Austria: the restitution of works of art.
One of the most well-known art restitution cases has to be the dispute over Klimt’s Portrait of Adele Bloch-Bauer I. The heirs of Ferdinand and Adele Bloch-Bauer fought for years to have the painting, and many others, returned to them. In 2006, Austria returned the painting to the heirs. It was then sold to Ronald Lauder for 135 million US$ and can now be admired at the New Gallery in New York. An abridged version of the legal battle was made into the film The Woman in Gold starring Helen Mirren in 2015.
Currently another case is big news: in 2001, Klimt’s Apfelbaum II was returned to Nora Stiasny’s relatives… erroneously, as the painting never belonged to them. Nobody knows where the painting is today. These prominent cases offer an opportunity to delve into the legal technicalities of the restitution of works of art.
In 1998, the Austrian Parliament unanimously approved the ‘Kulturrückgabegesetz (KRG)’, ‘the cultural restitution act’. The legislation regulates the restitution of works of art possessed by Austria that were unjustly confiscated during the Nazi period or left to the Government after 1945 as ‘payment in return’ for the distribution of export licences for other works of art. After 1945 , the owners, most of whom had emigrated, approved these ‘ownership transfers’ because it was the only way that they could at least get some of their works of art out of Austria. The KRG authorizes the Federal Minister for Education, Arts, and Culture to determine the original owners and return works of art to them or their successors.
However, prior to returning the works of art, the Minister has to seek the counsel of an advisory board that then assesses his recommendations based on a report drafted by the ‘Committee for Assessing Provenance’.
While the law doesn’t guarantee the original owners or their relatives any legally applicable right to having a work of art returned, up until now tens of thousands of works have already been returned. Researching the provenance of a work can be extremely difficult, so much so that it’s not always possible to determine the original owners or their heirs. Works of art can therefore be transferred to the ‘National Fund for the Victims of National Socialism’ for exploitation. And the fact that errors do happen in determining the provenance of paintings is shown by the erroneous return of Klimt’s Apfelbaum II.
The Austrian provinces and some municipalities have also passed legislation to return works of art, to include those works not covered by the federal law.
The case of The Lady in Gold is somewhat complex. At the start of the 20th century, Ferdinand Bloch-Bauer commissioned the painter Gustav Klimt to paint his wife, Adele Bloch-Bauer. He also paid for the painting. When Adele passed away in 1925, in her will she asked her husband to give the painting to the Austrian National Gallery in the Belvedere after his death. At the probate proceedings Ferdinand Bloch-Bauer promised to fulfil her request. In 1938, Ferdinand emigrated to Prague, then to Switzerland. His Austrian assets, left in the country, were seized by the Nazis as repayment for allegedly overdue tax payments. In 1940, Ferdinand had little choice other than to agree to a settlement to repay the allegedly overdue taxes (which were probably invented by the Nazis). According to the settlement, among other objects, The Lady in Gold went to the Austrian National Gallery.
After 1945, Ferdinand and his relatives put their efforts into having The Lady in Gold as well as other paintings returned to them. In 1948, to ensure they received an export licence for the other paintings, they acknowledged that The Lady in Gold belonged to the Austrian National Gallery, since that is what Ferdinand had agreed to in 1925 during his wife’s probate proceedings. So the painting remained at the Belvedere.
In 1999, Maria Altmann, one of their heirs, requested the painting be returned to her following the newly approved KRG. However, the advisory board rejected her request and subsequently the Federal Minister, Ms Elisabeth Gehrer, denied the restitution of the painting. In the wake of this decision, the relatives in America took the Federal Republic of Austria to court. In May 2005, however, both parties agreed to continue the case under the jurisdiction of an Austrian court of arbitration. On 15 January 2006, the court ultimately ruled that all the requirements for the return of the painting were fulfilled. The Government then returned the painting to Ferdinand Bloch-Bauer’s heirs.
The legal issues relating to The Lady in Gold were somewhat complex: to start with, it wasn’t clear who the rightful owner of the painting was back in 1925, the year of Adele’s death: did it belong to Ferdinand or Adele herself? After all, Ferdinand had commissioned and paid for the painting. But he might have given it to Adele. If Ferdinand had been the owner of the painting, Adele could not have included it in her will. If Adele had been the rightful owner, the question was whether she could have forced her husband to give the painting to the Austrian National Gallery in her will and whether Ferdinand’s promise to do so would be legally binding. The quality of the 1948 settlement between Ferdinand and the Government was also questionable, following the export of other paintings. In the settlement, the heirs basically admitted that, due to the instructions in Adele’s will, the painting belonged to the Republic of Austria.
The Court of Arbitration didn’t answer all those questions, it deemed it sufficient that the painting had been used as a bargaining chip to ensure the export of other works of art after 1945. It therefore decided in favour of the heirs.
The case is a perfect example to illustrate how difficult and complex the process of art restitution can be, and that there aren’t always clear solutions. This case involved a lot of legal questions, while Apfelbaum II contained more historical and factual issues.
This article by attorney Georg Huber was published in the art magazin “Kaleidoscope”.back