Art world braced for historic Supreme Court decision on Guelph Treasure

The US Supreme Court was asked to decide on Monday 7 December whether the heirs to the Guelph Treasure can sue for its restitution in a US court.

The restitution claim was initially filed in February 2015 in the US District Court in Washington D.C. The claimants descend from the Jewish art dealers who once owned the treasure, also known as the ‘Welfenschatz’. They sought its return from Germany and the German Prussian Cultural Heritage Foundation (Stiftung Preussischer Kulturbesitz or SPK), which now technically owns the collection.

The important collection of medieval gold and silver pieces, which is valued at approximately US$260 million (£190 million) originally belonged to Prussian aristocrats. It was sold off in 1929 with part of the collection going to a consortium of Jewish art dealers. In 1934, the Nazi governor of Prussia, Hermann Göring, purchased the collection and reportedly presented it to Hitler as a surprise gift.

The claimants seek restitution on the basis that the collection was sold for about one-third of what is was worth as part of the Nazi campaign to persecute German Jewry during the Holocaust (1933-1945). They also argue it was a ‘sham transaction’ forced on their predecessors.

Germany and the SPK maintain the sale was legitimate and done at the owner’s ‘free disposal’. While the SPK acknowledges its obligations under the Washington Conference Principles on Nazi-Confiscated Art it submits that they do not apply to the Guelph Treasure.

There are very few works subject to a restitution claim whose paperwork makes it as clear that it wasn’t seized as a result of persecution as the Guelph Treasure”, SPK president, Hermann Parzinger has stated. “Neither was the sale forced, nor was the sale price unfair”.

In March 2014, Germany’s Limbach Commission, the government-appointed advisory committee on the restitution of cultural goods confiscated by the Nazis, determined that there was no forced sale. Undeterred, the claimants turned to the US courts and attempted to argue their case on the basis of the US Foreign Sovereign Immunities Act (FSIA) of 1976. 

The FSIA prohibits lawsuits from being filed against other countries in US court except where the government takes property in violation of international law. The claimants submit that the sale of the treasure constituted such a violation because it occurred during the Holocaust period.

In a historic ruling made in March 2017, the US District Court held that under this ‘expropriation exception’ Germany could not claim immunity from the restitution suit under the FSIA. On appeal by the SPK, the US Court of Appeals for the D.C. Circuit upheld the claimants’ right to sue for the return of the treasure.

Following a further appeal by the SPK, the US Supreme Court heard oral arguments from both sides as to the application of this ‘expropriation exception’ on Monday (7 December). Lawyer for Germany and the SPK, Jonathan Freiman, argued that only a taking of property from non-citizens constitutes a violation of international law, which would trigger the exception under the FSIA. He submitted that in drafting the FSIA, Congress did not intend to create an exception for genocide claims.

Lawyer for the heirs to the Guelph Treasure, Nicholas O’Donnell, countered that Germany’s taking of property from the Jews during the Holocaust fit squarely within the FSIA framework. “If you take the property, as Germany did, explicitly to destroy the group of people and remove it from the face of the earth, then you’ve committed genocide through the taking of property, which is the focus of the expropriation exception”, O’Donnell argued.

The court’s ruling on whether the lawsuit can finally proceed in US court is expected in June 2021. It could prove a watershed moment for claimants from all over the globe seeking restitution of contested artworks.

We will keep you updated on any developments.

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