European Parliament approves new provisions for the return of national treasures

European Commission Press release, 'European Parliament approves new provisions for the return of national treasures ', Brussels, 16 April 2014

In an effort to give better protection to objects that form part of the cultural heritage of the Member States and to contribute to the prevention and fight against illicit trafficking in cultural objects, the European Parliament has:

 voted in favour of a new directive to help EU countries organise the return of cultural objects that were unlawfully removed from their state and are currently located in another EU country. The new legislation aims at securing the recovery by an EU Member State of any cultural item identified as "national treasures of artistic, historic or archaeological value" which were illegally removed from its territory on or after 1 January 1993.

The new Directive extends the scope of protection to all cultural objects classified as "national treasures possessing artistic, historic or archaeological value" (under Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State only a list of certain categories of national treasures or objects forming part of public collections or inventories of ecclesiastical institutions were qualified for return, e.g. archaeological objects of more than 100 years old).

In the light of national reports submitted by Member States and evaluations prepared by the European Commission, it appears that Directive 93/7/EEC is barely used and is of limited effect. Therefore, the Commission adopted, on the 30 May 2013, a proposal for a Directive of the European Parliament and of the Council on the return of cultural objects unlawfully removed from the territory of a Member State [COM (2013) 311 final]. The proposal, which recast Directive 93/7/EEC, as amended by Directives 96/100/EC and 2001/38/EC, aimed at enabling 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.

The new Directive also extends "the deadline to initiating return proceedings from 1 to 3 years" (after the requesting EU country becomes aware of the location of the cultural object and the identity of its possessor or holder). This new regulation most importantly places the burden of proof on the possessor:

if they seek compensation for the loss of the cultural object when it is returned to its original country. To obtain compensation, the possessor should prove that when they originally purchased the good, they exercised due care and attention in ascertaining its origin. Moreover, the new Directive provides for non-exhaustive criteria to facilitate a more uniform interpretation of the exercise of "due care and attention" by the possessor.

If they cannot demonstrate this in accordance with these criteria, they lose the object and are not entitled to any compensation. Interestingly, this looks as if it will operate retrospectively. Once approved by the Council, EU countries will be obliged to integrate the Directive into national law within 18 months of the Directive's adoption.