Bridging the Gap between Ethics and Law: The Dutch Framework for Nazi-Looted Art
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Bridging the Gap between Ethics and Law:
The Dutch Framework for Nazi-Looted Art
Evelien Campfens*
“Our objective is not to recover every stolen work of art. For us it’s about
recognition. The most important issue for us is that the name of our great-
grandfather is restored into the work’s provenance.”1
In the Netherlands, as in many other jurisdictions, claims to Nazi-looted art form
a ‘grey category’ where positive law is at odds with ethical norms. The Goudstikker
case concerning well in excess of 200 paintings from the stock-in-trade of Amsterdam
art dealer Jacques Goudstikker, taken by Nazi officials after he managed to escape, is
exemplary in this regard: whereas a claim to these works by his heirs was denied in
a court of law, that same claim was upheld under the ‘ethical model’ resulting in the
restitution of 202 paintings by the Dutch Government some years later.2
The following article aims to give an impression of the Dutch model for dealing with
Nazi-looted art, set against a historical background of Nazi looting practices and post-
War restitution laws. Dutch private law, like other civil law systems, is characterised
by a strong protection of legal security and the interests of new possessors, leaving
little legal scope for title claims based on a loss which occurred longer than 75 years
ago. On the other hand, the Dutch Restitutions Committee (the ‘Restitutiecommissie’)
has recommended the return of almost 600 works of art to Nazi victims or their heirs
since its establishment in 2002.3 How can this apparent contradiction be explained?
How is a ‘claimant-unfriendly’ legal reality brought into line with international soft-
law instruments like the 1998 Washington Principles?4 And what is the relevance of the
special Dutch post-War legislation that was adopted with an eye on the restoration of
individual rights that were lost as a result of Nazi looting, today?
1 Ella Andriesse and Robert Sturm, heirs in a case dealt with by the Restitutions Committee in
2010 (RC 1.104), interviewed by A. Marck and M. Schoonderwoerd in Evelien Campfens
(ed.), Fair and Just Solutions? Alternatives to Litigation in Nazi-Looted Art Disputes (Eleven
International Publishing, 2015), pp. 147-148.
2 Amsterdamse Negotiatie Compagnie N.V. in liq. and Marei von Saher-Langenbein v. de Staat
der Nederlanden, Appeals Court, The Hague, 16 Dec. 1999 (NJ Kort, 2000, nr. 7). For the
later decision: .
3 Information kindly provided by Tonie Brandse of the Dutch Restitutions Committee: the
exact number is 586 artefacts (17 Feb. 2020).
4 The 1998 Washington Conference Principles on Nazi-Confiscated Art, undersigned by the
Dutch Government. See e.g. Campfens, above, note 1, Annex 2.
* Fellow, Grotius Centre for International Legal Studies and Research Group ‘Museums,
Collections and Society’ at Leiden University. Formerly general secretary of the Dutch
Restitutions Committee (2001-2015). Consultant.
A modified version of this article will appear in the forthcoming second edition of Norman
Palmer Museums and the Holocaust (Institute of Art and Law, 2020, forthcoming).
The author is grateful to Floris Kunert (researcher at the NIOD) and Eric Idema (secretary of
the Restitutions Committee) for their comments on an earlier version.
1Vol. XXV, Issue 1 Art Antiquity and Law April 2020
These questions will be addressed in what follows. To that end, section 2 of this article
deals with the post-War legal framework that may be of relevance for artefacts that
were looted or sold in the Netherlands during the Nazi period. Section 3 deals with the
legal framework for claims regarding artefacts that, today, are found within the Dutch
jurisdiction, addressing both the ‘hard’ and ‘soft’ law regulations (i.e. black-letter law
and the ‘ethical’ model of the Dutch Restitutions Committee). Section 4 concludes with
some final remarks. As an introduction to the topic, section 1 will render a brief historical
overview of Nazi looting in the Netherlands and the organisation with regard to recovery
and restitution in the post-War period.
1. Short Historical Overview5
1.1 Persecution and Methods of Acquisition During the Nazi Occupation
The policy of Nazi looting of artefacts differed from country to country, but one of the
objectives was to obtain as much ‘desirable’ art as possible to underline the hegemony
of the Third Reich. The methods of acquiring artefacts ranged from confiscation of
private collections in the context of racial policies and persecution; pillage of public art
collections, mostly in Eastern European countries, and acquisition of artefacts in Western
countries.6 In the Netherlands, Nazi looting focused on confiscations of Jewish assets
and sales transactions from private individuals and art dealers.
Germany invaded the Netherlands in the night of 9 to 10 May 1940, and, once the
Dutch forces capitulated on 15 May 1940, the German Occupation was a fact. At first,
a relatively quiet period followed in which the Nazis concentrated on the installation of
a civil administration, led by the Austrian lawyer Arthur Seyss-Inquart. The persecution
of the Jewish population and their dispossession took effect through a gradual process of
registration, isolation and deportation. An approach that, ultimately, contributed to the
death of a very high percentage – compared to other occupied countries – of the Dutch
Jewish community.7 Kunert and Marck describe this process as follows:
For pragmatic reasons it was decided not to engage in immediate Gleichschaltung
(synchronisation) with Germany and Austria.[…] [but at a policy, EC] aimed at
the “self-Nazification” of the Dutch population […]. The immediate enactment
of harsh measures against the Jewish population would be counterproductive
to this policy, and thus, normal life resumed as much as possible, even for the
Jewish population.8
5 Further reading e.g.: Conny Kristel et al. (eds) Jodenvervolging in Nederland, 1940-1945:
Wat Loe de Jong schreef over de Sjoa in “Het Koninkrijk der Nederlanden in de Tweede
Wereldoorlog”, (NIOD, 2018); K. Happe, Veel valse hoop. De Jodenvervolging in Nederland
1940-1945, (Atlas, 2018); G. Aalders, Roof. Ontvreemding van joods bezit tijdens de Tweede
Wereldoorlog (SDU, 1999); Drs F. Hoek en J. ten Wolde, Roof en Restitutie Joods Vermogen.
Rapport uitgebracht aan de Contactgroep Tegoeden Wereldoorlog II (The Hague, 1999).
6 See, for a description of these methods, the proceedings of the trial against A. Rosenberg Trial
of the Major War Criminals Before the International Military Tribunal, vol. 22 (International
Military Tribunal 1948) 540. Cited in J.H. Merryman and A. Elsen Law, Ethics and the Visual
Arts, (Kluwer, 1998), p. 31.
7 F. Kunert and A. Marck, ‘The Dutch Art Market 1930-1945 and Dutch Restitution Policy
Regarding Art Dealers’ in E. Blimlinger and M. Mayer (eds), Kunst sammeln, Kunst handeln:
Beiträge des Internationalen Symposiums in Wien (2012), p. 145.
8 Ibid., p. 140.
2The Dutch Framework for Nazi-Looted Art
One needs to bear in mind that the words ‘normal life’ are used in comparison with the
situation in some other occupied territories, as obviously life for any Jewish person at
the time was all but ‘normal’.
This gradual process by which the Nazis increasingly tightened their grip on possessions
of Jewish inhabitants formally started in October 1940 when Jewish firms were required
to register with the authorities.9 The looting of Jewish assets mainly took place in the
period that started in the course of 1941. Before 1941, seizure of assets was mostly limited
to specific categories. As the Netherlands had been an important safe haven and transit
country for Jewish refugees from Germany and Austria in the 1930s, stored household
effects left behind in the Netherlands were an easy target and soon put under control of
the German occupying authorities as ‘enemy property’. At the same time, the Dienststelle
Mühlmann – formally part of the Seyss-Inquart’s occupational Government – was
actively gathering information on artworks in Dutch (Jewish and non-Jewish) collections
that were deemed important for Germany.
From 12 March 1941 onwards, Jewish firms were ‘aryanised’: placed under the control
of a non-Jewish administrator (‘Verwalter’), who could deny a Jewish art dealer control
over its business and could liquidate its firm and assets.10 In August 1941, Jews were
forced to deposit their monetary assets with Lippmann, Rosenthal & Co., Sarphatistraat,
the so-called ‘Liro Bank’, a looting agency formed to assemble and administer Jewish
assets which was deceptively named after a reputable Jewish-owned bank.11 In May
1942, this was followed by an order that Jews had to deposit all valuable items, including
art, at the Liro Bank.12 Deportations of Jewish citizens on a large scale to concentration
camps started in the summer of 1942. When that happened, or when people had managed
to escape or go into hiding, houses were ransacked (‘Pulsed’), household effects were
sold off or transported to Germany as part of the M-Aktion.13 Assets were, at times, also
simply stolen by fellow citizens.
Another method the Nazis deployed to acquire artefacts in Jewish collections was through
trading art for ‘preferential’ treatment. While leaving the country after May 1940 was
practically impossible, permission to exit the country or obtain a so-called ‘Sperre’ (a
status that would prevent deportation) at times was possible. In such circumstances,
Jewish collectors and art dealers sold works to persons such as Hans Posse, Erhard
Göpel, Hermann Göring and Kajetan Mühlmann.14
During the Occupation of the Netherlands a significant quantity of high-quality fine
art was acquired through both the regular and irregular art market, not necessarily by
transactions under direct force. German buyers in search of ‘suitable’ art – not only
Nazi officials but also other buyers – caused a frenzy on the Dutch art market after the
9 Regulation 189/1940 of 22 Oct. 1940.
10 Regulation 48/1941 of 12 March 1942.
11 The ‘First Liro Regulation’, Reg. 148/1941 of 8 Aug. 1940.
12 The ‘Second Liro Regulation’, Reg. 58/1942 of 21 May 1942.
13 A term inspired by the name of the company Puls that was often put in charge of this.
14 Kunert & Marck, above, note 7, p. 146; E. Muller and H. Schretlen, Betwist Bezit. De
Stichting Nederlands Kunstbezit en de teruggave van roofkunst na 1945 (Zwolle, 2002),
pp. 159-169. Examples amongst cases dealt with by the Dutch Restitutions Committee: i.e.
Recommendation regarding Bachstitz (RC 1.78).
3Vol. XXV, Issue 1 Art Antiquity and Law April 2020
economic depression of the 1930s: it contributed to a steep increase in prices.15 The Dutch
art trade used this opportunity to make substantial profits, inflating prices to previously
unseen heights.16 This may be illustrated by the fact that prices decreased again after
the Occupation.17 Apart from the official art dealers, many others took advantage of
this opportunity: occasional dealers were active and those in need of money sold their
artefacts – Jewish owners obviously being in an increasingly weaker position.18
The fact that the Dutch art market flourished during the Nazi Occupation and that
individuals and institutions on a wide scale collaborated with the German occupiers,
at times blurs the notion of ‘Nazi looting’.19 Of importance in this regard is that a sale
during the Nazi period in the Netherlands does not, of itself and without consideration
of the specific circumstances, justify the label ‘Nazi loot’. At least not if one takes the
forced nature of a loss to be a key element of ‘looting’. Moreover, one must also take
into account the fact that artefacts may have been traded and changed hands many times
during this period. In 2003, this historical background was the reason for the adoption
by the Dutch Government, on the recommendation of the so-called Ekkart Committee,
of separate – less liberal – policy guidelines for losses sustained by Jewish art dealers.20
The Netherlands was liberated, starting in September 1944 with the southern part of the
country and ending with the formal capitulation of Germany on 5 May 1945.
1.2 Post-War Organisation of Recovery and Restitution
After the Liberation in August 1945 the Council for the Restoration of Rights (Raad voor
het Rechtsherstel) was charged with the task of restoring the Dutch legal order.21 The
Council comprised a Justice Department, to which claims could be submitted and that
acted as an appeal court for rulings by subsidiary bodies concerned with the restoration
of rights. In addition, the Council had an Administrative Department (Nederlands
Beheersinsituut, ‘NBI’), which had the task of tracing, seizing, administering and
15 Kunert & Marck, above, note 7; J. Euwe, De Nederlandse kunstmarkt 1940-1945 (Boom,
2007); Muller & Schretlen, above, note 14, pp. 178-183; A. Venema, Kunsthandel in
Nederland 1940-1945 (Arbeiderspers, 1986).
16 Although all transactions with the enemy were prohibited by the Dutch Government in exile
according to Besluit Rechtsverkeer in Oorlogstijd, KB A6 of 7 June 1940. See below.
17 The comparison of prices is based on a report of the Council of Restoration of Rights (the
‘Douwes Report’) of 29 Oct. 1947: National Archives, SNK inv. nr. 137. See also: Jeroen
Euwe and Kim Oosterlinck, ‘Art Price Economics in the Netherlands during World War II’
(2017) Vol 1, No. 1 Journal for Art Market Studies.
18 “Besides ordinary art dealers, …, there were – from 1940 onwards – a growing number of
occasional art dealers, both Jews and non-Jewish, who had not established themselves as art
dealers, but did engage in the purchase and sale of works of art in a more or less intensive
fashion”, Ekkart Recommendations concerning Art Dealerships (2003); see also Muller &
Schretlen above, note 14, pp. 169-178.
19 On 26 Jan. 2020 the Dutch Prime Minister apologised for the lack of help to persecuted
groups during the Second World War, see: .
20 Ekkart Recommendations concerning Art Dealerships (2003), above, note 18. More on the
Ekkart Committee, see below note 67.
21 Established by Law E 100 of 17 Sept. 1944 (Besluit Herstel Rechtsverkeer, Staatsblad E100)
(‘Law E 100’), art. 4.
4The Dutch Framework for Nazi-Looted Art
liquidating enemy and collaborationist assets, but also the assets of absent and unknown
owners.22 The NBI had wide discretionary powers in this regard.23
For the recovery of artefacts that had been removed from Dutch territory, the authorities set
up the Netherlands Art Property Foundation (Stichting Nederlands Kunstbezit, ‘SNK’) in
1945.24 On the basis of territoriality and without prejudice to the character of the removal
(i.e. whether this had been a result of a voluntary sale or as a result of confiscation or
a forced sale) artefacts were to be returned on the basis of intergovernmental claims,
at least from the UK and US Zones of Occupation.25 For the Dutch claims, the SNK
relied on various German administrative data and information the Dutch population
was under the obligation to share about artefacts that had left to Germany (in so-called
‘aangifteformulieren’).26 This duty concerned all transactions, including voluntary sales
by the art trade, and should not be confused with individual claims for restitution. The
question of ownership was to be determined at a later stage at the national level once
the artefacts had returned to the Netherlands. In that way, the Dutch State recovered
artefacts from Germany “as a custodian pending the determination of the lawful owners
thereof”.27
Whereas at the outset its primary task was to retrieve artefacts from Germany, the SNK
was soon also tasked with the restitution of artefacts to their rightful owners, under
supervision of the NBI. The Foundation’s internal guidelines set out conditions for
restitution: a proven involuntary loss of possession during the War; payment of the
sales proceeds received during the War (if applicable), plus administrative costs for the
retrieval by the Foundation. Although these conditions appear stricter than the norm in
the Restitution Law KB E 100, only a few cases have been appealed before the Justice
Department of the Council of Restoration of Rights (as to which, see below).28
After the SNK had become discredited in 1948 following various scandals, in 1950 its
tasks were taken over by a bureau of the Ministry of Finance (Bureau Herstelbetalings-
en Recuperatiegoederen). When the deadline for submitting an application for restitution
passed in the 1950s, that bureau was wound up as well. During this period, many lost
artefacts were indeed returned to their owners. Nevertheless, many were not. Looking
back, the focus of the authorities at the time was not on the restoration of individual
rights, but primarily on the restoration of society in general.29 The attitude towards
22 Ex Art. 33 Law E 133 of 20 Oct. 1944 (Besluit Vijandelijk Vermogen, Staatsblad E 133 1944)
(‘Law E 133’) with regard to enemy and traitors’ assets) and ex Law E 100 with regard to
absent owners.
23 E.g. Art. 113 (2) Law E 100, enabling the sale of the assets after a certain period of time
during which the missing person had not been located, provided that the proceeds of the sale
were to benefit the estate of the missing person and would be handed over once the identity
and whereabouts of the missing person were known.
24 For an in-depth study see Muller & Schretlen, above, note 14.
25 The Soviet Government adopted the approach that artefacts found within its zone could be
kept on the basis of ‘restitution in kind’ given the massive loss and destruction of Soviet
cultural property at the hands of the Nazis.
26 This obligation is based on Art. 10 of Law KB 133.
27 In the US zone this was the text on the ‘Receipt and agreement or delivery of cultural
objects’.
28 One of the exceptions is the verdict of 1 July 1952 of the Council of Restoration of Rights in
the Gutmann case, as discussed below: see note 51.
29 W. Veraart, ‘Contrasting Legal Concepts of Restitution in France and the Netherlands’, in W.
5Vol. XXV, Issue 1 Art Antiquity and Law April 2020
individual claimants at that time can be described as “cold and bureaucratic”, words used
by the Dutch Government in the 2001 reaction to investigative reports on this episode.30
The recuperated works of art that were retained as part of the national art collection are
known as the ‘NK Collection’.31
2. Post-War Legal Framework
Already at an early stage of the War the Allied forces were aware of the fact that the
Nazis were removing on a vast and systematic scale valuable objects from the areas
they were occupying. The Dutch Government in exile in London reacted to this by the
proclamation of emergency laws. These laws, amongst other measures, prohibited sale
transactions with the enemy and vested fiduciary title in the Dutch Government of certain
assets (as to which, see below).32 In addition, on 5 January 1943 it signed the Inter-
Allied Declaration against Acts of Dispossession committed in Territories under Enemy
Occupation or Control.33 With respect to property that originated from the occupied
areas, the Allies: “reserved their rights to annul transfers or dealings which took the
form of open looting or plunder as well as seemingly good faith transactions”, making
specific mention of the “stealing and forced purchase of works of art”. In other words,
a formal warning to the German occupiers and also to those who profited from such
practices, that such transactions would be reversed, The signatories “solemnly record
their solidarity in this matter” and these principles were confirmed in Resolution VI of
the Final Act of the Bretton Woods conferences.34 They would form the basis of the post-
War intergovernmental restitution system. 35 This system relied on:
• Tracing the objects that were taken from the occupied territories;
• Restitution (‘external’) to the government of the country from which they
had last been transferred during the war on the basis of governmental
claims;36
• ‘Internal’ restitution to individual owners who had lost their artefacts as a
result of confiscation or forced sales at the local (national) level.
Veraart and L. Winkel (eds), The Post War Restitution of Property Rights in Europe: Comparative
Perspectives (Scientia Verlag, 2011), pp. 1-34, explaining that the Dutch implementation of the
Allied Declaration focused almost solely on the restoration of the Dutch legal system, rather
than the restoration of the individual rights of Dutch Jews.
30 Government reaction of 21 March 2000 (Kamerstukken II, 1999/00, 25 839, nr. 13) and a letter
of the Secretary of State for Education, Culture and Science of 29 June 2001 (Kamerstukken
200/2001, 25 839, nr 26).
31 And today, is managed by the Rijksdienst voor het Cultureel Erfgoed of the Ministry of
Culture. See: .
32 Laws A1 and A6, see below, notes 43 and 40.
33 Inter-Allied Declaration against Acts of Dispossession committed in Territories under
Enemy Occupation and Control (5 Jan. 1943), undersigned by the Dutch Government, 1951
Tractatenblad van het Koninkrijk der Nederlanden, No. 39.
34 Final Act of the United Nations Monetary and Financial Conference, signed at Bretton Woods
on 22 July 1944. 1977, Tractatenblad van het Koninkrijk der Nederlanden, No. 40.
35 L.V. Prott, ‘Responding to WWII Art Looting’ in the International Bureau of the Permanent
Court of Arbitration (ed.), The Permanent Court of Arbitration/Peace Palace Papers:
Resolution of Cultural Property Disputes (Kluwer Law International, 2004).
36 Today, the intergovernmental model has given way to the soft-law approach. See Evelien
Campfens, ‘Nazi-Looted Art: A Note in Favour of Clear Standards and Neutral Procedures’
(2017) 22 Art Antiquity and Law 321.
6The Dutch Framework for Nazi-Looted Art
To implement this last important step, States would enact special laws to enable the
return of looted objects to their rightful owners.37 This was mostly needed in civil law
countries like the Netherlands, where new possessors could otherwise rely on the passing
of title to looted art works following a bona fide acquisition by a third party, a sale at
a public auction, or just by the passage of time. How this was accounted for in the
Netherlands will be dealt with in the following overview of post-War laws.
2.1 Dutch Post-War Laws
During the War the Dutch Government in exile enacted a set of decrees, complemented
by a number of post-war regulations, with the aim of reversing the transfer of property
into foreign (enemy) hands.38 Given the volume of regulations and their interconnection,
the legal status of artefacts that passed through the Dutch jurisdiction during Nazi
Occupation may, at times, be a matter of interpretation.39 In broad terms these laws add
up to a system under which:
(i) Transactions resulting in the loss of an artefact (to the ‘enemy’) are void or
voidable;
(ii) The fiduciary rights over such works are vested in the Dutch State who
could recover these irrespective of whether they were lost by voluntary sale
or under force; and
(iii) Possibilities for deprived owners to have their rights ‘restored’ under the
restitution law.
This system will be explained in more detail below.
(i) Illegal and Void Transactions
According to Law A 6 of 7 June 1940 (Besluit Rechtsverkeer in Oorlogstijd)40 any
transaction with a German buyer during the Occupation of the Netherlands was forbidden
and, moreover, null and void. Within the meaning of this Law, this is a wide category of
transactions that comprise sales to a person or entity in ‘enemy territory’ or transactions
that would benefit them. This would be so, unless permission had been granted by a
special commission (‘Corvo’), or if the sale was considered to fall within the category
of ‘transactions for everyday consumption’.41 Where neither of these exceptions applied,
37 A comparison of national restitution laws in Nehemiah Robinson, ’War Damage
Compensation and Restitution in Foreign Countries’ (1954) 16 Law and Contemporary
Problems 347; see also Campfens (2015), above note 1, pp. 16-19.
38 See also: Lars van Vliet ‘The Dutch Postwar Restoration of Rights Regime Regarding
Movable Property’ (2019) 87 Legal History Review, pp. 651-673; W.C.L. Van der Grinten,
‘Rechtsherstel en Beheer’ (1946); Kersten, ‘Theorie en praktijk van het naoorlogse
rechtsherstel’, (Ministerie van Financien, The Hague, 1991); W.J. Veraart, Ontrechting en
rechtsherstel in Nederland en Frankrijk in de jaren van bezetting en wederopbouw, (Sanders
Instituut Erasmus Universiteit Rotterdam, Nov. 2005).
39 These Royal Decrees, numbered ‘A’ for laws enacted in 1940 to ‘H’ in 1947, are referred to as
laws given their status as a formal law, according to Supreme Court decisions e.g. HR 13 Jan.
1950, NJ 1950, no. 493.
40 Law A 6 of 7 June 1940, (‘Besluit houdende een voorziening teneinde te verhinderen, dat
het rechtsverkeer in oorlogstijd schade toebrengt aan de belangen van het Koninkrijk der
Nederlanden’), Staatsblad 1940.
41 See Arts 6, 10, 33 and 46 of Law A 6 (above, note 39). Corvo stands for ‘Commissie
Rechterverkeer in Oorlogstijd’.
7Vol. XXV, Issue 1 Art Antiquity and Law April 2020
the transfer of ownership of artefacts would be illegal and void and a judge should
declare them void ex officio.
Furthermore, with regard to deprivations on the basis of racist Nazi regulations – e.g.
confiscation of Jewish property – Law E 93 of 1944 applies.42 Such confiscations would
be null and void ab initio on the basis of Article 16 of that Law.
(ii) Passing of Title
The illegality of a sale and the fact that a transaction was null and void under Law A 6,
does not mean that title to the object automatically remained with the previous owner
(or its heirs). In fact, several regulations of the time provide that title to objects taken by
the enemy during the Occupation was vested in the Dutch State. In this sense, as early
as 1940 the Dutch Government had enacted Law A 1, vesting fiduciary title over certain
assets in the Dutch Government.43 Another measure was to revoke Law A6’s automatic
invalidation of transactions, regarding all the ‘recuperated’ goods – amongst which the
artefacts that were found in Germany and Austria and returned to the Netherlands.44 The
legal status of such artefacts would, on their return in the Netherlands, fall under the
working of yet another law, namely Law E 133 of 20 October 1944.45 That Law (E 133)
vested title in the Dutch State over all enemy assets in the Netherlands.
The rationale behind such regulations is that former owners who had entered into
forbidden sales might have done so voluntarily – and thus would not be entitled to have
the assets returned to them. Besides that, by reason of such sales Dutch economic interests
were harmed since acquisitions of artefacts were generally paid for by the exchange of
(after the War) worthless Reichsmarks into Dutch Guilders.46 In other words, title to an
artefact taken from Dutch territory during the German Occupation may well have passed
to the Dutch State, notwithstanding the rights deprived former owners might have to
seek restitution on the basis of Law (KB E 100). That Law is discussed next.
(iii) Restoration of Rights: Law E 100
The most important law for restitution issues is Law E 100 ‘Besluit Herstel
Rechtsverkeer’ (‘Restoration of Legal Order’) of 1944.47 On the basis of this Law a loss of
property – and thus, of artefacts – could be voided: former owners could file a claim with
the Justice Department of the Council of Restoration of Rights to recover title to such
artefacts on the basis of Articles 23-25.
Article 23 of E 100 provides for intervention by the Council in any private legal
relationship if this would be “reasonable, given the special circumstances”. In other
42 Law 93 of 20 Sept. 1944 (‘Besluit Bezettingsmaateregelen’), Staatsblad 1944: Article
16 declares null and void deprivations listed in List A of Law E 93 (amongst others, Liro
Regulation 58/1942).
43 Law A1 of 24 May 1940 (Besluit bijzondere voorzieningen ten aanzien van vorderingen,
aanspraken en bezittingen toekomende aan personen in het rijk in Europa), Staatsblad 1940.
44 “..to validate all acts and agreements, […] insofar as these acts and agreements related to
goods which were found in enemy territory, […], which since then have returned to or will
have been returned to the Netherlands”. Ministerial Decision of 5 Feb. 1947 on the basis of
Art. 10 Law A6 (Staatscourant 14 Feb. 1947, nr 32).
45 Law 133 of 20 Oct. 1944 (Besluit Vijandelijk Vermogen), Staatsblad 1944.
46 Law H 251 of 8 Aug. 1947 (‘Wet Herstel Vermogensovergang Rijksmarkengebied’),
Staatsblad 1947. On the rationale see also Van Vliet, above note 38, p. 652.
47 ‘Besluit Herstel Rechtsverkeer’ of 17 Sept. 1944, published in Staatsblad E 100.
8The Dutch Framework for Nazi-Looted Art
words, the law provided for an open norm allowing for wide discretion as to what
would be considered ‘reasonable’ by a judge. Article 25 of E 100, however, contains
the presumption that if the loss had been the result of coercion or threat by the enemy,
or without good cause (for example Nazi confiscation measures48) the voiding of the
transaction would be warranted.
Only a limited number of cases concerning artefacts have come before these special
courts.49 As mentioned above, in the first instance the SNK and NBI were charged with
restitution requests regarding the recuperated artefacts. Circumstances that were relevant
for voiding of sales transactions were an ‘(un)fair purchase price’ and ‘own initiative’.
For example, in the following verdict the court held that if a sale in the early stages of
the Occupation (1940) was on the owner’s own initiative, other circumstances such as
disparity between the price and value were to be decisive:
Whereas […] the petitioner was brought to this sale by the consideration that
measures against Jewish property were to be expected; [...] Whereas, however,
where this sale arose entirely at the petitioner’s own initiative, reasonableness
dictates that this legally binding transaction should be annulled only [in the
event of] a great disparity between the purchase price and the value of what
was sold [...].50
On the other hand, the 1952 Gutmann verdict, dealing with artefacts, illustrates that
notwithstanding an owner’s own initiative, sales in 1941 and 1942 could be voided.
That case concerned various sales by Fritz B.E. Gutmann, a banker of German Jewish
origin who lived in Haarlem, of parts of his art collection to German buyers Böhler and
Haberstock in the course of 1941 and 1942.51 The court concluded that, by that time,
a general threat for Jewish owners existed and, in spite of Gutmann’s own initiative,
the circumstances warranted the voiding of the sale contract. The fact that these works
were not in the possession of an innocent third party but in the possession of the Dutch
Government was held by the court to be a relevant circumstance that was deemed
important: it had recovered these from Germany with the objective of returning them to
their rightful owner.52 As a condition for restitution the sale proceeds should be handed
over to the Dutch State.
In this respect, Article 27 of Law E 100 provided that upon restitution an owner should
hand over the received sale proceeds, either to a good faith new possessor or to the
Dutch authorities. This provision aimed to avoid ‘unjust enrichment’ and was explained
48 E.g. the measures mentioned in Law E 93, see above, note 41.
49 In the archives of the Council for the Restoration of Rights 22 cases were found regarding
artefacts (National Archives). Nota bene: under Art. 143 of Law E 100 appeal was not
possible, leading to a lack of unity in the application of the Law by the various courts.
50 Raad voor het Rechtsherstel Afd. Rechtspraak Den Haag, 23 Oct. 1946, in the case Cohen
(Naoorlogse Rechtspraak (NOR) nr. 578). This case concerned the sale of shares.
51 Raad voor het Rechtsherstel, Afd. Rechtspraak Den Haag, 1 July 1952, in the case B.E.FW.
Gutmann, L.V. Gutmann and Trust- en Administratie Maatschappij N.V. vs. SNK (National
Archives, SNK, 443, file Gutmann). A later claim dealt with by the Dutch Restitutions
Committee regarded at the time unidentified artefacts, see Recommendation of 25 March
2002 (RC 1.2).
52 Stating that “the Council takes into consideration that the State by recuperation of the
artefacts from private property must have aimed the return of such works with the original
owner” (1952 verdict).
9Vol. XXV, Issue 1 Art Antiquity and Law April 2020
in another ruling: “The purpose of the rationale of art. 27 subsection 5 E 100 is to prevent
the recipient of restitution from deriving financial benefit from the restitution”.53 Given
the prices of artefacts after the war, showing a sharp decline compared to the price level
during the Occupation, it may not be surprising that owners who were given the chance
to annul a sale often opted out of this.54
A difference with the present-day soft law system is that the possibilities under Law
E 100 were limited in time and place: it only applied to losses within the period of the
Occupation – for example no voidance could be asked with regard to a sale by a Jewish
refugee in the Netherlands before May 1940 – and only with regard to property that was
situated in the Netherlands or owned by a Dutch citizen.55
2.2 ‘Significance’ of the Artefact to the Original Owner
One further element of this post-War restitution system is worth mentioning in the
light of the present discussion over the contents of the ‘just and fair’ norm and the
‘weighing of interests’ by the Dutch Restitutions Committee.56 Interestingly, Law E 100
provided that, if lost property was found in the hands of a good-faith new owner that had
acquired the specific object not gratis, it had to be returned only if that property was of
“significantly greater value” to the original owner.57 At first sight, this appears to deviate
from the idea underlying the Interallied Declaration (and common law system) that the
right to restitution operates independently from the interests of innocent new possessors.
Nevertheless, a similar distinction was made in US Restitution Law No. 59 that was
developed for restitution in the US zone of post-War Germany.58
The objective of that Law was to:
[E]ffect to the largest extent possible the speedy restitution of identifiable
property [...] to persons who were wrongfully deprived of such property
within the period from 30 January to 8 May 1945 for reasons of race, religion,
nationality, ideology or political opposition to National Socialism.59
Article 1 (2) proceeds by confirming that:
Property shall be restored to its former owner or to his successor in interest
[…] even though the interests of other persons who had no knowledge of the
wrongful taking must be subordinated. Provisions of law for the protection of
purchasers of good faith, which would defeat restitution, shall be disregarded
except where this Law provides otherwise.
53 Raad voor het Rechtsherstel, Afd. Rechtspraak Den Haag, 3 Nov. 1947, in the case
Biedermann v. N.V. Landelijke Hypotheekbank (NOR 1947, 1082).
54 See also Muller & Schretlen, above note 14, p. 184; Van Vliet, above note 38, p. 667.
55 Post-War restitution laws were aimed at losses within the period of War (e.g., the Swiss law
applied to losses from the outbreak of the War, i.e. 1939, on) or during the Occupation (Dutch
and other laws). See Campfens (2015), above, note 1, pp. 24-26.
56 See below, section 3.2.1.
57 Law E 100 Art. 27 (2) “Niettemin kan teruggave ook in laatstbedoeld geval worden bevolen,
indien de zaak of het recht voor den eigenaar een aanmerkelijk grootere waarde heeft dan
voor den bezitter”.
58 Law No. 59 of the Military Government in Germany, US Zone: Restitution of Identifiable
Property, in US Courts of the Allied High Commission for Germany, Court of Restitution
Appeals Reports 1951, 499-536.
59 Ibid., Art. 1 (1).
10The Dutch Framework for Nazi-Looted Art
Article 19 then indeed makes that exception. It provides that with regard to goods that
were sold on and acquired in the course of an ordinary business transaction, a right to
restitution by the deprived owner only exists if it concerns private property of artistic,
scientific or sentimental personal value:
[…] tangible personal property shall not be subject to restitution if the present
owner or his predecessor in interest acquired it in the course of an ordinary and
usual business transaction in an establishment normally dealing in that type
of property. However, the provisions of the Article shall not apply to religious
objects or to property which has been acquired from private ownership if
such property is of an unusual artistic, scientific, or sentimental personal
value, or was acquired at an auction or at a private sale in an establishment
engaged mainly in the business of disposing property the subject of an unjust
deprivation.60
The rationale for both the Dutch and US regulations appears to be the intangible (emotive)
value of personal property to former owners. Phrased differently, the intangible value of
family heirlooms – symbols of a (lost) personal life – that justifies special treatment, and
these are interests that overrule other (economic) interests that are protected by law.61
If, however, no such special bond exists, the interests of a new good faith owner would
prevail.
2.3 Closure?
Overseeing this state of affairs, one can observe that the reason that victims were not
restored to their rights lay, not in the absence or quality of laws, but in flaws of the
organisational structure in the chaotic post-War period in the Netherlands.62 Another
reason was that the deadline for filing a claim lapsed as early as 1 July 1951.63
Closure of the difficult chapter of art restitution was in the minds of the authorities at the
international level as well. In this regard, the signatory States to the Convention on the
Settlement of Matters Arising out of the War and the Occupation appear to have made a
choice to ‘clear’ looted artefacts in the hands of innocent third parties by providing for a
sunset clause for private restitution claims, set in that Convention at 1956.64 Under that
60 Ibid., Art. 19, under the heading of ‘Part IV: Limitations to the right of restitution’; this
provision is similar to Art. 15 of the UK restitution law that applied to the British zone.
61 This implies that these cases are not simply a matter of stolen property and underscores the
usefulness of a human rights law approach, as argued in: Evelien Campfens, ‘The Bangwa
Queen’, (2019) 26 International Journal of Cultural Property, pp 75-100.
62 Cf. Reaction of the Dutch Government to the Report of the Ekkart Committee (Letter of the
Secretary of Culture of 12 July 2001, Parliament Document file 25839, 26).
63 After several extensions, on 27 Dec. 1950 the Council for the Restoration of Rights decided
on a final extension of the deadline for requests on the basis of Art. 21 (1) Law E 100 to 1
July 1951. Staatscourant no. 251 of 1950, p. 5.
64 “[..] Any person who, or whose predecessor in title, during the occupation of a territory, has
been dispossessed of his property by larceny or by duress (with or without violence) by the
forces or authorities of Germany or its Allies, or their individual members (whether or not
pursuant to orders), shall have a claim against the present possessor of such property for its
restitution. [..] No such claim shall exist if the present possessor has possessed the property
bona fide for ten years or until 8 May 1956, whichever is later.” Convention on the Settlement
of Matters Arising out of the War and the Occupation (signed 26 May 1952), as amended by
Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany
11Vol. XXV, Issue 1 Art Antiquity and Law April 2020
system, dispossessed owners who could prove their artefacts had been taken to Germany,
would instead be able to claim compensation from the German State in the event that
their looted artefacts were not located before that date.65
Obviously, that chapter was all but over as became clear at the end of the 1990s. Paintings
on the walls of museums that had once belonged to Jewish families, turned into tangible
symbols of the injustices of the past. Amidst a renewed historical awareness of Nazi
looting and scandals concerning other assets of perished Jewish people that were never
returned to their heirs, the NK collection in the hands of the Dutch State became a subject
of debate. In a reaction, the Dutch Government established a number of committees
to research the process of looting, restitution and indemnification.66 Of the various
committees, the one headed by Professor Dr R.E.O. Ekkart was tasked from 1997 on
with researching the looting and restitution of artworks.67 Under the supervision of the
‘Ekkart Committee’ as it became known, between 1997 and 2004 the Origins Unknown
Agency (Herkomst Gezocht) attempted to reconstruct the provenance of all individual
works in the NK collection.68 The results formed the basis of a liberal restitution policy
for claims to artefacts in the NK collection. Moreover, in 2001, the Dutch Restitutions
Committee was established as a neutral third forum to advise on individual claims. Since
then, a substantive number of artefacts in the NK collection have been returned (as to
which, see further below in section 3.2).
3. Today’s Framework
The preceding paragraph aimed to provide an insight into Nazi looting practices in the
Netherlands and the post-War legal framework that may still govern the legal status of an
artefact. The possibilities for claiming artefacts that, today, are found in Dutch collections
will be the topic of the following section. The first part of this section (3.1) will give an
impression of the regular legal framework (hard law), after which an introduction is given to
the ‘ethical’ (soft-law) model of the Dutch Restitutions Committee in the second part (3.2).
3.1 General Legal Setting
A common denominator in cases concerning looted art is that the relevant facts are spread
out over a period of many years and involve multiple jurisdictions. Moreover, national
property laws differ widely and international conventions do not apply retroactively. This
is at the core of what causes title disputes in this field to be so complex and unpredictable.
Common law countries accord relatively strong rights to the dispossessed former owner
on the basis of the principle that a thief cannot convey good title (the nemo dat rule),
whereas in civil law countries such as the Netherlands, the position of the new possessor
is stronger: ‘security of title’ versus ‘security of transactions’.69
(signed 23 Oct. 1954, entered into force 5 May 1955) American Journal of International Law
49 (S3) 69-83 (Settlement Convention) ch. 5, Art. 3 (1).
65 Ibid., ch. 5, Art. 4.
66 Several of the reports can be consulted online through the website of the Dutch Government
at .
67 For an overview of the Governmental documents in this file (number 25839), see .
68 An overview of the results, see: .
69 Pierre Lalive ‘A Disturbing International Convention: UNIDROIT’, (1999) 4 Art Antiquity
12The Dutch Framework for Nazi-Looted Art
3.1.1 Some Case Examples70
The opposite outcomes reached in very similar Dutch and UK cases regarding Second
World War looting (not Nazi looting) may serve as an illustration. Both cases concerned
a title claim with regard to paintings looted in the aftermath of the Second World War
from Germany, probably by the Red Army, and both paintings surfaced at auctions in the
late 1990s. In both cases, the dispossessed owners – in the Dutch case the state Sachsen
and in the English case the city of Gotha – filed claims and both claims were decided in
the year 1998. Whereas in the Netherlands, the Hoge Raad (the Dutch Supreme Court)
denied the claim in its Land Sachsen ruling to the painting Cloister in Landscape by Jan
van der Heyden, the High Court of England and Wales in the same year upheld the claim
in the City of Gotha case to the painting The Holy Family by Joachim Wtewael.71
In the Dutch ruling, the Court held that the absolute (at the time: 30-year) limitation
period for claims runs from the moment of the loss, and irrespective of the good or bad
faith of the present possessor. Legal security, in the Court’s view, can neither be set
aside by the fact that the deprived owner did not know where its painting was located,
nor by the possible lack of good faith of a new possessor.72 The English Court, however,
upheld the claim. Interestingly, the judge, Moses J., observed in his judgment that he
would have invoked the public order exception if the application of foreign (German)
law had necessitated a ruling in favour of a possessor that was not in good faith.73 As a
“framework for further debate” he notes in this respect that:
[i]t does seem [..] possible to identify, [..], a public policy in England that time
is not to run either in favour of the thief nor in favour of any transferee who is
not a purchaser in good faith.74
A similar clash of laws surfaced in the 2005 Malewicz v. City of Amsterdam case.75 This
case involved fourteen paintings by Malewicz in the Amsterdam Stedelijk Museum which
had been on temporary loan in the US. Malewicz had been forced to leave the works
behind in the hands of friends in Berlin in 1927, when he unexpectedly had to return to
Leningrad, and could not retrieve them as a result of persecution by the Bolsheviks.76 The
City of Amsterdam argued that title had passed: it had acquired the works in good faith
from a relative of Malewicz in 1958, and even if that were not the case, the limitation
periods under Dutch law would render a claim time barred. However, at first instance
and Law p. 220.
70 These examples do not concern Nazi looting as these were mostly referred to the Restitutions
Committee.
71 Land Sachsen (1998) ECLI:NL:HR:1998:ZC2644 (Supreme Court of the Netherlands); City of
Gotha and Federal Republic of Germany v. Sotheby’s and Cobert Finance SA [1998] 1993 C
3428 (QB). For a similar US case, see Kunstsammlungen zu Weimar v. Elicofon (1982) 678 F2d
1150 (US Court of Appeals, Second Circuit).
72 In 3.5 and 3.6 of the Land Sachsen ruling.
73 In the end, there was no need to invoke the public order exception after it was established that the
German 30-year limitation period (of para. 221 BGB) had not expired at the time of the claim.
74 City of Gotha case, II.4.
75 Malewicz v. City of Amsterdam (2005) 362 FSupp2d 298 (US District Court for the District of
Columbia); Malewicz v. City of Amsterdam (2007) 517 FSupp2d 322 (US District Court for the
District of Columbia).
76 Alessandro Chechi, Ece Velioglu and Marc-André Renold, ‘Case 14 Artworks – Malewicz
Heirs and City of Amsterdam’ (2013) Platform ArThémis, Art-Law Centre, University of
Geneva.
13Vol. XXV, Issue 1 Art Antiquity and Law April 2020
the US judge ruled in favour of the claimants: the loss of the paintings without payment
or compensation to the ‘true owner’ would amount to a violation of international law –
referring to the human right to property – and therefore the facts provided a sufficient
basis for jurisdiction by a US court.77 The Malewicz case was eventually settled out of
court.78
Since 1954, international conventions have addressed the unlawful transfer of cultural
objects and the need for harmonisation of national laws in this field. At that level, a
clear choice was made in favour of the common law model to protect title of former
owners.79 The Netherlands is party to both the 1954 Hague Convention for the Protection
of Cultural Property in the Event of Armed Conflict and the First Protocol, and the 1970
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property. Nevertheless, these conventions
do not apply retroactively to claims concerning Nazi takings. Besides, they must be
implemented into domestic law and this did not happen in the Netherlands until recently.80
The implication of this is that even more recent instances of looting are not covered
by such international standards. This may be illustrated by the 1999 Lans case, dealing
with a request by the Autocephalous Greek Orthodox Church in Cyprus for the return
of icons looted during the Turkish occupation of Cyprus. The icons, removed from
the church of Christ Antiphonitis in Lefkosia in Northern Cyprus, were found in
the possession of a Dutch collector who had bought them in 1975, shortly after the
occupation of Northern Cyprus and their disappearance from the Church. The civil
action seeking their return was unsuccessful.81 Although the 1954 Hague Protocol
had been ratified by the Netherlands in 1958, it had never been implemented in Dutch
law. As a result, regular limitation periods applied and the ownership claim by the
Church was time-barred, as it had been in the Land Sachsen case discussed above.82
Although concerns were raised about the collector’s good faith on acquiring the
icons, the Appeal Court did not deal with those. It argued that even if it was proven that
the collector was not in good faith,83 such a finding would not affect the outcome. The
77 Malewicz v. City of Amsterdam (2007), above note 75, 40.
78 Settlement Agreement between the Municipality of Amsterdam and the Malewicz heirs (24
April 2008) (on file with the author). Under the settlement, five paintings were returned to the
heirs, who in return acknowledged legal title of the City of Amsterdam to the remainder of the
collection.
79 Convention for the Protection of Cultural Property in the Event of Armed Conflict (signed 14
May 1954) 249 UNTS 240; First Protocol to the Convention for the Protection of Cultural
Property in the Event of Armed Conflict (adopted 14 May 1954) 249 UNTS 358; Convention on
the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership
of Cultural Property (signed 14 Nov. 1970) 823 UNTS 231; Convention on Stolen or Illegally
Exported Cultural Objects (signed 24 June 1995) 2421 UNTS 457.
80 The First Proctocol of the 1954 Hague Convention was implemented in the Netherlands by
the Implementation Act of 26 April 2007; the 1970 UNESCO Convention was implemented
with ‘Uitvoeringswet UNESCO-verdrag 1970 inzake onrechtmatige invoer, uitvoer of
eigendomsoverdracht van cultuurgoederen’, of 12 June 2009. Both laws are replaced by the
Dutch Heritage Act of 9 Dec. 2015 (Staatsblad 2016, 14).
81 Autocephalous Greek Orthodox Church in Cyprus v. Lans [2002] NIPR (2002) No 248 (Court
of Appeal of The Hague).
82 Article 3:306 of the Dutch Civil Code provides for a twenty-year absolute limitation period
(before 1992, this was 30 years).
83 Something that would not easily be assumed, as appears from the earlier District Court’s verdict
14The Dutch Framework for Nazi-Looted Art
absolute twenty-year term, according to the Court, runs independently of the possible
bad faith of the holder. Since the icons had disappeared in March 1975 the claim was
time-barred just months before their attachment in 1995. This controversial outcome
was a reason for the Dutch Government to speed up the implementation of the Hague
Protocol.84 Following that implementation in 2007 and an official request for their
return from the Cypriot authorities, the Dutch authorities acquired the icons from the
collector (as discussed, the lawful owner under Dutch law) and returned them to Cyprus
in September 2013.85
3.1.2 Dutch Legal Doctrine as to Transfer of Title
In sum, the question whether ownership is rightfully transferred under regular private
Dutch law relies on three legal doctrines: (i) valid transfer of property requires delivery
pursuant to a valid title by a person who has the right to dispose of the property; (ii) the
acquirer who purchases an object in good faith is protected, and (iii) the application of
the statute of limitations can effect a transfer of title to the property even if the possession
is not in good faith.
Valid transfer of property
Transfer of property in general is dealt with in Article 3:84 of the Dutch Civil Code
(DCC): a transfer requires delivery pursuant to a valid title by a person who has the right
to dispose of the property.
The good faith purchaser
Pursuant to Article 3:86 DCC, even if a transferor lacks the right to dispose of the
property, a transfer of a movable object is valid if the transfer was for value and if
the acquirer is in good faith. Moreover, pursuant to Article 3:99, a good-faith acquirer
obtains title to a movable object after three years of continuous possession. 86
The statute of limitations
Article 3:306 DCC states that the general limitation period for rights of action (such as a
claim in detinue or replevin) in the Netherlands is twenty years. Even if a new possessor
is found not to have been in good faith, he or she can become the owner of the object:
Article 3:105 DCC states to this effect that a person who holds property at the time of the
completion of the prescription of the right of action to terminate possession, acquires title
in the case; NJK 1999, 37: Rb. Rotterdam (1999) No 44-53 / HA ZA 962403.
84 Above, note 80. Given the Dutch ratification in 1958 and international obligations viz-a-viz
other States, the implementation law interestingly has some retro-active elements.
85 According to the presentation at the 10th meeting of the High Contracting Parties to the Hague
Convention on 16 Dec. 2013 in Paris, it was the first return in the world on the basis of the First
Protocol. See ‘Mutual Presentation of Cyprus and the Netherlands on the Return of 4 Icons
from the Netherlands to Cyprus under the Protocol of the Hague Convention of 1954’, 10th
meeting of the High Contracting Parties to the Hague Convention (16 Dec. 2013) .
86 Pursuant to Art. 3:86a; 3:86b; 3:87a; 3:310a; 3:310b, and 3:310cDCC, special rules apply
to cultural objects that are claimed on the basis of the EU Directive of 15 May 2014 on
the return of cultural objects unlawfully removed from the territory of a Member State
and amending Regulation (EU) No. 1024/2012 (Recast) (OJ 2014, L 159); objects that are
protected from export from the Netherlands under the Dutch Heritage Act (Erfgoedwet); or
objects claimed by States Parties under the 1970 UNESCO Convention. These provisions,
however, do not apply to losses before their adoption.
15Vol. XXV, Issue 1 Art Antiquity and Law April 2020
to the property even if this possession is not in good faith. Controversially, this provision
means that thieves may become owners of their loot twenty years after the theft.87
Hence, the paradox of lawfully owned unlawfully looted artefacts is very present in Dutch
reality: after a good-faith acquisition or just after the passage of time, a dispossessed
owner loses the possibility to revindicate the object under 5:2 DCC. Obviously,
exceptions to these rules exist due to the adoption of international regulations and their
implementation in Dutch law – such as the EU Directive, the 1954 Hague Convention
and the 1970 UNESCO Convention;88 however, as may be clear from the example cases
given above, these exceptions do not apply to losses before their adoption and, thus, not
for losses during the Nazi era.
3.1.3 KB E 100 as Lex Specialis?
Given that title claims based on a loss during the Nazi period will most likely be
inadmissible, a question is whether, as a lex specialis, Law E 100 could still be of use?
First of all, possibilities of that Law are limited to artefacts lost from Dutch territory
during the Nazi Occupation of the Netherlands that, today, are located within the Dutch
jurisdiction.89 Apart from this restriction, the deadline for direct requests lapsed in
July 1951, as mentioned above. Nevertheless, it may still be possible to ‘revive’ these
possibilities in compelling cases, given the option for the competent judge (being the
successor to the Justice Department of the Council of the Restoration of Rights) to
restore rights that were lost as a consequence of the War ex officio even after the deadline
for direct claims.90 This view is supported by a 1999 Appeals Court ruling on a claim
the Goudstikker heirs filed against the Dutch State for paintings in the NK collection.91
The Hague Appeals Court, in that case, acted in its capacity as successor to the Judiciary
Department of the Council of the Restoration of Rights.92 While the Court denied the
claim as a direct request, given that the deadline for filing such a request under Law E
100 had lapsed almost 50 years earlier, it confirmed that in its capacity as successor to the
Judiciary Department of the Council it would be able to act – interfere in the private law
relations in the words of KB E 100 – ex officio (‘ambtshalve’). The Court, however, saw
no compelling reason to interfere at the time. Whereas the forced character of the sale
(of Goudstikker’s stock-in-trade to Göring) was not in doubt or an issue, the stumbling
block for the Court, and the reason not to interfere, was the settlement agreement that
87 In 1992 in a critical essay Professor Brunner warned of this undesired effect resulting from
changes in the system of private law after the introduction of the new Dutch Civil Code (in
the older version of the Civil Code a bad faith acquirer could never gain title, even though the
limitation periods for an ownership claim might have lapsed resulting in the ownership title
remaining ‘in the air’). C.J.H. Brunner, ‘Dief wordt Eigenaar’, in: Quod Licet, Kleijn-Bundel
(Kluwer, Deventer, 1992), 45-53; see also Arthur F. Salomon ‘National Report on the Transfer
of Ownership of Movables in The Netherlands’, in W. Faber, B. Lurger (eds) National
Reports on the Transfer of Movables in Europe, Vol. 6 (Sellier, Munich, 2011), p. 17.
88 Above, note 80.
89 Articles 23-25. Above, section 2.1 under (iii).
90 This possibility was added to Law E 100 with Law F 272 of 16 Nov. 1945 introducing the
possibility for the competent judge to restore rights ‘ex officio’.
91 Amsterdamse Negotiatie Compagnie N.V. in liq. And Marei von Saher-Langenbein v. de Staat
der Nederlanden, Appeals Court The Hague, 16 Dec. 1999 (NJ Kort, 2000, nr. 7). For a
summary, Goudstikker recommendation (RC 1.15).
92 Law 163 of 9 March 1967 ‘Houdende regelen in zake de opheffing van de Raad voor het
Rechtsherstel’ [Staatsblad 163, 1967].
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