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The Recovery of Unlawfully Exported Cultural Property with the European Union – The European Commission has a Plan

The European Commission has unveiled plans to strengthen the Restitution Directive.

Council Directive 93/7 EEC on the return of cultural objects unlawfully removed from the territory of a Member State (also known as the Restitution Directive) was adopted in 1993, when the internal frontiers amongst Member States were abolished, in order to protect cultural objects that are classified as national treasures.

The purpose of the Directive was to assist Member States in securing the return of cultural objects classed as “national treasures possessing artistic, historic or archaeological value” under national law, provided that they meet one of the following conditions:

  • they fall within one of the categories listed in the annex to the Directive; or
  • they form an integral part of public collections recorded in the inventories of museums, archives or libraries or those of ecclesiastical institutions.

The annex to the Directive sets out the categories to which objects classified as national treasures by the relevant Member State must belong, in order to qualify for return under the Directive.

The Directive applies where a national treasure meeting one of the conditions above, has been unlawfully removed from the territory of a Member State and is found in the territory of another Member State. In order to facilitate its return, the Directive requires the courts of other Member States to assist the claimant Member State to recover the object. In effect, the courts of each Member State must enforce the export control laws of other Member States, insofar as they apply to cultural property deemed national treasures.

The Directive applies only to cultural objects unlawfully removed from the territory of an EU country on or after 1 January 1993 (unless individual EU countries broadened its scope by including objects that have been unlawfully removed from their territory before 1 January 1993).

Initiation of proceedings before a court for return of objects

Only EU countries may initiate proceedings with the aim of securing the return of a cultural object. The courts of the EU country where the object is found, have the power to order the object’s return to the claimant EU country.

At the moment, return proceedings may not be brought more than one year after the claimant EU country becomes aware of the location of the cultural object and the identity of its possessor or holder. Such proceedings may in any case not be brought more than 30 years after the object was unlawfully removed from the territory of the claimant EU country, except in the case of objects forming part of public collections or ecclesiastical goods in respect of which the time limit is 75 years or longer as determined by national legislation or bilateral agreements between EU countries.

Financial compensation

When the return of a cultural object is ordered, the possessor is entitled to fair compensation if the court is satisfied that the possessor exercised due care and attention in acquiring the object. The burden of proof is governed by the law of the Member State where the object is located. In some cases, national law may require the possessor to positively prove that he exercised due diligence, whereas in other cases, national law may require the claimant Member State to show that the possessor knew or should have known that the object was unlawfully removed.

Recoveries to Date

Interestingly, the European Commission reported that in the period 2004-2007, 148 amicable returns of cultural objects were achieved through administrative cooperation between Member States. In eight cases, legal action was initiated for the return of objects. In the period 1999-2003, the Commission reported that there were only five amicable returns and three cases where legal proceedings were initiated.

The European Commission’s Proposal

Following a public consultation that ended in March 2012, the European Commission announced that it would propose changes to the Directive to improve its effectiveness.

The first proposal is to extend the scope of the Directive to all objects declared “national treasures” by the Member States. This means removing the two conditions set out above, the first being that the object comes under one of the categories set out in the annex, the second being that the object forms part of a public collection or is included in the inventories of ecclesiastical institutions. Effectively, this means that a Member State will be able to rely on the Directive to recover any cultural object it has declared a a “national treasure” (before or after its alleged unlawful removal). This is potentially a concern for collectors and for the trade. We know that certain Member States enthusiastically embrace the notion of national treasure by promptly declaring “national treasure” any old trinket that takes the fancy of the local officialdom, even where the object has little or no connection with the Member State. We should expect that any cultural property unlawfully removed from a Member State which the Member State wishes to recover, will instantly be promoted to “national treasure”, thereby allowing the Member State to rely on the Directive to seek its return.

Interestingly, in its Explanatory Memorandum, the Commission observes that the possessor can submit evidence to the court challenging the decision by the claimant Member State to classify the object as a national treasure. The court will then have to make a ruling, where necessary after seeking a preliminary ruling from the European Court of Justice. Coming from the Commission, the observation is perhaps surprising because it is politically charged. There is currently no EU definition of national treasure. Whilst the European Treaty specifically exempts national treasures from the principle of free movement of goods, the exemption is not meant to be used by Member States as a licence to restrict the movement of cultural property if it does not qualify as national treasure. It remains to be seen if the European Court of Justice will be prepared to interfere in the discretion currently afforded to Member States to decide which items of cultural property qualify as national treasure.

The second change proposed by the Commission is to extend the period during which a claimant Member State can bring a claim in the courts of another Member State from one year to three years.

Member States have complained that it can be difficult for them to bring a claim for restitution if they must compensate the possessor. In order to make it harder for possessors to secure compensation from claimant Member States, the third change proposed by the Commission is to provide that only possessors who prove that they acted with the due care and attention required when acquiring the object should be entitled to compensation. This change, if introduced, will make it even more crucial to ascertain, before buying an artwork, whether it may have been unlawfully removed from another Member State.

The proposal provides guidance to the courts by describing various factors to consider when deciding whether the possessor exercised due care and attention. They are:

  • the documentation recording the object’s provenance
  • any authorisation for removal of the object from the claimant state
  • the nature of the parties
  • the price paid
  • whether the possessor consulted any accessible register of stolen cultural object
  • any other relevant information and documentation the possessor should have reasonably obtained
  • whether the possessor took any other step which a reasonable person would have taken in the circumstances.

The fourth proposal is to promote the use of the Internal Market Information System to facilitate administrative cooperation and the exchange of information between national authorities in charge of cultural property. The Internal Market Information System was developed by the Commission as a secure, multilingual online platform designed to allow exchanges of information between national authorities. An ad hoc module suited to the requirements of the Directive would be developed. Access to the Internal Market Information System is only open to the relevant authorities in the Member States.

The proposal for a revised Restitution Directive is set to be considered by the European Parliament either late this year or in early 2014.

Pierre Valentin

Articles published on this blog reflect the opinion of the stated author of the article only. The information they contain does not constitute legal advice.