Spoliation of works of art during the Holocaust and World War II period
UK museums' provenance research for the period 1933-1945
Statement of principles and proposed actions
1.1 These principles and recommended actions for provenance research for the period 1933-1945 (the ‘operative period’) were originally drawn up at the request of the National Museums Directors' Council (NMDC) in 1998. The principles themselves remain unchanged. This revision of details reflects changes in circumstances over the intervening years.
1.2 The NMDC is a UK-wide voluntary association representing the Directors or Chief Executives of the national and major regional museums in England, Northern Ireland and Scotland, the British Library, the National Library of Scotland, and the National Archives. For the purposes of this document all actions shall be taken to refer to the museums and libraries.
1.3 The powers of the national institutions represented within the NMDC membership and their governance and expenditure is subject to scrutiny by the Government departments and other public authorities that fund them. Restitution or compensation in any single case may therefore be affected by such statutes or Royal Charters and as a result may depend on governmental consent, and/or assistance. The Holocaust (Return of Cultural Objects) Act 2009 was brought in to allow for deaccessioning in the special circumstances of spoliation.
1.4 This document reaffirms the broad principles agreed by all members of the NMDC. It is not intended to create or alter any existing legal right or obligation.
1.5 The NMDC recognises the role of the Spoliation Advisory Panel (SAP) as the body instituted in the UK to provide a means of resolving claims as an alternative to the courts. The SAP assesses assessing the evidence available and makes recommendations to the Secretary of State for Culture, Media and Sport, claimants and institutions on what would be appropriate action to take in response to claims. The terms of reference of the SAP are available here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/323497/Spoliation_Advisory_Panel._Constitution_and_Terms_of_Reference.doc
1.6 The NMDC has instigated a Spoliation Working Group comprising representatives responsible for spoliation research in member institutions. This Group provides a forum for the sharing of knowledge and also serves to maintain momentum in respect of the activities and research outlined in this document. The work of this group is supported and overseen by the Spoliation Advisory Committee, which comprises members with expertise in spoliation matters, the art market, the history of the period 1933-1945 and the law. The Spoliation Advisory Committee is independent of museums and NMDC institutions.
1.7 The Cultural Property Advice website has been established as a source of information for research and institutional activity in the area of spoliation. It makes available to the public details of items in collections for which there is a known gap in provenance in the operative period. It also provides contact details for the responsible officers in NMDC institutions: http://www.collectionstrust.org.uk/collections-link/cultural-property-advice/spoliation
1.8 The website also provides the following information:
a) practical guidance for institutions on undertaking provenance research and dealing with new acquisitions and loans;
b) guidance and information for enquirers or potential claimants;
c) general guidance for institutions on dealing with claims.
1.9 For the purposes of interpreting this document, ‘wrongful taking’ shall mean any act of theft or other deprivation which was committed during the Holocaust and World War II period, 1933-1945. It shall usually be taken to apply to works or objects lost to their rightful owners through actions for which it is reasonable to assume that the Nazi party or their allies were directly responsible or which it can reasonably have been said arose as a result of associated activity in the period 1933-45.
2. Statement of principles
2.1 NMDC recognises and deplores the wrongful taking of works of art that constituted one of the many horrors of the Holocaust and World War II.
2.2 NMDC members support the principle outlined in the Museums Association (MA) Code of Ethics dated 2015 which states that Museums should ‘Conduct due diligence to verify the ownership of any item prior to purchase or loan, and that the current holder is legitimately able to transfer title or to lend. Apply the same strict criteria to gifts and bequests.’ In addition, due diligence will take into account moral claims arising as a result of ‘wrongful taking’ as identified in 1.9.
2.3 NMDC members are committed to working with other institutions and organisations both within the UK and internationally to increase awareness and understanding of the facts surrounding the spoliation of works of art by the Nazis and others during the Holocaust and World War II period.
2.4 NMDC members are committed to giving prompt and serious consideration to claims to title for specific works in their collections. NMDC institutions will work with claimants to review the available information. Upon satisfaction that a claim exists, members may decide whether to recommend to claimants that resolution is sought by asking the Secretary of State for Culture, Media and Sport to invite the SAP to consider and advise the on the appropriate response to the claim.
2.5 In line with its members' general policies for and commitment to increasing public access to information about their collections, NMDC advocates a practical approach to reviewing and making accessible information relating to provenance of their collections, taking into account the nature and size of the collections concerned and the resources available. Institutions also commit to sharing information through the Spoliation Working Group and as required in the research of provenance.
2.6 NMDC continues to advocate an ongoing process of reviewing, reporting and researching the issue of works of art wrongfully taken in the operative period which respects the dignity of all parties and the complexity of the issue. Each claim represents a unique situation which must be reviewed thoroughly on a case by case basis taking into account both the interests of individuals and the statutory and legal responsibilities of the institutions.
3. Actions concerning research and access to information
3.1 Following NMDC’s recommendation, each museum, gallery or library has published an action plan with regard to research on and access to information about their existing collections. These will vary in scope and timescale according to the size and nature of the collections and the resources available. Research is ongoing. New sources of information require that research should be subject to review even where it has reached a preliminary state of completion. The ongoing research has included:
- Review of provenances for items made before 1945 and acquired since 1933;
- Research based around specific enquiries;
- Collation and monitoring of new information about provenance for this period as part of ongoing research;
- Public identification on the Cultural Property Advice website of objects for which provenance is unknown for any point during the years 1933-45.
3.2 Each institution has nominated a person or persons as the main point of contact for enquiries on this subject in their institution. Contact details are available on the Cultural Property Advice website.
3.3 Institutions publish lists of works for which there are gaps in the provenance during the operative period on the Cultural Property Advice website and research being undertaken in each institution.
3.4 Arts Council England (ACE) offers guidance for potential enquirers beyond the information available through the Cultural Property Advice website, including information about the collections of each institution, points of contacts, and types of information that may be available (e.g. databases, files, websites).
3.5 The institutions represented on the Spoliation Working Group work with overseas colleagues, the UK Government, MA, ACE, the Commission for Looted Art and other UK organisations to collect details of useful information sources, for example about missing objects, and the history of the movement of works of art during the period.
4. Procedures for acquisitions
4.1 In accordance with standard good practice institutions acquiring any new object should:
- Exercise due diligence in satisfying themselves that the vendor or donor or executors have good title to the object;
- Building upon the MA guidance (as widened to above) and ACE Accreditation, take reasonable steps to satisfy themselves that the object has not been wrongfully taken without restitution or commensurate reparation having taken place subsequently;
- Seek from the vendor, agents, donor or executors the fullest possible information with regard to provenance including for the years 1933-45.
4.2 In accordance with standard practice all information with regard to provenance collected during the acquisition process must be recorded on the main acquisition file or database.
4.3 For specifically identifiable works of art for which the provenance in the period 1933-45 is uncertain, and which may have been outside the UK for all or part of this period, it is a requirement of due diligence that a check be made with appropriate databases of claimants or of missing works of art (such as the Art Loss Register). For detailed guidance see paragraph 1.8 above. Guidance for staff includes information and advice on:
- Use of warranties;
- Information to seek from vendor or lender;
- Suggested sources of information and approaches to checking provenance.
4.4 If there is no evidence of wrongful taking then the acquisition may proceed. If there is evidence of wrongful taking then the institution should not proceed to acquire the object unless in doing so it can be demonstrated that it improves the likelihood of restitution.
4.5 Institutions should publish, display or otherwise make accessible all recent gifts, bequests and purchases thereby making them available for further research examination and study.
5. Procedures for incoming loans
5.1 As with acquisitions, institutions should follow standard good practice when borrowing objects and should:
- Exercise due diligence in satisfying themselves that the lenders have good title as above defined in 1.9;
- Exercise due diligence in researching provenance to satisfy themselves that the object has not been wrongfully taken without restitution or commensurate reparation having subsequently taken place;
- Seek from the lender the fullest possible information with regard to provenance including for the years 1933-45.
5.2 Borrowing institutions should ensure that it is stated in loan agreements that the terms of the UK Government indemnity do not cover any third party claims and they should draw the attention of the lender to this fact. It is also a condition of the Government Indemnity Scheme that due diligence has been completed.
5.3 Museums and libraries approved to offer protection under the Immunity from Seizure legislation (as Part 6 of the Tribunal, Courts and Enforcement Bill 2006) are required to demonstrate due diligence in research by making public the provenance of works covered by the scheme and to provide a named contact for any resulting enquiries. This must be published on the institution’s website and linked to the ACE website six weeks in advance of the importation of the loan into the UK in accordance with the requirements of the legislation.
5.4 In the event that an institution believes that an object it is seeking to borrow is, or is likely to have been wrongly taken, it should not proceed with the loan.
5.5 Institutions reserve the right to borrow an object with such status in exceptional circumstances; in doing so, they should proceed with full transparency as to the provenance of the work and with satisfactory research that has been undertaken. The Department for Culture Media and Sport (DCMS) and ACE should be consulted prior to making any agreement with the lender.
6. Discovery of the wrongful taking of works of art
6.1 If, in the light of new information, an institution becomes aware that an object in its collection was or is likely to have been wrongfully taken during the Holocaust and World War II period, that it was not subsequently restituted, and that no commensurate reparation was made, this information should be made public and recorded in the institutional reports published on the Cultural Property Advice website and with NMDC, ACE and DCMS. Efforts should be made to contact the original owners or their descendants, and the known facts regarding the provenance of the work shall be shown on websites, object labels and in any new publications relating to the work.
6.2 Making public means issuing a press release to all media to which the institution in question usually issues press releases and to such principal additional media and any applicable organisation within the UK as are generally known to serve any ethnic or national group likely to have a particular interest in the matter.
6.4 Should an institution receive a claim that an object in its collection was wrongfully taken during the Holocaust and World War II period it shall record the date and nature of the claim both in a register kept by it for that purpose and in the dossier of the object concerned and shall, as soon as practicable, advise NMDC, ACE and DCMS of the claim. Within the limits of its then existing resources the institution shall review such claim promptly and thoroughly with the claimant including requesting evidence of the claimant's interest in the object to help determine its provenance.
6.5 The institution will seek to resolve the matter with any claimant in an equitable, appropriate and mutually agreeable manner (taking into account the possibility of competing third party claims) as permitted by its governing legislation and in conjunction with the DCMS. Respecting any wish on the part of the claimants or their representatives to remain anonymous, an institution may, once a decision has been made to refer a claim to the SAP, make that referral public.
6.6 Should an institution receive an enquiry which does not relate to a specific identified item in their collection but to the potential presence of unidentified spoliated items among a class of materials in the collection of the institution, the presumption will be that the institution cannot normally undertake research to establish the presence or absence of such an items unless there are strong grounds to believe that one or more spoliated items might be identified and that the cost of the investigation is proportionate to the likely outcome.
6.7 Resolution of any claim may be achieved through submission to the SAP. It considers both legal and moral obligations. Its proceedings are an alternative to litigation, and its recommendations are not legally binding on any parties.
6.8 The SAP’s recommendations to the Secretary of State for Culture, Media and Sport carry moral weight and, in the case of recommendations made with reference to the provisions of the Holocaust (Return of Cultural Objects) Act 2009, have legal significance. The SAP may recommend rejection of a claim, an ex gratia payment to the claimant or the transfer of the object to the claimant in accordance with the provisions of the Holocaust (Return of Cultural Objects) Act 2009.
National Museum Directors' Council, 2016