The French model of restitution and compensation for cultural property looted between 1940-1945. An original legal and administrative model

Close to eighty years later, the repercussions of World War II can still be felt in certain of today’s legal and administrative issues. This is the case with the looting of cultural property perpetrated notably against Jews in France during the Occupation. Wishing to repair the wrongs suffered by victims, the state put in place an original reparation model that gave persons seeking to recover looted cultural goods two ways of proceeding: the first (1.) by legal means, evidencing the desire for justice that France asserted early on, and the second (2.) by administrative means, established at the Liberation and relaunched after a period of latency in the framework of a public reparations policy in the decade of 1990-2000.

Legal restitutions ordered on the basis of the ordinance of 21 April 1945

Reacting against the looting policy led by the Vichy regime between 1940-1945,¹ after the Liberation, parliament adopted an ordinance on 21 April 1945² in continuity with measures that, since 1943, opposed forced expropriation and economic Aryanization.³ The text comprises two categories designed to enable owners of looted property to invoke the context of the Occupation to recover their confiscated property.⁴

Category I deals with the exceptional common law measures (lootings, forced sales, etc) carried out after 16 June 1940 and provides for their nullity (articles 1 and 2) without discriminating among victims: the 1945 legislator did not wish to mention in the law the specific persecution of the Jews (see below) and seems to have expressly chosen a euphemism (exceptional common law measures), leaving it up to jurisprudence to interpret it freely and in a way favorable to victims of anti-Semitic persecutions.⁵

Several important articles in this category insist on restoring victims’ rights, even if it is necessary to bypass certain fundamental principles of law, such as acquisition on good faith, the prescription of actions for the recovery of property, or acquisition by prescription. Thus article 4 considers as “acquirers of bad faith” the buyer or successive buyers of a work of art acquired, for example, in a sale under the provisional administration during the Occupation. That article was adopted recently in the Bauer et al affair, to the detriment of the Toll couple, who in good faith acquired a painting by Camille Pissarro, La cueillette des pois, initially confiscated from Simon Bauer and sold on October 1st 1943 by his provisional administrator.⁶ Contrary to the common rule that protected the buyer’s good faith, by article 4 that considered successive buyers to be of bad faith, the legislator of 1945 gave precedence to the interests of the looted owner.⁷ This reasoning prevails still today, including in regard to certain basic rights (property rights and the right to fair trial).⁸ One of the features of the 21 April ordinance that makes it an exceptional text is that the combination of its article 4 with article 21 – allowing the judge to release the dispossessed owner from expiry effects if he can prove, even in the absence of a force majeure, that it was materially impossible for him to act during the six-month period following the end of the war – gives it a virtually timeless reach.⁹

This explains why, though the ordinance wasn’t mobilized by a judge for approximately 50 years after 1950, it was reactivated in 1999 by the Paris appeals court as the basis for a restitution decision concerning five paintings listed on the MNR registers (Musées Nationaux Récupération). In that case, the judge did not hesitate to release from expiry effects the heirs of Federico Gentili Di Giuseppe, whose collection had been sold under the provisional administration during the Occupation.¹⁰ The 21 April 1945 ordinance has been used twice since then in the Simon Bauer and Gimpelet al affairs,¹¹ and is being mobilized at the present time by the heirs of Armand Dorville to establish the nullity of the sales of his collection organized during the Occupation.

The 1945 legislator was nonetheless aware of the fact that all the risks incurred during the Occupation were not covered by Category I of the ordinance. Other forms of spoliation had to be dealt with, as described in the London Declaration of 5 January 1942¹² and the aforementioned ordinance of 12 November 1943. For that reason, Category II of the 21 April 1945 enlarged “forced acts of disposal” to those “accomplished with the consent of the dispossessed owner and related to property, rights and interests not having previously been the object of exceptional measures of common law.” Article 11 in particular declares that certain acts accomplished with the consent of the person involved “will be presumed to have taken place in a context of violence.” The judge could then allow Jewish persons to benefit from that measure, inferring that since they lived under racial laws, they were exposed to “considerable and omnipresent harm,” that is, violence in the sense of the civil code (former article 1112). This provision opened the way to nullifying actions for transactions that appeared legal involving works of art. However, article 11 specifies that the presumption of violence is rebuttable when the transaction took place by means of a fair price. When the fair price exception is accepted, it is up to the claimant to prove the transaction took place under duress. If he can do so, he can obtain the nullity of the transaction and the restitution of the property, subject to the reimbursement of the price paid. The main difficulty here is in the fact of showing such proof. This is why in the case of the Derain paintings looted from René Gimpel during the Occupation, although Gimpel et al felt that article 11was applicable to their case, the Paris appeals court ruled in their favor, but after analysis of forced sales on the sole basis of article 1.

Although rare, between 1999-2020 three restitutions were pronounced by the judge on the basis of the ordinance of 21 April 1945, out of a total of nine cultural properties pillaged during the Second World War.¹³ The reactivation of this text more than fifty years after its adoption is not a matter of chance, but as part of a public reparation policy in connection with the persecution and despoiling of Jews during the Occupation. 

Administrative reparations resulting from a public policy of reparation

At the Liberation – backed up by a legal basis adopted early on by the Comité français de liberation nationale (CFLN) which condemned and disallowed common law exceptional disposal acts committed during the Occupation – France adopted a system of reparation of looted property that mechanically compensated many Jewish victims, also the government hadn’t wanted to create a specific category of victims, as can be seen in the 21 April 1945 ordinance, at a time when national unity was indispensable to the country’s moral and material reconstruction.¹

The process of material restitution resided with the Office des biens et intérêts privés (OBIP²) in charge of identifying property of all kinds looted from individuals, and with an entity specifically competent in the recuperation of looted artworks, the Commission de récupération artistique (CRA),³ created by the 24 November 1944 decree of the minister of National Education.⁴ The two administrations cooperated notably for the restitution to their owners of all movable cultural property looted between 1940-1945.

While the overall number of movable cultural assets looted during the Occupation is estimated at 100,000, approximately 60,000 objects were returned to France after having been found, though all had not been looted.⁵ A little more than 45,000 were identified and restituted to 416 owners. There remained however around 15,000 objects that had not been claimed or identified by the state. Having set a prescription time after which no claim could be registered, it was decided that unclaimed objects would be given over to the Domaines administration.⁶ The decree of 30 September 1949⁷ thus established two ad hoc committees known as “choice committees” in charge of selecting among the 15,000 objects, those worthy of public collections.⁸ Between October 1949 and June 1953, the choice committees selected approximately 2,100 cultural assets temporarily entrusted to the National Museums while awaiting possible restitutions. These objects were registered in the inventories called Récupération and since then known by the acronym MNR (Musées nationaux Récupération). As for the 13,000 objects not selected, they were given over by the OBIP to the Domaines administration and sold for the benefit of reconstruction.

In the beginning of the 1950s the number of claims decreased and restitutions slowed down. This can be explained by the resignation on the part of families and by public determination more preoccupied with reconstruction than with reparation.⁹ Only six restitutions of movable cultural goods were registered between 1953-1993.¹⁰ Hence it was in the 1990s that a new period of restitutions began, with certain investigations by journalists¹¹ and academic research¹² bringing to light a true “vanished museum”¹³ scattered in French collections, embassies and ministries, insisting on a debt of reparation that forced the authorities to react. In a speech pronounced on 16 July 1995 at the commemoration of the Vel d’hiv Roundup, the French president, Jacques Chirac, declared that the Republic retained an “imprescriptible debt” towards its victims. This was the starting point of a public reparation policy to be put in place following the conclusions of the Study Mission on the looting of French Jews, presided by Jean Mattéoli, a mission born out of an international context that sought to bring to light the problem of property looted during the Second World War.¹⁴

The Mattéoli Commission completed its report in 1999, and on its recommendation, the CIVS was created (Commission pour l’indemnisation des victimes de spoliations intervenues du fait des legislations antisémites en vigueur pendant l’Occupation¹⁵), as a non-jurisdictional reparation body to deal with individual requests, reporting to the Prime Minister and competent to recommend compensation or restitution of movable property looted during the Occupation. As a mission for justice, the CIVS devised an original mode of consultation, based on fairness and case by case investigation; this casuistry of fairness was meant to favor the articulation between respect for the law in force and the moral duty of reparation. The exceptional nature of such a procedure in common law can only be understood in terms of the above-mentioned reparation policy, adopted in a social and political context which, as of 1970, recognized the genocide of the Jews as the major element of the war and as of 1995, when the French state officially recognized its responsibility in the persecution of the Jews during the Occupation.

Although the CIVS had a mixed record for the restitution of cultural assets up to 2010, beginning in 2013, with the proactive search for despoiled owners,¹⁶ and especially after 2018, with the self-referral of the commission¹⁷ and the endowment with new funds.¹⁸ Law n° 2022-218 of 21 February 2022 on the restitution or return of certain cultural assets to the heirs of the original owners who were victims of anti-Semitic persecutions describes in part these encouraging results.¹⁹

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Based on the principle of a debt of justice towards victims, the originality of the French model for the reparation of the looting of cultural assets is contained both its dual, legal and administrative nature and its quasi-imprescriptibility. Yet however exemplary, it is a policy that will inevitably be confronted with important ethical challenges. First of all, that of the end of reparations (restitutions and compensations), which in law poses the question of prescription, but also that of the acceptable generational level connecting the direct victim to heirs claiming reparation.²⁰ Therein lies the difficulty and ambiguity of asserting the political will to repair an imprescriptible debt.