Title: Rechtsgeschichtliches und juristisches Gutachten:
Author: Ronald Faber
Last saved by: vandenbergh

The Restitution of the Munch Painting
„Summer Night at the Beach“ 
in the Light of the Austrian Art Restitution Act 1998

Legal Opinion

by

Univ.-Prof. Dr. Franz-Stefan Meissel
Legal Faculty, University of Vienna^*

December 2005

* The legal opinion represents the author’s personal view.

Introduction

Marina Mahler, granddaughter and legal successor of Alma Mahler-Werfel requests a legal opinion on the question of the restitution of the Munch painting „Summer Night at the Beach“, formerly owned by Alma Mahler-Werfel, according to the provisions of the Austrian Art Restitution Act [KunstrückgabeG] 1998.
The first section of the legal opinion presents the circumstances of the case („historical background“). In order to do so, it gives an account of the course of the restitution proceedings and the attempts to reach a settlement by Alma Mahler-Werfel during the Post-War Era as well as Marina Mahlers more recent endeavors towards restitution and the denial of a recommendation to restitute by the Art Restitution Advisory Board [Kunstrückgabebeirat].
Subsequently, the reasoning of the negative opinion expressed by the Art Restitution Advisory Board is analyzed in the second section. Thereby the purpose of the Art Restitution Act 1998 and the prerequisites of a restitution in accordance with section 1 clause 2 leg cit in particular are examined.
Special attention will be paid to the legally binding rejection of the claim by the Upper Restitution Commission Vienna (URC) [Rückstellungsoberkommission Wien (ROK)] in 1953, the relevance of which for the question of a restitution according to the provisions of the Art Restitution Act is denied.
In this context, apart from a critical analysis of the URC’s decision in 1953, the legal valuations regarding the question of legally binding but in particular cases extremely unjust decisions, meanwhile laid down in the General Settlement Fund Law [EntschädigungsfondsG] 2001, are taken into consideration.

First Section: Historical Background

In the following, the circumstances of the case in question are presented in chronological order. This requires a distinction between the events during the Nazi regime (A.), the restitution procedures during the Post-War Era (B.) and the recent attempts towards restitution subsequent to the entering into force of the Art Restitution Act 1998 (C.).
The files stored in the Archives of Vienna [Wiener Stadt- und Landesarchiv] (which also include the files of the pre-proceedings) allow the reconstruction of the circumstances under which the Munch painting was sold, as well as the course of the restitution proceedings from the filing of the claim in 1947 until Alma Mahler-Werfel’s death in 1964. The proceedings before the Art Restitution Advisory Board are traced on the bases of the correspondence and the documents provided by Marina Mahler.

WstLA [Archives of Vienna], Regional State Court for Civil Matters, A 29 Restitution Commission Rk 216/61; the omnibus volume contains the order numbers 1 – 123 in volume 1 and 124 – 163 in volume 2 and consists of 556 pages all together.

The former file numbers of the proceedings Rk 216/61 are: 63 Rk 364/47, 63 Rk 1372/48, 63 Rk 187/53 and 3 Rk 96/55. The two proceedings before the URC Vienna have the file numbers Rkb 1116/48 as well as Rkb 186/53, the two revision proceedings before the SRC Rkv 219/48 and Rkv 152/53. Order numbers or file numbers cited in the following refer to the omnibus file Rk 216/61.

A. The Events during the Nazi Regime

First of all the biographical backgrounds of the persons involved shall briefly be recapitulated: Alma Mahler-Werfel was the daughter of the landscape painter Jakob Emil Schindler and his wife Anna Bergen. After Schindler’s early death, Alma’s mother married his pupil Carl Moll. From this second marriage another daughter called Marie originated. This half-sister Alma’s later married the jurist Dr Richard Eberstaller, a convinced National Socialist, who became Vice President of the Regional State Court for Criminal Matters [Landesgericht für Strafsachen] in Vienna. Alma Bergen-Moll died in 1938.
Alma Mahler-Werfel was married to Gustav Mahler, her second husband was Walter Gropius and her third Franz Werfel. The married couple Werfel sympathized with the authoritarian Schuschnigg regime and hastily left Austria on 13 March 1938. Alma Mahler-Werfel’s villa at the “Hohe Warte”, Steinfeldgasse 2, was confiscated by the Gestapo.
During the Nazi period Professor Carl Moll, together with his daughter and his son in law, resided at Wollergasse 10 in the 19th district of Vienna (directly opposite of Almas confiscated villa) and temporarily in the Villa Mahler in Breitenstein on the Semmering. This villa in the countryside had been given as a gift to her half-sister Marie Eberstaller by Alma Mahler-Werfel in June 1939. At the end of the war (in the night between 12 and 13 April 1945), Moll and the couple Eberstaller jointly committed suicide.

In the lawsuit Alma Mahler-Werfel against Anton Klement among others regarding the right of succession (21 Cg 294/47) the Regional State Court for Civil Matters states: „On the bases of the witness reports of Arch. Willi Legler, Anna Murauer, Therese Görtz and Ida Wagner-Gebauer as well as Stefan and Katharina Wallner it has been established, that the married couple Eberstaller had various moveable assets [namely numerous carpets, silver dishes, pictures, note] transported from the plaintiff’s villa [in Döbling] to the [neighboring] villa Eberstaller after the plaintiff’s departure in 1938, that these were property of the plaintiff and that Dr. Eberstaller had disposed of such objects in his last will of 11 April 1945... .“   (Judgement of 22 March 1948, page 89 of the file).

EZ 429 cadastral register Breitenstein. For the purpose of a gift Alma Mahler-Werfel, who had fled abroad, gives special authority to the lawyer Dr. Otto Hein, who should later-on represent her in the restitution proceedings.

According to one version Sovjet soldiers supposedly entered the house beforehand and wounded Carl Moll at his attempt to protect his daughter from being raped (So Menges, Carl Moll, Neue Deutsche Biographie, volume 17 (1994) 737). Sure enough the file contains the copy of a letter dated 10 April 1945 by Carl Moll to Drl. Ottmann, the Secretary of the Society of Museum Friends [Gesellschaft der Museumsfreunde], in which he announces the suicide beforehand: „We three have decided to go to sleep together and not to wake up again ... My son in law, however, as director, president of the Criminal Court will be arrested immediately and has the worst to fear as soon as the Bolsheviks take Vienna into their poessession ... I myself fall asleep without remorse and have had all the beautiful things life has to offer.“

Alma had given the pictures “Rocky Coast near Ragusa” by Jakob Emil Schindler and “Summer Night at the Beach” by Edvard Munch (together with two other pictures by Schindler, “Forest Road near St. Gilgen” and “Forest Path”, and a portrait of Alma by Oskar Kokoschka) as a two-year-loan to the Austrian Gallery at the Belvedere in 1937. The Munch painting had been a present from Karl Reininghaus to Alma on the occasion of the birth of her short-lived daughter Manon, after Alma’s then husband Walter Gropius had asked Reininghaus to sell the picture to him, so he could give it to Alma as a present. 

The acceptance of the pictures was confirmed with a writing of 2 August 1937 by the Austrian Gallerz through Dr. Heinrich Schwarz.

Compare Mahler-Werfel, Mein Leben (1960) 82 f [translation]: „Gropius, an incredibly noble person, had the intense wish to make me a grand present after the birth of the child. So he wrote to Karl Reininghaus, who from time to time sold one of the paintings of his ample collection, and asked him to sell the „Midnight Sun“ by Edvard Munch. On the same day two servants arrived with the picture and a moving letter from Karl Rininghaus. He wrote that the picture had belonged to me for many years, because I loved it so much. Only he had not found the right occasion for sending it to me. I would have obtained it by with my smile! – Now I could sink into this oily calm and still so vivid sea for days. No picture has ever tocuhed me the way this one has.

On 18 March 1938 (shortly after the Werfels’ escape) Carl Moll, allegedly on Alma’s request, achieved the return of the borrowed paintings from the Austrian Gallery (renamed “Gallery of the 19th Century” during the Nazi period). At the same time he already negotiated with Professor Bruno Grimschitz, the director of the Gallery, about the sale of the Munch painting. Alma Mahler-Werfel tried to find a buyer in France and was thinking about bringing the painting abroad with the help of a friend working as a diplomat.
Finally in 1940, the Munch painting was sold to the Gallery of the 19th Century by Marie Eberstaller (in her own name) for 7,000.- RM. The written confirmation of the sales contract by Professor Grimschitz contains no reference to Alma Mahler-Werfel nor an authorization from her. Grimschitz, however, according to his own account in the following trials, assumed that the proceeds should serve for the repair of the roof of the villa in Breitenstein/Semmering; and such a repair was actually carried out.

The repair of the roof cost approximately 1,500 RM furthermore there was some plumbering done in the house (the construction of a wooden fence and the installation of a water closet) for about 400 RM (this was the result of the investigation of the circumstances in the decision Erk 63 Rk 1372/48 = order number 91, p. 4 f).

With regard to the villa in Breitenstein Alma Mahler-Werfel’s ownership was again registered in the cadastral register as a result of a legally binding decision of the the Regional State Court for Civil Matters [Landesgericht für Zivilrechtssachen] Vienna from 17 January 1947

File number 25 Cg 39/47.

B. The Proceedings according to the Third Restitution Act

1. The First Ruling of the Restitution Commission (RC) [Rückstellunsgskommission (RC) ] in 1948
In her restitution claim filed on 14 August 1947 at the Restitution Commission of Vienna (RC Vienna), Alma requested the restitution of two paintings: “Summernight at the beach” by Edvard Munch and “Rocky Coast near Ragusa” by Jakob Emil Schindler. The amount in dispute indicated in the restitution claim drafted by the lawyer Dr. Otto Hein in Alma’s name amounted to 15,000.- Austrian Schillings. The Federal Republic of Austria as defendant, was represented in the trial by the Federal Law Office [Finanzprokuratur].
The proceedings before the RC Vienna chaired by Dr. Adolf Ehrenzweig (a well-known expert of private law, who should later-on be promoted to the position of professor at the University of Vienna) ended with the ruling of 24 September 1948 dismissing the suit owing to a lack of capacity to be made a defendant of the Federal Republic of Austria, since “German property” was concerned. Thereby, the RC followed the argument of the Finanzprokuratur, which claimed that the Republic of Austria was not the right defendant, since the pictures of the Austrian Gallery were not considered Austrian but German property.

As a result of Austria’s status as an occupied state the RC was kept from deciding over „German property“ (which the Soviet Union wanted to confiscate as war reparation paymenbts).

63 Rk 364/47 = order number 19, file page 73 - 77; chaired by Dr. Adolf Ehrenzweig, with Josef Sebera and Hermine Unger as assessors.

In the internal decision-making process the Chairman Dr. Ehrenzweig, who did very well regard the pictures as Austrian property, since they had been acquired in the context of the Gallery’ s museum administration thus becoming part of an Austrian entirety of objects (namely the Austrian Gallery), strangely enough, has not been able to convince the two lay judges of his legal view. Nevertheless, he immediately expressed his contrary opinion in a legal essay, from which Mahler-Werfel’s lawyer could – successfully as we will see – cite the corresponding passages in his appeal.

Ehrenzweig, Das Deutsche Eigentum, JBl 1948, 472 f. There it says (S. 473): „One could assume more generally, that the Republic of Austria has the position as a party to the dispute in all legal disputes conerning parts of an Austrian entirety of objects. If for example an Authority Court in the Ostmark has bought a chair and somebody assumes to have a claim to it, he or she should not have to wait for the State Treaty but be able to sue the Republic of Austria to give it out now.“

The reasoning of the ruling also contains an extensive analysis indicating that in the opinion of the RC Vienna, the restitution claim would have been admitted on its merits and was merely unenforceable lacking a tangible defendant. Thereby, the political persecution of Mahler-Werfel is equally accepted as is the existence of a case of an invalid withdrawal of property; the independence of the purchase from the take-over of power of National Socialism is expressly negated. The free evaluation of evidence largely follows the statements given by Mahler-Werfel and her witnesses Wilhelm Legler and Ida Wagner-Gebauer.

The architect Wilhelm Legler was Alma Mahler-Werfel’s nephew and Carl Moll’s (step-) grandson. During the trial he subsequently acted as a witness nominated by Mahler-Werfel quite often in order to testify on internal family matters. The opposing party tried to undermine Legler’s credibility by insinuating that he was disappointed not to have received anything out of Moll’s estate.

Ida Wagner-Gebauer has been working as a nanny in the Mahler-Werfel household for many years.

2. The First Ruling of the Upper Restitution Commission (URC) in 1948
As a result of Mahler-Werfel’s administrative  appeal from 28 October 1948, a ruling of the URC Vienna (Rkb 1116/48) is issued on 23 November 1948, by which the RC’s decision is remanded and the matter is referred back to the court of first instance.
The URC agrees with the claimant’s view regarding the capacity of the Republic of Austria to be a defendant and qualifies the adverse argument brought forward by the Finanzprokuratur and the RC as “surprising” and “unfounded”. The URC emphasizes that the Federal Law regarding the “Reunification of Austria with the German Reich” [Bundesgesetz über die Wiedervereinigung Österreichs mit dem Deutschen Reich], (BGBl [Federal Law Gazette] No. 75/1939) resulted in the former property of the Republic of Austria becoming property of the German Reich but that, on the other hand, the proclamation of independence on 27 April 1945 (StGBl [State Law Gazette] No. 1/1945) meant that “the German Reich’s property on the national territory of the Republic of Austria became property of the Republic of Austria”. As far as the Austrian Gallery is concerned, it is highlighted that “none of the occupying powers had stretched out their hands at these treasures, however disputed the concept of the so-called German property otherwise might be.”
Less favourable for Alma Mahler-Werfel is the subsequent analysis put forward by the URC Vienna. The obiter admittance of the claim on its merits by the RC Vienna is put to doubt by the URC. The appellate body in its remission gives various instructions for the further proceedings, boiling down to an anticipated evaluation of evidence with a strong bias against Alma Mahler-Werfel’s claim.
Regarding the Schindler picture “Rocky coast near Ragusa”, the URC sets out that this picture has been acquired by the Austrian Gallery as a result of a last will, made on 13 April 1945. „The acquisition therefore in any case takes place at a time, when the Republic of Austria was already re-established, and is in connection with the destruction but not with the take-over of power by National Socialism, neither with the fact, that the applicant was married to a Jew“. The URC then reminds the RC that in restitution proceedings „the facts of the case essential for the decision shall be established ex officio“ and urges the RC to consult the applicant’s mother’s estate files, „which may show that the picture irrespective of the dedication as a loan by the applicant [Mahler-Werfel] actually was in the ownership of Jakob Emil Schindler’s widow [Anna Moll, widowed Schindler].“ 

The URC tehreby followed the Austrian Gallery’s argumentation, which was contested by  Mahler-Werfel, that was based on an acquisition out of a legacy of Carl Moll or his son in law, Dr. Eberstaller, resprectively.
Dr. Eberstaller’s last will from 11 April 1945, also signed by his wife, represents the matter of a lawsuit between Alma Mahler-Werfel and Anton Klement, Rosa Tamassy, Josef Reiner and Karl Sieber, the persons considered in the last will, where Mahler-Werfel aclaimed the nullity of the testament (21 Cg 294/47). This dispute supposedly ended on 16 October 1951 (after the Upper Regional State Court Vienna had decided in favour of Alma Mahler-Werfel) with a settlement, according to which the four defendants were to be considered as legatees only. Finally the property was transferred to Alma Mahler-Werfel and Wilhelm Legler as Carl Moll’s (document confirming the transfer [Einantwortungsurkunde] dating 24 April 1954) and Marie Eberstaller’s (document confirming the transfer dating 23 June 1954) heirs.  Dr. Theodor Eberstaller was the heir of his brother Dr. Richard Eberstaller (document confirming the transfer dating 23 June 1954).

Anna Moll, born Bergen, widowed Schindler died during NS times (1938); as it should become clear later-on, the estate proceedings were ceased due to a lack of funds, although according to Alma Mahler-Werfel there existed „valuable jewelry and securities worth RM 100,000.-„ (63 RK 1372/48 - 86, S. 3 = Rk 216/61, AS 323).

With respect to the Munch picture, the URC does not regard the matter as ripe for decision either: “In the ruling [of the RC] it is not regarded as evident that the sale of this picture would have taken place irrespective of the National Socialist take-over of power. The Restitution Commission, however, owes a justification for this assumption…. It has not come to the fore that the claimant as of Jewish kin [sic] at the time of the picture’s sale had been exposed to persecution of any kind, particularly concerning her property.”
In the following the RC’s appraisal of evidence is harshly criticized, revealing the personal evaluations of the judges at the URC: “It is improper - merely based on the testimony of the witness Legler – to accuse of plundering the claimant highly respected personalities such as the painter and outstanding art expert professor Carl Moll, a man generally held in high esteem and respectable up to old age, or the Vice President of the Regional State Court for Criminal Matters, Dr. Eberstaller, and his wife, who have departed life voluntarily merely because of the collapse of their political ideals.”
The procurement of Dr. Eberstaller’s and his wife’s estate files was encouraged, and the presumption was, that these would show that the villa in Breitenstein, for the repair of which the sales revenue of the Munch picture was utilized, was admittedly merely given as a trust. To this point the URC ties up another speculation: “If the house was transferred to the couple Eberstaller as trustees, the allegation that the claimant had equally entrusted them with the custody of her remaining property becomes highly probable.” Conclusion by the URC Vienna: „The facts over the request of restitution should undergo legal evaluation according to section 4 para 1 of the Third Restitution Act and section 367 Austrian General Civil Code [Allgemeines Bürgerliches Gesetzbuch, ABGB]”.
In retrospect, this already definitively decided the matter regarding the Munch painting: The trial should be continued for years, but with respect to the Munch painting it eventually ended in 1953 exactly like the URC had indicated in its 1948 ruling. The URC will again conduct an evaluation of the evidence in a very favourable manner for the Republic and affirm the acquisition in good faith of the Munch picture “in terms of section 4” of the Third Restitution Act.

3. The First Ruling of the Supreme Restitution Commission (SRC) [Oberste Rückstellungskommission (ORK)] in 1949 (dismissal)
The revision appeal by the Finanzprokuratur (which had not succeed with ist argumentation regarding German property) was rejected by the SRC (Rkv 219/48) on 8 January 1949, because the amount in dispute did not exceed ATS 15,000.-. 

According to section 21 para 2 Third Resitution Act a (revision) appeal to the SRC against a URC ruling because of incorrect legal assessment is only admissible, if the amount in dispute is higher than ATS 15,000. An appeal against an affirming ruling of the URC is furthermore only admissible, if the URC regards the appeal to the SRC as admissible.

4. The Second Ruling of the RC in 1953
With a written submission on 7 April 1950, the continued proceedings at the RC Vienna are extended to the request for restitution of further five paintings by Schindler, namely “Forest Road in the Salzkammergut”, “Moonrise in the Prater”, “Hacking Meadow”, “Cottonwood Alley” and “From Corfu”.

Motion to take evidence order number 31 AS 116.

The trial before the RC Vienna  - after extensive preliminary proceedings including the questioning of numerous witnesses – finally ends with a ruling fully recognizing Mahler-Werfel’s claim on 9 April 1953. The Federal Republic of Austria is sentenced to the restitution to Alma Mahler-Werfel of the pictures “Summer Night at the Beach” by Edvard Munch as well as “Rocky Coast near Ragusa”, “Moonrise in the Prater”, “Hacking Meadow”, “Cottonwood Alley” and “From Corfu” by Jakob Emil Schindler.

63 RK 1372/48, order number 91.

In the description of the facts of the case it is assumed that all pictures were owned by the claimant. Professor Grimschitz’ statement, according to which “Moonrise in the Prater” and “Hacking Meadow” were Moll’s property, is not followed, “since this witness was no closer to the family background than the witness Legler”, whose accounts, that these pictures equally belonged to the claimant, were thus preferred.

The art historian Bruno Grimschitz was a multi-functionary in the art and museums field during NS times: not only director of the Modern Gallery and the Gallery at the 19th Century (today Austrian Gallery in the Belvedere), but also head of the painting gallery of the Art Historical Museum and the Prince-Eugene-Museum, professor for history of art and museums as well as head of the Gaumuseum in Salzburg, towards the end of the war. 
In this latter capacity he was also involved in opaque dealings with the galerist Friedrich Welz in Salzburg< compare Kerschbaumer, Meister des Verwirrens. Die Geschäfte des Kunsthändlers Friedrich Welz (Wien 2000) 43 ff, as well as Mayer, Bruno Grimschitz und die Österreichische Galerie 1938 – 1945, in: Anderl/Caruso (editors): NS-Kunstraub in Österreich und die Folgen, Innsbruck 2005, 59 ff.

The legal assessment qualifies the fact that the claimant, as the wife of a Jew, was subject to political persecution as “self-evident”. An expressly or tacit authorization of Eberstaller or another person to sell the paintings is not taken as proved, neither is an entrusting of the objects.
The sale of the pictures through the claimant is deemed a withdrawal in terms of the Third Restitution Act, and it is added: “The use of the sales revenue for the repair of the house is irrelevant for this question. It might only serve as the bases for claims of an agent of necessity (negotiorum gestor), but the fact that Eberstaller used the house together with his family, that he received the rent payments for the house and that the costs of the repair were comparatively insignificant, are arguments against this possibility.“. Apart from that, a testament (of Eberstaller or the Molls) would, as a transaction over somebody else’s asset, be irrelevant

63 Rk 1372/48 - 91, p. 5.

The ruling, which in the light of the extensive preliminary proceeding is rather short in the evaluation of evidence, would have meant a total victory of Alma Mahler-Werfel. Sure enough it does not become legally binding, since the Finanzprokuratur appeals and wins in the next instance, at least regarding the Munch painting.

5. The Second Ruling of the URC in 1953
In its ruling of 16 June 1953 (Rkb 186/53), the URC at the Upper Regional State Court Vienna rejects the restitution claim regarding the Munch picture following the Republic of Austria’s appeal, but does not deem the matter ready for decision with respect to the Schindler pictures, thus remanding the case again to the first instance for further proceedings.
First of all the ruling deals with the evaluation of evidence very much in detail, highlighting those aspects of the witnesses´ testimonies that are favourable for Moll and the Eberstallers. An emphasis is placed on the statement of painting colleagues and friends of Moll and his business partners in the Gallery of the 19th Century; of the claimant’s witnesses only those passages speaking against the fraudulent behaviour of Moll and the Eberstallers are cited. All in all, the alleged harmony between Alma Mahler-Werfel and the three people who committed suicide is thus emphasized. 

In her statement before the RC Vienna as well as in her autobiography (Mein Leben 275) Mahler-Werfel says about Moll: „He had always been my archenemy.“

The fact that the URC pays particular attention to the reputation of Moll and the couple Eberstaller had already become clear in its first ruling and is now confirmed. Furthermore the legal view already outlined in the first URC ruling regarding the acquisition in good faith of the Munch picture by the Gallery of the 19th Century is readopted.

As to Moll’s general esteem is should be remarked that he was honorary citizen of the City of „Vienna since 1931.

As the result of its own evaluation, the URC assumes, that “Professor Moll or Mrs Eberstaller or the two of them together [sic] were authorized to dispose of the picture in question, since it had been entrusted to them.”  It holds it to be in accordance with “logical thinking”, that Alma Mahler-Werfel did not only entrust the house in Breitenstein [including the fixtures, note] to her half-sister, but also the “disposal over the [obviously meant: other, note] moveable assets”.

Rkb 186/53 = Rk 216/61, file page 380.

However, that “Moll or Mrs Eberstaller or the two of them together” actually had an authorization (a fact that had been contested by the claimant throughout the whole trial), does not seem to be assumed by the URC Vienna, since it subsumes the acquisition of the Munch picture under section 4 of the Third Restitution Act, an in comparison to section 367 Austrian General Civil Code slightly modified provision regarding the acquisition of moveable assets in good faith. Therby it takes the Munch painting as a withdrawn object in terms of the Third Restitution Act, which however does not have to be restituted since the Gallery had acquired the painting in good faith (ie unaware of the withdrawal).
As far as the good faith of the Gallery is concerned, the following remarks by the URC can be found: “As the Austrian Gallery then [id est 18 March 1938 – date of the handing over of the picture to Moll] trusted him [ie Moll] without any proof of an authorization to receive five pictures of the claimant [ie the loan of Mahler-Werfel], they could arguably equally trust him, when he later-on sold one of these pictures in order to repair the roof of the house, which in spite of the donation in the form of a trust still belonged to the claimant.”  With other words: Since the Gallery gave the entrusted pictures to a member of the family of the owner, who had fled abroad, without an authorization by the owner, the good faith of the Gallery is accepted, when the daughter of this family member later-on sold one of these pictures – again without any proof of an authorization.

Rkb 186/53 = Rk 216/61, file page 380.

The URC reaches the conclusion that with regard to the Munch pictures, there is no obligation to restitution in accordance with section 4 Third Restitution Act. “The representatives of the Austrian Gallery did well know, that they dealt with assets of a victim of political persecution, but they could not detect an act of withdrawal but a transaction of the seller, to which this person was entitled. Therefore, the restitution claim with regard to the picture by Edvard Munch was rejected.”  Nevertheless, the URC Vienna adds, that “due to the above mentioned correspondence between professor Moll and Dr Schwarz (an employee of the Gallery of the 19th century) … it [can] quite safely be assumed to be evident, that the sale of the picture would also have taken place irrespective of the take-over of power.” 

Rkb 186/53 = Rk 216/61, file page 381.

The URC hereby refers to letters from 1 March and 4 March 1938 (annexes H and G), in which Moll negotiates about the sale of the Munch pictures in Alma Mahler-Werfel’s name. The authorization claimed by Moll in the letter dating 4 March 1938 was denied by Alma Mahler-Werfel in the restitution proceedings.

Rkb 186/53 = Rk 216/61, file page 381. Regarding the Schindler pictures the matter is remanded to the RC for an anew trial by the URC.

6. The Second Ruling of the SRC in 1953 (dismissal)
Alma Mahler-Werfel’s appeal for revision is again rejected by the SRC on formal grounds, since the amount in dispute does not exceed ATS 15,000.-. Thus the ruling of the URC becomes legally binding regarding the Munch painting.

7. Further Proceedings
In the course of the further proceedings, oral hearings before the RC take place only sporadically. But apart from that Alma Mahler-Werfel and her representatives are in contact with Austrian authorities in order to achieve the restitution of the Munch painting by extrajudicial means.  Through such out-of-court negotiations Mahler-Werfel accomplishes the restitution of the picture “Rocky Coast near Ragusa” and “Cottonwood Alley”.

Oral proceedings were held on 20 January 1954, 21 September 1961 and 6 March 1964.

The restitution of the pictures „Rocky Coast near Ragusa“ and „Cottonwood Alley“ is effected as a result of a regulation of the Federal Ministry for Education Zl.28.989.II/6/54 from 19 February 1954. 
Regarding the „Forest Road in Scharfling“ there had been a restitution already on 4 August 1948 (according to order number 96 file page 384 in the context of the proceedings 63 Rk 30/50), so that the claim was withdrawn in this regard.

On the occasion of an enquiry of the RC Vienna on 31 March 1961, Alma Mahler-Werfel declares to “maintain the asserted claims, since a settlement had not been reached despite certain approximations”. For the questioning of Alma Mahler-Werfel in New York (her last visit to Austria was in 1947) a request for judicial assistance is made to the Austrian Consulate General on 18 September 1964. Alma Mahler-Werfel dies on 11 December 1964 before being questioned. 

Statement from 2.5.1961, Rk 216/61 order number 126 volume II file number 5.

The last document in the Proceedings is a decision of the judge to wait for the result of the testamentary proceedings.

C. The Restitution Request by Marina Mahlers in 1999

At the beginning of 1998 the “Commission of Provenance Research in the Austrian Federal Museums“ [Kommission zur Erforschung der Provenienzen in den Österreichischen Bundesmuseen]  was established at the Federal Ministry for Education and Culture with the assignment “to systematically file the art objects acquired in the period in question to resolve all questions regarding the ownership during the NS period and the immediate Post-War Era.”
In March 1999 Marina Mahler received a dossier of this commission on the acquisition of Munch’s “Summer Night at the Beach” prepared by the art historian Monika Mayer. Marina Mahler consequently requested the restitution of the Munch painting but abstained from the restitution of Schindler paintings, for which the ownership of Alma Mahler-Werfel could not be proved.
In April 1999 the final 37 pages report of the Commission of Provenance Research was presented to the Art Restitution Advisory Board. The report chronologically lists the events, starting with Alma Mahler-Werfel’s giving the painting as a loan to the Austrian Gallery on 2 August 1937 up to Alma’s death in New York on 11 December 1964. In her résumé Monika Mayer points out, that the allegedly “bona fide” purchase of the picture from Marie Eberstaller (Alma’s half sister) in 1940 is relativized by the fact that “the ownership right of Alma Mahler-Werfel was known to the Austrian Gallery”, and refers to the witness statement of former director Bruno Grimschitz in the restitution proceedings. Furthermore, as to any possible intentions to sell before 1938, she records the fact, that there has not been any proof of an authorization or a written authorization by Mahler-Werfel to sell the Munch painting; not even an agreement to interrupt the loan had been received – the picture, after all, had been taken back in 1938 by Carl Moll, Marie Eberstaller’s father and Alma’s step father.

Dossier of the „Commission of Provenance Research in the Austrian Federal Museums“ by Monika Mayer (1999) 35 f.

For Grimschitz see above, footnote 20.

In its session on 27 October 1999 the Advisory Board however “owing to a clear and unambiguous legal situation” saw itself unable to recommend a transfer of ownership of the Munch painting to Alma Mahler-Werfels legal successor.
The basis for the Advisory Board’s legal assessment was first and foremost the file of the Finanzprokuratur regarding the proceedings under the Third Restitution Act of the Postwar period , which Alma Mahler-Werfel, who had suffered losses as the owner, had instigated.

For the decision over the restitution claims according to the Third, Fifth and Sixth Restitution Act there were Restitution Commissions set up at each regional court [Landesgericht] assigned with carrying out jurisdiction in civil law matters Altogether three stages of appeal were envisaged. In second instance Upper Restitution Commissions decided. Third and last instance was the Supreme Restitution Commission set up at the Supreme Court [OGH]. For the execution see in detail Franz-Stefan Meissel/Thomas Olechowski/Christoph Gnant: Untersuchungen zur Praxis der Verfahren vor den Rückstellungskommissionen, Vienna Munich 2004 (=Veröffentlichung der Österreichischen Historikerkommission. Vermögensentzug während der NS-Zeit sowie Rückstellungen und Entschädigungen seit 1945 in Österreich. Volume 4/2).

The decisions made by the authorities during the Post-War Era are thereby subject to a valuing assessment by the Advisory Board: The ruling of the Restitution Commission at the Regional Court for Civil Matters Vienna of 9 April 1953 obliging the Republic of Austria to restitute the picture is only briefly mentioned and the “extremely cursory evaluation of evidence by the first instance” critisized. According to the Advisory Board’s opinion the decision in first instance “almost completely” lacked “a legal assessment of the stated facts of the case”

File number 63 RK 1373/48-91.

The Upper Restitution Commission at the Upper Regional Court Vienna with its ruling of 16 June 1953, as the second instance, had in contrast complied with the complaint of the Finanzprokuratur and dismissed Alma Mahler-Werfel’s request for restitution “because of a detailed evaluation of evidence” – this being the Advisory Board’s evaluation. The Advisory Board cites from the decision: “After all the house in Breitenstein had equally been given to Maria Eberstaller as a gift only in the form of a trust – it is now already restituted – and the consequence, that the applicant [Alma] had not only entrusted her [Marie Eberstaller] with the real estate but also with the disposal over the moveable assets, corresponds to logical thinking… Therefore the Restitution Commission, in spite of the contrary statement of witness Arch. Legler, takes as granted that the pictures can be considered entrusted to Prof. Moll or Maria Eberstaller. In the sense of the provision section 4 of the Third Restitution Act there is no obligation to restitution in this case…The representatives of the Austrian Gallery did well know, that they dealt with the property of a political refugee, however, they could not view this as an act of expropriation but as the legitimate disposal by the seller….As a result of the above mentioned correspondence between Prof. Moll and Dr. Schwarz it can unobjectionably be taken for granted, that it would have come to the selling of the picture irrespective of the take-over of power.“

File number Rkb 186/53-95.

As a result of these elaborations of the Upper Restitution Commission Vienna, the Art Restitution Advisory Board came to the conclusions formulated in point 3: The dismissal of the request for restitution by Alma Mahler-Werfel was legally binding (res iudicata) and every court consequently bound to the ruling of the Upper Restitution Commission, which had stated “the legally effective non-appealability of the acquisition of property by the Federation”. An elimination of the formal and material legal effects of the ruling could only be considered in case that there were causes for a retrial in the sense of section 530 ff ZPO [Code of Civil Procedure]. It could not be the Advisory Board’s task to give a recommendation contradicting a legally binding ruling. The requirements of section 1 clause 2 Art Restitution Act, which would allow for a restitution recommendation, were not fulfilled, since regarding the Munch painting it had been “stated with legal effect, that the requirements for the restitution provision were not met and that therefore there was no incriminated legal act according to the Nullity Law.“

Second Section: Legal Analysis 

The following section is an analysis of the Art Restitution Act 1998 (A.) and the proceedings regarding the Munch painting before the Art Restitution Advisory Board based on it (B.). Thereby the reasoning of the Advisory Board’s decision shall be subject to a legal evaluation. For this purpose the interpretation of section 1 clause 2 Art Restitution Act 1998 shall receive particular attention.
An assessment of the case, however, also requires a critical analysis of the 1953 decision of the URC Vienna (C.) and the taking into consideration of the legal valuations regarding the nullity of extremely unjust decisions, meanwhile part of the General Settlement Fund Law [EntschädigungsfondsG] 2001 (D.), in the light of which a re-evaluation of the case is advisable.

A)	The Art Restitution Act 1998 

The Federal Statute on the Restitution of Art Objects from the Austrian Federal Museums and Collections (BGBl I No. 181/1998) was supposed to form the legal bases for the “fast and unbureaucratic restitution of unjustifiably acquired art objects to their owners or their legal successors”.

Member of the  Austrian Parliament [Nationalrat] Andreas Khol in his speech in the debate regarding the Art Restitution Act on 5 November 1998. Remarkably Khol only mentioned 2 categories of art objects to be restituted in his speech, namely those according to section 1 para 1 clause 1 and 3.

The term “unjustifiably acquired” in this context is to be understood in a rather moral than in a strictly legal sense: The law authorizes to return art objects that in a strictly legal sense are indisputably owned by the Federal Republic but have been acquired in ways causing moral or historical concern. With other words: With the Art Restitution Act 1998 the Republic of Austria allows for a modified self-conception in restitution matters, according to which the Republic at least morally accepts a share of the responsibility for the injustice that occured during the NS period. This responsibility is also reflected in various new legal provisions ensuring payments to NS victims. In 1995 for instance this lead to the establishment of the National Fund in order to “express the special responsibility of Austria vis-à-vis victims of National Socialism” (section 1 para 2 National Fund Law [NationalfondsG] BGBl 432/1995 and to the express acknowledgement in the General Settlement Fund Law of the “moral responsibility for losses and damages, which have been inflicted on the victims of National Socialism as a consequence of or in connection with the NS regime” (section 1 para 2 leg cit). The provisions of the Art Restitution Act 1998 must be seen in the context of these novel restitution laws aimed at the overall elimination of shortcomings and gaps of the restitution laws and the restitution practice after 1945.
Based on the results of the “Commission for Provenance Research” the Art Restitution Act 1998 provides three categories of restitution authorizations for art objects which passed into the ownership of the Federal Museums and Collections in the course of the Nazi regime or during the Post-War Era:

1464 Blg NR XX.GP 1.

a. Section 1 clause 1 Art Restitution Act 1998 covers art objects which have been withheld in the course of proceedings according to the Export Ban Act [AusfuhrverbotsG] (StGBl No. 18/1918) and passed into the possession of Austrian Museums and Collections as “gifts” or “dedications”. This provision refers to art objects, which have been gratuitously transferred to an Austrian Museum as a countermove to an export approval after 8 May 1945. From today’s point of view – in the opinion of the legislative body – “the then chosen procedure is unjustifiable” and the competent Federal Minister appropriately authorized to transfer property to the original owner. 

1464 Blg NR XX.GP 1.

b. Section 1 clause 2 Art Restitution Act 1998 concerns art objects that “rightfully passed into the ownership of the Federation” but were the object of a legal transaction that is void according to the Nullity Law [NichtigkeitsG] 1946. Acquisitions of art works, which had been the object of a void withdrawal of property during the Nazi regime, ie particularly all cases of “aryanisation”, are subject to this regulation.
c. Section 1 clause 3 Art Restitution Act 1998 in contrast covers art objects, which, in spite of the conduct of a restitution procedure, could not be returned to the original owners or their heirs and have passed into the ownership of the Federation as ownerless objects.

According to section 2 para 1 clause 2 Art Restitution Act 1998 art objects of this kind may be transferred to the National Fund of the Republic of Austria for Victims of National Socialism [Nationalfonds der Republik Österreich für Opfer des Nationalsozialismus] to be used by the Fund. As the restitution reports published by the Federal Ministry for Education and Culture show, this authorization has never been used.

According to section 2 para 2 Art Restitution Act the Federal Ministers in the cases covered by section 1 Art Restitution Act are authorized to make a transfer to the original owner or their legal successor after having heard the Art Restitution Advisory Board set up at the Federal Ministry for Education and Culture (now: Federal Ministry for Education, Science and Culture).
For an examination of an art object by the Advisory Board no request is needed; the procedure is governed by the official “inquisitorial” system. The General Administrative Procedure Act [Allgemeines VerwaltungsverfahrensG (AVG)] is not applicable, as its applicability was not provided for in the Art Restitution Act. As a consequence there is no provision for the procedural rights of the parties. Moreover section 2 para 2 Art Restitution Act expressly excludes any claim to transfer of property, although there is no doubt, that the authorities are bound to the principle of objectivity under constitutional law and that in the case of a unequal treatment the filing of a claim with the competent court is possible.

In the catalogue of Art II para 2 EGVG the Art Restitution Act is not mentioned. Also see Noll, juridikum 1/2003, 33. The Green Party [Grüne] had demanded an according amendment during their coalition talks with the Conservative Party [ÖVP], which – like the coalition talks as a whole – failed.

The Supreme Administrative Court [VwGH] accordingly decided (rejection decision B 422/00-4 from 30 June 2000) that the letter by Federal Minister Elisabeth Gehrer, in which Marina Mahler was denied the restitution, had the quality of an official notification.

In this connection the Supreme Court’s „Bundesbetreuungserkenntnisse“ (1 Ob 272/02 k and 9 Ob 71/03 m) should be reminded, in which even in case of voluntary benefits granted by the Federation within the framework of a Commitment Act [SelbstbindungsG] the existence of actionable civil claims is derived from the principle of objectivity.

B) The Munch Painting in the Light of section 1 clause 2 Art Restitution Act

1. The elements of section 1 clause 2 Art Restitution Act 1998
The Advisory Board in the question of the restitution of “Summer Night at the Beach” mainly drew its attention to clause 2 of section 1 Art Restitution Act, which will be examined in detail below. According to it, a gratuitous retransfer of property is possible for those art objects in the Austrian Federal Museums and Collections, “which have rightly passed into the ownership of the Federation but have beforehand been the object of a legal transaction according to section 1 of the Federal Law of 15 May 1946 about the Nullity of Legal Transactions and Other Legal Acts that happened during the German Occupation of Austria, passed into the ownership of the Republic of Austria (not written in italics in the original) BGBl No. 106/1946 and are still in the ownership of the Federation.”
The wording of section 1 clause 2 Art Restitution Act 1998 is undoubtedly misshappen. The additional subordinate clause “passed into the ownership of the Republic of Austria” (above written in italics) for instance is nonsensical and should be ignored as a mistake in editing. Beyond that the provision is generally too comprehensive, as according to the text it must be applied to all art objects, which were subject to expropriation during National Socialism and then became Federal property. This would also cover all cases specially governed by section 1 clause 1 Art Restitution Act (the acquisitions of restituted art objects from their owners in the context of export authorizations). In order not to make section 1 clause 1 Art Restitution Act redundant, a systematic interpretation requires to apply the provision of clause 2 of section 1 Art Restitution Act to the acquisition of withdrawn art objects from third persons (and not the in rem authorized person as in clause 1).

Welser/Rabl: Der Fall Klimt (2005) 98 footnote 105; cf. on the internet under www.adele.at; similar also the legal opinion of the Finanzprokuratur, (Vice president Manfred Kremser) on the restitution matter Adele Bloch Bauer; equally downloadable on the internet under www.adele.at.

Welser/Rabl: Der Fall Klimt (2005) 103.

Nevertheless it must be stated that section 1 clause 2 Art Restitution Act is to be understood as a general clause allowing for the restitution of art works owned by the Federation, which had been the object of a void legal transaction in the sense of the Nullity Law 1946 and were not restituted.

Graf, Überlegungen zum Anwendungsbereich des § 1 Z 2 KunstrückgabeG, NZ 2005, 323,  who rightly draws the attion to the fact that section 1 clause 2 must be seen as a general clause with a conceivably wide scope of application.

It emanates from the preparatory legislative documents [Gesetzesmaterialien] of the Art Restitution Act 1998 that clause 2 aims at cases, in which the Federation has in good faith acquired art objects that had been withdrawn from victims of National Socialism. This for instance includes cases, in which the Federation had acquired aryanised art objects in auctions or bought them on the market and only later-on learned that they were loot. In such constellation Austrian civil law allows an acquisition of property in good faith according to section 367 Austrian General Civil Code or section 4 of the Third Restitution Act 1947, so that an acquisition of rights to the disadvantage of NS victims was possible.
The illustrating documents [Erläuterungen] comment on this matter as follows: “Some museum directors had in good faith acquired art objects on the art market from authorized dealers (in the Post-War Era) and doubts regarding their harmless provenance had only arisen to a later point.” Such acquisitions, which are incontestable according to the current legal bases but nevertheless flawed with the odour of profiting from the expropriation of NS victims, were intended to be cancelled through section 1 clause 2 Art Restitution Act 1998.

1390 Blg NR XX.GP 4.

Section 1 clause 2 Art Restitution Act 1998 in its text takes up the elements of section 1 Nullity Law 1946. As a consequence the art object must have been “the object of a legal transaction during the German occupation of Austria, effected in connection with the economic or political penetration, in order to withdraw property or property rights from natural or legal persons, who were entitled to these rights on 13 March 1938.”

Federal Law from 15 May 1946, BGBl No. 106, on the declaration of nullity of legal transactions and other legal actions effected during the German occupation of Austria (Nullity Law); printed and commented in: Ludwig Viktor Heller/Wilhelm Rauscher/Rudolf St. Baumann, Gesetz über die Erfassung arisierter und anderer entzogener Vermögenschaften, Vermögensentziehungsanmeldeverordnung, Nichtigkeitsgesetz, Erstes Rückstellungsgesetz (2^nd ed, Vienna 1947) 40 ff.

That the Nullity Law 1946 itself did not lead to any legal consequences at the time, since its section 2 expressly stated that the form, assertion and extent of the claims arising from section 1 would be governed by another Federal Law, is in this context irrelevant. Section 1 clause 2 Art Restitution Act 1998 takes up the elements of the general provision of section 1 Nullity Law 1946 and cannot be viewed as a reference to legal consequences. That the legal consequences of nullity were postponed through the reservation of particular provisions, and the fact that the nullity of the legal transaction in the sense of the Nullity Law was merely a relative one, which had to be asserted by the damaged owner, must not be considered in the legal evaluation whether a matter was the object of a legal transaction in the sense of section 1 Nullity Law 1946.

Compare in detail Georg Graf: Die österreichische Rückstellungsgesetzgebung, Vienna 2003, 41.

Also according to the opinion of Welser/Rabel: Der Fall Klimt (2005) 101, section 1 Nullity Law 1946 represents “an independent condition for the applicability of section 1 clause 2 Restitution Act 1998, so that the applicability of one of the former restitution acts is not necessary.

In the Post-War Era, of course, the respective provisions of the Restitution Act, substantiated by the Nullity Law, had to be consulted to decide the question of a particular restitution obligation. For the purpose of the restitution of withdrawn property according to the Third Restitution Act 1947 the term of a void legal transaction (section 1 Nullity Law 1946) was defined more clearly. According to section 1 para 1 of the Third Restitution Act the property had to be withdrawn from the owner (authorized person) during the German occupation of Austria, either by an unauthorized action or based on laws or other orders, in particular also by legal transactions or other legal acts in connection with National Socialist takeover of power. Particularly a withdrawal of property had to be assumed, if the owner was subject to political persecution by National Socialism and the purchaser of property was unable to explain that the transfer of property would have equally taken place irrespective of the take-over by National Socialism.
In case of such a withdrawal of property in the sense of the Third Restitution Act the damaged person could request the restitution of the withdrawn property before the Restitution Commission, unless the adverse party could prove that the object had been acquired in good faith according to section 4 para 1 of the Third Restitution Act. The legislative body of the Post-War Era thus, in the interest of transaction security and the protection of acquisition of good faith, provided for objects that had been withdrawn during the NS period not to be subject to restitution to the damaged party.

2. Munch’s “Summer Night at the Beach” and section 1 clause 2 Art Restitution Act 1998

Regarding the Munch painting “Summer Night at the Beach” the question arises, whether the negative decision over a restitution claim according to the Third Restitution Act, resulting from the assumption of an acquisition in good faith according to section 4 para 1 Third Restitution Act, leads to the fact that the acquisition act could not be called an action of withdrawal. The Advisory Board and, following it’s opinion, the Federal Ministry for Education and Culture start out from this assumption, when the restitution report 2000/2001 talks about the Restitution Commission’s statement in the restitution procedure at that time “that the acquisition of property by the Austrian Gallery had not been the result of an act of withdrawal”. This means that it was stated with legal effect that the elements of an act of withdrawal, and thus of an incriminated legal action according to the Nullity Law, were not fulfilled.
a. In this context some general remarks concerning the nature and effects of legal bindingness are necessary. It is undisputed that the 1953 decision of the URC Vienna dismissing the claim became legally binding. As a consequence a claim to restitution of the painting based upon the Third Restitution Act – not taking into account the theoretical possibility of a retrial according to section 530 Code of Civil Procedure – was not possible anymore. The legal effects with regard to this bases for a claim of the Third Restitution Act however in no way excludes a possible obligation to restitute the Munch painting as a result of another bases for a claim, particularly the Art Restitution Act 1998, which was enacted a decade later. That, apart from that, a legally binding decision ascertaining the acquisition of property never excludes a voluntary restitution is equally clear.

According to the jurisdiction of the Post-War Era the applicability of section 530 Code of Civil Procedure to proceedings according to the Third Restitution Act had of course been denied, since these were non-dispute proceedings [Außerstreitverfahren]. In the meantime a retrial is indeed accepted by jurisdiction (JBl 1998, 731 Klicka = ecolex 1998, 833 Oberhammer), but irrespective of that the absolute time limits of section 530 Code of Civil Procedure have usually already expired for proceedings according to the Third Restitution Act.

Compare Graf, NZ 2005, 330 f Fn 38 [translation]: „If in a proceeding the plaintiff is granted property in an object with legally binding effects, these material legal effects of the judgement do not bar him or her from leaving the object with the defendant or giving it to him or her after a certain period of time all the same. The material legal effects do not hinder the person benefitting from the decision in question to show a behavior corresponding to the legal point of view of the opposite side. If, therefore, new facts have come to the fore since the taking of the decision by the Restitution Commission, nothing – and particularly not the material legal effects – would bar the Republic from behaving according to the newstandard of knowledge and giving back the picture. Neither does the Art Restitution Act prohibit such a restitution.“
It must be noted, that not only new facts, but also a new legal position have to be taken into account and that, if the prerequisites of the Art Restitution Act are fulfilled, a restitution is not only possible but even compulsory. In case that this obligation is not fulfilled, even civil damage claims are possible!

With other words: From a legally binding decision based on Pre-War law an exclusion of restitution according to the law in force today cannot be deduced, if new bases for the claims of NS victims  have been created – in concreto through the Art Restitution Act 1998. Therefore it is inexplicable that the Advisory Board, which expressed full moral understanding for Marina Mahler’s resitution request, regards the same request as impossible with respect to the legal situation in 1953, since today’s standards of a joint responsibility of the Republic for NS injustice are to a large extent manifested in the Art Restitution Act 1998, meaning that today’s legal situation is considerably differing from 1953.
b. It would be possible of course, that the then decision is still binding regarding an element of the provision of the Art Restitution Act. Obviously this is the Art Restitution Advisory Board’s opinion, since it assumes that the then dismissal of the application for restitution of the Munch painting has stated with legally binding effect that it had not been the object of a legal transaction in the terms of section 1 Nullity Law 1946.
But is this a point stated in the 1953 decision of the URC at all? The URC’s argument for its dismissal of the claim is not that there had not been a withdrawal of property regarding the Munch painting. It rather reasons that – irrespective of that! – the Gallery of the 19th Century has acquired property in good faith according to section 4 para 1 of the Third Restitution Act.
In order to answer the question, a more detailed examination of section 4 para 1 Third Restitution Act is necessary:

“Were moveable assets acquired in a public auction or in the context of execution or insolvency proceedings or against payment from an authorized trader or from persons to whom the owner him-/herself had entrusted them for their use, for management or other purposes, then they are only considered withdrawn in the sense of section 1 para 1, if the purchaser knew or had to know, that the property had been withdrawn.”

Already the text of the provision (“if the purchaser knew or had to know, that the property had been withdrawn”) clearly suggests that the acquisition in good faith requires a withdrawal.
For the commentators of the Third Restitution Act Heller/Rauscher/Baumann and – taking up their points – Graf, the scope of applicability of this rule only includes property that has already been withdrawn, and thus not the sale by the damaged owner him-/herself. The property must have been the object of a different transaction, which for its part had to be qualified as a withdrawal. 

Compare Heller/Rauscher/Baumann: Drittes Rückstellungsgesetz (2^nd ed. Vienna 1948) 207 [translation]: „The privilege according to para 1 of section 4 only comes in useful to the purchaser of already (ie beforehand) withdrawn property. Therefore its version of the text denies the possibility to maintain the validity of the transaction for instance by claiming good faith to those, who in the owner’s business enterprise purchased a moveable asset not at a fair payment in return because the owner was forced to sell it off at a loss.”

See Graf: Rückstellungsgesetzgebung (2003) 215 f. The Restitution Commission probably interpreted the provision in a different way in certain constellations. Rkv 91/49 = JBl 1949, 360 however states, that section 4 para 1 only privileges the original acquisition from non-owners.

The preparatory documents to the Third Restitution Act show, that the intention was to introduce a position comparable to the original acquisition of property according to section 367 Austrian General Civil Code  into the Third Restitution Act for moveable assets. This parallelism gives further insights for the interpretation: The legislative body “like in section 367 Austrian General Civil Code “ stated “a special form of “original” (ie independent of the successor’s rights) acquisition of property and therefore, in particular cases of acquisition, a denial of the restitution claim, the vindication”. Section 4 para 1 Third Restitution Act protects the acquisition in good faith or the objectively unsuspicious acquisition of withdrawn property by a non-authorized person analogous to sections 367 ff Austrian General Civil Code. That means that the lack of authorization of the previous holder is “cured” and that property is acquired in good faith, because the legislative body does not permit the effects of the underlying legal defect (in the case of section 367 Austrian General Civil Code: the lacking authorization in rem; in the case of section 4 para 1 of the Third Restitution Act: the existence of a void withdrawal of property).

See the explaining remarks to the government proposal in: Heller/Rauscher/Baumann: Drittes Rückstellungsgesetz (2^nd ed. Vienna 1948) 147, to section 4 [translation]: “Here the provisions of section 367 ABGB are extended to other forms of acquisition in the context of execution or insolvency proceedings for practical reasons and reasons of equity.”

Graf: Rückstellungsgesetzgebung (2003) 215 ff, criticizes the lack of parallelism to the acquisition in good faith according to section 367 ABGB in the starting situations to be regulated and concludes, that there had been no factual need for a privilege of the acquisition in good faith in the case of restitutions

Heller/Rauscher/Baumann: Drittes Rückstellungsgesetz (2^nd ed. Vienna 1948) 206.

Compare Heller/Rauscher/Baumann: Drittes Rückstellungsgesetz (2^nd ed. Vienna 1948) 205 ff.

For section 4 para 1 Third Restitution Act it must therefore be noted: In all cases a withdrawal is the prerequisite for the applicability of the provisions on the acquisition in good faith. In case of good faith an original acquisition of property by the purchaser is possible. In this respect the provision contains an order concerning the in rem allocation of property, but does not give any information on the legal quality of the title. This must rather still be regarded as a withdrawal; it is merely ordered, that the legal effects of a withdrawal according to the Third Restitution Act – especially the claim to restitution of the originally damaged owner – shall not happen
However, that the sale of the Munch painting to the Austrian Gallery (at that time Gallery of the 19th century) in 1940 constitutes a void legal act in the sense of the Nullity Law is not subject to doubt. The application of the criteria of the Third Restitution Act leads to the same result: Since Alma Mahler-Werfel was a politically persecuted person, there would only in one case be no withdrawal of property, namely if the specific legal transaction had in the same manner taken place irrespective of the NS take-over of power. But surely this is not the case.

For the stricter criteria of the so-called „Befreiungsbeweis” (independence of the legal transaction from the NS take-over of power) see Meissel/Olechowski/Gnant: Praxis der Verfahren (2004) 53 ff, 97 ff, 144 ff.

As an interim résumé it is worth noting:
a)  that the legally binding ruling by the Restitution Commission from 1953 had merely stated the property of the Republic of Austria, but by no means excluded a void “withdrawal of property” in the sense of section 1 Nullity Law to the disadvantage of Alma Mahler-Werfel during the NS period;
b)  that the contrary view of the Art Restitution Advisory Board inadmissibly mixes the existence of a void legal action in the sense of section 1 Nullity Law and the question of a restitution obligation of objects acquired in good faith according to section 4 of the Third Restitution Act; therefore this opinion of the Advisory Board must not be followed;
c)  that the prerequisites of section 1 clause 2 Art Restitution Act 1998 are very well fulfilled regarding the Munch painting “Summer Night at the Beach”.

3. The Legally Inadmissible Reasoning of the 1953 Decision of the URC Vienna („Dubiousness of the Acquisition“)

The Art Restitution Advisory Board’s recommendation not to return the Munch picture to Alma Mahler-Werfel’s legal successor is not only based on the argument of the legally binding effects of the 1953 URC decision - above already qualfied as unfounded –, but also includes a valuing assessment of the two decisions, which came to different conclusions regarding this point. The fact that the Advisory Board’s recommendation follows the decision in second instance was thereby not only based on the legal effectiveness of this decison but also on the alleged higher pursuasiveness of the URC’s decision in comparison to the 1953 decision in first instance by the RC Vienna, which was in favour of Alma Mahler-Werfel. Thereby the Advisory Board uncritically adopts the valuations, with the help of which the appellate body (URC Vienna) justified its departure from the decision in first instance. A closer analysis (to this point in detail below) of the then decision of the URC Vienna however shows, that it is by no means better or more convincingly argued than the decision in first instance, which stated the restitution of the Munch painting to Alma Mahler-Werfel.
The need for an ex-post evaluation of the circumstances regarding the non-restitution arises from the purpose of the Art Restitution Act 1998, which – as the preparatory legislative documents show – particularly also wants to cover those cases, in which the per se rightful acquisition of art works by the Republic of Austria is later-on subject to doubt. Therefore the 1953 decision of the URC Vienna will be assessed in terms of its legal „doubtfulness“ in the following. 

That this does not necessarily imply a reproach of wrongful doing on the part of the person acting for the Republic of Austria, was convincingly shown by Graf, NZ 2005, 331 ff.

As already elaborated above, the Provenance Research Commission’s dossier already “relativated” the acquisition in good faith at the time. At least, so Monika Mayer’s résumé, the Austrian Gallery (then Gallery of the 19th century) had always known that the Munch painting did not belong to Marie Eberstaller or Carl Moll but to Alma Mahler-Werfel.
The 1953 decision of the URC Vienna at closer legal inspection actually turns out to be a downright misjudgment without any conclusive argumentation.
The URC Vienna justifies the non-restitution of the Munch picture by stating, that it had been acquired in good faith in accordance with section 4 para 1 of the Third Restitution Act thus leading to no obligation to restitution. This central point of the URC’s reasoning shall be subject to an extensive legal valuation in the following.
For the prerequisites of section 4 para 1 Third Restitution Act to be fulfilled with regard to the case in consideration a) a moveable asset must be acquired b) against remuneration c) by somebody to whom the owner himself had entrusted them, provided that d) the purchaser did not know (or did not have to known) that the assets had been withdrawn.

Section 4 para 1 Third Restitution Act says: „Were moveable assets acquired in a public auction or in the context of execution or insolvency proceedings or against payment from an authorized trader or from persons to whom the owner him-/herself had entrusted them for their use, for management or other purposes, then they are only considered withdrawn in the sense of section 1 para 1 [and must therefore be restituted, note], if the purchaser knew or had to know, that the property had been withdrawn.“.

Section 4 para 1 Third Restitution Act represents a case of denied restitution of a withdrawn object, in which according to the lawmaker’s intention the provisions of section 367 Austrian General Civil Code, ie of original acquisition of property in good faith, shall be extended to other forms of acquisition in the context of execution or insolvency proceedings “for practical reasons and reasons of equity.”

Section 367 Austrian General Civil Code says: „An ownership complaint does not lie against the bona fide possessor of moveable property when he proves that he has acquired the property either at a public auction, from a tradesman authorized to carry out such trade or by purchase from someone to whom the plaintiff himself had entrusted the property for use, custody or any other purpose. In these cases full property is acquired by the bona fide possesor and the former owner is entigled only to demand damages against those who are liable to him therefore.

Illustrating remarks on the government suggestion [Regierungsvorlage] of the Third Restitution Act; printed in Heller/Rauscher/Baumann, Verwaltergesetz - Rückgabegesetz - Zweites und Drittes Rückstellungsgesetz (Wien 1947) 147.

Regarding the acquisition from a person of confidence the modification in contrast to section 367 Austrian General Civil Code was, that the good faith was intended to be excluded in case of knowledge (or negligent non-knowledge) that the object was part of withdrawn assets, ie that when acquiring from a non authorized person the mere good faith regarding the ownership was not enough, when the connection to withdrawn assets was known to the acquirer or at least recognizable with due care.

Compare the Commentary by Heller/Rauscher/Baumann, Verwaltergesetz - Rückgabegesetz - Zweites und Drittes Rückstellungsgesetz (1947) 206.

The individual elements of section 4 para 1 Third Restitution Act are now assessed with regard to the Munch painting. A moveable asset and an acquisition against remuneration are given. The prerequisites of an acquisition from a person of confidence and especially of good faith, however, are not fulfilled.

a. Carl Moll and Marie Eberstaller as „Persons of Confidence“ (Intermediary Agents) entrusted by Alma Mahler-Werfel?
A prerequisite for the denial of restitution in accordance with section 4 para 1 Third Restitution Act was, that Carl Moll or Marie Eberstaller, respectively, were qualified as persons of confidence (intermediary agents) of the owner, ie as persons „to whom the owner himself had entrusted them for use, preservation or other purposes“ (section 4 para 1 Third Restitution Act). The URC Vienna assumed, that Carl Moll or Marie Eberstaller, respectively, had been entrusted with the picture by Alma Mahler-Werfel. In reality Alma Mahler-Werfel had in 1937 entrusted the Austrian Gallery with the pictures, which in turn returned them to Carl Moll (after Alma Mahler-Werfel’s escape). In a strict sense, Moll was therefore only „a person of confidence of a person of confidence“. 
Whether in the case of such a chain of intermediary agents an entrusting in the sense of § 367 Austrian General Civil Code could be assumed, has been disputed for a long time and is today accepted by the prevailing doctrine.  That an intermediary agent can refer to an acquisition from an intermediary agent when acquiring from the person, to which he entrusted the object himself, must be refused, since the agent then refers to possession, the appearance of a right, which he caused himself. An “entrusting” with Alma Mahler Werfel’s will can subsequently only be accepted, if one assumes, that she agreed to give the picture to Moll. The latter was expressly negated by herself in the restitution trial and could only be deemed evident by the URC Vienna by deducting from the transfer of the villa in Breitenstein in the form of a donation or a trust, that Alma Mahler-Werfel had entrusted her total assets, which she had left back, to Moll or Marie Eberstaller. This conclusion however is not at all the only logical consequence and apart from that contradicts general experience of life. 

This is for instance denied by Neuburg, Kommentar zu den Rückstellungsgesetzen (1949) 40.

Compare Spielbüchler in Rummel, Kommentar zum ABGB (3. edition 2000), Rz 9 zu § 367 ABGB.

To the ratio of the priviledged acquisition from a person of confidence compare for instance Koziol/Welser, Bürgerliches Recht I (12. edition 2002) 298. A re-acquisition in good faith by the non-authorized seller is inadmissible, too; Spielbüchler in Rummel, Kommentar zum ABGB (3. edition 2000) Rz 12 zu § 367.

b. Good faith of the acquirer?
If one accepts the “entrusting” (as does the URC Vienna), the good faith of the purchaser is still to be examined. When acquiring from a non-authorized person, the purchaser must in principle have been convinced of the seller’s ownership according to then and today’s prevailing doctrine and jurisdiction.  Good faith with respect to the authorization to sell, is only sufficient when purchasing from a businessman entitled to carry out such business.  The investigations carried out in the trial showed that the Gallery of the 19th Century and its director, professor Grimschitz, respectively, knew, that Alma Mahler-Werfel was the owner of the Munch picture, among others. This means that the good faith only extended to Moll’s or Maria Eberstaller’s authorisation to sell, which per se would not be sufficient.

Compare for instance Klang in Klang, Kommentar zum ABGB (1. edition 1931) I/2, 79; Ehrenzweig, System des österreichischen allgemeinen Privatrechts I/2 (2. edition 1957), 190; Bydlinski, JBl 1967, 355; Koziol/Welser, Bürgerliches Recht I (12. ed. 2002) 296; OGH in GlUNF 6644 (from 1913); OGH in SZ 39/65 = JBl 1967, 202. Of different opinion, however, Spielbüchler in Rummel (3. edition 2000) Rz 6 zu § 367 (with reference to Zeiller, Commentar II/1, 136) as well as older jurisdiction.

Only compare Koziol/Welser, Bürgerliches Recht I (12. edition 2002) 296.

Apart from that, the intended or actual use of the proceeds for the house on the Semmering would not have been sufficient either to assume an authorization: Had Alma Mahler-Werfel not known about the concrete negotiations in 1940, neither agreed to them, the behavior of Moll or his daughter Marie could only be qualified as an agency of necessity, which cannot replace an authorization, as accurately described in the second RC ruling. Did Grimschitz therefore assume the existence of an authorization only because he thought, that the proceeds would be used in Alma Mahler Werfel’s interests, without her having given a corresponding authorization, he was subject to an error in law.

In as far as they really wanted to act for Alma Mahler-Werfel, but not out of a personal interest in the repair and the extension of the villa on the Semmering, which was used by themselves.

Unless the proprietor [Geschäftsherr] later agrees.

As can be seen among others from the statement of a witness requested by the Finanzprokuratur,  Dr. Felicitas Hamburger, a  close friend of Moll: „He therefore decided to sell the Munch picture, since he thought, this would be in the applicant’s interest ... I do not know anything about a written authorization.“ (witness statement on 25. September 1959, file page 161 and 162, respectively).

Furthermore, one has to recall the particularity of good faith in terms of section 4 Third Restitution Act: It depends upon the fact, that the purchaser did not know (or did not have to know), that the property was that of an NS victim. The fact that Alma Mahler-Werfel had to be considered a victim of political persecution, however, was known to everybody involved. Already for this reason alone, the acceptance of an acquisition in good faith in accordance with section 4 para 1 Third Restitution Act is completely incomprehensible.

c. Independence of the acquisition from the NS take-over of power?
Apart from that, a demand for return by Alma Mahler-Werfel would have by no means been impossible, even if there had been a (valid) authorization. Even if Alma Mahler-Werfel had carried out the sale to the Gallery by herself, she could have claimed restitution as a victim of political persecution according to the Third Restitution Act, unless it had been proofed, that the purchase had also occurred irrespective of the take-over of power of National Socialism (section 2 para 1 Third Restitution Act)
Possibly, the URC for this reason in its verdict (despite accepting the requirements of section 4 Third Restitution Act) added, that “due to the above mentioned correspondence between professor Moll and Dr Schwarz … it [can] quite safely be assumed to be evident, that the sale of the picture would also have taken place irrespective of the take-over of power.” 

The URC here refers to letters from March 1938, in which Moll negotiates about the sale of the Munch picture in Alma Mahler-Werfel’s name.  über den Verkauf des Munch-Bildes verhandelt. The authorization claimed by Moll was denied by Alma Mahler-Werfel in the restitution proceedings..

Rkb 186/53 = Rk 216/61, file page 381.

This appears to be remarkable, especially because, according to the URC’s jurisdiction regarding the Third Restitution Act, mere considerations to sell (may they have been made before 13 March 1938) were by no means sufficient to proof the transaction’s independence of the take-over of power of National Socialism.  Crucial for the assumption of “independence” was the fact, that the sale took place under the same or similar conditions that built the bases for negotiations before March 1938 and that the sale served the same economic purpose. None of that was the case for the sale of the Munch picture: Alma Mahler-Werfel wanted to sell the beloved picture only to finance her escape, but not to have her roof of the house in Breitenstein repaired during her forced absence. She endeavoured herself to sell the picture abroad to dispose of the possible proceeds herself; apart from that she had not been contacted any more before the picture was sold to the Gallery.

Compare for instance SRC of 3 July 1948, Rkv 63/48 = Heller/Rauscher, Die Rechtsprechung der Rückstellungskommissionen I (1949) No.73; SRC of 19 June 1948, Rkv 83/48 = Heller/Rauscher, No.92. In general, transactions disposing over property caused by the emigration were qualified as not „independent of the take-over of power“; compare for instance URC Vienna of 10 September 1948, Rkb 817/48 = Heller/Rauscher, No. 221.

SRC of 11 September 1948, Rkv 111/48 = Heller/Rauscher, No.120

URC Vienna of 26 August 1948, Rkb 759/48 = Heller/Rauscher, No.219.

The overall result – irrespectively of the URC’s for the claimant very unfavourable, exceptionally emotional appraisal – is therefore that the 1953 decision of the URC Vienna (even on the bases of the circumstances taken for granted by the URC) is in sharp contrast to the provisions of the Third Restitution Act and must consequently simply be qualified as unsustainable. (The consultant takes the liberty to observe that he has analyzed and appraised hundreds of proceedings in his function as leader of the project „Practice of the Proceedings before the Restitution Commissions for the Historical Commission of the Republic of Austria“  and that the decision of the URC is one of the rare cases that has to be refered to as a misjudgment.

As already presented, the investigation of the circumstances and the appraisal of evidence of the first and second instance are diverging, with the URC’s position being considerably less favourable for the applicant than the position of the RC.

Compare Meissel/Olechowski/Gnant, Untersuchungen zur Praxis der Verfahren vor den Rückstellungskommissionen (2004), summarizing 395 ff.

The decision by Dr. Ehrenzweig of the RC Vienna regarding the obligation to restitute the Munch painting, on the other hand, is to be qualified as completely in accordance with the legal provisions of the Third Restitution Act and the decisions of the Supreme Restitution Commission.

C. The Restitution case Mahler-Werfel as “Extreme Injustice” in the sense of the General Settlement Fund Law  2001

The previous legal analysis has not denied the legally binding effect of the Upper Restitution Commission’s ruling, but at least the question arises, whether a – in this case evident – misjudgement in the Post-War Era should still be taken into consideration for today’s restitution measures
The legislative body itself gave an answer to this question in the General Settlement Fund Law (BGBl I 2001/12), which was enacted in order to offer a „comprehensive solution of open questions regarding the compensation“ of NS victims. In this law it is made clear, that official decisions but also restitution settlements (irrespective of their legally binding effect!) shall not be observed, if the decision or settlement is to be considered “extremely unfair”. Despite all ambiguity of the term “extreme injustice”, what at any rate is understood by it, is an extremely inaccurate application of legal provisions, which is given, if a proceeding in compliance with the law would have required a substantially different decision.  In accordance with the decision practice of the Arbitral Authority for Restitution in Kind established in accordance with the General Settlement Fund Law, the existence of an extreme injustice shall be assessed on the bases of a comparison with a „hypothetically correct“ decision of the restitution authoritie; and in doing so it shall be examined whether the „legal foundations were inadmissably interpreted and applied to the disadvantage of the damaged person“  in the particular case. 

Sections 10 para 1, 15 para 1 clause 2, 28 para 1 clause 2 and para 2 clause 2 as well as 32 para 2 clause 1 General Settlement Fund Law, BGBL I 2001/12.

Georg Graf: Arisierung und Restitution, JBl 2001, 746 ff; Franz-Stefan Meissel: Unrechtsbewältigung durch Rechtsgeschichte?, juridicum 2003, 42 ff; Walther H. Rechberger: Ist Ungerechtigkeit komparationsfähig?, juridicum 2005, 59 ff.

Its members are o.Univ.Prof. Dr. Josef Aicher as chairman as well as Ao.Univ.Prof. Mag. Dr. August Reinisch and former Ambassador Hon.Prof. Dr. Erich Kussbach.

Arbitral Authority for Restitution in Kind, decision number 27/2005, Rz 445 and 477.

Arbitral Authority for Restitution in Kind, decision number 3/2003, p. 20, 22; decision number 27/2005, Rz 444.

In the case of the denied restitution of the Munch painting to Alma Mahler-Werfel facing the above-elaborated inadmissability of the reasoning in the legally binding decision of the URC Vienna, this criterion will have to be answered in the affirmative.
Sure enough, according to section 1 para 2 sentence 2 General Settlement Fund Law, the special legal provisions for the restitution of art objects are still applicable. Although the provisions of the General Settlement Fund Law thus cannot be directly applied to the restitution in kind of art objects, the idea of coherence of values still demands to consult the general sense of the legal values expressly stated in the General Settlement Fund Law for the application of the Art Restitution Act 1998 by way of a legal analogy (in the sense of section 7 Austrian General Civil Code). 
It cannot be alledged that the lawmaker imposes the critera of extreme injustice for the correction of individual cases as far as he restitution in kind of real estate (in proceedings before the arbitral authority according the General Settlement Fund Law) is concerned and not to undertake a respective valuation regarding the restitution of art works. This would represent an unobjective differentiation in contradiction with the principle of objectivity under the Austrian constitutional law (article 7 Federal Constitution Law [B-VG]). However, in line with the generally accepted rule of systematic interpretation of the law preferably an interpretation in accordance with the constitution must be chosen, an interpretation, which advances the unity of the legal order. 

Only compare F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff (2. edition 1991) 455 ff.

In the opinion of the Supreme Court the legislative body which the General Settlement Fund Law lays down “must be understood now as the good manners when solving compensation questions“. In this respect its purpose as a legal signal extends beyond the immediate scope of regulation”. In this sense, the point of view of an extreme injustice in the sense of the General Settlement Act should also be consulted for the question of the restitution of the Munch painting to the legal successors of Alma Mahler-Werfel.

OGH 30 September 2002, I Ob 149/02x = JBl 2003, 454.

This means that even if – what for above mentioned reasons is of course not assumed in this legal opinion – the 1953 decision of the URC was binding with regard to the Munch painting in the context of the Art Restitution Act 1998, it would still not be decisive for the question of a restitution obligation today according to section 1 clause 2 Art Restitution Act 1998 as a result of proven extrem injustice of the then decision.

D. Concerning the question of a New Recommendation of the Advisory Board

An anew discussion of the issue in the Art Restitution Advisory Board is possible, since the recommendation from 1999 is not legally binding (see above p. 23 fn. 42 f). But the competent Federal Minister could equally effect a restitution without a recommendation of the Advisory Board, since the Advisory Board has merly a right to be heard and – as elaborated above – the legal provisions for a restitution according to section 1 clause 2 Art Restitution Act 1998 are fulfilled regarding the Munch painting.

Summary of the Most Important Conclusions

a. The Art Restitution Advisory Board’s recommendation not to return the Munch painting “Summer Night at the Beach” to the legal successors of Alma Mahler-Werfel in 1999 turns out to be juristically unsound. In its reasoning the Advisory Board in an inadmissible manner mixes the meaning of section 1 clause 2 Art Restitution Act 1998 with the question of ownership by the Austrian Federation, which arises from the legally binding decision of the URC Vienna, which in 1953 accepted an acquisition in good faith.
b. For the assessment of the prerequisites of a restitution according to section 1 clause 2 Art Restitution Act it is not decisive whether there was a restitution obligation according to the Third Restituion Act. The Art Restituion Act 1998 rather states the prerequisites in a much more general manner by taking up the definition of a void withdrawal of property during then NS-period of section 1 Nullity Law 1946.
c. The preparatory legislative documents to the Art Restituion Act 1998 show the clear intention of the lawmaker to effect with section 1 clause 2 the restitution of art works, which had been the object of a withdrawal of property during the NS regime and have not been restituted in the Post-War Era because they had been acquired in good faith.
d. The prerequisites of section 1 clause 2 Art Restitution Act 1998 are fulfilled regarding the Munch painting: The sale was a legal transaction to be subsumed under section 1 of the Nullity Law, moreover there was a withdrawal in the sense of the Third Restituion Act. Only the legal consequence of a restitution obligation in favour of the damaged owner was denied by the Upper Restitution Commission because of the then (but demonstrably misguided) assumption of an acquisition of property in good faith.
e. The affirmation of an acquisition of property in good faith by the Upper Restitution Commission apart from that does not resist a legal assessment. In the case in question there is an inadmissible application of the provisions of the Third Restitution Act, since the prerequisites of section 4 para 1 Third Restitution Act (based on the circumstances of the case then taken for granted) are not fulfilled.
f. The values of the legislative body in the General Settlement Fund Law 2001 also suggest, not to regard a decision of the authorities in the Post-War Era as binding anymore, if it has to be categorized as “extremely unjust”. The affirmative answer regarding the acquisition in good faith of the Munch painting “Summer Night at the Beach” in 1953 has – at least in its sense – to be qualified as such a case of “extreme injustice”, since the Upper Restitution Commission in a qualifiedly incorrect application of section 4 para 1 of the Third Restitution Act decided to the disadvantage of Alma Mahler-Werfel.
g. The Federal Minister for Education, Science and Culture should therefore make use of the authorization to restitute Munch’s “Summer Night at the Beach” to Alma Mahler-Werfel’s legal successor because of the realization of section 1 clause 2 Art Restitution Act 1998. In view of the constitutional requirements this is not only possible but rather obligatory.

Vienna, 22 December 2005	           	Univ.-Prof. Dr. Franz-Stefan Meissel
									
Translated by Irene Eckart, B.A.