CELEX: 51992PC0280
Language: en
Date: 1992-06-17
Title: Amended proposal for a COUNCIL DIRECTIVE on the return of cultural objects unlawfully removed from the territory of a Member State

8 . 7 . 92                              Official Journal of the European Communities                           No C 172 / 7
             Cooperation Agreements. An overall limit of ECU 250 million per year shall be set for a
             three-year period ; this limit will be reviewed at the end of this period.
             To this end the Bank and the Commission shall agree on the procedures for implementing the
             guarantee .
             Amended proposal for a Council Directive on the return of cultural objects unlawfully removed
                                           from the territory of a Member State (*)
                                                        (92 /C 172/06)
                                                COM(92) 280 final — SYN 382
             (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 17 June 1992)
             C) OJ No C 53 , 28 . 2 . 1992, p. 11 .
                    ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European              Having regard to the Treaty establishing the European
Economic Community, and in particular Article 100a                 Economic Community, and in particular Article 100a
thereof,                                                           thereof,
Having regard to the proposal from the Commission,                 Having regard to the proposal from the Commission,
In cooperation with the European Parliament,                       In cooperation with the European Parliament,
Having regard to the opinion of the Economic and                   Having regard to the opinion of the Economic and
Social Committee,                                                  Social Committee,
Whereas Article 8a of the Treaty provides for the estab­           Whereas Article 8 a of the Treaty provides for the estab­
lishment, not later than 1 January 1993, of the internal           lishment, not later than 1 January 1993 , of the internal
market, which is to comprise an area without internal              market, which is to comprise an area without internal
frontiers in which the free movement of goods, persons,            frontiers in which the free movement of goods, persons,
services and capital is ensured in accordance with the             services and capital is ensured in accordance with the
provisions of the Treaty;                                          provisions of the Treaty;
 ---pagebreak--- No C 172 / 8                           Official Journal of the European Communities                                    8 . 7 . 92
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
Whereas, under the terms and within the limits of Article        Whereas, under the terms and within the limits of Article
36 of the Treaty, Member States will after 1992 retain           36 of the Treaty, Member States will after 1992 retain
the right to define their national treasures and to take         the right to define their national treasures and to take
the necessary measures to protect them ; whereas they            the necessary measures to protect them ; whereas they
will, on the other hand, no longer be able to apply              will, on the other hand, no longer be able to apply
checks or formalities at the Community's internal                checks or formalities at the Community's internal
frontiers to ensure the effectiveness of those measures ;        frontiers to ensure the effectiveness of those measures ;
Whereas arrangements should therefore be introduced              Whereas arrangements should therefore be introduced
enabling Member States to secure the return to their             enabling Member States to secure the return to their
territory of cultural objects which are classed as national      territory of cultural objects which are classed as national
treasures within the meaning of Article 36 of the Treaty         treasures within the meaning of Article 36 of the Treaty
and have been removed from their territory in breach of          and have been removed from their territory in breach of
the abovementioned national measures or of Council               the abovementioned national measures or of Council
Regulation (EEC) No . . .; whereas to facilitate                 Regulation      (EEC)    No    . . .; whereas to    facilitate
cooperation with regard to return, the scope of the              cooperation with regard to return, the scope of the
arrangements should be confined to items belonging to            arrangements should be confined to items belonging to
common categories of cultural object ; whereas the               common categories of cultural object ; whereas the
Annex to this Directive is consequently not intended to          Annex to this Directive is consequently not intended to
define objects which rank as 'national treasures' within         define objects which rank as 'national treasures' within
the meaning of Article 36 of the Treaty, but merely              the meaning of Article 36 of the Treaty, but merely
categories of object which may be classed as such and            categories of object which may be classed as such and
may accordingly be covered by the return procedure               may accordingly be covered by the return procedure
introduced by this Directive ;                                   introduced by this Directive ;
Whereas the procedure introduced by this Directive is a          Whereas the procedure introduced by this Directive is a
first step in establishing cooperation* between Member           first step in establishing cooperation between Member
States in this field in the context of the internal market ;     States in this field in the context of the internal market,
whereas the aim is mutual recognition of the relevant            which should lead to a system of mutual recognition of
national laws ; whereas provision should therefore be            the relevant national laws ; whereas provision should
made, in particular, for the Commission to be assisted by        therefore be made, in particular, for the Commission to
an advisory committee with a view to amending, if                be assisted by an advisory committee with a view to
necessary, the Annex to this Directive in the light of           amending, if necessary, the Annex to this Directive in the
experience,                                                      light of experience,
HAS ADOPTED THIS DIRECTIVE :                                     HAS ADOPTED THIS DIRECTIVE :
                           Article 1                                                        Article 1
For the purposes of this Directive :                             For the purposes of this Directive :
1 . 'cultural object' means an object which :                     1 . 'cultural object' means an object which :
    — is a 'national treasure' under national legislation in          — is classified, before or after its unlawful removal
        the context of Article 36 of the Treaty,                          from the territory of a Member State, amoug the
                                                                          'national treasures possessing artistic, historic or
                                                                          archaeological value' under national legislation
                                                                          administrative procedures in the context of Article
                                                                          36 of the Treaty,
and                                                              and
 ---pagebreak--- 8 . 7 . 92                            Official Journal of the European Communities                              No C 172 /9
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
    — belongs to one of the categories listed in the                — belongs to one of the categories listed in the
         Annex to this Directive ;                                      Annex to this Directive or does not belong to one
                                                                        of these categories but forms an integral part of :
                                                                        — public collections listed in the inventories of
                                                                             museums, archives or libraries' conservation
                                                                             collections,
                                                                        — the inventories of ecclesiastical institutions ;
2. 'unlawfully removed from the territory of a Member           2, 'unlawfully removed from the territory of a Member
    State' means :                                                  State' means :
    — removed from the territory of a Member State in               — removed from the territory of a Member State in
         breach of its rules on the protection of national              breach of the rules in force in that Member State
         treasures or in breach of Regulation (EEC) No                  on the protection of national treasures or in
                                                                        breach of Regulation (EEC) No . . .,
         or
    — not returned at the end of a period of lawful                 — failure to comply with the conditions under which
         temporary removal ;                                            temporary authorization was granted ;
3. 'requesting Member State' means the Member State             3 . 'requesting Member State' means the Member State
    from whose territory the cultural object has been               from whose territory the cultural object has been
    unlawfully removed ;                                            unlawfully removed ;
4. 'requested Member State' means the Member State on           4 . 'requested Member State' means the Member State on
    whose territory a cultural object unlawfully removed            whose territory a cultural object unlawfully removed
    from the territory of another Member State is                   from the territory of another Member State is
    located ;                                                       located ;
5. 'return' means the physical return of the cultural           5 . 'return' means the physical return of the cultural
     object to the territory of the requesting Member               object to the territory of the requesting Member
     State ;                                                        State ;
6. 'holder' means the person physically holding the             6. 'holder' means the person physically holding the
     cultural object.                                               cultural objecj.
                           Article 2                                                       Article 2
Cultural objects which have been unlawfully removed             Cultural objects which have been unlawfully removed
from the territory of a Member State shall be returned in       from the territory of a Member State shall be returned in
accordance with the procedure and in the circumstances          accordance with the procedure and in the circumstances
provided for in this Directive.                                 provided for in this Directive.
                           Article 3                                                       Article 3
Each Member State shall appoint one or more central             Each Member State shall appoint one or more central
authorities to carry out the tasks provided for in this          authorities to carry out the tasks provided for in this
Directive .                                                      Directive .
Member States shall inform the Commission of all the             Member States shall inform the Commission of all the
central authorities they appoint pursuant to this Article.       central authorities they appoint pursuant to this Article.
The Commission shall publish a list of those central            The Commission shall publish a list of those central
authorities in the Official Journal of the European              authorities in the Official Journal of the European
 Communities, C series .                                         Communities, C series .
 ---pagebreak--- No C 172 / 10                          Official Journal of the European Communities                                    8 . 7 . 92
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                           Article 4                                                         Article 4
Member States' central authorities shall cooperate and           Member States' central authorities shall cooperate and
promote consultation between the competent national              promote consultation between the competent national
authorities . These shall in particular :                        authorities. These shall in particular :
1 . seek cultural objects which have been unlawfully              1 . seek cultural objects which have been unlawfully
    removed from the territory of a Member State,                     removed from the territory of a Member State,
    locating them and identifying the holder;                         locating them and identifying the holder;
2. inform the Member States presumed to be concerned,            2. inform the Member States presumed to be concernde,
    where a cultural object is found on their territory and           where a cultural object is found on their territory, of
    there are reasonable grounds for believing that it has            its location and the identity of the holder, where there
    been unlawfully removed from the territory of                     is evidence for believing that it has been unlawfully
    another Member State ;                                            removed from the territory of another Member State;
3 . enable the competent authorities of the requesting           3 . enable the competent authorities of the requesting
    Member State to check that the object in question is a            Member State to check that the object in question is a
    cultural object within the meaning of Article 1 ( 1 );            cultural object within the meaning of Article 1 ( 1 );
4. take any necessary measures for the physical preser­          4. take any necessary measures for the physical preser­
    vation of the cultural object ;                                   vation of the cultural object ;
5 . prevent, through the necessary interim measures, any         5 . prevent, through the necessary interim measures, any
    action to evade possible return ;                                 action to evade possible return ;
6 . act as intermediary between the holder and the               6. act as intermediary between the holder and the
    requesting Member State.                                          requesting Member State.
                           Article 5                                                         Article 5
The requesting Member State may initiate, before the             The requesting Member State may initiate, before the
competent court in the requested Member State,                   competent court in the requested Member State,
proceedings against the holder with the aim of securing          proceedings against the holder with the aim of securing
the return of a cultural object which has been unlawfully        the return of a cultural object which has been unlawfully
removed from its territory.                                      removed from its territory.
Proceedings may be brought only where the document               Proceedings may be brought only where the document
initiating them is accompanied by :                              initiating them is accompanied by :
— a document describing the object covered by the                — a document describing the object covered by the
     request and certifying that it is a cultural object               request and certifying that it is a cultural object
     within the meaning of Article 1(1 ),                              within the meaning of Article 1 ( 1 ),
— a declaration by the competent authorities of the              — a declaration by the competent authorities of the
     requesting Member State that the cultural object has              requesting Member State that the cultural object has
     been unlawfully removed from its territory.                       been unlawfully removed from its territory.
                           Article 6                                                         Article 6
The central authority of the requesting Member State             The central authority of the requesting Member State
shall forthwith inform the central authority of the              shall forthwith inform the central authority of the
requested Member State that proceedings have been                requested Member State that proceedings have been
initiated with the aim of securing the return of the object      initiated with the aim of securing the return of the object
in question.                                                     in question .
 ---pagebreak--- 8 . 7 . 92                            Official Journal of the European Communities                            No C 172 / 11
                      ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
The central authority of the requested Member State             The central authority of the requested Member State
shall forthwith inform the central authorities of the other     shall forthwith inform the central authorities of the other
Member States .                                                 Member States .
                           Article 7                                                      Article 7
The central authority of the requested Member State or          Where various return proceedings have been brought in
of other Member States which have a legitimate interest         respect of the same object, the judicial authority shall
may, at its request, take part in the proceedings referred      deliver a single judgment.
to in Article 5 .
                          Article 8                                                       Article 8
1 . Return proceedings provided for in this Directive           1 . Return proceedings provided for in this Directive
may no longer be brought more than five years after the         may no longer be brought more than five years after the
requesting Member State became aware or ought                   requesting Member State became aware of the location
reasonably to have become aware of the location of the          of the cultural object and the identity of its holder. Such
cultural object or the identity of its holder. Such             proceedings may, at all events, no longer be brought
proceedings may, at all events, no longer be brought            more than 30 years after the object was unlawfully
more than 30 years after the object was unlawfully              removed from the territory of the requesting Member
removed from the territory of the requesting Member             State, except in the case of objects forming part of public
State .                                                         collections recognized as not being subject to a time
                                                                limit.
2. Return proceedings may not be brought if removal             2. Return proceedings may not be brought if removal
from the national territory is no longer unlawful.              from the national territory of the requesting State is no
                                                                longer unlawful.
                           Article 9                                                      Article 9
Save as otherwise provided in Articles 8 and         14, the    Save as otherwise provided in Articles 8 and 14, the
competent court shall order the return of the       cultural    competent court shall order the return of the cultural
object in question where it is found to be a        cultural    object in question where it is found to be a cultural
object within the meaning of Article 1 ( 1 ) and    to have     object within the meaning of Article 1 ( 1 ) and to have
been removed unlawfully from national territory.                been removed unlawfully from national territory.
                          Article 10                                                     Article 10
Where return of the object is ordered, the acquirer shall       Where return of the object is ordered, the acquirer shall
be entitled to fair compensation, to be determined by the       be entitled to fair compensation, to be determined by the
competent court according to the circumstances of the           competent court according to the circumstances of the
case, on condition that he proves that he could not have        case, on condition that he proves that he had exercised
known, or could not have been expected to know, that            all due care at the time of acquisition.
the object had been unlawfully removed from the
territory of the requesting Member State.
In the case of a donation or succession, the acquirer shall     In the case of a donation or succession, the acquirer shall
not be in a more favourable position than the person            not be in a more favourable position than the person
from whom he acquired the object by that means.                 from whom he acquired the object by that means.
The requesting Member State shall pay such compen­              The requesting Member State shall pay such compen­
sation .                                                        sation .
 ---pagebreak--- No C 172 / 12                         Official Journal of the European Communities                                  8 . 7 . 92
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                          Article 11                                                      Article 11
Expenses incurred in implementing a decision ordering           Expenses incurred in implementing a decision ordering
the return of a cultural object shall be borne by the           the return of a cultural object shall be borne by the
requesting Member State .                                       requesting Member State .
                          Article 12                                                      Article 12
Payment of the fair compensation and of the expenses            Payment of the fair compensation and of the expenses
referred to in Articles 10 and 11 respectively shall be         referred to in Articles 10 and 11 respectively shall be
without prejudice to the requesting Member State's right        without prejudice to the requesting Member State's right
to take action, under its national law, with a view to          to take action, under its national law, with a view to
recovering those amounts from the persons responsible           recovering those amounts from the persons responsible
for the unlawful removal of the cultural object from its        for the unlawful removal of the cultural object from its
territory.                                                      territory.
                          Article 13                                                      Article 13
Ownership of the cultural object after return shall be          Ownership of the cultural object after return shall be
governed by the law of the requesting Member State.             governed by the law of the requesting Member State.
                          Article 14                                                      Article 14
This Directive shall apply only to cultural objects             This Directive shall apply only to cultural objects
unlawfully removed from the territory of a Member               unlawfully removed from the territory of a Member
State on or after 1 January 1993 .                              State on or after 1 January 1993 .
                          Article 15                                                      Article 15
 1 . Each Member State may extend its obligation to             1 . Each Member State may extend its obligation to
return cultural objects to cover categories of object other     return cultural objects to cover categories of object other
than those listed in the Annex .                                than those listed in the Annex.
2 . Each Member State may apply the arrangements                2 . Each Member State may apply the arrangements
provided for by this Directive to requests for the return       provided for by this Directive to requests for the return
of cultural objects unlawfully removed from the territory       of cultural objects unlawfully removed from the territory
of other Member States prior to 1 January 1993 .                of other Member States prior to 1 January 1993 .
                          Article 16                                                      Article 16
This Directive shall be without prejudice to any civil or       This Directive shall be without prejudice to any civil or
criminal proceedings that may be brought, under the             criminal proceedings that may be brought, under the
national laws of the Member States , by the requesting          national laws of the Member States, by the requesting
Member State and/or the owner of a cultural object that         Member State and/or the owner of a cultural object that
has been stolen .                                               has been stolen .
                          Article 17                                                      Article 17
 1.    Member States shall send the Commission each              1.    Member States shall send the Commission each
year, and for the first time in February 1994, a report on      year, and for the first time in February 1994, a report on
the application of this Directive .                              the application of this Directive .
 ---pagebreak--- 8 . 7 . 92                            Official Journal of the European Communities                           No C 172 / 13
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
2.      The Commission shall send the Council, the              2 . The Commission shall send the Council, the
European Parliament and the Economic and Social                 European Parliament and the Economic and Social
Committee every three years a report reviewing the              Committee every three years a report reviewing the
application of this Directive.                                  application of this Directive.
In the light of the assessment of the effectiveness of the      In the light of the assessment of the effectiveness of the
return machinery, it shall, where appropriate, propose          return machinery, it shall, where appropriate, propose
amendments to this Directive .                                  amendments to this Directive .
                         Article 18                                                      Article 18
For the purposes of revising the Annex to this Directive,       For the purposes of revising the Annex to this Directive,
the Commission shall be assisted by the committee set up        the Commission shall be assisted by the committee set up
by Regulation (EEC) No . . .                                    by Regulation (EEC) No . . .
The representative of the Commission shall submit to the        The representative of the Commission shall submit to the
committee a draft of the measures to be taken . The             committee a draft of the measures to be taken . The
committee shall deliver its opinion on the draft, within a      committee shall deliver its opinion on the draft, within a
time limit which the chairman may lay down according            time limit which the chairman may lay down according
to the urgency of the matter, if necessary by taking a          to the urgency of the matter, if necessary by taking a
vote .                                                          vote .
The opinion shall be recorded in the minutes ; in               The opinion shall be recorded in the minutes ; in
addition, each Member State shall have the right to ask         addition, each Member State shall have the right to ask
to have its position recorded in the minutes.                   to have its position recorded in the minutes .
The Commission shall take the utmost account of the             The Commission shall take the utmost account of the
opinion delivered by the committee. It shall inform the         opinion delivered by the committee . It shall inform the
committee of the manner in which its opinion has been           committee of the manner in which its opinion has been
taken into account .                                            taken into account.
The committee shall examine any question arising from           The committee shall examine any question arising from
the application of the Annex to this Directive which may        the application of the Annex to this Directive which may
be tabled by the chairman either on his own initiative or       be tabled by the chairman either on his own initiative or
at the request of a Member State's representative.              at the request of a Member State's representative .
                         Article 19                                                     Article 19
Member States shall bring into force the laws, regu­            Member States shall bring into force the laws, regu­
lations and administrative provisions necessary to comply       lations and administrative provisions necessary to comply
with this Directive not later than 1 January 1993 . They        with this Directive not later than 1 January 1993 . They
shall forthwith inform the Commission thereof.                  shall forthwith inform the Commission thereof.
When Member States adopt these provisions, these shall          When Member States adopt these provisions , these shall
contain a reference to this Directive or shall be ac­           contain a reference to this Directive or shall be ac­
companied by such reference at the time of their official       companied by such reference at the time of their official
publication. The procedure for such reference shall be          publication. The procedure for such reference shall be
adopted by Member States .                                      adopted by Member States .
                         Article 20                                                      Article 20
This Directive is addressed to the Member States .              This Directive is addressed to the Member States .
 ---pagebreak--- No C 172 / 14                           Official Journal of the European Communities                                  8 . 7 . 92
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                           ANNEX                                                             ANNEX
Categories of object referred to in the second indent of          Categories of object referred to in the second indent of
Article 1 ( 1 ) to which objects classed as 'national             Article 1 ( 1 ) to which objects classed as 'national
treasures' within the meaning of Article 36 of the Treaty         treasures' within the meaning of Article 36 of the Treaty
  must belong to qualify for return under this Directive            must belong to qualify for return under this Directive
A.   1 . Products of archaeological excavations and               A.   1 . Products of archaeological excavations and
         archaeological finds, more than 100 years old                     archaeological finds, more than 100 years old
     2 . Elements of artistic, historical or religious                 2 . Elements of artistic, historical or religious
         monuments or archaeological sites which have                      monuments or archaeological sites which have
         been dismembered, including furniture, more                       been dismembered, including furniture, more
         than 100 years old                                                than 100 years old
     3 . Pictures, paintings and drawings produced                     3 . Pictures, paintings, drawings and mosaics
         entirely by hand on any support and in any                        produced entirely by hand on any support and in
         material (')                                                      any material (')
     4 . Original engravings, prints and lithographs and               4. Original engravings, prints and lithographs and
         lithographic plates (')                                           lithographic plates (l)
     5 . Original works of statuary art or sculpture (')               5. Original works of statuary art or sculpture (')
     6 . Constructions and composite works (')                         6 . Constructions and composite works (')
     7 . Photographs (')                                               7 . Photographs and audiovisual material (l)
     8 . Manuscripts more than 100 years old and incu­                 8 . Manuscripts more than 100 years old and incu­
         nabula, singly or in collections                                  nabula, singly or in collections
     9. Books more than 200 years old, singly or in                    9 . Books more than 200 years old, singly or in
         collections                                                       collections
    10. Archives of any kind, on any medium, more than                10 . Archives of any kind, on any medium, more than
         50 years old                                                      50 years old
    11 . Collections and specimens for collections of                 11 . Collections and specimens for collections of
         postage stamps                                                    postage stamps
    12. Collections and specimens of fauna, flora,                    12 . Collections and specimens of fauna, flora,
         minerals or anatomy or of historical, archaeo­                    minerals or anatomy or of historical, archaeo­
         logical, palaeontological, ethnographic or                        logical, palaeontological, ethnographic or
         numismatic interest                                               numismatic interest
(') Of deceased authors .                                         (') Of deceased authors.
 ---pagebreak--- 8 . 7 . 92                              Official Journal of the European Communities                          No C 172 / 15
                        ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
      13 . Motor vehicles more than 75 years old                      13 . Motor vehicles more than 75 years old
      14. Antiques and collectors' pieces more than 100               14. Antiques and collectors' pieces more than 100
           years old                                                       years old
     The cultural objects in these categories are only               The cultural objects in these categories are only
     covered by the present Directive if they fulfil the             covered by the present Directive if they fulfil the
     financial criteria under B.                                     financial criteria under B.
B. Financial criteria applicable to certain categories            B. Financial criteria applicable to certain categories
     under A :                                                       under A :
     Category 3 : — Objects from between 1600 and                    Category 3 : — Objects from between 1600 and
                          1900 : ECU 75 000,                                             1900 : ECU 75 000,
                     — Objects from after 1900 : ECU                                 — Objects from after 1900 : ECU
                          150 000 ;                                                      150 000 ;
     Category 4 : ECU 7 500 ;                                        Category 4 : ECU 7 500 ;
     Category 5 : ECU 50 000 ;                                       Category 5 : ECU 50 000 ;
     Category 6 : ECU 100 000 ;                                      Category 6 : ECU 100 000 ;
     Category 7 : ECU 7 500 ;                                        Category 7 : ECU 7 500 ;
     Category 11 : ECU 25 000 ;                                      Category 11 : ECU 25 000 ;
     Category 14 : — Furniture, furnishings or decorative            Category 14 : — Furniture, furnishings or decorative
                          items : ECU 20 000 ;                                           items : ECU 20 000 ;
                      — Musical instruments : ECU 20 000 ;                            — Musical instruments : ECU 20 000 ;
                      — Any other object : ECU 50 000.                                — Any other object : ECU 50 000 .
     The assessment of whether or not a monetary                     The assessment of whether or not a monetary
      threshold is reached must be made when return is               threshold is reached must be made when return is
      requested. The monetary value is that of the object in          requested. The monetary value is that of the object in
      the requested Member State.                                     the requested Member State.