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The Federal Supreme Court has ruled that the entry of a work of art in the Lost Art database does not constitute an infringement on property pursuant to § 1004 of the German Civil Code (BGB) and that the owner can therefore not demand deletion of the entry.

§ 1004 of the German Civil Code (BGB) is an all-purpose weapon that plays a role in many areas of law. It gives owners (and in analogous application also the holders of other absolute rights) claims against so-called interferers for the removal and omission of impairments of rights.

For a long time, however, it has been disputed what actually counts as interference with property in the sense of this law. If someone chops up my chair, it is quite clear that someone is infringing my property. After that, however, the clarity ends. Is it also an infringement, for example, if someone builds a building next to my property and thus deprives me of sunlight? What about if someone sets up a brothel two houses away and I may therefore no longer be able to rent out the flats in my building as expensively?

With its ruling of 21 July 2023, the German Federal Court of Justice (BGH) in Karlsruhe has now provided more clarity in this area of art law and ruled that the entry of a search report of cultural property in the so-called Lost Art database does not constitute an interference with property within the meaning of § 1004 BGB and therefore does not give rise to a claim by the current owner against the initiator of the report to request deletion.

What had happened?

The Lost Art database, which is operated by a foundation based in Magdeburg, documents cultural objects that were taken from Jewish owners in particular as a result of persecution under National Socialism, or for which such a loss cannot be ruled out. With the help of the publication, former owners or their heirs are to be brought together with current owners and supported in finding a just and fair solution regarding the whereabouts of the cultural property.

The case before the Federal Supreme Court concerned the painting “Calabrian Coast” by the painter Andreas Achenbach (1815 – 1910).

“Calabrian Coast” by Andreas Achenbach (1861)

The plaintiff acquired this painting in 1999 at an art auction at the auction house “Phillips” in London. 17 years later, at the instigation of the defendants, the heirs of the Jewish art dealer Max Stern, a wanted notice for the painting was entered in the Lost Art database (Lost Art ID 533378). The latter was finally forced by the Nazi regime in September 1937 to give up his gallery along with ownership of the associated works. The Canadian trust administering his estate had also initiated an Interpol search for the painting in Canada.

The plaintiff objected to the search and registration because he considered the entry to be a claim of ownership of the painting, which he considered to be his. It is recognised that a claim of ownership against a third party is an encroachment on ownership, as it entails the risk that the third party acquires title from the claimant in good faith according to §§ 932 ff. BGB.

The decision of the Federal Supreme Court

However, he was unsuccessful before the Regional Court and the Higher Regional Court. Now the BGH has also rejected the appeal on the following grounds:

First of all, the Federal Supreme Court stated that the search report of the painting on the website of the Lost Art database and the wanted notice did not constitute a claim to present ownership. This was because both were merely based on the (undisputed) previously existing ownership of the painting by the gallery owner Max Stern and the circumstances of the loss of possession. Thus, the registration did not make any statement about the current ownership situation.

The purpose of the publication on the website of the Lost Art database was rather to bring the former owners or their heirs and the current owners of a cultural object together and to support them in working out a just and fair solution in the sense of the Washington Declaration of 1998 on the treatment of works of art lost during the Nazi era.

The Interpol report was no different, because only the loss of the painting during the Nazi regime had been reported. This report did not contain any statement that the defendants considered and represented themselves as the owner of the painting according to today’s legal situation.

The alternatively requested deletion of the database entry could not be demanded either, since the wanted notice was based on true facts. The publication of the wanted notice in the Lost Art database merely made public what, due to the known circumstances of the sale, had been made public anyway pursuant to § 44 (1) no. 1 KGSG, namely that the seizure of the work was (likely) due to Nazi persecution. The plaintiff’s right of disposal was also not legally impaired. The fact that the art market prefers to keep its hands off works registered in the Lost Art database was at most a factual consequence, which could not be relevant in the context of § 1004 BGB.