Legal provisions of COM(2013)311 - Return of cultural objects unlawfully removed from the territory of a Member State (Recast)

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2013)311 - Return of cultural objects unlawfully removed from the territory of a Member State (Recast).
document COM(2013)311 EN
date May 15, 2014

Contents

Article 1

This Directive applies to the return of cultural objects classified or defined by a Member State as being among national treasures, as referred to in point (1) of Article 2, which have been unlawfully removed from the territory of that Member State.

Article 2

For the purposes of this Directive, the following definitions apply:

(1)‘cultural object’ means 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;

(2)‘unlawfully removed from the territory of a Member State’ means:

(a)removed from the territory of a Member State in breach of its rules on the protection of national treasures or in breach of Regulation (EC) No 116/2009; or

(b)not returned at the end of a period of lawful temporary removal or any breach of another condition governing such temporary removal;

(3)‘requesting Member State’ means the Member State from whose territory the cultural object has been unlawfully removed;

(4)‘requested Member State’ means the Member State in whose territory a cultural object, which was unlawfully removed from the territory of another Member State, is located;

(5)‘return’ means the physical return of the cultural object to the territory of the requesting Member State;

(6)‘possessor’ means the person physically holding the cultural object on his own account;

(7)‘holder’ means the person physically holding the cultural object for third parties;

(8)‘public collections’ means collections, defined as public in accordance with the legislation of a Member State, which are the property of that Member State, of a local or regional authority within that Member State or of an institution situated in the territory of that Member State, such institution being the property of, or significantly financed by, that Member State or local or regional authority.

Article 3

Cultural objects which have been unlawfully removed from the territory of a Member State shall be returned in accordance with the procedure and in the circumstances provided for in this Directive.

Article 4

Each Member State shall appoint one or more central authorities to carry out the tasks provided for in this Directive.

Member States shall inform the Commission of all the central authorities they appoint pursuant to this Article.

The Commission shall publish a list of those central authorities and any changes concerning them in the C series of the Official Journal of the European Union.

Article 5

Member States' central authorities shall cooperate and promote consultation between the Member States' competent national authorities. The latter shall in particular:

(1)upon application by the requesting Member State, seek a specified cultural object which has been unlawfully removed from its territory, identifying the possessor and/or holder. The application must include all information needed to facilitate the search, with particular reference to the actual or presumed location of the object;

(2)notify the Member States concerned, where a cultural object is found in their own territory and there are reasonable grounds for believing that it has been unlawfully removed from the territory of another Member State;

(3)enable the competent authorities of the requesting Member State to check that the object in question is a cultural object, provided that the check is made within six months of the notification provided for in point (2). If it is not made within the stipulated period, points (4) and (5) shall cease to apply;

(4)take any necessary measures, in cooperation with the Member State concerned, for the physical preservation of the cultural object;

(5)prevent, by the necessary interim measures, any action to evade the return procedure;

(6)act as intermediary between the possessor and/or holder and the requesting Member State with regard to return. To that end, the competent authorities of the requested Member State may, without prejudice to Article 6, first facilitate the implementation of an arbitration procedure, in accordance with the national legislation of the requested Member State and provided that the requesting Member State and the possessor or holder give their formal approval.

In order to cooperate and consult with each other, the central authorities of the Member States shall use a module of the Internal Market Information System (‘IMI’) established by Regulation (EU) No 1024/2012 specifically customised for cultural objects. They may also use the IMI to disseminate relevant case-related information concerning cultural objects which have been stolen or unlawfully removed from their territory. The Member States shall decide on the use of the IMI by other competent authorities for the purposes of this Directive.

Article 6

The requesting Member State may initiate, before the competent court in the requested Member State, proceedings against the possessor or, failing him, the holder, with the aim of securing the return of a cultural object which has been unlawfully removed from its territory.

Proceedings may be brought only where the document initiating them is accompanied by:

(a)a document describing the object covered by the request and stating that it is a cultural object;

(b)a declaration by the competent authorities of the requesting Member State that the cultural object has been unlawfully removed from its territory.

Article 7

The competent central authority of the requesting Member State shall forthwith inform the competent central authority of the requested Member State that proceedings have been initiated with the aim of securing the return of the object in question.

The competent central authority of the requested Member State shall forthwith inform the central authorities of the other Member States.

The exchange of information shall be conducted using the IMI in accordance with the applicable legal provisions on the protection of personal data and privacy, without prejudice to the possibility for the competent central authorities to use other means of communication in addition to the IMI.

Article 8

1. Member States shall provide in their legislation that return proceedings under this Directive may not be brought more than three years after the competent central authority of the requesting Member State became aware of the location of the cultural object and of the identity of its possessor or holder.

Such proceedings may, in any event, not be brought more than 30 years after the object was unlawfully removed from the territory of the requesting Member State.

However, in the case of objects forming part of public collections, defined in point (8) of Article 2, and objects belonging to inventories of ecclesiastical or other religious institutions in the Member States where they are subject to special protection arrangements under national law, return proceedings shall be subject to a time-limit of 75 years, except in Member States where proceedings are not subject to a time-limit or in the case of bilateral agreements between Member States providing for a period exceeding 75 years.

2. Return proceedings may not be brought if removal of the cultural object from the national territory of the requesting Member State is no longer unlawful at the time when they are to be initiated.

Article 9

Save as otherwise provided in Articles 8 and 14, the competent court shall order the return of the cultural object in question where it is found to be a cultural object within the meaning of point (1) of Article 2 and to have been removed unlawfully from national territory.

Article 10

Where return of the object is ordered, the competent court in the requested Member State shall award the possessor fair compensation according to the circumstances of the case, provided that the possessor demonstrates that he exercised due care and attention in acquiring the object.

In determining whether the possessor exercised due care and attention, consideration shall be given to all the circumstances of the acquisition, in particular the documentation on the object's provenance, the authorisations for removal required under the law of the requesting Member State, the character of the parties, the price paid, whether the possessor consulted any accessible register of stolen cultural objects and any relevant information which he could reasonably have obtained, or took any other step which a reasonable person would have taken in the circumstances.

In the case of a donation or succession, the possessor shall not be in a more favourable position than the person from whom he acquired the object by those means.

The requesting Member State shall pay that compensation upon return of the object.

Article 11

Expenses incurred in implementing a decision ordering the return of a cultural object shall be borne by the requesting Member State. The same applies to the costs of the measures referred to in point (4) of Article 5.

Article 12

Payment of the fair compensation and of the expenses referred to in Articles 10 and 11 respectively shall be without prejudice to the requesting Member State's right to take action with a view to recovering those amounts from the persons responsible for the unlawful removal of the cultural object from its territory.

Article 13

Ownership of the cultural object after return shall be governed by the law of the requesting Member State.

Article 14

This Directive shall apply only to cultural objects unlawfully removed from the territory of a Member State on or after 1 January 1993.

Article 15

1. Each Member State may apply the arrangements provided for in this Directive to the return of cultural objects other than those defined in point (1) of Article 2.

2. Each Member State may apply the arrangements provided for in this Directive to requests for the return of cultural objects unlawfully removed from the territory of other Member States prior to 1 January 1993.

Article 16

This Directive shall be without prejudice to any civil or criminal proceedings that may be brought, under the national laws of the Member States, by the requesting Member State and/or the owner of a cultural object that has been stolen.

Article 17

1. By 18 December 2015 and every five years thereafter, Member States shall submit to the Commission a report on the application of this Directive.

2. Every five years the Commission shall present a report to the European Parliament, the Council and the European Economic and Social Committee, reviewing the application and effectiveness of this Directive. The report shall be accompanied, if necessary, by appropriate proposals.

Article 18

The following point shall be added to the Annex to Regulation (EU) No 1024/2012:

‘8.Directive 2014/60/EU of the European Parliament and 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 (9): Articles 5 and 7.

Article 19

1. By 18 December 2015, Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with point (1) of Article 2, point (3) of the first paragraph of Article 5, the second paragraph of Article 5, the third paragraph of Article 7, Article 8(1), the first and the second paragraphs of Article 10 and Article 17(1) of this Directive.

They shall forthwith communicate the text of those measures to the Commission.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 20

Directive 93/7/EEC, as amended by the Directives listed in Annex I, Part A, is repealed with effect from 19 December 2015, without prejudice to the obligations of Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.

Article 21

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Points (2) to (8) of Article 2, Articles 3 and 4, points (1), (2) and (4) to (6) of the first paragraph of Article 5, Article 6, the first and second paragraphs of Article 7, Article 8(2), Article 9, the third and fourth paragraphs of Article 10, and Articles 11 to 16 shall apply from 19 December 2015.

Article 22

The Directive is addressed to the Member States.