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Methinks Thou Doth Protest too Much—Bavaria Scrambles Defensively After Revelation of Looted Art Sales to Nazi Families

Posted by Nicholas O'Donnell on July 1, 2016 at 5:50 AM

The revelation that Bavaria re-sold looted artworks to Nazi families while giving victims and their heirs the run-around for years has clearly touched a nerve at the Bavarian State Paintings Collection (the Bayerische Staatsgemäldesammlungen, or BSGS). Days after the Sueddeutsche Zeitung exposed that the Commission for Looted Art in Europe (CLAE) had given the lie to years of deception by the BSGS, the BSGS issued a long, rambling, and defensive statement in defense of its actions.  The statement is a classic case of misdirection.  Reaction to the story and the BSGS response can be found at the Observerand the Telegraph

Rather than acknowledge the revelation for what it is­—a scandal of epic proportions—the statement quibbles with exactly when it was knowable that Bavaria had preferenced Nazi heirs to Holocaust victims, and generally tries to change the subject. What it fails completely to do is display any understanding that the problem is very simple: Bavaria's desired outcome is not the complete transparency of any potentially looted works in its museums' collection.  Rather, the desired outcome is to preserve defences against individual claims who are put to enormous burden even to have a conversation, and then subjected to "decisions" at the whim of bureaucrats in Munich.  It is an open secret that the BSGS is the most hostile of the German states to restitution, so much so that it will no longer even agree to go before the Advisory Commission, which is itself fatally flawed.

The statement's major points are that:

  • The BSGS researched and published information about the Goering collection in 2000 and 2004, and that "740 works formerly expropriated from the collections of the Nazi Party and high-ranking Nazis have been under investigation by two provenance researchers," of which 236 have been published on
  • Of the five pictures and seven sculptures works seized from Heinrich Hoffmann at the end of the war, eight have been published on


Typically, the statement takes a tone of outrage that anyone would dare to challenge Bavaria's commitment to the Washington Principles. This too is a cynical distraction. No one challenges the hard work or skill of the art historians doing the research, just as the researchers on the Gurlitt Task Force were not the point. It is the scope of the commitment. One either wants to find the answer or one does not. 740 works researched out of how many? Two provenance researchers in fifteen years? And since one of them apparently passed away--a year in which the Gurlitt Task Force fiasco remains a major scandal--the BSGS took nearly a year to re-fill the position.

Not mentioned or addressed is the further continuing issue of document availability. Records that should be in the publicly-available Bavarian State Archives, for example, relevant to the Kraus family at issue in the current story, remain under the discretionary control of BSGS administrators. The CLAE issued a statement in response, which addresses this point:

Starting in 2011, CLAE asked for full documentation and an explanation of the motives of 'return sales' to high ranking Nazi families. CLAE also asked for detailed information about the legal instruments which permitted the Museums to relinquish them and the State to sell them. CLAE repeatedly asked to see full copies of all the related correspondence and documentation.

The BSGS repeatedly told CLAE that their only documentation on the return sales to the Nazi families consisted of two pages, each a receipt for the return of the two paintings to Frau Hoffmann-von Schirach. Dr. Bambi wrote that these two pages were "alle mir zugaenglichen Dokumente" ("all available documentation"). By the BSGS's own admission today, this was inaccurate.

Dr. Bambi in 2011 referred CLAE to the 2004 publication cited in the BSGS statement of today. The contents of that publication have since 2005 been published by agreement with the BSGS on the CLAE website, The 2004 publication includes no explanation or detailed information on the return sales.

And further:

The BSGS statement contradicts itself. On the one hand, it asserts that it has provided all documents in the BSGS and the State Archives to CLAE. They mean by this the five pages provided in 2011. On the other hand, they state that the full records are available in their archives.

That the BSGS records are only accessible by the decision of the BSGS is not acceptable. All records more than 30 years old must be transferred to the State Archives, as German law requires….Until Bavaria commits to full transparency, no family will have confidence that justice is fully available.

The Conference for Material Claims Against Germany (better known as the Claims Conference) issued a scathing statement of its own:

The recent scandal in Bavaria about Nazi looted art shows that there is a considerable discrepancy between the state enacted readiness to return looted art and cultural assets of Jewish ownership and the implementation of just and fair solutions. As long as cover-ups and concealment predominate even in high-ranking institutions such as the Bavarian State Paintings Collections it will hardly be possible to find solutions that are satisfactory and concilliatory, let alone just and fair as defined by the Washington Principles.


It is shameful that even responsible persons in public institutions are still not contributing to the transparency essential for provenance research but blocking access to archive records and preventing them from being used. Nor is the reversal of the burden of proof by any means being applied as required.

As I told ArtNet in an interview, the BSGS response is a shell game that has sadly become part of the playbook for these institutions: 1) rather than commit to publicizing all questionable works (as the UK did within a year of the Washington Conference), wait for claimants to appear. 2) challenge claimants' standing and demand proof of their relationship to victims. 3) deny access to relevant information, and issue a "decision" with no explanation. 4) point to the restitution of works the museum did not want to keep, talk about how hard provenance research is (make sure too to say "every case is different"), and express shock and dismay at being called out for (1)-(3).

Unless of course the claimant is the widow of a Nazi war criminal, in which case the answer was apparently "when would you like to pick up your painting."

Between this, Gurlitt, and the Advisory Commission's institutional incompetence, it is a troubling trend.

Topics: Bayern, Nazi-looted art, Commission for Looted Art in Europe, Restitution, Bavaria, World War II, Raubkunst, Bayerische Staatsgemäldesammlungen

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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