By Angélie Pompée.
Andre Derain, Paysage à Cassis (1907); La Chapelle Sous Crécy (1910); Pinède, Cassis (1907); The Gimpel Gallery in Trouville-sur-Mer, Calvados, around 1900.
On Wednesday, September 30, 2020, the Paris Court of Appeals released a landmark decision ordering the French Ministry of Culture and the City of Marseille (south of France) to return three “Fauves” by the French painter André Derain (1880-1954). This restitution favors the heirs of the Jewish art dealer and international gallerist, René Gimpel (1881-1945). The Court of Appeals, as a second-degree jurisdiction, decided the case both on the factual and legal level.
This case involved three canvases painted in 1907 and 1910 (collectively, the “Paintings”): “Paysage à Cassis” (or Vue de Cassis) (1907) and “La Chapelle sous Crécy” (1910), which were on display at the Museum of Modern Art of Troyes and which had been donated to the State in 1976 by Pierre and Denise Lévy, who had acquired them in the 1950s; and “Pinede, Cassis” (1907), acquired by the City of Marseille in 1987. Until this decision, all the Paintings belonged to national collections.
André Derain, Pinède, Cassis (1907).
André Derain, La Chapelle Sous Crécy (1910).
Andre Derain, Paysage à Cassis (1907).
Shortly after the decision, the Ministry of Culture announced that it would not appeal to the French Supreme Court (Cour de cassation), and on Wednesday, January 27, 2021, as the world remembered victims of the Holocaust, the mayor of Marseille restituted “Pinède, Cassis” to the heirs of Gimpel and solemnly asked “all French mayors to commit to take inventory and restitute [looted art] because it is [their] responsibility.”
Facts and Provenance
René Albert Gimpel was a prominent art dealer from Alsatian Jewish descent. He dedicated his life to art and was a passionate collector of the modern contemporaries among whom he moved, such as Pablo Picasso, Georges Braque, or Claude Monet.
In 1921, René Gimpel purchased the Paintings at the sale of the Kahnweiler collection at Drouot, the Paris marketplace where auction houses rent rooms and organize their sales. The Paintings then hung in the salon of the collector in Paris until 1933. Anticipating the war, he brought several works from his New York and London galleries to Paris. After closing his Parisian gallery in 1939, Gimpel fled to join the resistance in July 1940. In 1940, René Gimpel fled the capital with his family and left behind his gallery in Place Vendôme to move to the French Riviera near Italy. To sell his paintings, the art dealer used an inventive process implying codes to communicate with buyers and to hide his trade from the Vichy government. He would change inventory numbers and use combinations of numbers to hide secret messages in order to trade. Gimpel joined the Resistance and was deported from Compiègne-Royallieu in France to Neuengamme in Germany on July 15, 1944. Before being deported, he teamed up with his sons Ernest, also known as Charles, and Jean Gimpel in Marseille to fight back the Nazi Regime. Too old to fight, Gimpel financed resistance networks, “including a network called Azure Transport that transports weapons in coal trucks,” said his granddaughter. Gimpel died during deportation in January 1945, at Neuengamme, not far away from Hamburg (north Germany), where his health gave out under the strenuous conditions under which he was held.
In 2012, the heirs, after identifying with certitude the location of the three Paintings, tried amicable approaches, unsuccessfully, before resorting to the courts to judicially assert their rights.
Since 2013, Gimpel’s family has been fighting for the restitution of his works of art which were looted during the Occupation. The issue with these Nazi-era looted cases is proving that artworks were forcibly taken and establishing that there is enough provenance to trace it back to its original owner. An example would be the case concerning a Pissarro painting “La Cueillette des Pois” (1887), a work which was bought by American collectors in the 90s and which the French Supreme Court ordered to be resituted to the heirs of its owner on July 1st, 2020.
Lower Court Decision
On June 25, 2019, the High Court of Paris (Tribunal de Grande Instance de Paris) heard the Gimpel heirs, who demanded the return of the three Paintings. The lower court judges held that the collected elements to prove the ownership were substantially insufficient and on August 29, 2019, the court dismissed the Gimpel family’s claim because of “persistent uncertainties as to the identification of the works.” These are twofold: first, under French law, a claimant must establish their status as owner of the property claimed and, secondly, must justify the existence of an exorbitant act of disposition under common law and subsequent to June 16, 1940.
The museums having bought the Paintings legally, evidence of a forced sale remained insufficient. “René Gimpel’s fate is truly unfortunate, but the case presented by the lawyer for his descendants contains many contradictions,” said Béatrice Cohen, the lawyer for the Museum of Modern Art in Troyes, which currently owns “Paysage in Cassis” and “La Chapelle-Sous-Crecy.” “There is no doubt that René Gimpel owned Derain purchased in 1921 in Drouot, but when the family tries to trace the works back to the war to demonstrate spoliation, the inventory numbers of the paintings change, their names change and their dimensions are different.”
In light of the high burden of proof established by Article 1 of the 1945 Ordinance on Nazi-Looted Art (the “Ordinance”), the court refused to say that the paintings mentioned as “Landscape” in René Gimpel’s ledger and numbered 219, 222, and 522 on his stock book correspond to the disputed Paintings.
On the issue of takings, the court considered that, although it was established that the German authorities had confiscated two crates, containing four and twenty-three paintings respectively, and entrusted Azur Transport for transport in 1942, there was nothing to show that the disputed paintings were in those crates, in the absence of an inventory of their contents. The temporality and conditions of dispossession were far too uncertain.
Court of Appeals Decision
The family challenged the lower court decision by appealing to the Paris Court of Appeals, which overturned the previous judgment on September 30, 2020, finding that there were enough “precise, serious, and concordant shreds of evidence” that are sufficient to prove the looting. The Court rejects any doubt that the litigious Paintings are those acquired by René Gimpel in 1921 during the sale of the Kahnweiler collection at the Hotel Drouot. They had been in his own possession in 1940 and had been, in all likelihood, sold before he died. However, the Paintings had been displaced and moved from one place to another. Successive owners had renamed the Paintings which made it more difficult to find them. They had been physically recanvassed many times. This situation enhanced the difficulty to prove the forced sales.
(1) The impossibility to report any evidence due to the circumstances
According to the Ministry of Culture, the Court of Appeals should have denied the restitution. Indeed, the Ministry argued that the exact dates and the conditions of sales were unclear and obscure. Therefore, there is no sure evidence of the looting. “The State should not require evidence impossible to bring back in such tragic circumstances and 80 years after the looting unfolded.” Furthermore, the Court puts forward that René Gimpel had been forced to sell his artworks secretly to find enough resources, which he needed to organize to prepare his escape and his survival. It may be speculated that he used them to finance Resistance actions.
The Paris Court of Appeals severely blamed the lower jurisdiction for failing to pay enough attention to the historical context and circumstances surrounding the acquisition of the Paintings. The Ministry of Culture desperately tried to convince the judges of the lawfulness of the sales. However, the court rejected this argument once again using the fact that René Gimpel had been deprived by the French government of his citizenship in 1942 because he was Jewish. He had lost his rights as an individual and a French citizen when the sales of the Paintings took place. Indeed, the status of Jews under Vichy implied that Gimpel was considered legally “incapable” and could not consent to the sales. He, as matter of fact, could not exercise his right to trade. The Court concluded that his estate had been confiscated by the Vichy Government and that he had no choice but to leave and emigrate.
(2) A very detailed and thorough work done thanks to provenance research
The Paris Court of Appeals praised the heirs for the thorough work they have done. They have given new and detailed elements that helped the judges to render their decision, including a series of documents, notes, photographs, and inventory books. On the other side, the museums were unable to provide any evidentiary support.
(3) The recognition of forced sales during the Occupation
Finally, the application of the order of April 21, 1945, on the nullity of acts of spoliation carried out during the Occupation determined the holding. This order renders all sales null and void. They are, therefore, considered as forced.
After a seven-year battle, the heirs are finally relieved by this decision. In 2013, Corinne Hershkovitch, the attorney for the Gimpel heirs and the same attorney who convinced the Paris Court of Appeals to order the Louvre to restitute a Tiepolo and four other paintings on June 2, 1999 began to approach the museums. All her efforts were in vain and they denied any act of spoliation from the outset. This case therefore sets a precedent in her view, “nothing has changed” in the French administration’s hostility towards rights holders, more than twenty years after the recommendations of the Washington Conference.
The future of French provenance research on looted art
The Gimpel decision will surely have an impact on what critics call a record of “weak responses and inaction” on the issue of restitution. In December 2017, the Louvre unveiled two small rooms permanently displaying artworks that are known to have been looted. In June 2019, after a shaming report published the year before, the French Cultural Ministry Audrey Azoulay commissioned a task force, led by David Zivie, author of a report on looted cultural property submitted to the Minister of Culture on July 25, 2018 “and presented to her successor, Cultural Minister Françoise Nyssen, on the situation regarding the handling of looted cultural property in French national and public cultural institutions and necessary steps to address the current issues.” Its mission is to improve the efforts done by French museums by identifying looted works of art and looking for their rightful owners. According to the task force, nearly 100,000 items of cultural property were looted, seized or forcibly sold during the war. Half of these works have been returned, while the others are still circulating in the art market or are on display in museums. This holding will surely have an impact on future claims. It comes at a time when the Commission for the Compensation of Victims of Spoliation Resulting from Anti-Semitic Legislation in force during the Nazi-Occupation (“CIVS”) is hearing this year, the case for the sale of Armand Isaac Dorville’s collection in 1942 in Nice, sixteen of whose paintings are now in the Louvre Museum, Orsay, and the museums of Troyes and Nice. Twelve had been bought directly at this sale of Aryanization for the Louvre by the curator René Huyghe.
However, even if the task force recommends the restitution of a particular artwork held in a public collection, it cannot move forward without a deaccessioning law, which could take years to be adopted. To this day, artworks held by public museums in France are “inalienable”, meaning that they cannot be removed from the collection, except through an act of the French Parliament––which is a sensitive issue when it comes to the restitution of colonial artifacts. In contrast, the Court of Appeals has the power, thanks to the 1945 Ordinance, to declare null and void, purely and simply any museum acquisitions, so that these paintings by Derain were never their property.
- « Aujourd’hui, j’appelle solennellement tous les maires de France à s’engager résolument dans ce travail d’inventaire et de restitution car c’est notre devoir. » Le Figaro, Marseille restitue une toile d’André Derain spoliée et appelle les maires à un travail d’inventaire (Jan. 27, 2021). ?
- « Trop âgé pour se battre, il finance des réseaux de résistance, “notamment un réseau appelé Azure Transport qui achemine des armes dans des camions à charbon”, raconte sa petite-fille. » Vincent Noce, Les Derain de René Gimpel : les musées forcés à la restitution, La Gazette Drouot (Oct. 8, 2020). ?
- Cour de Cassation, 1re civ., 1er juillet 2020, n° 18-25.695 (n° 395 F-D). ?
- « La délibération, rendue par le tribunal le 29 août, a débouté la demande de la famille Gimpel, pour cause « d’incertitudes persistantes quant à l’identification des œuvres ». Barnebys, Les trois Derain ne seront pas restitués aux héritiers de René Gimpel (Aug. 30, 2019). ?
- Code du patrimoine, Art. L. 112-27. See also, TGI Paris, 29 août 2019, no 19/53387. ?
- « Le destin de René Gimpel est vraiment malheureux mais le dossier présenté par l’avocate de ses descendants comporte de nombreuses contradictions », a déclaré Béatrice Cohen, l’avocate du musée d’art moderne de Troyes, qui détient actuellement Paysage à Cassis et La Chapelle-Sous-Crécy. » Barnebys, Les trois Derain ne seront pas restitués aux héritiers de René Gimpel (Aug. 30, 2019). ?
- « Il n’y a aucun doute sur le fait que René Gimpel a possédé des Derain achetés en 1921 à Drouot, mais lorsque la famille essaie de retracer le cheminement des œuvres jusqu’à la guerre pour démontrer la spoliation, les numéros d’inventaire de peintures changent, leurs noms changent et leurs dimensions sont différentes ». Barnebys, Les trois Derain ne seront pas restitués aux héritiers de René Gimpel (Aug. 30, 2019). ?
- Conseil des Ventes, Le traitement des biens culturels spoliés, Commission pour l’indemnisation des victimes de spoliations intervenues du fait des législations antisémites en vigueur pendant l’Occupation (June 2017). ?
- Alexis Fournol, L’appréhension judiciaire de la spoliation des œuvres d’art, The Art Newspaper France (April 17, 2020). ?
- « Renversant le jugement de première instance, la cour note « l’existence d’indices précis, graves et concordants », suffisants pour juger que les trois tableaux sont bien issus d’une spoliation. » Vincent Noce, Les Derain de René Gimpel : les musées forcés à la restitution, La Gazette Drouot (Oct. 8, 2020). ?
- « L’État, rétorque-t-elle, ne doit pas exiger de preuve impossible à rapporter », dans des circonstances aussi dramatiques et quatre-vingts ans après les faits.» Vincent Noce, Les Derain de René Gimpel : les musées forcés à la restitution, Gazette Drouot, (Oct. 8 2020). ?
- Ordonnance n. 45-770 du 21 avril 1945 portant deuxième application de l’ordonnance du 12 novembre 1943 sur la nullité des actes de spoliation accomplis par l’ennemi ou sous son contrôle et édictant la restitution aux victimes de ces actes de leurs biens qui ont fait l’objet d’actes de disposition. ?
- Christiane Gentili di Giuseppe et al. v. Musée du Louvre, Cour d’appel de Paris, Chambre 1, section A, 2 juin 1999, n° 1998/19209. ?
- « À ses yeux, « rien n’a changé » dans l’hostilité de l’administration française envers les ayants droit, plus de vingt ans après les recommandations de la conférence de Washington ». Vincent Noce, Les Derain de René Gimpel : les musées forcés à la restitution, Gazette Drouot, (Oct. 8 2020). ?
- France 24 News, La France a ordonné de rendre trois tableaux de Derain aux héritiers du marchand juif René Gimpel (Oct. 3, 2020). ?
- Louise Carron, On Law, Museums and Nazi-era Looted Art in France and the United States, Center for Art Law (April 16, 2018). ?
- David Zivie, « Des traces subsistent dans des registres… » Biens culturels spoliés pendant la Seconde Guerre mondiale : une ambition pour rechercher, retrouver, restituer et expliquer, French Ministry of Culture (Feb. 2018). ?
- Id. ?
About the Author: Angélie Pompée is a French law student focusing on Art and Cultural Heritage Law. She studied European and international law at the Catholic University of Lille. She obtained an LL.M. in German law at the Johannes Gutenberg University. She studied art market law and taxation at the University Jean Moulin Lyon III. She is currently a student in Master 2 Trilingual Jurist at the University of Nantes. Passionate about art, she obtained a Bachelor’s degree in Art History at the University Panthéon-Sorbonne Paris I. She can be reached at firstname.lastname@example.org.