Cross-border
restitution claims of
looted works of art
and cultural goods
European Added Value
Assessment
Accompanying the European
Parliament's legislative
initiative report
(Rapporteur: Pavel Svoboda)
Study
The European added value of EU legislative action on
cross-border restitution claims of looted works of art and
cultural goods
In accordance with Article 225 of the Treaty on the Functioning of the European Union
(TFEU), the European Parliament has a right to ask the European Commission to take
legislative action in a particular area. Such requests are based on a legislative initiative
report by the parliamentary committee responsible. On 16 February 2016, the Conference
of Presidents of the European Parliament authorised its Committee on Legal Affairs (JURI)
to draft a legislative initiative report on cross-border restitution claims of looted works of
art and cultural goods.
All legislative initiative reports must automatically be accompanied by a detailed
European Added Value Assessment (EAVA). Accordingly, the JURI Committee asked the
Directorate-General for Parliamentary Research Services (EPRS) to prepare an EAVA to
support the legislative initiative report on the cross-border restitution claims of works of
art and cultural goods looted in armed conflicts and wars, rapporteur: Pavel Svoboda
(EPP, Czech Republic), Chairman of the JURI Committee.
The purpose of a European Added Value Assessment is to support a legislative initiative
of the European Parliament by providing scientifically-based evaluation and assessment
of the potential added value of taking legislative action at EU level. In accordance with
Article 10 of the Interinstitutional Agreement on Better Law-Making of 13 April 2016, the
European Commission should respond to a Parliament request for proposals for Union
acts by adopting a specific communication. If the Commission decides not to submit a
proposal, it should inform the Parliament of the detailed reasons therefore, including a
response to the analysis on the potential European added value of the requested measure.
Abstract
Works of art and cultural goods looted in armed conflicts or wars usually travel across
several borders when they are sold. The cross-border character of looted art creates legal
challenges for restitution claims as they often concern various national jurisdictions, with
differing rules, as well as fragmented and insufficiently defined legal requirements in
international and European legal instruments. Against this background, this European
Added Value Assessment identifies weaknesses in the existing EU legal system for
restitution claims of works of art and cultural goods looted in armed conflicts and wars.
Moreover, it outlines potential legislative measures that could be taken at the EU level and
that could generate European added value through simplification and harmonisation of
the legal system in this area.
AUTHOR
Christian Salm, European Added Value Unit
AUTHOR of the externally commissioned study (Annex I)
Prof. Dr Matthias Weller, EBS Law School of the EBS University of Economics
and Law, Wiesbaden, Germany
RESPONSIBLE ADMINISTRATOR
Christian Salm, European Added Value Unit
To contact the Unit, please e-mail EPRS-EuropeanAddedValue@ep.europa.eu
ABOUT THE PUBLISHER
This paper has been drawn up by the European Added Value Unit of the
Directorate for Impact Assessment and European Added Value, within the
Directorate-General for European Parliamentary Research Services of the
Secretariat of the European Parliament.
To contact the Unit, please e-mail EPRS-EuropeanAddedValue@ep.europa.eu
LINGUISTIC VERSIONS
Original: [EN]
Manuscript completed in October 2017.
© European Union, 2017.
This document is available on the internet at: http://www.europarl.europa.eu/thinktank
DISCLAIMER
This document is prepared for, and addressed to, the Members and staff of the
European Parliament as background material to assist them in their parliamentary
work. The content of the document is the sole responsibility of its author(s) and
any opinions expressed herein should not be taken to represent an official position
of the Parliament.
Reproduction and translation for non-commercial purposes are authorised,
provided the source is acknowledged and the publisher is given prior notice and
sent a copy.
PE 610.988
ISBN 978-92-846-1732-6
doi: 10.2861/461637
QA-06-17-103-EN-N
Cross-border restitution claims of looted works of art and cultural goods
1
Contents
Executive summary .................................................................................................... 2
Introduction ................................................................................................................. 4
The illegal art market, legal challenges and indicators on the amount of
restitution claims ......................................................................................................... 6
EU Policy Context ....................................................................................................... 8
Weaknesses in the existing EU legal system ......................................................... 10
Possible EU legislative action .................................................................................. 13
European Added Value ............................................................................................ 15
Annex 1 – Study on the European added value of legislative action on cross-
border restitution claims of works of art and cultural goods looted in armed
conflicts and wars with special regard to aspects of private law, private
international law and civil procedure .................................................................... 16
European Added Value Assessment
2
Executive summary
Restitution claims concerning looted works of art and cultural goods usually include a
cross-border element. Looted in armed conflicts and wars, works of art and cultural goods
are often exported out of the country where the looting took place.
Due to cross-border distribution channels, it is not easy to stop illegal trade in works of art
and cultural goods. Furthermore, it is difficult to estimate precisely the size of the market
of looted artefacts. Nonetheless, studies have attempted to quantify it and, despite some
divergences, they all seem to agree that it is a prosperous market and that it represents the
third biggest illegal market following those for drugs and weapons.
At the international and European levels, several instruments exist to deal with cross-
border restitution claims for looted works of art and cultural goods, namely: the first (1954)
and second (1999) protocol of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflicts; the 1970 UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property; the Convention on Stolen or Illegally Exported Cultural Objects; EU Directive
2014/60 on the Return of Cultural Objects Unlawfully Removed from the Territory of a
Member State, and EU Regulation 1215/2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, in particular Article 7(4)
thereof.
Despite these instruments, there is no effective default regime to tackle the legal difficulties
arising from the cross-border nature of restitution claims concerning looted works of art
and cultural goods. The absence of an effective (international and European) private law
framework to strengthen such restitution claims is a general weakness. In addition, there
are a number of specific areas of weakness within the EU legal system, which lead to an
uncertain legal situation, including the special case of Nazi looted art:
(i) no single or harmonised definition of the term 'cultural property/object', and regulatory
fragmentation;
(ii) fragmentation of anti-seizure legislation and unclear relation between national anti-
seizure statutes and EU Directive 2014/60;
(iii) differing substantive law and choice of law rules across the EU Member States;
(iv) insufficient measures for trade in Nazi looted art (future transactions) and
contradictory restitution recommendations in cases of restitution claims of Nazi looted art
(past transactions).
Against, this background, this European Added Value Assessment (EAVA), outlines
potential legal action that could be taken at the European level in order to contribute to
resolving the legal uncertainties linked with restitution claims concerning looted works of
art and cultural goods. The proposed legislative measures include, inter alia, establishing a
general in rem jurisdiction (based on the location of the property and the principle that
Cross-border restitution claims of looted works of art and cultural goods
3
enforcement follows property rather than person) for movable property (not only limited
to cultural objects); harmonising anti-seizure statutes across EU Member States;
introducing a general prohibition of sale and acquisition for stolen and illegally
exported/imported works of art and cultural goods, and complementary measures such
as setting-up an EU department or self-standing agency on the protection of looted works
of art or cultural goods, and supporting provenance research at the European level.
The EAVA argues that the adoption of such measures would create a more certain EU legal
system for restitution claims of works of art and cultural goods looted in armed conflicts
and wars. Legal certainty, accompanied by complementary measures, such as support for
provenance research at the European level, would constitute an added value in itself. It
would also help to reduce costs, such as those incurred in ensuring robust results of
provenance research or additional legal fees due to the cross-border context.
European Added Value Assessment
4
Introduction
The issue of works of art and cultural goods looted in armed conflicts and wars clearly
features a cross-border character – looted items are often exported out of the country where
the looting took place and illegally traded and transported through others before reaching
their final destination. In 1941, for example, the Nazis looted, from a private collection in
the Netherlands, landscape paintings by the 18
th
century Bohemian painter Norbert Grund,
and brought them to Germany. Having been sent by a consignor in Germany, the paintings
reappeared at the beginning of 2001 at a sale of the state-owned auction house Dorotheum,
based in the Austrian capital, Vienna.
There are estimates that the global illegal market for works of art and cultural goods has a
value of between US$6 and US$8 billion per year.
1
It would thus be the third biggest illegal
market following those for drugs and weapons. Importantly, there is evidence that terrorist
groups such as ISIS use the illegal art market to help finance themselves. Works of art and
cultural goods looted by ISIS in Iraq and Syria
2
are put on sale by auction houses in Europe
despite existing EU legislation prohibiting trade in cultural goods with these countries,
under certain circumstances.
3
One of the most prominent cases concerns cultural relics
looted from the ancient Syrian city of Palmyra and smuggled to Europe.
4
Due to cross-
border distribution channels, however, it is not easy to stop this illegal trade.
The cross-border character of looted works of art and cultural goods creates problems for
restitution claims. They involve several national jurisdictions with differing rules
regarding, for example, the law that should be applied in cross-border looted art disputes
and the standards of proof that should be applied for determining whether a work of art
has been looted. In addition, the various international and European legal instruments
currently applicable in cases of cross-border restitution claims of looted works of art and
cultural goods are fragmented and incomplete. At the international level, three
instruments deserve particular attention:
• The first (1954) and second (1999) protocol of the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflicts (Hague
Convention)
• The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO
Convention)
1
See, for example, Frank Wehinger, Illegale Märkte. Stand der sozialwissenschaftlichen Forschung,
MPIfG Working Paper, 11/6, October 2011, p. 50.
2
For examples of looted cultural property from Iraq and Syria and possible protection measures see,
for example, United States Government Accountability Office, GAO Report to Congressional
Requestors, Cultural Property. Protection of Iraqi and Syrian Antiquities, August 2016.
3
Council Regulation (EC) No 1210/2003 of July 2003 concerning certain specific restrictions on
economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96, Council
Regulation (EU) No 36/2012 of January 2012 concerning restrictive measures in view of the
situation in Syria and repealing Regulation (EU) No 442/2011.
4
See, for example, Harriet Agerholm, Stolen artifacts from Palmyra and Yemen seized in Geneva,
in: The Independent, 4 December 2016.
Cross-border restitution claims of looted works of art and cultural goods
5
• The 1995 Convention on Stolen or Illegally Exported Cultural Objects adopted
by the International Institute for Private Law (UNIDROIT Convention).
At the European level, legislation applicable to restitution claims of looted works of art and
cultural goods include:
• EU Directive 2014/60 on the return of cultural objects unlawfully removed from
the territory of a Member State and,
• EU Regulation 1215/2012 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters, and in particular Article 7(4) thereof.
Crucially, looking at these international and European legal instruments
5
as a whole,
private law for restitution claims of looted works of art and cultural goods plays a minor
role. The focus has so far been on public international law. Small exceptions in the areas of
private law build partly the UNIDROIT Convention and EU Regulation 1215/2012, with
its Article 7(4) referring to civil claims for the recovery of a cultural object.
6
For an effective
default regime in cases of cross-border restitution claims of looted works of art and cultural
goods, however, a stronger private international law dimension to supplement the public
international law dimension would be required. In other words, the insufficiently
developed (international and European) private law dimension contributes to legal
uncertainty in cases of cross-border restitution cases of looted works of art and cultural
goods.
Within the context of EU legislative action on restitution claims for looted works of art and
cultural goods, art looted by the Nazis between 1933 and 1945 represents a special case.
According to expert research carried out by Prof. Dr Matthias Weller (Annex I), a
distinction should be made between already completed transactions in Nazi looted art and
future ones. EU legislative action, including the private international law dimension,
would be appropriate for future transactions only. With regard to fully completed
transactions, and/or legal relations fully established in the past, however, EU legislative
action to change the law retroactively would not comply with guarantees under the
European Convention on Human Rights, the EU Charter of Fundamental Rights and
national constitutional guarantees in the Member States.
7
Restitution claims for past
transactions in Nazi looted art shall be considered based on moral guidelines. Such
guidelines are particularly provided for by the 1998 Washington Declaration. This was the
first instrument focusing on Nazi looted art and its eleven principles were tailored to find
5
For further information on these and other instruments aimed at protecting works of art and cultural
goods in armed conflicts and wars, see, for example, Magdalena Pasikowska-Schnass, Protection of
cultural heritage in armed conflicts, EPRS, March 2016.
6
Article 7(4) of Regulation 1215/2012 reads: ‘as regards a civil claim for the recovery, based on
ownership, of a cultural object as defined in point 1 of Article 1 of Directive 93/7/EEC initiated by
the person claiming the right to recover such an object, in the courts for the place where the cultural
object is situated at the time when the court is seized;’
7
For further details as to why retroactive legislation is not advisable, see the external expert study
by Matthias Weller (Annex I of this paper), pp. 78ff.
European Added Value Assessment
6
‘just and fair’ solutions.
8
It is estimated that the Nazis looted more than 600 000
9
works of
art and cultural goods especially from Jewish families, gallery owners and collectors. Only
a small number of these pieces of art were returned to the former owners or their heirs and
many are still missing.
Against this background, this European Added Value Assessment (EAVA) follows a five-
fold strategy. Firstly, it will shortly describe the character of the illegal art market, and legal
challenges for claimants, and provide indicators on the amount of requests to recover
looted works of art and cultural goods. Secondly, it will sketch the EU policy context.
Thirdly, it will point out the weaknesses in the existing EU legal system. Fourthly, it will
suggest possible EU legislative action to strengthen the legal system for cross-border
restitution claims of works of art and cultural goods looted in armed conflicts and wars.
Fifthly, it will outline the added value of EU legislative action.
For the purpose of this EAVA, the terms 'cultural property' and 'cultural object' will be
used in addition to the terms 'works of art' and 'cultural goods'. The use of the terms
(looted) 'cultural property' and 'cultural object' to mean looted works of art and cultural
goods is explained by their frequent appearance in the relevant legal texts and in academic
legal discourses.
The illegal art market, legal challenges and indicators on the
amount of restitution claims
As mentioned above, estimates of the global illegal market for works of art and cultural
goods range between US$6 and US$8 billion per year. Yet, these figures should be
considered as rough estimates at best, as reliable data on illegal trade in works of art and
cultural goods is practically non-existent. Data on the value of the legal global art market,
for which estimates vary between US$45 billion
10
and US$57 billion
11
for the year 2016, is
more reliable. On the basis of the higher range, the value of the legal European art market
has been estimated to amount to about US$19 billion.
12
Taking again the higher ranges of
the estimates of the legal and illegal global art markets, the illegal global art market has a
value of about one seventh of the legal global art market. The main destinations for illegal
trade in works of art and cultural goods are the markets in North America and Europe.
13
8
The central principle, no. 8, of the Washington Declaration states: ‘If the pre-War owners of art
that is found to have been confiscated by the Nazis and not subsequently resituated, or their heirs,
can be identified, steps should be taken expeditiously to achieve a just and fair solution, reorganizing
this may vary according to the facts and circumstance surrounding a specific case.’
9
See, for example, Thérèse O’Donnell, The Restitution of Holocaust Looted Art and Transitional
Justice: The Perfect Storm or the Raft of the Medusa?, in: European Journal of International Law,
22 (2011) 1, pp. 49-80, here p. 54.
10
The European Fine Art Foundation, The Art Market Report 2017, p. 8.
11
Clare McAndrew, The Art Market 2017, An Art Basel & UBS Report, p. 14.
12
Ibid, p. 24.
13
Commission Staff Working Document, impact assessment accompanying the proposal for a
regulation of the European Parliament and of the Council on the import of cultural goods,
SWD(2017) 262 final, 13 July 2017, p. 12.
Cross-border restitution claims of looted works of art and cultural goods
7
In fact, Europe is the largest continent for sales of works of art and cultural goods, with
over half of the world’s dealers.
14
Crucially, as Frank Wehinger has pointed out in a study on illegal markets including the
art market, the illegal market for works of art and cultural property is closely interlocked
with the legal one.
15
In fact, the interlock of both is simple. It is difficult to identify looted
works of art and cultural property because they are often introduced directly into the legal
art market via galleries and auction houses. Furthermore, pieces of art with a dubious
provenance can obtain a (natural) safe provenance and increased prominence thanks to
repeated sales by galleries or auction houses . Therefore, the correct provenance is hard to
verify and suspicious facts about the trade of looted works of art and cultural goods often
come to light as a result of the context or by accident. The latter case is true, for example,
for the so-called Schwabing Art Trove (also known as the Gurlitt Case). Over 1 400
artworks by masters were found in an apartment in Munich in March 2012 after Cornelius
Gurlitt was investigated for tax evasion. Gurlitt's father, Hildebrand, was involved as an
important art dealer in art looting by the Nazis and contributed to confiscating and
removing ‘degenerate’ art from museums. The issue of ownership for many of the 1 400
artworks is still ongoing.
16
In general, missing information about the provenance and ownership of artworks is only
one of various legal challenges that victims of looted works of art and cultural goods face
when making a restitution claim. Due to the cross-border character of many such cases,
claimants face a number of legal problems. These include varying access to data from
nation to nation, differing legal standards across EU Member States as to which law should
be applied, and differing national rules on legal issues such as, for example, limitation
periods for submitting a restitution claim and good faith acquisition. Thus, the cross-
border character of restitution claims of looted works of art and cultural goods creates
additional costs for claimants. These include, inter alia, additional translation costs, costs
for elaborate provenance research and increased costs for legal advice and expert evidence
on foreign rules when foreign jurisdictions are involved.
There is no data available on issues directly associated with restitution claims of looted
works of art and cultural goods, such as, for example, precise costs for elaborate
provenance research. Moreover, there is no data on the number of restitution claims all
over Europe. However, there are various indicators implying that requests to recover
looted works of art and cultural goods might be high. For example, the Art Loss Register,
17
the world’s largest database of stolen art, holds 500 000 items. Furthermore, the
INTERPOOL Stolen Works of Art Database counts 49 000 items.
18
In the special case of
Nazi looted art, the German Lost Art Database
19
reported 150 000 objects in 2014 and the
Object Database of the Central Registry of Information on Looted Cultural Property 1933-
14
The European Fine Art Foundation, The Art Market Report 2017, p.13.
15
Wehinger, Illegale Märkte. Stand der sozialwissenschaftlichen Forschung, pp. 49-53.
16
See, for example, Nazi trove in Munich contains unknown works of masters, BBC News online,
5 November 2013.
17
www.artloss.com
18
www.interpol.int/Crime-areas/Works-of-art/Database
19
www.lostart.de/Webs/EN/LostArt/Index.html
European Added Value Assessment
8
1945
20
contains details of over 25 000 looted and missing objects from more than fifteen
countries.
Nevertheless, it seems that the number of restitution claims in EU Member States is rather
small. Looking at the specific case of Nazi looted art, the Dutch Advisory Committee on
the Assessment of Restitution Applications for Items of Cultural Value and the Second
World War (the Dutch Restitution Committee), which advises on claims concerning looted
art, reported in 2015 that:
‘Between January 2002, when the Restitutions Committee took up its duties, and the
end of 2015, the Minister of OCW requested advice about 161 cases. Of these, 143
related to items of cultural value from the Dutch National Art Collection; 136 were
requests for advice ‘in the first instance’ and seven concerned requests for revised
advice. The other 18 cases were about artworks with current owners other than the
Dutch State, such as provincial and local authorities, foundations or private
individuals.’
21
(While, the number of cases involving a cross-border element is not
totally clear, it might be around 50 % according to a representative of the Dutch
Restitution Committee).
However, more and more claims are likely to be forthcoming. In fact, new evidence, new
resources and the digitalisation of records – not only on Nazi looted art but far beyond –
are constantly becoming increasingly available and will help to ease provenance research
on looted works of art and cultural goods.
EU Policy Context
The development of the EU internal market, as agreed by the Treaty on European Union,
required the adoption of legislative measures on the protection of cultural property. The
abolition of border controls has somewhat facilitated the illegal movement of cultural
objects. Thus, the EU enacted in December 1992 Regulation 3911/92 on the export of
cultural goods and in March 1993 Directive 93/7 on the return of cultural objects illegally
exported from the territory of a Member State. As rightly indicated by Marc-André Renold
in a study commissioned for the JURI committee, however, the two instruments were not
aimed at harmonising laws, but rather at fostering EU Member States’ reciprocal
recognition of domestic provisions for fighting the illegal trade in works of art and cultural
goods.
22
More specifically, the restitution of cultural property looted by the Nazis and in the course
of colonialism remained a largely untouched issue for several decades, despite
international instruments in the form of the 1954 Hague Convention and the 1970 UNESCO
Convention. As Bianca Gaudenzi and Astrid Swenson have recently pointed out, ‘it was
20
www.lootedart.com/
21
Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value
and the Second World War, Report 2015, p. 20.
22
Cross-border restitution claims of art looted in armed conflicts and wars and alternatives to court
litigations – Study for the JURI Committee, commissioned by the Policy Department for Citizens’
Rights and Constitutional Affairs, European Parliament, 2016, p. 14.
Cross-border restitution claims of looted works of art and cultural goods
9
only in the 1990s, with the end of the cold war, that repeated efforts to draw attention to
the unfinished business of World War II eventually resulted in the large scale restitution
campaigns and the establishment of international agreements such as the 1998 Washington
Declaration’.
23
In December 2003, the European Parliament adopted a resolution on a legal framework for
free movement within the internal market of goods whose ownership is likely to be
contested. With a special regard to cultural property looted during World Word II,
Parliament emphasised that although the problem of looted cultural property is a matter
of public knowledge, it has often been remarkably difficult for private claimants to recover
their property and clarify their provenance. In other words, Parliament criticised the fact
that Directive 93/7 did not establish a level playing field for individual claimants who rely
very much on extremely varied national legal requirements. The explanatory statement of
the report underlying the resolution called for a legal framework that would be fairer to
claimants, current holders and state-owned and not-for-profit entities.
In fact, Directive 93/7 was revised and replaced in May 2014 by the above-mentioned
Directive 2014/60 on the return of cultural objects unlawfully removed from the territory
of a Member State. The revised directive established a system of cooperation between
judicial authorities of EU Member States to be followed in case of an application by a
requesting Member State on the return of unlawfully removed cultural goods. Equally,
Regulation 3911/92 was replaced by Regulation 116/2009 on the export of cultural goods.
It is tailored to prevent the export of cultural goods unlawfully removed from an EU
Member State by introducing, inter alia, an export licence to be issued by a competent
authority of the Member State in whose territory the cultural object in question was
lawfully and definitely located.
It is only recently, in July 2017, that the European Commission proposed new rules
24
to
stop imports into the Union of cultural goods illegally exported from their country of
origin. Among other things, the proposal aims to stop the illegal trafficking of cultural
goods for the purposes of financing terrorism. Despite EU-wide bans on imports of cultural
goods from third countries, for example from Iraq and Syria, there is no general EU legal
framework for the import of cultural goods from non-EU countries. The Commission thus
proposes the same rules for the import of cultural goods in all Member States and a
uniform definition for works of art and cultural goods.
However, these changes to European legal instruments in the area of looted works of art
and cultural goods neglect the establishment of an EU legal system that is fairer to
claimants, current holders and state-owned and not-for-profit entities of cultural
properties as demanded by the European Parliament in its 2003 resolution. It is still
difficult, especially for private claimants, to recover cultural property and clarify its
provenance.
23
Bianca Gaudenzi and Astrid Swenson, Looted Art and the Restitution in the Twentieth Century -
Towards a Global Perspective, in: Journal of Contemporary History (Special Issue: the Restitution
of Looted Art), 52 (2017) 3, pp. 491-518, here: p. 506-507.
24
Proposal for a regulation of the European Parliament and of the Council on the import of
cultural goods, COM(2017)375 final.
European Added Value Assessment
10
Weaknesses in the existing EU legal system
Drawing on the external expert study by Matthias Weller (Annex I), this EAVA identifies
four specific areas of weakness in the existing EU legal system leading to an uncertain legal
situation in cases of restitution claims of looted works of art and cultural goods:
(i) no single or harmonised definition of the term cultural property/object (this failing was
also addressed by the recent Commission proposal) and regulatory fragmentation;
(ii) fragmentation of anti-seizure legislation and unclear relation between national anti-
seizure statutes and EU Directive 2014/60;
(iii) differing substantive law and choice of law rules across the EU Member States;
(iv) insufficient measures concerning trade in Nazi looted art (future transactions) and
contradictory restitution recommendations in cases of restitution claims regarding Nazi
looted art (past transactions).
The first area of weakness – no single definition of the term cultural property/object and
regulatory fragmentation – results from the fact that there are various instruments with
unclear relations to one other. For example, for the definition of what constitutes a cultural
object, Article 7(4) of Regulation 1215/2012 concerning civil claims for the recovery, based
on ownership, of a cultural object, refers back to Article 1 of Directive 93/7. Crucially,
Directive 93/7 was replaced by Directive 2014/60 and the definition of the term 'cultural
object' is different in each. Directive 93/7 has a restrictive definition, indicating specific
categories of cultural objects (in the annex to the directive). In contrast, Directive 2014/60
ranks as a cultural object any cultural object classified or defined by an EU Member State
under legislation or administrative procedures as a national treasure possessing artistic,
historic or archaeological value within the meaning of Article 36 TFEU. Although it is likely
that Article 7(4) of Regulation 1215/2012 now refers to Directive 2014/60 (since Directive
93/7 was repealed), this is not entirely clear.
The regulatory fragmentation leads to an inconsistent jurisdiction, sometimes depending
on where the cultural object is located – in rem jurisdiction – and sometimes not. For
example, Article 7(4) of Regulation 1215/2012 would apply in the case where the defendant
is domiciled in another EU Member State than the one where the cultural object in question
is located. According to Article 7(4), the claim can be lodged with a court where the cultural
object is located. However, it might be the case that the defendant is domiciled in a state
that is a contracting party to the Lugano Convention
25
while the cultural good in question
25
The Lugano Convention was signed in 1988 by the then 12 Member States of the European
Communities together with the then six members of the European Free Trade Area (EFTA) in order
to extend the recognition to EFTA Member States who were not eligible to sign the Brussels Regime
as a set of rules regulating which courts have jurisdiction in legal disputes of civil or commercial
nature between individuals domiciled in an EU or EFTA Member State.
Cross-border restitution claims of looted works of art and cultural goods
11
is located in an EU Member State. The effects of the 2007 Lugano Convention,
26
are
materially the same as what is known as the Brussels Regime for the recognition and
enforcement of judgments in civil and commercial cases. However, in the Lugano
Convention there is no equivalent to Article 7(4) of Regulation 1215/2012 which allows the
option of lodging a claim with a court where the cultural object is located. In other words,
the defendant domiciled in a state that is a contracting party to the Lugano Convention
may be sued at his domicile but not at a court where the contested cultural object might be
located (for example an EU Member State). In fact, the EU is missing a general jurisdiction
in rem.
The second area of weakness, fragmentation of anti-seizure legislation and unclear relation
between national anti-seizure statutes and Directive 2014/60, concerns the conflict
between the interests of claimants for the restitution of cultural property and the interests
of European societies to have public access to art and cultural property across borders. In
order to protect interests, such as cross-border cultural exchange and mutual
understanding, it is important that art and cultural property on loan from foreign states is
safe from legal action and seizure. However, there is no uniform legal framework allowing
for a proper anti-seizure jurisdiction across the EU. Some Member States have enacted self-
executing legislation or established a procedure under administrative law that results in
an administrative decision that prevents any seizure of a contested cultural object once it
is issued and as long the object is on loan. In fact, however, the majority of Member States
do not have such legislative protection for cultural objects on loan. Finally, as there is no
uniform legal framework for a proper anti-seizure jurisdiction there is also no instrument
for authorities to expose anti-seizure proceeding should there be no access to justice
elsewhere for claimants.
The unclear relation between national anti-seizure statutes and Directive 2014/60 leads to
the question as to which legislation prevails. While Directive 2014/60 provides for grants
restitution claims to recover an object located in another EU Member State, national anti-
seizure legislation blocks any kind of seizure of a cultural objective on loan in that Member
State. There are two possible interpretations: first, the anti-seizure legislation of Member
States should be interpreted in the light of EU secondary law and thus must not impair any
claim for restitution. Second, Directive 2014/60 must be seen in the light of EU primary
law, and especially Article 167 (2), indent 3, TFEU, which encourages cooperation between
Member States in the area of non-commercial cultural exchanges, and thus the protection
of the mobility of art collections. The question which of the both interpretations prevails is
yet to be solved, however.
The third area of weakness – differing substantive law and choice of law rules across the
EU Member States – allows for law 'shopping', by transferring the cultural object in
question to the most favourable jurisdiction, and prevents a more effective private
enforcement. In fact, the substantive law rules in cases of restitution claims of looted
cultural objects differ widely among the Member States. For example, some EU Member
26
Succeeding the 1988 Convention, the 2007 Lugano Convention on jurisdiction and the recognition
and enforcements of judgments was signed with the objective of achieving the same level of
circulation of judgments between the EU Member states and Switzerland, Norway and Iceland.
European Added Value Assessment
12
State jurisdictions generally allow good faith acquisition subject to varying conditions. In
contrast, other EU Member States exclude good faith acquisition, but allow exceptions; and
the jurisdictions of yet other Member States strongly favour the owner by not allowing any
type of good faith acquisition, but seek to minimise disadvantages by setting time limits
for the submission of claims by the innocent buyer. Crucially, the rules on limitation
periods for submitting a restitution claim also differ among the EU Member States, and not
only in terms of length – they also vary with regard to the beginning of the limitation
period. Thus, these widely differing rules can lead to situations where people might lose
their right to submit a restitution claim in a cross-border case of looted works of art and
cultural goods.
Because the issue of looted works of art and cultural goods features a cross-border element,
the choice of law is essential as it determines the applicable substantive law, for example,
on requirements and modes of acquisition. In fact, the choice of law is of fundamental
importance for cases in the realm of private international law. It concerns the question
whether and to what extent foreign law can be applied or taken into account by domestic
courts in cases of restitution claims of looted cultural objects. However, the connecting
factors for determining the applicable law differ across the EU Member States.
The fourth area of weakness – insufficient measures for trade with Nazi looted art and
contradictory restitution recommendations in cases of restitution claims of Nazi looted art
– concerns, on the one hand, future transactions and future proceedings of Nazi looted art.
On the other hand, it concerns restitution claims for past transactions which need to be
considered based on moral guidelines. In the case of future transactions of Nazi looted art,
a clear definition of the seller’s due diligence and the buyer’s remedies under a European
sales law is missing. There are no clear rules establishing to what extent a seller of an item
of Nazi looted art should be obliged to investigate the item’s provenance and to inform the
buyer about it in preparation of the sale. Likewise, as there are no clear rules for the due
diligence of the seller, there are also no clearly defined remedies a buyer of Nazi looted art
could have recourse to should the seller breach the duty of diligence.
In respect to restitution claims for transactions in the past, decades after the art was looted
by the Nazis, jurisdictions face difficulties in establishing the precise circumstances of the
looting and/or the forced sale. However, these circumstances would usually be necessary
in court proceedings and to fulfil the standards and legal constraints of the existing general
legal frameworks. The above-mentioned 1998 Washington Declaration, with non-binding
principles, was thus established to support restitution along just and fair solutions instead
of relying on legal claims. In order to do so, and according to the Washington Declaration,
many participating states set up commissions, such as the previously mentioned Dutch
Restitution Committee, or other bodies ‘to identify art that was confiscated by the Nazis
and to assist in addressing ownership issues....’.
27
However, an increasing number of
inconsistent recommendations by these commissions has put into question the quality of
the intended ‘just and fair’ recommended solutions in restitution cases of Nazi looted art.
27
Principle No 10 of the 1998 Washington Declaration. For example, Austria, Germany, the
Netherlands and the United Kingdom have established such commissions.
Cross-border restitution claims of looted works of art and cultural goods
13
Possible EU legislative action
In order to address the four areas of weakness of the EU legal systems listed above, a set
of measures for EU legislative action could be developed. Drawing upon the findings of
the external expert study, this EAVA outlines the most far-reaching possible measures:
28
(i) To overcome the first area of weakness – no single definition of the term cultural
property/object (measure 1) and regulatory fragmentation (measure 2):
1) The EU could consider adopting the definition of cultural property of Article 2
UNIDROIT Convention in Art. 7(4) of Regulation 1215/2012 in order to create a
sphere of harmonisation.
2) The EU could consider introducing a general in rem jurisdiction for movable
property (not only limited to cultural objects), following the Commission proposal
for the recast of the Brussels I Regulation.
(ii) To overcome the second area of weakness – fragmentation of anti-seizure legislation
(measures 1 and 2) and unclear relation between national anti-seizure statutes and
Directive 2014/60 (measure 3):
1) The EU could consider adopting a joint declaration on immunity from seizure
for foreign states for cultural property on loan for the purpose of cultural exchange
in other states.
2) Based on Article 114 TFEU or Article 81(2) TFEU, the EU could consider
harmonising anti-seizure statutes (legislative immunity granted by statute to all
lenders of cultural property) across the EU Member States.
3) The EU could consider clarifying the relation between anti-seizure legislation of
the Member States and Directive 2014/60/EU to the effect that the protection and
support of collection mobility, cultural exchange and public access to important
cultural objects by national anti-seizure statutes is not affected by the directive.
(iii) To overcome the third area of weakness – differing substantive law (measure 1) and
choice of law rules across the EU Member States (measures 2 and 3):
1) Subject to respective competences, the EU could consider incorporating Chapter
II on the restitution of stolen cultural objectives from the 1995 UNIDROIT
Convention as a new part of Directive 2014/60.
2) The EU could consider enacting a harmonised choice of law rule, following, for
example, Article 90 of the Belgian Code of Private International Law.
28
Further alternative options are to be found in the external expert study at Annex I.
European Added Value Assessment
14
3) The EU could consider clarifying that there is no obstacle in principle to the
application by EU courts of foreign cultural property law of non-EU states (source
states), for example, in a recital to the harmonised choice of law rule.
(iv) To overcome the fourth area of weakness – insufficient measures for trade with Nazi
looted art in cases of future transactions (measure 1) and contradictory restitution
recommendations in cases of restitution claims of Nazi looted art in cases of past
transactions (measure 2):
1) Through a directive, the EU could consider defining minimum standards for
pre-contractual information for sales of Nazi looted art based on necessary
provenance research and harmonising the buyer’s remedies in cases of non-
compliance with the seller’s pre-contractual duties to inform the buyer.
2) Based on Article 167 TFEU, the EU could consider promoting a non-binding re-
statement of restitution principles in order to support the 1998 Washington
Declaration and to achieve more consistent recommendations among the
commissions in the Member States for the restitution of Nazi-looted art by
addressing key issues such as, for example, the understanding of forced sales, the
requirements for a sufficient causal link between persecution and loss, and the
relevance of post-war indemnification.
Additionally, the EU could consider taking four complementary measures:
1) Setting-up a meta-database collecting all data established on the provenance of
cultural property in order to increase the effects of existing provenance research.
2) Establishing a common cataloguing system and an object ID as a market
standard with information on (i) the type of object, (ii) the materials and
techniques, (iii) the measurements, (iv) the inscriptions and makings, (v)
distinguishing features, (vi) the title, (vii) the subject, (viii) the data or period, and
(xi) the maker.
3) Establishing a specific alternative dispute resolution mechanism for dealing
with contested cultural property and creating specialised units for organising and
providing alternative dispute resolutions in cases of restitution claims of looted
works of art and cultural goods.
4) Based on Article 167 TFEU, establishing a department or self-standing agency
on the protection of looted art in order to advise Member States on question related
to trafficking in cultural goods, to collect the results of provenance research, to link
existing databases, to issue object IDs, to set-up a meta-website collecting all other
relevant websites and internet resources, and to act as a body providing alternative
dispute settlements.
Cross-border restitution claims of looted works of art and cultural goods
15
European Added Value
As this study shows, there are various weaknesses within the EU legal system in cases of
restitution claims of works of art and cultural goods looted in armed conflicts and wars.
These weaknesses could be greatly reduced by taking legislative action at EU level
according to some or all of the proposed measures outlined above.
EU legislative measures aimed at harmonising rules for restitution claims of looted works
of art and cultural goods would help to create more legal certainty for such cases than is
currently the case. For example, ending the huge diversity of rules and instruments existing
across the EU Member States in the area of substantive law and choice of law rules would
contribute both to strengthening the international private law dimension and effectuating
private enforcement. In addition, EU legislative measures to overcome the definition-
related uncertainties and regulatory fragmentation in the relevant legal instruments would
allow for a simplification of the EU legal system. In short, EU legal action would present
an added value in terms of creating a more effective default regime in such cases of cross-
border restitution claims.
Furthermore, the impact of these legislative measures could be boosted by the
implementation of the suggested complementary measures. For example, the provenance
research of looted cultural property could be eased by exchanging cross-border
provenance data as freely as possible and setting up an EU-wide meta-database. Moreover,
this would contribute to reducing costs for provenance research.
In general, the more claimants have to spend on provenance research or on additional legal
advice concerning evidence on foreign rules, when facing difficulties in a cross-border
restitution claim, and the longer proceedings take, the more expensive restitution claims
will become. Therefore, measures such as, for example, facilitating provenance research
and especially the simplification of the EU legal system, through a harmonisation of rules
in cases of restitution claims of looted works of art and cultural goods, would also generate
European added value in terms of reducing legal and other costs.
16
Annex 1
Study on the European added value
of legislative action on
cross-border restitution claims of works of art and
cultural goods looted in armed conflicts and wars
with special regard to aspects of private law, private
international law and civil procedure
Research paper
by
Prof. Dr Matthias Weller, Mag.rer.publ.
EBS Law School
EBS University of Economics and Law
Wiesbaden, Germany
Abstract:
Cross-border restitution claims are central tools within a regulatory
framework for the protection of and legal trade with cultural property. In
the past, legislators, including the EU, (rightly) put much emphasis on the
design of restitution claims under public international, administrative and
criminal law. However, such claims are limited in scope in many respects. It
is therefore necessary to supplement these claims by effective claims under
private law (“private enforcement”) in order to best achieve the regulatory
objective. This study explores the potential for a European added value in
effectuating private enforcement of the cross-border restitution of cultural
property in relation to international jurisdiction, immunity, choice of law
and certain aspects of substantive law as well as possible complementary
measures, the latter in particular with regard to Nazi looted art.
Cross-border restitution claims of looted works of art and cultural goods
17
AUTHOR
This study has been written by Prof. Dr Matthias Weller, Mag.rer.publ. of the EBS Law
School of the EBS University of Economics and Law at Wiesbaden Germany, and Co-
Chair of the German Institute of Art and Law Heidelberg (IFKUR e.V.), at the request of
the European Added Value Unit of the Directorate for Impact Assessment and European
Added Value, within the Directorate General for Parliamentary Research Services (DG
EPRS) of the General Secretariat of the European Parliament.
ADMINISTRATOR RESPONSIBLE
Christian Salm, European Added Value Unit
To contact the unit, please email EPRS-EuropeanAdded[email protected]
LINGUISTIC VERSIONS
Original: EN
DISCLAIMER
This document is prepared for, and addressed to, the Members and staff of the European
Parliament as background material to assist them in their parliamentary work. The
content of the document is the sole responsibility of its author(s) and any opinions
expressed herein should not be taken to represent an official position of the Parliament.
Reproduction and translation for non-commercial purposes are authorised, provided
the source is acknowledged and the publisher is given prior notice and sent a copy.
Manuscript completed in August 2017
Brussels © European Union, 2017.
PE 610.988
ISBN 978-92-846-1732-6
doi: 10.2861/461637
QA-06-17-103-EN-N
European Added Value Assessment
18
Table of Contents
Table of Contents ........................................................................................................................ 18
Executive Summary ............................................................................................................... 21
Chapter 1 – Terms of Reference ............................................................................................... 25
I. – Mission: Tackling legal uncertainty within the civil law dimension of cross-border
restitution claims by EU legislative action .......................................................................... 25
II. – Overall objective: Improving “private enforcement” against looting of art and
cultural property .................................................................................................................... 25
III. – Reason: Limited scope and success of public enforcement ..................................... 26
IV. – Caveats: Procedural and material justice of civil law .............................................. 27
V. – Incomplete history of public and private “partnership” in the protection of
cultural property .................................................................................................................... 28
VI. – Support for a comprehensive regulatory framework by the United Nations ...... 29
VII. – Focal points of an effective private enforcement for claims for restitution of
looted cultural property by EU legislative action .............................................................. 30
Chapter 2 – On the scale of illicit trade with Looted Cultural Property ........................... 31
I. – The global art market: Up to USD 57 billion per annum? .......................................... 31
II. – Illicit trade: Up to USD 8 billion per annum? ............................................................. 31
III. – ILLICID: A German pilot project for investigating the illicit art market ............... 31
IV. – Figures from Databases in the field ............................................................................ 32
1. – INTERPOL .................................................................................................................. 32
2. – Art Loss Register ........................................................................................................ 33
3. – Lost Art Database (Nazi Looted Art) ...................................................................... 33
4. - Central Registry of Information on Looted Cultural Property 1933 – 1945 (Nazi
Looted Art) ................................................................................................................... 33
V. – Many more recent signs of concern ............................................................................. 33
1. – UN Security Council Resolution 2347 (24 March 2017) ........................................ 34
2. - Terrorism and Illicit Finance Subcommittee of the US House of Representatives
(23 June 2017) ............................................................................................................... 35
3. - FBI Report “Art Theft” (3 May 2017) ....................................................................... 35
4. – Council of Europe Convention on Offences relating to Cultural Property (3
May 2017) ..................................................................................................................... 35
5. – European Commission Proposal for a Regulation on the import of cultural
goods (July 2017) ......................................................................................................... 37
VI. – Recommendations ......................................................................................................... 37
Chapter 3 – Focal Points of Private Law ................................................................................. 38
I. – International jurisdiction for the restitution of cultural property ............................. 38
1. – General observations on the EU system of international jurisdiction for civil
matters .......................................................................................................................... 38
2. – Need for a special ground of jurisdiction based on the location of movable
cultural property ......................................................................................................... 39
3. – Legislative Reaction of the EU: Article 7 no. 4 Brussels Ibis Regulation ............ 40
4. – Issues in relation to Article 7 no. 4 Brussels Ibis Regulation ............................... 41
a. – Definition of “cultural property” ....................................................................... 41
b. – Fragmentation ...................................................................................................... 43
(1) – Status quo ............................................................................................................ 43
(2) – Different results without reason ....................................................................... 44
(3) – In particular: Similar but not identical definition of cultural object under the
UNIDROIT Convention and Article 7 no. 4 Brussels Ibis Regulation ................. 45
c. – Declaratory Relief ................................................................................................. 46
Cross-border restitution claims of looted works of art and cultural goods
19
5. – Recommendation and Policy Options .................................................................... 46
a. – Option 1: Introducing jurisdiction in rem for movable property .................. 46
b. – Option 2: Using the definition of cultural property of Article 2 UNIDROIT
Convention in Article 7 no. 4 Brussels Ibis Regulation .......................................... 46
c. – Option 3: Spelling out the definition of Article 2 of Directive 2014/60/EU
directly in Article 7 no. 4 Brussels Ibis Regulation ................................................. 46
d. – Option 4: Updating the reference in Article 7 no. 4 Brussels Ibis ................. 47
II. – Immunity for cultural property on loan in foreign states ......................................... 47
1. – Context ........................................................................................................................ 48
2. – Fundamental distinction: Legislative immunity granted by a state and
immunity from seizure under customary public international law .................... 48
3. – Case studies ................................................................................................................ 49
a. – Exhibition “Treasures of the Sons of Heaven” at Bonn, Germany ................ 49
b. – Exhibition “DYNAMIK! Kubismus / Futurismus / KINETISMUS” at the
Belvedere, Austria ....................................................................................................... 51
c. – Exhibition “From Russia” (Pouchkin Museum Moscow) in London ........... 51
d. – Exhition from the Stedelijk Museum of Amsterdam to New York (“Malevich
case”) ............................................................................................................................. 52
4. – State legislation (“anti-seizure legislation”) ........................................................... 52
a. – Fragmentation in the EU and beyond ............................................................... 52
b. – Unclear relation between national anti-seizure statutes and Directive
2014/60/EU ................................................................................................................. 54
c. – Exception for Nazi Looted Art?.......................................................................... 56
5. – State Immunity under Public Customary International Law .............................. 56
a. – Legal Foundation ................................................................................................. 56
(1) – Treaty Law........................................................................................................... 57
(2) – Customary International Law ........................................................................... 58
b. – Conclusion: Rule of customary international law exists, but uncertainties
remain ........................................................................................................................... 61
6. – Recommendations ..................................................................................................... 61
a. – Joint Declaration on immunity from seizure for cultural property of foreign
states on loan for the purpose of cultural exchange in other states ..................... 61
b. – Harmonization of state legislation on legislative immunity .......................... 62
c. – Clarifying the relation between anti-seizure legislation of the Member States
and Directive 2014/60/EU ........................................................................................ 62
III. - Choice of law .................................................................................................................. 63
1. – Different concepts in the legal regimes on property law ..................................... 63
2. – Choice of law issues .................................................................................................. 65
a. – Design elements of a choice of law rule for the acquisition of cultural property
....................................................................................................................................... 65
b. – Recommendation: Harmonized choice of law rule along the lines of Article
90 of the Belgian Code of Private International Law ............................................. 66
c. – Application of foreign public law ...................................................................... 67
3. – Recommendation ....................................................................................................... 69
IV. – Substantive Law ............................................................................................................ 70
1. – Fundamental differences in the substantive laws of the Member States ........... 70
2. – Recommendation and Policy Options .................................................................... 71
a. – Policy Option 1: Encouraging the remaining EU Member States to accede to
the 1995 UNIDROIT Convention .............................................................................. 71
b. – Policy Option 2: Incorporating Chapter II of the 1995 UNIDROIT Convention
into EU secondary law (e.g. as new part of Directive 2014/60/EU).................... 72
European Added Value Assessment
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c. – Policy Option 3: Adopting Articles VIII.-3:101 and VIII.-4:102 DCFR .......... 73
d. – Policy Option 4: Introducing a general prohibition of sale and acquisition for
stolen and illegally exported/imported cultural property ................................... 75
V. – The special issue of Nazi Looted Art ........................................................................... 78
1. – No retroactive legislation.......................................................................................... 78
2. – Sales law for transactions in the future ................................................................... 80
a. – Case study: The auction of Lodovico Carraci’s “St. Jerome” (Max Stern
Gallery) by Lempertz .................................................................................................. 80
b. – Recommendation: Defining the sellers due diligence and the buyer’s
remedies under a European sales law when Nazi looted art is sold ................... 82
3. – Property law in respect to Nazi looted art ............................................................. 85
a. – Invalidity of „forced sale“ transactions from 1933 to 1945 ............................. 85
b. – Validity of „non-forced sale“ transactions from 1933 to 1945 ....................... 86
c. – Burden of proof for invalidity of transaction during 1933 to 1945 ................ 87
d. – Valid post-war good faith acquisition / prescription in many (not all) cases
....................................................................................................................................... 88
e. – No retroactive legislation on good faith acquisitions / prescription in the past
....................................................................................................................................... 88
f. – Case study: The Schwabing Art Trove (“Gurlitt case”) ................................... 89
g. – Recommendation: No retroactive legislation ................................................... 90
4. – Just and fair solutions beyond the law ................................................................... 91
a. – Background ........................................................................................................... 91
b. – Increasingly diverging and contradictory restitution recommendations .... 93
c. – Recommendation: (Non-binding) Restatement of Restitution Principles .... 95
VI. – Complementary Measures ........................................................................................... 96
1. – Cross-linking provenance research amongst local and national institutions and
entities........................................................................................................................... 96
2. – Common Cataloguing System / Object IDs........................................................... 98
3. – Alternative Dispute Resolution ............................................................................... 99
4. – EU Agency on Cultural Property Protection ......................................................... 99
Chapter 4 – European Added Value by Proposed Measures ............................................ 102
Bibliography .............................................................................................................................. 103
Cross-border restitution claims of looted works of art and cultural goods
21
Executive Summary
1. There are no reliable statistics on the precise scale of looting of cultural goods in
armed conflicts and wars, nor on the scale of illicit trade with such cultural goods.
Further investigations into the precise structures and scales should be undertaken.
In principle, however, there cannot be any doubt that there is substantiated reason
for deep concern.
2. Most current political initiatives and legislative measures to combat illicit trade
with cultural goods looted in armed conflicts and wars focus on public,
administrative and/or criminal law (”public enforcement”). In order to increase
the effects of the regulatory framework on looting and illicit trade with cultural
goods, private law must be taken into account far more than at present (”private
enforcement”).
3. On private enforcement of the protection of cultural goods against looting and
illicit trade, effective claims of private litigants for the restitution of looted cultural
property are central. This includes states acting in their capacity as private litigants
based on their ownership of or proprietary interest in their looted cultural
property. In order to effectuate such claims, the EU could consider the following
measures:
4. Introducing a ground of general jurisdiction in rem (not only limited to cultural
objects) as it was suggested by the Commission in its Proposal for the Recast of the
Brussels I Regulation.
1
Such a provision would have a model in Article 98 of the
Swiss Federal Act on Private International Law. At least, Article 7 no. 4 Brussels
Ibis Regulation,
2
currently limited to certain cultural objects, should copy the
definition of ”cultural object” in Article 2 of the 1995 UNIDROIT Convention on
the return of stolen property
3
in order to create a sphere of legal harmonization as
far-reaching as possible.
5. In the case of loans of cultural property from one Member State to another Member
State to exhibitions in the interest of public access and cultural exchange,
(”collection mobility”) despite pending conflicts about the loaned object in
question, the special question arises, whether and to what extent claimants should
be allowed to benefit from the temporary location of the loaned object in another
jurisdiction (”forum shopping”), thereby bringing about a chilling effect on the
1
European Commission, Proposal for a Regulation of the European Parliament and of the
Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters (Recast) of 14 December 2010, COM(2010) 748 final, Article 5 no. 3.
2
Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (recast).
3
International Institute for the Unification of Private Law (”UNIDROIT”), Convention on
Stolen or Illegally Exported Cultural Objects, Rome, 24 June 1995.
European Added Value Assessment
22
mobility of collections and cultural exchange. The deeply fragmented national
legislation on this issue (”anti-seizure statutes”) amongst the EU Member States
should be harmonized by an EU instrument of a plausible scope and reliable
structure, in particular in respect to Nazi looted art.
6. In this context, Directive 2014/60/EU
4
should be clarified to the effect that the
protection and support of collection mobility and cultural exchange by national
anti-seizure statutes (or a future EU instrument of harmonized anti-seizure law) is
not affected by the Directive.
7. Further, the EU should motivate, and join the Member States to acknowledge the
rule under customary public international law, that cultural property of foreign
states on loan for the purpose of cultural exchange in other states are immune from
seizure. The aforementioned three measures (paras. 5, 6 and 7) will balance the
interests of claimants with the interest of public access to cultural property,
cultural exchange and collection mobility despite pending conflicts about the
loaned object.
8. In virtually any litigation about contested cultural property, questions on choice
of law arise. Therefore, the EU could consider enacting a harmonized choice of law
rule. A possible model could be the Belgian choice of law rule in Article 90 of the
Belgian Code of Private International Law. The EU could clarify, e.g. in a Recital
to the harmonized choice of law rule, that there is no obstacle in principle to the
application by EU courts of foreign cultural property law of non-EU states (“source
states”).
9. There are large and fundamental differences in the substantive laws of the Member
States on good faith acquisition and prescriptive acquisition in respect to cultural
property. Therefore, the law on these issues should be harmonized. However, at
present, it appears to be impossible for the EU to become a Contracting Party to
the 1995 UNIDROIT Convention, because this Convention allows the accession of
States only. Therefore, the EU could seek, under Article 167 TFEU, to encourage
those Member States to accede to the Convention that have not yet done so.
10. Alternatively, the EU could incorporate Chapter II of the 1995 UNIDROIT
Convention as a new part of Directive 2014/60/EU. Alternatively, the EU could
harmonize the rules on good faith acquisition and acquisition by a longer period
of possession on the basis of the respective provisions in the Draft Common Frame
of Reference (”DCFR”), Articles VIII.–3:101 DCFR and VIII.-4:102 DCFR, i.e. along
the lines of international standards which many Member States have already
4
Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on
the return of cultural objects unlawfully removed from the territory of a Member State and amending
Regulation (EU) No 1024/2012 (Recast).
Cross-border restitution claims of looted works of art and cultural goods
23
endorsed by ratifying and acceding the UNIDROIT Convention. Again, such a
measure could be inserted in (a recast of) Directive 2014/60/EU.
11. The special issue of Nazi looted art requires special solutions. Retroactive
legislative measures that change the status of otherwise valid legal acquisitions of
Nazi looted art in the past, e.g. by good faith acquisitions or acquisition by a longer
period of possession after the Second World War, would not be in conformity with
guarantees under the European Convention on Human Rights, the EU Charter of
Human Rights and national constitutional guarantees.
12. In respect to future transactions about Nazi looted art, the EU should consider
defining minimum standards for pre-contractual information on the provenance
of the object to be sold, in particular whether and to what extent there is reason to
suspect that the object is spoliated. The EU could further consider
clarifying/harmonizing the buyer’s remedies in case of non-compliance with the
seller’s pre-contractual duties to inform the buyer. These issues could be regulated
e.g. in a Directive on certain aspects of the sale of (potentially) Nazi looted art,
structurally mirroring Directive 1999/44/EC of the European Parliament and of
the Council of 25 May 1999 on certain aspects of the sale of consumer goods and
associated guarantees.
13. In respect to transactions in the past and in order to further support the
implementation of the Washington Principles and to bring about greater
consistency, the EU could consider funding a ”Restatement of Restitution
Principles” under Article 167 TFEU. Such a restatement would collect and analyse
the recommendations of the Spoliation Advisory Panels in the Member States (and
beyond) on the restitution of Nazi looted art and extract and carefully develop and
also supplement, as the case may be, the respective ratio of the recommendations
in order to provide the Panels with a reliable source of common thought and
evaluation.
14. Further, the EU could support the cross-linking of provenance research amongst
local and national institutions and initiatives in order to increase the effects of
existing provenance research. In this respect, the EU could fund research on data
protection law regarding the chances and limits of exchange and/or central
collecting of provenance data. A particularly effective tool in this respect is a
common cataloguing system based on the collection of the aforementioned data.
In particular, such a system could generate object-IDs and thus contribute to
setting market standards.
15. The EU could support existing general mechanisms for alternative dispute
resolution. Ideally, the EU should set up a specific alternative dispute resolution
institution for dealing with contested cultural property.
European Added Value Assessment
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16. In the long term, the EU could consider establishing an EU Agency on the
Protection of Cultural Property.
Cross-border restitution claims of looted works of art and cultural goods
25
Chapter 1 – Terms of Reference
I. – Mission: Tackling legal uncertainty within the civil law dimension
of cross-border restitution claims by EU legislative action
According to the technical specifications for the production of this study, the
European Added Value Unit of the Directorate for Impact Assessment and
European Added Value, within the Directorate General for Parliamentary
Research Services (DG EPRS) of the General Secretariat of the European
Parliament, seeks to: “identify and analyse possible provisions for EU legislative
action and evaluate the added value of these provisions in tackling legal
uncertainty in the context of cross-border restitution claims of looted art and
cultural goods to individuals, having account of the already existing EU law in the
field of looted art and of the relevant international instruments”. In this context,
“[t]he study’s focus will be clearly directed towards questions and issues related
with the civil and procedural law dimension in cases of cross-border restitution
claims of looted works of art and cultural goods, including the special issue of Nazi
looted art.”
II. – Overall objective: Improving “private enforcement” against
looting of art and cultural property
The focus on civil law, or private law, and (civil) procedural law in the context of
cross-border restitution claims of works of art and cultural goods (in the following
simply: cultural goods or cultural property
5
) looted in armed conflicts and wars is
of particular relevance and importance for a comprehensive and effective
regulation on the restitution of looted cultural property. This is because the
framework of special restitution claims under public international law, EU law and
national administrative law, and criminal law, whilst it has considerably grown
over the past decades, remains fragmented and incomplete due to pervasive limits
in scope ratione temporis/ loci/ personae/ materiae.
5
The term ”cultural proprerty” includes works of art but also many other objects, see e.g.
the definition in Article 2 UNIDROIT Convention on stolen or illegally exported cultural objects:
“For the purposes of this Convention, cultural objects are those which, on religious or secular
grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong
to one of the categories listed in the Annex to this Convention”. Works of art are covered as objects
of importance, often on secular grounds, for art. See also Matthias Weller, „Protection of Cultural
Property“, in Jürgen Basedow/Franco Ferrari/Giesela Rühl (eds), European Encyclopedia of Private
International Law, Edward Elgar Publishing 2017.
European Added Value Assessment
26
III. – Reason: Limited scope and success of public enforcement
For example, Directive 2014/60/EU of the European Parliament and of the Council
of 15 May 2014 on the return of cultural objects unlawfully removed from the
territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast),
applies only to cultural objects in the sense of Article 2 unlawfully removed from
the territory of a Member State on or after 1 January 1993, Article 14, and it only
grants claims to Member States. Under the previous instrument, Directive
93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed
from the territory of a Member State, the material scope was additionally limited
by Article 1 and the categories of cultural objects covered by the Directive in the
Annex. The Reports by the EU Commission on the Directive show that the
instrument is rarely used.
6
Similarly, the 1970 UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property only applies to the extent of its implementation in the respective
Contracting State, and the Contracting States provide for fundamentally differing
implementations.
7
For example, Germany introduced a rather restrictive and
formalistic implementation upon its – very late
8
– ratification of the Convention as
of 30 November 2007.
9
These limits in scope and shortcomings in the implementation and enforcement of
public (international) cultural property law are typical and structural. It is
6
See e.g. European Commission, Fourth report on the application of Council Directive
93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State,
COM(2013), p. 7, sub 4.1.: “The Member States blamed the fact that the Directive is seldom used
on the limitations of its legal scope, in particular the categories defined in its Annex, and on the short
period of time allowed to bring return proceedings and the difficulty in ensuring uniform application
by the national judges of Article 9 concerning compensation for the possessor in the event that the
object is returned”. Some of these issues were addressed in the Recast of the Directive by Directive
2014/60/EU.
7
See e.g. Sabine von Schorlemer, Kulturgutzerstörung, Die Auslöschung von Kulturerbe in
Krisenländern als Herausforderung für die Vereinten Nationen, Baden-Baden 2016, pp. 295 et seq.
and pp. 365 et seq.
8
According to the German Government in the legislative materials for the implementation
legislation, there were ”concerns against certain points” whereas the overall objective was declared
to be fully endorsed, see Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zu dem
Übereinkommen vom 14. November 1970 über Maßnahmen zum Verbot und zur Verhütung der
rechtswidrigen Einfuhr, Ausfuhr und Übereignung von Kulturgut, BT-Drucks. 16/1372 of 4 May
2006, p. 18 et seq. These concerns mainly related to a lack of predictability of the scope of restitution
claims – which objects will be covered – and resulted in the aforementioned restrictive and
formalistic implementation (“Listenprinzip”) in order to improve legal certainty. However, this
approach turned out to be hardly workable in practice, see Report of the German Government on the
Protection of Cultural Property in Germany, Berlin 2013, pp. 43 et seq.
9
See e.g. Matthias Weller, Zur Umsetzung der UNESCO-Konvention von 1970 aus
deutscher Sicht, in Gerte Reichelt (Hrsg.), Rechtsfragen der Restitution von Kulturgütern,
Symposium, 12 October 2007, Austrian Federal Ministry of Education, Art and Culture, Vienna
2008, pp. 27 et seq. The new German 2016 Act on the Protection of Cultural Property (Cultural
Property Protection Act – KGSG) introduced improvements.
Cross-border restitution claims of looted works of art and cultural goods
27
essential, therefore, to provide an effective complementary regime for restitution
claims under civil law. Of course any claim under civil law for restitution requires
a title or right of the claimant, be it ownership, be it a possessory claim, be it a claim
in tort or on other legal grounds, and it is up to the claimant whether to go to court
to enforce it. If so, the claimant will have to establish his title to the satisfaction of
the court hearing the case. These conditions will not always be met. Thus, civil law
is fragmentary as well and has its inherent limits in scope.
Yet, the aim must be to improve private enforcement next to public enforcement
in order to create a comprehensive regulatory framework as best as possible.
10
It has to be noted, however, that private enforcement is usually understood as
referring to the civil law consequences, in particular claims for damages, as follow-
up to and a supplemental element of enforcement after the violation of public
norms by private individuals, such as antitrust or data protection rules. Whereas
the damages are to be paid to the victims of the violation of the respective rule, the
violation is typically sanctioned by fines to be paid to public authorities.
This is of course different here. The overall objective of a claimant is to recover the
cultural property in question, and there are different ”avenues” to achieve this
objective – the public law avenue and, in parallel, the private law avenue.
However, the common core of this setting with “classical” private enforcement is
that private law is understood as a complementary element of law enforcement,
necessary to achieve the best protection of the interests at stake.
IV. – Caveats: Procedural and material justice of civil law
“Best protection”, however, cannot mean that the claim for restitution of looted
cultural property needs to be successful and as convenient for the claimant as
possible under all circumstances. On the contrary, competing and conflicting
interests are at stake and need to be taken into account, for example, the legitimate
interest of a defendant of a civil law suit to be sued only in courts to which there
are sufficient links, either by the subject matter or by the location of the defendant’s
domicile.
11
Likewise, there is a legitimate interest of a defendant that his good faith
in an acquisition from a non-owner will be taken into account in one way or
another – one of the pervasive challenges of property law in general - and cultural
property law in particular.
12
10
For a similar approach recently see e.g. Kelly Hill, The Problem of Auction Houses and
Illicit Antiquities: A Call for a Holistic Solution, 51 Tex. Int'l L.J. 337 (2016).
11
These principles of procedural justice are clearly reflected in particular in Recital 13 and
Articles 4 and 5 of EU Regulation (EU) No 1215/2012 of the European Parliament and of the
Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters (recast) (“Brussels Ibis Regulation”). This Regulation will be
discussed below in more detail.
12
This issue will be addressed in detail below in Chapter 3 Error! Reference source not
found..
European Added Value Assessment
28
In addition, even where private law is understood as a supplement to public
enforcement, private law remains embedded in its own traditions and systemic
settings. Thus, there are inherent limits by material justice for designing or even
instrumentalising private law for the purpose of enforcement of public interests.
In addition, constitutional limits such as guarantees of property or prohibitions of
retroactive legislation, must be taken into account.
And of course, private enforcement in this sense exists already. It does not start
from scratch in the field of restitution of cultural property: Private individuals in
their capacity as owners deprived of their possession
13
and also foreign states
based on their right as owner of their cultural property, have always attempted to
enforce restitution claims in civil proceedings.
14
Nevertheless, the complementary function of private law for an effective
restitution of looted cultural property appears to be underestimated and not
sufficiently explored, perhaps because it has become somewhat overshadowed by
the recent focus on public enforcement.
V. – Incomplete history of public and private “partnership” in the
protection of cultural property
In his seminal contribution “UNESCO and UNIDROIT: A Partnership against
Trafficking in Cultural Objects”, Lyndel V. Prott drew attention once more to the
fact that the 1970 UNESCO Convention brought about considerable progress, but
could not resolve imminent questions in relation to private law. In particular, how
to strike the balance between acquiring no title at all in case of acquisition of stolen
13
E.g. recently Cassirer v. Thyssen-Bornemisza Collection Foundation, Case No. CV 05-
3459-JFW-E (C.D. Cal. June 4, 2015) [Docket No. 315]: applying Spanish Law on adverse
possession of Nazi looted art under Californian choice of law rules and thereby vesting title to the
cultural property in question (Camille Pissarro’s „Rue St. Honoré, après midi, effet de pluie“, 1887)
in the Thyssen-Bornemisza Collection Foundation, not the original owner’s heirs; reversed and
remanded most recently for misapplication of Spanish law on acquisitive prescription by Cassirer v.
Thyssen-Bornemisza Collection Foundation (10 July 2017, 9th Cir.); see also e.g. Federal Court of
Justice (Bundesgerichtshof), judgment of 16 March 2012, docket no. V ZR 279/10, Neue Juristische
Wochenschrift (NJW) 2012, pp. 1796 et seq.: Peter Sachs, son of Hans Sachs who was persecuted
by the Nazi regime and deprived of his large collection of theatre posters raised a claim based on his
position as heir and thus owner of the posters against the German Museum of History (Deutsches
Historisches Museum) in Berlin. On this case see e.g. Matthias Weller, Die Plakatsammlung Hans
Sachs – Die Plakatsammlung Hans Sachs – Zur Ausschlusswirkung des alliierten Rückerstattungs-
rechts heute, in Matthias Weller et al. (eds.), Diebstahl – Raub – Beute: Von der antiken Statue zur
digitalen Kopie, VI. Heidelberger Kunstrechtstage 28. und 29. September 2012, Baden-Baden 2013,
pp. 91 et seq.
14
E.g. Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd., [2007]
EWCA Civ 1374; Upper Regional Court (Kammergericht) of Berlin, judgment of 16 October 2006,
docket no. 10 U 286/05, Neue Juristische Wochenschrift (NJW) 2007, pp. 705 et seq. On this case
see Matthias Weller, Ausländisches öffentliches Recht vor englischen Gerichten: Government of
the Islamic Republic of Iran v. The Barakat Galleries Ltd., [2008] 1 All E.R. 1177, Praxis des
internationalen Privat- und Verfahrensrecht (IPRax) 2009, pp. 116 et seq.
Cross-border restitution claims of looted works of art and cultural goods
29
cultural property, and full-fledged good-faith acquisition, especially since
UNESCO does not have a mandate in matters of national law:
15
“There are many elements in the problem of illicit traffic which are simply
not directly manageable by the organizations working on illicit traffic, such
as impoverished local populations looting their heritage, corruption in
administrations, or the involvement of organized criminal elements. Several
reports had, however, isolated aspects of private law, which, it was thought,
might have a noticeable impact on the passing of illegally acquired cultural
objects into the licit trade”.
16
It is generally known that one of the products of this insight was to set in motion
the process for a convention on aspects of private law which resulted in the 1995
UNIDROIT Convention on stolen or illegally exported cultural objects.
17
Even
though this Convention brought about considerable progress,
18
its effects are
limited because only 40 States are Contracting States, whilst amongst EU Member
States only some are Contracting States
19
, and not all of the pervasive issues
relating to restitution claims under private law are addressed.
Thus, there is a history of public and private “partnership” in the protection of
cultural property, but it has remained incomplete so far.
20
VI. – Support for a comprehensive regulatory framework by the
United Nations
Against this background, it is with good reason that the United Nations recently
recognized the necessity to consider both public and private enforcement. The
United Nations stated in its report entitled “Protecting Cultural Heritage – An
Imperative for Humanity, Acting together against Destruction and Trafficking of
Cultural Property by Terrorist and Organized Crime Groups” of 26 September
2016:
21
”In light of the increasing number of international crimes related to the
looting and trafficking of cultural heritage, a first international response was
the Convention on the Means of Prohibiting and Preventing the Illicit
15
Lyndel V. Prott, UNESCO and UNIDROIT: A Partnership against Trafficking in Cultural
Objects, Unif.L.Rev. 1996, pp. 59 et seq.
16
Op.cit., at p. 60.
17
This Convention will be discussed below in more detail.
18
See e.g. Sabine von Schorlemer, Kulturgutzerstörung, Die Auslöschung von Kulturerbe in
Krisenländern als Herausforderung für die Vereinten Nationen, Baden-Baden 2016, pp. 367 et seq.
19
Contracting States amongst the Member States of the European Union are the following
14: Croatia, Cyprus, Denmark, Finland, Greece, Hungary, Italy, Lithuania, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden. France and the Netherlands are only Signatory States. The only
Contracting EFTA State is Norway.
20
See also Sabine von Schorlemer, Kulturgutzerstörung, Die Auslöschung von Kulturerbe in
Krisenländern als Herausforderung für die Vereinten Nationen, Baden-Baden 2016, p. 399.
21
http://www.italyun.esteri.it/rappresentanza_onu/resource/doc/2016/09/protect.pdf (17 July
2017).
European Added Value Assessment
30
Import, Export and Transfer of Ownership of Cultural Property established
by UNESCO in 1970. Today, these crimes are increasingly linked to
international criminal activity including the financing of terrorist groups.
During 2015 and 2016, the Permanent Missions of Italy and Jordan chaired a
series of meetings at UN Headquarters in New York dedicated to different
aspects of the protection of cultural heritage. This initiative was organized
together with INTERPOL, UNESCO, and UNODC, who retain the related
and complementary expertise on the issues. To ensure the protection of
cultural heritage, Italy, Jordan, INTERPOL, UNESCO, and UNODC have
drawn up a list of suggested key actions (...). These are based on the
outcomes of these meetings, the comprehensive guidelines adopted to
support the implementation of the 1970 UNESCO Convention and the UN
Convention on Transnational Organized Crime, and the priorities of experts
working in the field.”
And one of the suggested key actions is laid down in the following statement:
“[G]reater collaboration is needed between the public and the private
spheres to prevent illegal transit and trafficking, hamper illegal conduct, and
disrupt criminal networks”.
22
This appears to be a clear and correct assessment of the regulatory challenge that
legislators are facing today in relation to the protection of cultural property, in
particular against looting in armed conflicts and war.
23
VII. – Focal points of an effective private enforcement for claims for
restitution of looted cultural property by EU legislative action
For the purposes of this Report, the following issues of an effective private
enforcement to be supported by EU legislation appear to be central and will be
dealt with as focal points in Chapter 3: (1) International jurisdiction of Member
State courts to hear cross-border claims for the restitution of works of art and
cultural property looted in armed conflicts and wars; (2) Immunity from
jurisdiction and seizure of works of art and cultural property on temporary loan
in a foreign state (“collection mobility”); (3) Choice of law for claims under private
law for the restitution of works of art and cultural property looted in armed
conflicts and wars; (4) Substantive law and its harmonization on the restitution of
works of art and cultural property looted in armed conflicts and wars; (5)
proposals in relation to the special issue of Nazi looted art; (6) complementary
measures.
22
Op.cit, at p. 10.
23
Sabine von Schorlemer, Kulturgutzerstörung, Die Auslöschung von Kulturerbe in
Krisenländern als Herausforderung für die Vereinten Nationen, Baden-Baden 2016, p. 399.
31
Chapter 2 – On the scale of illicit trade with Looted Cultural
Property
I. – The global art market: Up to USD 57 billion per annum?
According to the latest TEFAF art market report 2017, auctions and private sales
in 2016 amounted to approximately USD 45 billion in total.
52
Another study
commissioned by Art Basel and UBS estimated these sales at around USD 57
billion.
53
Thus, the global art market is of huge value, although there are
considerably differing estimations of its size.
II. – Illicit trade: Up to USD 8 billion per annum?
It is commonly accepted that there is – naturally – no reliable data on the scale and
volume of illicit trade in art and cultural property.
54
Older estimations range from
6 billion to 8 billion USD per annum,
55
but these estimations are partly contested
as exaggerated, or at least unsubstantiated.
56
III. – ILLICID: A German pilot project for investigating the illicit art
market
Unfortunately, only a handful of current research projects attempt to shed light on
the illicit art market. For example, the German research project “ILLICID” (Illicit
52
The European Fine Art Foundation (TEFAF), The Art Market Report 2017, p. 8.
53
Clare McAndrew, The Art Market 2017, An Art Basel & UBS Report, p. 14.
54
E.g. Neil Brodie, Congenial Bedfellows? The Academy and the Antiquities Trade, 27 J.
Contemporary Criminal Justice 2011, pp. 408 et seq., at p. 411.
55
Frank Wehinger, Illegale Märkte: Stand der sozialwissenschaftlichen Forschung, Max
Planck Institut für Gesellschaftsforschung, Working Paper 11 /6, p. 50, with further references; see
also RAND, Assessing the illegal trade in cultural property from a public policy perspective A brief
for the RAND Europe Board of Trustees http://www.rand.org/content/dam/
rand/pubs/documented_briefings/2011/RAND_DB602.pdf (5 July 2017).
56
See e.g. Antiquities Dealer Assocation, ADA (UK), http://theada.co.uk/facts-figures (17
July 2017).
KEY FINDINGS
There are no reliable statistics on the precise scale of looting and illicit trade
with cultural property. However, there is substantiated reason for deep
concern. Further investigations must be undertaken.
Most current political and legislative initiatives focus exclusively on public,
administrative and/or criminal law. In order to set up a comprehensive
regulatory framework, private law must be taken into account with greater
prominence.
European Added Value Assessment
32
Traffic in Cultural Goods in Germany) seeks to identify and discover unreported
cases as a basis for the prevention of crime. The project is conducted by the
Prussian Cultural Heritage Foundation (Stiftung Preussischer Kulturbesitz), the
GESIS Leibniz Institute for the Social Sciences and the Fraunhofer Institute for
Secure Information Technology. The objectives of the project are described as
follows:
“Based on a pilot study effective methods and tools for the collection,
documentation and analysis of information will be developed and tested
about illicit traffic in cultural goods in Germany. Considering the
background of recent political developments in Iraq and Syria, this study
concentrates on the active trade with ancient cultural goods in the eastern of
the Mediterranean area. The function of GESIS is to realise a systematic
survey of different agents which are operating in the field of cultural goods.
These agents are for example departments and administrations, but also
dealers, auctioneers, museums and others. (...). Following the data collection,
the data will be prepared, documented and analysed”.
57
Evidently, further projects would be of significant value in order to gain an
improved basis of information. This would be helpful to design any further action
and also, as necessary, disprove doubts and counterarguments against the need
for better protection of cultural property on all levels of the legal order or,
alternatively, remove concerns as unfounded.
IV. – Figures from Databases in the field
There is a variety of databases on lost cultural property in the field. The figures of
these databases indirectly indicate at least a large scale of loss and looting and thus
illicit traffic:
1. – INTERPOL
According to INTERPOL,
“[t]he illicit traffic in cultural heritage is a transnational crime that affects
the countries of origin, transit and final destination. The illicit trade in works
of art is sustained by the demand from the arts market, the opening of
borders, the improvement in transport systems and the political instability
of certain countries. Over the past decade we have seen an increasing trend
of illicit trafficking in cultural objects from countries in the Middle East
affected by armed conflict. The black market in works of art is becoming as
lucrative as those for drugs, weapons and counterfeit goods. (...)”.
58
57
https://www.gesis.org/en/research/external-funding-projects/overview-external-funding-
projects/ifis/ (17 July 2017).
58
https://www.interpol.int/Crime-areas/Works-of-art/Works-of-art (17 July 2017). On the
”frequently asked question: Is it true that trafficking in cultural property is the third most common
Cross-border restitution claims of looted works of art and cultural goods
33
In 1995, INTERPOL created its Stolen Works of Art Database. As of 1 September
2016, this database combines descriptions and pictures of around 49,000 items.
2. – Art Loss Register
The Art Loss Register, the world’s largest private database of lost and stolen art,
antiques and collectables, currently holds 500,000 items (including pre-loss
registries).
59
3. – Lost Art Database (Nazi Looted Art)
In respect to the special issue of Nazi looted art, the German Lost Art Database
registers cultural objects which were relocated, moved or seized as a result of
persecution under the Nazi regime and the Second World War, , especially from
Jewish owners.
60
As of 2014, 150,000 entries were reported.
61
4. - Central Registry of Information on Looted Cultural Property 1933 –
1945 (Nazi Looted Art)
The Object Database of the Central Registry of Information on Looted Cultural
Property 1933 – 1945
62
contains details of over 25,000 objects looted, missing
and/or identified from over fifteen countries.
The substantial numbers of entries support the assumption that the illicit traffic in
art and cultural property amounts to large volumes. Presumably, the number of
unregistered objects of looted cultural property exceeds the number of registered
objects by far.
63
V. – Many more recent signs of concern
These assumptions are further supported with initiatives by international
organisations and regional communities of states or single states worldwide. They
express a deep concern about an ongoing and increasing looting of cultural
form of trafficking, after drug trafficking and arms trafficking?” INTERPOL’s answer is: ”We do
not possess any figures which would enable us to claim that trafficking in cultural property is the
third or fourth most common form of trafficking, although this is frequently mentioned at
international conferences and in the media. In fact, it is very difficult to gain an exact idea of how
many items of cultural property are stolen throughout the world and it is unlikely that there will ever
be any accurate statistics.”
59
http://www.artloss.com/services/loss-registration (17 July 2017).
60
http://www.lostart.de/Webs/DE/LostArt/Index.html (17 July 2017).
61
http://www.deutschlandfunkkultur.de/internet-datenbank-auf-der-spur-der-
raubkunst.1013.de.html?dram:article_id=273598 (17 July 2017).
62
http://www.lootedart.com/home (17 July 2017).
63
The Archaeological Institute of America has been cited as estimating that as many as 90%
of classical artifacts in collections may be stolen antiquities, see e.g. Loveday Morris, Islamic State
Isn't Just Destroying Ancient Artifacts--It's Selling Them, Washington Post, 8 June 2015,
https://www.washingtonpost.com/world/middle_east/islamic-state-isnt-just-destroying-ancient-
artifacts--its-selling-them/2015/06/08/ca5ea964-08a2-11e5-951e-8e15090d64ae_story.html?utm_
term=.ea79b111d20a (17 July 2017).
European Added Value Assessment
34
property on a large scale, in particular in connection with wars and crises and
increasingly as a means of financing terrorism.
1. – UN Security Council Resolution 2347 (24 March 2017)
For example, the United Nations Security Council adopted at its 7907th meeting
on 24 March 2017, Resolution 2347 (2017) on the maintenance of international
peace and security: destruction and trafficking of cultural heritage by terrorist
groups and in situations of armed conflict.
64
In this Resolution the Security
Council:
“[d]eplores and condemns the unlawful destruction of cultural heritage,
inter alia destruction of religious sites and artefacts, as well as the looting
and smuggling of cultural property from archaeological sites, museums,
libraries, archives, and other sites, in the context of armed conflicts, notably
by terrorist groups”.
Against this background the Council:
“[r]equests Member States to take appropriate steps to prevent and counter
the illicit trade and trafficking in cultural property and other items of
archaeological, historical, cultural, rare scientific, and religious importance
originating from a context of armed conflict, notably from terrorist groups,
including by prohibiting cross-border trade in such illicit items where States
have a reasonable suspicion that the items originate from a context of armed
conflict, notably from terrorist groups, and which lack clearly documented
and certified provenance, thereby allowing for their eventual safe return
(...).”
Furthermore, the Council:
“[u]rges Member States to introduce effective national measures at the
legislative and operational levels where appropriate, and in accordance with
obligations and commitments under international law and national
instruments, to prevent and counter trafficking in cultural property (…).”
And the Council:
“[c]alls upon Member States to request and provide cooperation in
investigations, prosecutions, seizure and confiscation as well as the return,
restitution or repatriation of trafficked, illicitly exported or imported, stolen,
looted, illicitly excavated or illicitly traded cultural property, and judicial
proceedings, through appropriate channels and in accordance with domestic
legal frameworks (...)”.
64
On this Resolution see e.g. Konstantinos D. Magliveras, A critical reading of UNSC
Resolution 2347 (2017) on unlawful attacks against and looting of religious and historic sites, 3 No.
5 Int'l Enforcement L. Rep. 188 (2017).
Cross-border restitution claims of looted works of art and cultural goods
35
2. - Terrorism and Illicit Finance Subcommittee of the US House of
Representatives (23 June 2017)
Furthermore, the Terrorism and Illicit Finance Subcommittee of the United States
House of Representatives (115th Congress) held a hearing on 23 June 2017 entitled
“The Exploitation of Cultural Property: Examining Illicit Activity in the
Antiquities and Art Trade”. The Memorandum announcing the Hearing stated:
65
“The theft, fraud, looting, and trafficking of artifacts and cultural materials,
including antiquities, is a longstanding transnational phenomenon that can
enrich criminal actors and terrorists and destroy the cultural heritage of
nations. It has been estimated that illicit art and cultural property crimes
result in annual financial losses ‘in the billions of dollars.’ The Subcommittee
will receive testimony from government experts concerning the scope of
illicit activity in the art and antiquities trade, the ways in which recent
instances of looting and destruction of cultural artifacts by terrorist groups
like ISIS have been combatted, and how this looting and theft can be
prevented in the future.”
3. - FBI Report “Art Theft” (3 May 2017)
For its estimation of the scale of illicit art and cultural property crimes “in the
billions of dollars”, the Memorandum refers to the United States Federal Bureau
of Investigation (FBI) Report “Art Theft”.
66
The FBI’s website states:
“The FBI established a rapid deployment Art Crime Team in 2004. The team
is composed of 16 special agents, each responsible for addressing art and
cultural property crime cases in an assigned geographic region. The Art
Crime Team is coordinated through the FBI’s Art Theft Program, located at
FBI Headquarters in Washington, D.C. Art Crime Team agents receive
specialized training in art and cultural property investigations and assist in
art related investigations worldwide in cooperation with foreign law
enforcement officials and FBI legal attaché offices. The U.S. Department of
Justice provides special trial attorneys to the Art Crime Team for prosecution
support. Since its inception, the Art Crime Team has recovered more than
14,850 items valued at over $165 million”.
4. – Council of Europe Convention on Offences relating to Cultural
Property (3 May 2017)
On 3 May 2017, the Council of Europe adopted a new convention on aspects of
criminal law to prevent and combat the illicit trafficking and destruction of cultural
65
https://financialservices.house.gov/calendar/eventsingle.aspx?EventID=402005 (5 July 2017).
66
Federal Bureau of Investigation, Art Theft, www.fbi.gov/investigate/violent-crime/art-
theft (5 July 2017).
European Added Value Assessment
36
property. This Convention on Offences relating to Cultural Property,
67
which will
be open for signature to all countries in the world, aims to foster international co-
operation to fight related crimes:
68
“The Convention will be the only international treaty specifically dealing
with the criminalisation of the illicit trafficking of cultural property,
establishes a number of criminal offences, including theft; unlawful
excavation, importation and exportation; and illegal acquisition and placing
on the market. It also criminalises the falsification of documents and the
destruction or damage of cultural property when committed
intentionally”.
69
The “Fact Sheet” of 15 March 2017
70
accompanying the Convention explains:
“The illicit trade in art and antiquities has been a widespread and profitable
criminal business for decades. Today cultural objects continue to be stolen
and looted from museums, galleries, public and private collections and
religious buildings, whilst important archaeological sites and monuments
are illicitly excavated and destroyed. Traffickers often take advantage of the
chaos caused by war to perpetrate their crimes. Traditionally carried out by
specialists operating in a restricted network based on trust, organised crime
networks have increasingly become involved in trafficking, multiplying the
volume and the value of the transactions. Fighting these crimes is difficult
because they often have a transnational dimension involving several
national jurisdictions: items are looted in one country, and illicitly traded
and transported through others before reaching their final destination. In
recent years armed conflicts in Iraq and Syria have triggered an increase in
the number of looted and stolen antiquities, often by no-state armed groups
and terrorists. These groups have plundered ancient sites such as Palmyra,
Mosul and Nimrud to finance their activities, while at the same time
destroying structures and artefacts for propaganda reasons. Illicit trafficking
in cultural objects turns into a vicious circle: the buying of artefacts - often
by Western buyers - encourages more theft, pillaging and destruction in
conflict zones, and contributes to protract the conflicts.”
67
For a first assessment see e.g. Derek Fincham, http://illicitculturalproperty.com/some-
thoughts-on-the-new-council-of-europe-antiquities-convention (5 July 2017).
68
For further background information see 127th Session of the Committee of Ministers
(Nicosia, 19 May 2017), Council of Europe Convention on Offences relating to Cultural Property,
Explanatory Report https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680704b
33 (17 July 2017).
69
Op.cit.
70
https://rm.coe.int/factsheet-convention-on-offences-relating-to-cultural-property/168071
4665 (17 July 2017).
Cross-border restitution claims of looted works of art and cultural goods
37
5. – European Commission Proposal for a Regulation on the import of
cultural goods (July 2017)
Most recently, the European Commission submitted a Proposal for a Regulation
on the import of cultural goods.
71
This proposal is to be seen in light of the
declaration of the G-20 Summit of 8 July 2017, in which the commitment was
affirmed to tackle the alternative sources of financing of terrorism, including the
looting and smuggling of antiquities, with the invitation of the Culture ministers
of the G7 group in March 2017 to prohibit the trade in looted cultural property
trafficked across borders. Moreover, the fight against the illicit trade in cultural
goods will be a key European action in the course of the 2018 European Year of
Cultural Heritage.
72
In its Impact Assessment, the Commission once more
summarises and explains the substantial scale and volume of illicit trade in
cultural property.
73
VI. – Recommendations
Taking all these facts and figures together,
74
there are no doubts regarding the
urgent need to improve the regulatory framework for the restitution of looted
cultural property. However, most of the initiatives described above focus
exclusively on public, administrative and/or criminal law. Therefore, it appears
highly advisable to consider:
Recommendation 1: Private law must be taken into account with greater emphasis
(“private enforcement”). Options for the EU will be discussed in Chapter 3.
Furthermore, there must be more scientific investigations in order to shed light on
the illicit art trade in cultural property such as e.g. by the ILLICID project currently
conducted in Germany. Therefore, it appears highly advisable to additionally
consider:
Recommendation 2: More research must be commissioned and conducted to
obtain better information about scale, structure and size of illicit trade in cultural
property.
71
Proposal for a Regulation of the European Parliament and of the Council on the import of
cultural goods, COM(2017) 375 final, 13 July 2017.
72
Op.cit., p. 2.
73
Commission Staff Working Document Impact Assessment accompanying the document
“Proposal for a Regulation of the European Parliament and of the Council on the import of cultural
goods, SWD(2017) 262 final, of 13 July 2017, at p. 12, sub 3.1.4.: USD 3 to 6 billion according to older
figures and studies.
74
See also recently e.g. Brigitta Hauser-Schaublin/Lyndel V. Prott (eds.), Cultural Property
and Contested Ownership: The Trafficking of Artefacts and the Quest for Restitution, Oxford 2016;
Mark V. Vlasic / Helga Turku, Protecting Cultural Heritage as a Means for international Peace,
Security and Stability: The Case of ISIS, Syria and Iraq, 49 Vand. J. Transnat'l L. 1371 (2016); Ho-
Young Song, International Legal Instruments and New Judicial Principles for Restitution of
Illegally Exported Cultural Properties, 4 Penn St. J. L. & Int'l Aff. 718 (2016).
38
Chapter 3 – Focal Points of Private Law
Against this background, the following focal points of private law are discussed
with a view to demonstrate the added value of actions at EU level aiming at
tackling illicit trade of cultural property by means of private law. In particular, the
study will look at cultural property looted in armed conflicts and wars.
I. – International jurisdiction for the restitution of cultural property
A first and central requirement for any claimant seeking to recover looted or stolen
cultural property is to establish jurisdiction of the court where the proceedings for
the restitution of the cultural property are to be instituted.
1. – General observations on the EU system of international jurisdiction
for civil matters
The “standard” case is that the defendant is possessor of the cultural property
under dispute. This case is easily covered by the general principle of jurisdiction
which is actor sequitur forum rei – the claimant should go to the defendant’s
domicile and sue there. This principle is fully reflected by the general EU
legislation on international jurisdiction.
75
For it is common ground that the
defendant’s domicile is a fair place to sue, and there is no need for any special rule
in relation to cultural property in this standard case. The crucial question for the
purposes of this Study, however, is whether there is the need for a special rule in
75
See Article 4 (1) Brussels Ibis Regulation (Regulation (EU) No 1215/2012 of 12 December
2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters (recast)).
KEY FINDINGS
The EU could (re-) consider introducing a ground of general jurisdiction in
rem (not only limited to cultural objects) as proposed by the Commission in its
Proposal for the Recast of the Brussels I Regulation and as laid down e.g. in
Article 98 of the Swiss Federal Act on Private International Law
Alternatively, Article 7 no. 4 Brussels Ibis Regulation could mirror the
definition of cultural object in Article 2 of the 1995 UNIDROIT Convention on
the return of stolen property, in order to create a sphere of harmonization as
far-reaching as possible.
At least, Article 7 no. 4 Brussels Ibis Regulation could itself spell out the
definition of cultural object, rather than upholding a reference to a Directive
that has been recast in the meantime.
Cross-border restitution claims of looted works of art and cultural goods
39
case that the movable cultural property is located at another place than the
defendant’s domicile, in particular in another (Member) state.
2. – Need for a special ground of jurisdiction based on the location of
movable cultural property
There are indeed cases in which this scenario has become a reality. For example,
on the basis of the German and Maltese national reports, as well as on the result of
discussions at the conference of the national reporters, The “Heidelberg Report”
76
recommended introducing a general in rem jurisdiction for movable property in
order to provide for a forum close to evidence, and with direct access to
enforcement against the res.
This recommendation was mainly based on the following case (“Heylshof case”)
involving the Austrian auction house “Dorotheum” in Vienna:
77
A Swiss consignor
put up for auction a painting stolen from the Heylshof Museum collection in
Worms in Germany. Both the Swiss consignor and the German foundation claimed
to be the owner and approached the Dorotheum for restitution. The Dorotheum
lodged the painting with the local court of Vienna in order to have the two parties
to clear the case without the Dorotheum. On the level of substantive law, the
presumptive owner would typically have to institute proceedings against the other
presumptive owner, to have him allow the return of the object from the custody of
the court.
However, under the Brussels I Regulation
78
, there was no international jurisdiction
for the courts in Vienna for proceedings by the Swiss party against the German
party, and any recourse to national law of Austria was barred by the Regulation.
Conversely, there was no jurisdiction for a claim of the German party against the
76
Burkhard Hess/Thomas Pfeiffer/Peter Schlosser, The Brussels I Regulation 44/2001 –
Application and Enforcement in the EU (“Heidelberg Report”), Munich 2008, paras. 152 et seq.
77
Erik Jayme, Ein internationaler Gerichtsstand für Rechtsstreitigkeiten um Kunstwerke, in
Klaus Grupp/Ulrich Hufeld (Hrsg.), Recht – Kultur – Finanzen, Festschrift für Reinhard Mußgnug
(2005), pp. 517 et seq. For another case where the defendant’s domicile was distinct from the
location of the cultural good in question see e.g. Upper Regional Court (Oberlandesgericht)
Schleswig-Holstein, 10 February 1989, Neue Juristische Wochenschrift (NJW) 1989, at p. 3105: A
Greek national illegally excavated coins from the soil in Greece and exported them to Germany
where he stored the coins in his German apartment. The case was solved on the basis of mutual
criminal assistance in the provision of evidence. Had Greece decided to claim restitution as an owner
of the coins – Greek legislation provided that any undiscovered archaeological object would be state
property – it would have been an issue whether Greece could have instituted proceedings in
Germany. Without a special ground of jurisdiction based on the location of the object in question
this would not have been possible.
78
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (”Brussels I Regulation”). This
Regulation was applicable at the time of the case but has been replaced by Regulation (EU) No
1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters (recast)).
European Added Value Assessment
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Swiss party under the Lugano Convention.
79
Thus, the parties would have been
forced to institute proceedings at a court outside Austria, even though the res was
lodged with a court in Austria. This appears inadequate.
The consignment of cultural objects to auction in other Member States is a regular
setting. Therefore, consideration should be given in the case where the domicile of
the consignor differs from the current location of the object, and the plaintiff wants
to recover the object directly from the consignor as defendant.
80
This would be in
line with international instruments that provide for such a ground of jurisdiction.
For example, Article 8 (1) UNIDROIT Convention
81
expressly provides that a claim
may be brought before the courts or other competent authorities of the Contracting
State where the cultural object is located, in addition to the courts or other
competent authorities otherwise having jurisdiction under the rules in force in
Contracting States.
3. – Legislative Reaction of the EU: Article 7 no. 4 Brussels Ibis Regulation
On these grounds, the European Commission, in its Proposal for the Recast of the
Brussels I Regulation, proposed in its Article 5 no. 3 a general in rem jurisdiction.
82
In the following however, this Proposal was given up and replaced by a special
ground of jurisdiction exclusively for the recovery of cultural property, as it is now
laid down in Article 7 no. 4 Brussels Ibis Regulation:
“A person domiciled in a Member State may be sued in another Member
State as regards a civil claim for the recovery, based on ownership, of a
cultural object as defined in point 1 of Article 1 of Directive 93/7/EEC
initiated by the person claiming the right to recover such an object, in the
courts for the place where the cultural object is situated at the time when the
court is seised.”
79
Convention on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters of Lugano of 30 October 2007. The objective of the Convention is to unify the
rules on jurisdiction in civil and commercial matters and expand the applicability of the Brussels I
regulation to the relations between Member States of the (then) EC on the one hand and the EFTA
States Norway, Iceland and Switzerland on the other. The EFTA State Liechtenstein is not a
Contracting Party.
80
Of course there is also the possibility to institute proceedings against the auction house as
the actual possessor. The auction house will typically include the consignor as a third party (”third
party joinder”). This is possible on the grounds of Article 8(2) Brussels Ibis Regulation.
81
UNIDROIT Convention on stolen or illegally exported cultural objects (Rome, 24 June
1995).
82
European Commission, Proposal for a Regulation of the European Parliament and of the
Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters (Recast) of 14 December 2010, COM(2010) 748 final, Article 5 no. 3: ”The following courts
shall have jurisdiction: as regards rights in rem or possession in moveable property, the courts for
the place where the property is situated”. For a critique see e.g. Pietro Franzina, The Proposed New
Rule of Special Jurisdiction Regarding Rights in Rem in Moveable Property: A Good Option for a
Reformed Brussels I Regulation?, Diritto del commercio internazionale 2011, 789.
Cross-border restitution claims of looted works of art and cultural goods
41
4. – Issues in relation to Article 7 no. 4 Brussels Ibis Regulation
However, there are several issues in relation to this provision.
a. – Definition of “cultural property”
A first issue in relation to Article 7 no. 4 Brussels Ibis Regulation is that its text
refers to Council Directive 93/7/EEC of 15 March 1993 on the return of cultural
objects unlawfully removed from the territory of a Member State. Meanwhile, this
Directive, has been replaced by Directive 2014/60/EU of the European Parliament
and of the Council of 15 May 2014 on the return of cultural objects unlawfully
removed from the territory of a Member State and amending Regulation (EU) No
1024/2012 (Recast). It is likely that now Article 7 no. 4 Brussels Ibis Regulation
refers to this latter Directive as opposed to the old one. Nevertheless, this should
be clarified, because the definition of a cultural object of the two instruments differ
from each other:
Article 1 (1) of Directive 93/7/EEC of 15 March 1993 defined “cultural object” as
an object which is:
“classified, before or after its unlawful removal from the territory of a
Member State, among the ‘national treasures possessing artistic, historic or
archaeological value’ under national legislation or administrative
procedures within the meaning of Article 36 of the [EC] Treaty, and belongs
to one of the categories listed in the Annex or does not belong to one of these
categories but forms an integral part of public collections
83
listed in the
inventories of museums, archives or libraries' conservation collection.”
The reports on the application of the Directive 93/7/EEC
84
have pointed out its
infrequent application, partly due to the limitation of its scope, which resulted
from, inter alia, the conditions set out in the Annex to that Directive.
85
Therefore, in
the recast of this Directive, the scope of the Directive was extended to any cultural
object classified or defined by a Member State under national legislation or
administrative procedures as a national treasure possessing artistic, historic or
archaeological value within the meaning of Article 36 TFEU.
86
Thereby, the Directive now covers objects of historical, paleontological,
ethnographic, numismatic interest or scientific value, whether or not they form
83
For the purposes of Directive 93/7/EEC, ‘public collections’ means collections which are
the property of a Member State, local or regional authority within a Member States or an institution
situated in the territory of a Member State and defined as public in accordance with the legislation
of that Member State, such institution being the property of, or significantly financed by, that
Member State or a local or regional authority.
84
Most recently European Commission, Fourth report on the application of Council Directive
93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State,
COM(2013), p. 7.
85
Recital 8 Directive 2014/60/EU.
86
Recital 9 Directive 2014/60/EU.
European Added Value Assessment
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part of public or other collections or are single items, and whether they originate
from regular or clandestine excavations, provided that they are classified or
defined as national treasures. Furthermore, cultural objects classified or defined as
national treasures no longer have to belong to categories, or comply with
thresholds related to their age and/or financial value.
87
And indeed, Art. 2 (1) of Directive 2014/60/EU, now defines ‘cultural object’
simply as
“an object which is classified or defined by a Member State, before or after
its unlawful removal from the territory of that Member State, as being among
the ‘national treasures possessing artistic, historic or archaeological value’
under national legislation or administrative procedures within the meaning
of Article 36 TFEU”.
Against this background, Article 7 no. 4 Brussels Ibis Regulation should be
clarified to the effect that now the new, broader definition of cultural objects of
Article 2 Directive 2014/60/EU is relevant.
Even better, the wording of Article 7 no. 4 Brussels Ibis should itself spell out this
definition rather than referring to another instrument in order to make it more
“user-friendly”.
Spelling out the definition in the wording of Article 7 no. 4 Brussels Ibis Regulation
would remove another uncertainty for the interpretation of Art. 7 no. 4 Brussels
Ibis Regulation: The reference to the Directive might be misunderstood as referring
to the entire material scope of the Directive, rather than merely to its definition of
cultural property.
88
To be sure, requiring for Article 7 no. 4 Brussels Ibis Regulation
that the raised claim is covered by the Directive would not make sense, because
the Directive does not cover civil claims at all, whereas Article 7 no. 4 Brussels Ibis
Regulation exclusively covers civil claims. Thus, the reference to the Directive
must be exclusively for the purpose of defining “cultural property”, and this
should be made clear.
Restricting the reference to the Directive in this sense brings about a further and
important consequence: cultural property of a third state (which would not be
covered by the territorial scope of the Directive) is clearly covered by Article 7 no.
4 Brussels Ibis (as long as the defendant is domiciled in a Member State), and this
should be clearly the case.
89
87
Recital 9 Directive 2014/60/EU.
88
Kurt Siehr, Das Forum rei sitae in der neuen EuGVO (Art. 7 Nr. 4 EuGVO n.F.) und der
internationale Kulturgüterschutz, in Normann Witzleb et al. (eds.), Festschrift für Dieter Martiny
zum 70. Geburtstag, Tübingen 2014, pp. 837 et seq., at p. 841.
89
Kurt Siehr, op.cit., at p. 841.
Cross-border restitution claims of looted works of art and cultural goods
43
b. – Fragmentation
Beyond the technical details of Article 7 no. 4 Brussels Ibis Regulation, this ground
of jurisdiction finds itself placed in a strongly fragmented surrounding:
(1) – Status quo
If it is an international matter and if the defendant is domiciled in an EU Member
State, the Brussels Ibis Regulation applies. If the defendant is domiciled in a
Contracting State of the Lugano Convention other than an EU Member State (for
example Switzerland), the Lugano Convention applies.
90
If the defendant is
domiciled in another third State (neither a Lugano nor an EU Member State), the
autonomous rules of jurisdiction of the Member States apply, Art. 6 Brussels Ibis
Regulation.
In the autonomous laws of some states, there are special grounds for jurisdiction
at the place of the location of either the cultural property in question or, more
generally, of any movable property in question or even of any kind of asset.
For example, Article 98 of the Swiss Federal Act on Private International Law of 18
December 1987 provides in sentence 1 that Swiss courts have jurisdiction to
entertain actions relating to personal property rights at the domicile or, in the
absence of a domicile, at the habitual residence of the defendant. Additionally,
according to sentence 2, Swiss courts have jurisdiction at the place where the
property is located. Article 98a of the same Act provides that the court at the
domicile, or at the registered office of the defendant, or the court at the place where
the cultural property is located, has jurisdiction to entertain actions for recovery,
within the meaning of Article 9 of the Act on the Transfer of Cultural Property of
20 June 2003 implementing the UNESCO Convention
91
in Swiss law.
According to section 23 Sentence 1 of the German Code of Civil Procedure,
German courts are competent at the place where (any) assets of the defendant’s
are located (not necessarily the object in question) if the defendant has no place of
residence in Germany (where he could be sued otherwise).
In addition, according to Art. 71 (1) Brussels Ibis Regulation and Art. 67 (1) Lugano
Convention, these instruments of horizontal harmonization shall not affect any
conventions by which the Member States or Contracting States are bound and
which in relation to particular matters such as e.g. cultural property govern
jurisdiction or the recognition or enforcement of judgments. Thus, for States that
90
Convention on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters of Lugano of 30 October 2007.
91
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property of 14 November 1970.
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are parties to the 1995 UNIDROIT Convention,
92
the jurisdictional rule of Article 8
applies.
Article 8 (1) UNIDROIT Convention provides for a non-exclusive ground of
jurisdiction at the place of the location of the cultural object in question:
“(1) A claim ... may be brought before the courts or other competent
authorities of the Contracting State where the cultural object is located, in
addition to the courts or other competent authorities otherwise having
jurisdiction under the rules in force in Contracting States”.
93
However, Contracting States amongst the Member States of the European Union
are (only) the following:
94
Croatia, Cyprus, Denmark, Finland, Greece, Hungary,
Italy, Lithuania, Portugal, Romania, Slovakia, Slovenia, Spainand Sweden.
95
(2) – Different results without reason
This fragmentation leads to implausible differences in results:
If the defendant is domiciled in the EU Member State where at the same time the
cultural object is located, Article 7 no. 4 Brussels Ibis Regulation is of no practical
relevance, because the defendant may be sued on any grounds at the courts of the
Member State of his domicile, according to Article 4 (1) Brussels Ibis Regulation.
If the defendant is domiciled in another EU Member State than the Member State
where the cultural object is located, Article 7 no. 4 Brussels Ibis Regulation applies.
However, if the defendant is domiciled in a Lugano State, the defendant may be
sued at his domicile but there is no equivalent to Article 7 no. 4 Brussels Ibis
Regulation in the Lugano Convention.
And if the defendant is domiciled in a third state (neither EU nor EEA state), the
autonomous rules of the Member State whose courts are seized apply. Sometimes
there will be a forum based on the location of the object, sometimes not.
In some of these cases Article 8 UNIDROIT Convention will be available, namely
if the cultural object is located in a Convention State irrespective of whether the
defendant is domiciled in a Convention State, be it the same State, be it another
92
UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of Rome, 24 June
1994. According to its Article 12 the Convention entered into force on 1 July 1998. Currently, 40
States are Contracting States.
93
Articles 8 (2) and (3) UNIDROIT Convention provide: ”(2) The parties may agree to
submit the dispute to any court or other competent authority or to arbitration. (3) Resort may be had
to the provisional, including protective, measures available under the law of the Contracting State
where the object is located even when the claim for restitution or request for return of the object is
brought before the courts or other competent authorities of another Contracting State.”
94
In alphabetical order.
95
France and the Netherlands are only Signatory States. Latvia seems to be in the process of
acceding, see http://www.artlaw.online/en/read-it/running-commentary/latvia-to-enter-unesco-70-
and-unidroit-95-conventions-3 (20 July 2017). The only Contracting EFTA State is Norway.
Cross-border restitution claims of looted works of art and cultural goods
45
State. Nor does it matter whether the object was stolen from a Convention State or
whether the claimant is domiciled in a Convention State.
In sum, sometimes a claimant will be able to avail itself of a jurisdiction in rem,
sometimes not. For example, if the defendant is domiciled in Turkey and stores the
cultural object in Germany, there will be jurisdiction of the German courts whereas
if, pari passu, the defendant is domiciled in Switzerland, there will be no
jurisdiction of the German courts. This fragmentation is not satisfactory and
should be reduced as best as possible.
(3) – In particular: Similar but not identical definition of cultural object under the
UNIDROIT Convention and Article 7 no. 4 Brussels Ibis Regulation
Article 2 UNIDROIT Convention defines “cultural objects” for the purposes of the
Convention as “those which, on religious or secular grounds, are of importance for
archaeology, prehistory, history, literature, art or science and belong to one of the
categories listed in the Annex” to the Convention.
96
Although there is no
fundamental difference between the definition of cultural property in Article 7 no.
4 (i.e. Article 2 of Directive 2014/60/EU) on the one hand and Article 2 UNIDROIT
Convention on the other hand, it might still appear advisable to synchronize
Article 7 no. 4 Brussels Ibis Regulation fully with Article 2 UNIDROIT Convention,
in order to create a unified system of jurisdiction as far-reaching as possible. There
appears to be no normative reason for the EU legislator not to precisely mirror the
definition of the UNIDROIT Convention.
97
Rather, the definition for the purposes
of Article 7 no. 4 Brussels Ibis could be conceptually fully detached from Article 2
of Directive 2014/60/EU.
96
The Annex of the UNIDROIT Convention lists the following, rather broad and abstract
categories: (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of
paleontological interest; (b) property relating to history, including the history of science and
technology and military and social history, to the life of national leaders, thinkers, scientists and
artists and to events of national importance; (c) products of archaeological excavations (including
regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical
monuments or archaeological sites which have been dismembered; (e) antiquities more than one
hundred years old, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest;
(g) property of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by
hand on any support and in any material (excluding industrial designs and manufactured articles
decorated by hand); (ii) original works of statuary art and sculpture in any material; (iii) original
engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material;
(h) rare manuscripts and incunabula, old books, documents and publications of special interest
(historical, artistic, scientific, literary, etc.) singly or in collections; (i) postage, revenue and similar
stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic
archives; (k) articles of furniture more than one hundred years old and old musical instruments.
97
There is no need to exactly follow the scope of the exception in Article 36 TFEU to the
fundamental freedom of goods within the internal market. Rather, the EU legislator would certainly
be free to introduce a general jurisdiction in rem (i.e. not limited to cultural goods) as it was
suggested with good reasons by the EU Commission in its Proposal for the Recast of the Brussels I
Regulation.
European Added Value Assessment
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c. – Declaratory Relief
It is an unresolved question whether Article 7 no. 4 Brussels Ibis Regulation covers
actions for declaratory relief. For example, a museum could institute proceedings
for a declaratory judgment that it is the owner of a contested cultural object in
question, and such proceedings would be directed against a person or body
claiming to be the true owner.
98
Although such proceedings are not directly
addressed by Article 7 no. 4 Brussels Ibis Regulation, that expressly covers only
civil claim for the recovery based on ownership, it appears to be a consequent
extrapolation of the purpose and underlying ratio of this provision to extend it to
actions for (positive and negative) declaratory relief.
99
5. – Recommendation and Policy Options
Against this background, it is recommended to improve Article 7 no. 4 Brussels
Ibis Regulation. The following policy options appear to be available in order to
achieve improvement:
a. – Option 1: Introducing jurisdiction in rem for movable property
Option 1 would be to introduce a ground of general jurisdiction in rem (not only
limited to cultural objects) as proposed by the Commission in its Proposal for the
Recast of the Brussels I Regulation and as laid down e.g. in Article 98 of the Swiss
Federal Act on Private International Law.
b. – Option 2: Using the definition of cultural property of Article 2 UNIDROIT
Convention in Article 7 no. 4 Brussels Ibis Regulation
Option 2 would be using the definition of “cultural object” in Article 2 UNIDROIT
Convention in order to create a sphere of harmonization as far-reaching as possible
by e.g. copying the text of Article 2 and pasting it into a new subsection of Article
7 no. 4 Brussels Ibis Regulation and placing the Annex of the UNIDROIT
Convention in the respective Recital.
c. – Option 3: Spelling out the definition of Article 2 of Directive 2014/60/EU directly in
Article 7 no. 4 Brussels Ibis Regulation
A “small solution” would be spelling out the definition directly in Article 7 no. 4
Brussels Ibis Regulation rather than upholding a reference to another instrument.
This would remove uncertainty from certain aspects of interpretation and enhance
the “user-friendliness” of the provision.
98
See e.g., in relation to Nazi looted art, Toledo Museum of Art v. Ullin, 477 F.Supp. 2d 802
(N.D Ohio 2006).
99
See also Kurt Siehr, Das Forum rei sitae in der neuen EuGVO (Art. 7 Nr. 4 EuGVO n.F.)
und der internationale Kulturgüterschutz, in Normann Witzleb et al. (eds.), Festschrift für Dieter
Martiny zum 70. Geburtstag, Tübingen 2014, pp. 837 et seq., at p. 845.
Cross-border restitution claims of looted works of art and cultural goods
47
d. – Option 4: Updating the reference in Article 7 no. 4 Brussels Ibis
An even smaller solution would be just updating the reference in Article 7 no. 4
Brussels Ibis Regulation to now Directive 2014/60/EU, rather than the previous
Directive 93/7/EEC.
At least one of these options should be taken. Option 1 appears to be the best,
Option 4 remains better than nothing.
II. – Immunity for cultural property on loan in foreign states
KEY FINDINGS
Immunity for cultural property on loan in foreign states is a well-justified and
widespread legal concept amongst the Member States of the EU and beyond.
Immunity in favour of lenders of cultural property to foreign art exhibitions
supports international cultural exchange, collection mobility and public
access to cultural property – policy objectives endorsed by the EU (Article 167
TFEU).
Immunity may emerge from domestic legislation and, if the lender of the
cultural property is a State, from public international customary law.
However, as far as immunity is granted, it blocks any enforcement of claims
for restitution and sometimes even any litigation about the claim at the host
state on the occasion of the loan.
Therefore, immunity needs to be balanced against the interests of claimants:
(1) There must not be a denial of justice; and (2) there must not be
unconditional immunity for Nazi looted art.
The deeply fragmented national legislation on granting immunity for cultural
property on loan (”anti-seizure statutes”) amongst the EU Member States
could be harmonized by an EU instrument of a plausible scope and reliable
structure, in particular in respect to Nazi looted art.
Directive 2014/60/EU could be clarified to the effect that the protection and
support of collection mobility by national anti-seizure statutes (or a future EU
instrument of harmonized anti-seizure law) is not affected by the Directive.
The EU could motivate and join the Member States to acknowledge the rule
under customary international law that cultural property of foreign states on
loan for the purpose of cultural exchange in other states are immune from
seizure.
European Added Value Assessment
48
1. – Context
This issue relates to interests that conflict with the interests of claimants for the
restitution of cultural property: the interests of society to have public access to art
and cultural property, and to the mobility of art and cultural property collections
across borders. On the level of international relations, immunity supports cultural
exchange, and thereby supports mutual understanding amongst different peoples
and cultures and thus contributes to peace.
It is essential for these interests that art and cultural property, on loan from foreign
states to a host state for temporary exhibitions, are safe from legal action against
and seizure of any contested object. The typical scenario is that the claimants do
not see a chance for enforcing their presumptive claims in the jurisdiction of the
regular location of the contested object, but now that the object in question is
moving to another jurisdiction, claimants want to take advantage of this
unexpected change in location, and want to take action before the courts of the
host state.
This scenario is most likely in relation to property expropriated or looted during
past wars or periods of persecution such as within the October Revolution 1917 in
Russia or from 1933 to 1945 in Germany under the Nazi regime, but has also been
observed in other unresolved conflicts between states. Further, it has been
observed in the context of enforcing ordinary money claims by private individuals
(e.g. from international arbitration awards) against a state unwilling to pay and
execute the claim within its own territory.
100
2. – Fundamental distinction: Legislative immunity granted by a state and
immunity from seizure under customary public international law
In relation to immunity for cultural property on loan in foreign states, it is to be
distinguished between legislation of states on the matter (“anti-seizure statutes”
101
;
“Freies Geleit”
102
) and immunity from seizure potentially arising from public
100
Case studies will be presented below.
101
E.g. Matthias Weller, Immunity for Artworks on Loan? A Review of International
Customary Law and Municipal Anti-seizure Statutes in Light of the Liechtenstein Litigation, 38
Vand. J. Transnat’l L. 997 (2005); Stephen Knerly, International Loans: State Immunity and Anti-
Seizure Laws, ALI-ABA Course of Study – Legal Issues in Museum Administration April 1 – 3,
2009, Boston, Massachusetts, http://www.lending-for-europe.eu/fileadmin/CM/public/training/
Antwerp/ ALI-ABA_2009__Summary_of_Seizure_Laws.pdf (12 July 2017).
102
Matthias Weller, Das „Freie Geleit“ für internationale Kunstleihgaben, in Martin
Gebauer/Heinz-Peter Mansel/Götz Schulze (Hrsg.), Die Person im Internationalen Privatrecht
Symposium anlässlich des 80. Geburtstags von Erik Jayme, Mohr Siebeck 2017, forthcoming; Erik
Jayme, Das Freie Geleit für Kunstwerke, in Gerte Reichelt (ed.), Ludwig-Boltzmann-Institut für
Europarecht – Vorlesungen und Vorträge, Wien 2001, S. 3 ff.; Erik Jayme, Neueste Entwicklungen
im internationalen Kunstrecht, in Dietmar Pauger (ed.), Kunst im Recht, 4. Fakultätstag der
Rechtswissen-schaftlichen Fakultät 16. Mai 2003, Graz 2004, pp. 13 et seq., at p. 15.
Cross-border restitution claims of looted works of art and cultural goods
49
international customary law. This is relevant in the case that a state or a state entity,
such as a state museum, lends cultural property to an exhibition in another state.
103
Given that the mobility of cultural property for the purposes of cultural exchange
is of high relevance and symbolic value, both the level of state legislation (to
protect cultural property on loan) and the scope of the protection under public
customary international law (in case that no state legislation is in place or the
conditions laid down for protection are not met in the particular case at hand) are
of importance. Indeed, they will support collection mobility, public access to
cultural property on display in exhibitions, and cultural exchange amongst states
and peoples.
On both levels of the legal order – domestic and public international – the question
arises whether and to what extent cultural property on loan in foreign states is or
should be protected against third-party claims for recovery or restitution, if the
claim is raised on the occasion of the temporary location of the object on a different
territory, with different courts and different legislation.
3. – Case studies
The following case studies illustrate the issue:
a. – Exhibition “Treasures of the Sons of Heaven” at Bonn, Germany
In 1992, a diplomat of the Taiwanese consulate in Bonn, Germany, and the
directors of the Art and Exhibition Hall of the Federal Republic of Germany, also
in Bonn, developed the idea of the ambitious project of an exhibition „Treasures of
the Sons of Heaven” („Schätze der Himmelssöhne“) displaying leading objects of the
Imperial time from China.
104
At the beginning the project received little interest
from Taiwan, and the negotiations took until 1996 to convince the National Palace
Museum in Taipei to support it in principle. This museum is one of Taiwan’s
greatest attractions. It houses more than 650,000 pieces of Chinese bronze, jade,
calligraphy, painting and porcelain. The collection is estimated to be one-tenth of
China’s cultural treasures.
Taiwan is the main island of the Republic of China and its governmentlost control
over the Chinese mainland to the People’s Republic of China as a result of the
Chinese Civil War. In the course of this war, the Government moved the collection
from the Forbidden City in Beijing to Taiwan in 1949.Clearly, the National Palace
Museum of Taipei sought to ensure that the exhibition would not provide the
People’s Republic of China with an opportunity to gain possession of the treasures
103
Nout van Woudenberg, State Immunity and Cultural Objects on Loan, Leiden 2012, pp.
491.
104
Ursula Toyka-Fuong (Hrsg.), Schätze der Himmelssöhne. Die kaiserliche Sammlung aus
dem Nationalen Palastmuseum, Taipeh, Die Großen Sammlungen, vom 18.7.2003 bis 12.10.2003
im Alten Museum in Berlin und vom 21.11.2003 bis 15.2.2004 in Bonn in der Kunst- und
Ausstellungshalle der Bundesrepublik Deutschland GmbH, Katalog, Ostfildern-Ruit 2003.
European Added Value Assessment
50
while on loan in Germany. The Museum made clear that any kind of diplomatic
declaration by the German Government to guarantee safe conduct for the treasures
against claims raised by the People’s Republic of China would not be considered
sufficient. In order to make the exhibition happen, an anti-seizure statute turned
out to be conditio sine qua non.
On the initiative of the directors of the Art and Exhibition Hall of the Federal
Republic of Germany, and on the occasion of the then occurring implementation
of Directive 93/7/EEC on the return of cultural objects unlawfully removed from
the territory of a Member State, the German government extended article 2 of the
bill
105
by a provision (section 20) which may be taken as a paradigmatic example
for a national anti-seizure statute. It reads in translation:
(1) If foreign cultural property is to be loaned temporarily to an art
exhibition in the Federal Republic of Germany, the competent highest state
authority may – subject to consent by the Federal Central Authority – issue
to the lender a guarantee of return in the moment of time as determined. In
the case of art exhibits instituted by the Federal Republic or a Federal
Agency, the competent federal authority decides upon the issuing of the
guarantee.
(2) The guarantee is to be issued in writing prior to import of the cultural
good and by using the term ‘Rechtsverbindliche Rückgabezusage [Legally
Binding Return Guarantee]’. The guarantee cannot be withdrawn or
cancelled.
(3) The guarantee has the effect that no rights of third parties to the cultural
good can be raised against the lender’s claim for recovery.
(4) Until recovery by the lender judicial proceedings on recovery, interim
measures, attachments and seizures are inadmissible.
This legislation was taken as a model e.g. by Austria for its own anti-seizure
legislation.
106
The German legislation was amended on the occasion of the implementation of
Directive 2014/60/EU by the new German Act on the Protection of Cultural
Property 2016 (Kulturgüterschutzgesetz; ‘KGSG’).
107
The anti-seizure statute is
now to be found in sections 73 et seq. KGSG.
105
Article 1 of the Bill provided for the implementation legislature for the Directive. The Bill
was to amend the German Act on the Protection of German Cultural Goods against Loss.
106
Bundesgesetz über die vorübergehende sachliche Immunität von Kulturgut-Leihgaben zum
Zweck der öffentlichen Ausstellung, BGBl. I Nr. 133/2003, i.d.F. v. 2006, BGBl. I Nr. 65/2006.
107
Kulturgutschutzgesetz (KGSG) of 31 Juli 2016 (BGBl. I S. 1914), modified by Article 6 para
13 of the Law of 13 April 2017 (BGBl. I S. 872).
Cross-border restitution claims of looted works of art and cultural goods
51
b. – Exhibition “DYNAMIK! Kubismus / Futurismus / KINETISMUS” at the Belvedere,
Austria
The Belvedere at Vienna, Austria, recently displayed the exhibition „DYNAMIK!
Kubismus/ Futurismus / KINETISMUS“ including loans from all over Europe.
108
Three loans came from the Czech Republic,
109
namely the State owned National
Gallery Prague.
110
The Czech Republic, however, had been in dispute for many
years with a company in Liechtenstein. In 2008, an arbitral tribunal in Paris had
rendered an award against the Czech Republic for around 530 million Euros, and
the claimant had been seeking enforcement of the award under the 1958 New York
Convention
111
all over the world. Valuable works of art and cultural property on
loan in a foreign state thus presented an opportunity for another attempt to enforce
the award. The claimant therefore moved to seize the three objects on loan in
Vienna. The Czech Republic had not applied for protection against seizure under
the Austrian anti-seizure legislation. Thus, the question arose whether the objects
in question were protected as state property under customary public international
law.
c. – Exhibition “From Russia” (Pouchkin Museum Moscow) in London
In 2008, the Royal Academy of Art in London planned the exhibition “From
Russia” and intended to display around 120 loans from the state owned Pouchkin
Museum in Moscow, including objects expropriated during the October
Revolution 1917.
112
Thus, Russia expected claims for restitution by heirs on the
occasion of the temporary loan of these objects in the United Kingdom. In addition,
Russia was facing attempts to enforce arbitral awards into assets located outside
of Russia.
113
Therefore, Russia insisted on the introduction of an anti-seizure
108
Unteres Belverede, DYNAMIK! Kubismus / Futurismus / KINETISMUS, 10 February
2011 to 29 Mai 2011: „…eine umfangreiche Werkschau zur Abstraktion in Wien zwischen 1919
und 1929 im Kontext der europäischen Moderne. Das international noch wenig beachtete Phänomen
des Wiener Kinetismus wird zusammen mit Meisterwerken aus ganz Europa von unter anderen
František Kupka, Robert Delaunay, Fernand Léger, Carlo Carrà oder Giacomo Balla präsentiert“,
https://www.belvedere.at/bel_de/ausstellung/dynamik.
109
The paintings „Tänzerin“ by Vincenc Beneš (1912) and „Zwei Frauen“ by Emil Filla
(1913) and the bronze sculpture „Die Umarmung“ by Otto Gutfreund (1913/14).
110
On the history of the museum and its state-owned structure see Legislation no. 148/1949
Coll., see also http://www.ngprague.cz/en/history-of-the-national-gallery-in-prague.
111
UNCITRAL Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(New York, 1958). This Convention provides for harmonized rules on the recognition and
enforcement of foreign arbitral awards. It is one of the most successful conventions. Currently, 157
states are Contracting States.
112
E.g. Matthias Weller, Die rechtsverbindliche Rückgabezusage, in Uwe Blaurock et al.
(eds.), Festschrift für Achim Krämer zum 70. Geburtstag, DeGruyter-Verlag Berlin 2009, pp. 721,
722 ff.
113
See the Example above in relation to the Exhibition “DYNAMIK! Kubismus / Futurismus
/ KINETISMUS” at the Belvedere, Austria.
European Added Value Assessment
52
legislation in the UK. And indeed, such a legislation was enacted shortly
afterwards in order to make the exhibition happen.
114
d. – Exhition from the Stedelijk Museum of Amsterdam to New York (“Malevich case”)
The Malevich case involved loans of Nazi looted art (“degenerate art”) from the
Stedelijk Museum of the City of Amsterdam to New York and Houston in 2003:
115
14 paintings by the Russian modernist Kazimir Malevich were on loan to the
United States. Shortly before the end of the exhibition, the heirs instituted
proceedings in United States courts against the City of Amsterdam. In 2005, it was
decided that even if loaned art could not be seized under the Foreign Sovereign
Immunity Act (FSIA),
116
the presence of the loaned objects in the U.S. could still
provide a basis for suing for damages. The case was ultimately settled.
117
Nevertheless, the decision paved the way for immunity from seizure legislation
and seems to have brought about a chilling effect for collection mobility.
118
The
most recent US legislation, the Foreign Cultural Exchange Jurisdictional Immunity
Clarification Act 2016
119
, seeks to close the lacuna within the immunity legislation
that became apparent by the Malevich case.
120
4. – State legislation (“anti-seizure legislation”)
On the level of state legislation on immunity for works of art and cultural property
on loan in foreign states, there are two pressing issues. First, there is a deep
fragmentation within the EU. Second, the relation between national anti-seizure
statutes and the Directive 2014/60/EU
121
is unresolved.
a. – Fragmentation in the EU and beyond
The legal structure and scope of the legislative protection varies considerably from
state to state. Some EU Member States established a procedure under
114
Part 6 of the Tribunals Courts and Enforcement Act 2007, sections 134 ff.
115
Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005), denying mot. to
dismiss, No. 05-5145, 2006 U.S. App. LEXIS 615 (D.C. Cir. 2006) (dismissing the case for lack of
appellate jurisdiction), motion to dismiss on different grounds denied, 517 F. Supp. 2d 322 (D.D.C.
2007).
116
28 U.S.C. sections 1602 et seq.
117
For further details see Alessandro Chechi, Ece Velioglu, Marc-André Renold, “Case 14
Artworks – Malewicz Heirs and City of Amsterdam,” Platform ArThemis (http://unige.ch/art-adr),
Art-Law Centre, University of Geneva.
118
E.g. Laura Gilbert, New Legislation to Protect Foreign Art Lenders From Lawsuits on U.S.
Soil, http://observer.com/2012/04/new-legislation-to-protect-foreign-lenders-from-lawsuits-on-u-s-
soil/2 (18 July 2017).
119
Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, H.R. 6477 (114th
Congress), to amend chapter 97 of title 28, United States Code, to clarify the exception to foreign
sovereign immunity set forth in section 1605(a)(3) of such title, entered into force on 15 December
2016.
120
For further details on this legislation see below.
121
Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on
the return of cultural objects unlawfully removed from the territory of a Member State and amending
Regulation (EU) No 1024/2012 (Recast).
Cross-border restitution claims of looted works of art and cultural goods
53
administrative law that results in an administrative decision (“Verwaltungsakt”),
by which, once it is issued and as long as it remains in place, any proceedings or
seizure aiming at the restitution of the loan is barred (“return guarantee”).
122
Other
Member States enacted self-executing legislation.
123
The majority of Member States
do not offer any legislative protection.
124
However, outside the EU, many states enacted anti-seizure legislation, including
e.g. Australia,
125
certain provinces of Canada,
126
Israel,
127
Liechtenstein,
128
Switzerland
129
and the U.S.,
130
both at federal and state levels such as e.g. New
York.
131
The UK model appears suboptimal, because under a self-executing legislation it is
entirely up to the lender and a potential claimant in the host state to assess whether
the conditions of the statute for protection are fulfilled or not. Due to rather vague
and broad conditions in connection with the object,
132
this is not easy. This
uncertainty on the part of those to be protected by the statute, or those who want
to have access to justice and raise legitimately a claim for restitution, jeopardizes
the very purpose of anti-seizure legislation.
122
E.g. Germany, Austria, France. For France see Loi no 94-679 du 8 août 1994 portant
diverses dispositions d’ordre économique et financier.
123
E.g. United Kingdom, see Part 6 (Protection of Cultural Objects on Loan) of the Tribunals,
Courts and Enforcement Act 2007 Section 134; Belgium: Loi de 14 Juin 2004 modifiant le Code
judiciaire en vue d'instituer une immunité d'exécution à l'égard des biens culturels étrangers exposés
publiquement en Belgique.
124
(To the present knowledge of the Author): Bulgaria, Croatia, Cyprus, Czech Republic,
Denmark, Estonia, Finland, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta,
Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden.
125
Section 14 (3) Protection of Movable Cultural Heritage Act 1986, Act No. 11 of 1986 as
amended by Act No. 8 of 2005.
126
E.g. Alberta, Foreign Cultural Property Immunity Act, R.S.A. 2000, Chapter F-17;
Manitoba Statutes, The Foreign Cultural Objects Immunity From Seizure Act, R.S.M. 1987, c. F140
s. 1; Ontario: Foreign Cultural Objects Immunity from Seizure Act, S.O. 1990, Chapter F.23, s. 1;
Quebec: Code of Civil Procedure, Book IV Execution of Judgments, Title II Compulsory Execution,
Chapter I Preliminary Provisions, Division III Exemptions from Seizure, R.S.Q., chapter 25
127
Loan Of Cultural Properties (Jurisdiction Restriction) Law, 5767-2007, enacted by the
Knesset on 3 Adar 5767 (21 February 2007); see e.g. Shoshana Berman, Protection of Cultural
Objects on Loan – The Israeli Perspective, Art, Antiquity and Law XII (2007), pp. 113 et seq.
128
Gesetz über die vorübergehende sachliche Immunität von Kulturgut (Kulturgut-
Immunitäts-Gesetz; KGIG) v. 23.11.2007, LieGBl. 2008 Nr. 9 v. 15.01.2008.
129
Bundesgesetz über den internationalen Kulturgütertransfer (Kulturgütertransfergesetz, KGTG)
of 20 June 2003.
130
22 U.S.C. Section 2459. Immunity from seizure under judicial process of cultural objects
imported for temporary exhibition or display.
131
New York Arts and Cultural Affairs Law, Chapter 11-C, Article 12: Artist-Art Merchant
Relationships.
132
For example, Section 134 (2)(c) of Part 6 (Protection of Cultural Objects on Loan) of the
Tribunals, Courts and Enforcement Act 2007 requires for protection of a cultural object that ”its
import does not contravene a prohibition or restriction on the import of goods, imposed by or under
any enactment, that applies to the object, a part of it or anything it conceals”. This is not easy to
determine for a foreign lender and this lender takes the full risk in evaluating the legal situation.
European Added Value Assessment
54
In addition, some states protect only against the seizure of the cultural property,
133
whilst other states
134
protect against any kind of legal proceedings in relation to
the property in the host state. Some of the states that installed an administrative
procedure for issuing a return guarantee include a waiting period prior to issuing
the guarantee that enables potential claimants to raise objections,
135
others do
not.
136
Some states provide for exceptions when the removal the property violated
public international law which may be the case in the context of looting cultural
property in armed conflicts and wars, in particular with regard toNazi looted
art.
137
This deep fragmentation should be eliminated. There should be an EU-wide
harmonised anti-seizure legislation of a plausible scope and reliable structure. This
instrument should install an administrative procedure for issuing a return
guarantee after a certain waiting period (Swiss/German model), and the issuing
authorities should not issue guarantees if there is a denial of justice, i.e. if there is
no access to justice elsewhere for claimants, in particular no access to justice at the
home jurisdiction of the loaned cultural object.
138
b. – Unclear relation between national anti-seizure statutes and Directive 2014/60/EU
Besides, there is an unclear relation between national anti-seizure statutes and
Directive 2014/60/EU. The Directive grants a claim for restitution to a Member
State to recover an object located in another Member State where an anti-seizure
legislation is in place and blocks any kind of seizure of the object temporarily on
loan at that Member State. Then, the question arises which legislation prevails.
This question had been already discussed under the previous Directive 93/7/EEC.
Some commentators argued that the anti-seizure legislation of a Member State
must be interpreted in light of EU secondary legislation, thus it must not impair
any claim for restitution under the Directive.
139
Others argued that the Directive
133
E.g. Belgium, France, or Quebec.
134
E.g. Germany, Switzerland, US Federal law, New York, Texas Rhode Island, Manitoba,
British Columbia, Ontario.
135
Switzerland.
136
Germany, Austria.
137
Israel. The German authorities will presumably – and should – exercise their discretion to
the effect that Nazi looted art would not be protected, but the administrative decisions by the
authorities on this matter are not publisehd and no such case has been reported so far, see e.g. Das
„Freie Geleit“ für internationale Kunstleihgaben, in Martin Gebauer/Heinz-Peter Mansel/Götz
Schulze (Hrsg.), Die Person im Internationalen Privatrecht, Symposium anlässlich des 80.
Geburtstags von Erik Jayme, Tübingen 2017, forthcoming.
138
See Matthias Weller, op.cit.
139
See e.g. Angelika Fuchs, Kulturgüterschutz im Kulturgutsicherungsgesetz, Praxis des
internationalen Privat- und Verfahrensrechts (IPRax) 2000, 281, 286.
Cross-border restitution claims of looted works of art and cultural goods
55
must be interpreted in light of primary EU law, in particular in light of (now)
Article 167 TFEU.
140
According to Article 167 (2) lemma 3 TFEU, action by the Union shall be aimed at
encouraging cooperation between Member States and, if necessary, supporting
and supplementing their action, inter alia, in the area of “non-commercial cultural
exchanges”. Also the mobility of collections is an express objective of the Action
Plan of the EU Council for (inter alia) Culture 2015 to 2018.
141
Thus, collection
mobility is an express objective of EU policy. Against this background, one may
argue that protection and support of collection mobility by national anti-seizure
statutes should not be impaired by Directive 2014/60/EU.
Some Member States, supported by the European Parliament
142
, suggested
clarifying this point during the recast of Directive 93/7/EEC.
143144
However, the
issue has not been clarified and this is not satisfactory. Rather, Directive
2014/60/EU should be amended.
140
See e.g. Burkhard Hirsch, Die Bedeutung der Zusage „Freien Geleits“ für Kulturgüter,
Neue Juristische Wochenschrift (NJW) 2001, 1627; see also Julia El-Bitar, Das Verhältnis zwischen
„Freiem Geleit“ und gemeinschaftsrechtlicher Rückgabeklage, Europäische Zeitschrift für
Wirtschaftsrecht (EuZW) 2005, 173, 176.
141
Conclusions of the Council and of the Representatives of the Governments of the Member
States, meeting within the Council, on a Work Plan for Culture (2015-2018), 2014/C 463/02, O.J. C
463/4 of 23.12.2014, Annex I: Priorities for the Work Plan for Culture 2015-2018, Priority area D:
Promotion of cultural diversity, culture in the EU external relations and mobility, sub D.3.b.
142
European Parliament, Committee on Culture, Amendments 33-77, Draft Report Marie-
Christine Vergiat, The return of cultural objects unlawfully removed from the territory of a Member
State (recast), Proposal for a directive COM (2013) 0311 – C7-0147/2013 – 2013/0162 (COD), S.
20, Proposal for a directive Article 5(2)(a) new: “For the purpose of promoting the international
exchange of cultural objects and the mobility of collections between cultural institutions, the
requesting Member State cannot initiate proceedings against the possessor or the holder of a cultural
object if that object is on loan and a legally binding return guarantee granting immunity from seizure
has been issued by the competent authority of a Member State for the limited period of time of that
loan”.
143
See e.g. Bericht über die Auswirkungen des Gesetzes zur Ausführung des UNESCO-
Übereinkommens vom 14. November 1970 über Maßnahmen zum Verbot und zur Verhütung der
rechtswidrigen Einfuhr, Ausfuhr und Übereignung von Kulturgut (Ausführungsgesetz zum
Kulturgutübereinkommen) und den Schutz von Kulturgut vor Abwanderung ins Ausland (Bericht
der Bundesregierung), https://www.bundesregierung.de/Content/DE/_Anlagen/BKM/2013-04-24-
bericht-kulturgutschutz.pdf? __ blob=publicationFile&v=2.
144
European Parliament, Committee on Culture, Amendments 33-77, Draft Report Marie-
Christine Vergiat, The return of cultural objects unlawfully removed from the territory of a Member
State (recast), Proposal for a directive COM (2013) 0311 – C7-0147/2013 – 2013/0162 (COD), S.
20, Proposal for a directive Article 5(2)(a) new: “For the purpose of promoting the international
exchange of cultural objects and the mobility of collections between cultural institutions, the
requesting Member State cannot initiate proceedings against the possessor or the holder of a cultural
object if that object is on loan and a legally binding return guarantee granting immunity from seizure
has been issued by the competent authority of a Member State for the limited period of time of that
loan”.
European Added Value Assessment
56
c. – Exception for Nazi Looted Art?
It remains important to discuss whether anti-seizure legislation should include
Nazi-looted art. Certain national legislation provides for such exceptions,
145
most
do not. The Council of Europe, in its Resolution 1205 (1999) “Looted Jewish
cultural property”
146
suggests, in Article 15, “relaxing or reversing anti-seizure
statutes which currently protect from court action works of art on loan”.
In order to take up this concern, it appears advisable to introduce a careful system
for examining the provenance of loans and for informing the public before
granting immunity and, in the case that Nazi looted art is to be loaned, to refuse
any application for protection. However, if there is no sign of Nazi spoliation
within the waiting period prior to issuing the return guarantee, and once
protection was granted by the host state for the time of the loan, the protection
should be upheld.
147
5. – State Immunity under Public Customary International Law
If there is no legislation (or when the administrative procedure was not applied
for or when the conditions of the respective legislation are not met), the question
arises to what extent a state lender may enjoy protection under customary public
international law in relation to its property on the territory of the host state.
As far as the foreign state uses the loan of the cultural property in question for
public purposes, (i.e. to promote its culture abroad and support cultural exchange
with other states) an increasingly emergent state practice, common amongst EU
Member States, is to grant immunity from seizure. Then, a private claimant
seeking advantage from the fact that the contested cultural property is temporarily
located on foreign territory during the loan, will not succeed in his attempts to
recover his property. On the other hand, a private lender cannot be protected
under state immunity law.
a. – Legal Foundation
It is common ground in public international law that a foreign state is immune
against seizure of property used by the foreign state for its public purposes, such
as real estate or bank accounts for running its embassy in other states.
148
This
145
Israel. See also the newly enacted Foreign Cultural Exchange Jurisdictional Immunity
Clarification Act 2016 in relation to state loans, see on this Act in more detail below in this Chapter
3, sub II.5.a (2).
146
Parliamentary Assembly, Report of the Committee on Culture and Education, Rapporteur:
Emanuelis Zingeris; Text adopted by the Standing Committee, acting on behalf of the Assembly, on
4 November 1999.
147
This would basically be the Swiss model of national immunity legislation.
148
E.g. Nout van Woudenberg, State Immunity and Cultural Objects on Loan, Leiden 2012,
pp. 491; see also Matthias Weller, Völkerrechtliche Grenzen der Zwangsvollstreckung – vom
Botschaftskonto zur Kunstleihgabe, Der Rechtspflege (Rpfleger) 2006, pp. 52 et seq.
Cross-border restitution claims of looted works of art and cultural goods
57
premise leads to the question whether and if so, to what extent and in what
situations, cultural property is used by the foreign state for public purposes.
(1) – Treaty Law
Article 19 (c) of the 2004 UN Convention on Jurisdictional Immunities of States and
Their Property
149
provides that:
“No post-judgment measures of constraint, such as attachment, arrest or
execution, against property of a State may be taken in connection with a
proceeding before a court of another State unless and except to the extent
that (…)
(c) it has been established that the property is specifically in use or intended
for use by the State for other than government non-commercial purposes and
is in the territory of the State of the forum, provided that post-judgment
measures of constraint may only be taken against property that has a
connection with the entity against which the proceeding was directed.”
It appears to be appropriate to consider this provision as part of customary public
international law.
150
Article 21 (1) of the 2004 UN Convention lists specific categories of property that
are deemed to be used for public purposes, and literae (d) and (e) read:
“(d) property forming part of the cultural heritage of the State or part of its
archives and not placed or intended to be placed on sale;
(e) property forming part of an exhibition of objects of scientific, cultural or
historical interest and not placed or intended to be placed on sale.”
Thus, according to Article 21(1)(e) 2004 UN Convention, cultural property of a
foreign state on loan for an exhibition to another state is deemed to be used for
public purposes, unless a commercial purpose is proven. However, as has been
stated above, the Convention has not yet entered into force.
151
149
United Nations Convention on Jurisdictional Immunities of States and Their Property, New
York, 2 December 2004, not yet in force. Signatory States amongst the EU Member States are (as
of 14 July 2017) Austria, Belgium, Czechia, Denmark, Estonia, Finland, France, Portugal, Romania,
Slovakia, Sweden, United Kingdom. EU Member States that (additionally, as the case may be)
ratified the Convention are Austria, Czechia, Finland, France, Italy, Latvia, Portugal, Romania,
Slovakia, Spain, Sweden. All EFTA States (Iceland, Liechtenstein, Norway, Switzerland) signed
and/or ratified the Convention. According to its Article 30 the Convention enters into force upon its
30th state party. Currently there are 21 state parties (and 28 signatory states).
150
See e.g. the German Federal Constitutional Court in its decision of 12 October 2011 − 2
BvR 2984/09, 2 BvR 3057/09, 2 BvR 1842/10, Neue Juristische Wochenschrift (NJW) 2012, pp.
293 et seq., at p. 295, in relation to the Russian Federation concerning the use of the House of
Science and Culture (”Russia House”) for public purposes, for example its cultural representation
in the host state (Germany).
151
See above note Error! Bookmark not defined..
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(2) – Customary International Law
Therefore, the question arises whether cultural property by foreign states on loan
abroad is protected under customary international law. Necessary preconditions
are state practice and opinio iuris. The threshold is high. Nevertheless, there are a
number of signs supporting the assumption of a respective rule under customary
international law:
First of all there is Article 21(1)(e) of the 2004 UN Convention itself. However,
given the controversial preparatory works on this Convention over decades, the
picture on this question is unclear. The Committee of Legal Advisers on Public
International Law of the Council of Europe appear to continue investigating the
issue.
152
Academic analysis on a broad comparative survey worldwide by a
member of the Foreign Ministry of the Netherlands came to the conclusion that
such a rule exists (with certain limitations).
153
Secondly, in 2005, the state-owned Russian Pouchkin Museum loaned works of art
with a total value of 1 billion USD to a museum in Switzerland.
154
Upon the attempt
by a creditor of an arbitral award against Russia to seize the objects, the Swiss
government intervened and declared: Cultural property of a Foreign State must be
deemed as public property (“öffentliches Eigentum”) which, as a matter of principle,
must not be seized”.
155
The follow-on claim by the creditor for state liability against
Switzerland was finally dropped due to a lack of prospects for success.
156
Thirdly, in 2013, after the seizure of loans from Czechia to the Vienna Belverede,
157
Austria and Czechia were said to have mutually declared that both States accept
and support the rule of customary international law, that cultural property of a
152
Committee of Legal Advisers on Public International Law (CAHDI), Questionnaire on
“Immunity of State owned cultural property on loan”, 47th meeting, Strasbourg, 20-21 March 2014,
CAHDI (2014) 2.
153
Nout van Woudenberg, State Immunity and Cultural Objects on Loan, Nijhoff 2012,
passim; Nout van Woudenberg, Immunity from seizure for illegally taken cultural objects on loan?,
in Matthias Weller et al. (eds.), Diebstahl – Raub – Beute: Von der antiken Statue zur digitalen
Kopie, VI. Heidelberger Kunstrechtstag am 28. und 29. September 2012, Schriften zum Kunst- und
Kulturrecht, Nomos-Verlag Baden-Baden 2013, pp. 141 ff.
154
See e.g. Kerstin Odendahl, Immunität ausländischer staatlicher entliehener Kulturgüter –
Eine Analyse der Affaire um die Beschlagnahmung der Gemälde aus dem Puschkin-Museum im
November 2005, Aktuelle Juristische Praxis (AJP)/Pratique Juridique Actuelle (PJA) 2006, pp. 1175
et seq., at p. 1182; see also Matthias Weller, Freies Geleit für die Kunst – Die Schweiz setzt einen
Maßstab für Leihgaben im Völkerrecht, Frankfurter Allgemeine Zeitung (FAZ) of 25 November
2005, No. 275, p. 35.
155
Eidgenössisches Departement für Auswärtige Angelegenheiten, Information vom 16.
November 2005, http://www.admin.ch/cp/d/43[email protected].
156
Kerstin Odendahl, Immunität ausländischer staatlicher entliehener Kulturgüter – Eine
Analyse der Affaire um die Beschlagnahmung der Gemälde aus dem Puschkin-Museum im
November 2005, Aktuelle Juristische Praxis (AJP)/Pratique Juridique Actuelle (PJA) 2006, pp.
1175, at p. 1182.
157
See above in this Chapter III, sub II.3.Error! Reference source not found..
Cross-border restitution claims of looted works of art and cultural goods
59
foreign state on loan to an exhibition in another state is immune from seizure.
158
Furthermore, it was said that both states took motion on the level of the Council of
Europe to achieve a common declaration to this effect by all Contracting States,
but no result of this initiative seems to be achieved or publicly recorded.
Fourthly, on the level of domestic legislation, the USA recently enacted the Foreign
Cultural Exchange Jurisdictional Immunity Clarification Act 2016,
159
which:
“amends the federal judicial code with respect to denial of a foreign state's
sovereign immunity from the jurisdiction of U.S. or state courts in
commercial activity cases where rights in property taken in violation of
international law are in issue and that property, or any property exchanged
for it, is: (1) present in the United States in connection with a commercial
activity carried on by the foreign state in the United States, or (2) owned by
an agency or instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in the United States”.
160
Futher, the Act:
“grants a foreign state or certain carriers immunity from federal or state
court jurisdiction for any activity in the United States associated with a
temporary exhibition or display of a work of art or other object of cultural
significance if the work of art or other object of cultural significance is
imported into the United States from any foreign country pursuant to an
agreement for its temporary exhibition or display between a foreign state
that is its owner or custodian and the United States or U.S. cultural or
educational institutions; and the President has determined that such work is
culturally significant and its temporary exhibition or display is in the
national interest.”
And, the Act:
“denies immunity, however, in cases concerning rights in property taken in
violation of international law in which the action is based upon a claim that
the work was taken: (1) between January 30, 1933, and May 8, 1945, by the
government of Germany or any government in Europe occupied, assisted,
158
There is no public evidence on this issue. Abstractly on the issue of bilateral agreements
and informal diplomatic promises of immunity in the context of cultural objects on loan see Norman
Palmer, Adrift on a Sea of Troubles: Cross-Border Art Loans and the Specter of Ulterior Titel, 38
Vand.J. Trans’l. L. 947 (2005), at p. 965. No state practice seems to be recorded.
159
Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, H.R. 6477 (114th),
to amend chapter 97 of title 28, United States Code, to clarify the exception to foreign sovereign
immunity set forth in section 1605(a)(3) of such title, entered into force on 15 December 2016. See
also the Bill to amend chapter 97 of title 28, United States Code, to clarify the exception to foreign
sovereign immunity set forth in section 1605(a)(3) of such title (“Foreign Cultural Exchange
Jurisdictional Immunity Clarification Act”), H.R. 4292, 113th Congress, 2nd Session, 25 March
2014.
160
https://www.govtrack.us/congress/bills/114/hr6477/summary (14 July 2017).
European Added Value Assessment
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or allied by the German government; or (2) after 1900 in connection with the
acts of a foreign government as part of a systematic campaign of coercive
confiscation or misappropriation of works from members of a targeted and
vulnerable group. For purposes of these denials of immunity, the court must
determine that the activity associated with the exhibition or display is
commercial and that determination must be necessary for the court to
exercise jurisdiction over the foreign state.” According to section 3 “the
Department of State must ensure that foreign states that apply for such
temporary exhibition immunity are notified of the amendments made by this
bill”.
161
Thus, the US legislator extended the scope of protection to jurisdiction but limited
the protection to state lenders only. Exceptions are particularly prevalent for Nazi
looted art on loan. Nevertheless, the legislation may be taken as another expression
of state practice.
Fifth, courts of several states relied on the assumed rule of customary international
law, that cultural property of a foreign state on loan to an exhibition is immune
from seizure.
162
This includes the Austrian courts in the case of the exhibition of
Czech loans displayed at the Belvedere at Vienna.
163
On these grounds, it becomes more and more plausible to indeed assume the
existence of a rule of customary international law - that cultural property of foreign
states on loan for exhibition are immune from seizure in the host state.
164
And the
161
Op.cit.
162
E.g. Upper Regional Court (Kammergericht) Berlin, decision of 4 February 2010, docket
no. 13 O 48/10 in respect to loans from Syria to the exhibition ”Treasures from Ancient Syria – The
Discovery of the Kingdom of Qatna” in 2010 at the State Museum of Baden-Württemberg, Germany
when victims of terrorist attacks attibuted to the then Syrian governemnt on the French ”Maison de
France” at Berlin in 1983 attempted to enforce damages claims against the state of Syria. The court
expressly held that the loans served the public purpose of presentation and dissemination of the
Syrian culture by the Syrian state and thus public purposes and therefore immune from seizure by
the host state. The court did not even refer the question of the existence of such a rule under
customary international law to the German Federal Constitutional Court which would have been
necessary in case of doubt (”Normenverifikationsverfahren”, Art. 100 (2) German Basic Law); see
e.g. Matthias Weller, Vollstreckungsimmunität für Kunstleihgaben ausländischer Staaten, Praxis des
internationalen Privat- und Verfahrensrechts (IPRax) 2011, p. 574.
163
County Court of the Inner City of Vienna (Bezirksgericht Innere Stadt Wien), decision of
16 May 2011; State Court for Civil Matters Vienna (Landesgericht für Zivilrechtssachen Wien,
decision of 29 October 2012, docket no. GZ 46 R 395/11w, 46 R 396/11t-50, see on these
proceedings e.g. Matthias Weller, Vollstreckungszugriff im Wiener Belvedere:
Völkergewohnheitsrechtliche Immunität für ausländische staatliche Kunstleihgaben, in Reinhold
Geimer et al. (eds.), Europäische und internationale Dimension des Rechts – Festschrift für Daphne-
Ariane Simotta, Vienna 2012, p. 691 ff. The Austrian Supreme Court (Oberster Gerichtshof, OGH),
unfortunately left the matter open for procedural reasons, OGH, decision of 16 April 2013 – 3 Ob
39/13a; OGH, decision of 11 July 2012 – 3 Ob 18/12m.
164
In this sense e.g. Andrea Gattini, Immunity from Measures of Constraint for State Cultural
Property on Loan, in Isabelle Buffard et al. (eds.), International Law between Universalism and
Fragmentation, Festschrift in Honour of Gerhard Hafner, Leiden/Boston 2008, pp. 421 et seq., at
Cross-border restitution claims of looted works of art and cultural goods
61
new element of such a rule would merely be to recognize that presentation and
representation of a state’s culture in another state constitutes public purposes in
the sense of general immunity law. Even this insight would not be that new:
According to Art. 3(1)(e) of the Vienna Convention on Diplomatic Relations of 18
April 1961, the functions of a diplomatic mission consist, inter alia, in developing
their “cultural relations”.
165
The only new element within this context would thus
be to recognize that cultural representation and presentation is – naturally –
effectuated, inter alia, by loans of cultural objects.
b. – Conclusion: Rule of customary international law exists, but uncertainties remain
Even though many aspects point to the existence of a rule under customary
international law, that cultural property of a foreign state on loan in another state
for the public purpose of cultural exchange is immune from seizure, uncertainty
remains as toits existence. In particular, uncertainty remains regarding the precise
scope of this rule and the extent to which other states will share the practice and
the opinio iuris related to this practice expressed so far by states.
166
6. – Recommendations
Against this background, the following recommendations appear to be
cumulatively advisable:
a. – Joint Declaration on immunity from seizure for cultural property of foreign states
on loan for the purpose of cultural exchange in other states
First, the EU should motivate Member States to declare the acknowledgement of
such a rule and its precise preconditions. The EU should itself participate in its
437; Kerstin Odendahl, Immunität ausländischer staatlicher entliehener Kulturgüter – Eine Analyse
der Affaire um die Beschlagnahmung der Gemälde aus dem Puschkin-Museum im November 2005,
Aktuelle Juristische Praxis (AJP)/Pratique Juridique Actuelle (PJA) 2006, pp. 1175, at p. 1182;
Sabine Boos, Kulturgut als Gegenstand des grenzüberschreitenden Leihverkehrs, Berlin 2006, S.
240; Matthias Weller, Rpfleger 2006, 364, 370; ders., Vand.J.Transn’l. L. 38 (2005), 997, 1023;
Erik Jayme/Matthias Weller, IPRax 2005, 391, 392 f.; Jérôme Candrian, L’immunité des Etats face
aux Droits de l’Homme e à la protection des biens culturels, Zürich 2006, p. 739; but compare Isabel
Kühl, Der internationale Leihverkehr der Museen, Cologne 2004, S. 28. See also Art. 4(2)(d) of the
Resolution of the Institute of International Law on Contemporary Problems Concerning the
Immunity of States in Relation to Questions of Jurisdiction and Enforcement, Session of Basel 1991:
„The following categories of property of a State in particular are immune from measures of
constraint: property identified as part of the cultural heritage of the State, or of its archives, and not
placed or intended to be placed on sale“.
165
See also, acknowleding this result in relation to the ”Russian House” in Berlin, German
Federal Court of Justice (Bundesgerichtshof, BGH), judgment of 1 October 2009, docket no. VII
ZB 37/08, Recht der internationalen Wirtschaft (RIW) 2010, p. 72; on this decision see e.g. Matthias
Weller, Vollstreckungsimmunität: Beweislast, Beweismaß, Beweismittel, Gegenbeweis und
Beweiswürdigung Recht der internationalen Wirtschaft (RIW) 2010, at p. 599.
166
For details see Nout van Woudenberg, State Immunity and Cultural Objects on Loan,
Nijhoff 2012, passim; Nout van Woudenberg, Immunity from seizure for illegally taken cultural
objects on loan?, in Matthias Weller et al. (eds.), Diebstahl – Raub – Beute: Von der antiken Statue
zur digitalen Kopie, VI. Heidelberger Kunstrechtstag am 28. und 29. September 2012, Schriften
zum Kunst- und Kulturrecht, Nomos-Verlag Baden-Baden 2013, pp. 141 ff.
European Added Value Assessment
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function of a subject of international law in such a declaration. This would
consolidate the state practice and the opinio iuris in relation to this practice beyond
doubt. Of course, the protection granted under international immunity law only
covers the loans of states (and none of the many non-state lenders of cultural
property) and only seizures (and not also jurisdictional immunity).
b. – Harmonization of state legislation on legislative immunity
Therefore, action must also be taken on the level of state legislation to harmonize
the legislative immunity granted by statute to all lenders of cultural property: It
might appear advisable to consider a harmonization of anti-seizure statutes within
the EU. Such an instrument could either be based on Article 114 TFEU or on Article
81(2) TFEU,
167
either on (c), relating to the compatibility of the rules applicable in
the Member States concerning conflict of laws and of jurisdiction, and/or (e),
relating to effective access to justice, and/or (f), relating to the elimination of
obstacles to the proper functioning of civil proceedings, if necessary by promoting
the compatibility of the rules on civil procedure applicable in the Member States.
c. – Clarifying the relation between anti-seizure legislation of the Member States and
Directive 2014/60/EU
Finally, the relation between national anti-seizure legislation of the Member States
and Directive 2014/60/EU should be clarified, to the effect that the protection of
temporary loans of cultural property by national anti-seizure legislation of the
Member States prevails. This is in order to support and encourage cultural
exchange, collection mobility and public access to important cultural objects.
167
The two grounds could not be used jointly because this is only possible if both grounds of
jurisdiction are compatible procedurally, ECJ, Case C-300/89, Commission v Council (Titanium
Dioxide), EU:C:1991:244, paras. 19 et seq. Whereas both Articles provide for the adoption of
measures following the ordinary legislative procedure, pursuant to Protocol 22, Denmark is not
bound by the provisions of Title V of Part Three of the TFEU, in which Article 81 TFEU is included.
This means that Denmark does not participate in the adoption of measures related to judicial
cooperation in civil matters. In the case of the UK and Ireland, even though they do not participate
in the adoption by the Council of measures proposed pursuant to Title V of Part Three of the TFEU,
they have the possibility, pursuant to Article 3 of Protocol 21, to opt-in for such proposed measures.
In this situation, the adoption of a measure based on Article 114 TFEU and Article 81(2) TFEU
seems impossible in practice: the non-participation of a Member State - or several Member States -
leads to different definitions of the necessary qualified majority in the Council and even if
independent votes were envisaged for the different parts of the instruments, it seems difficult to
imagine how Denmark and the UK or Ireland - should the two later not have exercised an opt-in -
would take part in the vote at the moment of the adoption by the Council of its position on the text
as a whole
Cross-border restitution claims of looted works of art and cultural goods
63
III. - Choice of law
Another pervasive issue in relation to restitution claims for contested cultural
property is the choice of law. Presumably, the majority of cultural objects looted in
armed conflicts and wars (or otherwise stolen or misappropriated), travelled
across one or several borders before the original owner is able to trace the object
and institute restitution proceedings. Typically, the object will have been passed
on to further owners/possessors in acquisitions during this time. In this scenario,
choice of law rules select the applicable substantive law on the requirements and
modes of acquisition, and a valid acquisition extinguishes the claim for restitution
of the original owner under civil law.
168
1. – Different concepts in the legal regimes on property law
The design of the choice of law rule is important because the legal regimes on the
acquisition of movable property, including looted or otherwise stolen cultural
property, differ substantially from each other amongst the Member States as well
as amongst third states.
169
In particular, the conflict between the original owner
and the needs of a reliable transaction market are decided differently. Some
jurisdictions allow good faith acquisitions in principle, but are of course subject to
a number of varying conditions. Some exclude it in case of stolen property, but
allow exceptions; other jurisdictions strongly favour the owner and do not allow
168
E.g. Beat Schönenberger, Restitution von Kulturgut, Bern 2009, pp. 104 et seq.
(”Restitutionshindernisse”).
169
See the comprehensive comparative study in Brigitta Lurger/Wolfgang Faber, Study Group
on a European Civil Code, Principles of European Law, Acquisition and Loss of Ownership of
Goods (PEL Acq. Own.), Munich 2011, pp. 902 et seq. See also e.g. Paul Lagarde, La restitution
internationale des biens culturels en dehors de la Convention de l’ UNESCO de 1970 et de la
Convention d’ UNIDROIT de 1995, Rev. dr. unif. 2006, pp. 87, presenting cases outside the scope
of both the UNESCO and UNDROIT Convention, thereby illustrating the differences in the legal
systems; see also Mara Wantuch-Thole, Cultural Property in Cross-border Litigation – Turning
rights into claims, Berlin 2015, pp. 228 et seq.
KEY FINDINGS
There are considerable differences in the legal systems of the Member States
not only on the substantive law but also on how to design the choice of law
rule for the acquisition of looted or otherwise stolen cultural property.
The EU could consider enacting a harmonized choice of law rule.
A possible model could be the Belgian choice of law rule in Article 90 of the
Belgian Code of Private International Law.
The EU could clarify, e.g. in a Recital to the harmonized choice of law rule,
that there is no obstacle in principle to the application by EU courts of foreign
cultural property law of non-EU states (“source states”).
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any type of bona fide acquisition, but seek to temper the drawbacks for the
innocent buyer (by setting time limits for raising claims). Further, the moment
from which these time limits start running differ substantially. Theoretically, such
time limits could begin from the moment of theft, from the moment of acquiring
possession by the buyer, from the moment of knowledge about the location of the
object and its current possessor, or from the moment in which the claims for
restitution were raised and the possessor refused to return the contested object.
Further, the time limits vary considerably in their length (of course depending on
the choice of moment in which the time limit starts running, but also on other
policy considerations).
For example, Article 1153 of the Italian Codice civile allows immediate good faith
acquisition, even of stolen property.
170
Other jurisdictions allow good faith
acquisition in principle, but exclude good faith acquisition of stolen property,
171
whereas in common law oriented jurisdictions (e.g. England, Wales, Ireland,
Cyprus, Malta) the true owner prevails in principle, subject to varying
exceptions.
172
Some jurisdictions protect the original owner only within a certain
period of time.
173
In cross-border situations, these differences have been exploited
170
Article 1153 Italian Codice civile: ”Effetti dell'acquisto del possesso: Colui al quale sono
alienati beni mobili da parte di chi non ne è proprietario, ne acquista la proprietà mediante il
possesso, purché sia in buona fede al momento della consegna e sussista un titolo idoneo al
trasferimento della proprietà. La proprietà si acquista libera da diritti altrui sulla cosa, se questi non
risultano dal titolo e vi è la buona fede dell'acquirente. Nello stesso modo si acquistano i diritti di
usufrutto, di uso e di pegno.”
171
E.g. section 935 (1) German Civil Code: “The acquisition of ownership under sections 932
to 934 does not occur if the thing was stolen from the owner, is missing or has been lost in any other
way. The same applies, where the owner was only the indirect possessor, if the possessor had lost
the thing.” But see also the exceptions in section 935 (2) German Civil Code: “These provisions [on
good faith acquisition] do not apply to (...) things that are alienated by way of public auction or in
an auction pursuant to section 979 (1a).”
172
See e.g. James A R Nafziger,Robert Kirkwood Paterson, Handbook on the Law of Cultural
Heritage and International Trade, p. 593.
173
See e.g. Articles 714(2) and 934 of the Swiss Civil Code. Article 714(2) reads: “Zur
Übertragung des Fahrniseigentums bedarf es des Überganges des Besitzes auf den Erwerber. Wer
in gutem Glauben eine bewegliche Sache zu Eigentum übertragen erhält, wird, auch wenn der
Veräusserer zur Eigentumsübertragung nicht befugt ist, deren Eigentümer, sobald er nach den
Besitzesregeln im Besitze der Sache geschützt ist”. Article 934 (1) reads: „Der Besitzer, dem eine
bewegliche Sache gestohlen wird oder verloren geht oder sonst wider seinen Willen abhanden
kommt, kann sie während fünf Jahren jedem Empfänger abfordern.
Cross-border restitution claims of looted works of art and cultural goods
65
for “art laundering”.
174
Some jurisdictions provide for special and more restrictive
rules for cultural property,
175
others do not.
176
Additionally, the legal systems vary on the issue of whether or to what extent
acquisitive prescription is available; i.e. acquisition of title by possession of the
object for a shorter or longer time, combined with the possessor’s good faith in the
moment of the acquisition of possession and, as the case may be, during the time
of possession.
For example, in Germany a time limit of 10 years applies,
177
whereas in Austria a
time limit of 3 years applies in general,
178
but a time limit of 6 years applies in
relation to goods held by the state and churches (which will be the case for many
cultural objects).
179
Additionally, the question arises; if the possessor has to return the acquired object
to the original owner, if he is entitled to receive compensation by the original
owner, and if so, on what conditions.
2. – Choice of law issues
On the level of choice of law these national divergences lead to the question how
a choice of law rule should be designed. Secondly, the question arises of what effect
should be given to foreign public law. For example, legislation that effectuates a
forfeiture of the cultural property or prescribes that the state acquires ownership
in case the cultural property is illegally excavated and/or exported from the
regulating state. This issue touches upon a general issue of private international
law, i.e. the question whether and to what extent foreign public law can be applied
and/or taken into account by domestic courts.
a. – Design elements of a choice of law rule for the acquisition of cultural property
Not only the substantive law solutions differ widely from state to state, but also
the connecting factor for determining the applicable law on ownership do so.
Generally, the territorial location of the object constitutes the connecting factor (lex
rei sitae), but the moments of time to be considered relevant are different.
174
Winkworth v. Christies Manson & Woods Ltd [1980] Ch. 496: Cultural property was stolen
in England, transferred to Italy, where it was validly sold under Article 1153 to a good faith acquirer,
and then retransferred to England for auction. The claim for restitution of the original owner against
the acution house was rejected because of the valid transfer of title in Italy.
175
E.g. the Greece, The Netherlands, Switzerland, see the detailed analysis by Brigitta
Lurger/Wolfgang Faber, Study Group on a European Civil Code, Principles of European Law,
Acquisition and Loss of Ownership of Goods (PEL Acq. Own.), Munich 2011, paras 148 et seq.,
pp. 938 et seq.
176
E.g Austria, Belgium, France, Poland, Scotland, Sweden, op.cit.
177
See section 937(1) German Civil Code: ”A person who has a movable thing in his
proprietary possession for ten years acquires the ownership (acquisition by prescription).
178
See section 1466 Austrian General Civil Code (ABGB): ”Das Eigentumsrecht, dessen
Gegenstand eine bewegliche Sache ist, wird durch einen dreijährigen rechtlichen Besitz ersessen.”
179
Section 1472 ABGB.
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Sometimes, the time when the proceedings are instituted is considered relevant
(even for acquisitions in the past), more often the respective moments in time when
the object was acquired and, as the case may be, again passed on is held to be
relevant (lex rei sitae in the strict sense). Sometimes the moment of dispossession is
seen as decisive, even for acquisitions later in time and at other places (lex furti),
sometimes the place of cultural origin (lex originis).
180
In most cases, these
differences are not expressly laid down in the text of the codifications, but are the
result of statutory interpretation.
181
b. – Recommendation: Harmonized choice of law rule along the lines of Article 90 of the
Belgian Code of Private International Law
Against this background it is possible to consider introducing a harmonized choice
of law rule, for example along the lines of the Belgian legislation.
182
Art. 90 of the Belgian Code of Private International Law of 27 July 2004 reads:
“Lorsqu'un bien qu'un Etat inclut dans son patrimoine culturel a quitté le
territoire de cet Etat de manière illicite au regard du droit de cet Etat au
moment de son exportation, sa revendication par cet Etat est régie par le
droit dudit Etat en vigueur à ce moment ou, au choix de celui-ci, par le droit
de l'Etat sur le territoire duquel le bien est situé au moment de sa
revendication. Toutefois, si le droit de l'Etat qui inclut le bien dans son
patrimoine culturel ignore toute protection du possesseur de bonne foi,
celui-ci peut invoquer la protection que lui assure le droit de l'Etat sur le
territoire duquel le bien est situé au moment de sa revendication.”
Thus, the Belgian choice of law rule is close to a lex furti, i.e. a choice of law rule
using the place of the wrong as connecting factor. For instance, it selects the law of
the state from which the object is removed if the object is considered part of the
cultural heritage of that state, under the cultural property law of that state, and if
the removal from the territory of that state is considered illegal from the
perspective of that state. Additionally, the claimant is given the option to choose
the law of the place where the object in question is currently located (lex rei sitae).
If the law of origin does not offer any protection for a good faith possessor, such a
possessor may invoke the protection according to the lex rei sitae.
Other proposals rely more strongly on the cultural origin (rather than the place of
wrong under the respective laws on cultural property protection). For example,
Art. 2 of the Resolution of the Institute of International Law of Basel of 3 September
180
Paul Lagarde, La restitution internationale des biens culturels en dehors de la Convention
de l’ UNESCO de 1970 et de la Convention d’ UNIDROIT de 1995, Rev. dr. unif. 2006, pp. 87 et
seq.
181
Op.cit.
182
See also Study on preventing and fighting illicit trafficking in cultural goods in the
European Union by the CECOJI-CNRS – UMR 6224, Contract No. Home/2009/ISEC/PR/019-A2,
Final Report – October 2011, Recommendation 19.
Cross-border restitution claims of looted works of art and cultural goods
67
1991 “The International Sale of Works of Art from the Angle of the Protection of
the Cultural Heritage” reads:
“The transfer of ownership of works of art belonging to the cultural heritage
of the country of origin shall be governed by the law of that country.”
Article 4.1. restricts this rule by the following conditions:
“If under the law of the country of origin there has been no change in title
to the property, the country of origin may claim, within a reasonable time,
that the property be returned to its territory, provided that it proves that the
absence of such property would significantly affect its cultural heritage.”
The difficulty of this rule is to define the “country of origin”. A variety of criteria
has been suggested,
183
but the connecting factor remains somewhat vague and
difficult to apply, even though on an abstract level the lex originis meets with
approval amongst many other scholars worldwide.
184
In particular, this is because
the lex originis prevents one from making easy use of jurisdictions with favorable
rules for purchasers simply by placing the movable property there at the moment
of transaction. In addition, the lex originis supports countries in enforcing their
policies on the protection of cultural property.
185
However, all of these virtues
apply to the lex furti, whilst the lex furti is able to offer a rather predictable
connecting factor. Therefore, the Belgian model is preferable.
c. – Application of foreign public law
Another recurrent issue relates to the application of foreign public law by domestic
courts: In its recent action to recover certain antiquities of its national heritage from
the current possessor (the Barakat Galleries Ltd in London), the Government of the
Islamic Republic of Iran found itself confronted with the contention that any claim
dependent on the legal effects of Iran’s legislation to protect its national heritage
183
See in particular Erik Jayme, Neue Anknüpfungsmaximen für den Kulturgüterschutz im
internationalen Privatrecht, in Rudolf Dolzer et al. (eds.), Rechtsfragen des internationalen
Kulturgüterschutzes, Heidelberg 1994, pp. 35 et seq., at p. 52; Erik Jayme, Internationales
Kulturgüterscchutz: Lex originis oder lex rei sitae – Tagung in Heidelberg, Praxis des
internationalen Privat- und Verfahrensrecht (IPRax) 1990, p. 347.
184
See e.g. recently Ho-Young Song, International Legal Instruments and New Judicial
Principles for Restitution of Illegally Exported Cultural Properties, 4 Penn St. J. L. & Int'l Aff.
(2016), pp. 718 et seq.; Mara Wantuch-Thole, Cultural Property in Cross-border Litigation –
Turning rights into claims, Berlin 2015, pp. 245 et seq., suggesting a rebuttable presumption for the
lex originis as long as the country of origin sufficiently protects the bona fide purchaser; see also,
with a proposal of its own, designed for common law countries, in particular the USA, Symeon C.
Symeonides, A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property, 38 Vand. J.
Transn’l Law 1177 (2005). For a very early reference see Georges A. L. Droz, The International
Protection of Cultural Property from the Standpoint of Private International Law, in International
Legal Protection of Cultural Property, Proceedings of the 13th Colloquy on European Law Delphi,
20 to 22 September 1983.
185
See in particular Derek Fincham, How Adopting the Lex Originis Rule Can Impede the
Flow of Illicit Cultural Property, 32 Columbia Journal of Law & Arts 111, at p. 115 (2008).
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must fail, for the sole reason that domestic courts would not enforce foreign public
law.
186
Whilst Iran reserved its right to argue to the contrary at a later stage of the
proceedings, the court focused on other issues first, and held that Iran had not
discharged the burden of establishing its acquisition of title to the antiquities under
the Iranian legislation. Nor could Iran successfully show the proprietary nature of
its right of possession of the antiquities under the Iranian legislation – a necessary
precondition to a successful claim for the recovery of the antiquities for conversion
of or wrongful interference with them. Therefore, there was no need to address the
issue of whether a domestic court should enforce, apply or at least take notice of
foreign public law such as the Iranian legislation on the protection of its national
heritage. However, the court amended its judgment “in case the proceedings go
further”
187
and expressed its conclusions on the preliminary issue of the non-
justiciability of Iran’s claims: “Public laws, like penal laws, may not be enforced
directly or indirectly in the English Court”.
188
This contention is not in line with choice of law methodology as it is understood
by the majority of states and scholars:
189
In its session of Wiesbaden in 1975, the
Institut de Droit International in The Hague, an association of world-leading
private and public international law scholars, adopted a resolution on the issue of
the application of foreign public law by domestic courts. This “Resolution on the
Application of Foreign Public Law” articulates its primary principle as follows:
“The public law character attributed to a provision of foreign law which is
designated by the rule of conflict of laws shall not prevent the application of
that provision, subject however to the fundamental reservation of public
policy. The same shall apply whenever a provision of foreign law constitutes
the condition for applying some other rule of law or whenever it appears
necessary to take the former provision into consideration”.
186
Government of the Islamic Republic of Iran v. Barakat Galleries Ltd [2007] E.W.H.C. 705
(Q.B.), para. 11: “Barakat submits that by this action Iran is seeking, directly or indirectly, to enforce
in the domestic courts of this country an exercise of the sovereign power or authority of a foreign
state”. Therefore, Barakat contended that the claim must fail on grounds of non-justiciability. But
compare (after lengthy argumentation) the appeal decision Islamic Republic of Iran v. The Barakat
Galleries Ltd., [2008] 1 All E.R. 1177, para. 151. The Iranian laws at issue in this case were the
Legal Bill regarding clandestine diggings and illegal excavations intended to obtain antiquities and
historical relics which are according to international regulations made or produced 100 or more years
ago (‘1979 Legal Bill’); the National Heritage Protection Act 1930; Executive Regulations of the
National Heritage Protection, dated 3 November 1930.
187
Id., at para. 77.
188
Id., at para. 81.
189
Matthias Weller, Ausländisches öffentliches Recht vor englischen Gerichten: Government
of the Islamic Republic of Iran v. The Barakat Galleries Ltd., [2008] 1 All E.R. 1177, Praxis des
internationalen Privat- und Verfahrensrechts (IPRax) 2009, pp. 90 et seq.
Cross-border restitution claims of looted works of art and cultural goods
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3. – Recommendation
Against this background, it would be important to clarify and confirm that this
approach is correct for all courts of the Member States. This is because this
approach guarantees that foreign “source states” will be able to base a claim for
restitution on civil law before the courts of a Member States, thereby relying on the
source state’s own legislation on the protection of cultural property that prescribes
that the state becomes the owner of such property in case of e.g. illegal excavation
and/or export. Only this approach provides for the necessary “tool” in the conflict
of laws to effectuate what is suggested as 2014 Model Provisions on State
Ownership of Undiscovered Cultural Objects by UNESCO and UNIDROIT.
190
In
line with general choice of law methodology, any application of foreign law,
including foreign public cultural property law, must evidently be subject to a
public policy control.
190
http://www.unesco.org/new/en/culture/themes/restitution-of-cultural-property/standards-
for-ownership (20 July 2017). On this Model Law see below in more detail.
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IV. – Substantive Law
1. – Fundamental differences in the substantive laws of the Member
States
The large, and partly fundamental, differences in the substantive laws of the
Member States on good faith acquisition and/or prescriptive acquisition have
KEY FINDINGS
There are large and fundamental differences in the substantive laws of the
Member States on good faith acquisition and prescriptive acquisition in
respect to cultural property. Therefore, the law on these issues should be
harmonized.
Although it appears impossible for the EU to become a Contracting Party to
the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects (because the Conventions provides for the accession of States only and
because the EU might not be competent under Article 216 TFEU), the EU at
least should seek, under Article 167 TFEU, to encourage those Member States
that have not yet done so to accede to the Convention.
Alternatively, the EU (given the respective competency) could seek to
incorporate Chapter II of the 1995 UNIDROIT Convention as a new part of
Directive 2014/60/EU.
Alternatively, the EU (given the competency) could harmonize the rules on
good faith acquisition and acquisition by a longer period of possession on the
basis of the respective provisions in the DCFR, Articles VIII.–3:101 DCFR and
VIII.-4:102 DCFR, i.e. along the lines of international standards which many
Member States have already endorsed by ratifying and acceding to the
UNIDROIT Convention. Again, such measure could be inserted in (a recast
of) Directive 2014/60/EU.
Alternatively, and most effectively for a private enforcement of cultural
property protection and along the lines of recent legislation in some Member
States (e.g. Germany), the EU (given the respective competency) could
introduce a general prohibition of sale and acquisition for stolen and illegally
exported/imported cultural property. Again, such measure could be inserted
in (a recast of) Directive 2014/60/EU. However, the precise concept of such a
prohibition and its effects on legal trade with cultural property would need to
be analysed carefully, in order to avoid unwanted chilling effects on the art
market.
Cross-border restitution claims of looted works of art and cultural goods
71
been observed and analysed many times.
191
Even though a harmonized choice of
law rule (see above in this Chapter 3, sub III.,) would reduce the potential for “law
shopping” by transferring the cultural object to the jurisdiction most favorable to
purchasers, uncertainties and risks will remain.
2. – Recommendation and Policy Options
Thus, the substantive law on the acquisition of cultural property should be
harmonized with a view to the general objective of providing for a more effective
private enforcement of cultural property law (see Chapter 1 above). There are
several options on how best to proceed:
a. – Policy Option 1: Encouraging the remaining EU Member States to accede to the 1995
UNIDROIT Convention
The UNIDROIT Convention of 1995 was the attempt to supplement the UNESCO
Convention of 1971 with a special view to private law.
192
This attempt was by no
means unsuccessful in terms of the number of state parties.
193
On the other hand,
there could be more Contracting States, particularly amongst the Member States
of the European Union.
194
Whereas Chapter III of the UNIDROIT Convention deals with the return of
cultural property illegally exported from a Contracting State from another
Contracting State (and thereby strongly resembling Directive 2014/60/EU which
in turn was inspired by the Convention), Chapter II deals with the return of stolen
191
See in particular the seminal study by Gerte Reichelt, The international protection of
cultural property – second study, Unif. L. Review 1988, pp. 52 et seq. See also UNIDROIT
Secretariat (Marina Schneider), UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects: Explanatory Report Unif. L. Rev. 2001, pp. 476 et seq. Nothing fundamentally seems to
have changed since, see e.g. recently Gerte Reichelt, 20 Jahre UNIDROIT Konvention – Status quo
und Ausblick, in Matthias Weller et al. (Hrsg.), Kultur im Recht – Recht als Kultur, Tagungsband
des Neunten Heidelberger Kunstrechtstags am 30. und 31. Oktober 2015, Baden-Baden 2016, pp.
39 et seq.
192
See Article 7(b)(ii) of the UNESCO 1970 Convention, by which the States Parties
”undertake, at the request of the State Party of origin, to take appropriate steps to recover and return
any such cultural property imported after the entry into force of this Convention in both States
concerned, provided, however, that the requesting State shall pay just compensation to an innocent
purchaser or to a person who has valid title to that property”. More indirectly and subject to domestic
legislation, Article 13 of the Convention provides for provisions on restitution and cooperation,
http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-
convention (5 July 2017). The 1995 UNIDROIT Convention undertakes to clarify and specify the
obligations arising from this undertaking, see e.g. Irini Stamatoudi, Cultural Property Law and
Restitution, A Commentary to International Conventions and European Union Law (2011), p. 66 et
seq.
193
As of 20 July 2017 there were 40 Contracting States, http://www.unidroit.org/status-cp (5
July 2017), most recently Tunisia acceded to the Convention (as of 1 September 2017). Latvia
seems to be in the process of acceding, see http://www.artlaw.online/en/read-it/running-
commentary/latvia-to-enter-unesco-70-and-unidroit-95-conventions-3 (20 July 2017).
194
The 14 Contracting EU States are: Croatia, Cyprus, Denmark, Finland, France, Greece,
Hungary, Italy, Lithuania, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden. France and
the Netherlands are only Signatory States. The only Contracting EFTA State is Norway.
European Added Value Assessment
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cultural property. According to Article 3(1) of the Convention, the possessor of a
cultural object which has been stolen shall return it. Thus, there is no good faith
acquisition under the Convention’s regime. The notion of “stolen” property
includes unlawful excavation and/or unlawful retention when consistent with the
law of the State where the excavation took place, Article 3(2) of the Convention.
Article 3(2) thus helps to enforce the legislation on the protection of cultural
property by source states (“private enforcement”). A claim must be brought within
a period of three years from the discovery of the cultural object and the identity of
its possessor, in any case within a period of fifty years from the time of the theft,
Article 3(3). Articles 3(4) to (8) provide for special rules in relation to time limits.
The current possessor is entitled to a fair and reasonable compensation on
condition that he or she was in good faith as further specified in Article 4(4).
This regime appears to be suitable as a workable compromise between the
competing and conflicting interests of the original owner and the bona fide
possessor, as well as between the different legislative approaches to be found in
the jurisdictions of the Member States (and other states).
However, there seems to be no possibility for the EU to accede to the Convention
itself, since the Convention only accepts States as Contracting Parties and not
additionally, as modern Conventions increasingly suggest, regional integration
communities. In addition, the Commission seems to see no competency.
195
However, this position would need further analysis. Article 216 (1) TFEU might
provide for a competency, at least as far as there is internal competency for
harmonizing the relevant substantive law and choice of law. If not, the EU should
at least seek, under Article 167 TFEU, to encourage those Member States to accede
to the Convention that have not yet done so. This would of course lead to a double
regulation for the return of cultural objects illegally exported from one Member
State to another (see Chapter III of the Convention and Directive 2014/60/EU), but
any conflict could be easily resolved on the assumption that neither the
Convention nor the Directive bars the Member States from granting more
favourable options for the recovery of illegally exported cultural property than
provided for in the respective instrument.
b. – Policy Option 2: Incorporating Chapter II of the 1995 UNIDROIT Convention into
EU secondary law (e.g. as new part of Directive 2014/60/EU)
Alternatively, the EU could seek to autonomously incorporate just Chapter II of
the Convention in a self-standing EU instrument or, perhaps, as a new part of
Directive 2014/60/EU (which then would of course have to be renamed).
Although this option appears technically easy and “smart” in that it only focuses
195
Commission Staff Working Document Impact Assessment accompanying the document
“Proposal for a Regulation of the European Parliament and of the Council on the import of cultural
goods”, SWD(2017) 262 final, of 13 July 2017, at p. 7: “Moreover, under the TEU and the TFEU,
the European Union has no general power to enter into such international treaty relations [such as
the 1970 UNESCO or the 1995 UNIDROIT Convention]”.
Cross-border restitution claims of looted works of art and cultural goods
73
on those parts of the Convention that are still missing within the EU law body.
196
However, the availability of this option depends on a competency of the EU to
regulate the issue for the internal market, but Article 114 TFEU, the ground of
competency for the current version of Directive 2014/60/EU, should be sufficient.
Additionally, the EU might want to consider whether the function for the private
enforcement of the regulatory objective of the Directive suffices to constitute a kind
of “annex”-competence.
c. – Policy Option 3: Adopting Articles VIII.-3:101 and VIII.-4:102 DCFR
In 2008, the Study Group on a European Civil Code (the ‘Study Group’) and the
Research Group on Existing EC Private Law (the ‘Acquis Group’) presented the
Full Edition of its revised and final academic Draft of a Common Frame of
Reference (“DCFR”).
197
Based on comparative research in the legal orders of the
Member States, the DCFR contains principles, definitions and model rules of
European Private Law. It thus offers genuinely European solutions to pervasive
questions of all legal orders of the Member States. Book VIII contains rules on the
acquisition of property. Chapter III provides for the rules on good faith acquisition,
Chapter IV on acquisition of ownership by continuous possession. Each Chapter
provides for special rules in relation to cultural property, because cultural objects
are considered, throughout Book VIII, to be a special category of goods where the
bond of ownership to the original owner justifies a stronger protection as
compared to “ordinary” goods:
198
Article VIII.–3:101 DCFR provides for the modalities and conditions of good faith
acquisition through a person without right or authority to transfer ownership but,
in subsection 2 Sentence 2, expressly excludes such acquisition in case of stolen
cultural property. Article VIII.–3:101 DCFR reads:
“(1) Where the person purporting to transfer the ownership (the transferor)
has no right or authority to transfer ownership of the goods, the transferee
nevertheless acquires and the former owner loses ownership provided that:
(a) the requirements set out in VIII.–2:101 (Requirements for
the transfer of ownership in general) paragraphs (1)(a),
(1)(b), (1)(d), (2) and (3) are fulfilled;
196
Note that according to Article 8 of the 1995 UNIDROIT Convention, a claim under Chapter
II may be brought before the courts or other competent authorities of the Contracting State where
the cultural object is located, in addition to the courts or other competent authorities otherwise
having jurisdiction under the rules in force in Contracting States. This optional ground of jurisdiction
has conceptually already found its way into EU law by Article 7 no. 4 Brussels Ibis Regulation, see
above in this Chapter 3, sub I.
197
Full text including all commentaries is available under http://ec.europa.eu/justice/
contract/files/european-private-law_en.pdf (24 July 2017).
198
Op.cit., p. 4164.
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(b) the requirement of delivery or an equivalent to delivery as
set out in VIII.–2:101 (Requirements for the transfer of
ownership in general) paragraph (1)(e) is fulfilled;
(c) the transferee acquires the goods for value; and (d) the
transferee neither knew nor could reasonably be expected
to know that the transferor had no right or authority to
transfer ownership of the goods at the time ownership
would pass under VIII.–2:101 (Requirements for the trans-
fer of ownership in general). The facts from which it fol-
lows that the transferee could not reasonably be expected
to know of the transferor’s lack of right or authority have
to be proved by the transferee.
(2) Good faith acquisition in the sense of paragraph (1) does not take place
with regard to stolen goods, unless the transferee acquired the goods from a
transferor acting in the ordinary course of business. Good faith acquisition
of stolen cultural objects in the sense of VIII.–4:102 (Cultural objects) is
impossible.
(3) Where the transferee is already in possession of the goods, good faith
acquisition will take place only if the transferee obtained possession from the
transferor.”
Article VIII.-4:102 DCFR deals with acquisition of cultural objects by possession
and provides for prolonged time limits as a minimum standard. The Member
States remain free to adopt higher standards in order to protect cultural property.
DCFR VIII.–4:102 reads:
“Cultural objects: (1) Under this Chapter, acquisition of ownership of goods
qualifying as a “cultural object” in the sense of Article 1 (1) of Council
Directive 93/7/EEC, regardless of whether the cultural object has been
unlawfully removed before or after 1 January 1993, or not removed from the
territory of a Member State at all, requires continuous possession of the
goods:
(a) for a period of 30 years, provided that the possessor,
throughout the whole period, possesses in good faith; or
(b) for a period of 50 years.
(2) Member States may adopt or maintain in force more stringent provisions
to ensure a higher level of protection for the owner of cultural objects in the
sense of this paragraph or in the sense of national or international
regulations.”
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Without going into detail, the regulatory approach principally resembles the
standards of international treaty law, in particular the 1995 UNIDROIT
Convention.
199
And indeed, the commentators to the DCFR expressly state that in
particular Article VIII.–4:102 (2) endorses the policy in relation to international
conventions, concluded by some but not all Member States in the area covered by
that Article.
200
The idea of this Option is thus again to create harmony and a level
playing field by autonomously adapting to the standards set by international
conventions, rather than directly acceding them (due to a potential lack of
competency). Again, such harmonization could be inserted in (a recast of)
Directive 2014/60/EU (which would have to be renamed).
d. – Policy Option 4: Introducing a general prohibition of sale and acquisition for stolen
and illegally exported/imported cultural property
An even more powerful tool for private enforcement would be introducing a
general prohibition of sale and acquisition for stolen and illegally
exported/imported cultural property. The new German 2016 Cultural Property
Protection Act
201
provides for a recent example. Section 40 reads:
202
“(1) It shall be prohibited to place cultural property on the market that has
been [unwillingly] lost [in the sense of misappropriated, in particular stolen],
unlawfully excavated or unlawfully imported.
(2) Executory contracts and transfer agreements prohibited pursuant to
subsection 1 shall be invalid.”
This rule applies to anyone who intends to transfer cultural property to another
party as an actor of the art market and invalidates the sale and transfer of title.
Thus, the rule pre-empts any provision under general civil law on bona fide
purchase and acquisition.
203
The title remains unaltered even if the possession is
transferred to the buyer in the course of the transaction, and the original owner
may avail itself of all remedies for the restitution and recovery of his movable
object under the applicable civil law.
The German legislator explains:
204
199
See above.
200
Op.cit., at p. 3991.
201
Kulturgutschutzgesetz vom 31. Juli 2016 (BGBl. I S. 1914), das durch Artikel 6 Absatz 13
des Gesetzes vom 13. April 2017 (BGBl. I S. 872) geändert worden ist, entered into force on 6
August 2016.
202
Official translation, see https://www.bundesregierung.de/Webs/Breg/DE/
Bundesregierung/BeauftragtefuerKulturundMedien/kultur/kulturgutschutz/_node.html (20 July
2017).
203
However, the rule seems not to exclude acuqisitive prescription.
204
Die Beauftragte der Bundesregierung für Kultur und Medien, Das neue
Kulturgutschutzgesetz, Handreichung für die Praxis, Berlin 2017, at p. 203 et seq. (in translation by
the Author).
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“Section 40 is one of the central regulations of the new Act in order to fight
against illegal trade with cultural property and against illegal excavations.
Section 40 deliberately abstains from taking cultural property entirely out of
the market (“res extra commercium”), as it is done by other States, for
example for archaeological artefacts. Instead, trade is only restricted (and not
entirely barred) and put under certain conditions as it is done e.g. by Article
16(1) of the Swiss Act on the Transfer of Cultural Property of 20 June 2003.
(...). Subsection (2) draws the consequences from the prohibition in
subsection (1) in that it invalidates the sales contract and the title of transfer
(...).”
Indeed, Article 16 of the Swiss Act on the Transfer of Cultural Property
205
provides:
“In the art trade and auctioning business, cultural property may only be
transferred when the person transferring the property may assume, under
the circumstances, that the cultural property:
a. was not stolen, not lost against the will of the owner, and
not illegally excavated;
b. not illicitly imported.”
Even though the provision does not state expressly that, as a consequence of the
prohibition, all sales and transfers in execution of the sale are null and void, it is
(at least partly) interpreted to this effect.
206
EU law makes use of such prohibitions in certain special areas of the market for
cultural property, namely currently in respect to cultural property from Iraq
207
and
Syria.
208
205
Swiss Federal Act on the International Transfer of Cultural Property (Cultural Property
Transfer Act, CPTA) of 20 June 2003 (official translation), see http://www.unesco.org/culture/
natlaws/media/pdf/switzerland/ch_actintaltrsfertcultproties2005_engtno.pdf (20 July 2017) .
206
See e.g. Markus Müller-Chen, Grundlagen und ausgewählte Fragen des Kunstrechts,
Zeitschrift für schweizerisches Recht (ZSR) 2010 II pp. 5 et seq., at p. 98. But compare Marc-André
Renold, in Peter Mosimann et al (eds.), Basel 2009, Chapter 8 para 25. There seems to be no court
decision directly to the point.
207
Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific
restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No
2465/96, Article 3: 1. ”The following shall be prohibited: (a) the import of or the introduction into
the territory of the Community of, (b) the export of or removal from the territory of the Community
of, and (c) the dealing in, Iraqi cultural property and other items of archaeological, historical,
cultural, rare scientific and religious importance including those items listed in Annex II, if they
have been illegally removed from locations in Iraq, in particular, if: (i) the items form an integral
part of either the public collections listed in the inventories of Iraqi museums, archives or libraries'
conservation collection, or the inventories of Iraqi religious institutions, or (ii) there exists
reasonable suspicion that the goods have been removed from Iraq without the consent of their
legitimate owner or have been removed in breach of Iraq's laws and regulations.”
208
Council Decision 2013/760/CFSP of 13 December 2013 amending Decision
2013/255/CFSP concerning restrictive measures against Syria, Article 13a: ”It shall be prohibited to
Cross-border restitution claims of looted works of art and cultural goods
77
Therefore, the EU might want to consider whether these prohibitions should be
generalized e.g. along the lines of the new section 40 of the German 2016 Act on
the Protection of Cultural Property. Again such a provision could be inserted in (a
recast of) Directive 2014/60/EU (which would have to be renamed) - provided
that Article 114 TFEU covers this measure as well. However, the precise concept
and its effects on legal trade with cultural property would need to be analysed
carefully, in order to avoid unwanted chilling effects on the art market.
import, export, transfer or provide related brokering services for cultural property and other items
of archaeological, historical, cultural, rare scientific, and religious importance which have been
illegally removed from Syria, or where reasonable suspicion exists that they have been illegally
removed from Syria, on or after 9 May 2011. The prohibition shall not apply if it is shown that the
cultural items are being safely returned to their legitimate owners in Syria.”
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V. – The special issue of Nazi Looted Art
1. – No retroactive legislation
Some of the measures considered above (in relation to e.g. jurisdiction under
Article 7 no. 4 Brussels Ibis Regulation
209
and to immunity
210
) apply by their very
nature only to future proceedings on the restitution of cultural property, looted in
armed conflicts and wars, including Nazi looted art. To this extent, there is no issue
of retroactivity.
209
See above in this Chapter 3, sub I.
210
See above Chapter 3, sub II.
KEY FINDINGS
The special issue of Nazi looted art requires special solutions.
Retroactive legislative measures that change the status of otherwise valid legal
acquisitions of Nazi looted art in the past, e.g. by good faith acquisitions or
acquisition by a longer period of possession after the Second World War,
would not be in conformity with guarantees under the European Convention
on Human Rights, the EU Charter of Human Rights and national
constitutional guarantees.
In respect to future transactions, the EU could consider defining minimum
standards for pre-contractual information on the provenance of the object to
be sold, in particular whether and to what extent there is reason to suspect
that the object is spoliated.
The EU could further consider clarifying/harmonizing the buyer’s remedies
in case of non-compliance with the seller’s pre-contractual duties to inform
the buyer.
These issues could be regulated e.g. in a Directive on certain aspects of the sale
of (potentially) Nazi looted art, structurally mirroring Directive 1999/44/EC
of the European Parliament and of the Council of 25 May 1999 on certain
aspects of the sale of consumer goods and associated guarantees.
In respect to transactions in the past and in order to further support the
implementation of the Washington Principles and to bring about greater
consistency, the EU could consider funding a restatement of restitution
principles, under Article 167 TFEU. Such a restatement would collect and
analyse the recommendations of the Spoliation Advisory Panels in the
Member States and beyond on the restitution of Nazi looted art and extract,
carefully develop and supplement, as the case may be, the respective ratio of
the recommendations, in order to provide the Panels with a reliable source of
common thought and evaluation.
Cross-border restitution claims of looted works of art and cultural goods
79
All other measures considered above, such as a newly designed choice of law rule
for the acquisition of cultural property, or modified elements of the applicable
substantive law, cannot intend to have retroactive effects, but will be applicable
only from the date of enactment for future transactions.
The European Convention on Human Rights (ECHR) and the EU Charta on
Fundamental Rights (EU Charta) exclude retroactive legislation.
211
The exclusion
of retroactive legislation is an established principle of the rule of law (legal
certainty and protection of legitimate expectations),
212
of fair trial (in case
legislation is changed during proceedings) and a firmly established part of the
Member States’ (and other states’) constitutional traditions.
213
Retroactive
legislation takes away or impairs vested rights that were validly acquired under
the law as it stood at the time of the acquisition of the right. Such legislation is not
in conformity with the ECHR and the EU Charta. This is also a firmly established
principle in the case law of the ECJ.
214
Furthermore, it is a firmly established
principle in international law, including international cultural property law. For
example, Article 10(1) of the 1995 UNIDROIT Convention provides:
“The provisions of Chapter II shall apply only in respect of a cultural object
that is stolen after this Convention enters into force in respect of the State
where the claim is brought (...);”
Therefore, two different areas must be distinguished in relation to the restitution
of Nazi looted art. Firstly, questions relating to future transactions and future
211
E.g. ECtHR, judgment of 31 May 2011, Application No. 46286/09, 53727/08, 54486/08,
56001/08, Maggio and others v. Italy where the Court held that ”interpretative” legislation, i.e.
legislation that intends to interpret earlier legislation bindingly violates Article 6 of the Convention;
similarly ECtHR, judgment of 7 June 2011, Application No. 43549/08, 6107/09, 5087/09, Agrati
and others v. Italy; see also ECtHR, judgment of 27 September 2011, Application No. 7359/06,
Agurdino SRL v. Moldova where the Court held that held that retroactive legislation violated, inter
alia, the right to enjoyment of possessions (Article 1 of the First Protocol of the Convention); see
also e.g. ECtHR, judgment of 3 July 1997, Application no 17849/91, Pressos Compania Naviera SA
and others v. Belgium where the State was held liable for extinguishing the applicant’s pending
claims by enacting retroactive legislation.
212
See e.g. Ulf Bernitz, Retroactive Legislation in a European Perspective – On the
Importance of General Principles of Law, Scandinavian Studies in Law 2000 No. p. 43 et seq.: “In
a state based on the rule of law the problems surrounding retroactive legislation are central.”
213
For the German constitutional law see e.g. Bernd Grzeszick, Maunz/Dürig, Grundgesetz-
Kommentar (Lfg. 48 November 2006), Article 20 German Basic Law (Grundgesetz), para. 72. For
the USA see e.g. Ronald D. Rotunda/John E. Nowak, Prinicples of Constitutional Law, St. Paul MN
2016, p. 288.
214
E.g. ECJ, Case C-107/10 – Iztok 3 AD v. Direktor ‘Obzhalvane i upravlenie na
izpalnenieto’ NAP, para. 39: ”[i]t should be noted that, according to the Court’s settled case-law, it
is perfectly permissible and, as a general rule, consistent with the principle of the protection of
legitimate expectations for new rules to apply to the future consequences of situations which arose
under the earlier rules (Case C-60/98 Butterfly Music [1999] ECR I-3939, paragraph 25 and the
case-law cited). However, a legislative amendment retroactively depriving a taxable person of a
right he has derived from earlier legislation is incompatible with the principle of the protection of
legitimate expectations (see, to that effect, Marks & Spencer, paragraph 45).”
European Added Value Assessment
80
proceedings about Nazi looted art, and secondly, questions relating to transactions
in the past on the basis of moral considerations, in particular with a view to the
1998 Washington Principles on Nazi confiscated art.
215
2. – Sales law for transactions in the future
In respect to future transactions, and beyond the measures taken into
consideration in this Study for cultural property looted in armed conflicts and
wars or otherwise stolen or misappropriated (i.e. increasing the thresholds for
good faith acquisitions etc.), sales law should bea primary focus. The following
case study illustrates the issue:
a. – Case study: The auction of Lodovico Carraci’s “St. Jerome” (Max Stern Gallery) by
Lempertz
On 20 May 2000, the New York art dealer Richard L. Feigen purchased by auction
at Lempertz in Cologne the painting “St. Jerome” by Lodovico Carraci. The
provenance of the painting was described in the auction catalogue as follows
(translated):
“Private Collection, Berlin (1933); Stern Gallery, Düsseldorf; 392th Lempertz
Auction Cologne, 13 November 1937, lot 185 (stock of Stern Gallery,
Düsseldorf); Rhenish Private Collection; Private Collection Zurich.”
Two days before the auction, on 18 May 2000, Lempertz had confirmed upon
Feigen’s question:
“The provenance of the Painting is clean. We sold it 1937 (stocks of Stern
Gallery) to a collector in the Rhineland”.
One day before the auction, on 19 May 2000, Feigen had asked Lempertz to confirm
that the painting had been checked with the Art Loss Register, which was the case,
but without any result.
Upon this information, Feigen purchased the painting for DM 100,000 plus DM
16,000 premium. Feigen took the painting with him to New York. Nothing
happened for the next nine years. In 2009, however, Feigen heard about the
restitution of another painting from the stock of the Stern Gallery that had been
auctioned in the same 392
th
Lempertz auction in 1937. Feigen started researching
the provenance of his painting on his own initiative and contacted the Max Stern
215
Compare European Parliament, Committee on Legal Affairs and the Internal Market,
Rapporteur: Willy C.E.H. De Clercq, Report of 26 November 2003, on a legal framework for free
movement within the internal market of goods whose ownership is likely to be contested
(2002/2114(INI)), p. 6, sub 4, lemma 3, where the Report, in respect to Nazi looted art “[c]alls on
the European Commission, with due regard for Article 295 of the EC Treaty, to undertake a study
by the end of 2004 on identifying common principles on how ownership or title is established,
prescription, standards of proof, rights to export or import property which has been recovered”. This
is a well justified call, but as far as it should aim at retroactive legislative measures, it would run
into conflict with the prohibition of retroactive legislation.
Cross-border restitution claims of looted works of art and cultural goods
81
Restitution Project at the Concordia University, Montreal. This project was
founded in 2002 and works on the restitution of the works of art lost by Max Stern
due to Nazi persecution. Feigen learned that his painting had been listed as lost
under Nazi persecution with the Art Loss Register since 2004. Thereupon, the
director of the Max Stern Project, Clarence Epstein, informed the US authorities
who seized the painting. Feigen negotiated a settlement under which the painting
was restituted in a ceremony at the Leo Baeck Institute in New York. Then, Feigen
instituted proceedings against Lempertz for damages of USD 350,000 with the
courts of Cologne.
The Court held that no legal claims for the restitution of the painting by the heirs
of Max Stern (i.e. the Max Stern Restitution Project) existed at the time of the
purchase by Feigen. This was neither under the old restitution legislation
introduced by the Allied Forces shortly after the war, nor under the follow-up
restitution legislation by the then young Federal Republic of Germany, nor under
New York law from the perspective of a New York court.
216
Therefore, in the view
of the Cologne court, there was no defect of title or “legal” non-conformity in
respect to the sold painting. However, the court held that Lempertz was in breach
of contract by wrongly affirming that “the provenance is clean”, although the
painting was lost due to Nazi persecution. Yet any claims for damages were
already time-barred under the general prescription legislation in civil law, because
the short prescription periods for claims for breach of duty under the applicable
German law had long run out.
217
This case poses the general question on how sales law in respect to Nazi looted art
should be designed in the future, in order to support a responsible attitude by all
parties (sellers/auction houses or other intermediaries and buyers). It is beyond
the scope of this Study to assess comparatively the respective answers by the sales
laws of the Member States, but it appears fair to assume that (1) the answers are
difficult to assess in respect to the rather special question of the effects of “bad
provenance” of a painting to be sold, and (2) the answers, once precisely assessed,
will differ from each other. Upon this latter assumption, the following is
recommended:
216
Upper Regional Court (Oberlandesgericht) Cologne, judgment of 8 July 2016, docket no.
1 U 36/13, Zeitschrift für offene Vermögensfragen (ZOV) 2016, pp. 102 et seq.
217
Under German general civil prescription law today (certain differences applied in the case
under the old legislation that was repealed as of 1 January 2002), claims are time barred three years
after the end of the year in which the claim arose and the claimant became aware of the claim or
should have become aware, sections 195, 199(1) German Civil Code. Otherwise, claims for damages
are time barred after 10 years, some only after 30 years, but the claims in the case at hand were of
another type.
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82
b. – Recommendation: Defining the sellers due diligence and the buyer’s remedies
under a European sales law when Nazi looted art is sold
The remedies by a buyer under sales law should be clearly defined in case he or
she acquires Nazi looted art. The general assumption is that a buyer does not want
to buy Nazi looted art, primarily because of moral reasons but also because the
“bad provenance” creates the risk of reputational damage and usually reduces the
market value and chances for resale.
The Upper Regional Court of Cologne held on this issue (in translation):
218
“[The] Claimant has a legitimate interest in being informed about the
circumstances of the auction in 1937, because Claimant would be facing the
risk of negotiating about moral restitution claims with heirs and incurring
legal costs. There is additionally the legitimate interest of Claimant not to
be connected with criticism by the public to take part in the trade of Nazi
looted art, irrespective of whether this accusation holds true or not.”
Thus, if the seller declares that “the provenance is clean” and then this declaration
turns out to be wrong, it should be clear that the buyer should have all remedies
of sales law for defects and/or misrepresentation.
However, the picture becomes more complicated if, for example (like in the case
at hand) the victim of Nazi persecution or the heirs had already received
compensation in post-war indemnification proceedings.
219
Furthermore, the
question arises to what extent the buyer loses remedies (according to general
principles of sales law) as soon as he or she positively knew or should have known
himself/herself about the bad provenance (due diligence on the buyer’s part).
This point leads to the central policy question: To what extent should the seller be
obliged to inform the buyer about the provenance and, in order to be able to inform
properly, to investigate the provenance in preparation of the sale. To put it
differently: how should the due diligence on the part of the seller be defined in the
special case of Nazi looted art?
For example, section 44 of the German 2016 Act on the Protection of Cultural
Property
220
provides for increased due diligence requirements for traders:
“if it has been proven or is assumed that this cultural property was taken
from its original owner between 30 January 1933 and 8 May 1945 due to
National Socialist persecution, unless it was restituted to the original owner
218
Upper Regional Court (Oberlandesgericht) Cologne, judgment of 8 July 2016, docket no.
1 U 36/13, Zeitschrift für offene Vermögensfragen (ZOV) 2016, pp. 102 et seq., para. 54.
219
Op.cit., at para. 1.
220
Kulturgutschutzgesetz vom 31. Juli 2016 (BGBl. I S. 1914), das durch Artikel 6 Absatz 13
des Gesetzes vom 13. April 2017 (BGBl. I S. 872) geändert worden ist, entered into force on 6
August 2016.
Cross-border restitution claims of looted works of art and cultural goods
83
or his heirs or they have come to a different final agreement regarding the
deprivation”.
Section 41 provides for general due diligence requirements:
“(1) Anyone who places cultural property on the market shall be obliged to
exercise due diligence in checking whether the cultural property
1. has been lost;
2. has been unlawfully imported; or
3. has been unlawfully excavated.
(2) The person placing cultural property on the market shall comply with the
general requirements to exercise due diligence pursuant to subsection 1 if a
reasonable person might assume that one of the offences referred to in
subsection 1 has been committed. This assumption shall be made especially
if, during the previous acquisition of the cultural property to be placed on
the market,
1. an extremely low price was demanded without further ex-
planation; or
2. the seller demanded cash payment for a purchase price ex-
ceeding € 5,000.
(3) Exercising due diligence also includes verifying relevant information that
can be obtained with reasonable effort or carrying out any other examination
that a reasonable person would carry out under similar circumstances
related to the placing on the market.”
Section 42 (1) defines special due diligence obligations for traders:
“(1) Anyone who places cultural property on the market in conducting his
business shall, in addition to the obligations referred to in Section 41, be
obliged
1. to establish the name and address of the vendor, deliverer,
acquirer or ordering party;
2. to provide a description and an illustration that can be
used to establish the identity of the cultural property;
3. to examine the provenance of the cultural property;
4. to examine documents proving the lawful import and ex-
port;
5. to examine bans and restrictions regarding import, export
and trade;
European Added Value Assessment
84
6. to examine whether the cultural property is registered in
publicly accessible registers and databases; and
7. to obtain a written or electronically transmitted declaration
of the deliverer or vendor stating that he or she is author-
ized to have the cultural property at his disposal.
The obligations pursuant to no. 2 of the first sentence shall not affect
copyright rules. The obligations pursuant to no. 3 through 6 of the first
sentence shall be met in compliance with the reasonable effort and the
economic reasonableness, in particular.”
Section 44 provides that the obligation for provenance research under section 42
(1) no. 3 for traders is not limited to: “reasonable effort and economic
reasonableness” in case of, inter alia, Nazi looted art.
And in connection with section 41, the German Government explains:
221
“The trader violates its duty of care if he or she does not comply with the
due diligence requirements connected to the trade of cultural property and
may thus be liable to his or her contractual partner”.
Consequently, the legislator assumes that the due diligence requirements of the
new Act directly apply to civil law relationships between the seller and buyer. At
the same time, the Act does not generally seem to extend the prohibition of trade
with cultural property under section 40 (1) to Nazi looted art.
Irrespective of details and nuances of the regulatory scheme, the general approach
appears to be balanced and suitable for generalization on the European level:
Whereas trade with Nazi looted art is not prohibited generally, strict due diligence
duties are imposed on traders, and in case of non-compliance, the buyer will be
able to avail itself of the general remedies under the applicable sales law and civil
law in general for defects and/or misrepresentation.
Against this background the EU should consider defining minimum standards for
traders in respect to pre-contractual information of the buyer, and in respect to
(potentially) Nazi looted art based on the necessary provenance research. The EU
should further consider clarifying/harmonizing the buyer’s remedies in case of
non-compliance with these pre-contractual duties.
These issues could be regulated e.g. in a Directive on Certain Aspects of the Sale
of (potentially) Nazi looted Art, perhaps conceptually along the lines of Directive
1999/44/EC of the European Parliament and of the Council of 25 May 1999 on
certain aspects of the sale of consumer goods and associated guarantees. Of course,
the time limits for the remedies would have to be extended compared to the
221
Die Beauftragte der Bundesregierung für Kultur und Medien, Das neue
Kulturgutschutzgesetz, Handreichung für die Praxis, Berlin 2017, at p. 205 et seq. (in translation).
Cross-border restitution claims of looted works of art and cultural goods
85
Consumer Sales Directive in order to achieve the regulatory objective. And of
course there must be a ground of competency. Whereas Directive 1999/44/EC is
based on (now) Article 114 TFEU and (now) Articles 169 and 12 TFEU, there
appears to be no equivalent to the latter provision that would cover the trade with
Nazi-looted art: Article 167 TFEU does not appear to extend to this issue and
would not be comparable with Article 169 TFEU in terms of supporting a
competency under Article 114 TFEU. However, given that sales of cultural
property and in particular of looted art regularly involve cross-border elements,
Article 114 TFEU might alone be considered sufficient.
Following from this, the benefit of such an instrument could be that all actors in
trade increase awareness and, above all, look more intensely for just and fair
solutions to be negotiated with the victims or their heirs, in order to fully clear the
provenance of a tainted object. In essence, the Policy Option considered here
would take up, reflect and reinforce emerging perceptions of the market on the
effects for the market value of a “bad” or “clean” provenance of a cultural object
to be traded.
3. – Property law in respect to Nazi looted art
Additionally, on the level of property law, one might want to think about measures
to make it more difficult to acquire Nazi looted art in the future. These would have
to be measures that increase the thresholds for good faith acquisitions, even
beyond the measures considered above for future good faith acquisitions of
cultural property looted in armed conflicts and wars more generally. This would
have to be considered under the following premises:
a. – Invalidity of „forced sale“ transactions from 1933 to 1945
If the transfer of title was valid at the time, there is no possibility to enact legislation
today that would undo the legal effects of the valid transaction at the time (no
retroactive legislation).
222
Thus, only if there was no transfer at all or if the transfer
of title was invalid, there is a chance today to raise a claim based on ownership.
In Germany, it appears to be common ground that any seizures by Nazi authorities
for the purpose of persecution are invalid.
223
In these cases, the ownership did not
pass but remained legally untouched, even though naturally the persecuted
person was deprived of his or her possession of the object.
Furthermore, it appears to be common ground that any sale of property by a
persecuted person was invalid if the buyer could only buy the object due to
persecution and intentionally benefited from that persecution (“forced sale”), on
the grounds of immorality.
224
Again, in these cases, the ownership did not pass but
222
See above at note Error! Bookmark not defined. and accompanying text.
223
E.g Michael Anton, Illegaler Kulturgüterverkehr, Rechtshandbuch Kulturgüterschutz und
Kunstrestitutionsrecht, Vol. I, Berlin 2010, pp. 403 et seq.
224
Op.cit. See also Andreas Bergmann, Der Verfall des Eigentums, Tübingen 2015, p. 6.
European Added Value Assessment
86
remained legally untouched, even though of course the persecuted person was
deprived of his or her possession of the object.
Likewise, in many EU Member States post-war legislation was enacted to
invalidate transactions of forced sale, based primarily on the “London
Declaration”
225
.
226
It must be noted, however, that this Declaration itself did not
change the applicable private law on acquisition of property, but merely informed
and expressly warned the public about the Allied Forces’ intent to regulate the
issue.
227
Simultaneously and by this warning, the Declaration will have influenced
the application of existing provisions on good faith acquisitions.
228
However, it
would be a matter of further research to assess to what extent, (in particular from
what moment in time and how long after the Second World War and whether
located inenemy states, liberated territories or neutral third states) this factual
effect could be taken into account.
229
b. – Validity of „non-forced sale“ transactions from 1933 to 1945
Conversely, sales which, at the time, did not take place under the pressure of
persecution (“non-forced sales”) were valid. The crucial question for any further
analysis is therefore: who bears the burden of proof for the conditions of invalidity
in the transaction at the time?
225
Inter-Allied Declaration against Acts of Dispossession committed in Territories under
Enemy Occupation and Control of 5 January 1943: “The Governments of the Union of South Africa;
the United States of America; Australia; Belgium; Canada; China; the Czechoslovak Republic; the
United Kingdom of Great Britain and Northern Ireland; Greece, India, Luxembourg; the
Netherlands; New Zealand; Norway; Poland; the Union of Soviet Socialist Republics; Yugoslavia;
and the French National Committee: Hereby issue a formal warning to all concerned, and in
particular to persons in neutral countries, that they intend to do their utmost to defeat the methods
of dispossession practised by the Governments with which they are at war against the counties and
peoples who have been so wantonly assaulted and despoiled. Accordingly, the Governments making
this Declaration and the French National Committee reserve all their rights to declare invalid any
transfers of, or dealings with, property, rights and interests of any description whatsoever which are,
or have been, situated in the territories which have come under the occupation or control, direct of
indirect of the Governments with which they are at war, or which belong, or have belonged to
persons (including juridical persons) resident in such territories, This warning applies whether such
transfers of dealings have taken the form of open looting or plunder, or of transactions apparently
legal in form, even when they purport to be voluntarily effected. The Governments making this
Declaration and the French National Committee solemnly record their solidarity in this matter.”
226
See e.g. Michael Anton, Illegaler Kulturgüterverkehr, Rechtshandbuch Kulturgüterschutz
und Kunstrestitutionsrecht Vol. 1, Berlin 2010, pp. 523 et seq., paras. 47 et seq. See also Wilfried
Fiedler, Die Alliierte (Londoner) Erklärung vom 5.1.1943: Inhalt, Auslegung und Rechtsnatur in der
Diskussion der Nachkriegsjahre, in Jürgen Basedow et al (eds), Private Law in the International
Arena. From National Conflict Rules Towards Harmonization and Unification, Liber Amicorum
Kurt Siehr, Berlin 2000, pp. 197 et seq.
227
Op.cit., at p. 505, para. 19.
228
Op.cit, at p. 519, para. 41.
229
Op.cit., at p. 521, para. 43
Cross-border restitution claims of looted works of art and cultural goods
87
c. – Burden of proof for invalidity of transaction during 1933 to 1945
Under general rules of private law, it is commonly asserted that the immorality
and thus invalidity must prove the factual circumstances that constitute
immorality. Since it is structurally very difficult to succeed in this matter, the post-
war restitution legislation in Germany
230
provided for a shift in the burden of proof
(for a certain short period of time in which restitution claims had to be filed with
the authorities), in favour of the victims of persecution. According to Article 3
Military Law No. 59,
231
the conditions for establishing the restitution claim were
only the following: (1) Persecution of the owner, (2) transfer of property in a sale.
If these conditions were met, there was a presumption that there was a forced sale.
This presumption could be rebutted by showing cumulatively that (a) the vendor
received a fair market price, (b) that he could freely dispose of the proceeds and
(c) in case of sales after 15 September 1935, which is the date of entering into force
of the Nuremberg laws, that the sale would have taken place without the Nazi
regime in power.
232
However, after the expiration of the short time limits for filing the special
restitution claims with the respective restitution authorities - according to Article
56(1) Military Law No. 59, all claims based on the special restitution legislation in
that Law had to be filed with the Central Filing Agency before 31 December 1948
–,
233
. The special presumption in Article 3 Military Law No. 59 is no longer
230
US Military Law No. 59 (Gesetz Nr. 59 der Militärregierung Deutschland
(Rückerstattungsgesetz) vom 10. November 1947, Amtsblatt der Militärregierung Deutschland –
Amerikanisches Kontrollgebiet, Ausgabe G, S. 1, Military Government Gazette, reprinted in 42
Am.J.Int’l.L. 12 et seq.) was the model law for the restitution legislation in all Western zones of
occupation
231
Op.cit. Article 3 contained a presumption of ”confiscation” and read as follows: ”(1) It shall
be presumed in favor of any claimant that the following transactions entered into between 30 January
1933 and 8 May 1945 constitute acts of confiscation within the meaning of Article 2: (a) Any transfer
or relinquishment of property made during a period of persecution by any person who was directly
exposed to persecutory measures on any of the grounds set forth in Article 1; (b) Any transfer or
relinquishment of property made by a person who belonged to a class of persons which on any
grounds set forth in Article 1 was to be eliminated in its entirety from the cultural and economic life
of Germany be measures taken by the State or the NSDAP. (2) In the absence of other factors proving
an act of confiscation within the meaning of Article 2, the presumptions set forth in paragraph 1 may
be rebutted by showing that the transferor was paid a fair purchase price. Such evidence by itself
shall not, however, rebut the presumptions if the transferor was denied the free right to disposal of
the purchase price on any of the grounds set forth in Article 1”.
232
For further analysis of the impact of these provisions on the Guidelines and its application
in another hard case see Matthias Weller, The Return of Ernst Ludwig Kirchner’s ‚Berliner
Straßenszene‘ – A Case Study, Art Antiquity and Law Vol. XII, Issue 1, March 2007, pp. 65 et seq.
233
On the large scale of restitution of Nazi looted assets in general as well as on technical
details see comprehensively Bundesministerium der Finanzen in Zusammenarbeit mit Walter
Schwarz (ed), Die Wiedergutmachung nationalsozialistischen Unrechts durch die Bundesrepublik
Deutschland Vol. I – VIII, in particular Volume I: Rückerstattung nach den Gesetzen der Alliierten
Mächte, München 1974 et seq.; see also recently e.g. Harald König, Claims for the Restitution of
Holocaust Era Cultural Assets and their Resolution in Germany, Art, Antiquity & Law 2007, pp, 59
et seq.; Leonie Schwarmeier, Der NS-verfolgungsbedingte Entzug von Kunstwerken und deren
Restitution, Hamburg 2014, pp. 161 et seq.
European Added Value Assessment
88
available in proceedings today, and according to numerous commentators, even
the potentially remaining claims under general civil law (if it is possible to
establish them without the presumption) have been extinguished by Military Law
No. 59 after 31 December 1948.
234
However, the German Federal Court of Justice
held recently to the opposite, in the case that the property’s location was unknown
during the time of filing the claim under the special restitution legislation.
235
Even if the claims of victims of persecution or their heirs were not generally
extinguished by the post-war legislation of the Allied Forces, it is clear that today
any claimant would have to establish the claim under general civil law, meaning
there are no specific legislative presumptions available in favour of victims of Nazi
persecution. This cannot be changed retrospectively by legislation today (no
retroactive legislation).
236
d. – Valid post-war good faith acquisition / prescription in many (not all) cases
Even if a claimant managed to prove the invalidity of the initial transaction during
1933 to 1945, the claimant would still have to struggle with good faith acquisitions
and in particular with acquisitive prescription according to the applicable general
civil law, or general time bars for the claim for restitution. Therefore, in many (not
all) cases of Nazi looted art, no legal claims exist anymore.
e. – No retroactive legislation on good faith acquisitions / prescription in the past
To the extent that legal claims do not exist anymore, or to the extent they cannot
be enforced, e.g. due to legal prescription and comparable legal time bars, the state
of law cannot be changed by retroactive legislation.
237
Therefore, the restitution of
Nazi looted art has shifted mostly from legal claims to moral pleas, such as has
been laid down in the Washington Principles on Nazi-confiscated Art.
238
234
E.g. recently Andreas Bergmann, Der Verfall des Eigentums, Tübingen 2015, at p. 11:
“eklatant falsch”; Wolfgang Ernst, Zur heutigen Rechtsbedeutung der alliierten
Rückerstattungsgesetze in Deutschland, in Festschrift SChrage 2010, pp. 115 et seq., at p. 127.
235
German Federal Court of Justice, judgment of 16 March 2012, docket no. V ZR 279/10,
Neue Juristische Wochenschrift (NJW) 2012, pp. 1796 et seq. – Plakatsammlung Hans Sachs; for a
positive and affirmative comment on this decision as well as for a detailed rejection of the
proposition that the old restitution legislation extinguished even claims under general civil law upon
the expiration of the special time limits and special benefits for victims of persecution see Matthias
Weller, Die Plakatsammlung Hans Sachs – Zur Ausschlusswirkung des alliierten
Rückerstattungsrechts heute, Matthias Weller et al. (eds), Diebstahl – Raub – Beute: Von der antiken
Statue zur digitalen Kopie, VI. Heidelberger Kunstrechtstage 28. und 29. September 2012, Schriften
zum Kunst- und Kulturrecht Nomos-Verlag Baden-Baden 2013, pp. 91 et seq., at pp. 99 et seq.
236
See above once more at note Error! Bookmark not defined. and accompanying text.
237
See above once more at note Error! Bookmark not defined. and accompanying text.
238
On these issues see below in this Chapter 3, sub V Error! Reference source not found..
Cross-border restitution claims of looted works of art and cultural goods
89
f. – Case study: The Schwabing Art Trove (“Gurlitt case”)
239
Particularly complex problems arise when heirs, potentially in good faith, find
themselves in possession of Nazi looted art upon succession to the estate of the
deceased who was not in good faith. These difficulties arose in a recent case in
Germany, the “Schwabing Art Trove”, also known as the “Gurlitt case”:
On 22 September 2010, German customs officials carried out a routine inspection
and searched Cornelius Gurlitt travelling on a train from Zurich to Munich. He
was subsequently suspected of having committed a tax offence because he carried
a certain amount of cash (slightly below the threshold for notifying the customs
authorities) with him. The following day, the District Court of Augsburg issued a
search warrant and seizure order for Cornelius Gurlitt’s apartment in Munich.
From 28 February to 2 March 2012, Cornelius Gurlitt’s apartment was searched
and over 1400 objects were seized as evidence, including 121 framed and 1285
unframed artworks. The majority of these artworks were gathered by Cornelius’s
father, Hildebrand Gurlitt, an important art dealer during the Nazi regime and as
such involved in the looting of art by the Nazis.
On 11 November 2013 the ‘Schwabing Art Trove’ Taskforce was set up by the
German government and the Free State of Bavaria. Its objective was to research the
provenance of the artworks in order to assist the prosecution’s investigation into
the legality of Gurlitt's ownership. In this context, the question arose whether a
restitution claim against Gurlitt would be time barred under German law after
Gurlitt had been in possession of the objects for more than thirty years.
In the following, the Bavarian Government submitted a proposal to the German
Parliament for a bill on the restitution of cultural assets.
240
The Bill proposed that
the statute of limitations should not be applicable in cases involving confiscated
objects where the current owner acted in bad faith at the time of purchase. The law
was meant to be effective retroactively, i.e. to property misappropriated in the past
and in particular prior to the enactment of the new legislation, and applicable in
general, not only to Nazi confiscated art.
239
The following selection of facts is drawn from the long and complex chronology of the
case as provided by the ‘Schwabing Art Trove’ Taskforce which was set up by the Federal
Government of Germany and the Free State of Bavaria, see http://www.taskforce-
kunstfund.de/en/chronology.htm (21 July 2017). For the full chronology see op.cit.
240
Gesetz zum Ausschluss der Verjährung von Herausgabeansprüchen bei abhanden
gekommenen Sachen, insbesondere bei in der NS-Zeit entzogenem Kulturgut (Kulturgut-
Rückgewähr-Gesetz - KRG), see http://dipbt.bundestag.de/extrakt/ ba/WP18/569/ 56995.html (21
July 2017). Full text of the bill available at http://dipbt.bundestag.de/dip21/brd/2014/0002-14.pdf
(21 July 2017).
European Added Value Assessment
90
On 9 June 2017 the Federal Government of Germany communicated that currently
“alternatives were being discussed”,
241
probably due to pressing concerns over the
constitutionality of the Bill. This will presumably mean that no legislative action
on this issue will occur before the end of the 18
th
Parliamentary Session and the
general elections in September 2017. Thus, the Bill will be discontinued by the end
of this Session.
In other jurisdictions, legislative measures in relation to prescription with a view
to favour claimants retroactively, also turned out to be problematic.
242
g. – Recommendation: No retroactive legislation
Since retroactive legislative measures are not in conformity with guarantees under
the European Convention on Human Rights and the EU Charter of Fundamental
Rights (and presumably most of the Member States’ national constitutions),
243
such
legislation is not an option.
Against this background, it appears possible only to prolong those time limits that
are still running. However, if the EU should decide to implement the 1995
UNIDROIT Convention, or comparable general rules on cultural property as
suggested above,
244
there would be no longer any need to introduce special time
limits for Nazi looted art, because the time limits for stolen cultural property
would be sufficient.
Article 3(3) and (4) UNIDROIT Convention provides in this respect:
”(3) Any claim for restitution shall be brought within a period of three years
from the time when the claimant knew the location of the cultural object and
the identity of its possessor, and in any case within a period of fifty years
from the time of the theft.
241
Deutscher Bundestag, Schriftliche Fragen mit den in der Woche vom 12. Juni 2017
eingegangenen Antworten der Bundesregierung, http://dipbt.bundestag.de/dip21/btd/
18/127/1812750.pdf (21 July 2017), at p. 15.
242
See e.g. the complex history of the legislative changes in California, in particular by the
2002 California Holocaust-Era Artwork Statute, Section 354.3 of the California Code of Civil
Procedure. This law prolonged the prescription until 31 December 2010 to allow “any owner, or
heir or beneficiary of an owner, of Holocaust-era artwork, [to] bring an action to recover Holocaust-
era artwork from any museum or gallery that displays, exhibits or sells any article of historical,
interpretive, scientific, or artistic significance.” The US Court of Appeals for the Ninth Circuit
invalidated section 354.3 as unconstitutional. Therefore, the US Government recently enacted the
Holocaust Expropriated Art Recovery Act (”HEAR Act”) of 2016, for an analysis see e.g. Jennifer
Anglim Kreder, 20 Chap. L. Rev. 1 (2017). However, even this Act does not affect legal relationships
fully lying in the past, see section 5(c) of the Act on ”Pre-existing claims”.
243
See above at note Error! Bookmark not defined. and accompanying text.
244
See above in this Chapter 3, sub Error! Reference source not found..
Cross-border restitution claims of looted works of art and cultural goods
91
(4) However, a claim for restitution of a cultural object forming an integral
part of an identified monument or archaeological site, or belonging to a
public collection, shall not be subject to time limitations other than a period
of three years from the time when the claimant knew the location of the
cultural object and the identity of its possessor.”
And Article 3 (5) of the UNIDROIT Convention provides that:
“[a]ny Contracting State may declare that a claim is subject to a time
limitation of 75 years or such longer period as is provided in its law. A claim
made in another Contracting State for restitution of a cultural object
displaced from a monument, archaeological site or public collection in a
Contracting State making such a declaration shall also be subject to that time
limitation.”
4. – Just and fair solutions beyond the law
All states and jurisdictions confronted with the need to restitute Nazi-looted art
decades after the objects were looted faced structural factual difficulties. These
regard establishing the precise circumstances of the looting and/or the forced sale,
according to the standards that would usually be necessary in court proceedings
and legal constraints under the general framework in place.
245
In addition, some
states did not take action in this regard, or fully endorse the necessity of taking up
the issue.
a. – Background
Therefore, in 1998, the representatives of 44 states (amongst them almost all EU
Member States
246
) convened upon invitation by the U.S. Department of State for
the Washington Conference on Holocaust Era Assets. The delegates agreed upon
a number of non-binding principles, termed the “Washington Conference
Principles on Nazi-Confiscated Art” or simply the “Washington Principles”.
247
In
the first part, these principles focus on establishment and support of provenance
research in respect to Nazi looted art. In the second part, there are material
principles for restitution. The central rule, Washington Principle no. 8, states:
245
See above in this Chapter 3, sub Error! Reference source not found..
246
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxemburg, The Netherlands, Poland,
Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom. The Republic of Ireland
and Malta did not participate originally. Malta, however, joined in at the follow-up conference, the
Vilnius International Forum on Holocaust Era Looted Cultural Assets of 5 October 2000. The
Republic of Ireland joined in at the Prague Holocaust Era Assets Conference resulting in the Terezin
Declaration of June 30, 2009.
247
U.S. Department of State, Washington Conference Principles on Nazi-Confiscated Art,
https://www.state.gov/p/eur/rt/hlcst/270431.htm (25 July 2017).
European Added Value Assessment
92
“If the pre-War owners of art that is found to have been confiscated by the
Nazis and not subsequently restituted, or their heirs, can be identified, steps
should be taken expeditiously to achieve a just and fair solution, recognizing
this may vary according to the facts and circumstances surrounding a
specific case.”
This approach – non-binding principles to motivate restitution based on general
considerations of justice and fairness – rather than relying on existing legal claims
– was reinforced in the following by the Vilnius Declaration in 2000
248
and the
Terezin Declaration in 2009.
249
The impact of the Washington Principles was substantial.
250
For example, the
International Council of Museums (ICOM) provided for recommendations.
251
Other organisations followed.
252
Further, many of the participating states
implemented Washington Principle No. 10:
“Commissions or other bodies established to identify art that was
confiscated by the Nazis and to assist in addressing ownership issues should
have a balanced membership”,
248
The Vilnius International Forum on Holocaust Era Looted Cultural Assets took place from
3 to 5 October 2000 in Lithuania as a follow-up to the Washington Conference under the auspices
of the Council of Europe. 38 governments agreed on 5 October 2000 to the ”Declaration of the
Vilnius International Forum on Holocaust-Era Looted Cultural Assets”. A website of the Forum
seems no longer available. The Declaration is reprinted e.g. at
http://www.lootedartcommission.com/ vilnius-forum (25 July 2017).
249
Upon the invitation of the Prime Minister of the Czech Republic the representatives of 46
states convened at the Prague Holocaust Era Assets Conference and agreed to the Terezin
Declaration, for the Declaration and the conference materials see http://www.holocausteraassets.eu
(25 July 2017); see also U.S. Department of State, https://www.state.gov/p/eur/rls/or/126162.htm
(25 July 2017).
250
Although certain issues have remained unresolved or unsatisfactory, see Wesley A. Fisher
/ Ruth Weinberger, Conference on Jewish Material Claims Against Germany and the World Jewish
Restitution Organization, Holocaust-Era Looted Art: A Current World-Wide Overview, providing
for a survey of restitution efforts in 50 states, http://art.claimscon.org/wp-
content/uploads/2014/09/Worldwide-Overview.pdf (25 July 2017).
251
International Council of Museums (ICOM), Recommendations concerning the Return of
Works of Art Belonging to Jewish Owners, 14 January 1999, reprinted e.g. at
http://www.lootedartcommission.com/OXSHQE36019 (25 July 2017).
252
E.g. American Alliance of Museums (AAM), Standards Regarding the Unlawful
Appropriation of Objects During the Nazi Era, http://www.aam-us.org/resources/ethics-standards-
and-best-practices/collections-stewardship/objects-during-the-nazi-era (25 July 2017); Association
of Art Museum Directors (AAMD), Resolution of Claims for Nazi-Era Cultural Assets,
https://aamd.org/sites/default/files/document/Nazi-looted%20art_clean_06_2007.pdf (25 July
2017).
Cross-border restitution claims of looted works of art and cultural goods
93
Such commissions or panels were established for example in Germany,
253
Austria,
254
the Netherlands
255
and the United Kingdom.
256
b. – Increasingly diverging and contradictory restitution recommendations
These commissions, constituted (in varying formations and combinations) by most
honorable and independent representatives of the respective disciplines (generally
legal, ethical, cultural and historic expertise) are entrusted with developing and
recommending just and fair solutions in accordance with Washington Principle
No. 8, and their work is generally highly respected. However, the more
recommendations that were handed down, the more the tendency of divergence
in principal matters became apparent. For example, on the question on what
constitutes a sufficient causal link between persecution and loss affect the solution
of a particular case.
257
For example: A Jewish family is faced with persecution but is able to transfer some
assets, including a painting, to third states outside the range of power of the Nazi
regime, for example to Switzerland or England. The Jewish family follows shortly
afterwards. The family is now safe but has no income or other assets. Therefore,
the painting is put up for auction and receives a market price at London or Luzern.
Today, the painting is in a museum. What is a just and fair solution in this case?
The UK Spoliation Advisory Panel’s recommendation of March 2012 had to deal
with such a case.
258
The German Advisory Commission also dealt with a
253
Beratende Kommission (Advisory Commission), see https://www.kulturgutverluste.de/
Webs/EN/AdvisoryCommission/Index.html;jsessionid=851AC7E54F9F75FED6AF8382920829E
9.m7 (25 July 2017).
254
Kunstrückgabebeirat (Art Restitution Advisory Board), http://www.provenienz-
forschung.gv.at/empfehlungen-des-beirats/?lang=en (25 July 2017).
255
Restitutiecommissie (Restitution Commission), http://www.restitutiecommissie.nl/en (25
July 2017).
256
Spoliation Advisory Panel, https://www.gov.uk/government/groups/spoliation-advisory-
panel (25 July 2017).
257
E.g. Matthias Weller, Key elements of just and fair solutions, International Symposium, Fair
and just solutions? Alternatives to litigation in Nazi looted art disputes: status quo and new
developments, Advisory Committee on the Assessment of Restitution Applications for Items of
Cultural Value and the Second World War, Peace Palace The Hague, 27 November 2012, The Hauge
2014, pp. 201 et seq.; see also recently Matthias Weller, Gedanken zur Reform der Limbach-
Kommission, in Matthias Weller et al. (Hrsg.), 10 Jahre Kunst und Recht, Jubiläumstagung der
Heidelberger Kunstrechtstage am 21. und 22. Oktober 2016, Schriften zum Kunst- und Kulturrecht,
Nomos-Verlag Baden-Baden 2017, forthcoming, pp. 37 et seq.
258
Department of Culture, Media & Sport, Spoliation Advisory Panel, Report of the Spoliation
Advisory Panel of 7 March 2012 in respect of fourteen clocks and watches now in the possession of
the British Museum, London (https://www.gov.uk/government/publications/ report-of-the-
spoliation-advisory-panel-in-respect-of-fourteen-clocks-and-watches-now-in-the-possession-of-
the-british-museum-london, 25 July 2017).
European Added Value Assessment
94
comparable case in its first recommendation of January 2005.
259
Comparing the two
recommendations, two quite different solutions emerge:
The UK Spoliation Advisory Panel had to decide in respect to fourteen clocks and
watches now in the possession of the British Museum. The Panel held that the sale
was a forced sale, in the sense that Nazi persecution caused the sale. Nonetheless,
the Panel considered “that the sale is at the lower end of any scale of gravity for
such sales. It is very different from those cases where valuable paintings were sold,
for example, in occupied Belgium to pay for food”. Therefore, the Panel held that
the claim is, despite the impact of the Nazi era on the claimant’s circumstances,
insufficient to justify restitution or even an ex gratia payment. Rather, the Panel
recommended displaying, alongside the objects, their history and provenance with
special reference to the claimant’s interest therein.
The German Advisory Commission had to decide the case of Julius Freund. Julius
Freund had transferred the paintings in question to Switzerland in 1933 and had
emigrated to London in 1939. He died there in 1941. In 1942 his family put up for
auction the paintings in Luzern, Switzerland, in order to make money for their
living. The German Advisory Commission recommended the restitution of the
paintings to the heirs.
Thus, there is a large distance between the two recommendations on a virtually
similar case. Such divergence puts into question both the quality of justice and
fairness of both recommendation.
Inconsistencies within the recommendation practice of one and the same
commission are even more problematic: In a recent recommendation, the German
Advisory Commission held, in the case of Alfred Flechtheim and the Art
Collection of North Rhine Westphalia (in translation):
260
“If an art dealer who was persecuted by the National Socialists puts up for
auction or sells in the regular art trade in a secure place abroad a painting,
very special circumstances would need to be present before such a sale could
be recognized as a loss due to Nazi persecution. In the case of Flechtheim
and the painting “violon et encrier” no such circumstances are established.
(...). Therefore, the Advisory Commission cannot recommend the
restitution”.
259
Beratende Kommission für die Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter,
insbesondere aus jüdischem Besitz, Erste Empfehlung, Pressemitteilung Nr. 19/05 vom 12. Januar
2005 (http://www.lostart.de/Webs/DE/Kommission/Empfehlungen.html, 25 July 2017).
260
Beratende Kommission für die Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter,
insbesondere aus jüdischem Besitz, Empfehlung zum Fall Flechtheim ./. Kunstsammlung
Nordrhein-Westfalen vom 21. März 2016, https://www.kulturgutverluste.de/Webs/DE/
BeratendeKommission/Empfehlungen/Index.html (25 July 2017).
Cross-border restitution claims of looted works of art and cultural goods
95
Compared to the earlier recommendation in the case of Julius Freund,
261
this is a
turnaround. This once again illustrates the imminent need for greater consistency
and leads directly to the following recommendation:
c. – Recommendation: (Non-binding) Restatement of Restitution Principles
In light of the large number of recommendations that have emerged from the work
of the respective commissions and panels over the years, it is clearly time to start
working on a restatement of restitution principles in order to ascertain a greater
degree of consistency. Such a restatement would collect and analyse the leading
recommendations. In addition, it would extract and carefully develop and also
supplement the respective ratio of the recommendations. This would provide the
commissions and panels with a reliable source of common thought and evaluation.
This project would be perfectly located at the European level as it would include
many (EU Member) states heavily affected by the issue, but other states outside
the EU should not be excluded. In principle, all states of the Washington
Conference as well as of the follow-up conferences and initiatives as well as all
non-governmental organisations involved in the issue should be invited to
contribute. Such a restatement could follow structurally non-binding instruments,
e.g. as . the DCFR. This should address key questions as the understanding of
“forced sale”,
262
the requirements for a sufficient causal link between persecution
and loss,
263
the relevance of post-war indemnification (in particular
compensation
264
) and many more pertinent issues. The project could be funded by
the EU under Article 167 TFEU and could possibly be conducted under the
auspices of institutions like e.g. the European Law Institute
265
or EU Member
States’ universities leading in the field of cultural property protection and/or Nazi
looted art, ideally interdisciplinary connected with provenance research expertise
in e.g. faculties of history or art history, because thorough provenance research is
the basis for each and any just and fair solution.
261
Arguably, there might be good reasons for distinguishing this case from the earlier
recommendation in the case of Julius Freund, but they were not spelled out by the Commission, see
Matthias Weller, Gedanken zur Reform der Limbach-Kommission, in Matthias Weller et al. (Hrsg.),
10 Jahre Kunst und Recht, Jubiläumstagung der Heidelberger Kunstrechtstage am 21. und 22.
Oktober 2016, Schriften zum Kunst- und Kulturrecht, Nomos-Verlag Baden-Baden 2017,
forthcoming, pp. 46 et seq.
262
See above.
263
See above.
264
See Matthias Weller, Gedanken zur Reform der Limbach-Kommission, in Matthias Weller
et al. (Hrsg.), 10 Jahre Kunst und Recht, Jubiläumstagung der Heidelberger Kunstrechtstage am 21.
und 22. Oktober 2016, Schriften zum Kunst- und Kulturrecht, Nomos-Verlag Baden-Baden 2017,
forthcoming, pp. 37 et seq.
265
European Law Institute, http://www.europeanlawinstitute.eu (25 July 2017).
European Added Value Assessment
96
VI. – Complementary Measures
1. – Cross-linking provenance research amongst local and national
institutions and entities
To a large extent, provenance research is conducted locally, in particular at public
museums and comparable institutions and entities that endorsed the Washington
Principles.
266
In addition, many art dealers and auction houses conduct
provenance research for the preparation of sales and auctions. And many national
institutions are building up databases, or have since established them.
In Germany, for example, the leading institution is the German Lost Art
Foundation (Deutsches Zentrum für Kulturgutverluste) in Magdeburg, which
holds extensive data bases that document cultural assets which were displaced or
relocated as a result of the events of World War II, or – in the case of Jewish
ownership – items that were illegally confiscated by the Nazis under threat of
266
See e.g. ICOM, Code of Ethics for Museums 196/2004, http://icom.museum/fileadmin/
user_upload/pdf/Codes/code_ethics2013_eng.pdf (26 July 2017), at p. 21, Glossary, sub
“provenance”: “the full history and ownership of an item from the time of its discovery or creation
to the present day, through which authenticity and ownership are determined.” Principle 2.3 on
provenance research in the course of acquisitions provides: ”Every effort must be made before
acquisition to ensure that any object or specimen offered for purchase, gift, loan, bequest, or
exchange has not been illegally obtained in, or exported from its country of origin or any
intermediate country in which it might have been owned legally (including the museum’s own
country). Due diligence in this regard should establish the full history of the item since discovery or
production.”
KEY FINDINGS
The EU could support the cross-linking of provenance research amongst local
and national institutions and initiatives in order to increase the effects of
existing provenance research. In this respect, the EU should fund research on
data protection law in respect to the chances and limits of exchange and/or
central collecting of provenance data.
A particularly effective tool in this regard is a common cataloguing system
based on the collection of the aforementioned data. In particular, such a
system could generate object-IDs and thus contribute to setting market
standards.
The EU could support existing general mechanisms for alternative dispute
resolution. Ideally, the EU should set up a specific alternative dispute
resolution institution for dealing with contested cultural property.
The EU could consider establishing an EU Agency on the Protection of
Cultural Property.
Cross-border restitution claims of looted works of art and cultural goods
97
persecution.
267
Additionally, The Foundation is setting up projects on databases on
sales of art works from 1933 to 1945 based on general data from art traders. Also,
databases sponsored by the Foundation, displaying and connecting data from
former provenance research reports, are currently being set up. A complementary
project has been recently set up by the University Library of the University of
Heidelberg; “German Sales”, collecting data of art auctions from 1933 to 1945.
268
The database covers more than 3.200 indexed and digitized auction catalogues,
published between 1930 and 1945 in Germany, Switzerland and Austria.
269
In other
Member States similar local and national projects have been founded.
270
Finally,
organizations such as Interpol
271
or the (private) Art Loss Register
272
established
databases on stolen art in general.
Against this background, it appears fair to state that much effort has been, is
currently and will be undertaken in the future to increase transparency and
documentation on all levels of the market and for all actors in the field. However,
the impact of these efforts could be boosted if the provenance data on art works
and cultural property could be exchanged as freely as possible, in particular cross-
border,
273
and/or ideally collected by an EU-wide meta-database. Since the
identity of previous individual owners as well as sellers is an integral part of any
provenance research, in many cases data protection law issues arise. Thus, the EU
should fund research on the impact of data protection law on provenance research
data exchange and, as necessary, consider special rules facilitating data exchange
in this area. Ideally, the EU itself should consider setting up a meta-database
collecting all data established on the provenance of cultural property. Of course,
267
See https://www.kulturgutverluste.de/Webs/DE/Datenbanken/Index.html;jsessionid=
941F6C0987D3F09ECA58D8F3D5D7537E.m7 (26 July 2017).
268
On this data base see e.g. the report by the Director of the Heidelberg University Library
Veit Probst, German Sales 1930 – 1945: Auktionskataloge als neue Quellenbasis für die
Provenienzforschung, in Matthias Weller et al. (eds.), Raub – Beute – Diebstahl, Tagungsband des
Sechsten Heidelberger Kunstrechtstags am 28. und 29. September 2012, Schriften zum Kunst- und
Kulturrecht Vol. 17, Baden-Baden 2013, pp. 113 et seq.
269
See http://digi.ub.uni-heidelberg.de/en/sammlungen/artsales.html (26 July 2017).
270
See Marc-André Renold, Cross-border restitution claims of art looted in armed conflicts
and wars and alternatives to court litigations, Study commissioned and supervised by the
European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the
request of the JURI Committee, May 2016, pp. 33 et seq. with further details on provenance
research initiatives and national projects and databases in, inter alia, e.g. Switzerland, France, the
Netherlands and the UK.
271
See above and once more https://www.interpol.int/Crime-areas/Works-of-art/Works-of-art
(26 July 2017).
272
See above and once more http://www.artloss.com/en (26 July 2017).
273
There are some ongoing efforts to connect initiatives internationally, see e.g. the contacts
of the German Lost Art Foundation (Deutsches Zentrum für Kulturgutverluste) in Magdeburg with
the French Commission pour l'indemnisation des victimes de spoliations intervenues du fait des
législations antisémites en vigueur pendant l'Occupation https://www.kulturgutverluste.de/ Content/
02_Aktuelles/DE/Meldungen/2017/Mai/17-05-15_Auslandsreise-Vorstand.html?nn= 103256 (26
July 2017).
European Added Value Assessment
98
the interests of individual owners for privacy need to be adequately taken into
account.
2. – Common Cataloguing System / Object IDs
On the basis of this data, a common cataloguing system could be generated, which
would make it possible to generate standardised object IDs. Valuable analysis and
suggestions have been put forward on this international standard for the
description of cultural objects, including a picture of the object.
274
This standard,
initially developed by the Getty Trust and now held under the auspices of the
International Council of Museums (ICOM),
275
is recommended by “major law
enforcement agencies, including the FBI, Scotland Yard, Interpol, UNESCO,
museums, cultural heritage organisations, art trade and art appraisal
organisations, and insurance companies”.
276
The Object ID provides for information on (1) the type of object, (2) the materials
and techniques, (3) the measurements, (4) the inscriptions and markings, (5)
distinguishing features, (6) the title, (7) the subject, (8) the date or period, (9) the
maker. Additionally, it is recommended to add a short description of the object
and to keep these details in a secure place.
“It is therefore a supplement to documentation on a cultural good, aimed
at all users. Its use is in no way restricted to a single target group and may
easily be adopted by an individual collector or owner of a stately home
with period furniture, a museum or a cultural organization”.
277
It would be highly recommended to further establish an object ID as a market
standard. This would influence the due diligence standards and duties of care of
all market actors positively.
278
Over time, good faith could no longer be established
without receiving a valid Object ID certifying an impeccable provenance.
Thus, the EU should endorse and support the object IDs, as developed and
promoted by ICOM and other organizations as the market standard within the
entire Internal Market.
274
CECOJI-CNRS, Study on preventing and fighting illicit trafficking in cultural goods in the
European Union, October 2011, at pp. 61 et seq.
275
See http://icom.museum/programmes/fighting-illicit-traffic/object-id (26 July 2017):
”ICOM holds a license to promote the use of this standard among museum professionals. In
collaboration with UNESCO and INTERPOL, ICOM also organises workshops on its
implementation to train government representatives and police and customs agents. INTERPOL has
included the Object ID standard in its stolen objects database.”
276
http://archives.icom.museum/object-id/about.html (26 July 2017).
277
CECOJI-CNRS, Study on preventing and fighting illicit trafficking in cultural goods in the
European Union, October 2011, at pp. 61 et seq.
278
Op.cit., at p. 263.
Cross-border restitution claims of looted works of art and cultural goods
99
3. – Alternative Dispute Resolution
It has been demonstrated elsewhere that despite all legislative initiatives, there will
always remain certain drawbacks of court proceedings on contested cultural
property
279
- potentially lengthy proceedings, sometimes very costly proceedings,
frequently very complex factual and legal scenarios, sometimes a lack of expertise
on the restitution law of cultural property. At the same time, alternative dispute
resolution mechanisms generally appear to be established to a sufficient degree,
and are in fact used occasionally in the resolution of disputes about contested
cultural property.
280
However, amongst arbitrators, mediators, and comparable functions as well as
amongst party representatives, expertise in the special field of the restitution of
cultural property and in particular Nazi looted art should be increased. This could
be achieved e.g. by educational programs affiliated with leading Universities in
EU Member States.
Furthermore, specialised units for organizing and providing alternative dispute
resolution in the field of contested cultural property should be established and/or
further developed. For example, there appears to be no visible specialised
expertise in the field with leading arbitration institutions, such as the German
Institution for Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit), or the
International Chamber of Commerce (ICC), as opposed to other special areas such
as sports law.
Thus, the EU should support existing general mechanisms for alternative dispute
resolution. Ideally, the EU should set up a specific alternative dispute resolution
institution for dealing with contested cultural property, and this institution could
be part of a larger unit, namely an EU Agency on Cultural Property Protection:
4. – EU Agency on Cultural Property Protection
It has been suggested elsewhere to establish a cross-cutting coordination
department at European level:
281
“Proper coordination of the various types of action pursued at international,
European and Member-State levels is a major area of work, as has been
stressed by all the stakeholders surveyed. Developing European expertise in
this field entails setting up a cross-cutting department on a permanent basis
(a number of the Commission’s Directorates General may be involved in
279
See Marc-André Renold, Cross-border restitution claims of art looted in armed conflicts
and wars and alternatives to court litigations, Study commissioned and supervised by the European
Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request
of the JURI Committee, May 2016, p. 35 et seq.
280
Op.cit., pp. 35 et seq.
281
CECOJI-CNRS, Study on preventing and fighting illicit trafficking in cultural goods in the
European Union, October 2011, at p. 233.
European Added Value Assessment
100
combating trafficking in cultural goods: Home Affairs, Education and
Culture, Enterprise and Industry, Taxation and Customs Union, and Internal
Market and Services). This department might be given multiple
responsibilities and take Article 74 TFEU (administrative cooperation) as its
legal basis. Its object would be to foster the emergence of a common culture
and create a genuine network by facilitating contact between the persons and
services concerned and developing mutual trust.”
As has been rightly pointed out by the authors of this Study,
282
European Union
law provided for a committee in Article 8 of Council Regulation No. 116/2009
283
and Article 17 of Council Directive 93/7/EEC.
284
However, as Recital 21 of
Directive 2014/60/EU
285
explains:
“Since the tasks of the committee set up by Regulation (EC) No 116/2009 are
rendered obsolete by the deletion of the Annex to Directive 93/7/EEC,
references to that committee should be deleted accordingly. However, in
order to maintain the platform for the exchange of experience and good
practices on the implementation of this Directive among Member States, the
Commission should set up an expert group, composed of experts from the
Member States' central authorities responsible for the implementation of this
Directive, which should be involved, inter alia, in the process of customising
a module of the IMI system for cultural objects”.
286
This expert group could be a part of the suggested cross-cutting coordination
department, or potentially even of an EU Agency on Cultural Property Protection.
As was explained by the authors of the aforementioned Study, such a department
or self-standing Agency could, inter alia, advise Member States on questions
related to trafficking in cultural goods.
287
It could also establish a coordinated
approach in this matter,
288
collect and centralise the results of provenance research
projects, and connect and link local and/or national data bases.
289
Further, it could
282
Op.cit., at p. 234.
283
Council Regulation No. 116/2009 of 18 December 2008 Regarding the Export of Cultural
Property.
284
Council Directive 93/7/EEC of 15 March 1993 regarding the Restitution of Cultural
Property Unlawfully removed from the Territory of a Member State.
285
Council Directive 2014/60/EU of 15 May 2014 on the return of cultural objects unlawfully
removed from the territory of a Member State and amending Regulation (EU) No 1024/2012
(Recast).
286
For further information see e.g. Olgierd Jakubowski, The Internal Market Information
System (IMI) on the Return of Cultural Objects – Its Principles, Application, and Evaluation of Its
Effectiveness for the Protection of Cultural Heritage (“IMI Study”), http://heuright.eu/wp-
content/uploads/2017/01/olgierd_ jakubowski_imi-study2016_heuright.pdf (26 July 2017).
287
CECOJI-CNRS, Study on preventing and fighting illicit trafficking in cultural goods in the
European Union, October 2011, at p. 234.
288
Op.cit, at. p. 235
289
See above.
Cross-border restitution claims of looted works of art and cultural goods
101
issue object IDs (if these were to be introduced)
290
, it could offer a meta-website
collecting all other relevant website and internet resources,
291
and finally it could
act as the body providing alternative dispute settlement(either as the body charged
directly with dispute settlement, or with facilitating the setting up and
management of dispute resolution procedures).
290
See above.
291
Op.cit., at p. 235.
102
Chapter 4 – European Added Value by Proposed Measures
By establishing or supporting an integrated approach, the legislative and
complementary measures on the level of private law, private international law and
civil procedure proposed above will provide for substantial European added value
(the following points 1 to 4). Furthermore, they will form a necessary counterpart
of private enforcement for the protection of cultural property under public
international, administrative and criminal law:
(1) a high level of protection for cultural property within the internal market,
thereby setting a global bench mark for regional economic integration
communities worldwide in pushing back illicit trade with cultural property, in
particular cultural property looted and/or illegally excavated and/or exports
from crisis areas and/or in war times by an improved and harmonized legal
setting for claimants, including foreign states,
(2) a level playing field and best practice market standard for a legal trade in
cultural property, relying primarily on transparency and information on all levels
of legal relations of private law,
(3) a significant contribution on the policies concerning understanding
Europe’s history, in particular from 1933 to 1945, by creating a legal framework
that supports awareness about the history and provenance as well as each
individual’s historical responsibility and thereby steps towards just and fair
solutions,
(4) public access to cultural property and works of art by improving the
mobility of collections across the borders within the internal market.
Cross-border restitution claims of looted works of art and cultural goods
103
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sovereign immunity set forth in section 1605(a)(3) of such title (“Foreign Cultural
Exchange Jurisdictional Immunity Clarification Act”), H.R. 4292, 113th Congress, 2nd
Session, 25 March 2014.
Bundesregierung (Germany), Entwurf eines Gesetzes zu dem Übereinkommen vom 14.
November 1970 über Maßnahmen zum Verbot und zur Verhütung der rechtswidrigen
Einfuhr, Ausfuhr und Übereignung von Kulturgut, BT-Drucks. 16/1372 of 4 May 2006.
Bundesregierung (Germany), Bericht über die Auswirkungen des Gesetzes zur
Ausführung des UNESCO-Übereinkommens vom 14. November 1970 über Maßnahmen
zum Verbot und zur Verhütung der rechtswidrigen Einfuhr, Ausfuhr und Übereignung
European Added Value Assessment
110
von Kulturgut (Ausführungsgesetz zum Kulturgutübereinkommen) und den Schutz von
Kulturgut vor Abwanderung ins Ausland (Bericht der Bundesregierung),
https://www.bundesregierung.de/ Content/DE/_Anlagen/BKM/2013-04-24-bericht-
kulturgutschutz.pdf?__ blob=publicationFile&v=2.
Bundestag, Schriftliche Fragen mit den in der Woche vom 12. Juni 2017 eingegangenen
Antworten der Bundesregierung, http://dipbt.bundestag. de/dip21/btd/
18/127/1812750.pdf (21 July 2017).
Committee of Legal Advisers on Public International Law (CAHDI), Questionnaire on
“Immunity of State owned cultural property on loan”, 47th meeting, Strasbourg, 20-21
March 2014, CAHDI (2014) 2.
Committee of Ministers, 127th Session (Nicosia, 19 May 2017), Council of Europe
Convention on Offences relating to Cultural Property, Explanatory Report
https://search.coe.int/cm/Pages/result_details. aspx?ObjectId=0900001680704b 33 (17
July 2017).
Conclusions of the Council and of the Representatives of the Governments of the
Member States, meeting within the Council, on a Work Plan for Culture (2015-2018),
2014/C 463/02, O.J. C 463/4 of 23.12.2014, Annex I: Priorities for the Work Plan for
Culture 2015-2018, Priority area D: Promotion of cultural diversity, culture in the EU
external relations and mobility
Department of Culture, Media & Sport, Spoliation Advisory Panel, Report of the
Spoliation Advisory Panel of 7 March 2012 in respect of fourteen clocks and watches now
in the possession of the British Museum, London
(https://www.gov.uk/government/publications/report-of-the-spoliation-advisory-
panel-in-respect-of-fourteen-clocks-and-watches-now-in-the-possession-of-the-british-
museum-london, 25 July 2017).
Eidgenössisches Departement für Auswärtige Angelegenheiten, Information vom 16.
November 2005, http://www.admin.ch/cp/d/437b6673_1@ fwsrvg.html.
European Commission, Commission Staff Working Document Impact Assessment
accompanying the document “Proposal for a Regulation of the European Parliament and
of the Council on the import of cultural goods, SWD(2017) 262 final, of 13 July 2017.
European Commission, Fourth report on the application of Council Directive 93/7/EEC
on the return of cultural objects unlawfully removed from the territory of a Member
State, COM(2013) 310.
European Commission, Proposal for a Regulation of the European Parliament and of the
Council on the import of cultural goods, COM(2017) 375 final, 13 July 2017.
European Commission, Proposal for a Regulation of the European Parliament and of the
Council on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters (Recast) of 14 December 2010, COM(2010) 748 final.
European Parliament, Committee on Culture, Amendments 33-77, Draft Report Marie-
Christine Vergiat, The return of cultural objects unlawfully removed from the territory of
Cross-border restitution claims of looted works of art and cultural goods
111
a Member State (recast), Proposal for a directive COM (2013) 0311 – C7-0147/2013 –
2013/0162 (COD).
European Parliament, Committee on Legal Affairs and the Internal Market, Rapporteur:
Willy C.E.H. De Clercq, Report of 26 November 2003, on a legal framework for free
movement within the internal market of goods whose ownership is likely to be contested
(2002/2114(INI)).
Gesetzentwurf zum Ausschluss der Verjährung von Herausgabeansprüchen bei
abhanden gekommenen Sachen, insbesondere bei in der NS-Zeit entzogenem Kulturgut
(Kulturgut-Rückgewähr-Gesetz - KRG).
Parliamentary Assembly, Report of the Committee on Culture and Education,
Rapporteur: Emanuelis Zingeris; Text adopted by the Standing Committee, acting on
behalf of the Assembly, on 4 November 1999.
U.S. Department of State, Washington Conference Principles on Nazi-Confiscated Art,
https://www.state.gov/p/eur/rt/hlcst/270431.htm (25 July 2017).
Vilnius International Forum on Holocaust Era Looted Cultural Assets, 3 to 5 October
2000, Declaration of the Vilnius International Forum on Holocaust-Era Looted Cultural
Assets, http://www.lootedartcommission.com/ vilnius-forum (25 July 2017).
C. Treaties/Conventions
Convention on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters of Lugano of 30 October 2007 (”Lugano Convention”).
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property of 14 November 1970.
Inter-Allied Declaration against Acts of Dispossession committed in Territories under
Enemy Occupation and Control of 5 January 1943.
UNCITRAL Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, New York, 10 June 1958.
UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Rome, 24 June
1995.
United Nations Convention on Jurisdictional Immunities of States and Their Property,
New York, 2 December 2004 (not yet in force).
D. EU instruments
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters (recast) (“Brussels Ibis Regulation”).
Regulation (EC) No. 116/2009 of 18 December 2008 Regarding the Export of Cultural
Property.
Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on
economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96.
European Added Value Assessment
112
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (”Brussels I Regulation”).
Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on
the return of cultural objects unlawfully removed from the territory of a Member State
and amending Regulation (EU) No 1024/2012 (Recast).
Directive 93/7/EEC of 15 March 1993 regarding the Restitution of Cultural Property
Unlawfully removed from the Territory of a Member State.
Decision 2013/760/CFSP of 13 December 2013 amending Decision 2013/255/CFSP
concerning restrictive measures against Syria.
E. National legislation
22 U.S.C. Section 2459 (USA): Immunity from seizure under judicial process of cultural
objects imported for temporary exhibition or display.
Arts and Cultural Affairs Law, Chapter 11-C, Article 12: Artist-Art Merchant
Relationships (New York).
Bundesgesetz über den internationalen Kulturgütertransfer (Kulturgüter-transfergesetz,
KGTG, Schweiz) of 20 June 2003.
Bundesgesetz über die vorübergehende sachliche Immunität von Kulturgut-Leihgaben
zum Zweck der öffentlichen Ausstellung (Germany), BGBl. I Nr. 133/2003, i.d.F. v. 2006,
BGBl. I Nr. 65/2006.
Code of Civil Procedure, Book IV Execution of Judgments, Title II Compulsory
Execution, Chapter I Preliminary Provisions, Division III Exemptions from Seizure,
R.S.Q., chapter 25 (Quebec, Canada).
Foreign Cultural Exchange Jurisdictional Immunity Clarification Act 2016 (USA), H.R.
6477 (114th).
Foreign Cultural Property Immunity Act, R.S.A. 2000, Chapter F-17 (Alberta, Canada).
Foreign Cultural Objects Immunity From Seizure Act, R.S.M. 1987, c. F140 s. 1 (Manitoba,
Canada).
Foreign Cultural Objects Immunity from Seizure Act, S.O. 1990, Chapter F.23, s. 1
(Ontario, Canada).
Gesetz über die vorübergehende sachliche Immunität von Kulturgut (Kulturgut-
Immunitäts-Gesetz; KGIG, Liechtenstein) v. 23.11.2007, LieGBl. 2008 Nr. 9 v. 15.01.2008.
Holocaust Expropriated Art Recovery Act (”HEAR Act”, USA).
Kulturgutschutzgesetz (KGSG, Germany) of 31 Juli 2016 (BGBl. I S. 1914), modified by
Article 6 para 13 of the Law of 13 April 2017 (BGBl. I S. 872).´
Loan Of Cultural Properties (Jurisdiction Restriction) Law (Israel), 5767-2007, enacted by
the Knesset on 3 Adar 5767 (21 February 2007).
Cross-border restitution claims of looted works of art and cultural goods
113
Loi de 14 Juin 2004 (Belgium) modifiant le Code judiciaire en vue d'instituer une
immunité d'exécution à l'égard des biens culturels étrangers exposés publiquement en
Belgique.
Tribunals, Courts and Enforcement Act 2007 (UK), Part 6 (Protection of Cultural Objects
on Loan).
US Military Law No. 59 / Gesetz Nr. 59 der Militärregierung Deutschland
(Rückerstattungsgesetz) vom 10. November 1947, Amtsblatt der Militärregierung
Deutschland – Amerikanisches Kontrollgebiet, Ausgabe G, S. 1, Military Government
Gazette, reprinted in 42 Am.J.Int’l.L. 12 et seq.
F. Cases
Cassirer v. Thyssen-Bornemisza Collection Foundation, Case No. CV 05-3459-JFW-E
(C.D. Cal. June 4, 2015) [Docket No. 315].
Cassirer v. Thyssen-Bornemisza Collection Foundation (10 July 2017, 9th Cir.).
County Court of the Inner City of Vienna (Bezirksgericht Innere Stadt Wien), decision of
16 May 2011.
ECJ, Case C-300/89, Commission v Council (Titanium Dioxide), EU:C:1991:244.
ECJ, Case C-107/10 – Iztok 3 AD v. Direktor ‘Obzhalvane i upravlenie na izpalnenieto’
NAP, EU:C:2011:298
ECtHR, judgment of 31 May 2011, Application No. 46286/09, 53727/08, 54486/08,
56001/08, Maggio and others v. Italy.
ECtHR, judgment of 7 June 2011, Application No. 43549/08, 6107/09, 5087/09, Agrati
and others v. Italy.
ECtHR, judgment of 27 September 2011, Application No. 7359/06, Agurdino SRL v.
Moldova.
ECtHR, judgment of 3 July 1997, Application no 17849/91, Pressos Compania Naviera SA
and others v. Belgium.
Federal Court of Justice (Bundesgerichtshof, BGH), judgment of 16 March 2012, docket
no. V ZR 279/10, Neue Juristische Wochenschrift (NJW) 2012, pp. 1796 et seq. – Hans
Sachs.
Federal Court of Justice (Bundesgerichtshof, BGH), judgment of 1 October 2009, docket
no. VII ZB 37/08, Recht der internationalen Wirtschaft (RIW) 2010, p. 72.
Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) in its decision of 12
October 2011 − 2 BvR 2984/09, 2 BvR 3057/09, 2 BvR 1842/10, Neue Juristische
Wochenschrift (NJW) 2012, pp. 293 et seq – Russia House.
Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd., [2007] EWCA
Civ 1374.
Islamic Republic of Iran v. The Barakat Galleries Ltd., [2008] 1 All E.R. 1177.
European Added Value Assessment
114
Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005), denying mot. to
dismiss, No. 05-5145, 2006 U.S. App. LEXIS 615 (D.C. Cir. 2006) (dismissing the case for
lack of appellate jurisdiction), motion to dismiss on different grounds denied, 517 F.
Supp. 2d 322 (D.D.C. 2007).
State Court for Civil Matters Vienna (Landesgericht für Zivilrechtssachen Wien), decision
of 29 October 2012, docket no. GZ 46 R 395/11w, 46 R 396/11t-50.
Supreme Court (Oberster Gerichtshof, OGH), decision of 16 April 2013 – 3 Ob 39/13a.
Supreme Court (Oberster Gerichtshof, OGH), decision of 11 July 2012 – 3 Ob 18/12m.
Toledo Museum of Art v. Ullin, 477 F.Supp. 2d 802 (N.D Ohio 2006).
Upper Regional Court (Kammergericht) of Berlin, judgment of 16 October 2006, docket
no. 10 U 286/05, Neue Juristische Wochenschrift (NJW) 2007, pp. 705 et seq.
Upper Regional Court (Kammergericht) Berlin, decision of 4 February 2010, docket no. 13
O 48/10 – Kingdom of Qatna.
Upper Regional Court (Oberlandesgericht) Cologne, judgment of 8 July 2016, docket no. 1
U 36/13, Zeitschrift für offene Vermögensfragen (ZOV) 2016, pp. 102 et seq.
Upper Regional Court (Oberlandesgericht) Schleswig-Holstein, 10 February 1989, Neue
Juristische Wochenschrift (NJW) 1989, p. 3105 – Greek coins.
Winkworth v. Christies Manson & Woods Ltd [1980] Ch. 496.
