Control of the export of cultural goods
Regulation 3911/1992 was amended several times (see Regulations 2469/1996, 974/2001 and 806/20036) and was finally repealed by Regulation 116/2009 (EU Council (Council), 2009), which codified the initial Regulation and its amendments. Regulation 116/2009 (the Regulation) lays down a set of provisions to ensure that the exports of cultural goods are subject to uniform controls at the Union's external borders, thereby aiming to prevent the illegal outflow of cultural goods from the Union. Its scope encompasses 14 categories of cultural goods which are listed in its annex (archaeological objects, paintings, mosaics, engravings, lithographs, books, photographs, geographical maps, means of transport and so on). The objects listed in the Regulation are accompanied by thresholds relating to age (more than 50, 75 or 100 years) and/or financial value (from €0 to €150,000). According to the Regulation, any export of the cultural goods listed in its annex, permanent or temporary, shall be subject to the presentation of an export licence issued by the competent authorities designated by the member states (mainly customs and culture authorities). Certain archaeological objects which are not the direct product of excavations and archaeological sites may be exempted from the export licence requirement. The export licence is always granted by the competent authorities of the member state in which the cultural good to be exported was lawfully located on 1 January 1993, the date of the completion of the internal market, or, thereafter, by the competent authorities of the member state where the cultural good is located, provided that it has been lawfully removed from another member state (which may or may not be the state of origin), imported from a third country or reimported from a third country after lawful dispatch from a member state to the third country concerned. Whenever this is necessary, the authority which is competent for issuing the export licence consults the competent authority of the member state of origin of the object concerned. National authorities can refuse to issue an export licence, if, according to national legislation, the cultural object must be retained within the country (Chechi, 2014: 115). The export licence, valid throughout the Union, must be presented, together with the export declaration, to those customs offices which are authorised to complete the formalities for the export of such products. The member states are required to make provisions for penalties applicable to infringements of the provisions of the Regulation and to take all the measures which are necessary for the cooperation of the competent authorities within the context of the Regulation.
The provisions necessary for the implementation of the Regulation are laid down in European Commission (Commission) Regulation 1081/2012 (European Commission, 2012b) (which amended the preceding Commission Regulation 752/19937) and they focus mainly on the types of licence to be issued, their use and period of validity. This implementing instrument foresees three types of export licence: the standard licence (normally used for every export subject to Regulation 116/2009), the specific open licence (covering the repeated temporary export of a specific cultural good by a particular person or organisation) and the general open licence (covering any temporary export of any cultural good being part of the permanent collection of a museum or other institution).
In their assessment of the application of the Regulation (European Commission, 2000a, 2009a), the member states agreed that the Regulation managed to raise awareness among all interested parties (public authorities and private organisations alike whose activities are associated with culture) concerning the importance of protecting national cultural heritage and to standardise the documentation required at Union level for the export of cultural goods. It was not equally successful, however, in discouraging unlawful exports. As mentioned above, according to the Regulation, the export licence for cultural goods is issued by the competent authorities of the member state in which the cultural good is located after 1 January 2013, on condition that it has lawfully been dispatched from another member state (which may or may not be the country of origin). However, what normally happens is that the competent authorities are usually more interested in protecting the objects of their own national heritage and they do not request information from the member state that the object comes from in order to establish whether (or not) the object presented for export has been lawfully removed from its state of origin after 1 January 1993. As a result, the export licence in these cases is issued on the basis of incomplete, or even false (submitted by the unlawful holder/possessor) documentation. From this perspective, the export licence ends up functioning as a legitimising factor for unlawful removals of cultural goods. Both reports on the implementation of the Regulation highlight that there is an insufficient level of cooperation among the competent authorities of the member states. An overview of the number of licence applications which were refused by the competent authorities during the past 20 years shows that the main reasons for such refusal were: (a) the presentation of incomplete applications; and (b) the object to be exported was found to be a national treasure in the member state concerned. It is to be noted that only 0.3 percent of the overall number of applications were refused. It can therefore be deduced that the percentage of applications for export licences which have been rejected on the basis of the lack of documentation regarding the legality of their removal from another member state is far smaller than 0.3 percent - almost non-existent (European Commission, 2011e: 8).
Return of cultural objects unlawfully removed from the territory of a member state
As analysed above, the Regulation has a preventive orientation, aiming to protect the external borders of the Union. This means that as long as the Regulation's provisions are complied with, the national treasures of the member states will not be unlawfully exported to a third country. The Regulation, thus, may function as a safeguard for the heritage of the EU as a whole. However, given that customs checks at the internal borders of the Union have been abolished, the Regulation cannot (and clearly does not aim to) prevent the unlawful transfer of national treasures between member states.
Directive 93/7 (the Directive) is aimed at addressing the problem of illicit trafficking of national treasures within the Union by setting up a procedure that will enable the member state of origin to recover national treasures when these have been unlawfully removed from its territory. In this sense, the Directive is complementary to the Regulation. Its character is remedial as opposed to the preventive one of the Regulation. The scope of the Directive covers cultural goods which belong to the categories of its annex (these are the same as those listed in the annex of the Regulation), and they are classified as national treasures possessing artistic, historical or archaeological value in accordance with the relevant legislative/administrative procedures of the member states. National treasures which are not cultural goods within the meaning of the annex are not governed by the Directive, but by the national legislation of the member states. The only exception recognised in this respect is for cultural goods of public collections and inventories of ecclesiastical institutions. It is important to note that the Directive applies only to the restitution of cultural goods which have been unlawfully removed from the territory of a member state on or after 1 January 1993. However, member states may always extend their obligation to return cultural objects which have been unlawfully removed prior to 1993 or which are not included in the list of the annex (see Article 14(1) of the Directive).
Articles 5-12 of the Directive set up the procedure and provide for the conditions under which cultural goods are returned. In essence, the member state from the territory of which the cultural object has been unlawfully removed (the requesting member state) can initiate return proceedings before the competent court of the member state in which the cultural object is located (the requested member state). The restoring of the cultural object is ordered by the competent court provided that the object has been unlawfully removed from the requesting member state on or after 1 January 1993 and falls within the scope of the Directive. For the purposes of the Directive, 'unlawful' means the removal of a cultural good from the territory of a member state which is in breach of national legislation regarding the protection of national treasures or is in breach of the provisions of Regulation 116/2009. The non-return of a cultural object at the end of a period of temporary lawful transfer also qualifies as unlawful removal. It is important to note that the mechanisms provided for in the Directive can only be activated by the public authorities (hence, the museum or the individual having a title of ownership on the unlawfully removed object cannot initiate proceedings under the Directive).
According to Article 7(1) of the Directive, the requesting member state can only initiate court proceedings within one year after it has become aware of the location of the unlawfully removed object and of the identity of its holder/possessor. Article 9 of the Directive also provides that the possessor who has exercised due care and attention in acquiring the object may be awarded fair compensation, which is paid by the successful plaintiff-requesting member state.
Apart from introducing the return proceedings, the Directive sets out the arrangements for the administrative cooperation of the national competent authorities in issues such as: establishing the location of the cultural objects upon application by the requesting member state, notification of the discovery of cultural objects, taking of all the necessary measures for the physical preservation of the object, adoption of interim measures to prevent action to evade return proceedings, and out of court settlements.
Pursuant to Article 16 of the Directive, the Commission has adopted four reports reviewing the application of the Directive by the member states (European Commission, 2000a, 2005a, 2009a, 2013c). It appears that the Directive has had a major impact in raising awareness regarding the protection of national treasures. As a result of this, codes of good practice in the protection of cultural heritage have been adopted by relevant professional circles in the member states (European Commission, 2009a: 13). On the other hand, the national authorities responsible for the implementation of the Directive have been very critical of its effectiveness in securing the return of cultural goods unlawfully removed from the territory of a member state. They have also highlighted significant deficiencies in the administrative cooperation of the national authorities. Between 1993 and 2013, when the last report on the implementation of the Directive was submitted, only 15 return proceedings had been initiated and only seven of them were successful. This statistical data indicates that the Directive has been of very limited use. Under a different reading of the available data, one could argue in favour of the indirect effectiveness of the Directive. Sometimes, the availability of legal proceedings puts pressure in the direction of striking an out of court settlement. The number of proceedings may indeed be low, but there is a significant number of cases of objects returned because of an amicable solution. The criticisms of the member states in their reports on the implementation of the Directive focused mainly on three issues:
- (a) An unlawfully removed object classified as 'national treasure' needs to fulfil two conditions in order to fall within the scope of application of the Directive: i) it should belong to one of the 15 categories enumerated in the annex of the Directive (including archaeological objects, pictures, paintings, engravings and archives); and ii) it should pass a minimum age threshold (of 50, 75 or 100 years) and/or a minimum financial threshold (a value of €15,000, €30,000, €50,000 or €150,000). This may not always be compatible with the value judgement of the member states as to what is an important part of their cultural heritage.
- (b) The one year deadline for initiating return proceedings is too short.
- (c) The Directive provides that domestic courts award the possessor compensation provided that s/he has exercised due care and attention in acquiring the object. This provision when applied to similar situations in the different member states (whose legal systems establish due care in different ways) may lead to differing decisions. On the one hand, this is a source of ambiguity, which has a negative impact upon the effectiveness of the Directive. On the other hand, this can make the returning of an object more difficult for some member states, which may be unable to pay the high cost of compensation. As a result of the above problems, national authorities very often choose to employ the protective mechanisms of the 1970 United Nations Educational, Scientific and Cultural Organization Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property (UNESCO, 1970) and the 1995 UNIDROIT Convention on stolen or illegally exported cultural objects (UNIDROIT, 1995).
In light of the above criticisms, the Commission launched a public consultation on the necessity of the revision of the Directive in November 2011. During the period of public consultation 61.02 percent of citizens and private sector actors maintained that the Directive addresses adequately the needs of the member states as far as the return of unlawfully removed national treasures is concerned, whereas only 20.83 percent of public sector respondents thought that this was the case (European Commission, 2013c: 5).
On 30 May 2013, the Commission adopted a proposal for a Directive on the return of cultural objects unlawfully removed from the territory of a member state on or after 1 January 1993 (European
Commission, 2013d). The European Parliament and the Council, following the ordinary legislative procedure, adopted Directive 2014/60 on 15 May 2014 (European Parliament and Council, 2014a). The provisions of the new Directive, which is a recast of Directive 93/7, shall apply from 19 December 2015.
The scope of the new Directive is very broad, covering all cultural objects identified as 'national treasures possessing artistic, historic or archaeological value' under the national legislation or the administrative procedures of the member states. This means that member states are completely free to decide which objects they consider to be an important part of their cultural heritage, without being restricted by the categories listed in the annex of Directive 93/7 and the age/value thresholds associated with them. The time limit for initiating return proceedings has now been extended to three years, while the conditions for compensating the possessor who exercised due care and attention in ascertaining the legal origin of the cultural object, when acquiring it, are streamlined. Under Directive 93/7 the burden of proof for the establishment of due care and attention was governed by the legislation of the requested member state. The new Directive now clearly specifies the criteria for determining whether the possessor exercised due care and attention. Consideration is to be given to all the circumstances of the acquisition of the national treasure: the documentation for the object's provenance, the authorisations for removal required under the law of the requesting member state, the nature of the parties, the price paid, whether the possessor consulted any accessible register of stolen cultural objects or accessible agencies, and so on.
With regard to the improvement of the administrative cooperation, the new Directive provides that the exchange of information between national competent authorities will now be conducted through the Internal Market Information System (IMI). This is an IT-based information network that links up national authorities across borders, enabling them to communicate quickly with their counterparts abroad. This network, which has been already successfully used in other areas of cooperation among the member states, contains a multilingual search function that helps national authorities identify their counterparts abroad, and it uses a tracking mechanism that allows users to follow the progress of their information requests.