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Document 52013DC0310
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Fourth report on the application of Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Fourth report on the application of Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Fourth report on the application of Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State
/* COM/2013/0310 final */
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Fourth report on the application of Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State /* COM/2013/0310 final */
CONTENTS 1........... Introduction.................................................................................................................... 3 2........... Conclusions of the third report
on the application of Directive 93/7/EEC (2004-2007)..... 3 3........... Developments since the third
report................................................................................. 4 3.1........ Attempt to codify the Directive........................................................................................ 4 3.2........ “Return of cultural goods”
working group........................................................................ 4 3.3........ Other initiatives regarding
cultural objects........................................................................ 5 4........... Application of the directive
during the period 2008-2011................................................. 7 4.1........ Application reports from the
Member States................................................................... 7 4.2........ Evaluation of the application of
the Directive.................................................................... 8 5........... Next step....................................................................................................................... 9 Annex......................................................................................................................................... 10 REPORT FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Fourth report on
the application of Council Directive 93/7/EEC on the return of cultural objects
unlawfully removed from the territory of a Member State (Text with EEA relevance) 1. Introduction Council Directive 93/7/EEC, adopted on
15 March 1993[1],
introduced mechanisms for administrative cooperation between national
authorities and proceedings before the courts for the return of cultural
objects taken unlawfully from the territory of a Member State. Pursuant to Article 16 of Directive
93/7/EEC (hereinafter "the Directive"), the Member States sent a
report to the Commission on the application of the Directive over the period
2008-2011[2].
On this basis, the Commission has drawn up this document, which constitutes the
fourth report reviewing the application of the Directive[3]. This report is addressed to
the Council, the European Parliament and the European Economic and Social
Committee. 2. Conclusions
of the third report on the application of Directive 93/7/EEC (2004-2007) The third report on the application of the
Directive concluded that the Directive was a useful tool for the recovery of
certain cultural objects and thus an appropriate instrument of the European
Union for helping the Member States to protect their heritage. However, the
report reflected some disappointment among Member States as far as the
limitations of the Directive were concerned, notably the limited period allowed
for initiating return proceedings. According to the report, administrative
cooperation and the exchange of information had improved both within the Member
States (between the authorities in charge of culture, customs, the police,
etc.) and between the authorities responsible for the Directive in the various
Member States. However, it stated that the cooperation and exchange of
information between the Member States could be improved still further. The Member States considered that the lack
of use made of the Directive (with regard to both administrative cooperation
and proceedings before the national courts) was due to its limited scope and
the restrictive conditions imposed on initiating return proceedings. In this report, the Commission agreed to
launch a discussion on the possibility of revising the Directive, the first
step of which was the creation of a working group within the Committee on the
Export and Return of Cultural Goods to analyse the application of the Directive
in depth. 3. Developments
since the third report 3.1. Attempt
to codify the Directive In 2007, the consolidation of Directive
93/7/EEC formed part of the Commission's programme for simplifying the
Community acquis. The consolidation proposal was withdrawn from the programme
following the judgment given by the Court of Justice of the European Union on
6 May 2008 (Case C-133/06)[4]. This judgment had established that the
proposal to codify Directive 93/7/EEC contained a secondary legal basis in the
body of its text[5].
It was therefore not possible to continue with codification of the Directive,
since the provision in question needed to be deleted, and this would have
involved a substantive change going beyond codification. 3.2. “Return
of cultural goods” working group In the light of the conclusions of the
third report, the Commission took the necessary steps to revise the Directive. As a first step, the Commission formed the
“Return of cultural goods” working group in 2009, which was made up of
representatives of the national authorities responsible for the application of
the Directive. The group's mandate was i) to identify the main problems posed
by the implementation of the Directive and ii) to propose effective and
acceptable solutions for a possible revision of the Directive. The group was
created under the auspices of the Committee on the Export and Return of
Cultural Goods. The “Return of cultural goods” group
concluded in 2011 that Directive 93/7/EEC needed to be revised in order to make
the arrangements for returning cultural objects classified as national
treasures more effective. From the suggestions made with regard to carrying out
such a revision, the majority of members were in favour of: i) extending the
time-limit of one year for bringing return proceedings and the time-limit of
two months for the competent authorities of the requesting Member State to
check the nature of the cultural object found in another Member State, ii)
clarifying certain provisions of the Directive to render its application
easier, for example indicating the common criteria for making interpretation of
the concept of "due care and attention" more uniform with regard to
compensation of the possessor, or iii) extending the time-limit for drawing up
reports on the Directive. The members of the group gave their opinion
on other suggestions concerning the scope of the Directive, and in particular
on the removal of financial and/or age thresholds for certain categories of
objects in the Annex and on the deletion of the Annex, on fixing the burden of
proof of due care and attention, and on the possibility for individuals to
bring return proceedings. The members of the group also stressed the
value of using other non-legislative instruments to improve the cooperation and
exchange of information between the competent authorities, thus helping to
facilitate the return of cultural objects. The work of the working group and the
individual contributions of the group’s members were a very important source of
information for the impact analysis for revision of Directive 93/7/EEC[6]. The conclusions of the “Return of cultural
goods" working group were presented to the Committee on the Export and
Return of Cultural Goods at its 17th meeting on 24 October 2011. 3.3. Other
initiatives regarding cultural objects The European Union institutions and Member
States, as well as certain international organisations such as Interpol and
UNESCO, have shown growing interest in preventing and combating the illegal
trafficking of cultural objects. The Council Regulation on the export of
cultural goods was codified in 2008 (Regulation (EC) No 116/2009 of
18 December 2008[7]).
In 2011, the Commission adopted the second report on the application of this
Regulation for the period 2000-2010[8]. In response to the request of the Council
of the European Union in 2008[9],
the Commission had ordered a study on preventing and combating illicit
trafficking in cultural objects in the European Union. The final report of this
study, dated October 2011, lists the instruments of international law and
European Union law concerning cultural objects and also the obstacles to and
difficulties in preventing and fighting illicit trafficking in cultural objects[10]. The report concludes with a series of
recommendations for preventing and combating this type of trafficking. It
recommends, for example, the implementation of a system of cooperation between
the various administrations and institutions involved in preventing and
combating the unlawful trafficking of cultural objects at European level, the
creation of a European internet portal, the endorsement of the international conventions
of UNESCO and UNIDROIT[11],
the imposition of an obligation to provide information at Union level on
internet sales sites, the standardisation of national documents authorising the
dispatch of cultural objects, the creation of a "passport" for goods
being moved within Europe or the introduction of a general obligation to keep
police records of moveable cultural objects. It also recommends that Directive
93/7/EEC be updated in order to improve its efficiency in terms of the return
of cultural objects, and the creation of good practice guidelines on return. In the light of this report and other work
in the area, the Council of the European Union, during its meeting of 13 and 14
December 2011, addressed recommendations to the Commission and the Member States
on the illicit trafficking of cultural objects. In particular, the Commission
was called upon to 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[12]. Under the European Agenda for Culture and
the Work Plan for Culture 2008 – 2010, a group of national experts (Open Method
of Coordination) worked on the issue of improving the mobility of collections.
One of the sub-groups of this OMC group, working on the prevention of thefts
and illicit trafficking and the exercise of due diligence, recommended adoption
of the essential requirements relating to due care and attention[13]. Using this approach, the second Work Plan
for Culture 2011-2014 adopted by the Council[14]
sets out three major initiatives on cultural objects. Firstly, the creation of a group of experts
to put together a toolkit, including good practice guidelines and a code of
ethics on due diligence in the fight against illicit trafficking and theft of
cultural objects. At its meeting of 13 and 14 December 2011, the Council
recommended that the competent parties affected should be involved in the
setting-up of this group of experts. Secondly, examination by a group of national
experts, meeting within the framework of the open method of coordination, of
means to simplify the process of lending and borrowing works of art within the
European Union. [15]
Thirdly, the preparation of a study of the
systems for valuing works of art for insurance, state indemnity and share
liability purposes. Finally, in 2010, the Commission adopted a
proposal to recast Council Regulation (EC) No 44/2001 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters. This
proposal provides for the courts of the place where the object is located to
have competence for civil proceedings concerning rights in rem or
possession in moveable property. This place of jurisdiction, which applies to
moveable property in general, also covers proceedings for the recovery of
cultural objects by their owners. The new Regulation will contribute to greater
protection for cultural objects[16]. 4. Application
of the directive during the period 2008-2011 4.1. Application
reports from the Member States The Member States pointed out that, for
obvious reasons, they do not have information on all the cultural objects that
have left their territory[17].
It was therefore difficult for them to assess whether illegal removals have
increased or decreased. The national reports noted: ·
the infrequent application of the Directive,
particularly through return proceedings (see the tables in the Annex[18]). The Member States blamed the fact that the
Directive is seldom used on the limitations of its legal scope, in particular
the categories defined in its Annex, and on the short period of time allowed to
bring return proceedings and the difficulty in ensuring uniform application by
the national judges of Article 9 concerning compensation for the possessor in
the event that the object is returned. In addition, some Member States mentioned
the financial costs associated with return proceedings, or the difficulties in
identifying the competent court in another Member State; ·
progressive improvement in the administrative cooperation
and exchange of information between the central authorities of the Member
States, which should be continued for better implementation of the Directive. Most Member States take the view that their
cooperation and exchange of information with the authorities of other Member
States is good. However, Belgium, Bulgaria, the Czech Republic, Germany and the
United Kingdom believe that this cooperation and exchange of information is
insufficient. By way of example, the authorities point out the importance of
having the appropriate technical support to be able to search for missing items
and/or to be able to use several working languages in contacts between these
authorities; ·
the need to revise the Directive. The Member States believe that the
Directive should be made a more effective instrument for the return of cultural
objects which are classified as national treasures and have been unlawfully
removed from their territory since 1993. To this effect, they support the
proposals of the "Return of Cultural Goods" working group in favour
of revision of the current provisions. In addition, Bulgaria and Italy highlight
the problem of the unlawful traffic in archaeological objects taken from
illegal excavations, given the difficulty in proving the origin of these goods
and the date of their illegal removal. These Member States would like the
revision of the Directive to offer a solution to this problem. Finally, Member States confirm the call for
national provisions transposing the Directive to be applied as a matter of
priority. However, the restrictive conditions imposed by the Directive would
require repeated recourse to international conventions or criminal proceedings
for the recovery of cultural objects[19]. 4.2. Evaluation
of the application of the Directive The Commission listed in the Annex the
cases in which Articles 4 and 5 of the Directive have been applied, based on
information from the central authorities of the Member States. However, this
information does not always match up and may be incomplete. The most frequent acts of administrative
cooperation carried out by national authorities relate to the search for a
cultural object which has been unlawfully removed from their territory, or
notification of the discovery of such an object. Some Member States, including
Germany, Ireland, Hungary, Latvia, Austria, the Netherlands, Poland and Romania
also note that they took measures to verify the nature of the object, preserve
it or prevent any action to evade the return procedure. The national contributions record actual
returns of cultural objects achieved through negotiations between national
authorities. The number of returns agreed out of court is higher than that of
returns ruled on by the courts; these are listed in the Annex. The national reports also state that six
requests for return have been initiated, one of which has been rejected. Some
of the national authorities responsible for the application of the Directive
have indicated that they do not have information regarding any return
proceedings. Several Member States, including Belgium,
Bulgaria, Italy, Hungary, Poland and Finland, highlight the limitations of the
Directive as regards securing the return of goods, due, notably, to the
financial thresholds that apply to certain national treasures and the one-year
time limit for bringing return proceedings. They also point to the difficulty
of securing the return of archaeological goods taken from illegal excavations
due to the difficulty in proving the object's provenance and/or the date on
which it was unlawfully removed (Bulgaria and Italy). The national reports stress the importance
of effective cooperation and exchange of information between all the
authorities concerned, and particularly between the central authorities
responsible for the Directive. They state that administrative cooperation
between the central authorities of the Member States has improved, but is still
poorly structured and faces problems relating to language barriers. The reports
also identify shortcomings in the exchange of information between the
authorities concerned, which reduce efficiency. 5. Next
step The illegal trafficking of cultural objects
is a scourge affecting the European Union. The Commission is called on by the
Council of the European Union to support the Member States in preventing and
combating trafficking in cultural objects. The process of revising Directive 93/7/EEC
was started in 2009. The public consultation on this project was completed on
5 March 2012[20].
The revision of Directive 93/7/EEC provides
an opportunity for improving the possibilities for securing the return of
cultural objects classified as national treasures that have been unlawfully
removed from the territory of a Member State since 1993. In this context, the Commission is also
looking at how to improve administrative cooperation and consultation between
the authorities which carry out the tasks provided for in the Directive. xxx The Commission invites the European
Parliament, the Council and the European Economic and Social Committee to take
note of this report.
Annex Returns under amicable out-of-court
settlements, administrative cooperation measures and return proceedings from
2008 to 2011[21] ·
Overview of returns under amicable
out-of-court settlements Year || Returning State || Requesting State || Result 2008 || Germany || Czech Republic || 1 wooden Pietà statue (Močidlec) 2008 || Germany || Czech Republic || 4 wooden Church Fathers statues (Semín) 2008 || Germany || Czech Republic || 1 wooden angel statue (Klokočka) 2008 || Spain || Sweden || Archaeological objects 2009 || Germany || Czech Republic || 1 wooden angel statue, ‘Allegory of love’ (Česká Skalice) 2009 || Germany || Czech Republic || 1 wooden angel sculpture (Hněvčeves) 2009 || Austria || Czech Republic || 1 wooden statue of St John of Nepomuk (Přistoupim) 2009 || Slovenia || Italy || Gorzanis book 2009 || Austria || Czech Republic || 1 church painting of St Anna (Noutonice) 2009 || Germany || Greece || 90 antique objects 2010 || Netherlands || Czech Republic || Statues of angels (Hněvotín) (2) 2010 || Germany || Czech Republic || 1 wooden statue of St Nicholas (Libníč) 2010 || Austria || Bulgaria || Archaeological coins 2010 || Sweden || Latvia || Paintings 2010 || France || Spain || Canvas 2011 || Czech Republic || Austria || Wooden sculpture of Christ the Saviour 2011 || United Kingdom || Greece || 6 icons 2011 || Estonia || Latvia || 3 icons 2011 || United Kingdom || Italy || Two 14th and 15th century manuscripts and one 14th century missal 2011 || Germany || Austria || Collection de manuscripts 2011 || Germany || Italy || Manuscript 2011 || France || Germany || 2 sculptures ·
Requests for searches (Article 4(1) of
Directive 93/7/EEC) Year || Claimant || Against || Result || Bulgaria || Belgium || Objects not found || Italy Belgium || Germany (6) || Objects found (2) || Germany || Austria || Object not found 2010 || Hungary France Greece Czech Republic || Italy || Ongoing (painting) Ongoing (archives) Ongoing (ancient coins) Ongoing (statue) 2008 || Lithuania || Austria || Object found (proceedings ongoing) 2008 2010 || Belgium United Kingdom || Netherlands || Objects found (ecclesiastical objects) Objects found (archaeological objects) 2008-2011 || Germany Bulgaria || Austria || (7) Certain objects found, others not found (2) Objects found and returned (archaeological coins) 2008-2011 || Austria || Germany (3) || Objects found 2008-2011 || Belgium Bulgaria Czech Republic Germany France Hungary Austria Portugal Romania Slovakia Finland || Greece || Objects not found || Bulgaria || Poland || Ongoing || Poland || Germany || Objects not found || Bulgaria || Romania || Objects not found || Italy (1) Hungary (3) Czech Republic (1) || United Kingdom (5) || Objects found 1 object found, 2 objects not found Object not found 2008-2011 || Greece || All Member States (39 cases) || Objects not found ·
Notifications of objects found (Article 4(2)
of Directive 93/7/EEC) Year || Notifying State || Notified State || Result || Germany (5) || France Bulgaria Italy Spain Denmark || Positive (two sculptures returned) No action taken Positive (vase returned) No action taken No action taken 2011 || Hungary Greece Spain || Italy || No action taken (vase from Apulia) Return ongoing (liturgical objects) Positive (works of art and ancient books returned) || Italy || France || Positive (painting returned) || Estonia || Latvia || Positive (3 icons returned) 2010 2011 2010 || Netherlands || France France United Kingdom || Return ongoing (statue) No action taken (archives) No action taken (archaeological objects) || Slovenia || Austria || Notified object not identified by Austria || Germany France || Poland || Positive (sculpture returned) Assistance provided for preserving objects (10 paintings) || Finland || France || No action taken ·
Requests for return (Article 5 of Directive
93/7/EEC) Year || Claimant || Against || Object 2008 || Czech Republic || Austria || 4 wooden statues of saints and 2 reliquaries (proceedings cancelled) 2008 || Italy || Germany || Ancient bronze helmet (request refused) 2009 || Czech Republic || Netherlands || Statue of St Anne (ongoing) 2009 || Lithuania || Austria || Sculpture, “The risen Christ” (ongoing) 2010 || Czech Republic || Austria || 2 statues (ongoing) 10 statues (returned) 2011 || Czech Republic || Austria || 1 statue of St John of Nepomuk (Čímyšl) [1] Council Directive 93/7/EEC of 15 March 1993 on
the return of cultural objects unlawfully removed from the territory of a
Member State, OJ L 74, 27.3.1993, p. 74, amended by Directive
96/100/EC of the European Parliament and of the Council of 17 February
1997, OJ L 60, 1.3.1997, p. 59, and by Directive 2001/38/EC of the
European Parliament and of the Council of 5 June 2001, OJ L 187,
10.7.2001, p. 43. [2] The Commission received contributions from 22 Member
States. [3] First report from the Commission to the Council, the
European Parliament and the Economic and Social Committee on the implementation
of Council Regulation (EEC) No 3911/92 on the export of cultural goods and
Council Directive 93/7/EEC on the return of cultural objects unlawfully removed
from the territory of a Member State (COM(2000) 325 final, 25 May 2000).
Second report from the Commission to the Council, the European Parliament and
the Economic and Social Committee on the application of Council Directive
93/7/EEC on the return of cultural objects unlawfully removed from the
territory of a Member State (COM(2005) 675 final, 21 December 2005).
Third report from the Commission to the Council, the European Parliament and
the Economic and Social Committee on the application of Council Directive
93/7/EEC on the return of cultural objects unlawfully removed from the
territory of a Member State (COM(2009) 408 final, 30 July 2009]. [4] See Judgment of 6 May 2008 in case C-133/06 European
Parliament v Council of the European Union [2008] ECR I-03189, at:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006CJ0133:EN:HTML [5] The provision concerned stipulates that the Council,
acting on a proposal from the Commission, shall examine every three years and,
where appropriate, update the amounts indicated in the Annex. [6] This documentation is not public. [7] OJ L 39, 10.2.2009, p. 1. [8] Report from the Commission to the European
Parliament, the Council and the European Economic and Social Committee on the
implementation of Council Regulation (EC) No 116/2009 of 18 December 2008
on the export of cultural goods, COM(2011)382 final, 27 June 2011. [9] Conclusions of the Council of the European Union on
Preventing and Combating Illicit Trafficking in Cultural Goods, Brussels 27 and
28 November 2008, http://register.consilium.europa.eu/pdf/en/08/st14/st14224-re02.en08.pdf
[10] "Study on preventing and fighting illicit
trafficking in cultural goods in the European Union" CECOJI-CNRS-UMR 6224,
France. The study is available in French and English at http://ec.europa.eu/home-affairs/doc_centre/crime/docs/Report%20Trafficking%20in%20cultural%20goods%20EN.pdf#zoom [11] UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property 1970 and the UNIDROIT Convention on Stolen or Illegally Exported
Cultural Objects (Rome, 1995). [12] Conclusions of the Council of the European Union on
preventing and combating crime against cultural goods, 13 and
14 December 2011, http://register.consilium.europa.eu/pdf/en/11/st17/st17541.en11.pdf
[13] http://ec.europa.eu/culture/our-policy-development/working-group-on-museum-activities_en.htm [14] Conclusions of
the Council and of the Representatives of the Governments of the Member States,
meeting within the Council, on the Work Plan for Culture 2011-2014, OJ
C 325, 2.12.2010, p.1. http://ec.europa.eu/culture/our-policy-development/european-agenda_en.htm [15] The work of this group can be
consulted at
http://ec.europa.eu/culture/our-policy-development/policy-documents/omc-working-groups_en.htm [16] Regulation (EU) No 1215/2012 of the European Parliament
and of the Council of 12 December 2012 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (OJ L 351,
20.12.2012, p. 1). [17] The Czech Republic has, however, provided a summary of
the number of items which were unlawfully removed from the country and have
been identified in other Member States (189 since 1995), and unlawfully sourced
goods which have been found in its territory (243 since 1995). Italy has also
provided information on items that have been unlawfully removed from the
country (10 372 between 2008 and 2011). These data were obtained from
discoveries made by the police responsible for the protection of cultural
heritage. To a large extent, these items were archaeological objects taken from
illegal excavations. Hungary estimates that the number of items unlawfully
removed from the country is several hundred per year. According to the Romanian
police, 11 530 cultural objects (including 11 300 archaeological
items) have left the territory unlawfully. Greece identified items that have
been removed from its territory unlawfully, including 274 icons, 44 pieces of
Roman, Byzantine or post-Byzantine architecture, 1 painting from the 20th
century, 5 vases (from the Classical and Roman eras), 8 coins and 23 liturgical
objects. This Member State noted a significant increase in the number of stolen
post-Byzantine icons. [18] In order to obtain comparable data, the Commission sent
the national authorities responsible for implementing the Directive a similar
questionnaire to that sent for the preparation of the previous reports. This
questionnaire system will be revised in order to improve the reliability of the
data and make their collection easier. [19] In this respect, Bulgaria and Poland indicated that
they had secured returns under the UNESCO Convention; Romania said that it had
secured the return of 235 objects under the UNIDROIT Convention. [20] http://ec.europa.eu/culture/news/201112-consultation_en.htm [21] Source: National reports on the application of the
Directive. These tables were checked by the central authorities responsible for
implementing Directive 93/7/EEC. However, some data were confirmed by only one
of the two Member States concerned. The steps associated with the recovery of a
single object may appear in more than one table.