CELEX: 51991PC0447(02)
Language: en
Date: 1992-02-10
Title: Proposal for a COUNCIL DIRECTIVE on the return of cultural objects unlawfully removed from the territory of a Member State

28 . 2 . 92                            Official Journal of the European Communities                                    No C 53 / 11
                 Category 7 : ECU 7 500 ;
                 Category 11 : ECU 35 000 ;
                 Category 14 : — Furniture, furnishings or decorative items : ECU 20 000 ;
                               — Musical instruments : ECU 20 000 ;
                               — Any other object : ECU 50 000 .
                 The assessment of whether or not a monetary threshold is reached must be made at the moment the
                 request for an authorization is made. The monetary threshold is that of the cultural object in the
                 Member State applicable under Article 2 (5) (3) of the present Regulation.
              Proposal for a Council Directive on the return of cultural objects unlawfully removed from the
                                                 territory of a Member State
                                                           (92 /C 53 / 15)
                                                COM(91) 447 final — SYN 382
                                     (Submitted by the Commission on 20 January 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,                              and have been removed from their territory in breach of
                                                                       the abovementioned national measures or of Council
                                                                       Regulation (EEC) No . . .; whereas to facilitate
Having regard to the Treaty establishing the European                  cooperation with regard to return, the scope of the
Economic Community, and in particular Article 100a                     arrangements should be confined to items belonging to
thereof,                                                               common categories of cultural object ; whereas the
                                                                       Annex to this Directive is consequently not intended to
                                                                       define objects which rank as 'national treasures' within
Having regard to the proposal from the Commission,                     the meaning of Article 36 of the Treaty, but merely
                                                                       categories of object which may be classed as such and
                                                                       may accordingly be covered by the return procedure
In cooperation with the European Parliament,                           introduced by this Directive ;
Having regard to the opinion of the Economic and                       Whereas the procedure introduced by this Directive is a
Social Committee,                                                      first step in establishing cooperation between Member
                                                                       States in this field in the context of the internal market ;
                                                                       whereas the aim is mutual recognition of the relevant
Whereas Article 8 a of the Treaty provides for the estab­              national laws ; whereas provision should therefore be
lishment, not later than 1 January 1993 , of the internal              made, in particular, for the Commission to be assisted by
market, which is to comprise an area without internal                  an advisory committee with a view to amending, if
frontiers in which the free movement of goods, persons,                necessary, the Annex to this Directive in the light of
services and capital is ensured in accordance with the                 experience,
provisions of the Treaty ;
                                                                       HAS ADOPTED THIS DIRECTIVE :
Whereas, under the terms and within the limits of Article
36 of the Treaty, Member States will after 1992 retain                                            Article 1
the right to define their national treasures and to take
the necessary measures to protect them ; whereas they                  For the purposes of this Directive :
will, on the other hand , no longer be able to apply
checks or formalities at the Community's internal
frontiers to ensure the effectiveness of those measures ;              1 . 'cultural object' means an object which :
Whereas arrangements should therefore be introduced                        — is a 'national treasure' under national legislation in
enabling Member States to secure the return to their                           the context of Article 36 of the Treaty,
territory of cultural objects which are classed as national
treasures within the meaning of Article 36 of the Treaty                       and
 ---pagebreak--- No C 53 / 12                          Official Journal of the European Communities                                  28 . 2 . 92
    — belongs to one of the categories listed in the                                        Article 4
        Annex to this Directive ;
                                                                 Member States' central authorities shall cooperate and
                                                                 promote consultation between the competent national
2 . 'unlawfully removed from the territory of a Member           authorities. These shall in particular :
    State' means :
    — removed from the territory of a Member State in            1 . seek cultural objects which have been unlawfully
        breach of its rules on the protection of national            removed from the territory of a Member State,
        treasures or in breach of Regulation (EEC) No                locating them and identifying the holder;
                                                                2. inform the Member States presumed to be concerned,
        or
                                                                     where a cultural object is found on their territory and
                                                                     there are reasonable grounds for believing that it has
    — not returned at the end of a period of lawful                  been unlawfully removed from the territory of
                                                                     another Member State ;
        temporary removal ;
3 . 'requesting Member State' means the Member State            3 . enable the competent authorities of the requesting
    from whose territory the cultural object has been                Member State to check that the object in question is a
    unlawfully removed ;                                             cultural object within the meaning of Article 1 ( 1 );
4 . 'requested Member State' means the Member State on
    whose territory a cultural object unlawfully removed        4. take any necessary measures for the physical preser­
    from the territory of another Member State is                    vation of the cultural object ;
    located ;
                                                                5. prevent, through the necessary interim measures, any
5 . 'return' means the physical return of the cultural               action to evade possible return ;
    object to the territory of the requesting Member
    State ;
                                                                6 . act as intermediary between the holder and the
6 . 'holder' means the person physically holding the                 requesting Member State .
    cultural object.
                                                                                           Article 5
                          Article 2
                                                                The requesting Member State may initiate, before the
Cultural objects which have been unlawfully removed             competent court in the requested Member State,
from the territory of a Member State shall be returned in       proceedings against the holder with the aim of securing
accordance with the procedure and in the circumstances          the return of a cultural object which has been unlawfully
provided for in this Directive.                                 removed from its territory.
                         Article 3
                                                                Proceedings may be brought only where the document
Each Member State shall appoint one or more central             initiating them is accompanied by :
authorities to carry out the tasks provided for in this
Directive .
                                                                      a document describing the object covered by the
Member States shall inform the Commission of all the                  request and certifying that it is a cultural object
                                                                     within the meaning of Article 1(1 ),
central authorities they appoint pursuant to this Article.
The Commission shall publish a list of those central            — a declaration by the competent authorities of the
authorities in the Official Journal of the European                   requesting Member State that the cultural object has
Communities, C series.                                                been unlawfully removed from its territory.
 ---pagebreak--- 28 . 2 . 92                           Official Journal of the European Communities                             No C 53 / 13
                         Article 6                              In the case of a donation or succession, the acquirer shall
                                                                not be in a more favourable position than the person
The central authority of the requesting Member State            from whom he acquired the object by that means.
shall forthwith inform the central authority of the
requested Member State that proceedings have been
initiated with the aim of securing the return of the object     The requesting Member State shall pay such compen­
in question .                                                   sation .
The central authority of the requested Member State                                      Article 11
shall forthwith inform the central authorities of the other
Member States .                                                 Expenses incurred in implementing a decision ordering
                                                                the return of a cultural object shall be borne by the
                                                                requesting Member State.
                         Article 7
                                                                                         Article 12
The central authority of the requested Member State or
of other Member States which have a legitimate interest         Payment of the fair compensation and of the expenses
may, at its request, take part in the proceedings referred      referred to in Articles 10 and 11 respectively shall be
to in Article 5 .                                               without prejudice to the requesting Member State's right
                                                                to take action, under its national law, with a view to
                                                                recovering those amounts from the persons responsible
                                                                for the unlawful removal of the cultural object from its
                         Article 8                              territory.
1 . Return proceedings provided for in this Directive
may no longer be brought more than five years after the
                                                                                         Article 13
requesting Member State became aware or ought
reasonably to have become aware of the location of the
cultural object or the identity of its holder. Such             Ownership of the cultural object after return shall be
proceedings may, at all events, no longer be brought            governed by the law of the requesting Member State.
more than 30 years after the object was unlawfully
removed from the territory of the requesting Member
State .                                                                                  Article 14
                                                                This Directive shall apply only to cultural objects
                                                                unlawfully removed from the territory of a Member
2 . Return proceedings may not be brought if removal            State on or after 1 January 1993 .
from the national territory is no longer unlawful.
                                                                                         Article 15
                         Article 9
                                                                 1 . Each Member State may extend its obligation to
                                                                return cultural objects to cover categories of object other
Save as otherwise provided in Articles 8 and 14, the            than those listed in the Annex .
competent court shall order the return of the cultural
object in question where it is found to be a cultural
object within the meaning of Article 1 ( 1 ) and to have
been removed unlawfully from national territory.                2. Each Member State may apply the arrangements
                                                                provided for by this Directive to requests for the return
                                                                of cultural objects unlawfully removed from the territory
                                                                of other Member States prior to 1 January 1993 .
                         Article 10
Where return of the object is ordered, the acquirer shall                                Article 16
be entitled to fair compensation, to be determined by the
competent court according to the circumstances of the           This Directive shall be without prejudice to any civil or
case, on condition that he proves that he could not have        criminal proceedings that may be brought, under the
known, or could not have been expected to know, that            national laws of the Member States, by the requesting
the object had been unlawfully removed from the                 Member State and/or the owner of a cultural object that
territory of the requesting Member State .                      has been stolen .
 ---pagebreak--- No C 53 / 14                               Official Journal of the European Communities                                     28 . 2 . 92
                           Article 17                                    The opinion shall be recorded in the minutes ; in
                                                                         addition, each Member State shall have the right to ask
1.     Member States shall send the Commission each                      to have its position recorded in the minutes .
year, and for the first time in February 1994, a report on
the application of this Directive .                                      The Commission shall take the utmost account of the
                                                                         opinion delivered by the committee . It shall inform the
                                                                         committee of the manner in which its opinion has been
2.     The Commission shall send the Council, the                        taken into account.
European Parliament and the Economic and Social
Committee every three years a report reviewing the                       The committee shall examine any question arising from
application of this Directive.                                           the application of the Annex to this Directive which may
                                                                         be tabled by the chairman either on his own initiative or
In the light of the assessment of the effectiveness of the               at the request of a Member State's representative.
return machinery, it shall, where appropriate, propose
amendments to this Directive .                                                                    Article 19
                                                                         Member States shall bring into force the laws, regu­
                           Article 18                                    lations and administrative provisions necessary to comply
                                                                         with this Directive not later than 1 January 1993 . They
                                                                         shall forthwith inform the Commission thereof.
For the purposes of revising the Annex to this Directive ,
the Commission shall be assisted by the committee set up
by Regulation (EEC) No . . .                                             When Member States adopt these provisions, these shall
                                                                         contain a reference to this Directive or shall be accom­
                                                                         panied by such reference at the time of their official
The representative of the Commission shall submit to the                 publication . The procedure for such reference shall be
committee a draft of the measures to be taken . The                      adopted by Member States .
committee shall deliver its opinion on the draft, within a
time limit which the chairman may lay down according                                              Article 20
to the urgency of the matter, if necessary by taking a
vote .                                                                   This Directive is addressed to the Member States .
                                                                 ANNEX
             Categories of object referred to in the second indent of Article 1 ( 1 ) to which objects classed as 'national
             treasures' within the meaning of Article 36 of the Treaty must belong to qualify for return under this
                                                                 Directive
             A.   1 . Products of archaeological excavations and archaeological finds, more than 100 years old
                  2 . Elements of artistic, historical or religious monuments or archaeological sites which have been
                      dismembered, including furniture, more than 100 years old
                  3 . Pictures , paintings and drawings produced entirely by hand on any support and in any material (')
                  4 . Original engravings, prints and lithographs and lithographic plates (')
                  5 . Original works of statuary art or sculpture (')
                  6. Constructions and composite works (')
                  7 . Photographs (')
                  8 . Manuscripts more than 100 years old and incunabula, singly or in collections
                  9 . Books more than 200 years old, singly or in collections
             (') Of deceased authors .
 ---pagebreak--- 28 . 2 . 92                             Official Journal of the European Communities                                 No C 53 / 15
               10 . Archives of any kind, on any medium, more than 50 years old
               11 . Collections and specimens for collections of postage stamps
               12 . Collections and specimens of fauna, flora, minerals or anatomy or of historical, archaeological,
                    palaeontological, ethnographic or numismatic interest
               13 . Motor vehicles more than 75 years old
               14 . Antiques and collectors' pieces more than 100 years old
               The cultural objects in these categories are only covered by the present Directive if they fulfil the
               financial criteria under B.
            B. Financial criteria applicable to certain categories under A :
               Category 3 : — Objects from between 1600 and 1900 : ECU 75 000 ;
                                — Objects from after 1900 : ECU 150 000 ;
               Category 4 : ECU 7 500 ;
               Category     5 : ECU 50 000 ;
               Category 6 : ECU 100 000 ;
               Category     7 : ECU 7 500 ;
               Category 11 : ECU 35 000 ;
               Category 14 : — Furniture, furnishings or decorative items : ECU 20 000 ;
                                — Musical instruments : ECU 20 000 ;
                                — Any other object : ECU 50 000 .
               The assessment of whether or not a monetary threshold is reached must be made when return is
               requested. The monetary value is that of the object in the requested Member State.