Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending the Annex to Council Directive No 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State
Date: 1995-10-19
Institutions: European Commission
Subjects: EU Member State, application of EU law, cultural object, fraud, heritage protection, painting

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

•ir 
•ù 

-it 
<r 

Brussels,  19.10.1995 
COM(95)  479  final 

95/0253  (ACC) 
95/0254  (COD) 

Proposal for a 

COUNCIL REGULATION (EC) 

amending the Annex to Council Regulation (EEC) No 3911/92 of 9 December  1992 on 
the export of cultural goods 

Proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

amending the Annex to Council Directive No 93/7/EEC of 15 March 1993 

on the return of cultural objects unlawfully  removed from the territory of a Member State 

(presented  by  the  Commission) 

A 

EXPLANATORY MEMORANDUM 

I. 

Introduction 

A.  The purpose of the Regulation and the Directive 

In order to meet the objective in Article 7a of the EC Treaty of a border-free  area in 
which goods  can  circulate freely,  the Community  has developed  two  extra  pieces of 
legislation covering cultural goods: 

-  Council  Regulation  (EEC)  No  3911/92  of  9  December  1992  on  the  export  of 

cultural goods, 1  and 

-  Directive  93/7/EEC  of  15  March  1993  on  the  return  of  cultural  objects 

unlawfully  removed from the territory of a Member State. 2 

The two  instruments  provide  Community  protection  for  national  treasures  over and 
above  that  which  Member  States  are  entitled  to  offer  under  Article  36  of  the  EC 
Treaty.  The  scope  of  such  protection  is  laid  down  uniformily  in  the  categories  of 
cultural goods in the Annexes. The Annexes are the same for the Regulation and the 
Directive  so  that  equal  protection  can  be  given  to  a  set  artefact  irrespective  of the 
Member State in which it is found. 

Cultural objects listed in one of the categories of the Annex may only be exported 
on presentation  of the export licence referred  to in the Regulation irrespective of 
which Member State they are going to or coming from. 

-  Cultural  objects  in one of the categories  of the Annex which have been illegally 
removed from a Member State which deems them to be national treasures may be 
recovered  under  the terms of the Directive, irrespective  of the Member  State in 
which they are found. 

1  OJ L 395, 31.12.1992, p. 1 

2  OJL74,  27.3.1993, p. 74. 

In other words, the treatment  and  protection  of a cultural  object  listed  in one of the 
categories  of  the  Annex  and  destined  for  export  or  recovery  must  be  the  same 
throughout the Community. 

B.  The problem of water colours, pastels and gouaches 

The  Advisory  Committee  on  cultural  goods  set  up  to  help  the  Commission 
implement  the Regulation  generally  (Art.  8) and  examine any issues  connected  with 
implementation  of  the  Annex  to  the  Directive  (Art.  17)  has  pointed  out  that  the 
current wording of the Annex does not provide identical treatment for water colours, 
pastels  and  gouaches.  This  is  because  of  discrepancies  in  the  different  language 
versions arising from the differing  artistic traditions of Member States. 

These  discrepancies  are  set  out  in  detail  in  section  II  of  the  explanatory 
memorandum. 

As this  state  of  affairs  runs  counter  to  the  aim  of the Regulation  and  the  Directive 
and to the wishes of the Member States as confirmed  in the Advisory Committee, the 
Annex needs to be amended. 

C.  The scope and  timing of the amendment 

Both the Regulation  and the Directive make provision for  the Council  to  review the 
effectiveness  of  these  measures  every  three  years  and  to  make  any  necessary 
amendments on a proposal from the Commission. The Council is also required, again 
acting on a Commission  proposal, to review  and  if necessary update the  amounts in 
the Annex 

The first  of these double three-year reviews will be some time next year. 

However,  the problems  caused  by discrepancies  in the language  versions  relating  to 
water colours, pastels and gouachei cannot wait  that long as they mn counter to the 
aim  of  the  Regulation  and  the  Directive  and  need  to  be  sorted  out  as  soon  as 
possible. 

It  is this  specific  problem  only which  this  proposal  seeks  to  remedy  Any  solution, 
furthermore,  needs to  maintain  as far  as possible the balance  reflected  in the Annex 
as drawn up by the Council in 1992 

Other possible improvements to the Regulation  and Directive or amendments to  the 
Annex will be considered  during the three-year review. 

II.  Water colours, pastels and gouaches 

A.  The relevant categories of cultural objects 

The Advisory  Committee  on Cultural  mentioned  above has observed  that there is a 
discrepancy  between  the  Member  States  as to  where  water-colours,  gouaches  and 
pastels  are  to  be  classified  in  the  Annex  which  is  common  to  both  Council 
Regulation  (EEC)  No  3911/92  and  Council  Directive  93/7/EEC.  Some  Member 
States take the view that  they  are in Category  3 as they  are  clearly  paintings,  or at 
least they are not drawings, while other Member States of a slightly different  artistic 
tradition  have  always  regarded  them  as  drawings  and  feel  they  can  only  be  in 
Category  4.  The  financial  threshold  for  pictures  and  paintings  of  Category  3  is 
150.000 ecu while for  drawings of Category 4 the financial  threshold  is only  15.000 
ecu.  It  is therefore  clearly  necessary  that  all the  Member  States  treat  the  same  art 
objects in the same way or serious distortions could arise. 

• Category 3 reads "Pictures and paintings executed  entirely by hand, on any 

medium and in any material", while 

• Category 4 reads "Mosaics ... and drawings executed entirely by hand on any 

medium and in any material. 

The  terminology  of  the  Annex  is  loosely  based  on  that  of  the  Combined 

Nomenclature. 

B.  Linguistic analysis 

It is clear from  analysis that  the nomenclature terminology (Heading 9701) is not of 
any assistance in this affair.  This is because the same, by definition,  global  range of 
items  have  rather  different  descriptions  in  different 
language  versions.  For 
illustrative purposes only, the English, French and German versions are given below. 

•  The English is "Paintings, drawings and pastels". 

•  The French is "Les tableaux (pictures), les peintures (paintings) ou les dessins 

(drawings)". 

•  The German is "Gemalde [paintings] (Z.B.[e.g] Ôlgemàlde [oils], Aquarelle 

[water-colours], Pastelle [Pastels]) und Zeichnungen [drawings]". 

These  are  obviously  not  word  for  word  equivalent.  This  is  of  no  particular 
importance  for  tariff  purposes  as all these goods  are treated  the same way  and  the 
only need is to distinguish between these "executed entirely by hand" and "others". 

The German text  would  not  allow water-colours  to be classed  as drawings.  Both 
the  English  and  the  German  texts  would  not  allow  pastels  to  be  classed  as 
drawings.  For  the  English  they  are  a  class  apart  and  for  the  German  they  are 
"paintings". 

However,  the  Annex  to  this  Regulation  in  both  English  and  German  does  not 
reflect  the  Combined  Nomenclature,  as  they  both  say  "Pictures  and  Paintings" 
(Bilder und Gemâlde) for Category 3 and "Drawings" (Zeichnungen) for  Category 
4.  Note  : this  is  presumably  an  error  perhaps  due  to  direct  translation  from  a 
Franch  original  text,  rather  than  checking  the  equivalent  already  used  in  the 
Combined Nomenclature  However this does not materially effect  the situation. 

C. 

As between categories 

As  the  term  "Pictures/Tableaux/Bilder"  covers  both  paintings  and  drawings  the 
tendency  must  be  to  say  everything  that  is  not  a  "drawing/dessin/Zeichnung"  of 
Category  4  is in Category  3. However  what  is a drawing  ? There  seem  to  be  at 
least two clear and mutually incompatible schools of thought 

Many regard works done using water  colours, gouache (poster  paints) and  pastels 
(coloured  chalks)  as being  drawings.  In which  case  the  15.000  ecu  limit  applies 
This  view  seems  seems  to  be  predominant  in  France,  Belgium,  Greece,  and  the 
Netherlands  at least.  Perhaps  it is allied  to the nature  of the  materials used  rather 
than the technique.  With  all these pigments the binding  or  carrying  material  is no 
longer  present  when  it  evaporates  leaving  essentially  a  dry  powder,  like  works 
made  by ink,  pencil,  charcoal  or  chalk  -  the  primary  materials  used  for  drawing 
proper.  Indeed  one  dictionary  is  careful  to  observe  that  "by  tradition  water-
coulours and gouache are called drawing". 

This careful  phrase  is because the other  school  of thought  seems  to  approach  the 
distinction in terms more of the technique of application  Drawing has as the basic 
element the use of line and "drawn" surfaces.  Painting is distinguished  as colouring 
(even  if  in  black  or  white)  the  whole,  or  nearly  the  whole  surface  by  sheets  of 
colour.  On the borderline between the two  might be pastels (and  coloured  pencils 
?)  where  the  result  is  a  surface  completely  covered  by  the  medium  and  which 
therefore  in  some  ways  resembles  a  painting.  This  is  perhaps  why  the  English 
nomenclature  text  specifies  pastels  separately  as  being  neither  drawings  or 
paintings  and  why  the  German  clearly  says  pastels  are  paintings.  Thus  for  this 
school  of thought  water  colours and  gouache (and  perhaps  pastels)  are paintings, 
and  thus  subject  to  the  150.000  ecu  limit.  This  school  of  thought  is  prevalent  in 
particular in the United Kingdom, Ireland and Germany 

The conclusion  of this very  limited  sketch  of the  situation  is that  we  are unlikely 
ever  to  be  able to  come  to  a  "logical"  mutually  acceptable  definition  of  drawing 
among  experts  as including  or  excluding  watercolours,  pastels  and  gouaches  that 
will satisfy  all the schools of thought. 

D. 

The solution 

The fundamental  difference  of treatment of water-colours, gouaches and pastels in 
the various  Member  States,  due  to  different  but  equally  on  valid  artistic  reasons 
based  interpretations  of the text,  must  be addressed  before  the first  3 year  report 
(see point C above). 

In  the  view  of  the  Commission  the  time  is  not  ripe  for  an  examination  of  the 
financial  thresholds in general  after  only two years of operation  and  any proposal 
to modify  one or more of them or to introduce  a new category  would  be in itself 
undesirable. However there is no alternative in the present  case. Consequently  the 
change made should  be strictly limited to the minimum necessary to  deal with the 
immediate problem. 

However,  in  deciding  to  which  category  water-colours,  gouaches  and  pastels 
should be put regard  has to be given as to the practical  effects  this would  have. It 
has been pointed  out to the Commission that it is rare for water-colours,  gouaches 
and pastels to realise the same level of price at auction as oil and tempora paintings 
(we  must  not  forget  that  we  are  dealing with  paintings  that  are  at  least  50  year 
old).  In general the prices fetched  by them  seem to be more of the  same order  as 
those that  are achieved  by drawings but tend  to be higher.  If they were to  be put 
into  category  3 as paintings  then  the  effect  would  be that  virtually  none  of them 
would  be  subject  to  the  need  for  a Community  export  licence.  It  would  then,  at 
first sight  seem preferable  to place them in category  4 and treat  them  as drawings 
but  this would  be unacceptable  to  some Member  States  due to  the  administrative 
burden  involved  in  issuing  many  more  licences  than  they  have  to  at  present  for 
items that could in their view never be of any major  cultural  significance. 

The  solution  then  must  lie  in  creating  a  new  separate  Category  just  for  water-
colours,  gouaches  and  pastels  with  an  appropriate  threshold.  It  is  clear  that  the 
higher the threshold  is set the more difficult  it will be to obtain agreement between 
the Member  States and the lower the threshold  the more administrative work that 
will be generated in issuing licences for works that are not really of a major  artistic 
significance.  It  is clear to  the Commission  that  as a result  of discussions with  the 
Member  States in the Advisory Committee that the new threshold  will need to lie 
between  15 000 and  150 000 ecu if it is to be acceptable to them, albeit  reluctantly 
as a compromise.  Taking  this into  account  the  Commission  proposes  a threshold 
of 30 000 ecu for the new Category. 

Proposal  for  a 

COUNCIL  REGULATION  (EC) 

95/0253  (ACC) 

amending the Annex to  Council  Regulation  (EEC) No  3911/92 of 9 December  1992 on 

the export  of cultural  goods 

THE  COUNCIL  OF THE  EUROPEAN  UNION, 

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

Article  113 thereof, 

Having regard  to the proposal  from  the Commission • 

Having regard to  the opinion  of the European  Parliament2 

Having regard  to  the opinion  of the Economic  and  Social  Committee3 

Whereas  according  to  different  artistic  traditions  within  the  Community  water-colour, 

gouache,  and  pastel  pictures  are  variously  regarded  as being  either  paintings  or  drawings; 

whereas  Category  4 of the Annex to  Council Regulation  3911/92  on the  export  of  cultural 
goods4  includes  drawings  executed  entirely  by hand  made  on  any  medium  in  any  material 
and  Category  3  includes  pictures  and  paintings  executed  entirely  by  hand  made  on  any 

medium  in  any  material;  whereas  the  financial  thresholds  which  apply  to  these  two 

Categories  are  different;  whereas  this  could  lead  to  serious  differences  of treatment  inside 

the single internal market  of water-colour,  gouache,  and pastel pictures  depending upon  in 

which Member  State they  are  situated;  whereas  it  is  necessary  to  decide  for  the  purposes 

of the  application  of the  Regulation  into  which  Category  they  shall  fall  to  ensure  that  the 

financial thresholds applied  shall be the same throughout  the  Community; 

.  .1995, p.. 

1  OJNoC, 
2  OJNoC, 
3  OJNoC, 
4  OJ No L 395, 31.12.92, p. 1. 

.  .1995, p.. 

.  .1995, p.. 

Whereas  experience  shows  that  the  prices  realised  by water-colour,  gouache,  and  pastel 
pictures  tend  to  be  rather  higher  than  those  realised  by  drawings  and  much  lower  than 
those fetched  by paintings in oil or tempora, whereas acccordingly  it is expedient  to place 
water-colours, gouache, and pastel pictures into a new separate Category with a threshold 
of  30  000  ecu  which  would  ensure  that  works  of  major  significance  would  require  an 
export  licence  while  there  would  not  be  the  creation  of  any  undue  administrative  load 
placed upon the licensing authorities. 

HAS ADOPTED THIS REGULATION: 

Article J 

The Annex to Council Regulation (EEC) No 3911/92 shall be amended as follows: 

(a) In A: 

(i)  the description in 3. shall be replaced by: 

"Pictures  and  paintings,  other  than  those  included  in  category  3 A  or  4, 
executed entirely by hand in any medium and on any material" 

(ii) A new 3 A shall be introduced as follows: 

"3A.  Water-colours,  gouaches  and  pastels  executed  entirely  by  hand  on  any 

material" 

(iii)the description under 4. shall be replaced by the following 

"Mosaics in any material executed entirely by hand, other than those falling in 
categories  1 or 2, and drawings in any medium  executed  entirely by hand  on 
any material" 

(b) 

InB: 

a new category shall be inserted 

"30 000 

—3 A 

(Water colours, gouaches and pastels)" 

Article 2 

This  Regulation  shall  enter  into  force  on  the  third  day  following  its  publication  in  the 
Official  Journal  of  the  European  Communities.  It  shall  be  applicable  from  1 September 
1995. 

This Regulation  shall be binding in its entirety  and  directly applicable in all Member 
States. 

Done at Brussels, 

For the Council 

The President 

to 

Proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

95/0254 (COD) 

amending the Annex to Council Directive No 93/7/EEC of 15 March 1993 

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  100a thereof, 

Having regard to the proposal from the Commission  l 

Having regard to the opinion of the Economic and Social Committee2 

Acting in accordance withe the procedure referred  to in Article  189B of the Treaty, 

Whereas  according  to  different  artistic  traditions  within  the  Community  water-colour, 
gouache, and pastel pictures are variously regarded  as being either paintings or drawings; 
whereas  Category  4  of  the  Annex  to  Council  Directive  N°  93/7/EEC  on  the  return  of 
cultural  objects  unlawfully  removed  from  the  territory  of  a  Member  State3  includes 
drawings executed  entirely by hand made on any medium in any material and Category 3 
includes  pictures  and  paintings  executed  entirely  by  hand  made  on  any  medium  in  any 
material;  whereas  the  financial  thresholds  which  apply  to  these  two  Categories  are 
different;  whereas  this  could  lead  to  serious  differences  of  treatment  inside  the  single 
internal  market  of water-colour,  gouache,  and  pastel  pictures  depending  upon  in which 
Member  State they are situated; whereas it is necessary to decide for  the purposes  of the 
application of the Directive into which Category they shall fall to ensure that the  financial 
thresholds applied shall be the same throughout the Community; 

. 

.1995, p.. 

1  OJNoC, 
2  OJNoC, 
. 
3  OJ No L 74,  27.3.93, p. 74. 

.1995, p.. 

Whereas  experience  shows  that  the  prices  realised  by water-colour,  gouache,  and  pastel 
pictures  tend  to  be  rather  higher  than  those  realised  by  drawings  and  much  lower  than 
those fetched  by paintings in oil or tempora,  whereas acccordingly  it is expedient to place 
water-colours, gouache, and pastel pictures into a new separate Category with a threshold 
of 30 000 ecu which would  ensure that  works of major  significance  unlawfully  removed 
from  the territory of a Member State can be returned. 

, 

HAVE ADOPTED THIS DIRECTIVE : 

Article I 

The Annex to Council Directive No 93/7/EEC shall be amended as follows: 

(a)  In A: 

(i)  the description in 3. shall be replaced by: 

"Pictures  and  paintings,  other  than  those  included  in  category  3A  or  4, 
executed entirely by hand in any medium and on any material" 

(ii) A new 3 A shall be introduced as follows: 

"3 A.  Water-colours,  gouaches  and  pastels  executed  entirely  by  hand  on any 

material" 

(iii)the description under 4. shall be replaced by the following 

"Mosaics in any material executed entirely by hand, other than those falling in 
categories  1 or 2, and drawings in any medium executed  entirely by hand on 
any material" 

(b) 

InB: 

a new category shall be inserted 

"30 000 

—3A 

(Water colours, gouaches and pastels)" 

1X 

Article 2 

Member  States  shall bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary  to  comply  with  this  Directive  within  six  months  of  its  adoption.  They  shall 
forthwith inform the Commission thereof. 

When member States adopt these measures, they shall contain a reference to this Directive 
or  shall be  accompanied  by  such  reference  on  the  occasion  of their  official  publication. 
The methods of making such a reference shall be laid down by the Member States. 

This Directive is addressed to the Member States. 

Article 3 

Done at Brussels, 

For the European Parliament 

The Président 

For the Council 

The President 

t2> 

ISSN 0254-1475 

COM(95) 479  final 

DOCUMENTS 

EN 

16 

Catalogue number  :  CB-CO-95-520-EN-C 

ISBN 92-77-94384-X 

Office for Official  Publications of the European Communities 

L-2985 Luxembourg