Explanatory Memorandum to COM(2013)311 - Return of cultural objects unlawfully removed from the territory of a Member State (Recast) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)311 - Return of cultural objects unlawfully removed from the territory of a Member State (Recast). |
|---|---|
| source | COM(2013)311  |
| date | 30-05-2013 |
· General context, reasons for and objectives of this proposal
National cultural objects are objects identified by the Member States as belonging to their cultural heritage. These objects are generally classified in terms of their cultural importance and covered by more or less stringent protection rules. Of these cultural objects, national treasures possessing artistic, historic or archaeological value (“national treasures”) under national legislation or administrative procedures within the meaning of Article 36 of the Treaty on the Functioning of the European Union (TFEU), are objects of major interest that should be preserved for future generations. As a general rule, national treasures receive better legal protection preventing their permanent removal from the Member State’s territory.
The internal market is an area without internal frontiers in which the free movement of goods is ensured in accordance with the provisions of the Treaty on the Functioning of the European Union. These provisions do not preclude prohibitions or restrictions justified on grounds of the protection of national treasures possessing artistic, historic or archaeological value within the meaning of Article 36 TFEU.
Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State i was adopted in 1993, when the internal frontiers were abolished, in order to protect the Member States’ cultural objects that are classified as national treasures. This Directive seeks to reconcile the fundamental principle of free movement of goods with the need for effective protection of national treasures.
The assessments of the Directive i have shown that its effectiveness in securing the return of cultural objects classified as national treasures which have been unlawfully removed from the territory of a Member State and are located on the territory of another Member State is limited. The main reasons for this were identified as being:
· the conditions making objects classified as national treasures eligible for return, in other words whether they belong to one of the categories referred to in the Annex and meet the financial and age thresholds;
· the short time available for bringing return proceedings;
· the cost of compensation.
The assessment reports also highlighted the need for improved administrative cooperation and consultation between the central authorities in order to enable them to better implement the Directive.
Under the system set up by the Directive, certain Member States would have to use the mechanisms provided for by international agreements in order to secure the return of their cultural objects. UNESCO’s Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the UNIDROIT Convention of 1995 on Stolen or Illegally Exported Cultural Objects have not been ratified by all Member States i.
Despite the variety of instruments available, trafficking in cultural objects has become one of the most widespread forms of illegal trade. Trafficking in cultural objects classified as national treasures is a particularly serious form of this crime which adversely affects the national identity, culture and history of the Member States, since the disappearance of national treasures deprives a State’s citizens of a mark of their identity and history.
In response to this problem and its major impact on the Member States, the Council of the European Union concluded on 13 and 14 December 2011 that measures needed to be taken to make preventing and combating crime against cultural objects more effective. It therefore recommended that the Commission, amongst other bodies, support the Member States in the effective protection of cultural objects with a view to preventing and combating trafficking and promoting complementary measures where appropriate i.
The aim of this proposal is to enable Member States to secure the return of any cultural object which is classified as a national treasure and has been unlawfully removed from their territory since 1993.
The overall objective is to contribute to the protection of cultural objects in the context of the internal market.
This initiative is consistent with the Union's policy on the protection of cultural objects. It is also in line with the above-mentioned conclusions of the Council of the European Union on preventing and combating crime against cultural goods.
The proposal for a Directive relates to the return of cultural objects by means of arrangements enabling Member States to protect their cultural objects which are classified as national treasures.
As far as the recovery of a cultural object by its owner is concerned, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012[5] on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters provides for the creation of a forum for civil recovery proceedings based on ownership at the courts of the place where the object is located. This new provision would also cover civil proceedings brought for the recovery of cultural objects.
Both initiatives are aimed at protecting cultural objects, one enabling national authorities to request the return of a cultural object which is classified as a national treasure and has been removed unlawfully from the territory, and the other giving the owner the right to seek recovery of a cultural object before the courts of the Member State where the object is located.
· Consultation of interested parties
A public consultation, addressed to all the parties concerned by this initiative, was held from 30 November 2011 to 5 March 2012. The consultation was carried out via the interactive policy-making system (“Your Voice in Europe”) in the form of two specific questionnaires, one for public authorities and bodies and the other for citizens and economic operators concerned by the issue or working in the area of cultural objects.
The Commission received 142 replies, 24 of which were from public bodies and 118 from the private sector. A summary of the results of this public consultation is available on the Europa website[6].
Most (61%) of those from the private sector taking part in the consultation felt that Directive 93/7/EEC met the needs of the Member States and that there was no need to revise it. Only 22% were in favour of revision.
However, 54% of the representatives of public authorities and bodies took the view that the Directive did not guarantee the return of national treasures unlawfully removed from the territory of a Member State. The solutions proposed for improving the Directive’s effectiveness received fairly even support, with 29% in favour of revision of the Directive, 29% in favour of improved administrative cooperation and information exchange between the competent authorities, 17% in favour of promoting ratification by the Member States of the international agreements (UNESCO and UNIDROIT) and 25% in favour of an approach combining several solutions, such as revision of the Directive together with improved administrative cooperation and consultation between the competent authorities.
· Acquisition and use of expertise
The Commission has regularly drawn up reports reviewing Directive 93/7/EEC on the basis of national reports on its application. These evaluation reports covering the period 1993 to 2011 are addressed to the European Parliament, the Council and the European Economic and Social Committee[7].
The Commission also carried out an ex post evaluation of the Directive by setting up a group of national experts representing the central authorities which carry out the tasks set out in the Directive. The role of the Return of Cultural Goods expert group, established within the Committee on the Export and Return of Cultural Goods, was to identify problems in applying the Directive and find possible solutions. The group carried out its work between 2009 and 2011.
The group concluded that the Directive should be revised to make it a more effective instrument for the return of national treasures and that mechanisms should be put in place to improve administrative cooperation and consultation between the central authorities[8].
· Impact assessment
This proposal is accompanied by an executive summary of the impact assessment and an impact assessment, a draft version of which was assessed by the Impact Assessment Board of the European Commission, which issued its opinion on 21 September 2012. The final version of the impact assessment was amended to take the Board’s recommendations into account.
The impact assessment took particular account of the reports reviewing the application of the Directive, the documentation obtained from the work of the Return of Cultural Goods expert group, the work of the OMC (Open Method of Coordination) expert group on the mobility of collections under the Work Plan for Culture 2007-2010[9], the results of the public consultation on the matter, and also studies looking into cultural goods carried out in 2004, 2007 and 2011[10].
Based on the information collected, the Commission carried out an impact assessment which examined and compared the following options[11]:
No amendment is made to Directive 93/7/EEC as amended by Directives 96/100/EC and 2001/38/EC.
The central authorities are provided with an electronic tool (the Internal Market Information System or 'IMI') to facilitate administrative cooperation, consultation and the exchange of information between these authorities.
Directive 93/7/EEC is revised to: (i) extend its scope to include all objects classified as national treasures, (ii) extend the time-limits for bringing return proceedings and for checking the cultural object, and (iii) align the conditions for compensating the possessor.
Option 4: encouraging ratification and application by the Member States of the UNESCO Convention of 1970 on cultural property
Directive 93/7/EEC remains unamended and action is focused on ratification and application by the Member States of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
The preferred approach is a combination of options 2 and 3, aimed in particular at:
- prescribing the use of the IMI administrative cooperation system between the central authorities;
- extending the scope of the Directive to include all cultural objects classified as national treasures within the meaning of Article 36 of the Treaty;
- extending the time available for bringing return proceedings;
- extending the time allowed for checking the cultural object;
- aligning the conditions for compensating the possessor in cases of return.
· Summary of the proposed action
The aim of recasting Directive 93/7/EEC, as amended by Directives 96/100/EC and 2001/38/EC, is to enable Member States to secure the return of any cultural object which is classified as a national treasure. The recast is also intended to simplify Union legislation in this area.
The changes made to the provisions of Directive 93/7/EEC concern: (i) extending its scope to cover all cultural objects classified as national treasures within the meaning of Article 36 of the Treaty, (ii) prescribing the use of the IMI system for administrative cooperation and information exchanges between the central authorities, (iii) extending the time given to the authorities of the requesting Member State to check the nature of the cultural object found in another Member State, (iv) extending the time-limit for bringing return proceedings, (v) indicating which authority of the requesting Member State starts the period for bringing return proceedings, (vi) stipulating that the possessor has the burden of proof that due care and attention was taken when the cultural object was acquired, (vii) indicating the common criteria for interpreting the concept of due care and attention and (viii) extending the time-limit for the reports assessing and reviewing the application of the Directive.
· Legal basis
The proposal is based on Article 114 of the Treaty (TFEU).
· Subsidiarity principle
The internal market is a competence that is shared between the Union and the Member States. Therefore the principle of subsidiarity applies.
Directive 93/7/EEC was adopted when the internal market was created, since any action taken in isolation by Member States towards the return of objects might be thwarted by differences between national laws.
Establishing rules on the return of objects contributes towards the smoother functioning of the internal market. It would be very difficult for a Member State to secure the return of a cultural object classified as a national treasure that has been unlawfully removed without a common procedure that is also available in the Member State where the object is located. A possessor who knows that the object has been unlawfully removed could therefore establish himself in a Member State without having to fear the loss of that object.
The cross-border dimension of the unlawful removal of cultural objects makes the Union better suited to act on these matters and enable the return of objects that have been unlawfully removed and are located in the territory of a Member State. Therefore, the objective of the proposal cannot be sufficiently achieved by Member States and requires action at EU level.
However, the Union is not competent for determining what is a national treasure or which national courts have competence for hearing the return proceedings brought by the requesting Member State against the possessor and/or holder of a cultural object that is classified as being a national treasure and has been unlawfully removed from the territory of the Member State. These matters are covered by subsidiarity, as they fall within the competence of the Member States.
· Proportionality principle
In accordance with the principle of proportionality, the proposed modifications do not go beyond what is necessary to achieve the objectives set.
The scale of the proposed measure is connected with the major factors limiting the effectiveness of Directive 93/7/EEC with regard to securing the return of certain objects classified as national treasures. This proposal is proportionate to the objective of ensuring the return of all cultural objects that are classified as national treasures and have been unlawfully removed from the territory of a Member State since 1993 and does not go beyond what is necessary for that purpose.
In order to improve its application, this proposal stipulates that administrative cooperation and information exchange between the central authorities is to be carried out using the IMI system; it also indicates which national authority of the requesting Member State starts the period for bringing return proceedings, stipulates that the possessor has the burden of proof that due care and attention was exercised, and sets out certain common criteria for interpreting the concept of due care and attention so that it is easier for national judges to arrive at a more uniform interpretation of this concept for the purposes of compensating the possessor. These criteria are not exhaustive.
However, there is no need for action with regard to other aspects, such as enabling an individual to bring return proceedings to retrieve an object considered a national treasure which belongs to him, extending the time-limit for bringing return proceedings from thirty to fifty years, or limiting the maximum amount of compensation to the possessor.
The proposal will not add to the administrative burden of the administrations; it should, in fact, reduce it.
· Legislative technique
On 1 April 1987, the Commission decided to instruct its staff that all acts should be codified after no more than ten amendments, stressing that this is a minimum requirement and that departments should endeavour to codify the texts for which they are responsible at even shorter intervals in order to ensure that their provisions are clear and readily understandable.
Codification of Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State[12] was initiated by the Commission, and a relevant proposal was submitted to the legislative authority[13]. The new Directive was to have superseded the various acts incorporated in it[14].
In the course of the legislative procedure, it was acknowledged that Article 16 i of Directive 93/7/EEC, which corresponded to Article 16 i of the proposed codified text, established a secondary legal basis. In the light of the judgment of the Court of Justice of 6 May 2008 in Case C-133/06, it was considered necessary to delete Article 16 i of the proposed codified text. Since such a deletion would have involved a substantive change going beyond straightforward codification, it was considered necessary that point 8[15] of the Interinstitutional Agreement of 20 December 1994 – Accelerated working method for official codification of legislative texts – be applied, in the light of the joint declaration on that point[16].
The Commission therefore considered it appropriate to withdraw the proposal for a Directive of the European Parliament and of the Council codifying Directive 93/7/EEC[17] and to transform the codification of the Directive into a recast in order to incorporate the necessary amendment.
As explained above, the objective of enabling Member States to secure the return of cultural objects which are classified as national treasures requires a certain number of substantial changes to be made to Directive 93/7/EEC. It has therefore been decided to apply the recasting technique in accordance with the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts[18].
This proposal is for a recast of Directive 93/7/EEC, as amended by Directives 96/100/EC and 2001/38/EC. It provides for simplification of the legislation in force and will lead to the repeal of Directives 93/7/EEC, 96/100/EC and 2001/38/EC.
· Detailed explanation of the proposal
Article 1 i defines a ‘cultural object’ as an object which is classified, before or after its unlawful removal from the territory of a Member State, among the ‘national treasures possessing artistic, historic or archaeological value’ under national legislation or administrative procedures within the meaning of Article 36 of the Treaty. The Annex to Directive 93/7/EEC is deleted.
For the purposes of the return of an object, this Directive removes the requirements that objects classified as national treasures should:
· belong to one of the common categories referred to in the Annex and to respect, where necessary, the age and/or financial thresholds set for those categories, or,
· where the objects do not belong to one of those categories, form an integral part of public collections listed in the inventories of museums, archives or libraries' conservation collections or the inventories of ecclesiastical institutions.
Each Member State must define their national treasures within the meaning and the limits of Article 36 of the Treaty. The Annex to Directive 93/7/EEC is not intended to define objects which rank as national treasures within the meaning of that article, but merely categories of object which may be classified as such and may be eligible for return proceedings.
This proposal seeks to reconcile the fundamental principle of the free movement of cultural objects with the need for effective protection of national treasures. It confirms the intention of the legislature of 1993 to make Directive 93/7/EEC a first step in establishing cooperation between Member States in this field in the context of the internal market, and that its aim was mutual recognition of the relevant national laws.
This proposal meets the repeated demand made by representatives of the Member States for effective arrangements for the return of cultural objects classified as national treasures. It allows Member States to secure the return of cultural objects which are classified as national treasures and have been unlawfully removed from their territory since 1993, and thus provides better protection for the Member States’ cultural heritage.
However, the possessor would be able to submit evidence in the return proceedings to argue that the requesting State infringed Article 36 of the Treaty when it classified the object as a national treasure. The court in question will then have to make a ruling, where necessary after sending a referral for a preliminary ruling to the Court of Justice of the European Union.
Articles 4 and 6 provide for the use by the central authorities of the Internal Market Information System ("IMI") in order to facilitate administrative cooperation, consultation and the exchange of information between them.
Article 4 i extends the time-limit allowed to the competent authority of the requesting Member State to check that the object discovered in another Member State is a cultural object to five months after the notification that the object has been discovered.
In view of the cross-border aspect of this issue, extending this time-limit will contribute to more effective administrative cooperation between the competent authorities.
Article 7 i stipulates that the return proceedings may not be brought more than three years after the central authority of the requesting Member State became aware of the location of the cultural object and of the identity of its possessor or holder.
The extension of this period takes account of the complexity of cross-border relations and also the obligation of due care and attention incumbent on the requesting State.
Article 9 contains common criteria for interpreting the concept of the due care and attention exercised by the possessor in acquiring the object. These criteria are based on those set out in Articles 4 i and 6 i of the UNIDROIT Convention of 1995.
Under this proposal, the burden of proof of due care and attention in acquiring the object will lie with the possessor. The person acquiring the object will be entitled to compensation provided that he can prove that he exercised due care and attention in acquiring the object with respect to whether the cultural object was lawfully removed from the territory of the requesting Member State.
These changes should enable the Directive to be applied more uniformly and, where necessary, make it more difficult for possessors acting in bad faith or not exercising due care and attention to obtain compensation.
Article 16 lays down the evaluation and monitoring arrangements allowing the other institutions of the Union to gain an insight into the actual implementation of the Directive. The reports reviewing the application of the Directive will be drawn up every five years. A review clause is included.
· Comitology and delegated acts
Article 17 of Directive 93/7/EEC provides for the Commission to be assisted by the committee established by Article 8 of Regulation (EC) No 116/2009 (codified version of Regulation (EEC) No 3911/92 on the export of cultural goods)[19]. This is the Committee on the Export and Return of Cultural Goods, which is an advisory committee of the Commission made up of representatives of the Member States.
Directive 93/7/EEC stipulates that the Committee is to examine any question arising from the application of its Annex which may be tabled by the chairman either on his own initiative or at the request of the representative of a Member State.
Since the new Directive does not contain an annex, the reference to the Committee has been deleted in the proposal.
In accordance with the Communication from the Commission entitled “Framework for Commission's expert groups: horizontal rules and public register”, the Commission will set up, where necessary, an expert group made up of experts from the central authorities responsible for the Directive to set out the operating procedure for using the Internal Market Information System (IMI) in the area of cultural objects.
· Repeal of existing legislation
The adoption of this proposal for a recast will lead to the repeal of the legislation in force, Directives 93/7/EEC, 96/100/EC and 2001/38/EC.
· Amendment of existing legislation
This Directive amends the Annex to Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System to include the new Directive.
· European Economic Area
The proposed act is relevant to the EEA and should therefore extend to the European Economic Area.
Contents
- Budgetary implications
- Consistency with other policies and objectives of the Union
- 2. Results of consultations with interested parties and impact assessment
- Option 1: no change to the current situation
- Option 2: promoting the use of common tools by the central authorities
- Option 3: revision of Directive 93/7/EEC
- Option 4: encouraging ratification and application by the Member States of the UNESCO Convention of 1970 on cultural property
- 3. Legal aspects of the proposal
- 4. Additional information
The budgetary implications of this proposal are set out in the financial statement attached to the proposal. The proposal involves only administrative costs.
ê 93/7/EEC (adapted)