Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State

(presented by the Commission))

EXPLANATORY MEMORANDUM

1. Context

Council Regulation (EEC) No 3911/92 on the export of cultural goods and Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State are measures accompanying the establishment of the Internal Market and aimed at reconciling the fundamental principle of the free movement of cultural goods and the protection of national treasures. The Regulation sets up uniform preventive controls at the Community's external borders which allow the competent authorities in the Member States (Culture and Customs) from which the cultural goods are to be exported to a third country to take account of the interests of the other Member States. The Directive complements this preventive instrument by providing for mechanisms and a procedure for returning national treasures when these have left the territory of a Member State unlawfully.

For the purposes of delimiting their scope, Regulation (EEC) No 3911/92 and Directive 93/7/EEC set out, in annexes with identical content, categories of cultural objects. These categories are drawn up according to criteria relating to the very nature of the goods concerned and their age, to which an economic value was added expressed in ecu. These annexes state that the date for the conversion of values expressed in ecus into national currencies was 1 January 1993.

2. The impact of the changeover to the euro on community law

Pursuant to Regulation (EC) No 1103/97, any reference to the ecu in legal instruments became, as from 1 January 1999, a reference to the euro, after conversion at the rate of one to one.

In its Communication on "The impact of the changeover to the euro on Community policies, institutions and legislation" of 5 November 1997 (COM(97) 560 final), the Commission pointed out that this conversion, in itself relatively simple, becomes more complex when the figure expressed in euro and appearing in a legal instrument of the Community is accompanied by a clause concerning conversion into the respective national currencies. In the case of the Member States taking part in Economic and Monetary Union (EMU), it would appear logical to ensure that all the discrepancies between the monetary references in Community legislation and the references in national legislation resulting solely from previous fluctuations in exchange rates or rounding-off operations should be eliminated within a reasonable period of time, and at all events before the end of the transitional period (1 January 2002), by adapting the amounts.

3. The proposal for a directive amending the annex to directive 93/7/EEC

In Annex 8 to the Communication "The impact of the changeover to the euro on Community policies, institutions and legislation" of 5 November 1997, the Commission noted that, without an amendment to the Annex to Directive 93/7/EEC (and hence to the fixed exchange rate corresponding to the rate in force on 1 January 1993), the Member States participating in EMU would continue to apply different amounts (converted on the basis of the exchange rates of 1993, and not the conversion rates irrevocably fixed on 1 January 1999), and that this situation would persist as long as the conversion rule remained an integral part of the Regulation. It also pointed out that the Commission could propose to amend the Regulation in such a way that, as from 1 January 2002, the Member States participating in EMU applied directly the euro thresholds laid down in Community legislation. The other Member States would continue to convert these thresholds into national currencies on the basis of an exchange rate adopted on a suitable date (to be chosen) before the entry into force of the new thresholds, i.e. from 1 January 2002 (this date would replace 1 January 1993, which currently serves as the reference date for conversion into ecu).

In the light of this Communication, the Commission set out the approach to be followed in adapting the Annex to Directive 93/7/EEC at the eighth meeting of the Advisory Committee on Cultural Goods Article 8 of Regulation (EEC) No 3911/92 and Article 17 of Directive 93/7/EEC) held in Brussels on 30 November 1999. In accordance with these guidelines, as from 1 January 2002, the Member States participating in EMU will apply directly the thresholds in euro laid down in Community legislation, while the other Member States will continue to convert these thresholds into national currencies on the basis of an exchange rate adopted on a suitable date before 1 January 2002 which would be adapted periodically in order to compensate for the variations in exchange rates between those currencies and the euro. Apart from some scrutiny reservations, these guidelines met with no objections from the Member States. The Commission reiterated these guidelines in its report of 25 May 2000 to the Council, the European Parliament and the Economic and Social Committee on the application of Regulation (EEC) No 3911/92 and Directive 93/7/EEC (COM(2000) 325 final).

This eighth meeting of the Advisory Committee on Cultural Goods also highlighted the need to replace the figure 0 applicable to certain categories in the Annex in order to avoid differences of interpretation. The Commission announced on that occasion - and reiterated in its report of 25 May 2000 - its intention of proposing an amendment to the Annex to replace this figure 0 with the expression "whatever the value".

The Commission proposal therefore aims to introduce the two technical amendments to the Annex to Directive 93/7/EEC announced in the report on the application of Regulation (EEC) No 3911/92 and Directive 93/7/EEC:

- to replace the figure 0, which is one of the values set out in heading B, with the text "whatever the value"

- to amend the note at the end of heading B by laying down, for the Member States not participating in EMU, a date for the conversion into national currencies of the values expressed in euro and a periodic adaptation of the amounts in national currencies every two years. The reference date chosen is 31 December 2001, the last day of the period for transition to the euro. For the periodic adaptation every two years, the system chosen follows the model for periodic adaptation laid down by the "public procurement" Directives.

2000/0332 (COD)

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission [1],

[1] OJ C

Having regard to the opinion of the Economic and Social Committee [2],

[2] OJ C

Having regard to the opinion of the Committee of the Regions [3],

[3] OJ C

Acting in accordance with the procedure referred to in Article 251 of the Treaty [4],

[4] OJ C

Whereas:

(1) The establishment of Economic and Monetary Union and the changeover to the euro have an effect on the last paragraph under heading B of the Annex to Council Directive 93/7/EEC [5] laying down the values, expressed in ecu, of the cultural goods subject to the application of the Regulation. This note lays down that the date for the conversion into national currencies is to be 1 January 1993.

[5] OJ L 74, 27.3.1993, p. 74; Directive as amended by Directive 96/100/EC of the European Parliament and of the Council (OJ L 60, 1.3.1997, p. 59).

(2) Pursuant to Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro [6], any reference to the ecu in legal instruments became, as from 1 January 1999, a reference to the euro, after conversion at the rate of one to one. Without an amendment to the Annex to Directive 93/7/EEC, and hence to the fixed exchange rate corresponding to the rate in force on 1 January 1993, the Member States having the euro as their currency would continue to apply different amounts converted on the basis of the exchange rates of 1993, and not the conversion rates irrevocably fixed on 1 January 1999, and this situation would persist as long as the conversion rule remained an integral part of the Directive.

[6] OJ L 162, 19.6.1997, p. 1.

(3) The last paragrah under heading B of the Annex to Directive 93/7/EEC should therefore be amended in such a way that, as from 1 January 2002, the Member States having the euro as their currency directly apply the values in euro laid down in Community legislation. For the other Member States, which will continue to convert these thresholds into national currencies, an exchange rate should be adopted on a suitable date before 1 January 2002, and provision should be made for those Member States to adapt that rate automatically and periodically in order to compensate for variations in the exchange rate between the national currency and the euro.

(4) It has emerged that the value 0 (zero) under heading B of the Annex to Directive 93/7/EEC, applicable as the financial threshold for certain categories of cultural objects, was liable to be interpreted in such a way as to jeopardise the effective application of the Directive. Whereas this value 0 (zero) means that goods belonging to the categories in question, whatever their value - even if it is negligible or zero - are to be considered "cultural objects" within the meaning of the Directive, certain authorities have interpreted it in such a way that the cultural object in question has no value at all, thereby depriving those categories of goods of the protection provided for by the Directive.

(5) To avoid any confusion in this respect, the figure 0 should be replaced by a clearer expression which leaves no doubt as to the need to protect the goods in question,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

In the Annex to Directive 93/7/EEC, the text under heading B is amended as follows:

(1) The title "VALUE: 0 (zero)" is replaced by:

"VALUE:

Whatever the value"

(2) The last paragraph, relating to the conversion into national currencies of the values expressed in ecus, is replaced by the following text:

"For the Member States which do not have the euro as their currency, the values expressed in euro in the Annex shall be converted and expressed in national currencies at the rate of exchange on 31 December 2001 published in the Official Journal of the European Communities. This countervalue in national currencies shall be reviewed every two years with effect from 31 December 2001. Calculation of this countervalue shall be based on the average daily value of those currencies, expressed in euro, during the twenty-four months ending on the last day of August preceding the revision which takes effect on 31 December. This method of calculation shall be reviewed, on a proposal from the Commission, by the Advisory Committee on Cultural Goods, in principle two years after the first application. For each revision, the values expressed in euro and their countervalues in national currency shall be published periodically in the Official Journal of the European Communities in the first days of the month of November preceding the date on which the revision takes effect."

Article 2

The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2001. They shall immediately inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 3

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

Article 4

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President