Legal Matters

The database Lost Art went online on 10 April 2000. In connection with the operation of Lost Art, legal questions also arise over such issues as the fulfilment of due diligence obligations for third parties in the trade of cultural property, as well as aspects relating to substantive law and restitution commitments (for details on the individual points, see: Michael Franz: Lost Art und Recht, in: KUR 2020, p. 148ff ).

The possible deletion of Lost Art search requests is also an issue that has arisen repeatedly. With regard to the handling of such requests for deletion, reference should be made in particular to the ruling by the Federal Administrative Court dated 19 February 2015 (ref.: BVerwG 1 C 13.14) in the “van Diemen” case. In this ruling, the Federal Administrative Court emphasised that “in view of Germany’s historical responsibility, there is an interest in society as a whole in publishing information on cultural property” that are suspected of having been looted, “in order to enable interested citizens to take responsibility for helping overcome the unlawful consequences of the National Socialist regime that continue to take effect to this day”. On the other hand, the Federal Administrative Court stated that the aim of publishing search requests and found-object reports in Lost Art is to bring together pre-war owners or their heirs and current owners and help them arrive at a just and fair solution. For this reason, a search request may remain in Lost Art even if the parties are known but a just and fair solution has yet to be reached between them.

Another case (ruling by Magdeburg Administrative Court of 25 November 2020, ref.: 7 A 1133/17 MD, in: KUR 2022, p. 68ff), in which a German auction house sued the Foundation for the deletion of a search entry, also revolved around the question as to whether the Cultural Property Protection Act (KGSG) which came into force after the “van Diemen” decision had brought about any changes in the Foundation’s practices in operating the Lost Art database. The Magdeburg Administrative Court stated that this was not the case (on the ruling, cf. for example Sebastian Hohmann / Michael Franz: Kunsthandel und Lost Art, in: KUR 2022, p. 86ff), thereby adhering to the jurisdiction of the Federal Administrative Court as reflected in the “van Diemen” ruling.

After the National Socialist regime came to an end in 1945, there were no more confiscations as a result of persecution.

As such, legal claims for the restitution of cultural property expropriated as a result of (Nazi) persecution have been time-barred since at least 1975 due to the statute of limitations of a maximum of 30 years. This means that such claims are no longer legally enforceable – irrespective of possible ownership by the claimant. Rare exceptions are cases such as the dispute over the Sachs poster collection (ruling by the Federal Court of Justice of 16 March 2012 – ref.: V ZR 279/10).

As a result, no progress can be made at the legal level with regard to restitution claims, but attempts are made to resolve the relevant conflicts at the ethical level. This is where the international Washington Principles of 1998 and the German Joint Declaration of 1999 come into play. The latter aim to arrive at a just and fair solution to disputes over cultural property expropriated as a result of (Nazi) persecution.

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With regard to the return or restitution of cultural property which was relocated as a result of war, a distinction has to be drawn between international law and civil law.

International law governs relations between states. For example, the Hague Land Warfare Convention of 1907 (HLWC) prohibits looting (Art. 47 HLWC) and the seizure, destruction or damage of works of art (Art. 56 HLWC). Since then, several intergovernmental agreements have been concluded on the restitution of cultural property that was relocated as a result of war, with the contracting states being responsible for their implementation.

From the point of view of civil law – i.e. with regard to private individuals – claims for restitution, similar to cases of cultural property expropriated as a result of (Nazi) persecution, are now typically time-barred, regardless of any existing ownership by the claimant.

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The issue of the confiscation of cultural property in the Soviet Occupation Zone and the German Democratic Republic (GDR) is highly complex since it encompasses numerous distinct sets of historical circumstances and differing categories of cases.

With regard to the confiscation of cultural property in the Soviet Occupation Zone, this includes the Schlossbergungen (“palace salvages”) as part of the land reform carried out from 1945 to 1948; with regard to the confiscation of cultural property in the GDR, it includes unfair activities pursued by state organs at the time (e.g. confiscations by customs and the People's Police, (Aktion Licht), confiscations of property belonging to those who left the GDR (illegal emigration) and also the handling of art collections in connection with inheritance issues.

Several laws passed after the end of the GDR (e.g. the Property Act (VermG), the Equalisation Benefits Act (AusglLeistG) and the Compensation Act (EntschG)) served to compensate for these unlawful measures.

However, the submission deadlines for restitution claims have expired (e.g. pursuant to § 30a I 1 VermG by 30 June 1993). In addition, claims for restitution are now typically time-barred.

With the aim of providing more effective factual and legal orientation, the legal opinion commissioned by the Foundation, written by Professor Thomas Finkenauer (University of Tübingen) and Professor Jan Thiessen (Humboldt University of Berlin) and entitled "Rechtssituation und Handlungsoptionen im Hinblick auf Kulturgutentziehungen in SBZ und DDR” [Legal situation and options for action with regard to the confiscation of cultural property in the Soviet Occupation Zone and the GDR] was published in October 2023 in the Provenire series as a special volume entitled "Kunstraub für den Sozialismus. Zur rechtlichen Beurteilung von Kulturgutentziehung in SBZ und DDR" [Art theft in the name of socialism. On the legal assessment of confiscation of cultural property in the Soviet Occupation Zone and the GDR]. The expert opinion differentiates a total of 13 actual groups of cases and evaluates them from a legal point of view.

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In the case of Cultural Goods and Collections from Colonial Contexts, there are considerable challenges involved even in simply reconstructing the concrete historical facts: this is because the processes of seizure or acquisition usually date back well over a hundred years.

With regard to restitution claims, no special legal provisions have been established to date. Existing norms under international law such as the Hague Land Warfare Convention (1907), the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) cannot be applied because they are not retroactively valid for the colonial period.

This only leaves the option of general claims for restitution under civil law, whereby the respective requirements (e.g. applicability of which law, original and current owner, circumstances of acquisition) not only have to be clarified but also proven in the event of dispute, which is often difficult (see above).

In addition, claims for restitution asserted in court regularly fail due to the statute of limitations. For this reason, the return of Cultural Goods and Collections from Colonial Contexts occurs on a voluntary, ethical basis or in accordance with bilateral agreements.

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