37 The return of cultural goods unlawfully
removed from a Member State
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10471/13
+ ADD 1
COM(13) 311
| Draft Directive on the return of cultural objects unlawfully removed from the territory of a Member State
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| Legal base | Article 114 TFEU; co-decision; QMV
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| Department | Culture, Media and Sport
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| Basis of consideration | Minister's letter of 24 July 2013
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| Previous Committee Report | HC 83-ix (2013-14), chapter 1 (10 July 2013)
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| Discussion in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background and previous scrutiny
37.1 In 1993, the Council adopted a Directive requiring Member
States to cooperate in locating, identifying and securing the
return of unlawfully removed cultural objects which are classified
as a national treasure, and established a common return procedure.
Its adoption was timed to coincide with the dismantling of internal
border controls and the advent of the internal market. It only
applies to cultural objects unlawfully removed from a Member State
on or after 1 January 1993.
37.2 The Commission considers that a number of factors
concerning the scope of the 1993 Directive, the time limits for
initiating return proceedings, and the application of the provisions
on compensation, have made it difficult for Member States to use
it in practice. It has therefore proposed changes which are intended
to strengthen and simplify the existing framework and to make
it more effective. These are summarised in our Ninth Report,
agreed on 10 July.
37.3 The Government told us that the overall policy
and financial implications of the changes proposed by the Commission
were unlikely to be significant for the UK, and accepted that
the Commission's proposal to require Member States to use the
Internal Market Information (IMI) system — a multilingual
secure online communication tool — would strengthen mechanisms
for exchanging information. However, the Government questioned
whether further changes were needed. In particular, it suggested
that relaxing the time limits for verifying whether a cultural
object qualified as a national treasure and for initiating return
proceedings could lead to "more frivolous use" of the
Directive and increase the workload involved in responding to
requests for information or return from other Member States.
37.4 We noted that the UK appeared not to have made
use of the 1993 Directive to secure the return of cultural objects
unlawfully removed from UK territory and asked whether this was
because its scope was too narrow and/or return procedures were
too onerous, or whether the UK preferred to use other mechanisms.
We also asked the Government to explain why the proposed extension
of time limits might lead to "more frivolous use" of
the Directive, and whether there were examples of inappropriate
use under the current EU framework. Finally, we noted that the
draft Directive would place the onus on the person holding a cultural
object subject to return proceedings to demonstrate that due care
and attention was exercised in acquiring it, and would set out
the factors which national courts should take into account in
determining whether due care and attention had, in fact, been
exercised for the purposes of providing compensation. We asked
the Government to explain what effect these provisions would have
on return proceedings in UK courts.
The Minister's letter of 24 July 2013
37.5 The Minister for Culture, Communications and
Creative Industries (Mr Edward Vaizey) says that it has not been
necessary for the UK to make use of the return procedure under
the 1993 Directive. He continues:
"In instances where the UK has received requests
for assistance from other Member States, we have been able to
cooperate and ensure effective liaison between relevant parties
such as the police, customs and auction houses without relying
on the Directive. Nevertheless, we consider that the Directive
offers useful safeguards for the protection of national treasures
and therefore contributes to the fight against illicit trade.
The proposed changes would make it easier to make requests under
the Directive in future if required."
37.6 Turning to the proposal to extend time limits,
he explains:
"The reference to potential 'frivolous use'
of the Directive if the deadlines were extended was mentioned
in the Explanatory Memorandum as an example of the sort of concerns
that have been raised previously by the UK; it was not intended
to be read as a commentary on use of the return proceedings under
the current framework, and indeed I am not aware of any cases
of inappropriate use of these provisions under the existing deadlines.
The salient point however is that we are not convinced there is
a need to extend the time available for return proceedings, on
the basis that the existing deadlines should offer sufficient
time for appropriate and responsible use of the provisions. The
Directive was adopted in order to protect national treasures and
our view is that it should be possible to bring return proceedings
within one year of becoming aware of the location of such important
objects."
37.7 The Minister does not expect the provisions
on the burden of proof to have any significant effect on return
proceedings in UK courts, as:
"[...] under UK law the burden of proof of due
care and attention in acquiring the cultural object is already
on the possessor. Under the Return of Cultural Objects Regulations
1994, the court shall not order the payment of compensation unless
it is satisfied that the possessor exercised due care and attention
in acquiring the object. The principle of including common criteria
to be taken into account by national courts is helpful in supporting
consistent interpretation of the notion of due care and attention.
In our assessment, the criteria set out are sensible and reasonable
and reflect the factors which UK courts would probably take into
account under the existing law."
Conclusion
37.8 We thank the Minister for his letter and
welcome his assurance that the provisions on burden of proof and
on the application of common criteria for determining whether
compensation should be paid are in line with UK law and practice.
We note the Government's reservations about the proposed extension
of time limits and trust that a suitable compromise may be achieved
in the course of negotiations. We are content to clear the draft
Directive from scrutiny.
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