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In 2023, the most discussed topic in art law was the issue of restitution,³ led by the controversies surrounding the Bührle Collection at Kunsthaus Zurich, one of Switzerland's largest museums. Public discussions also revolved around the handling of cultural objects taken during the colonial era (e.g., there are numerous Swiss museums that possess items of the Benin Bronzes looted in 1897). The culmination of those discussions was the Swiss government's decision to establish an independent commission for 'historically burdened cultural property'.

i Nazi-confiscated artworks

In late 2021, the Kunsthaus Zurich⁴ started exhibiting almost 200 works from the collection of the late arms dealer Emil Bührle in its newly built 200 million Swiss francs extension building. Since the beginning of the exhibition of the Bührle works, the Kunsthaus has faced harsh national and international criticism.⁵ On one hand, it was criticised because there was – according to the critics – no sufficient discussion of Bührle's significant wealth accumulation through arms supplies to Nazi Germany. On the other hand, the Kunsthaus Zurich is accused of not adequately addressing the persecution of Germany's Jewish population by the Nazis, despite Bührle's documented acquisition of several works with a persecution context. Moreover, the Kunsthaus has been accused of biased provenance research. Regarding some artworks displayed at the Kunsthaus, there have been statements made that they were Nazi-confiscated.⁶

As a result of this criticism, the Kunsthaus Zurich has committed to not exhibiting Nazi-confiscated artworks and to independently review the provenance of all works from the Bührle Collection displayed in the Kunsthaus.⁷Furthermore, the conceptual approach to the Bührle exhibition has been adjusted, with a more critical examination of Bührle's role as a supplier of arms to Hitler. Nevertheless, the Kunsthaus Zurich's handling of the fate of Germany's persecuted Jewish population remains an object of criticism. An expert group, composed of seven prominent scholars who advised the Kunsthaus on the reorientation of the Bührle exhibition, resigned in protest three weeks before the opening of the new exhibition on 2 November 2023. The expert group accuses the Kunsthaus of inadequately representing the persecution of Germany's Jewish population before and during the Second World War.⁸ The examination of the provenances of the Bührle artworks is ongoing.

The Kunsthaus' Bührle case has made it clear that today, in Switzerland, just and fair solutions in the sense of the Washington Principles must be sought for all Nazi-confiscated artworks. The Swiss distinction between looted art and flight art has become irrelevant. Until recently, there was a view in Switzerland that artworks sold by Jewish collectors who had fled to Switzerland were exempt from any restitution debate if the sale had taken place in Switzerland. According to this opinion, only sales that had taken place in Germany required negotiations to find just and fair solutions. This view is now outdated.

Initially, abandoning the difference between looted art and flight art started with the acceptance of Cornelius Gurlitt's inheritance by the Kunstmuseum Bern in 2014. The Kunstmuseum Bern unequivocally acknowledged the need for just and fair solutions for all Nazi-confiscated artworks and set the new standard in Switzerland as was demonstrated by the Kunsthaus Zurich's Bührle case.

Another museum that adopted the new view on restitution cases was the Kunstmuseum Basel. After having categorically rejected any negotiations with the heirs of Curt Glaser, the Jewish former director of the state art library in Berlin, in the early 2000s, in 2020 the Kunstmuseum Basel reached an agreement about works from Glaser's collection bought by the Kunstmuseum Basel in 1933. Part of the agreement involved an exhibition on the history of the collection and the collector Curt Glaser at the Kunstmuseum Basel, which lasted from October 2022 to February 2023.⁹

However, the need to find just and fair solutions for every case of Nazi-confiscated art does not predefine the content of a just and fair solution. Every single case deserves its tailor-made solution. 

ii Colonial era artworks

To find solutions for the Benin Bronzes located in Switzerland, the Swiss Benin Initiative was established, consisting of eight Swiss museums.¹⁰ All these museums have committed to returning ownership of the Benin Bronzes, which were stolen or likely stolen, to their original owners.¹¹

iii Independent commission for historically burdened cultural property

The case of the Bührle collection has led to intensified calls (e.g., by the author of this chapter)¹² for the establishment of a commission regarding Nazi-confiscated artworks as foreseen in the Washington Principles. Finally, on 22 November 2023, the Swiss government decided to establish such a commission. To the surprise of many, the commission will not only hear cases of Nazi-confiscated art, but cases of 'historically burdened cultural property' in general. Cultural property removed from former colonies, in particular, falls under this category.¹³

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