ARTNews, Summer 2001
by Marilyn Henry
Opening Borders for Restitution

 A judge’s decision to allow Austria to be sued in the United States in a war-loot case could have far-reaching implications for legal actions against other countries

             Maria Altmann is in Los Angeles.  The six Gustav Klimt paintings she claims are hers are in the Belvedere in Vienna.  In an unusual ruling in a U.S. federal court, Altmann, the niece of industrialist Ferdinand Bloch-Bauer, has won the right to sue Austria in an American court for the paintings, which are form the collection her family lost during the Nazi era.

             The ruling, lawyers say, could have far-reaching implications for restitution lawsuits, providing an unexpected venue—American courts—for legal claims against European government institutions that have World War II-era artworks.

             Judge Florence-Marie Cooper of the U.S. District Court in Los Angeles, in an opinion issued in May, denied Austria’s motion to dismiss the lawsuit.  Austria argued that the American court had no jurisdiction because the U.S. Foreign Sovereign Immunities Act shileds foreign nations from being sued.  Judge Cooper ruled that there is an exception to immunity concerning property taken in violation of international law. Altmann, now 85, made a “substantial and nonfrivolous claim that a taking in violation of international law occurred” on at least two occasions, the judge found.  The first was when the paintings were seized by the Nazis from Altmann’s uncle in 1938; the second, when the Austrian government refused to return these paintings to Ferdinand Bloch-Bauer’s heirs after World War II.

             The Klimts, which are valued at $150 million, are owned by the Republic of Austria and exhibited at the Belvedere, the Austrian national gallery.  They are: Beechwood (1903), Apple Tree I (1911-12), Houses in Unterach am Attersee (ca. 1916), the unfinished Amalie Zuckerkandl (1917-18), and two famous portraits of Altmann’s aunt, Adele Bloch-Bauer I (1907) and Adele Bloch-Bauer II (1912).

             The ruling did not address the question of ownership.  Instead, it hinged on jurisdictional issues, determining that the court could hear the case and that Austria was not free from such scrutiny.  Judge Cooper also found that the Belvedere gallery, although on foreign soil, engaged in “commercial activity” in the United States, which further undercuts the argument for immunity.

             Austria’s Los Angeles lawyer, Scott Cooper (no relation to Judge Cooper), of the firm Proskauer Rose, is appealing the decision. meanwhile, judge Cooper’s ruling appears to allow lawsuits in the United States against other nations or national institutions for the recovery of plundered art in those countries.

             “It opens up the possibility that some government entity can be sued in this country when the art is not here,” says Thomas R. Kline, an attorney with Andrews & Kurth in Washington, D.C., who has handled many cultural-property cases.  high on the list of candidates for such suits would be Holland and Russia, Kline says, “because, to my knowledge, they are the two countries that have the largest quantities of disputed art.”

             A significant question raised by Judge Cooper’s ruling is what kind of “commercial activity” disqualifies a country form immunity in American courts.  Such activity, the judge wrote, need not be motivated by profit, and, for the Austrian gallery, included the publication of “a museum guidebook in English available for purchase by United States citizens” and the advertising of the collection in the United States.  The curt also noted that the Belvedere is visited by thousands of Americans each year and that it has lent the painting Adele Bloch-Bauer I to U.S. institutions.

             Information about the history of the Klimt paintings came to light after Austria began opening its archives in 1998 as the government was preparing legislation intended to restitute looted art in federal institutions.  Austrian journalist Hubertus Czernin gained access to Bloch-Bauer documents in the files of the Federal Monument Agency that, according to Altmann’s attorney, E. Randol Schoenberg, showed that the Austrian government had been misrepresenting the contents of Adele Bloch-Bauer’s will.  Austria has argued that Adele Bloch-Bauer bequeathed the paintings to the gallery.  Altmann contends that her aunt was not the owner of the paintings and had simply expressed the desire that her husband, Ferdinand, donate the paintings.  Adele Bloch-Bauer died in 1925.  Ferdinand Bloch-Bauer fled after the Anschluss and died in Switzerland in 1945.

             Because the six paintings are in Austria, the nation had argued that legal proceedings over the ownership of the works should be conducted in that country.  Altmann contended that the costs associated with filing suit in an Austrian court—which are determined by the amount in controversy—are prohibitive.  The American court agreed that court fees and the statute of limitations in Austria made those courts “an inadequate forum” to resolve claims.  Although Altmann is not indigent, Judge Cooper ruled, “the court finds that the filing fee required by the Austrian courts is oppressively burdensome.  Paying even the reduced amount would force an 85-year-old woman to expend a great majority, if not all, of her liquid assets.”