Art Law: The Lost Art Database before the Federal Court of Justice

The Federal Court of Justice (BGH) (ruling of July 21, 2023 - V ZR 112/22) recently had to deal with the question of whether a search report based on true facts for an art painting via the so-called Lost Art Database on the Internet impairs the current right holder in his property right and must therefore be deleted.

Facts

The plaintiff is an art collector who acquired the painting "Calabrian Coast" by the painter Andreas Achenbach at an auction in London in 1999. The work of art in question was the following:

The painting had an eventful past: it was owned by the Stern Gallery in Düsseldorf from 1931 - 1937, which was then run by the Jewish art dealer Max Stern. In March 1937, Mr Stern sold the painting to a private individual in Essen before the National Socialists finally forced him to give up his gallery a few months later. Mr Stern fled to Canada to escape Nazi persecution. After his death, his estate was administered by a Canadian trust of which the defendants are trustees.

In June 2016, the defendants initiated a search alert for the painting on the Lost Database website (www.lost-art.de). This site publishes search and found reports on cultural property that was taken from Jewish owners as a result of persecution under National Socialism or for which a loss cannot be ruled out. The aim of the database is to establish contact between former owners or their heirs with the current owners in order to find a just and fair solution together regarding the whereabouts of the lost cultural property.

In the course of an exhibition of the painting, the plaintiff learned about the defendant's wanted notice. In addition, he learned that Interpol was also searching for the painting, as it had been reported stolen in Canada. The plaintiff felt that his ownership of the painting had been violated by the database entry and the search by Interpol and therefore demanded that the defendants refrain from claiming ownership of the painting in this way. Alternatively, the plaintiff requested that the search report be deleted from the Lost Art Database.

Reasons for decision

The BGH denied the plaintiff's asserted claims since an interference with ownership could not be established either by the database entry or by the Interpol search. 

No presumption of ownership

The BGH first confirmed that the entry of the painting in the Lost Art Database as well as the search entry at Interpol merely referred to the ownership position of the former right holder. This could not be objected to as an assumption of an ownership position and thus not as an impairment of property to be refrained from pursuant to Section 1004 (1) sentence 2 of the German Civil Code (BGB).

• The Lost Art Database serves solely to implement the so-called Washington Declaration of 1998, which is not binding under international law, on the handling of works of art lost during the National Socialist era. The former owners and their heirs of cultural assets seized under Nazi rule are to be located in order to reach a just and fair solution with them for the loss suffered. Legal claims for restitution are not established. Rather, the search notification merely refers to the former ownership of the work of art and the circumstances of the loss, without making any statement about the current ownership situation or any claims connected to it.
• A different view was also not warranted with regard to the entry of the painting in Interpol's database of wanted items, which merely referred to the loss of the painting and thus merely linked it to its former ownership. However, no statement is made as to whether the defendants would still consider themselves to be the owner of the painting even under today's legal situation.

No infringement of property, no deletion of the entry

For this reason, the plaintiff is also not entitled to the alternatively asserted claim for deletion of the search report in the Lost Art Database under Section 1004 (1) sentence 1 BGB, since the true facts underlying the search report only impair the plaintiff's property, but not his property, and therefore there is also no claim for deletion of the search report:

• According to Section 903 BGB, the owner's protection against encroachment includes being able to deal with the property as he pleases and to exclude others from any interference. The rights arising from ownership shall only be subordinated if the law or the rights of third parties’ conflict with the exercise of the ownership rights.
• The publication of a search report in the Lost Art Database does not affect the owner's right of exclusion because the allocation of ownership is not thereby called into question. The plaintiff's right of disposal is also not restricted, at least from a legal point of view.
• Factual information based on true facts about the suspicion of the loss of a cultural property as a result of Nazi persecution does not impair ownership, if only because the person concerned generally has to accept the assertion and dissemination of true facts. This also applies if this is disadvantageous for them, since the interest of former owners and heirs as well as the public interest in finding cultural property seized due to Nazi persecution outweighs the interest of the current owner in keeping such facts secret due to economic considerations.
• The publication of a search report would indeed restrict the marketability of the cultural property, which would have a detrimental effect on its value. However, a reduced profit expectation from a sale affects the owner of the cultural property only in his pecuniary interests and not in his ownership.

Practical advice

The ruling of the Federal Court of Justice opposes an excessive protection of property, which, beyond the factual property, also includes economic interests in assets as well as a reduced expectation of profit in the event of sale. In doing so, the BGH drew a clear dogmatic distinction between the factual property and the economic interests in the exploitation of the property that go beyond this and depend on external factors. In any case, the BGH established this for true factual allegations that are disseminated in relation to the matter and are capable of diminishing its value.

Fortunately, it is therefore henceforth possible to place search entries for Jewish looted art in the Lost Art Database without being sued for injunctive relief or even damages. This applies at least if the information provided is truthful. The same should apply in the event that the information provided corresponds to the current state of knowledge of the searcher.