Last Friday’s appeal was the first time Germany has defended itself before a US court on the subject of Nazi looted art.
The case centres on the Guelph treasure housed in Berlin’s Kunstgewerbemuseum. The heirs of three Frankfurt art dealers claim that in 1935, the Nazis forced their families to sell the 44 pieces at 35% of the market price.
On March 31, a US district judge ruled they could proceed with their case on the grounds that the plunder of Jewish property was part of genocide.
The lawsuit is among the first heard under the new Holocaust Expropriated Art Recovery Act, signed into US law in December. The act has eliminated statute-of-limitations hurdles, making it easier for Nazi-related restitution claims to be filed in the US.
The judge said that “the taking of the [treasure]… bears a sufficient connection to genocide such that the alleged coerced sale may amount to a taking in violation of international law”.
The German government had previously sought to dismiss the case under the US Foreign Sovereign Immunities Act (FSIA).
Jonathan Freiman, a US lawyer representing the German government, said in a statement: “This is a dispute that was already resolved on the merits in Germany, and it doesn’t belong in a US court.” He filed the appeal on April 21.
One legal expert told ATG that an important principle was at stake. Tim Maxwell, partner at London lawyers Boodle Hatfield LLP, said: “This is the first decision in which a US court has held that it has jurisdiction over Germany under the FSIA for a claim to Nazi-looted or purchased art.
“Critically, it recognises that claims about forced sales in the early days of the Nazi regime can be considered in the US courts. This is very likely to lead to other claims arising from similar circumstances.”
Following the appeal, Dr Hermann Parzinger, President of the Prussian Cultural Heritage Foundation (SPK) issued a statement saying:
“SPK’s appeal of the US District Court's decision reflects our long-held belief that the Welfenschatz case should not be heard in a US Court. We also maintain that the Guelph Treasure’s sale in 1935 was not a forced sale due to Nazi persecution. This view is based on the thorough research we’ve conducted, and was confirmed by [a committee] which concluded in 2014 that restitution in this case was not appropriate.
"SPK’s long-standing practice shows that we are committed to the fair and just resolution of legitimate claims to Nazi-confiscated art, consistent with the Washington Conference Principles – this has not changed.”
Welfenschatz claim: the background
The so-called Welfenschatz or Guelph Treasure, assembled by the dukes of Brunswick over nine centuries, was sold in 1929 to a consortium of dealers from Frankfurt.
They later negotiated the sale of around half the 82 pieces to museums and collectors in the US and Europe.
The controversial sale of the remaining 44 pieces of the treasure for 4.25m reichsmarks in 1935 was considered by the Limbach Commission, formed to assess Nazi-era property claims, in 2014.
It decided the deal had been consensual and deemed the low price a consequence of the collapse of the German art market after the Depression.
However, the plaintiffs in the current case say that it was simply not possible for Jewish art dealers to achieve a “fair deal” in 1930s Germany. They add that much of the money was later seized in exorbitant ‘flight taxes’ as they fled the Reich.