EUROPEAN COMMISSION Brussels, 18.11.2021 COM(2021) 705 final REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE First report on the application of 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)





REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE First report on the application of 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)

Table of Contents 1. EXECUTIVE SUMMARY 2. INTRODUCTION 3. APPLICATION OF THE DIRECTIVE 3.1. Transposition into national laws 3.2. Definition of ‘cultural objects’ – Scope ratione materiae (Article 2) a) Assessment of the categories defined as national treasures in the national legislations b) Assessment of what qualifies as ‘unlawful removal’ of cultural objects from the territory of a Member State 3.3. Definition of ‘cultural objects’ – Scope ratione temporis (Articles 14 and 15) 3.4. Due care and attention – Scope ratione personae (Article 10 and Article 13 ) 3.5. Application of the administrative procedure for the return of cultural objects a) Cooperation among competent authorities within a Member State b) Administrative cooperation among Member States – Use of Internal Market Information System (IMI) for the purpose of administrative cooperation (Article 5) 3.6. Mutual legal assistance and specific issues related to costs of judicial return proceedings (Article 6) 4. Conclusions

5. ANNEX



1.EXECUTIVE SUMMARY



This report (hereafter: ‘the report’) reviews the application and effectiveness of 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, as provided in article 17(2). It is the first report since the entry into force of the Directive and follows the four reports presented by the European Commission on the application of the former Directive 93/7/EEC (recast by the Directive 2014/60/EU), the last one covering the period from 2008 to 2011. The report covers the period from 2015 to 2020. It is based on data provided by the Member States in response to a questionnaire sent by the European Commission. This questionnaire covers several aspects of the application and efficiency of administrative and judicial cooperation in Member States in relation to unlawfully removed cultural objects. The report includes also information on the use of the Internal Market Information System (‘IMI’) for the purposes of the Directive. Overall, Member States’ responses showed the positive impact of the Directive on raising awareness among stakeholders about the protection of cultural objects in the EU and the development of art trade. Nevertheless, Member States replies also showed that the implementation the Directive offers some scope for further improvements, such as reinforcing administrative and judicial cooperation between Member States authorities and promoting a common understanding of the Directive’s provisions. 2.INTRODUCTION



Directive 2014/60/EU (hereafter: ‘the Directive’) which had to be transposed by 18 December 2015 seeks to reconcile the fundamental principle of free movement of cultural objects with the objective of the protection of national treasures in the single market. Together with Regulation (EC) No 116/2009 on the export of cultural goods and Regulation (EU) 2019/880 on the introduction and the import of cultural goods, Directive 93/7/EEC (recast by Directive 2014/60/EU) established the EU framework to prevent illicit trafficking of cultural objects in the European Union, by providing mechanisms and a procedure for restoring national treasures when these have been unlawfully removed from the territory of a Member State. While the aim of Regulation (EC) No 116/2009 is to avoid national treasures being taken out of EU territory without controls, the Directive, for its part, introduced mechanisms for administrative cooperation between national authorities and proceedings before the national courts for the return of cultural objects taken unlawfully from the territory of a Member State. Furthermore, Regulation (EU) 2019/880 aims to prohibit and prevent the import into the customs territory of the Union of cultural goods illegally exported from third countries, where they were created or discovered and sets out procedures for the legal import of cultural goods into the Union. Under article 17(1) of the Directive, Member States are required to submit to the Commission their reports on its application. To facilitate this reporting, the Commission sent in April 2020 a questionnaire agreed upon with the Commission Expert Group on the return of cultural objects. Responses from 21 Member States, 2 EFTA Member States and from the United Kingdom were received between 27 August 2020 and 29 January 2021, which were later discussed by the Expert Group. National reports on the application of the Directive, as referred to in Article 17(1) and provided through the above-referred responses, represented the basis for the first report reviewing application and effectiveness of Directive 2014/60/EU, which the Commission must provide to the European Parliament, the Council and the Economic and Social Committee, every five years, in line with Article 17(2) of the Directive. 3.APPLICATION OF THE DIRECTIVE 3.1. Transposition into national laws



The Directive is a recast of the former Directives 93/7/EEC, 96/100/EC and 2001/38/EC on the return of cultural objects. It states that, by 18 December 2015, Member States should have adopted the necessary measures to comply with its new provisions, i.e. 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. Transposition measures have been communicated by all Member States on such provisions. 3.2. Definition of ‘cultural objects’ – Scope ratione materiae (Article 2) a)Assessment of the categories defined as national treasures in the national legislations





With the recast, the Directive covers cultural objects, i.e. “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” (Article 2, point 1, of the Directive). According to Recital 9 of the Directive, it should thus cover objects of historical, paleontological, ethnographic, and numismatic interest or scientific value, whether or not they form 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. According to the majority of Member States replies to the questionnaire, the definition at EU level of the term ’cultural object’ is a significant improvement and serves the objective of strengthening the protection of cultural objects as a specific category of goods. However, mutual understanding of national definitions should be improved, so that all Member States recognise and protect each other’s protected cultural objects. Although the definition of ‘cultural objects’, as laid down in Article 2 of the Directive, is considered satisfactory by the majority of the responding Member States, some challenges remain when determining the country of origin for archaeological objects illicitly looted and removed from their sites. While unique cultural objects may be easy to identify as regards their provenance and the originating Member State, other cultural objects belonging, for instance, to civilisations that flourished over a wide geographical area or serial cultural objects (such as coins or jewellery that can be dismembered) are not as easy to identify. Indeed, such objects are not listed as missing or stolen from collections and it is rather difficult to establish their provenance as they have never been registered in museum catalogues or are claimed to belong in private collections that have never been inventoried. 10 Member States highlighted that the Directive should also cover cultural objects that have been unlawfully exported from a Member State, without the need for a specific status of the cultural object as a ‘national treasure’, as some national courts tend to give a restrictive interpretation of the category of cultural objects that could be claimed for return based on the Directive. 5 Member States did not raise the need for a common definition of terms such as ‘cultural objects’ without reference to national law, ‘antiques’, ‘archaeological objects’ at European level. 3 responses pointed out that it is preferable to refer to the harmonised definition of cultural objects by Regulation (EC) 116/2009 and Regulation (EU) 2019/880, in order to avoid encountering differences in national legislation on concepts like ‘antiques’ and ‘archaeological objects’. A general observation, deriving from Member States’ responses, is that the Directive is easily applicable to cultural objects of typically high commercial value and to cultural objects that are works of art and are registered in museums' collections or as part of other collections. Further efforts would be necessary to protect ‘national treasures’ of lesser commercial value, namely archaeological artefacts, because of their irreplaceable value for cultural history. b)Assessment of what qualifies as ‘unlawful removal’ of cultural objects from the territory of a Member State



The obligation to return, enshrined in the Directive, applies solely to cultural objects that have been unlawfully removed from the territory of a Member State. According to Article 2, point 2, of the Directive, 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”. However, almost all of the responses confirmed that national authorities in the Member States face difficulties in terms of researches and uptake when verifying the protection of national treasures laid dawn in other Member States’ legislations. Because of these difficulties cultural objects that were unlawfully removed from the territory of a Member State (within the meaning of the Directive) could be perceived as legally traded in another Member State if no requirement on provenance is imposed by national law for this purpose. These difficulties are not addressed by Article 10 of the Directive in its current wording, as it only refers to ‘provenance’ when defining the possessor's right for compensation. As online trade is growing, there is also an increasing uncertainty regarding the licit provenance of cultural goods in the single market, which is a barrier for the sustainable growth of the art market in the EU. Furthermore, none of the reports sent by Member States on the application of the Directive denies the need to establish a due diligence obligation for art dealers at EU level. At least 8 Member States already adopted specific legal provisions on duty of care for dealers in art and antiquities and mandatory due diligence requirements for the placing on the market of cultural goods. 4 Member States consider that EU mandatory due diligent standards for art traders would advance efforts to strengthen transparency and enhance the level playing field in the art market, provided that these standards are based on the highest existing requirements, so as not to reduce the level already achieved in national legislation. 13 Member States also underlined that the pivot to strengthen due diligence for professionals in the art market with an EU Code of ethics is the need to monitor the application of this Code and to provide with specific sanctions in case of infringements. Taking into account these aspects, a European Commission study published in 2019 on illicit trade in cultural goods in Europe includes detailed analysis and recommendations to strengthen researches on provenance and due diligence for art dealers and to promote a legal, responsible and ethical trade of cultural goods as a specific category of goods. When presented in October 2019 to the Members of the Directive’s Expert Group, the study was positively perceived by Member States’ Delegates. 3.3. Definition of ‘cultural objects’ – Scope ratione temporis (Articles 14 and 15)



The Directive applies to cultural objects unlawfully removed from the territory of a Member State on or after 1 January 1993 (Article 14). Article 15(2) leaves the possibility open to the Member States to extend its scope to requests related to cultural objects unlawfully removed prior to that date without establishing a violation of general principle of legal certainty. To date, only 3 Member States included in their legislation the extension of the time scope, 2 of them without any temporal limitation subject to national procedural rules and one with time limit of 1 January 1960. A specific case applies to a Member State, which restored its statehood in 1990 considering to extend the return obligation beyond the time scope of the Directive in specific cases but without an obligation prior to the existence of the State. Furthermore, one Member State is in favour of a general rule at EU level to delete reference to 1993 as the cut-off date, especially with regard to unlawfully excavated archaeological objects that were illegally exported. For the remaining 19 responses, Member States indicated that they are not planning an extension of the time scope, while highlighting that, in the absence of a reciprocity clause, the unilateral extension by a Member State of the material and temporal scope of the Directive for the sole benefit of the other Member States would not be a relevant route. At the most, exceptions on a case-by-case basis can be considered also taking into account international Conventions that provide adequate framework. Constitutional prohibition of retroactivity seems to be the main obstacle for a general extension of the time scope of the return obligation. A number of Member States confirmed their endeavour to find a mutually agreed solution in all individual cases where proof of unlawful removal is provided even before the cut-off date.

The main obstacle Member States encountered with the time scope of the Directive is the burden of proof of the time of transfer. In the current wording, the burden of proof lies with the requesting Member State. It is precisely in cases of excavation or robbery that the restitution claim is often hindered by the fact that the requesting State is unable to provide any evidence as to the time of excavation and export from its territory. Uniform procedural standards are considered in the majority of the responses as the relevant way to overcome the current difficulties related to the burden of proof and to provide with equal protection for cultural objects in all Member States. 3.4. Due care and attention – Scope ratione personae (Article 10 and Article 13)



The Directive states in Article 13 that the ownership of a returned object shall be governed by the law of the requesting Member State. The mechanisms provided in the Directive can only be applied by the public authorities of the requesting Member State. In compliance with article 345 TFEU, the Directive does not deal with the ownership regime in Member States. This is a direct consequence that private owners of a national treasure unlawfully removed from the territory of a Member State are not able to exercise the rights offered by the Directive, meaning proceedings to secure its return. Nevertheless, the Directive does not exclude civil or criminal proceedings which may be brought by the owner of a stolen object under national law. In this regard, the Directive’s provisions are complemented by Article 7(4) of Regulation (EU) No 1215/2012 (Brussels Regulation), which establishes a jurisdictional rule that the courts for the place where the cultural object is located have jurisdiction for civil claims for the recovery, based on ownership, of a cultural object within the meaning of the Directive. Furthermore, the main objective of the Directive being the physical return of the cultural object unlawfully removed, a uniform rule regarding the burden of proof for due care and attention is established in Article 10 with the aim of preventing ‘forum shopping’ by traffickers and making returns less costly for the requesting Member State. With this new rule, a possessor who cannot prove that he/she has exercised due care and attention will not be granted compensation when the object is returned. The non-exhaustive criteria for determining due care and attention were inspired by the UNIDROIT Convention and were already been included in the legislation of all Member States when implementing the Directive. 12 Member States indicated that there were not yet cases submitted to their national courts and, therefore, no occasion to give an interpretation of the concept of due care. In addition, 3 Member States clearly indicated divergences in the interpretation as the circumstances of the acquisition provide room for interpretation, and this will be different in each Member State, depending on the type of cultural objects, possibilities for research and cooperation between the different authorities. At this stage, there is insufficient information on the interpretation of the concept in the Member States and it remains to be further assessed under the relevant provisions of the Directive. 3.5. Application of the administrative procedure for the return of cultural objects a) Cooperation among competent authorities within a Member State



At national level, different bodies are involved in the identification of the cultural objects, the archives researches, the establishment of contacts, the applications for seizure of the cultural object and/or the mediation. 20 Member States reported that the cooperation amongst these bodies or authorities works smoothly and there is a regular exchange of information. Most of Member States responses highlighted the importance of cooperation between police forces and Ministries of the Interior at national and international level. This is particularly relevant for establishing a comprehensive picture of the illicit trafficking of cultural goods in the single market. The importance of comparative data related to cultural property when it comes to social networks and organised crime, including tackling the phenomenon through the darknet, was stressed in all the responses. Several Member States stressed that the recent strengthening of the EU legislation on customs controls for cultural goods is fostering cooperation between customs and Ministries of Culture in a significant way. This might also have positive implications for the application of the Directive. Furthermore, joint communication operations are carried out in connection with the return of cultural objects to their country of origin, particularly in the context of procedures resulting from customs seizures with the cooperation of police, cultural authorities and foreign affairs. This is a positive element for strengthening the implementation of the Directive and the strategic priorities in the field of police and judicial cooperation. In July 2020, the Commission adopted the “Security Union Strategy for the period from 2020 to 2025” outlining the way forward to combat organised crime including the fight against illicit trafficking in cultural goods. The Commission committed to explore how to improve the online and offline traceability of cultural goods. The EU Strategy to tackle organised crime, adopted on 14 April 2021, sets out that the Commission will continue to support capacity building amongst cultural heritage experts and their structured cooperation with law enforcement. Furthermore, the Commission will examine other necessary actions to address this phenomenon. To this end, the Commission will propose an Action Plan on tackling the illicit trade in cultural goods in 2022. b)Administrative cooperation among Member States – Use of Internal Market Information System (IMI) for the purpose of administrative cooperation (Article 5)





The Directive introduces arrangements for administrative cooperation between the competent authorities designated by the Member States. This cooperation involves, in particular, establishing the whereabouts of the cultural objects at the request of the requesting State, notification of the discovery of cultural objects on the territory of a Member State, verification by the requesting Member State of the nature of the cultural object on the territory of the requested Member State, adoption of all measures necessary for the material conservation of the cultural object and the adoption of provisional measures to avoid that the cultural object falls outside the scope of the return procedures. The cooperation provided for in Article 5(6) of the Directive may include diplomatic mediation and facilitation and promotion of amicable settlement and could also lead to: (i) a non-compulsory pre-litigation administrative mediation/coordination with the aim to reach an amicable resolution, (ii) the facilitation of an alternative method of dispute settlement and (iii) the facilitation of the implementation of an arbitration procedure. Even if the use by the interested parties of the cooperation referred by the competent authorities, referred to in Article 5(6) of the Directive, before starting court proceedings is not mandatory in all Member States, such cooperation is perceived as the privileged way of working together. As far as public authorities are concerned, cooperation between authorities at EU level may be still improved, in particular when the existing information has to be shared and processed in the appropriate way. The Commission established a specific IMI module which is operational as of 2016 with a view to exchanging information on the return of cultural objects falling within the scope of the Directive. It is a working IT tool for central authorities in the Member States who are responsible for the implementation of the Directive, as well as to facilitate cooperation between competent authorities within the Member States. To date, 164 authorities are registered and have access to IMI, including national IMI coordinators. Some authorities in Member States are only set up for bilateral information exchanges (i.e. when an authority is aware of the presence of a cultural object in a given Member State and seeks the object from a clearly identified country reasonably assuming that the object that was unlawfully removed can be found there and asking for confirmation about its location in order to retrieve the object). IMI is considered as a potentially good attempt to register information about unlawfully removed objects in a uniform way within the EU and to inform national authorities within the EU. National authorities confirmed that IMI facilitates cooperation between Member States authorities by establishing initial contact and that it is a key tool for improving information processing, providing guidance, discussing issues and identifying problems regarding the exchange of notifications and information through IMI. From the data on the use of IMI (as presented in Annex), it can be assumed that the exchanges among Member States on cultural objects that have been unlawfully removed were limited. Over the period of 2016-2020, there were 304 notifications for this purpose with a low number in 2018 and 2020 (less than 5) and also with a different level of activeness from Member States. The most affected categories of cultural objects by this form of IMI notifications were: ‘Pictures, paintings and icons’ (icons in particular with 116 notifications out of 178), followed by ‘Archaeological objects’ with 55 notifications. Notifications on other categories of cultural objects such as vessels, water-colours, figurines, coins and books were in average less than 10 for the same period. For the same period, 65 requests to seek an unlawfully removed cultural object and the identity of the possessor or holder were also registered in IMI. The annual evolution shows a constant decrease of this form of notifications between 2016 and 2018, going from 14 cases to less than 5 with an increase in 2019 and 2020 (respectively 20 and 19 notifications received). For the same form of notifications, the most affected categories were: ‘Original sculptures or statuary and copies produced by the same process as the original’ and ‘Pictures, paintings, icons executed entirely by hand’. The number of notifications about the finding of an unlawfully removed cultural objects fell sharply between 2017 (19 notifications) and 2019 (3 notifications) and increased sharply in 2020 (15 notifications). The great number of notifications for this form concerns ‘objects of numismatic interest’ (12 notifications), followed by ‘coins’ (8 notification), icons (5 notifications) and sculptures (5 notifications). Since 2016, only 5 notifications were recorded in IMI for the purposes of initiating return proceedings. A general observation received from 19 Member States is that further IMI improvements could be considered in order to render the tool more user-friendly. There seem to be some terminological issues as well on certain linguistic versions that require small adjustments. To address these issues, the Commission is preparing a dedicated User‘s Guide. Member States also reported issues concerning time constraints in the closing of notifications in cases where investigations are ongoing. In this regard, Member States highlighted that it was important that the system is actively monitored and used by all connected authorities. Furthermore, the more targeted requests are placed on IMI, the greater the prospect of a helpful response is. This will also help reduce the large quantity of messages automatically generated by the system Furthermore, when a cultural object was unlawfully removed and actually found, Member States seek to recover it through various tracks and, in first place, via judicial proceedings, rather than via an IMI request. This said, the added value of IMI is not challenged, as official exchanges through the IMI system are treated in court proceedings as formal evidence. 3.6. Mutual legal assistance and specific issues related to costs of judicial return proceedings (Article 6)



Article 6 of the Directive provides for the initiation of return proceedings and the conditions for such legal action. Such return proceedings are brought by the Member State from the territory of which the cultural object was unlawfully removed (known as the ‘requesting Member State’) before the competent court of the Member State in which the cultural object is located (known as ‘the requested Member State’). The return of the cultural object is ordered by the competent court when it is established that the object in question is a cultural object and that it has been unlawfully removed. Furthermore, the Directive lays down the time limits for bringing return proceedings and the arrangements for compensating the possessor in cases where the object has been restored. Overall, Member States’ responses indicated that the rules for the return via judicial proceedings, as provided by the Directive, are adequate. Only one Member State argued that the provisions laid down in Article 6 are not sufficient. Since the entry into force of the Directive, only two judicial proceedings were initiated by national courts for the return of cultural objects. The main obstacles could be linked with the complexity and high cost of court proceedings, the need for storage, transport and insurance costs, and the burden of proof of unlawful export after 1st of January 1993. In one particular case, it was pointed out that judicial proceedings under the Directive were impossible, as the unlawfully removed cultural object had the opportunity to be exported to a third country and was therefore no longer in the EU territory at the time when the requesting Member State was able to activate the return mechanism under the Directive. While reporting after 5 years of application of the Directive, national authorities called for specific legal assistance when they need to initiate judicial proceedings before other Member States’ courts and also for shared expenses on securing and transport arrangements, insuring and transporting the cultural object. In this context, 4 Member States suggested building a network of mutual legal assistance among Member States under Article 6 of the Directive and creating a European Prosecutor to act in the interest of the requesting Member State.

4.Conclusions



The Directive appears to have a determinant effect. Member States have noted the positive impact on raising awareness among stakeholders about the protection of cultural objects in the EU and the development of art trade. The following aspects where the application of the Directive may be improved were identified: -Technical arrangements to facilitate and rationalise IMI use for the purpose of the Directive. -Fostering mutual legal assistance among Member States under Article 6 to help the requesting Member States when initiating judicial proceedings before other Member States’ courts. -Promoting uniform understanding and application of the Directive’s provisions by fostering exchange of best practices and common interpretation of due diligence for professional art dealers and research on the provenance of cultural objects falling in the scope of the Directive. In light of this report, the Commission will continue monitoring the implementation of the Directive and explore ways to improve its effectiveness, in cooperation with the Member States. The Commission invites the Council, the European Parliament and the Economic and Social Committee to take note of this report. 5.ANNEX



Internal Market Information System (IMI) – Figures from Member States notifications and exchanges on cultural object (CO) I.Notification about a cultural object that has been unlawfully removed Over the period of 2016-2020, there were 310 CO-F1 notifications, 304 if excluding those that have been withdrawn. CO-F1 - Last location prior to unlawful removal There was a roughly identical number of cases in 2016 and 2017 (around 60 to 70), followed by two drops in 2018 and 2020 (less than 5) with a peak in 2019 (> to 125) The majority of IMI notifications concerned the following categories of cultural objects: “Pictures, paintings, icons executed entirely by hand…” (178) and “Archaeological objects (from land or underwater excavations and finds, archaeological sites or archaeological collections)” (55).