Hearing date on 25 May 2023 at 09:00 a. m., court room E101, in re V ZR 112/22 (impairment of ownership due to announcement of missing cultural property in the Lost Art Database and Interpol search)

Année d'émission 2023
Date de publication 25.04.2023

No. 72/2023

The Fifth Civil Panel of the Federal Court of Justice competent, amongst other matters, for ownership-related claims, hears a case which requires clarification whether the ownership of a painting is impaired by an announcement of missing cultural property in the Lost Art Database as well as by an Interpol search.

Facts and Circumstances:

In the year 1999 the plaintiff, who is an art collector, acquired the painting “Calabrian Coast” (Kalabrische Küste) of the painter Andreas Achenbach at an auction in London. During the period from 1931 through 1937, the painting had been in the possession of the gallery Stern in Düsseldorf, which the Jewish art dealer Dr. Max Stern took over from his father at that time. Already in the year 1935 he was banned from any further exercise of his profession by the Third Reich’s Imperial Chamber of Fine Arts (Reichskammer der bildenden Künste); however, this order was not implemented initially. In March 1937 Dr. Stern sold the painting to an individual from Essen. In September 1937 he was ultimately forced to give up his gallery, whereupon he emigrated over England to Canada. His estate is managed by a Canadian trust whose trustees are the defendants.

In June 2016 an announcement of missing cultural property regarding the painting was published on the Lost Art Database’s website at the behest of the defendants. This database, which is operated by a foundation based in Magdeburg, documents cultural property that their particularly Jewish owners were dispossessed of due to National Socialist persecution as well as cultural property in cases where such loss cannot be ruled out. The announcement shall serve the purpose of bringing together the former owners or their heirs, respectively, with today’s possessors in order to facilitate the finding of a just and fair solution regarding the whereabouts of the respective cultural property. In the course of an exhibition of the painting in Baden-Baden the plaintiff was informed about the announcement of missing cultural property and an Interpol search for the painting which had been caused in Canada. The plaintiff feels that his ownership of the painting is impaired by its entry in the Lost Art Database and the Interpol search.

Previous Proceedings:

The plaintiff demands of the defendants to desist from asserting the ownership of the painting. Alternatively, he requests that the defendants be ordered to cause the deletion of the announcement of missing cultural property in the Lost Art Database. The action has remained unsuccessful at the regional court and higher regional court. With the appeal on points of law admitted by the higher regional court, the plaintiff continues to pursue his claim for relief.

According to the appellate court, who affirms the international jurisdiction of the German courts, the plaintiff is not entitled to injunctive relief pursuant to section 1004 (1) German Civil Code (Bürgerliches Gesetzbuch, BGB) against the defendants. Indeed, the plaintiff was the owner of the painting, at least by means of acquisitive prescription (section 937 BGB). However, there wasn’t any impairment of his ownership, because neither with the announcement in the Lost Art Database nor with the search initiated outside of Germany only, the defendants had claimed ownership of the painting. According to the principles applying to the entry and deletion of announcements in the Lost Art Database, the announcement expressed the fact that Dr. Max Stern had been the painting’s former owner and, thus, it had to be assumed or, respectively, could not be ruled out that in the course of National Socialist persecution he had been dispossessed of the painting or the painting had been transferred due to war or gone missing. The plaintiff’s present ownership of the painting was not contested hereby. In accordance with the so-called Washington Principles and being aware that they had no legal claim on their side, the defendants were merely concerned to achieve a just and fair solution. This request as well as the confrontation of the plaintiff with the provenance of the painting acquired by him did not constitute a claim of ownership.

Additionally, the plaintiff was not entitled to demand that the defendants arranged for the deletion of the announcement they had caused in the Lost Art Database. He could not ban market-relevant information regarding his painting from being published. In case of cultural property, the public interest in the cultural object, its history and provenance had to be acknowledged. An impairment of ownership was eliminated from the outset, insofar as merely accurate and objective information was rendered about a suspected dispossession of cultural property as part of the NS-persecution. The existence of such suspicion created increased duties of care as to the provenance verification in commercial art trade pursuant to sections 44 sentence 1 no. 1 and 42 (1) sentence 1 no. 3 German Cultural Property Protection Act (Kulturgutschutzgesetz). Already herewith the artwork‘s marketability was limited. There was no need to decide whether the deletion may be claimed if the announcement of missing cultural property contained incorrect information or the plausibility of the announcement was invalidated, because this was not the case here. There was the assumption that in the year 1937 the former owner had been dispossessed of the painting due to National Socialist persecution. The plaintiff did not provide evidence satisfactory to the appellate court for his statement that Dr. Stern had possessed the painting only for commission business purposes.

Lower Courts:

Regional Court Magdeburg – judgment of 27 November 2019 – 2 O 599/18
Higher Regional Court Naumburg – judgment of 24 May 2022 – 1 U 292/19

Relevant legal provisions:

Section 1004 Claim for removal and injunction

(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.
(2) …

‎Cultural Property Protection Act (KGSG):

Section 41 General due diligence requirements

(1) Anyone who places cultural property on the market shall be obliged to exercise due diligence in checking whether the cultural property
1. has been lost;
2. has been unlawfully imported; or
3. has been unlawfully excavated.
(2) ¹The person placing cultural property on the market shall comply with the general requirements to exercise due diligence pursuant to subsection 1 if a reasonable person might assume that one of the offences referred to in subsection 1 has been committed. […]

Section 42 Due diligence requirements related to the placing on the market
for commercial reasons

(1) ¹Anyone who places cultural property on the market in conducting his business shall, in addition to the obligations referred to in Section 41, be obliged
[…]
3. to examine the provenance of the cultural property;
[…]
6. to examine whether the cultural property is registered in publicly accessible registers and databases; and
[…]
²The obligations pursuant to no. 2 of the first sentence shall not affect copyright rules. ³The obligations pursuant to no. 3 through 6 of the first sentence shall be met in compliance with the reasonable effort and the economic reasonableness, in particular.
- 3 -
[…]

Section 44 Increased due diligence requirements related to the placing on the
market for commercial reasons
¹If cultural property is placed on the market for commercial reasons, the criteria regarding the reasonable effort pursuant to Section 42 (1), third sentence, shall not apply to cultural property,
1. if it has been proven or is assumed that this cultural property was taken from its original owner between 30 January 1933 and 8 May 1945 due to National Socialist persecution, unless it was restituted to the original owner or his heirs or they have come to a different final agreement regarding the deprivation;
[…]

Karlsruhe 25 April 2023