‘Restitution’ in Germany

How can “just and fair” solutions be achieved in cultural property disputes stemming from the Nazi era 80 years after the end of WWII? Michael Markus Franz of the German Lost Art Foundation in Magdeburg has produced a valuable and accessible guide through the labyrinth of possibilities and impossibilities in Germany. His newly released Die venezianischen Fälle: Eine Sammlung fiktiver Fälle zu NS-Raubgut, Recht und Ethik [‘The Venetian Cases: A Collection of Fictitious Cases on Nazi loot, Law and Ethics’] is volume 5 in the Foundation’s Provenire series.

The Venetian Cases is intended first and foremost for German students of Law and Art History – young people in their early to mid-twenties, most of whom were not even born when the non-binding Washington Principles and its concept of just and fair solutions first appeared in 1998. It is also a book situated squarely within the field of Holocaust Studies in a country in which 12% of those between the ages of 18 and 29 know nothing about its topics. Here students opting to make their way through the book’s 15 cumulative cases on their own (or in a one-semester course with ancillary readings, practical workshops and moot court practice for which it is particularly well suited), supplement their professional training as future lawyers and provenance researchers by preparing for real and tangible encounters with the Nazi era’s living ramifications. They might someday correspond and meet with the descendants of victims, or hold a painting from a museum collection in their hands in awareness that its value for those families today transcends art history and price tags. This 186-page book, the first of its kind, is informed by its author’s thirty years at the forefront of the restitution discourse – including in successful Supreme Administrative Court appeals. It encapsulates key aspects of the 25 cases heard by the Advisory Commission on the Return of Cultural Property Seized as a Result of Nazi Persecution since 2003 (1) and was field-tested in the lecture halls of the Julius-Maximilians Universität in Würzburg and the Freie Universität in Berlin. But publishing it only in German severely underestimates the book’s value as an aid in decision-making and strategic planning for potential claimants abroad.

By definition in section D of the Best Practices for the Washington Principles on Nazi-Confiscated Art (2024), “[t]he primary just and fair solution is restitution, among other just and fair solutions.” For the descendants and heirs of victims of forced sales, confiscation and plunder during the Nazi era who are coming to this for the very first time, the order of things in that passage might raise hopes. Eighty years after the end of the Second World War, however, Germany still does not have a restitution law; the many obstacles to creating one have thus far proven insuperable. The long list includes the constitutional principle of non-retroactivity; the 30-year statute of limitations, the 10-year term of acquisitive prescription, and the burdens of proof in good and bad faith acquisitions as anchored in the German Civil Code; the right of access to information (and the abuse of data protection to prevent it), special interests and foot-dragging. A serious restitution law would have to be a special law with reach into public and private institutional, as well as personal, spheres. As Rüdiger Mahlo, counsel for the Claims Conference, observed last year in a public hearing of the Committee on Cultural and Media Affairs while referring to the historical milestones of the 1950s and post-unification period: “When we consider past dealings with Nazi injustice, special laws have been the norm. There is no Nazi injustice in Germany that has not been regulated by a special law. It doesn’t matter whether you take the Bundesentschädigungsgesetz, the Bundesrückerstattungsgesetz or the Vermögensgesetz. The question is: Why don’t we proceed accordingly with Nazi loot?” (2)

To be sure, the lack of a federal restitution law does not make restitution impossible. But it does shift the discussion elsewhere: into the realm of morals and ethics. The Washington Principles and the Joint Declaration (3), which provide a ‘soft-law’ foundation for Germany’s current efforts, “contain no specifications as to how a just and fair solution should be structured,” as Franz explains. “This opens up a broad spectrum of possible solutions.” (4) In addition to direct restitution, for which the optimistic author has even included a draft agreement template, chapter III in The Venetian Cases surveys ten other eye-opening possibilities which, to differing extents, are combinable. Six of the non-binding recommendations issued by the Advisory Commission in its largely big-name cases involved solutions other than restitution pure and simple. (5)

Germany has been attempting to revamp its approach to this aspect of its National Socialist legacy ever since the 20th anniversary of the Washington Principles in 2018 and the last government’s pledge to “improve the restitution of Nazi-looted art by standardizing a right to information, excluding the statute of limitations for claims for restitution, striving for a central place of jurisdiction and strengthening the ‘Advisory Commission’.” (6) Recently, however, an administrative agreement (7) between the federal government, the German states and the three umbrella organizations representing Germany’s municipalities has dissolved the Advisory Commission, despite wide opposition, in favor of a civil law Arbitral Tribunal for Nazi-looted Property [Schiedsgerichtsbarkeit NS-Raubgut] before which a claimant will be able to initiate proceedings unilaterally in anticipation of a legally binding and enforceable decision subject to appeal. This new and fledgling means of redress is expected to be expeditious, lower in cost and better suited to the vast bulk of less spectacular works of art and cultural objects in dispute; and it is to be evaluated after ten just and fair decisions have been made or, at the latest, within three years of its staffing. (8) In an interview published in the Jüdische Allgemeine on 9 May this year, Germany’s new Minister for Culture and Media, Wolfram Weimer, assured that the Tribunal set in motion by his predecessor “will be staffed quickly, so that work can begin as soon as possible.” (9) Whether or not it will actually work, depends upon what happens after the first knock on the door, especially under § 7 of its Rules of Procedure [Schiedsordnung] which concerns public institutions.

The Venetian Cases was put together in the midst of this revamping and launched at the Rheinische Friedrich-Wilhelms-Universitat in Bonn only two weeks after the administrative agreement became effective on 26 March 2025. Franz wisely played it safe by equipping three of his fictitious cases with directly pertinent variants. Alsberg vs. Hans Buchmann (case number 2, which revolves around a rare fine art photogravure edition from 1920 entitled Canaletto on the island of La Giudecca), explores the potential impact of the then-pending Arbitral Tribunal. Case number 7, Martin Mohnfeld vs. Bertram Bunt (which concerns the original manuscript of the early 16th century, here in translation, Law for the Registration of all Gondolas in Venice) and case number 14, Martin Minolta vs. Dagmar Dia and Lars Leica (which deals with a – spoiler alert! – photograph by Alfons Agfa capturing the 1910 murder of businessman Giovanni Stucky in the Venice train station hall) survey two legislative attempts that ultimately fell short of becoming restitution laws. To be clear, these matters belong only to the variants in Franz’s cases – real-world ‘hypotheticals’ within ‘hypotheticals’, so to speak – and not to the many intersecting topics in the main body of the cases. Minolta vs. Dia and Leica, for example, entails substantial discussion of object identity and the chain of possession (a domain of provenance research), acquisitive prescription, the statute of limitations, the removal of a listing from the Foundation’s Lost Art Database and much more.

Fabricated cases, ‘hypotheticals’, are universal pedagogical tools with deep roots in philosophy, rhetoric and law. They are written from the perspective of someone who knows how the genre can be used to stimulate specific, though still unpredictable, dialogue. Notwithstanding a fair amount of variance, there is an underlying form in Franz’s creations. Each short chapter in The Venetian Cases opens by presenting the facts of one of 15 cases and posing questions or assigning tasks to the reader directly or in the imaginary role of a specific stakeholder. A section entitled “Proposed Solution” [Lösungsvorschlag] then distills the underlying concepts and challenges for the sake of focus before proceeding through legal and moral-ethical reviews. There is much to unpack – fake provenances, past compensation payments, “Fluchtgut” (refugee property sold outside Nazi Germany’s borders), the very notion of “Nazi persecution”, Soviet trophy brigades, Allied Collecting Points, dereliction, art auctions and new legal title, the Gurlitt art trove, even the more recent topic of cultural property removed in colonial contexts. By the end of case number 15, readers will have discovered a great swath of problems they never knew they had, assembled a small arsenal of strategies and counter-strategies, built up a substantial vocabulary of specialist terminology and honed their skills enough to cut through any of the former Advisory Commission’s case summaries on their own while readying themselves for the first cases to be heard by the new Arbitral Tribunal. Although certain fundamental documents are included or excerpted in the book’s appendix, The Venetian Cases unfortunately has neither a glossary nor an index – omissions that impede its use as a reference.

The fictitiousness in Franz’s fabrications is twofold. It entails object histories and personal histories. In the first five cases, which unfold more or less linearly, it is easy to distinguish the author’s intellectual playground of Venice in the object histories from the fictionalized personal histories of victims of Nazi persecution. In case number 1, for example, Eduard Brinkmann vs. the City of Würzburg, the reader is given the role of a public museum director who receives a letter from a certain Eduard Brinkmann. Brinkmann, born three years after the end of the war, is the son of former Berlin porcelain factory owners Samuel and Martha Brinkmann. He has chanced upon Giacomo Francesco’s painting of the Piazza San Marco in the museum’s special exhibition “Venice through the Centuries” and claims it was once part of his parents’ art collection – given away for safekeeping before they fled the country in December of 1939. At the close of his letter, Eduard asks for swift restitution. The pedagogical exercise has already begun – well before the twists, turns and provenance gap enter the story.

Everything having to do with Venice in this eponymous textbook is simply made up. Why Venice? It’s Franz’s favorite city and neutral turf for didactic fiction and fleeting Hitchcockian cameos. The personal histories and events in the cases, however, are not simply made up. They are built upon abstractions and extractions from real cases, real biographies and, most importantly, plausible contrivance as of the 30th of January, 1933.

As of case number 6, however, the object histories seem to take on a life of their own. They become, poco a poco accelerando, increasingly more colorful and witty alternative-historical romps – culminating in the collection’s grand finale featuring the 105-carat ‘Yellow Gloria’ given to Gloria Goldstein by her father, Hamburg diamond dealer Isaak Goldstein, on the occasion of her 18th birthday and heisted from the Museo del Diamante Venezia 64 years later during the 1982 World Cup.

While on the one hand “[f]iction makes it easier to concentrate on the essential features of a constellation”, as Matthias Weller of Bonn’s Rheinische Friedrich-Wilhelms-Universität rightly points out in his Preface to The Venetian Cases, and while all of the cases are certainly graspable and memorable enough to return to the mind’s eye in a flash, there is still a tacit trepidation that the lightheartedness and playfulness of some of them will be received poorly in view of the overwhelming gravity of the real historical context. This can be read between the lines in former Lost Art Foundation Chairman Gilbert Lupfer’s Foreword. A better affirmative defense, however, should one be needed at all, is to be found in the famous Dutch cultural historian Johan Huizinga’s observation in Homo Ludens that “conceptually, play is for us the opposite of seriousness. The opposition appears to be as irreducible as the very notion of play itself. But on closer examination, that play/seriousness opposition is neither conclusive nor stable.” (10)

The seriousness of The Venetian Cases will next play out in the forum of an Arbitral Tribunal. It will be interesting to see what new hypotheticals will supplement it in the months ahead.

Gregory Hahn, Berlin, 19 June 2025