If You Had Kept Silent. Art Law and Litigation-pr.

Interview with lawyer Dr Hannes Hartung, specialist and lecturer in art law, founder of the law firm Themis Rechtsanwälte


Dr Hartung, could you briefly outline what art law is all about? What do typical art law cases look like?

Art law usually deals with three major groups of cases. The first group revolves around questions of ownership in connection with the art looting by the National Socialists in the Third Reich - the buzzword "looted art" is on everyone's lips. The famous Schwabing art find belongs in this category. Many other spectacular cases (such as the "Swamp Legend" by Paul Klee in the Lenbachhaus, where I represent the City of Munich) have been widely discussed in the media and there is great public interest in them. I represent both the claimants, i.e. the heirs of Holocaust victims, and the claimed parties, i.e. museums or private owners.

Art law expert
Dr Hannes Hartung


The second group of cases is about the art market and the liability of dealers for errors in the valuation and marketing of art. For example, I represented the case of the most expensive carpet in the world. This very prominent case was about whether an Augsburg auction house was liable because it sold a very expensive 17th century Persian Kerman carpet significantly below its value. The auctioneer valued the carpet at 900 euros. Only half a year later, it was bought at Christie's for 7.2 million euros by the Princess of Qatar after a brilliant bidding battle. In the opinion of most art law experts, neither the Regional Court nor the Higher Regional Court of Augsburg judged correctly. It is obvious that even a Varia auction house has duties of care. The auctioneer himself admitted in court that he could not assess the carpet, but did not tell my client this. The principle of the honourable merchant in commercial law actually applies here, who tells his customer if he cannot assess something. The competent judge at first instance declared himself biased, but I concealed this. The media reported widely on this extraordinary case, and the sympathy for my client was rightly very great. It was not without good reason that there was talk here of homeland justice.

The third group of cases is the representation of collectors in their property rights, but also in their personal rights. To give an example: A well-known millionaire and big businessman was ripped off by a gallery owner because he had to pay five times the price the object was actually worth. Of course, art also has an objective value and pricing and marketing must follow fair and equitable principles. The interests of buyers and collectors must often be consistently represented here. In public and in the judiciary, the principle sometimes seems to apply: You can cheat a millionaire. The judiciary also seems to believe that he is not worthy of protection. This is a clear case of immorality due to usury.

The property rights of many collectors are also threatened in particular by the new Cultural Property Protection Act. A typical example is the Economou Collection, whose case I still successfully represented under the old law. The Greek collector Economou bought a number of prints by Otto Dix. The state of Berlin and also the state of Bavaria wanted to put the collection on the list of nationally valuable cultural assets. We then transferred responsibility to Frankfurt. In Frankfurt, the collection was presented to the expert committee of the State of Hesse. Not a single work was included in the list there. It is sometimes a highly political but also subjective question how decisions are made in art law: What, then, is of national value? Every expert will give you a different answer.

What does that mean for collectors in concrete terms?

There is a list of nationally valuable cultural property maintained by each federal state. Works on this list may only be exported with an export permit from the competent authority. This is a restriction on the content and limits of ownership. Collectors are no longer allowed to do with their property as they please. In the new Cultural Property Protection Act, the barriers are much higher still. There is a danger that collectors will be treated like fences or thieves as soon as they bring cultural objects that have been lost into circulation. This can happen very quickly.

Why are art law cases often so spectacular and attract such strong public interest?

These cases have that palatable mix that many readers are interested in. It's about the Third Reich, it's about beautiful pictures, it's about interesting protagonists. And of course it is also - which is terrible - about the Holocaust. I often represent cases that affect me deeply, such as that of Robert Graetz, who was murdered in a concentration camp. I am currently representing his heir and suing the family in Frankfurt that has one of his paintings - a Pechstein. The Frankfurt Regional Court ruled in the first instance that the claim for restitution was time-barred. To be honest, I am horrified by this and hope that we will get legal clarity in the next instance. The claim for restitution must not fail because of the statute of limitations.

How can litigation PR be used in such cases and what role does it play in your work?

It plays a very big role. For claimants, professional litigation PR is interesting because it is a better way of channelling public pressure and getting the facts right.

But litigation PR is also very important for the claimants, as their reputation is at stake. In many cases, looted art is claimed where there is no looted art at all. As a rule, it's all about money. In my experience, people like to use the Nazi connection and the smokescreen of the Holocaust to pursue financial interests. Often such cases collapse: It was not looted art at all, or the claimants were not heirs at all. Norman Finkelstein once described this very pointedly with the word Holocaust industry. In the USA in particular, a specialised legal industry has emerged. It profits from percentage-based bonuses, which in America can be as high as 50% of the value of the case. Just as an example: "Woman in Gold", the magnificent work from the Belvedere by Klimt, fetched 120 million dollars at Christie's.

Let's take a closer look at one of the most spectacular art law cases in Germany. You fought on the side of Cornelius Gurlitt in the so-called Schwabing Art Fund. Can you briefly describe what that was about?

The case began when Cornelius Gurlitt was stopped by customs with € 9,000 in his pocket on the train from Zurich to Munich. He was then suspected of dealing in art on a grand scale, of evading import VAT - in other words, of committing customs offences. On this suspicious basis, his entire art collection in Schwabing was confiscated. He was not accused of receiving stolen goods, but of tax evasion, specifically of import turnover tax (customs). The confiscation was therefore extremely questionable. The pictures were of no value as evidence. The claim of the public prosecutor's office in Augsburg was downright adventurous: it was permissible to seize an entire collection if there was a strong suspicion of import VAT evasion. Of course, that was not legal. The seizure was then also lifted very quickly after the procedural agreement.

We concluded this procedural agreement after discussions at the highest level with the Free State of Bavaria and the Federal Republic of Germany. It allowed face-saving provenance research for the German authorities, which of course had no legal basis beforehand. In it, Gurlitt agreed that provenance research could be carried out publicly for one year.

Would the authorities have had a right to confiscate the collection on the mere suspicion that it was looted art?

A clear no. A mere suspicion of looted art is not sufficient for a seizure under 102 Code of Criminal Procedure. The seizure would only have been permitted if there had been concrete factual indications of a serious catalogue offence. But there was nothing of the kind. If it had been a case of receiving stolen goods, the pictures would have had evidentiary value. But as it was, it was only a serious and completely unjustified encroachment on property rights.

The public prosecutor's office in Augsburg was responsible for the customs control at the border to Lindau - and completely overshot the mark. The normal way would have been to drop the case. By leaking the information to Focus, the issue then became known to the world public. The Focus report contained quite a lot of misinformation. But one has to give the media credit for one thing: The public was able to correct state misconduct in this way.

You have criticised the offensive communication policy in this case. In view of this worldwide media echo, would it have been possible at all to approach the issue defensively?

I think so. Litigation PR has made many mistakes here. Mr Gurlitt wanted silent representation, as was also manifested in his reclusive lifestyle. Communication can, and this example shows, come into massive conflict with personal rights by being too offensive. The media celebrated the communication as sophisticated and successful. In fact, however, it was diametrically opposed to the client's interests.

Some of the manoeuvres were also outrageous: On the one hand, we successfully prevent the publication of the Schwabing collection by the BILD newspaper before the Bavarian Administrative Court, but at the same time the strictly confidential list of the Salzburg collection we secured is leaked to the Süddeutsche. That doesn't look very professional. From a negotiation point of view, too, a lot of things went wrong as a result. For example, the media were informed about secret talks with the authorities and acted as if they were sitting at the negotiating table. I had the impression that the media tried to tell me how to negotiate the case and what headlines they wanted to write about it. I find that unbelievable. That cannot be in the interest of the client. Such disputes are not about the interests of the public, but of the parties who want to resolve highly sensitive and stressful issues together, fairly and justly. It is not the media or the public that decide cases, but the parties. False prejudices are often made too quickly here: the claimant is the good guy and the claimed party is the bad guy - to put it flatteringly, after the Gurlitt collection was described as a "Nazi treasure".

What is at stake today are the interests of two generally innocent parties, neither of which had anything to do with the Holocaust. Especially since in this particular case one could not even speak of looted art - that was one of the errors that the German government and the media kept spreading. The Gurlitt collection essentially consisted of his legitimate private property, which was nobody's business. Moreover, it consisted, if at all, of more than 382 exhibits of degenerate art, for which, according to very general opinion, there is no claim for restitution. Many museums therefore made me offers to buy them back.

Can you make the difference clear again?

Degenerate art is art that the Nazis have from our own German museums and sold them at ridiculous prices to art dealers such as Dr Hildebrandt Gurlitt, the father of my former client. You can read about this in detail in the so-called Fischerlste. It was not the owners who were persecuted, but the art as such. Basically, the German Reich stole from itself. That is a huge difference from looted art - which also existed - i.e. confiscations from Jewish collectors. In the reporting on the Gurlitt case, a third term was often used incorrectly: looted art. This refers to the theft of art by the state, for example from museums in occupied Russia or France. This is a term under international law that has been branded a war crime. Looted art is a crime against persecuted people. But once again: the Gurlitt collection consists of over 99 % of legitimate private property. It is strange that the public sector still does not accept this and spends over two million on provenance research, only to present as an interim result what I already said in 2014: That only a minimal fraction (according to the task force, just 5 paintings) could be confirmed as looted art.

Dr Hildebrand Gurlitt, Cornelius' father, was an art dealer of Adolf Hitler who bought up art in France, for example, for the Nazi art museum in Linz. But he also ran his own gallery, where he built up his own collection. Many say he entered into the "Deal with the Devil". But he was actually a protector and preserver of Degenerate Art. Hildebrand Gurlitt saved many masterpieces of German Expressionism from destruction. And once again: the Gurlitt Collection is a collection of Degenerate Art. Among 1500 works of art, in my opinion, a maximum of seven cases are questionable. He acquired two works in good faith after the war, not knowing that they were confiscated from the Rosenberg Collection. This has always been misrepresented in public. The only really difficult case is the Liebermann, from the Friedmann Collection - Gurlitt could at least have known in this one case that it was looted art. But still: we are talking about a maximum of 7 questionable cases among 1,500. To talk of a looted art collection here is simply absurd. So basically, unfortunately, the result is a rather successful attempt to cover up a judicial scandal with morals - and that is really perfidious.

What constitutes good litigation PR for you and what have you learned from this exciting case?

A litigation PR professional must consider the triangle of client, lawyer and communicator. She must protect the client's private property and personal and discretionary interests, if he so chooses. This sounds self-evident, but in my opinion it was absolutely not the case with the Schwabinberg art find.- It is important that the team works together harmoniously, that no one drops out or even pursues their own economic interests in dealing with the media. From Gurlitt's perspective - and many other collectors I know see it the same way - a defensive strategy would have been better. That would also have made negotiations with the authorities easier. The media should have been informed objectively, but kept at a distance. In my opinion, the personal rights of Cornelius Gurlitt - a shy person who was dragged into the public eye at an advanced age and died because of it - were massively encroached upon here. Boethius' motto would have been much more appropriate here: "If you had kept silent, you would have remained a philosopher".