Bavaria proposes Cultural Property Restitution Act, heads to Berlin for federal …

As reported yesterday, the government of Bavaria has moved ahead with a proposal to amend the statute of limitations over art claims like those arising out of the Gurlitt find in Schwabing/Munich.  The “Draft law for the exclusion of limitations on claims for misappropriated cultural property, particularly from the Nazi era (Cultural Property Restitution Law)” would bar the assertion of a statute of limitations where the current possessor does not hold the property in good faith.  The draft is now publicly available, here (albeit in German).  The proposal is not limited to Bavaria, rather, it is for consideration by Germany’s federal; parliament in Berlin (first the upper chamber, or Bundesrat, followed by the Bundestag). 

The preamble surveys the general application of the 30-year limitations period, but then notes the conflict between that result and stated German federal policy (my translation):

 In the case of things that were lost unwillingly by their original owner or that were indirectly owned, and that were or are now in the hands of a bad-faith owners, the long-term divergence between ownership and possession is not justifiable and the protection for the current holder should be withdrawn.  


This is particularly evident in Nazi era persecution cases in which cultural property was taken or displaced in wartime.  In these cases, the statute of limitations could be pleaded against restitution to the owner.  This legal situation is difficult to bear, however, because it perpetuates over time the injustice created by the Nazi state.  Moreover, this state of the law is contrary to the spirit of the “Declaration of the Federal Government , the Länder and municipal associations for tracing and return of Nazi- confiscated art good, especially Jewish property” of December 1999.  There, the Federal Government, the Länder and municipal associations have announced their intention to work in the responsible bodies of the relevant public institutions to effect the return of Nazi- confiscated cultural property. . . .  The aim of the bill is to correct the foregoing unsatisfactory legal situation, and to make it possible for owners of lost cultural property to bring claims against bad faith owners even after the expiry of the limitation period, to enforce their claim for restitution.

The most important operative change would be:

The Civil Code in the version published on 2 January 2002 (BGBI. I S. 42, 2909; 2003 I S. 738) [Federal Law Gazette I, p 42, 2909, 2003 I, p 738], last amended by Article 6 of Law from 28 August 2013 (BGBl. I S. 3458), is amended as follows:

1.      § 214 will be changed as follows:

a)      After Paragraph 1, the following Paragraph 2 is added:

“(2) In contrast to a claim pursuant to § 985, as well as claims that serve to make an assertion under § 985, the assertion of the statute of limitations is prohibited where the property of an owner, its legal predecessors or indirect owners, has been lost and the possessor did not acquire the property in good faith.”

In the first instance, that would have considerable importance to any claims against Gurlitt himself or Bavaria as the current custodian of the paintings.  It would still require a showing by claimants that Gurlitt took the paintings from his father in bad faith, but would presumably eliminate a defense potentially available to Gurlitt that even in bad faith, sufficient time had run to bar claims.

New Bavarian Justice Minister Winfried Bausback was quoted as saying

This would also apply to cases of so-called ‘degenerate art’ or Nazi-looted art, when works were taken for example from Jewish owners in the context of their oppression or expulsion by the National Socialist reign of terror. . . .  The condition is that the current holder of the work acted in bad faith, knowing exactly the origin of the item or having clear evidence for it at the time he acquired it.

Beyond Gurlitt, the implications would be even broader, since the law would apply to any claim to property anywhere in Germany.  As the Gurlitt case has shown, one simply never knows when a new discovery will be revealed.

The Bundesrat is expected to consider the measure on February 14, 2014.  Such approval is a preliminary step to consideration by Germany’s full parliament, the Bundestag.

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