This past December, tensions over national restitution policy in the Netherlands came to a head. The Amsterdam District Court upheld the 2018 decision on a significant case, rejecting claims from the heirs of a Jewish art collector that a 1909 painting by Wassily Kandinsky in Amsterdam’s Stedelijk Museum was sold under Nazi-era duress and should be returned. The ruling was a surprise to some, as a recent government-commissioned report criticized the panel that made the original decision for lacking in empathy and too frequently siding with museums over Jewish victims and heirs. The report was particularly critical of a “balance of interests” policy that the panel has used in its decision-making process for several high-profile cases, including the case of the Kandinsky.

Kandinsky’s “Bild mit Häusern (Painting with Houses)” is a brilliantly colored oil painting of a figure kneeling before a row of houses in a perspectivally roiling landscape. The multimillion-dollar work has been in the Stedelijk Museum’s collection since the Amsterdam City Council purchased the piece at the Frederik Muller auction house on October 9, 1940. The presumed sellers of the painting were Robert Lewenstein and Irma Klein, a Jewish couple in the midst of a divorce at the time of the sale. At the time of the sale, Robert Lewenstein had already fled the Netherlands, which became Nazi-occupied in May 1940. The council purchased the work for 160 guilders, dramatically reduced from the 500 guilders that Lewenstein’s father, an art collector and sewing machine manufacturer, paid for the work 17 years prior. “Painting with Houses” has been the subject of restitution claims since 2012.

In the Netherlands, an independent panel, the Dutch Restitutions Committee, is responsible for assessing restitution claims for Nazi-looted artifacts possessed by the Dutch state. In a binding ruling in 2018, the committee rejected an application for the painting’s return, saying that there was no evidence of a forced sale, so the city was not obligated to return the work. The move drew ire from restitution advocates, many of whom argued that the decision violated a key principle of the committee, put forth in 2001, that “sales of works of art by Jewish private persons in the Netherlands from 10 May 1940 onwards be treated as forced sales, unless there is express evidence to the contrary.” The committee cited Lewenstein’s deteriorating finances prior to Nazi occupation as proof that the sale was voluntary, and the work had been neither stolen nor confiscated.

A “balance of interests” argument factored into the committee’s decision. The policy, which the committee first adopted in 2012, is used to evaluate the importance of the work to the claimant versus to the work’s current owner. It has been widely criticized for privileging the interests of museums. “The Committee took the interests of Irma Klein’s heir and the city council into account in its final conclusion,” the written opinion reads. It goes on to argue that the “heir has no special bond with” the painting and that “the work has a significant place in the Stedelijk Museum’s collection,” which includes a substantial number of pieces by Kandinsky.

The heirs appealed the case, bringing it to civil court. In addition to claiming that the ruling violated the 2001 principle of forced sales, and that the commission’s provenance research had been inadequate, they alleged that four of the seven members of the Restitutions Committee were explicitly biased toward the Stedelijk Museum. Though the committee’s decision was technically binding, there seemed to be a good chance that the ruling would be overturned. Public outcry about the decision for this and related cases, including a scathing op-ed by restitution experts Wesley Fisher and Anne Webber published in the NRC Handelsblad in 2018, triggered the Dutch government to commission an independent review of the committee, led by Dutch politician and lawyer Jacob Kohnstamm.

Kohnstamm’s report, which was released on December 7, 2020, recommends that the committee systematically pursue active provenance research, a practice that it abandoned in 2005; strive to make the restitution claim process less opaque and bureaucratic; and drop the “balance of interests” policy, instead espousing an approach that is “more empathic” toward claimants. The report also reiterates that works sold after May 10, 1940 should be treated as forced sales. While the Restitutions Committee said in a statement that it welcomed the “constructive recommendations in the report,” the committee chair, Alfred Hammerstein, resigned without citing a reason shortly before the report was released. Encouraged by the report’s findings, Rob Lewenstein, one of the claimants, told Dutch News: “It has got to be positive for our case and for everybody else who is trying to get artwork repatriated … I think it is going to change how all of this is handled in the future.”

Nine days later, on December 16, the Dutch court upheld the committee’s ruling on the Kandinsky, a decision that the claimants’ lawyer Axel Hagedorn told the New York Times was “unbelievable” in light of the recent publication of the report as well as the legal merits of the case. According to Amsterdam-based paper Het Parool, the court said that it found “no serious defects” with the committee’s research and reasoning with regards to the painting’s provenance; consequently, the binding recommendation could not and should not be undone.

The City of Amsterdam, which owns the Stedelijk Museum’s collection, issued a written statement on the decision. “We are well aware that this is disappointing for the claimants,” the statement said. “This painting will forever be linked to a painful history. The relationship of our collection with the Second World War will always be important; we will continue to show information about this to the public, online and also in the gallery.” The Stedelijk plans to revise the wall text next to the painting to reflect the work’s fraught provenance. The museum’s website has been updated.

“After many years of struggles, the Lewenstein family is very disappointed that the Amsterdam District Court did not recognize the Lewenstein family’s rights to the restitution of its property, which was misappropriated during the Holocaust,” said Hagedorn in a statement. The claimants plan to file an appeal in the coming months.

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