Did publication of Klimt catalogue by Yale Press subject Austria to lawsuit in US?

01/03/2002

Austria seeks to stop California lawsuit against it for alleged Nazi loot
los angeles. In oral arguments before a federal appeals court here in March, two key questions seem set to dominate the most recent US lawsuit seeking to recover art long held by an Austrian entity and now claimed as Nazi loot. These are not the facts, which for the moment are assumed to be that the Nazis stole from Ferdinand Bloch-Bauer, an Austrian Jew, his vast collection of porcelains, paintings and Klimts and gave it to Hitler, Goering and others. Instead, the two questions will be whether Austria, a foreign sovereign state normally immune from suit in the US, can be sued in California because the Klimts were taken in violation of international law, and because the Austrian National Gallery (ANG) engaged in "a commercial activity" here including publishing a catalogue through the Yale University Press. Austria says it is a foreign state and cannot be sued at all. The claimant, the 85-year-old niece and an heir of Bloch-Bauer, says it can be. The appeals court granted expedited review because of Ms Altmann's advanced age.

In May 2000, the federal trial court ruled that Ms Altmann could sue Austria on her claim that it return six Gustav Klimt paintings allegedly stolen by Nazis from Bloch-Bauer and now in the collection of the ANG. In a first ruling of its kind, the court said that Ms Altmann had established a substantial claim that the Klimts were taken in violation of international law-not just by Nazi "aryanisation", but a second time when Austria itself required that the family "donate" the Klimts to its national collections after the war in order to obtain export permits for other works of art the family wanted to remove. Ms Altmann says that the wartime director of the ANG "participated directly in the looting" of Ferdinand's paintings. Austria's appeal of the lower court decision is now before the US Circuit Court of Appeals for the Ninth Circuit.

Under US law, the Foreign Sovereign Immunities Act (FSIA) provides that foreign governments cannot be sued in the US, and that is what Austria and the ANG are telling the appeals court. But Ms Altmann says her claim fits an exception where the FSIA does allow suits against foreign states: cases concerning property taken in violation of international law. To meet this exception, the property must be owned or operated by an agency of the foreign state which engages in "a commercial activity" in the US. That is where the Yale University Press and credit card charges by US cardholders at the ANG come into play.

The ANG is "engaged in a commercial activity in the US," Ms Altmann says, as evidenced by its publication in the US of a book with the Yale University Press, Klimt's women, featuring three of the allegedly looted Klimts. Additionally, an English language guide book edited and published by the ANG has been available for purchase in the US, featuring one of the claimed paintings, a picture of Ferdinand's wife Adele Bloch-Bauer, on the cover, Ms Altmann says. The ANG advertises its exhibitions in the US, attracts US tourists, and accepts funds including American credit card payments when those tourists visit the museum in Austria, Ms Altmann says. In fact, the unlawfully expropriated property is at the heart of the ANG's commercial activity here, Ms Altmann says, adding that the ANG "is deriving income in the US from its unlawful retention of the paintings sought in this action." Ms Altmann asked the ANG to produce its publishing agreement with Yale, "records of credit card transactions by American visitors to its museums," and its advertising efforts related to a Klimt exhibition. But the ANG refused, Ms Altmann says. Austria says that the books are published and sold by third parties.

In terms of "personal" jurisdiction, meaning generally the fairness of bringing Austria and the ANG into court in the US, Ms Altmann says that the two should be subject to lawsuit here because they could foresee being sued here. They knew she lived here and that they were hiding facts from her to avoid returning the Klimts, she says. Despite this, the two entered the US to sell books and to seek to attract US travellers to their museum, "whose money and credit card payments they accepted," Ms Altmann says. They could therefore "reasonably foresee being haled into court" for their unlawful holding of paintings belonging to a US resident, she says. She adds that Austria has maintained a consulate in the US for many years.

Austria is no place for her claim to be fairly heard, Ms Altmann is telling the appeals court, because the Austrian court has required her to pay her entire life savings to proceed, $200,000, saying that "savings accounts may not be spared to the disadvantage of the general public." Austria is now requiring $2 million in court fees, Ms Altmann says. She also argues that Austria refuses to waive statute of limitations defenses, meaning that the claim for the paintings can be dismissed as too late in Austrian courts. The lower court agreed with Altmann on these points.

In interesting contrast, US museums, under guidelines set by museum groups for dealing with Nazi-looted art, may "waive certain available defenses" in Nazi-looting cases, presumably including statutes of limitation.

Martha Lufkin