Ernst Ludwig Kirchner, "Berlin Street Scene." Courtesy Brücke Museum Berlin

The debate about "Berlin Street Scene," the 1913 painting by Ernst Ludwig Kirchner, will not come to an end with its sale on auction at Christie's in New York (pdf file with info). Because then everyone will want to know who was prepared to take possession, at any price, of this masterwork of German Expressionism, a work that hung unobtrusively from 1980 to July 30 2006 in Berlin's Brücke Museum. Perhaps one day we will recall the debate, if "Berlin Street Scene" is put up for sale again. The market in 2006 is hotter and more speculative than ever. Recently at Sotheby's, just as today at Christie's, quite a few paintings have been put on the auction block only a few years after they last changed hands: the expectation being that they will double in value. For a Cezanne that cost 12 million British pounds in 2000 at Christie's, Sotheby's now hopes to fetch from 28 to 35 million dollars. A Modigliani that brought in 5 million dollars in 1997 at Christie's now is expected to draw up to 18 million.

About ten percent of the highlighted artworks in Christie's autumn sale are pieces that were returned to the heirs of collectors who were persecuted during the Nazi period: A Vuillard interior, a Picasso still life, four paintings by Gustav Klimt whose estimated value totals 100 million dollars - and now Kirchner's "Berlin Street Scene." Christie's hints of great interest from Russia. A price tag of 30 million dollars does not seem impossible. The previous record price for an auction of German Expressionists was achieved last February in London, with 7.2 million euros for Kirchner's "Portrait of a Woman in a White Dress" of 1908.

Kirchner's "Berlin Street Scene" was an important attraction at the small Brücke Museum in Berlin. Lutz von Pufendorf, head of the Society for the Promotion of the Brücke Museum, wants to initiate a criminal procedure against Berlin Senator for Cultural Affairs Thomas Flierl and his Secretary of State, Barbara Kissler. Von Pufendorf accuses them of having returned the painting to Anita Halpin, granddaughter of collector Hans Hess, without any legal - or even moral - justification. The Senator for Cultural Affairs therefore misappropriated the rightful property of the state.

The case has prompted renewed discussion in Germany about Nazi crimes. Not all claims by heirs to masterpieces owned by victims of the Nazis hold water. What is indisputable is that Thekla Hess, widow of the Leipzig shoe manufacturer and art collector Hans Hess, sold the painting in 1936 for 3,000 reichsmarks to Carl Hagemann, the I.G. Farben board member and collector, an opponent of the Nazis. But what is not clear is whether this sale was a result of Nazi persecution of Hess, who was Jewish. Anita Halpin asserts a circumstantial, "indirect force," and the Senator for Cultural Affairs invokes an affidavit of 1958, in which the widow Thekla Hess speaks of the forced sale of paintings from her husband's collection.

But Lutz von Pufendorf relies on the verdict of experts. After Carl Hagemann's death in 1940, Hagemann's family gave the painting as a private gift to the director of the Städel Museum in Frankfurt. His widows in turn sold it to the Brücke Museum in 1980 for 1.8 million marks. Uwe Fleckner, who heads the Art History Institute at the University of Hamburg and the research centre on "Degenerate Art" at the Free University of Berlin, and Wolfgang Henze of the Ernst-Ludwig-Kirchner Archive in Bern, Switzerland, both conclude that Thekla Hess already had sold the Kirchner painting of her own accord for economic reasons, and for a price appropriate to the times, and that she had full access to the proceeds of the sale afterwards. Thus the Brücke Museum's ownership of the masterpiece would have been completely legal. Evidence for this is in a letter from Kirchner from February 1937, in which he seems pleased that Hagemann has purchased "the street scene." In addition there is a letter of March 1937, in which the collector Arnold Bodczies similarly congratulates Hagemann on his purchase, while opining, "The price is clearly very high." There is no receipt for the sale.

It is this missing receipt with which Thomas Flierl and his state secretary justify their decision for a straightforward restitution. They refer to the Washington Declaration of December 3, 1998, including the "general principles applicable to artworks confiscated by the Nazis," and to a so-called assistance in 2001 from the federal, state and local governments. True, the Washington Declaration clearly states in its very first sentence that there is no formal legal justification for return of works, but recognizes a morally justified interest to recover wrongfully lost property, including art collections, for heirs of those persecuted under the Nazi dictatorship.

Since the heirs are usually most concerned about financial restitution, while museums are most concerned about the artwork, the declaration calls for a "fair and just settlement." The German "assistance" thus establishes high hurdles to the advantage of the heirs. The loss of property is also deemed to be a result of persecution if the deprivation was only indirectly a result of the Nazi dictatorship, even if the sale took place from abroad. A loss is to be seen as non-political, and solely economical, in cases where an appropriate price was paid and if it can be verified that the transaction would have taken place even had there been no Nazi dictatorship. In particular, the last receipt is obviously hard to produce, which is why German museums on principle have a particularly difficult position in restitution negotiations.

With good will on both sides, there was nothing to block a fair settlement in keeping with the Washington Declaration. The recent abundance of spectacular restitutions which resurfaced on the art market within days, namely on the lists of international art auction houses, certainly feeds doubts about this good will. Increasingly, the supposed settlement promotes the legitimate interests of the international art market in works of unique quality, works that promise high profits. So it's not necessarily immoral to ask, in the case of "Berlin Street Scene," whether the Senate exercised sufficient care and caution in the negotiations. There was no apparent good will to retain an important work of art for the public. Rather, the moral value of an unopposed restitution seems to have been more important to the Senator for Cultural Affairs.

Thus the uncomfortable point arises: there were more than enough opportunities to demonstrate moral rectitude in questions of art. But the period of National Socialism and its ripple effects today remain an altogether repressed area of social conscience in Berlin, beyond the reach of political sensibilities. Under the administration of Gerhard Schröder, Cultural Secretary Christina Weiss suggested that the contemporary art collection of an heir of a Nazi war criminal such as Flick could "heal the wounds inflicted during the Nazi period." And recently, curators of the much-publicized exhibit "Berlin - Tokyo" considered it superfluous to document the years from 1933 to 1945 with artworks from that period. Instead, the exhibit included paintings from 1945 by persecuted artists.

It could be that such repressions of memory reflect the city administration's need for a particularly clean slate. The tight-lipped, guilty consciences of leftists like Flierl and Kissler make it clear why they did not bring the two-year-long restitution negotiations to the public. Even supporters of the Brücke Museum first learned though the press that a chief work in the collection probably was lost forever. It apparently seemed unnecessary to Thomas Flierl and Barbara Kissler to seek the advice of external experts. Wolfgang Henze of the Kirchner Archive in Bern was never approached. It was Christie's Auction House that contacted him on July 24 2006 with questions about the Hess collection.

The explanation for this sudden curiosity clearly lies in Berlin. Flierl and Kissler had passed along a paper by Andreas Hüneke, art historian in Potsdam and associate at the research centre on "Degenerate Art" at the FU Berlin, to the lawyers for the heirs. The paper, which now is freely accessible at www.artnet.de, summarizes Hüneke's research on the Hess collection. The author also had made his findings available to museums in Erfurt, Duisburg and Essen, institutions likewise affected by Anita Halpin's restitution claims. He now complains that the attorneys have earned "their money with my work, freely available to the public": At the end of July, working at the behest of Anita Halpin, the lawyers demanded the return of a painting by August Macke from the Art Museum of Aargau, Switzerland. But the museum saw neither legal nor moral justification for restitution, and reported the case to the Swiss Federal Office for Culture, which since 1999 has had a department dealing with stolen artwork.

Germany's moral responsibility vis-à-vis the heirs of people who were persecuted under the Nazis is clearly a serious matter. In fact, the Washington Declaration is linked to reparations for forced labourers, a reminder that the subsequent costs of the Nazi period have hardly been resolved. A long overdue remembrance, that finally gave some concrete recognition to survivors themselves. But in the case of heirs, the situation is far more complex. Here, art dealers and law offices – who assist in setting the restitution process in motion – usually profit more than heirs. Because after the deduction of the commission and auction costs, there is often less left over for the heirs than what the museums had offered them. Why do the latter not take advantage of this situation? Why don't they come to the market first with these artworks that are likely to be caught up in restitution claims, and offer their assistance?

For this purpose, politics must take over and put together a budget, as it did in the case of forced labour restitution. But politics prefers to play dead, and in cases where museums aren't successful, they lose their artworks. Political players consider it perfectly OK to dump precious manuscripts in return for an out of court settlement. So why should they be annoyed if "Berlin Street Scene" is swallowed up by a Putin-friendly oligarch?

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The article originally appeared in German in Die Tageszeitung on November 6, 2006.

Brigitte Werneburg is cultural editor at Die Tageszeitung.

Translation: Toby Axelrod