In 2003, the federal government, the federal states and the municipalities set up the advisory commission in connection with the return of cultural property confiscated as a result of Nazi persecution, in particular from Jewish property.
It has given itself a set of rules of procedure which stipulates in Paragraph 3 (1): "The prerequisite for the commission's action is the consent of both sides to initiate mediation by the commission and, if necessary, a recommendation by the commission and want to comply with them."
Bavaria does not agree that the commission should deal with Picasso's painting “Madame Soler”, which the Free State bought in 1964 from the art dealer Justin Thannhauser who emigrated to New York. Since 2009, heirs of the banker Paul von Mendelssohn-Bartholdy, from whom Thannhauser took the portrait from the “Blue Period” in 1934 or 1935, have asked for the picture to be published. Hans-Jürgen Papier, who was elected chairman of the advisory commission to succeed Jutta Limbach in 2017, disapproves of the Bavarian stance. He told the New York Times that it was inexplicable that the state refused to use a mediation mechanism it had created itself.
But this is, as shown, provided for in the Commission's rules of the game: it must remain inactive unless both parties agree to the mediation. If paper finds this provision inexpedient, it must work towards a change in the rules of procedure. When it was revised in 2016, the requirement for the consent of both sides was retained.
It arises from the nature of the procedure: Mediation here has voluntary submission as a prerequisite, because the recommendations of the commission should propose fair solutions for individual cases in which nothing can be achieved with court judgments.
The self-commitment replaces the legal obligation that has become powerless.
Now one might ask the Bavarian State Ministry for Science and Art why it does not want to bring the Picasso case to the commission when it is so sure of its cause.
Anyone can ask this question - except the chairman of the commission.
Because this acts as an arbitration tribunal and cannot choose its cases.
Disregarding voluntariness creates the appearance of bias.
The Commission is not a court
The decision of Bavaria, based on provenance research, that there was no withdrawal due to persecution, is assessed by paper as irrelevant; only his commission could decide. But this is not an ordinary court to which the legislature would have given comprehensive jurisdiction in restitution matters. It does not act ex officio, but based on the unanimous will of the parties. And according to the Washington principles, all public owners are obliged to identify looted art objects in their possession, even without tutoring the commission, to check the legality of the possession and to make a binding declaration.
An arbitration panel must organize its rulings in such a way that it is trusted to bring about an amicable settlement. In March, the commission of the city of Düsseldorf recommended the publication of the painting “Die Füchse” by Franz Marc, although the sale took place in New York and the seller received the price negotiated according to his instructions. Seven years earlier, the commission had made the opposite recommendation in a differently composed case in an analogous case. So “The Three Graces” by Lovis Corinth could remain in the Bavarian State Painting Collections.
At the beginning of 2021, Papier reprimanded a private foundation based in Nuremberg, which, citing financial difficulties, found it unable to implement a recommendation it had requested. Paper even gave a radio interview on this matter. At that time it was about a closed procedure. Now the chairman is going a step further and wants to force the opening of proceedings by printing public statements. The Bavarian approach must leave the impression that Germany lacks the will or the means to redress historical injustices. In truth, paper gives the impression that it is no longer interested in fairness.