Legal Opinion

regarding the question of whether, in the period between 1923 and 1948, the Republic of Austria acquired a claim to or ownership of the paintings Adele Bloch-Bauer I, Adele Bloch-Bauer II, Apple Tree I, Beech Forest (Birch Forest), and Houses in Unterach am Attersee, and whether, pursuant to § 1 of Austria's Federal Act Regarding the Restitution of Artworks from Austrian Federal Museums and Collections dated 4th December 1998, authority exists to restitute the paintings without remuneration to the heirs of Ferdinand Bloch-Bauer.

Professor Rudolf Welser
Professor of Civil Law and
Chairman of the Institute of Civil Law, University of Vienna
and
Assistant Professor Christian Rabl
Assistant Professor at the
Institute of Civil Law, University of Vienna

Brief Summary of the Main Conclusions

I. In the period between 1923 and 1948, the Republic of Austria did not
   acquire a claim to or ownership of the Klimt paintings.

1. Adele Bloch-Bauer's testamentary request to her husband Ferdinand Bloch-Bauer to leave the paintings to the Austrian Gallery after his death constitutes a non-binding wish, and therefore does not constitute the basis for any estate law claims. Even if one assumed there was an intention to establish an obligation, that testamentary order would be ineffective, as it would encroach upon Ferdinand Bloch-Bauer's testamentary freedom. It would only be possible to convert the ineffective testamentary order into a reversionary-heir legacy if the paintings were the property of Adele Bloch-Bauer. A conversion of this kind is impermissible, as it would encroach upon testamentary freedom if the paintings were the property of Ferdinand Bloch-Bauer. Ferdinand Bloch-Bauer 's declaration to the probate court, and the legal presumption pursuant to § 1237 (old version) of the General Civil Code, are indications that the paintings belonged to Ferdinand. Moreover, one cannot infer from Adele Bloch-Bauer's will that she believed the paintings belonged to her.
    
2. In making his declaration to the probate court that he intended to faithfully fulfill his wife's request, Ferdinand Bloch-Bauer merely non-bindingly held out the prospect of fulfilling that request. In doing so, he did not establish a binding legal obligation with regard to the Austrian Gallery that he would bequeath the paintings. In any case, it would not have been legally feasible to establish a binding obligation of this kind, because not only did Ferdinand Bloch-Bauer have no intention of establishing an obligation to make a donation due upon death, but also the formal requirements were not met. Furthermore, Ferdinand Bloch-Bauer's statement of intent is definitely not an indication that he wished to donate the paintings to the Austrian Gallery during his lifetime. Even if one were to assume he intended to bind himself in this way, the formal requirements (a notarial act) were not met, nor was there an actual surrender of the paintings.
    
3. The sale of Adele Bloch Bauer I, Adele Bloch Bauer II and Apple Tree I to the Austrian Gallery and of Beech Forest (Birch Forest) to the Vienna City Collections by Dr. Führer, the lawyer officially assigned the task of liquidating Ferdinand Bloch-Bauer's assets between 1938 and 1945, cannot be deemed a legal transaction attributable to Ferdinand Bloch-Bauer. The sale neither constituted the basis of nor fulfilled an obligation on the part of Ferdinand Bloch-Bauer.

II. The prerequisites for authorization to restitute the paintings to the
   heirs of Ferdinand Bloch-Bauer without remuneration pursuant to § 1
   of Austria's Federal Act Regarding the Restitution of Artworks from
   Austrian Federal Museums and Collections dated 4th December 1998
   are met.

1. The legal element set forth in § 1 Paragraph 3 of the Restitution Act 1998 is not applicable. Nevertheless, the paintings do fulfill the wording of the legal element regarding restitution set forth in Paragraph 2: As a result of Dr. Führer's transactions, all the paintings were the subject of legal transactions or legal acts as defined in § 1 of the Annulment Act, and after 1945 passed lawfully into the ownership of the Federal Government pursuant to an agreement between Ferdinand Bloch-Bauer's heirs and the Austrian Gallery. However, in light of the legislator's intentions, § 1 Paragraph 2 must be interpreted restrictively, such that it applies only to acquisition from third parties, in particular from authorized dealers or at auctions. Paragraph 2 does not apply to acquisition from parties with a valid claim, because if it did, Paragraph 1 would lose its entire sphere of applicability.
    
2. The prerequisite for authorization pursuant to § 1 Paragraph 1 of the Restitution Act 1998 is that the artworks were the subject of restitution to their original owners or legal successors upon death and after 8th  May 1945 in the course of proceedings arising therefrom passed into the ownership of the Federal Government without remuneration pursuant to the federal Law Regarding the Ban on the Export of Objects of Historical, Artistic or Cultural Significance.
   
   Adele Bloch Bauer I, Adele Bloch Bauer II, and Apple Tree I were not restituted; instead, Ferdinand Bloch-Bauer's heirs came to an agreement with the Austrian Gallery that the pictures should remain with the Gallery permanently, and that the heirs would not demand that they be restituted. In light of the legislator's intentions, a short-cut procedure of this kind is not a barrier to the applicability of Paragraph 1. The question of whether Houses in Unterach am Attersee and Beech Forest (Birch Forest) also fulfill that legal element hinges on whether the prerequisite for fulfillment of the legal element "subject of a restitution" as set forth in § 1 Paragraph 1 of the Restitution Act 1998 is that the artworks were first restituted by the Republic. If that is not a prerequisite, then those two paintings do fulfill that legal element.
   
   All the paintings were surrendered to the Republic without remuneration as defined in § 1 Paragraph 1, because the Federal Government gave no material quid pro quo, and Ferdinand Bloch-Bauer's heirs were not under any legal obligation. The transfer of ownership was carried out in direct connection with the offer to facilitate the granting of export permits for the remaining artworks. Indeed in her reply to a written parliamentary question about artworks in the possession of the Republic of Austria, the current Minister of Education, Science & Culture stated that there was an evident connection between the relinquishment of the paintings and the granting of an export permit.
    
3. To sum up: § 1 Paragraph 1 of the Restitution Act 1998 is applicable at least to Adele Bloch Bauer I, Adele Bloch Bauer II and Apple Tree I. Whether the same is true of Houses in Unterach am Attersee and Beech Forest (Birch Forest) depends on whether it is irrelevant that after 1945 the paintings were in the possession of Dr. Führer and the City of Vienna respectively rather than the Republic. In light of the practices of the Advisory Council established pursuant to § 3 of the Restitution Act 1998, on balance it is fair to say that § 1 Paragraph 1 is probably applicable to those two paintings as well.