Defending the rights of families dispossessed under Nazism

Published in Allemagne d'aujourd'hui 2022/4 (NO. 242).

Hélène Ivanoff: How did you come to specialise in intellectual property and in the field of the art market, cultural property and heritage law in France?

Corinne Hershkovitch : As a student, I specialised in  intellectual property because my mother was a painter and my father was an amateur musician. What interested me was the relationship between law and artistic creation. At the time, that academic specialisation was still rare, and available only in a few universities such as Paris II and Nantes.

The first matters I handled were intellectual property cases, and they led me indirectly into the art market and then into cultural property and heritage. In early 1995, I was approached by a client who was in dispute with his publisher. Because my surname sounded Jewish to him, he told me about his grandfather, who had assembled a substantial collection of paintings, furniture and books, which disappeared during the Second World War. His mother had attempted, unsuccessfully, to recover those works at the Liberation. A copy of Hector Feliciano’s book Le musée disparu had just been given to him; he recognised his family’s story in it and decided to take up the fight his mother had begun.

We then immersed ourselves in the family archive boxes and in the auction catalogues relating to the Federico Gentili di Giuseppe collection. This was in 1995, 1996 and 1997. In a sense, I was among the first to work in this area; there was Feliciano’s book and then, essentially, nothing else. The Washington Principles of December 1998, on which States’ present-day commitment to seeking “fair and equitable solutions” in respect of spoliated works of art is based, had not yet been adopted. At the time, I carried out the research myself at the French National Archives and at the archives of the Ministry for Europe and Foreign Affairs, proceeding in a largely empirical manner.

Despite my own family history (my father, who was born in Germany, fled in 1938, and my mother, of Romanian origin, had to go into hiding during the Second World War), and despite what I had learned from an inspiring history teacher at the Jewish lycée and during my history degree at university, I did not yet know what had happened in France under the Occupation. By reading the Journaux officiels of the period, I discovered the antisemitic legislation and the machinery of the spoliation of Jews in France, carried out not only by the Germans but by the French administration itself.

In March 1997, the Mattéoli Mission, tasked with examining the spoliation of Jews in France, simultaneously revealed the scale of the work still to be done. During a visit to an exhibition devoted to the Musées nationaux récupération (MNR) held under its auspices, we identified, among the works on display, paintings from the Federico Gentili di Giuseppe collection. They had been acquired by Hermann Göring at auction in 1941, repatriated to France, and placed with the Louvre after the war. I therefore advised the heirs of this prominent Jewish art collector to bring proceedings against the Louvre in order to obtain restitution of five paintings.

The issue was to demonstrate that the refusal previously made to the collector’s daughter (my clients’ mother) was not justified, and that, once the sale was set aside as invalid, the MNR works had to be restituted to the family. I lost at first instance. In June 1999, the Cour d'appel de Paris ultimately found in favour of the heirs, set aside the 1941 sale on the basis that it was spoliatory, and thereby enabled restitution of the paintings. The judgment relied on the Ordinance of 21 April 1945, concerning the nullity of acts of spoliation perpetrated by the enemy. The Ordinance had not been used since the 1960s, but it had never been repealed. The first-instance court had accepted that the claim was admissible, but refused to set aside the sale and therefore refused restitution. The Cour d'appel de Paris overturned that judgment and ordered the Louvre to restitute the works to the family.

That is how I first came into close contact with the art market, and how the door opened onto spoliation and restitution. At the time, through the Gentili di Giuseppe case, I was the only lawyer in Paris whose work was directly connected to the Occupation period. I arrived at the perfect moment, and I obtained many restitutions or compensatory settlements because I had a head start in how to approach the subject with curators who were trying to adapt to the new standards.

The international context had indeed changed; public opinion shifted dramatically in the late 1990s. The Washington Principles were adopted in December 1998. While American museums sought to present themselves as exemplary, they discovered that part of their collections derived from sales of works confiscated by the Nazis from German museums as “degenerate art”, notably in Lucerne, Switzerland, in 1939, or had been purchased on the European market during the Second World War. Their collections contained numerous spoliated works. Curators and museum directors were confronted with that reality.

The Gentili di Giuseppe collection has therefore been a guiding thread in my professional life as regards spoliation and provenance research. The case has seen many developments: further works have been identified across the world, notably in England, Germany, the United States and Australia, and that continues to this day. A second guiding thread is the Gimpel case, which began in 2013, when I took the first steps to obtain restitution of three Derain paintings for the heirs and successors in title of the dealer and collector René Gimpel, who died in deportation at Neuengamme. Restitution was ordered by the Cour d'appel on 30 September 2020. A third is the Dorville case, which began in 2017 and is still ongoing. The question there is whether the post-mortem sale of the collector Isaac Armand Dorville, held from 24 to 27 June 1942 at the Hôtel Savoy in Nice, should be recognised as a spoliatory sale. I have been fortunate to handle cases that have become emblematic markers of these past twenty-five years.

H. Ivanoff: Have you had the opportunity to work with German colleagues, whether lawyers or other legal professionals, and if so in what context?

C. Hershkovitch : I have always worked with Germany in the context of these cases, and I am regularly in contact with German colleagues, including lawyers, legal scholars, curators and museum directors, as well as with the authorities of the Länder. There has been a very significant shift since the Gurlitt case and the establishment of the “Schwabinger Kunstfund” task force. Previously, I dealt with the Limbach Commission, which was responsible for addressing contested restitution claims. In most cases, it was a difficult and painful experience. Today it is quite the opposite, and I am sometimes better received in Germany than in France.

The Gurlitt case was a cataclysm, a textbook case, a media scandal. That treasure, which is not one, revealed to the public by Focus in 2013, profoundly reshaped the landscape and the procedures. In January 2020, the Federal Republic of Germany decided to organise restitution of works by Armand Dorville identified within the Gurlitt holdings, in light of the agreement between the Kunstmuseum Bern and the Federal Republic of Germany. Cornelius Gurlitt bequeathed his collection to the Swiss museum, which accepted it subject to specific clauses: works suspected of having been spoliated by the Nazis remain under Germany’s responsibility.

It was thus Monika Grütters who, in January 2020, handed over with great ceremony the spoliated works to the Dorville heirs, represented by Francine Kahn. That was a high point. When the German authorities consider that spoliation is established, they behave in an admirable and exemplary manner. I had no difficulty obtaining restitution in that instance, unlike in other jurisdictions.

H. Ivanoff: What do you make of the divergent decisions taken by Germany and France in the Dorville heirs’ case?

C. Hershkovitch : There is a double standard. In Germany, the procedure took less than a year. The decision to restitute the works discovered in the Gurlitt holdings was taken on the basis of the documents submitted. In France, the procedure is still ongoing and has taken a judicial turn following the failure of the administrative procedure before the Commission pour l'indemnisation des victimes de spoliation (CIVS). The CIVS recommended that the works be “returned”, but refused to recognise the spoliatory character of the Dorville sale, aligning itself with the conclusions of the research report prepared by the Mission de recherche et de restitution des biens culturels spoliés entre 1933 et 1945 (M2RS).

Following a highly convoluted line of reasoning, the auction held at the Hôtel Savoy in Nice in June 1942 was not regarded as spoliatory in France, unlike the decision taken in Germany. The Mission’s report emphasised that it was a post-mortem sale conducted by an executor, that it was not challenged by the family at the Liberation, and that the family received the sale proceeds in 1947. The sale was therefore characterised as voluntary. Yet, while adopting an ostensibly moral stance, the CIVS issued a recommendation that sits in direct tension with its assertion that the sale could not be spoliatory, by recommending that the works purchased in Nice by the Louvre curator sent on site be returned.

However, the file contains numerous elements showing that the executor, a soldier held prisoner in Germany at the time of Armand Dorville’s death and released in November 1941, was well aware of the risk of confiscation under antisemitic legislation. He prepared, in a very short time between November 1941 and June 1942, an inventory of around 500 items with the obvious aim of preventing the collections from being seized. On the first day of the principal sale (some 450 paintings, drawings and sculptures), a provisional administrator appointed by the Commissariat général aux questions juives was imposed following a denunciation, and it was he who directed the sale: that is spoliation by definition. Lastly, the family only recovered the proceeds of the sale in 1947, at a time when several family members had died in deportation.

That CIVS position is now invoked by many museums and dealers to refuse the family’s claims over other works sold in Nice and subsequently circulating on the market. It is incomprehensible to the family, which has continued judicial proceedings since September 2021 to have the spoliatory nature of the sale recognised and, therefore, the sale declared void.

H. Ivanoff: What lessons have you drawn from this, particularly as regards the role of lawyers, procedure, and the legal system in Germany as compared with France?

C. Hershkovitch : In Germany, lawyers play a genuine role as partners in restitution processes. They are involved in the investigation of files and work in cooperation with museums. In France, distrust of lawyers persists, whereas Germany values their role as an essential intermediary between the family and the State. Ultimately, French procedure is far less adversarial and far less transparent than the German process. On the same facts, the criteria used to characterise spoliation differ between the two countries, and in France victims are forced to resort to litigation.

In recent years, several restitutions have taken place in Germany on the basis of a mere presumption of spoliation. In France, the Gimpel case helped to move the case law forward in this area. What matters above all is the quality of the provenance research report submitted to the court and the recognition of its probative value. As legal argument now increasingly rests on provenance research reports, it has become necessary to standardise them, to define a framework, and to establish criteria and methodology.

H. Ivanoff: Do you consider that an organisation such as the Deutsches Zentrum Kulturgutverluste is useful and effective in provenance research and restitution?

C. Hershkovitch : Germany has managed to establish an independent and reliable body in the Deutsches Zentrum Kulturgutverluste (German Centre for Lost Cultural Property), even within a federal State. It develops standards and criteria for provenance research, and supports projects by museums and private individuals through funding. In France, there is no equivalent institution. It is striking that in a State as centralised as ours there is still no national centre for provenance research. At present, I have to acknowledge that France has not achieved what Germany has put in place.

The remit of the French Mission for Research and Restitution of Cultural Property Spoliated between 1933 and 1945 is much narrower. As its name indicates, it is confined to the period 1933–1945. Provenance research, by contrast, covers a broader period and a broader scope ; it includes, for example, reviewing collections that entered museums after the war, collections originating in colonial contexts, as well as works spoliated from Jews during the Second World War.

In addition, it is dependent on the Ministry of Culture and staffed by civil servants, although it also calls on independent researchers. It carries out the research on which the State then bases its decisions. Its budget remains very limited and its staff numbers low. In order to achieve the effectiveness and transparency required in provenance research, it seems essential to entrust such research to individuals independent of the heritage curatorial corps, trained specifically as provenance researchers, and operating within a clear framework developed in an academic setting.

H. Ivanoff: Do you think France should create academic chairs and university courses dedicated to provenance issues, as already exist in Germany?

C. Hershkovitch : Yes unquestionably. Provenance research must become an autonomous academic discipline. Fundamental research must progress, and the training and tools required for provenance research must be developed and subject to oversight. The recent creation of a university diploma at Université Paris Ouest Nanterre is a first step in that direction.

At the same time, however, it is necessary to create a body to centralise knowledge, catalogue and reference the databases useful for provenance research, bring together all relevant stakeholders, recommend the digitisation of archives, liaise with museums, issue guidelines on collection reviews, and offer audits to French museums.

Given the prominent media attention in France to provenance issues (the Jean-Luc Martinez / Louvre Abu Dhabi affair has again recently illustrated this), the professional field still seems insufficiently developed within French public and private institutions. Curators are increasingly aware of these issues, but they should be able to call on independent researchers to carry out provenance research assignments.

H. Ivanoff: What is the role of the Astres association?

C. Hershkovitch : Founded in February 2019, on the initiative of Marcel Wormser (1929-2021) and Dominique Schnapper, the Association for Support for Research Projects Engaged on Spoliations (ASTRES), whose presidency I was entrusted with, aims to support, by all means research into establishing the provenance of cultural property spoliated between 1933 and 1945 and held in French public collections. 

The creation of the association stems from a simple observation: in the absence of a genuine provenance research programme, the owners of more than 2,000 paintings recovered in Germany in the aftermath of the Second World War and today listed as Musées Nationaux Récupération (“MNR”) have still not been identified. More generally, no systematic programme of provenance research concerning the period 1933–1945 for works entered in the inventories of French national collections has yet been carried out.

Yet France committed at the 1998 Washington Conference to finding fair and equitable solutions for the restitution of works of art spoliated during the Second World War. Implementing such solutions requires a genuine effort of research and clarification of the provenance of the cultural property that makes up our national collections.

Convinced that provenance research must be based on transdisciplinary expertise, Astres seeks to facilitate research through practical action: developing methodological and scientific tools, organising training, securing funding, digitising archives, and proposing expert missions to museums and local authorities. All of this aims to improve the traceability of works and to deploy fair and equitable solutions within the meaning of the Washington Principles.

In that respect, Astres is fortunate to be supported by private individuals, art-market participants and the academic community. It is still a young association, and it also seeks to develop cooperation with provenance research associations in other countries, notably Switzerland and Germany, and to support the university programmes currently being established. Its activities are presented on the website: https://astres.info/ and it is possible to contact the association at the address given there contact@astres.info.