füchse to the Städtische Kunstsammlung Düsseldorf in 1962.

    The parties are in agreement that Kurt Grawi was the owner of Füchse until at least February 1940 and that the painting had been sold in New York to William and Charlotte Dieterle by September 1940 at the latest via Karl Nierendorf in a transaction brokered by Ernst Simon.

    The Landeshauptstadt Düsseldorf asserts that Kurt and Else Grawi had already managed to pay the imposed compulsory levies through the sale of the real estate asset and some of the furnishings. These sales, according to the current holders, would have generated more liquid funds than the amount that would have been permitted to be exchanged into foreign currency. Accordingly, Else Grawi even decided not to sell a box of silver cutlery worth approximately 4,000 Reichsmark before she left Germany and instead gave it to her mother for safekeeping. In addition, according to Landeshauptstadt Düsseldorf, it was possible to transport the painting Füchse to New York with substantial support from other émigrés who had also fled persecution, and sell it there. It was true that there was no evidence concerning the exact circumstances of the sale to William and Charlotte Dieterle which was conducted via Karl Nierendorf between February and September 1940, and in particular concerning the purchase price finally agreed or the transfer of this to Kurt Grawi by Ernst Simon. Nevertheless, the Landeshauptstadt Düsseldorf holds the view that the New York art market would have guaranteed a fair purchase price, and the seller is assumed to have been free to dispose of it. There was no evidence that the sale took place contrary to Grawi’s instructions or that he did not receive the purchase price. This assumption was also supported by the further connection between Else Grawi and Paul Weill, and also Paul Weill and Ernst Simon beyond 1945. The buyers of the painting, William and Charlotte Dieterle, were firmly committed to supporting émigrés and frequently did so successfully—for example, they had provided financial assistance to Alois J. Schardt and his family who emigrated to Los Angeles in fall 1939. There was therefore nothing to suggest that Kurt Grawi was disadvantaged in any way, especially since he was in a position to settle the terms of the sale himself, as demonstrated by the rejection of the offer from MoMA. Taking all known events into consideration, the transfer of ownership was not considered to be confiscation as a result of Nazi persecution, but a sale governed by civil law which took place outside the National Socialist sphere of influence.

    The claimants, on the other hand, are of the view that the painting was sold solely out of necessity. Kurt Grawi had tried to avoid selling it for as long as possible and was eventually compelled to do so only because he had to emigrate as a result of persecution. As late as August 1937, he had refused to sell the painting to Josef Nierendorf and, at most, offered the prospect of parting with it in the event of a change of residence. As he himself wrote in his letter of April 1939, the proceeds of the sale would form the “basis for emigration”. He emphasized that it was not a favorable time for a sale. It is thus clear that, had there been no National Socialist rule, the sale would not have taken place— its sole purpose was to finance the Grawi family’s escape to South America. All persons involved in the sale were aware of the owner's plight, meaning that his negotiating position was weakened. Furthermore, the exact circumstances of the sale are not known. It has not been established what price was achieved or whether Grawi even received this. Taking all of these factors together, confiscation as a result of Nazi persecution therefore must be assumed.

    The Advisory Commission believes that the painting Füchse by Franz Marc should be restituted to the claimants, even though the sale took place outside the National Socialist sphere of influence. The sale in 1940 in New York was the direct consequence of imprisonment in a concentration camp and subsequent emigration, and was so closely connected with Nazi persecution that the location of the event becomes secondary in comparison.

    It is immaterial that a fair price was probably paid for the painting. The Guidelines for implementing the Statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property of December 1999 (New edition 2019) (hereinafter: Guidelines) declare the “objective market value” to be the decisive criterion in this regard, i.e. the market value “the object would have had at the time of sale had the seller not been subject to persecution”. According to this definition, a fair purchase price would generally be assumed outside the National Socialist sphere of influence because—in purely formal terms—there were al-ways buyers who were not subject to Nazi persecution. However, this conclusion is subject to constraints. The assumption that, on the market outside the National Socialist sphere of influence, participants were fundamentally free and equal between 1933 and 1945 may also be disrupted by long-distance effects of political persecution. The Landeshauptstadt Düsseldorf has also stated that the persons involved 6 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf were aware of the persecution-related constraints under which Grawi acted. In his letter to MoMA dated August 9, 1939, Simon, the intermediary used by Grawi, explicitly referred to the predicament: “The owner of this painting is a German refugee who is trying to obtain some cash which he is in dire need.” The museum’s own note “Any offer which the Museum cares to make would apparently be considered” can certainly be read in the sense that the museum was aware of its negotiating position.

    The painting was not purchased by the museum in the end, presumably because a minimum price of 1,250 US dollars was stipulated via a telegram from Montevideo. The purchase price that Grawi ultimately achieved is unknown. The failure of negotiations with MoMA suggests that Grawi was not compelled to accept any offer. The Landeshauptstadt Düsseldorf has cited a number of factors to indicate that Grawi’s situation was not exploitted by the persons involved. In particular, William Dieterle was well known for supporting immigrants from Germany in honorable ways, so it was not expected that he took advantage of Grawi. In addition, according to the submission from the Landeshauptstadt Düsseldorf, it could be assumed that Grawi was just as involved in the negotiations between Simon, Nierendorf and Dieterle as he was previously in those between Simon and MoMA. Therefore the agreed price would not have deviated significantly from Grawi’s expectations. As the Landeshauptstadt Düsseldorf has stated, the assumption that this was an achievable market price in the United States at that time and thus a fair purchase price in line with the Guidelines was not implausible.

    Also irrelevant to the decision is the assumption that the purchase price was transferred to Kurt Grawi. It should be noted that the free right of disposal according to Militärregierungsgesetz Nr. 59 did not have to be proven with the same unconditionality by the buyer as that stipulated by the Guidelines for their legal successors. For foreign sales by émigré owners in particular, the burden of proof should not be excessive. The Landeshauptstadt Düsseldorf has presented several indicators which suggest that payment of the purchase price as directed was the probable course of events. Payments from Dieterle to Nierendorf can be proven to have been made for this period, but cannot be attributed to individual paintings. It cannot be assumed that Nierendorf or Simon withheld the purchase price; there is also no evidence of any technical problems that may have prevented the money being transferred from New York to Kurt Grawi in Santiago de Chile. More evidence cannot be expected from the Landeshauptstadt Düsseldorf.

    If the purchase price was transferred to Grawi, he was also free to dispose of it. The criterion of free disposal was defined primarily in legal terms during the period in which the Allied restitution laws were in force. It referred to conditions which, on racist 7 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf or ideological grounds, restricted the rights of individuals to freely dispose of their own assets, such as the obligation to pay into a blocked account. Purely economic constraints or restrictions that were not directly ideologically based did not militate against free disposability, however. That is why there was no clear consensus even on the emigration tax as a relevant restriction of free disposability, despite its undeniable discriminatory impact, because it existed prior to 30 January 1933 and therefore was not an instrument of Nazi persecution. The same also applies to foreign exchange regulations.

    This definition appears too narrow from today’s perspective. Even though the emigration tax or foreign exchange limits may have applied to everybody in the same way, victims persecuted under the Nazi regime were overwhelmingly affected by them after 1933. To regard economic and legal constraints not as restrictions of free disposability solely because they were the consequence of merely de facto discrimination but not of normative discrimination, is not convincing in light of a clearly discriminatory legal reality. Nevertheless, there cannot be an exclusion of free disposability in every restriction of economic usability. In the case of Grawi, the proceeds from the sale were not used to pay emigration taxes or other compulsory levies. Though Grawi himself was reliant on external support from Brussels onwards, his family's emigration was financed by other means. According to the criteria in the Guidelines, he would therefore have been free to dispose of the purchase price.

    The two further criteria for checking whether property was seized as the result of Nazi persecution, which are mentioned in the Guidelines for sales from 15 September 1935 onwards, are clearly tailored to sales within Germany. This is due to the fact that, historically, the Guidelines were developed from Allied military legislation, which aimed to rectify the unlawful movements of assets that had taken place within the Nazi sphere of influence. The “transfer of assets abroad” cited therein as an example, which enables a present-day owner to rebut the presumption of seizure, therefore also applies in cases involving the transfer of proceeds to safety abroad following a sale in Germany. The opposite scenario—which also applies to the current case— in which the cultural property itself had already been taken abroad prior to its sale and the price was paid in full there, is not dealt with in the Guidelines. However, this does not mean that property in such situations would not be suitable for restitution. The assumption of a loss as the result of Nazi persecution does not formally relate to the domain of National Socialism, but to the pressure of persecution manifested in this domain.

    However, this pressure of persecution did not necessarily diminish as soon as a victim of persecution left the borders of the German Reich behind. 8 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf In this respect, though, the Guidelines are limited to the severability clause that even if an item changed hands outside the National Socialist sphere of influence, it “still cannot be ruled out” that it changed hands as a result of Nazi persecution. But the Guidelines do not mention any further indicators of when confiscation as the result of persecution can be assumed outside the National Socialist sphere of influence in an individual case. However, there is no apparent reason for applying the tighter criteria of the Guidelines and taking into account emigration tax and other compulsory levies in a case where property was sold in a forced sale shortly before emigration, while declaring the direct consequences of the deprivation of rights in Germany to be irrelevant in a case where property was sold after emigration. Just because an immediate danger to life was averted does not mean economic, political or legal opportunities were restored at the same time, especially if the escape abroad was preceded by imprisonment in a concentration camp and the seizure of virtually all assets.weil die unmittelbare Lebensgefahr gebannt war, waren nicht zugleich die wirtschaftlichen, politischen oder juristischen Möglichkeiten wiederhergestellt, gerade wenn der Flucht eine Inhaftierung im Konzentrationslager und die praktisch vollständige Entwendung des Vermögens vorausging.

    In view of the above, the Commission concluded that Kurt Grawi’s sale of the painting Füchse is considered to have occurred as the result of Nazi persecution, even though the sale was completed outside the National Socialist sphere of influence and, in the light of information currently available, the payment of a fair price and the opportunity for free disposal are plausible. The sale was a direct consequence of the forced emigration. The decision to sell and the arrangements for the sale directly resulted from National Socialist repression. All in all, there was such a close connection between persecution, escape and sale that the impact of the first continues to have an effect in the last.

    Kurt Grawi did not plan to sell the painting. For the period prior to 30 January 1933, there is no evidence of any intention to sell. The question can be left open as to whether the letter mentioned by the claimants from Josef to Karl Nierendorf dated 30 August 1937, actually related to Franz Marc’s Füchse. It refers in general terms to a painting Grawi intended to sell should the need arise if he had to move, but does not describe it in detail. A few weeks after this letter, the Grawi family put some of their furniture up for auction because they had moved into a much smaller apartment at the start of the year. However, the family did not take this as an opportunity to part with the painting Füchse. Grawi decided to sell the painting only when he was forced to leave Germany.

    After his imprisonment in a concentration camp, Grawi had to give up his place of residence at very short notice. No direct order to leave Germany is documented on file, but at the same time it is highly likely one was issued. Just four months after being 9 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf released from the concentration camp, Grawi found himself practically destitute in Brussels. A return to Germany was not possible. His efforts to sell the painting Füchse were directly linked to his expulsion from Germany and his attempt to build a new life abroad. Grawi himself took the painting abroad, probably at great personal risk. The first record of an intention to sell the artwork can be dated to 30 April 1939, when Grawi, then still in Brussels, informed Ernst Simon in New York that he planned to ship the painting there, expressing his hope of obtaining a “basis for our emigration [...] despite the unfavorable times”. Else Grawi and her two sons were still in Germany at that point. The emigration tax was not set until October 1939. Grawi himself had no more funds and was reliant on assistance from friends even for his onward journey from Brussels. Whether the Grawis still owned assets in Germany is of no importance because there was no prospect of being able to access these assets in the foreseeable future.

    The fact that the sale was eventually completed a good year after Grawi left Germany does not take away the direct connection between this event and Grawi’s escape. Such transactions often take a long period of time, even under normal circumstances. At the same time, the suffering associated with the escape did not only begin on the day of departure from Germany and end on the day of arrival abroad. Else Grawi and the children were not able to travel to Chile until December 1939. The family has vividly described the difficulties facing the Grawis as they made a new start in Chile. Along the way, Grawi continued his efforts to sell the painting on terms that would enable the family to begin a new life in Chile. Had this been possible without selling the painting, he would have had the option of canceling the sale at any time.

    There is no question that the Dieterles supported émigrés and persecuted victims of the Nazi regime in honorable and exemplary ways. It is not known to what extent Grawi was able to benefit from this. However, honorable intentions on the part of the buyer do not diminish the fact that the sale was necessitated by Grawi’s emigration. The Guidelines—like Militärregierungsgesetz Nr. 59—assume a regular causality between persecution and loss, the disruption of which is the exception requiring proof. Therefore the critical factors are the situation and motives of the seller at that time, not the ethos and intentions of the buyer. Thus it is of no relevance whether William and Charlotte Dieterle perhaps only bought the painting in order to help Grawi start a new life in exile. In particular, there is nothing to indicate the protection of Grawi’s property interests here—irrespective of the question whether this can be taken into account anyway as an exonerating factor in the case of a sale abroad. For this, a commitment would be expected that goes beyond what a contract partner of average loyalty would have done in this situation, while behavior merely in accordance with the contract is not sufficient. The fact 10 /10 Heirs of Kurt and Else Grawi v. Landeshauptstadt Düsseldorf that the sale probably led to a result that was presumably in line with market conditions at the time and perhaps not as bad as Grawi had feared, is therefore not protecting Grawi’s property interests “in an unusual manner and with substantial success”.

    The Landeshauptstadt Düsseldorf has repeatedly stated that, in the event of a sale in Germany under the same conditions, it obviously would have restituted the painting. That it has not adopted the same approach towards initiating a return in the event of this sale which has now been proven to have happened abroad is evidently due to the fact that the Guidelines, as discussed, do not offer any useful criteria for such situations.

    It is regrettable that more than 20 years after the Washington Conference, it has not been possible to come to conclusions in this respect which are valid beyond the individual case. However, in accordance with the general principles, the Commission has decided to recommend that the Landeshauptstadt Düsseldorf restitute the painting to the heirs of Kurt and Else Grawi.

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08.02.2021
Recommendation of the Advisory Commission in the case of the heirs of Heinrich Rieger v. Stadt Köln

The Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, chaired by Prof. Hans-Jürgen Papier, decided unanimously on 29 September 2020 in the case of the heirs of Heinrich Rieger versus Stadt Köln, to recommend that the watercolor Kauernder weiblicher Akt [Crouching Nude Girl] by Egon Schiele be restituted to the heirs of Heinrich Rieger. The Commission had given the Stadt Köln until 31 December 2020, to submit facts proving that the work of art was relinquished voluntarily before March 1938. The Stadt Köln was unable to provide any such facts.

    The heirs of Heinrich Rieger bring forth a claim to the watercolor Kauernder weiblicher Akt by Egon Schiele dated 1917. The work in question is a watercolor on paper measuring 45.5 x 29.5 cm, and is signed and dated. The back of the sheet is stamped “Medizinalrat Dr. H. Rieger WIEN VII Mariahilferstr. 124”. The work was acquired in 1966 by the “Freunde des Wallraf-Richartz-Museum” for the Stadt Köln. Today it is part of the Museum Ludwig’s collection in Cologne and has the inventory no. ML/Z 1966/019.

    Both sides have approached the Advisory Commission, though with different requests: The heirs of Heinrich Rieger are asking for a resolution by the Commission. The Stadt Köln is asking that further research be assigned to the academics previously involved in the case before a resolution is taken.

    Dr. Heinrich Rieger (1868–1942) was a dentist in Vienna and a major collector of contemporary art. He was personally acquainted with a number of artists and often treated them in exchange for works of art. In addition, he invested “his entire income” in paintings (F.J.W.: Bilder als Honorar, in: CibaZeitschrift. Vom Honorar des Arztes. 1/6, 1934, P. 198 f.). At the beginning of Nazi rule in Austria, the collection contained about 800 pieces. Dr. Heinrich Rieger received praise in several articles in the contemporary press that rated his collection as superior to those of public institutions.

    For Heinrich Rieger, the artist Egon Schiele (1890–1918) was the “main focus of the collection” (Austrian Art Restitution Advisory Board, Resolution of 25 November 2004); his works constituted the core of the collection. Rieger had a special room reserved for these pieces, “where the largest collection of Egon Schiele’s drawings […] anywhere is being kept” (Ludwig W. Abels: Wiener Sammlungen moderner Kunst, in: Neues Wiener Journal 34, 1926, No. 11,874, P. 17). Particularly the quality of the invaluable Schiele drawings is highlighted in articles about the collection (see for instance Anonymous: Sammlungen des Ober-Medizinalrates Dr. Heinrich Rieger und Dr. Alfred Spitzer. From the exhibit at the Künstlerhaus, Vienna, in: Österreichische Kunst. Monatshefte für bildende Kunst, Year 6, Vol. 12, December 1935, P. 12 f.). Today, the collection would undoubtedly be worth a fortune just for the Schiele pieces alone.

    From the time of Austria’s annexation to the German Reich on 13 March 1938 at the latest, Rieger was persecuted as a Jew, disowned, and finally murdered in Theresienstadt concentration camp. His entire family was persecuted. His wife Berta was deported from Theresienstadt to Auschwitz on 16 May 1944 and probably murdered in the gas chambers upon arrival; she was declared dead in 1948. Their son Dr. Robert Rieger was able to escape to New York via Paris with his family in August 1938. Heinrich Rieger lost the momentous art collection as a consequence of Nazi persecution—through emergency sales and acts of “aryanization”. These losses due to persecution are documented, for instance, in letters from Berta Rieger to her son. Berta Rieger wrote on 11 September 1939: “The one terrible thing is that we have to sell almost all of our things at cutthroat prices. We are taking only the bare necessities for one room. And everything has to be done by October 15 […]”. On 6 March 1941 she wrote: “Liquidating the last of our pictures is a great deal of work […]”. An employee of Würthle Gallery in Vienna, which was "aryanized" in April 1938, testified in court in 1949 that Heinrich Rieger brought his collection to the gallery to be sold on commission immediately after the Nazis took power. The collection stayed at the gallery for at least a year. Its "Aryanizer" Friedrich Welz himself acquired several pieces of the collection in 1939 or 1940. By March 1941 at the latest, Luigi Kasimir, the "Aryanizer" of the Vienna gallery Gall und Goldmann, acquired the lion’s share of the Rieger collection. Heinrich Rieger’s blocked account was credited with 14,400 Reichsmark on 21 March 1941. The further history of a large part of the collection during the Nazi era is evidently still unclear, even though some sales or transfers are documented.