50 No. 77 JUSTICE explicitly presented themselves as a non-binding guide, leaving all decisions to the respective current holder.19 The German Advisory Commission did not succeed in developing a convincing set of standards either. Rather, it considered each case as an incommensurable singularity, despite recurring structures and normative tipping points. This was partly because it was only called upon for approximately 25 proceedings in just over twenty years. In contrast, the Austrian Art Restitution Advisory Board, the “Kunstrückgabebeirat,” centrally responsible for deciding on all objects owned by the federal level of the (Second) Republic of Austria, has issued over 400 recommendations.20 The Dutch Restitution Committee has rendered more than 170 decisions. At the same time, the German Advisory Commission did not consider it to be its task to generate abstract, general standards. Rather, as has just been explained, it conceived each of the (few) cases submitted to it as normatively unique and therefore decided these cases according to “ethical and moral” (sometimes “moral and ethical”) aspects, some of which were configured ad hoc and were not applied again in similar cases.21 However, even ethical and moral criteria are obviously subject to consistency requirements, if the implementation of justice is at issue, and it was therefore hardly convincing that recurring and controversial constellations in the discourse such as “Fluchtgut” (“flight goods” or “flight-related sales”) were each decided differently and on the basis of different guiding principles, without any reference to contradictory previous decisions.22 Furthermore, the recommendations could not be submitted to any review process. Finally, the Advisory Commission unfortunately made a number of rather blatant mistakes in respect to due process standards. It has already been mentioned that no reference was made to its own earlier recommendations, even in structurally identical cases that were then decided on fundamentally different principles. Further, the Commission occasionally took note of foreign recommendations as persuasive authorities, which is certainly commendable. However, if one undertakes comparative research, the issue in question should be dealt with more comprehensively than just by referring to a single legal system that happens to support one’s own position. Moreover, in this specific case, the Advisory Commission wrongly referred to a recommendation of the Austrian Art Restitution Advisory Board, the “Kunstrückgabebeirat.” However, it was not that Advisory Board, but rather the adjudicating body of the Leopold Museum in Vienna, the so-called “Michalek Commission,” that had issued the recommendation in question.23 Some observers therefore believed that the Commission simply took up this reference from a party’s submission, without any further critical review of its own. It seems that the German Advisory Commission did not react to external advice on this error, for example from the Austrian Art Restitution Advisory Board, that was reported to have contacted the German colleagues. Instead, the German Advisory Commission simply tacitly amended its previously published statement of reasons on this point – without any visible note of correction. This of course further undermines a decision-making body’s credibility. Further, central party submissions were sometimes ignored in the reasonings, which would be a violation of the constitutional right to be heard in proceedings before German state courts (and certainly elsewhere as well).24 19. Manual, supra note 11, at sub. D I – Preliminary remarks, at 31 (translation by the author): “The decision in individual cases, taking into account the Washington Declaration and the Joint Declaration, is at the discretion of the institution concerned, if necessary taking into account the applicable budgetary provisions. The following general notes and aspects of this Manual are to be examined on a case-by-case basis.” 20. Anne Dewey, GERECHT UND FAIR? DIE EMPFEHLUNGSPRAXIS DES ÖSTERREICHISCHEN KUNSTRÜCKGABEBEIRATS IM LICHTE DER WASHINGTONER PRINZIPIEN, Berlin 2023, at 65 et seq. 21. Critical on this point, e.g. Weller, Antinomien und andere Auffälligkeiten in der Spruchpraxis der Beratenden Kommission zur Restitution nationalsozialistischer Raubkunst, in: Fischer/Nolte/Senftleben/Specht-Riemenschneider (eds.), GESTALTUNG DER INFORMATIONSRECHTSORDNUNG: FESTSCHRIFT FÜR THOMAS DREIER ZUM 65. GEBURTSTAG, Munich 2022, at 525-533. 22. For a critical account see Weller, Restitution of National Socialist Looted Art: The German Attribution Model under the microscope, in: Peifer/Kubis/Raue/Stieper (eds.), IUS VIVUM: KUNST – INTERNATIONALES – PERSÖNLICHKEIT: FESTSCHRIFT FÜR HAIMO SCHACK ZUM 70. Geburtstag, Tübingen 2022, at 85-96. 23. See in detail Weller et al., supra note 7, ¶ 302. 24. See e.g. the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), decision of Jan. 24, 2018, docket no. 2 BvR 2026/17, ECLI:DE:BVerfG:2018:rk20180124.2bvr202617, ¶ 14, with further references: “The
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