Restitution of Nazi-Looted Art: The French Law of 2022

Publié dans Art Antiquity and Law (Vol. XXVII, Issue 1) en 2022.

On 22 February 2022, the French Parliament enacted legislation^[1] to enable the restitution of fifteen works (paintings, drawings and sculptures) which had been looted during the Second World War, but whose return was rendered illegal by virtue of the principle of inalienability of cultural objects held in national collections. The draft bill had been announced by the French Culture Minister on 3 November 2021 and sought to authorise the deaccession (‘declassification’) of certain items of cultural property held in public collections and which the State had decided, for various reasons, to hand over to the heirs of people from whom it was looted during the Second World War. The format of the legislation is simple: it contains four articles, each dealing with a specific cultural item or items, together with annexes detailing the inventory numbers of the items.

LEGAL ISSUES

Cultural goods which have been integrated into public collections fall under the regime of public domaniality, whose fundamental principles go back to the Edict of Moulins of 1566, which confers a dual protection on them: these goods are imprescriptible and inalienable^[2].

As indicated by the French Constitutional Council: the consequence of inalienability [...] is to prohibit the disposal of property in the public domain, voluntarily or involuntarily, either in return for payment or free of charge^[3] and thus to prevent the transfer of ownership of works from public collections.

However, the inalienability of cultural property is not an inviolable principle, and if an object can enter the public domain, it must also be able to leave it^[4]. It is therefore within the power of the legislator to authorise, by a limited derogation to the principle of inalienability, the removal from public collections and the transfer of ownership of several works. The works at issue in the 2022 legislation are discussed below.

THE WORKS AT ISSUES

Rosiers sous les arbres (Rose Bushes under the Trees) by Gustav Klimt

Article 1 of the 2022 Law provides that this Gustav Klimt painting, acquired in 1980 from a dealer and kept in the collections of the Musée d’Orsay, ceases to be part of these collections and is to be returned to the heirs of Mrs Eleonore Stiasny within one year from the date of publication of the Law. Mrs Stiasny, an Austrian national, had sold it at a low price in Vienna at the time of the Anschluss in 1938, to Mr Philip Haüssler, before being deported and murdered. The restitution of this property is a response to the imperative need to make reparation for the anti-Semitic looting and plundering perpetrated by the Nazi regime.

Carrefour à Sannois (Crossroads at Sannois) by Maurice Utrillo

This painting was looted in 1940 from Georges Bernheim by the Einsatzstab Reichsleiter Rosenberg (ERR). It subsequently appeared on the market at Christie’s in 1975, and then in 2004 was bought at an auction at Sotheby’sLondon by the Commune of Sannois in France. It was not until 2015 that the Commune was alerted to the history of the painting, and in 2018 the Commission for the Indemnification of Victims of Spoliation (CIVS) recommended the restitution of the painting to the rightful owner. The Commune immediately sought to comply with this recommendation and passed a resolution on 31 May 2018 to that effect. However, this restitution was not possible as the painting’s legal status was that of a public work and it was therefore protected by the principle of inalienability. Article 3 of the 2022 Law provides that the painting should cease to form part of the Commune’s collection and should be returned to the heirs of Georges Bernheim within one year.

Le Père (The Father) by Marc Chagall

An amendment to the Bill was added on 13 January 2022 to include Chagall’s The Father. Painted in 1911 in the studio where the painter lived, it disappeared during the First World War when Chagall had to abandon his works to leave during the conflict. The painting was donated to the State and became part of the national collection in 1988 and it was only recently that it was discovered to have been looted by the Nazis from David Cender in Poland in 1940 following his transfer to the Lodz ghetto. Article 4 of the 2022 Law provides that this work should be returned to the heirs of David Cender within one year: the painting was in fact returned by the Ministry of Culture on 1 April 2022^[5].

Twelve works from the Armand Dorville Collection

These works, owned by Mr Armand Dorville, were sold at public auction in June 1942 in Nice and acquired by the National Museums (Musées Nationaux) in the presence of a provisional administrator appointed by the General Commission for Jewish Questions, in accordance with the anti- Semitic law of 22 July 1941, concerning companies, property and securities belonging to Jews. In a recommendation dated 17 May 2021, the CIVS declined jurisdiction to declare the sales null and void and found that they had been “organised and carried out without coercion or violence”. The CIVS noted, however, that the appointment of the provisional administrator at the time of the Nice sale “had the immediate consequence of apprehending their proceeds, which were thus made unavailable to the legatees”, with “consequences exceptionally aggravated by the deportation and extermination of three of Armand Dorville’s legatees and two children”. Noting that “it was in this troubled context that the Secretariat of State for National Education and Youth (Fine Arts, National Museums Directorate) acquired, with full knowledge of the facts”, the Commission recommended, “based on equity”, “that the works purchased by the National Museums at the June 1942 sale be returned to Armand Dorville’s heirs”. Article 2 of the 2022 Law provides that these twelve works, currently held in the Musée du Louvre, the Musée d’Orsay and the musée national du château de Compiègne, cease to be part of the national collection and should be returned to the heirs within one year.

However, the CIVS had decided against the return of nine other works which were also claimed and which had been purchased by other French museums after the Second World War.

This recommendation was accepted by the Prime Minister, but it is being contested by the heirs of Armand Dorville, who have applied to the Paris Tribunal Judiciaire to have the sales declared null and void on the basis of the Ordinance of 21 April 1945.

THE URGENT NEED FOR A FRAMEWORK LAW

However, welcome as these derogations from the principle of inalienability are, this Law fails to correct a longstanding failure on the part of the State to organise a general framework procedure for the declassification of works from public collections in cases where their removal is deemed necessary. Instead, it provides a piecemeal solution: a framework law is needed to facilitate restitutions by avoiding the systematic recourse to a case-by-case authorisation by Parliament, driven by the Government. Such a process has the effect of lengthening the duration of the procedure, contrary to the Washington Principles which evoke the need to “take measures as soon as possible”.

The example provided by Article 3 of the Law is a perfect illustration of this: almost four years passed from the date of the recommendation by the CIVS that the painting be returned (February 2018) and the vote of the Council of the Commune of Sannois (May 2018) to the enactment in 2022 of the legislation necessary to ensure the return.

The French Government’s thinking does not yet appear to be sufficiently mature at this stage to consider such a framework law, even though the French Culture Minister, Roselyne Bachelot, has expressed her desire to do so. It is further complicated by the current debate on the restitution of colonial property, although it is difficult to build a common framework for all such restitutions, as the criteria cannot be identical. However, comparisons are possible and even desirable given that slavery constituted a crime against humanity that led to numerous appropriations of cultural property and colonialism, among its many geopolitical consequences, presided over numerous displacements of objects.

The French senators adopted, against the government’s advice, the bill ‘relating to the circulation and return of extra-European cultural property’ belonging to public collections. The objective is to give a perennial framework to these restitutions and provides for the creation of a ‘national council of reflection’ on the subject.

If the examination of the Bill was the subject of a broad consensus among the senators, the same cannot be said of the government, which believes that “the principle of the inalienability of collections must not be weakened by the creation in law of a new category of property belonging to national museums”. This remark is aimed at the absence of an age criterion, because “beyond a certain age, for example five hundred years, the link with the original people is distended, which makes it difficult to link it to a current population”.

This position underscores the government’s clear refusal to take part in the debate, which is in opposition to the French President Emmanuel Macron’s desire to define a doctrine on restitution, particularly with his speech in Ouagadougou on 28 November 2017.

Provenance research appears today as the keystone of restitution. It represents time- consuming and quite specific work that requires both resources and dedicated staff.

This work is crucial both to improve the process of reparation of cultural spoliations and for the reputation of our museums and it is also urgent in view of the progressive disappearance of heirs still able to identify the works owned by their ancestors who were victims of spoliations or colonialism. The more transparent museums are, the more the descendants of the victims will feel appeased, thus facilitating the work of reparation.