Cultural property looted during the Second world war : the cour des comptes report takes stock of the situation
Looted cultural property continues to be identified or rediscovered within public and private collections. These discoveries result from provenance research carried out by rights holders, departments of certain major museums and auction houses, as well as the Commission for the Restution of Propertu and the Compensation of Victims of Antisemitic Spoliations (CIVS) and the Mission for the Research and Restitution of Cultural Property Looted between 1933 and 1945 (M2RS). Nearly eighty years after the end of the Second World War, the Cour des comptes has recently published a report on France’s reparation for the spoliation of cultural property committed between 1933 and 1945. The report takes stock of the existing legal and administrative framework, and its sustainability.
HISTORICAL FRAMEWORK OF CULTURAL PROPERTY SPOLIATION
As part of a policy of spoliation implemented by the Nazi regime, many Jews were dispossessed of their real estate, movable and financial assets. Among the hundreds of thousands of goods looted in France during the Occupation, cultural property (works of art, books, musical instruments, etc.) was the subject of a specific policy.
Thefts, looting, confiscation and seizure in the form of Aryanisation, forced or compulsory sales… the forms of spoliation were multiple. Despite the particular attention now paid to cultural property, the Cour des comptes emphasises that it represents only a small share of the spoliations suffered by Jews.
RESTITUTION AND COMPENSATION MEASURES IN THE IMMEDIATE POST-WAR PERIOD
In the aftermath of the War, countries sought to recover works located in Germany or in territories controlled by the Reich. The Cour des comptes recalls that among the recovered works, not all were looted. Some assets had been lawfully and without coercion acquired by German officials or were official German commissions. In France, compensation and restitution procedures were established.
Ordinance No. 45-770 of 21 April 1945 thus introduced a restitution procedure and created a regime derogating from ordinary law – in order to allow accelerated and simplified procedures for the benefit of dispossessed owners.
This ordinance allows, under certain conditions, victims of spoliation or their heirs to have acts of transfer “carried out by the enemy or under its control” declared null and void, as well as all subsequent transactions. More than 45,000 works were thus returned in the years following Liberation.
Then, in 1949, among the recovered works that were not claimed, around 2,100 works were selected and entrusted to the custody of the national museums, pending possible claims by rights holders. These are the so-called “Musées nationaux récupération” (MNR) works, which may be claimed without any time limit to this day: only 179 have been returned.
THE RENEWAL OF REPARATION PROCEDURES FROM THE 1990s
After an initial wave of restitution and reparation measures in the immediate post-war period, these procedures came to an almost complete halt for nearly fifty years. From the 1990s onwards, France acknowledged its responsibility for acts committed under the Vichy regime and once again addressed the issue of spoliation reparation.
At the same time, several international instruments dedicated to looted cultural property and its restitution were adopted. In particular, the “Washington Conference Principles”, adopted on 3 December 1998, invite States to seek a “fair and just solution” and to simplify restitution procedures.
Although not legally binding, these principles are frequently invoked before courts and in negotiations concerning claims for looted property. Today there are judicial and administrative remedies, as well as alternative dispute resolution mechanisms allowing compensation or restitution claims for looted property.
THE ADMINISTRATIVE WAY
The CIVS, created in 1999 under the authority of the Prime Minister, handles compensation and restitution claims from rights holders. It conducts research, in tandem with the M2RS for cultural property. Then, professional magistrates appointed as “rapporteurs” within the commission examine claimants’ files in order to reach a recommendation.
The CIVS may recommend compensation or – where the property is located – restitution of the looted work. The Cour des comptes emphasises that France is the only State still compensating heirs of victims of spoliation.
A framework law of 22 July 2023 addressed a legal and practical difficulty concerning certain cultural property for which the CIVS recommended restitution: these works had entered public collections, making them inalienable, except by special law.
The 2023 law created an administrative procedure within the Heritage Code, allowing the State or local authorities to return cultural property from their collections that was looted during antisemitic persecutions between 1933 and 1945 (Article L451-10-1 of the Heritage Code). The decision to restitute by the public entity is subject to the prior opinion of the CIVS, which assesses the existence of spoliation and its circumstances.
The restitution of looted works in French public collections is therefore facilitated, and recourse to mediation and conciliation is encouraged.
THE JUDICIAL WAY
That being said, given judicial uncertainties and the length of proceedings, it is not uncommon for good faith purchasers of the work and heirs of dispossessed owners, duly advised, to reach settlement agreements. This route may be chosen by the parties at any stage of the proceedings. The transactional route makes it possible to negotiate solutions which, according to the Cour, appear fairer and more equitable to good faith possessors who might otherwise be deprived of the work without compensation.
Looted works, now in the possession of private individuals often unaware of their provenance, are sometimes rediscovered or identified by the heirs of victims during auction sales or exhibitions. This was recently the case of Pissarro’s work “Pea Harvest”, exhibited at the Marmottan Museum in 2017, and of the painting attributed to Adriaen van der Werff “The Penitent Magdalene”, entrusted to Christie’s for sale in 2018.
In these situations, in the absence of an amicable solution, judicial proceedings are initiated against the holders of the works and the 1945 Ordinance continues to be used in order to obtain their restitution. The Cour des comptes considers that heirs who demonstrate that they were “materially unable” to act within the imposed deadlines, i.e. before 31 December 1951, could request to be relieved from forfeiture by the courts, and act on the basis of this Ordinance so that restitution of their property is ordered. This interpretation appears legally questionable to us in relation to movable property.
Ultimately, it emerges from the report that France has a robust framework allowing for the reparation of spoliations of cultural property between 1933 and 1945. Abroad, there are other national commissions responsible for examining claims for compensation or restitution of looted artworks. Each has its own operating model and varying powers. For example, in the Netherlands, the “Restitutie commissie” is empowered to issue a binding opinion when it is seized of a claim jointly by the rights holder and the current owner (private collectors, museums not belonging to the State). In Germany, the commission acts as a mediator and cannot issue any binding opinion. But this could change in the coming years, as Germany has announced the creation of an arbitration court for property looted by the Nazis.
The intensification of reparation and restitution policies is confirmed. But the question of the temporal limits of these reparation actions remains, between legal certainty and memorial duty. Similar considerations will probably arise for other objects, looted in different historical contexts.
Article published in L’Objet d’art
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