Was This Picasso Lost Due to the Nazis? Heirs Say Yes. Bavaria Says No.

BERLIN — Almost two decades ago, Germany established a national commission to address disputes over art looted or sold in the Nazi era. While the opinions of the advisory commission are not binding, its recommendations have been routinely followed and about 20 artworks have been returned to the heirs of people who suffered because of the Third Reich.

But now the Bavarian State Painting Collections, which is owned by the state of Bavaria, has refused to refer the case of a Picasso to the commission, a break from tradition that has drawn scrutiny from the federal government and an admonishment from the chairman of the advisory commission itself.

“It is simply inexplicable that the state should refuse to use a mediation mechanism it established itself,” said Hans-Jürgen Papier, the commission’s chairman and a former president of Germany’s constitutional court.

Critics of the decision say that, whatever the merits of a particular claim, the 16 German states should respect the authority of the panel they set up with the federal government in 2003 after Germany endorsed the Washington Principles, a 1998 international agreement calling for “just and fair” responses to claims that arise from conduct in the Nazi era.

“Regardless of the individual case, agreement to go to the commission should be a matter of course,” said Ulf Bischof, the Berlin-based lawyer for the heirs of Paul von Mendelssohn-Bartholdy, a Jewish banker who once owned the Picasso. “The historical context and the demands of fairness and respect require that much.”

Officials of the Bavarian collections have made restitution for 20 artworks in total — the most recent on May 31 — often acting on the basis of their own provenance research, without any need for the commission to step in. In three cases, where there was disagreement, they did agree to have the advisory commission get involved. But in this instance they have said that the painting, “Portrait of Madame Soler,” dated 1903, was not sold as a result of Nazi persecution, a position the heirs are contesting.

The painting depicts the wife of a tailor who befriended Picasso in Barcelona and supported the artist through troubled times with commissions in return for clothing and cash. It is one of five Picasso works the Mendelssohn-Bartholdy family sold to the Berlin art dealer Justin K. Thannhauser in 1934 and 1935.

The Bavarian State Painting Collections bought the painting from Thannhauser in 1964. That institution and the government of Bavaria say that, in their view, the family did not sell “Portrait of Madame Soler” as a result of Nazi persecution and the case is closed.

The heirs argue that Mendelssohn-Bartholdy sold the work under duress. They also say the current holder of a contested work should not be the sole judge of a claim, and they want the matter examined by the advisory commission, established expressly to mediate such disputes.

Though the commission is viewed as the national tribunal for such matters, it can only be called in to mediate if both parties agree.

German Culture Minister Monika Grütters has said she expects all German museums to refer cases to the panel if the heirs request it, according to a December 2016 letter she sent the Mendelssohn-Bartholdy heirs. Her ministry reiterated that position in an email recently.

But the ministry noted that, under Germany’s federal structure, the decision lies with the states.

Bavaria had once previously refused to refer a case to the commission. It was a case involving six works by Max Beckmann that were claimed by the heirs of the art dealer Alfred Flechtheim. That dispute, however, arose in 2013, before the culture minister had made clear her expectation that all state-funded museums submit cases to the commission.

“I have absolutely no understanding for the fact that some publicly financed institutions refuse to refer cases to the advisory commission,” Grütters told a 2018 conference to mark the 20th anniversary of the Washington Principles.

Papier, the commission’s chairman, dismissed Bavaria’s view that the claim is unjustified as “irrelevant,” saying it is up to the commission to evaluate such cases, not the holder of a disputed artwork. Bavaria’s resistance to referring the case to the panel “must leave the impression that there is no will or appropriate means to address historical injustices in Germany,” he said in an email.

He has discussed the case with the Bavarian culture minister in recent months and brought it to the attention of the state’s premier, Markus Söder. But the state government stands firm. Bavaria believes that the advisory commission is “not an appropriate means to achieve final legal peace” in the dispute with the heirs because the painting was not lost because of Nazi persecution, the state’s Culture Ministry said in an email.

Paul von Mendelssohn-Bartholdy was a relative of the famous composer Felix Mendelssohn and the Enlightenment philosopher Moses Mendelssohn. The heirs say he had suffered extensive financial damage at the hands of the Nazis by the time he sold the paintings to Thannhauser. He was ousted from the Central Association of German Banks and Bankers in 1933 and from the board of the Reich Insurance Office in 1934. He died in 1935.

The heirs, who include the German historian and political scientist Julius H. Schoeps, first asked Bavaria to refer the case to the advisory commission in 2010. When Bavaria refused, they filed a lawsuit in the United States. The case was eventually rejected by the Supreme Court in 2016, which upheld the District Court for the Southern District of New York’s ruling that Bavaria was entitled to sovereign immunity and there was no basis for a trial in the United States.

But over the past 12 years, other institutions have agreed to either return or pay compensation for the four other Picassos the Mendelssohn-Bartholdy family sold to Thannhauser under identical circumstances. In 2009, the Solomon R. Guggenheim Foundation settled the claim for “Le Moulin de la Galette” and the Museum of Modern Art in New York settled for “Boy Leading a Horse.” The museums had previously attempted to fend off the claims, which they said had “no basis,” by requesting a court declaration confirming their ownership. The final terms of the settlements were not disclosed, though both artworks remained in the museum collections.

Later that year, the heirs reached agreement with the Andrew Lloyd Webber Foundation on the 1903 “Portrait of Angel de Fernando Soto,” also known as “The Absinthe Drinker,” which the foundation had acquired at auction in 1995 and sold in 2010 for $51.8 million with commission at Christie’s in London.

And just last year, the National Gallery in Washington said it would return a pastel, “Head of a Woman,” to Mendelssohn-Bartholdy’s heirs. The museum’s reasoning for transferring ownership of the artwork was “to avoid the heavy toll of litigation.” The decision, it said, “does not constitute an acknowledgment of the merit or validity of the asserted claims.”

The family’s only Picasso claim left unresolved is for “Portrait of Madame Soler.” The advisory commission, which is not a court, is the heirs’ sole recourse in Germany, where lawsuits to recover Nazi-looted art are rarely successful because of statutes of limitation and other legal hurdles.

This is not the first time the commission’s limited powers have been tested. In another recent case, a foundation in Bavaria refused to pay a settlement recommended by the panel to the heirs of a Jewish dealer in music supplies for a valuable violin lost in the Nazi era. After The New York Times and German media reported on the case, the foundation agreed to pay up.

The difference with “Portrait of Madame Soler” is that this time the state itself is defying the advisory commission’s authority, Bischof said.

“If Bavaria gets away with this, precedence is set and the commission is just a platform for mediating on minor works where it might seem opportunistic to agree to a hearing because the outcome doesn’t matter,” he said.

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