Restitution Lawyer Olaf Ossman provides his personal view on the decision by the Art Commission in Basel not to return the painting 'The Muse Inspiring the Poet' by Henri Rousseau.
“The Art Commission (of the Kunstmuseum Basel) accompanies, advises and supports the museum management. It essentially decides on purchases, donations and legacies and approves loans from the museum's collection. Its members are elected by the Government Council of the Canton of Basel-Stadt and by the University of Basel”
In its previous decision in the case Kurt Glaser heirs vs. Kunstmuseum Basel the Art Commission set out its responsibilities and independant role in considering cases of looted art at the Kunstmuseum Basel:
“According to Paragraph 4 Section 1 Letter a of the Act on the Museums of the Canton of Basel-Stadt of December 19, 2000 (Museum Ordinance, SG 451.110), the Art Commission decides, among other things, on “purchases into the museum's collection, insofar as the commission “does not delegate this task to the respective directorate”. The current art commission considers that it has the responsibility to comment on the possible consequences of these purchases.
The art commission covers a wide range of historical, artistic and art-historical, legal, political and social knowledge. It considers itself competent to consider the validity of restiution claims such as the one at hand, especially because such claims involve not only legal but also moral considerations (see Chapter V. 2. a. Washington Principles).”
Unfortunately, a national Independent Commission does not exist (so far) in Switzerland.
The art commisssion's decision clearly and unequivocally describes the initial situation:
The art museum “Kunstmuseum Basel” acquired the painting The Muse Inspiring the Poet (La muse inspirant le poète / Apollinaire et sa muse, 1909) by Henri Rousseau in 1940 from Countess Charlotte von Wesdehlen (1877–1946), then divorced from her husband Mendelssohn-Bartholdy and whose maiden name was Reichenbach. She was a dual citizen of Switzerland and Germany of Jewish origin who had to leave her hometown of Berlin due to the discriminatory activities of the Nazi regime. The sale took place because she had no assets in Switzerland, could not access her finances on her German bank accounts and urgently needed money. She herself said that she sold the painting because she had to – “car il le faut”, as she wrote to the wife of the art broker who arranged the deal. Despite its real value, the museum paid 12,000 CHF for the work, although both the broker and the museum director knew that at least 20,000 CHF would have been appropriate. On the free market, the painting might have brought 40,000 CHF, while some in Zürich even spoke of 60,000 CHF.
When one reads this, a clear picture emerges. The phrase “urgently needed money” would in my view be better worded as “had to earn her living”.
According to this summary, I believe all the criteria required to declare the sale a forced one are fulfilled: the fact that she was persecuted as a Jew and forced to flee, the desperate situation she found herself in because of this persecution, and the unduly low purchase price.
The deliberate confusion caused by the art dealer Bernoulli relating to a supposedly necessary exempting certificate (Freischein), only to obtain a right of first refusal for the museum and thus a fixed price, came "on top", so to speak.
Despite this, the work will not be returned to the heirs in restitution. Anyone who is not particularly familiar with the topic should pay attention here. How can that be?
How the Art Committee in Basel arrived at its decision not to return the painting in restitution is clear from parts of the explanatory text. According to decision-making criteria devised by the Committee itself, it states that “this case is characterised by the following elements”, namely the fact that
a) the sale took place in a third country outside of the Nazi area of influence,
b) the vendor, as a Swiss citizen, did not have to fear being deported despite belonging to the collectively persecuted group,
c) the sale would hardly have taken place without Nazi persecution (causality),
d) the vendor relied on the sale to pay for her costs of living,
e) the vendor was able to freely dispose of the sales price,
f) the sales price was unduly low.” 
The order in which the criteria are presented is, of course, not arbitrary, and also finds no precedent, either in the Washington Principles nor in any other statement.
What does this tell us? Firstly, it reveals the perspective from which the case is viewed. And that is solely the perspective of the current owner. The criteria relevant for the decision follow at the end and points e) and f) are copresented in a reversal: if a purchase price, as in this case, is established to be particularly inadequate, then the fact that the vendor was able to freely dispose of the money from the sale is totally irrelevant. Notably, however, the commission's report does not specifically mention what element of the proceeds of sale could actually be freely disposed of. The situation under customs law, which played such a decisive role for this particular transaction “remains somewhat in the dark, and yet does not seem to have been a particular burden, if at all.” 
I will refrain from any further comment on the fact that point c) (the sale would not have taken place without Nazi persecution) is expressed with a mere “hardly”, instead of using a clear “not” without presenting any evidence to the contrary. This changes nothing concerning the fulfilment of the criteria for a forced sale.
I now want to focus my attention on the obviously decisive first two criteria: a) “sale took place in a third country” and b) “while she was subject to collective persecution as a Jew, she was nevertheless protected in Switzerland by the Swiss citizenship she gained from her husband”.
The assessment concerning point a) is based only on the common view that Jews who were persecuted, disappropriated and deported in Germany from 1933 to 1945 were judged as having suffered to different degrees depending on what state of flight they currently found themselves in and what status the country of often temporary residence offered them. The genocide of the Jewish people perpetrated by the Nazis and their often-international accessories did not end, as is commonly known, at the German borders for those affected. The persecution and war situation, which got worse year for year and month for month, meant that Jews could never have any real kind of “safety” in a European state. We know, in particular, from the often-cited case of Max Emden and his son Hans-Erich Emden that neither being christened, nor having Swiss citizenship offered protection from persecution.
From the perspective of the victims, exiting Germany to enter Switzerland did not change their real situation to such an extent that one could speak of a self-determined life in freedom from that point in time onwards.
The decision clearly describes how the persecutory measures in Germany devoured every liquidity and what remained was then “blocked” and therefore unavailable. The fact that the seizure and blocking in this case was not followed by confiscation was of no consequence whatsoever for the victim and was also outside of her sphere of influence. Even if some kind of legal options had been available, the practices at that point in time show us that these could not be asserted by Jews. This also applies in respect of hypothetical maintenance payments from her husband in Germany, who lived from a meagre pension and for whom the necessary financial means from the estate of the mother of the Countess of Wesdehlen also remained unattainable (and I only refer by the by here to the complication due to his “mixed marriage” under the National Socialist laws of that time). These payments were also prohibited and excluded by the requirements of German foreign currency laws.
This leaves point c) stating that the vendor at the time was protected from deportation from her citizenship status. The first question that arises here is whether precisely this matter does not take the entire attempt to remove the “sales in third countries” argument per se from the area of application of the Washington Principles or downgrade it to a “lower category” ad absurdum, at least for the large majority of the cases where this “risk of deportation” certainly did exist.
It is without doubt that Countess von Wesdehlen did have a certain advantage in having her husband’s citizenship, both in terms of fleeing to Switzerland and being resident there. One must not forget, however, that the originally irrevocable basic principle by which a citizenship of Switzerland can never be rescinded once it has been issued was relativised by two decisions taken by the Bundesrat, of all years in 1940 and 1941. Accordingly, it was possible in the case of dual nationality to withdraw Swiss citizenship if an “obviously non-Swiss attitude” could be ascertained. It was no coincidence that this was very close to the “non-German attitude” that Jews were often accused of under German law. Furthermore, it must also not be forgotten that Switzerland hesitated to grant diplomatic protection to Jewish citizens of Switzerland residing in another state. And one must also not fail to mention the dangers faced by Jews in Switzerland in connection with a potential occupation of Switzerland following France’s capitulation. This led many Jews who had lived in Switzerland for a long time to flee, as they saw this danger as a very real one.
However, to understand this conflict situation, one must consider it from the perspective of the people who were persecuted and in danger at the time. By doing so, one recognises the fact that any possible tax claims on the use of goods brought into the country while moving due to the emergency situation in which Countess von Wesdehlen found herself led to a total loss of the remaining goods she had when she moved countries thus robbing her of her last chance to shape her future. That would have rendered every further, perhaps necessary flight as well as her ability to cover her costs of living in Switzerland impossible. A situation in which her right to Swiss citizenship would have been of no help to her, as she was not entitled to any social welfare benefits whatsoever there.
What the decision fails to mention, or what at least did not play a role in the decision, is the fact that the current owner, the Kunstmuseum Basel, itself played a role in the acquisition, fully aware of the circumstances in which the vendor found herself, and yet apparently still did everything it could to use the situation to its own advantage. I do not share the confidence of the Cultural Committee that a Swiss civil court would grant the Museum the protection of good faith under these circumstances.
That is why, following the decision by the Art Committee in Basel, I still believe that the proper thing to do would be to return the work of art to the heirs. It would make the Museum look good if, in the few cases where it is possible to “repair” these matters through a clear gesture of justice, it did so instead of carrying out renewed negotiations about “degrees of persecution” and values.
When an independent commission begins its work in Switzerland and issues recommendations on cases of persecution-related confiscation of cultural property, I belive that the descendants should have a better chance of having their case examined and decided upon independently.
Olaf Ossman is a partner of the Ossman Group which specialises in the recovery of Holocaust era assets. He was not involved in this case.
 Self-definition here: https://kunstmuseumbasel.ch/de/museum/kunstkommission
 Decision Cultural Commission in the case Glaser https://kunstmuseumbasel.ch/de/forschung/provenienzforschung/curtglaser
 Decision Cultural Commission in the case Glaser, page 6 https://kunstmuseumbasel.ch/de/forschung/provenienzforschung/curtglaser
 The complete decision can be found here: https://kumu.picturepark.com/s/LrvhJe3p
 Decision by the Committee in the matter pertaining to the work by Henri Rousseau/Le Douanier (1844–1910) The Muse Inspiring the Poet (1909) oil on canvas, 146.2 x 96.9 cm, 33.2 kg, Inv. 1774 from 20 Dezember 2023, page 1-2
 Decision by the Committee in the matter pertaining to the work by Henri Rousseau/Le Douanier (1844–1910) The Muse Inspiring the Poet (1909) oil on canvas, 146.2 x 96.9 cm, 33.2 kg, Inv. 1774 from 20 December 2023, page 51
 Decision by the Committee in the matter pertaining to the work by Henri Rousseau/Le Douanier (1844–1910) The Muse Inspiring the Poet (1909) oil on canvas, 146.2 x 96.9 cm, 33.2 kg, Inv. 1774 from 20 December 2023, page 52
 Bundesrat decision concerning an amendment to the regulations pertaining to the attainment and loss of Swiss citizenship from 20 December 1940, (AS 56 2027); Bundesrat decision concerning an amendment to the regulations pertaining to the attainment and loss of Swiss citizenship from 11 November 1941 (AS 57 1257)
 See the fate of Jewish art dealer Max Moos, who already decided to stay in New York in 1939, as he feared that Switzerland would become occupied leading to persecution there: https://www.metmuseum.org/research-centers/leonard-a-lauder-research-center/research-resources/modern-art-index-project/moos (accessed on 19.01.2024)
Blogs are written by Art Lawyers Association members and reflect their personal views. They do not represent the views of the Association