Art and lawAustria can be sued in California on claim of Nazi-looted art Complicity by Austrian government is at heart of claim to Klimt paintings

01/01/2003

Complicity by Austrian government is at heart of claim to Klimt paintings
los angeles. The Republic of Austria is not immune to a lawsuit in California over six paintings by Gustav Klimt allegedly stolen from a Jew by Nazis, aided by representatives of what later became the Austrian National Gallery, a federal appeals court ruled here on 12 December.

The decision, a major defeat for Austria, is the third verdict by a US federal court to reject that country's arguments that it and Austrian entities cannot be sued in US courts on Nazi-looted art claims.

In an opinion that spoke far beyond the technical defenses urged by Austria in its court briefs, the highly respected US Court of Appeals for the Ninth Circuit repeatedly invoked the atrocities of the holocaust to say that Austria could have expected no immunity in US courts from lawsuits over Nazi looting, and that a federal statute allowing suits against foreign nations in certain cases, the Foreign Sovereign Immunities Act (FSIA), could therefore apply to pre-1952 events. The paintings are prize centrepieces in the collection of the Austrian National Gallery (ANG), a co-defendant in the case.

The ANG's alleged complicity in the wartime and post-war claimed expropriation of the paintings, and its unabashed use of the very same Klimts in advertising its exhibits to the US, are at the heart of the case.

The paintings belonged to Ferdinand Bloch-Bauer, a wealthy Jewish Czech sugar magnate whose magnificent art collection was stolen by Nazi chiefs, including portraits of his wife, Adele. Upon Adele's untimely death in 1925 "oblivious" to the coming terrors, she had left a will "kindly" requesting that Ferdinand leave the Klimts to the ANG.

It is this request which the California plaintiff, 87-year old US citizen Maria V. Altmann, Ferdinand's niece, says the ANG falsely shaped into an argument that it owns the paintings. Under US and Austrian law, Mrs Altmann says, such a request has no legal effect. Ferdinand's will left his estate to Mrs Altmann and two other heirs.

Austria has no claim to the Klimts whatsoever, says Mrs Altmann ; among her evidence is a 1948 letter cited by the court, in which Dr Karl Garzarolli of the ANG stated that there was "nothing in the files of the Gallery [that] would document the donation of the paintings" by Ferdinand or Adele. Austria kept this letter "hidden from Ferdinand's heirs," says Mrs Altmann.

A lower federal court ruled that if the allegations are true, the Klimts were twice taken in violation of international law, first in the Nazi era and, second, by Austria itself, in its notorious policy of requiring "gifts" of artworks from Jews seeking to take art out of the country after the war.

Mrs Altmann claims that an Austrian agency sought to "extort valid title to the Klimt paintings," the court said, and Austria could expect no immunity "for an act so closely associated with the atrocities of the war," wrote Judge Kim McLane Wardlaw for the unanimous three-judge panel. Austria's use of the Klimts in UK and US publications was enough "commercial activity" for it to be sued here, the court said.

The court rejected Austria's other arguments, including that California was not a convenient forum, that Central California was the wrong venue.

Martha Lufkin