When the provenance cultural property is contested

Published in Grief 2021/1 (NO. 8/1).

Provenance research aims to reconstruct the history and trajectory of cultural property, from its creation to its current location. It is essential, both in combating illicit trafficking in cultural property and in improving the security of transactions on the art market.

In my legal practice, the importance of provenance research becomes evident, and questions of provenance arise very regularly across various areas of art law, particularly with respect to works of art that were spoliated, works that have disappeared or been stolen, items resulting from illicit excavations, objects originating in colonial contexts, and cultural property exported unlawfully. Provenance research thus serves as a means of carrying out the due diligence required at the time of acquiring cultural property, a concept found in the 1970 UNESCO Convention on combating illicit trafficking, reiterated in the 1995 UNIDROIT Convention, and now of major importance on the international art market. 

Provenance research also remains an essential prerequisite for any reflection on restitution and, more broadly, on the relocation of cultural property. Having been responsible for numerous cases concerning the restitution of Jewish property spoliated during the Second World War since the Gentili di Giuseppe case - in which the Cour d'appel de Paris, in 1999, ordered the Louvre Museum to restitute five works to the collector's heirs - I have observed both the growing importance of provenance research and the shortcomings in this field, particularly as regards training. 

Indeed, in the absence of any 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), still have not been identified. Despite the commitment made at the Washington Conference in December 1998, France has not equipped itself with the resources necessary to conduct provenance research on works entered in the inventories of the national collections between 1933 and 1945.

In light of these observations, I accepted the invitation of the founders, Marcel Wormser and Dominique Schnapper, to chair the Association for Support for Research Projects Engaged on Spoliations (Astres), whose purpose is to support, by all available means, research aimed at determining the provenance of cultural property spoliated between 1933 and 1945 and held in French public collections. Among its initiatives, Astres has funded a provenance research project on a group of MNR works, recovered in Germany after the conflict and entrusted to France to be returned to their owners.

In this context, the creation of a transdisciplinary training programme (a diploma) in provenance research appears more necessary than ever, and I warmly thank Denise Vernerey-Laplace, an associate researcher at the Georg Simmel Centre (EHESS-CNRS), and Margaux Dumas, a doctoral candidate in history and art history, for having paved the way for the training of young students. 

Recent case law has acknowledged the growing importance of this discipline. Courts increasingly require proof of the due diligence carried out at the time of the acquisition of cultural property to ensure its "free and unencumbered status" (i.e. that it is not subject to claims), thereby reversing the burden of proof in cases of ownership claims and bringing to an end the presumption derived from Article 2276 of the Code civil: "En fait de meubles, la possession vaut titre." (In fact of furniture, possession is equivalent to title.) Moreover, in the Gimpel case, the Cour d'appel de Paris, in its judgment of 30 September 2020 reproduced above, officially recognised the relevance of a report prepared by two provenance researchers. 

1. Paysage à Cassis ou Vue de Cassis, oil on canvas, 54 × 65 cm, 1907, Troyes, Musée d’Art moderne, inventory no. MNLP88.‍
2. La Chapelle-sous-Crécy, oil on canvas, 38 × 55 cm, c. 1910, Troyes, Musée d’Art moderne, inventory no. MNLP100.
3. Pinède, Cassis, oil on canvas, 54 × 64 cm, 1907, Marseille, Musée Cantini, inventory no. C87.50.

After six years of negotiations, the inertia displayed by the Musées de France department responsible for examining the claim file compelled the Gimpel heirs to bring proceedings seeking restitution of the works spoliated from their grandfather, on the basis of the Ordinance of 21 April 1945, implementing for a second time the Ordinance of 12 November 1943 on the nullity of acts of spoliation carried out by the enemy or under its control, and providing for the restitution to victims of such acts of their property that has been the subject of dispositions. 

By judgment dated 29 August 2019, the Gimpel heirs were dismissed in their restitution claim, the court holding that the identification of the works had not been established with certainty. In the appellate proceedings, in order to remedy the State's failure to carry out the appropriate research, it became necessary to commission an objective and exhaustive provenance investigation, with a view to retracing the trajectory of the claimed works from their creation until they left René Gimpel's estate.

To that end, the Gimpel heirs instructed Ms. Margaux Dumas and Ms. Denise Vernerey-Laplace who, after extensive research, produced a scholarly report based on the study of the Gimpel family's archival documents and  various public archive holdings. In that report, they portray the art market during the Second World War and retrace, by drawing on the sources and expertise available to them, the trajectory of the paintings at issue. The researchers took care to describe the documents used, whether from public archives or family archives. This precise and analytical description, prepared by two specialists in the history of the art market during the Second World War, reflects an understanding of René Gimpel's personality and of the specific context prevailing at the time.

On the basis of these elements, the Cour d'appel de Paris ordered the French State and the City of Marseille to restitute three works by the Fauvist André Derain to the heirs of René Gimpel, an art dealer spoliated during the Second World War, after emphasising that the State had not carried out such provenance research, and observing that "ce travail très important, dont les premiers juges n’ont pas disposé, a permis de rectifier des erreurs antérieures et de préciser différents éléments permettant une meilleure connaissance du sort des œuvres en cause" (this very important work, which the first judges did not have, made it possible to rectify previous errors and to specify various elements allowing a better understanding of the fate of the works in question).

This evolution in the case law gives full meaning to the creation of a Master's programme in provenance research, a degree which, by serving as a meeting point for several disciplines, in particular art history, history, law, archival studies, and anthropology, will enable university-level training of provenance researchers capable of meeting a demand that continues to grow.