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63
THE SAFEGUARDING OF FOREIGN CULTURAL OBJECTS
ON LOAN IN GERMANY
Matthias Weller*
I. IntroductIon
Treasures of the Sons of Heaven – The Imperial Collection from the National
Palace Museum in Taipei:1 this is the exhibition that triggered the enactment
of the German anti-seizure statute. In 1992, a diplomat of the Taiwanese
consulate in Bonn and the directors of the Art and Exhibition Hall of the
Federal Republic of Germany,2 also in Bonn, developed the idea of this
ambitious project. At the beginning it received little interest from Taiwan,
and the negotiations took until 1996 to convince the National Palace Museum
in Taipei to support it in principle. This museum is one of Taiwan’s greatest
attractions. It houses more than 650,000 pieces of Chinese bronze, jade,
calligraphy, painting and porcelain. The collection is estimated to be one-
tenth of China’s cultural treasures. However, as is generally known, Taiwan
is the main island of the Republic of China. Its Government, the national
Government of all China during a certain time, lost control over the Chinese
mainland to the People’s Republic of China as a result of the Chinese Civil
War and moved the collection from the Forbidden City in Beijing in 1949
ensure that the exhibition would not provide the People’s Republic of China
with an opportunity to gain possession of the treasures while on loan in
1 Ursula Toyka-Fuong (ed.), Ausstellung Schätze der Himmelssöhne. Die Kaiserliche SammlungUrsula Toyka-Fuong (ed.), Ausstellung Schätze der Himmelssöhne. Die Kaiserliche SammlungDie Kaiserliche Sammlung
aus dem Nationalen Palastmuseum, Taipeh, Die Großen Sammlungem, vom 18. Juli bis 12.
in Bonn in der Kunst- und Ausstellungshalle der Bundesrepublik Deutschland GmbH, Katalog,
2 Kunst- und Ausstellungshalle der Bundesrepublik Deutschland GmbH, <http://www.kah-
bonn.de>.
* Dr. jur., Mag.rer.publ., Senior Research Fellow, Institute for Foreign and Private
International and Commercial Law, University of Heidelberg, Germany, and
Chairman of the German Institute of Art and Law (Institut für Kunst und Recht
IFKUR e.V.), Heidelberg. The text is based on the author’s presentation at the
conference of the Institute of Art and Law “State Immunity, Anti-Seizure and
Customary International Law – Transparency, Integrity, Mobility and Security
under Cross-Border Loans and other Sharing Transaction affecting Cultural
th and 18th July 2008, and on the author’s presentation at
the conference of the Institute of Art and Law and the Art Law Centre Geneva,
Loan within the European Union‘, 5th and 6th
Fine Art, Budapest.
Vol. XIV, Issue 1 Art Antiquity and Law April 2009
64
Germany. The Museum made clear that any kind of declaration by the German
Government to guarantee safe conduct for the treasures against claims raised
3 In
order to make the exhibition happen, an anti-seizure statute turned out to be
conditio sine qua non.
II. LegIsLatIve HIstory
Republic of Germany and on the occasion of the then occurring implementation
th March 1993 on the Return of Cultural
4 the
German Government extended article 2 of the bill5 – article 1 provided for
the implementation legislature6 – that was to amend the German Act on the
Protection of German Cultural Goods against Loss, in addition to certain
adjustments relating to the implementation, by a provision (section 20) that
reads in translation:
(1) If foreign cultural property is to be loaned temporarily to
an art exhibition in the Federal Republic of Germany, the competent
highest state authority may – subject to consent by the Federal
Central Authority – issue to the lender a guarantee of return in the
moment of time as determined. In the case of art exhibits instituted
by the Federal Republic or a Federal Agency, the competent federal
authority decides upon the issuing of the guarantee.
(2) The guarantee is to be issued in writing prior to import
of the cultural good and by using the term ‘Rechtsverbindliche
Rückgabezusage [Legally Binding Return Guarantee]’. The
guarantee cannot be withdrawn or cancelled.
(3) The guarantee has the effect that no rights of third parties
to the cultural good can be raised against the lender’s claim for
recovery.
(4) Until recovery by the lender judicial proceedings
on recovery, interim measures, attachments and seizures are
3 Ingrid Fuchs,Ingrid Fuchs, Kulturaustausch: Schätze der Himmelssöhne – “Das Unmögliche machen wir“Das Unmögliche machen wirDas Unmögliche machen wir
wahr””, <www.gio.gov.tw/taiwan-website/5-gp/museum/kk23.htm> (18 Feb. 2009).
et seq.
5 Entwurf eines Gesetzes zur Umsetzung von Richtlinien der Europäischen GemeinschaftenEntwurf eines Gesetzes zur Umsetzung von Richtlinien der Europäischen Gemeinschaften
über die Rückgabe von unrechtmäßig verbrachten Kulturgütern und zur Abwanderung des
Gesetzes zum Schutz deutschen Kulturgutes gegen Abwanderung (Kulturgutsicherungsgesetz
unrechtmäßig aus dem Hoheitsgebiet eines Mitgliedstaates verbrachten Kulturgütern
(Kulturgüterrückgabegesetz – KultGüRückG), BGBl. I 1998, 3162.
Gesetz zum Schutz deutschen Kulturgutes gegen Abwanderung, BGBl. I 1955, 501.
65
III. condItIons for IssuIng a return guarantee
In its subsection (1), the provision empowers the competent authorities to
issue a return guarantee for foreign cultural goods temporarily on loan in
Germany and, at the same time, regulates the respective competencies between
the federal level and the states (Länder).
1. Application for Return Guarantee
The return guarantee will be issued only upon application. Both parties to the
loan may submit an application. German authorities report that it is usually
the borrower, upon the lender’s demand, that takes the initiative.8 There is
no formal requirement. However the applicant needs to ensure that all the
and duration of the exhibition is provided.
2. Competency
Competency is an important issue because lack of competency of the authority
issuing the administrative decision ‘return guarantee’ constitutes one of the
very few possible grounds for the invalidity (Nichtigkeit) of the decision
under general rules of German administrative law.9 In principle, the issue is
easy to resolve: if the exhibition takes place in one of the Federal States, the
highest administrative authority of that state is competent, i.e. a state’s Ministry
(Landesministerium),10 however subject to consent by the Federal Central
Authority, i.e. the ‘Commissioner for Culture and Media’.11 In case of doubts,
for example if the exhibition is run by a legal person incorporated under private
law having its seat in one of the states but wholly owned by the Federal Republic
of Germany,12 it is the common practice of the state authority and the federal
authority to each issue a return guarantee in order to avoid any uncertainty.
3. ‘Cultural Good’
materials. The scope of this term must therefore be deduced from the use of
the term in other statutes and from the objective of the provision to foster the
international cultural exchange13 – an objective that would appear to advocate
8 Sabine Boos, Kulturgut als Gegenstand des grenzüberschreitenden Leihverkehrs, (Berlin,
2005), p. 241.p. 241.
9 See section 44 (2) no. 3 GermanAct on AdministrativeProcedure (German Act on Administrative Procedure (Verwaltungsverfahrensgesetz,
VwVfG).
10 In the Free State of Bavaria, for example, the Bavarian State Ministry of Science, Research and
Art (Bayerisches Staatsministerium für Wissenschaft, Forschung und Kunst) is competent.
11 Beauftragter der Bundesregierung für Kultur und Medien, having agencies in Bonn and Berlin,
see German Ofcial Journal (Bundesgesetzblatt) 1998 I, p. 3288.
12 E.g. the Exhibition Hall of the Federal Republic of Germany is run by a Limited Liability
Company situated in North Rhine Westphalia (Nordrhein-Westfalen), but owned by the Federal
Republic of Germany.
13
Vol. XIV, Issue 1 Art Antiquity and Law April 2009
66
a broad interpretation.14 However, the Federal Central Authority has been
reported to have refused to consent to the issuing of a return guarantee for an
exhibition that intended to display Adolf Hitler’s and Joseph Stalin’s jackets
next to each other and to draw whatever insights from the immediate adjacency
of representative clothes of the two dictators. The reason to refuse the issuing
was that these objects did not count as ‘cultural goods’.15 From a legal point
of view, it might have been more convincing to simply deny the protection
in exercising the discretion vested in the competent authorities because of a
dubious concept of the intended exhibition, but politically it is of course easier
to refer to a missing precondition for the application of the relevant statute.
4. ‘Foreign’
Section (1) requires the cultural good to be ‘foreign’. Soon after the enactment
doubts arose as to whether cultural objects removed from Germany by Soviet
troups in the course and after the Second World War constitute ‘foreign’ cultural
goods in this sense.16 However, according to the legislative materials, the anti-
seizure statute empowers the competent authorities to issue a return guarantee
for cultural goods “that are loaned from abroad to the Federal Republic, for
Consequently, the only requirement is that the cultural
object be situated abroad before it comes to Germany.18 This understanding
is supported by the Governmental Reply to the Parliamentary Interrogation
demanded by certain Members of Parliament about the experiences with the
new anti-seizure statute,19 because the Government announced that it would
exercise its discretion not to issue a return guarantee in respect of cultural goods
removed from Germany by Soviet troups (‘Beutegut’). If ‘foreign’ were to be
understood as requiring the cultural good to be of a ‘foreign nationality’ or to
be property of a foreign person, the provision would not grant any discretion to
20
14 Boos,Boos, op. cit. note 5, at, p. 248.
15
in Koordinierungsstelle für Kulturgutverluste Magdeburg/Beauftragter der Bundesregierung
für Kultur und Medien
16 E.g. Susanne Schoen, ‚Kulturgüterschutz bei – illegaler – Rückkehr kriegsbedingt verbrachterE.g. Susanne Schoen, ‚Kulturgüterschutz bei – illegaler – Rückkehr kriegsbedingt verbrachter
Kulturgüter aus Russland nach Deutschland‘, Neue Juristische Wochenschrift
Bestimmungen ermöglichen die Zusicherung von ‘Freiem Geleit’ für Kulturgut, das aus dem
18 Sabine Boos,Sabine Boos, op. cit. note 5, at, p. 249.
19 Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Ina Albowitz, Hans-Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Ina Albowitz, Hans-
Fraktion der F.D.P – Drucksache 14/6603, BT-Drucks. 14/6686 of 16 July 2001.
20 See also Bernhard Kempen, Internationaler Kulturgüteraustausch: Die Bedeutung derSee also Bernhard Kempen, Internationaler Kulturgüteraustausch: Die Bedeutung der
et al. (eds.), Der Staat des
Grundgesetzes – Kontinuität und Wandel, Festschrift für Peter Badura zum siebzigsten
„freien Geleits“ für Kulturgüter’,’,, Neue Juristische Wochenschrift
5. ‘Exhibition’
The clear wording of the statute excludes its application to loans of cultural
– which supports the submission that the policy underlying the anti-seizure
statute is the facilitation of public access to the cultural objects.21 In turn,
public access provides for the criterion whether or not the intended activity
constitutes an ‘exhibition’.22
6. ‘Temporarily’
Subsection (1) grants immunity only to cultural objects temporarily on loan from
abroad. Permanent and presumably even long term loans are thus not covered.23
By limiting the time during which a return guarantee is available, the statute
takes account of the effect of the return guarantee on third party rights.24
7. Discretion
competent authorities discretion as to whether or not to issue a return guarantee.
Any such discretion must be exercised, in light of the constitutionally
guaranteed rule of law (Rechtsstaatsprinzip), in a rational and proportional
way that takes account of the objectives of the provision that grants the
discretion, but also of all other relevant circumstances. In its Reply to the
Parliamentary Interrogation on the relevant criteria,25 the Government stated
conviction that it is entitled to refuse to consent to or refuse to issue a return
guarantee for evidently misappropriated property of private individuals or
public entities, “like in the case of ‘Beutegut26 Misappropriated property
therefore, that no return guarantee would be issued or consented to in this case
either. However, the critical point is, how the competent authorities acquire
the necessary knowledge to exercise their discretion on the basis of these
21
statutes see e.g. Erik Jayme, ‘Globalization in Art Law: Clash of Interests and International
Tendencies’, 38 Vand.J.Transn’l L. 928 (2005), at p. 929.
22 Sabine Boos, op.cit. note 5, at p. 250.
23 Section 2 of the Austrian Anti-Seizure Statute, Federal Act on the Temporary Immunity of Loans
of Cultural Goods for Public Exhibitions (Bundesgesetz über die vorübergehende sachliche
Immunität von Kulturgut-Leihgaben zum Zweck der öffentlichen Ausstellung
lines of the German statute – expressly restricts the maximum time of a return guarantee to one
year. Even though there is no such maximum time under the German statute, the competent
authorities would presumably be hesitant to exercise their discretion to issue a return guarantee
of a longer duration than one year.
24 Sabine Boos, op.cit. note 5, at p. 250.
25 See above,
26 See above, note 19 and accompanying text.
Vol. XIV, Issue 1 Art Antiquity and Law April 2009
68
guidelines. Unfortunately, applications for return guarantees are not published
prior to the issuing which would provide potential third party claimants
with the opportunity to submit objections to the authorities. The German
legislator should consider introducing such opportunity because it would
greatly enhance the legitimacy of the return guarantee once it is issued.
Whereas at the time the Government had answered the follow-up question in
the negative whether such a case had already arisen,28 meanwhile the Federal
Central Authority has been reported to have refused to grant a return guarantee
at least once recently29 when it was confronted with the request for protection
time when the photos were taken. This album was to be loaned from Russia to
Germany for exhibition at the Brandenburg Memorials Foundation, Memorial
and Museum Sachsenhausen, after it had reappeared in the archives of the so-
called People’s Commisariat for Internal Affairs, the NKVD. However, since
the Federal Republic of Germany, in its capacity as the State being identical
‘Third Reich’),30 claims to be entitled to the photo album, no return guarantee
was issued, and digital copies of the album were displayed instead.31
III. LegaL effects of tHe return guarantee
As the two distinct subsections in section 20 indicate, a return guarantee
produces legal effects on two levels, subsection (3) on the level of substantive
law and subsection (4) on the level of procedural law. The latter will be
1. Procedural Law
Subsection (4) excludes any judicial proceedings on recovery, interim
Compare the Swiss Federal Act on the International Transfer of Cultural Property (Cultural Property
The request is published in the Federal Bulletin. The publication contains a precise description of
a return guarantee, the request will be denied and not published. 3 Parties pursuant to provisions of
28 See note 19, at p. 2, Question no. 9.
29
and Media.
30 German Federal Constitutional Court (German Federal Constitutional Court (Bundesverfassungsgericht
et seq.
31 Regina Mönch, Fotoausstellung: Das Album des Mörders,egina Mönch, Fotoausstellung: Das Album des Mörders, Frankfurter Allgemeine Zeitung, 12
69
measures securing enforcement of claims for money (Arrestverfügung),32
attachments and seizures. The term ‘seizure’ includes those under criminal
procedural law.33 Interim measures other than those securing enforcement of
claims for money (einstweilige Verfügung)34 are not mentioned in subsection
(4), although these measures could aim, inter alia, at the freezing of a chattel
such as a cultural object on loan from abroad for a future enforcement of
an action for recovery of possession of that object. However, the ratio of
subsection (4) is understood to allow the extension of its effects to this type of
interim measure.35 It is important to note that subsection (4) thus only excludes
proceedings for recovery of the loaned object, however not proceedings on
other issues such as e.g. damages for the unlawful retention of the object or
unlawful use. The protection that is granted by the return guarantee is therefore
simply to guarantee the return – no more, no less. Whether the presence
of the loaned object protected by the return guarantee validly constitutes
international jurisdiction of the German courts to hear actions for damages
under section 23 German Code of Civil Procedure is unclear. According to
this provision any foreign party may be sued in any matter in German courts
as soon as any of his assets is present within Germany. Presumably, the return
guarantee does not exclude the application of this ground of jurisdiction in
actions other than for recovery. However, vis-à-vis defendants domiciled
in other EU Member States, the application of this provision is pre-empted
by the Brussels I-Regulation36 according to its Article 3 in connection with
Exhibit I as being generally exorbitant, even though actions relating to the res
present on the territory cannot be considered to be grounded on exorbitant
jurisdiction. Jurisdiction based on the presence of a chattel on the territory of
the State whose courts have been seized with the matter is not available under
the Brussels I-Regulation.38
32 See section 916See section 916 et seq. German Code of Civil Procedure (German Code of Civil Procedure (Zivilprozessordnung
33 See section 94 et seq. German Code of Criminal Procedure (German Code of Criminal Procedure (Strafprozessordnung
Bernhard Kempen (above, Reinhard Mußgnug,
Kunstwerke und anderes Kulturgut, in Harald Hohmann/Klaus John (eds.), Kommentar zum
Ausfuhrrecht, München 2002, p. 1818, at p. 1828.
34 See section 935 et seq. German Code of Civil Procedure (Zivilprozessordnung
35 Bernhard Kempen. above, note 20, p. 1091.
36 Council Regulation (EC) No 44/2001 of 22 Dec. 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (‘Brussels I Regulation’), Ofcial
Journal L 012 of 16 January 2001, pp.1-23.
Article 3 Brusels I-Regulation reads: “1. Persons domiciled in a Member State may be sued1. Persons domiciled in a Member State may be sued
this Chapter 2. In particular the rules of national jurisdiction set out in Annex I shall not be
38 However, it seems that section 23 German Code of Civil Procedure is well available
for interim measures under Article 31 Brussels I-Regulation that refers to the ground
Case C-391/95 – Van Uden, a substantial connection with the Member State whose courts are
seized is necessary – a precondition evidently met by interim measures in connection
with a loan present on the territory of the respective Member State whose courts are seized.
Vol. XIV, Issue 1 Art Antiquity and Law April 2009
2. Substantive Law
According to subsection (3) no third party rights can be invoked against the
lender’s claim for return of the loan. The nature of this claim is of no relevance.
Therefore, subsection (3) applies to contractual claims as well as to claims of
unjust enrichment in the case of invalidity of the loan agreement. The wording
of subsection (3) focuses on rights of third parties that can be raised as a defence
against the lender’s claim for return of the loaned object and thus might not fully
exclude any third party rights arising from the status as owner, in particular
not claims for damages that arise from the violation of the (alleged) ownership
other hand, the Explanatory Report describes the effects of subsection (3) as
follows: “The invoking of private rights to the loan must stand back for the
39 Arguably, this
suspension of private rights includes damages substituting the loan or arising
from its unlawful use by possessors in connection with the loan. The presence
of the object in Germany under the protection of a return guarantee would then
have to be considered rightful in its entirety and not constituting any tort or
other violation of the rights of a potentially true owner other than the lender.
Such an interpretation would be in conformity with the ratio of the statute to
encourage lenders to send their cultural objects to exhibitions abroad. Such
interpretation would not cover torts already committed elsewhere. However,
there is no court decision on this point so far. In addition, subsection (3) might
be of relevance for claims raised in foreign courts for recovery while the loan
is temporarily in Germany. For, under the lex rei sitae, the law of the place
where the res is situated governs issues relating to title. If the foreign court
adheres to this choice-of-law rule and thus applies German substantive law,
then subsection (3) will have the effect of suspending any claim based on
claimants therefore will presumably be unable, even in foreign courts, to
of the cultural object to Germany.
Iv. duratIon of tHe LegaL effects
1. Beginning
Subsection (2) expressly requires the return guarantee to be validly issued
prior to the import of the cultural object. The issuing of a return guarantee
after the object is present in Germany is therefore impossible. The policy
underlying this restriction is dubious.
39 Entwurf eines Gesetzes zur Umsetzung von Richtlinien der Europäischen GemeinschaftenEntwurf eines Gesetzes zur Umsetzung von Richtlinien der Europäischen Gemeinschaften
über die Rückgabe von unrechtmäßig verbrachten Kulturgütern und zur Abwanderung des
Gesetzes zum Schutz deutschen Kulturgutes gegen Abwanderung (Kulturgutsicherungsgesetz
p. 10.
2. Withdrawal
As opposed to administrative decisions in general,40 the return guarantee cannot
be withdrawn, even if it turns out to be unlawful. The issuing authorities thus
do not have any power to correct a decision once it assumed validity at the
moment the addressee receives it. However, if the return guarantee is invalid
for reasons of substantive law, no withdrawal is necessary because an invalid
administrative decision does not assume any legal effects.41 But invalidity
occurs only in very limited, exceptional circumstances.
3. Suspension
A third party may nevertheless challenge the return guarantee in administrative
court proceedings, and such action (Anfechtungsklage)42 usually suspends the
on the merits.43 However, section 80(2) no. 4 German Act of Administrative
Court Proceedings excludes the effect of suspension of actions to challenge
administrative decisions in cases that warrant the immediate execution in the
public interest or in the prevailing interest of the other party, and it is likely that
section 20 German Act on the Protection of German Cultural Goods against
Loss expresses an interest of the public as well as the prevailing of the interest
of the lender in this sense. Even if this were the case, it would have been more
transparent if section 20 had expressly ordered the immediate executability
of the return guarantee, as other statutes do in respect to other administrative
decisions.44 The lender may therefore be well advised to apply proactively to
the issuing authority to expressly order the immediate execution of its return
guarantee, which is possible under general administrative law. The third party
can still react by applying for interim measures against the order of immediate
executability.45 This decision turns on the prospects of success in the main
proceedings about the challenge of the return guarantee that are considered to
be very limited. The only possible grounds for success in the main proceedings
Directive on the return of cultural objects unlawfully removed from the
territory of a Member State46 and under public international treaty law for
40 See sections 48, 49 German Act on Administative Procedure (Verwaltungsverfahrensgesetz,
VwVfG).
41 See section 44 German Act on Administrative Procedure (Verwaltungsverfahrensgesetz,
VwVfG).
42 Section 42 German Code of Administrative Court Proceedings (Verwaltungsgerichtsordnung,
43 Section 80 (1) German Code of Administrative Court Proceedings (Verwaltungsgerichtsordnung,
44 See section 80 (2) no. 3 German Code of Administrative Court Proceedings
(Verwaltungsgerichtsordnung
45 Sections 80a(3), 80(5) German Code of Administrative Court Proceedings
(Verwaltungsgerichtsordnung
46
Vol. XIV, Issue 1 Art Antiquity and Law April 2009
foreign States to recover illegally removed cultural property. Although this
matter is not fully settled, there is reason to argue that the prospects of success
in the main proceedings are so small that a court asked for interim measures
against the return guarantee would not grant it – at least until a court decision
has been handed down to the effect that the claims of foreign States under
public international treaty law and the European Directive as implemented
which the prospects of success in the main proceedings may prevail is that the
third party claimant does not have access to justice anywhere else in the world.
In this case, the constitutionally guaranteed right of access to justice assumes
more weight than usual,48 and it cannot be excluded that a court might decide
in such circumstances that the third party claimant should succeed in the
main proceedings in setting aside the return guarantee, thus ordering interim
measures against the return guarantee already during the loan. Therefore,
even though a third party action to challenge the return guarantee will hardly
ever have success, it can cause some litigation on the occasion of the loan – to
the detriment of the objective of the anti-seizure statute to encourage foreign
lenders. The legislator should consider eliminating this danger.
4. Termination
According to subsection (4) the legal effects of the return guarantee in respect
to the protection against enforcement measures expire at the moment when the
lender receives the cultural object. Evidently, the statute imagines the scenario
that the lender receives the object outside Germany. However, the wording
covers the interpretation that the legal effects will expire if the lender receives,
for example through his agents, the object within Germany. The lender should
therefore ensure that the organisation of transport does not give rise to the
argument that the object was returned to the lender already in Germany and that
enforcement measures were no longer barred by the return guarantee.
v. european communIty Law
return of cultural objects unlawfully removed from the territory of a Member
State,49 any Member State of the European Union may, in the courts of the
Member State where the object is present, initiate proceedings against the
possessor of a cultural object unlawfully removed from its territory with the
discussion of its interrelation with the return guarantee see below sub VI.
48 See Matthias Weller, ‘Die rechtsverbindliche Rückgabezusage’, in Uwe Blaurock et al (eds.),
Festschrift zum 70. Geburtstag, (Berlin, 2009), forthcoming.
49 Ofcial Journal
guarantee issued under an anti-seizure statute, and several arguments have
including secondary legislation such as Directives as implemented in the
national legal orders pursuant to Article 249(3) EC takes priority over national
law, and national law must be interpreted in light of EC law. Therefore, even
if section 20(4) of the German Act on the Protection of German Cultural
Property applies to claims under public law of other Member States such as
50 such interpretation must still be in
51
must be interpreted in light of EC primary law. According to article 151(2)
EC “action by the Community shall be aimed at encouraging co-operation
between Member States and, if necessary, supporting and supplementing
from another Member State.52 In as much as immunity for artworks on loan
from abroad is to be conceptualised as a rule of customary international law,53
such a rule forms part of EC law on the level of EC primary law54 and thus
In addition, one may argue that temporary loans fall outside the competence
of the EC to regulate the internal market because it falls within title XII of
the EC Treaty (‘Culture’) that merely grants a competency to support non-
commercial cultural exchange but no competency to enact directives.55 To
sum up: it is almost certain that a return guarantee, once issued, cannot be
set aside by administrative proceedings during the loan on the grounds that it
violates Community law.
50 Such an interpretation is put forward by Julia El-Bitar, ‘Das Verhältnis zwischen „Freiem
Geleit“ und gemeinschaftsrechtlicher Rückgabeklage,’ 2005 Zeitschrift für europäisches
Privatrecht
‘private Rechte’ [private rights], i.e. not those of States.
51 Doubts are expressed by Isabel Kühl,Doubts are expressed by Isabel Kühl, Internationale Leihverkehr Angelika
Fuchs, Kulturgüterschutz im Kulturgutsicherungsgesetz, Praxis des internationalen Privat- und
but compare Julia El-Bitar, op. cit. note 50, at p.
52 Erik Jayme/Alexander Geckler,Erik Jayme/Alexander Geckler, Internationale Kunstausstellungen: „Freies Geleit“ für
Leihgaben
53 See Matthias Weller, ‘Immunity for Artworks on Loan? A Review of International Customary
Law and Municipal Anti-seizure Statutes in Light of the Liechtenstein Litigation’, Vanderbilt
Journal of Transnational Law
54 International Fruit Company
Werner Schroeder in Rudolf Streinz, Vertrag über die Europäische Union und Vertrag zur
Gründung der Europäischen Gemeinschaften Rudolf
Geiger, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen
Gemeinschaft Zur Stellung
des Völkerrechts in der EU, (1999 EuZW) 5, at p. 11.
55 Bernhard Kempen,Bernhard Kempen, op.cit. note 20, p. 1096.
Vol. XIV, Issue 1 Art Antiquity and Law April 2009
vI. unesco conventIon of 1970
of Prohibiting and Preventing the Illicit Import, Export and Transfer of
56 and has already implemented it in German
law, entering into force on 29th February 2008.58 Claims granted to Contracting
States under the implementation legislation are considered to be covered by
the return guarantee. However, discretion to issue the return guarantee has to
be exercised to the effect that no rule of law is violated. If the claim under the
implementation legislation also applies to loans in Germany, a return guarantee
it might be subject to successful challenge. However, no court authority is
available on the issue of whether and if so to what extent the implementation
legislation also covers loans. German academic writing has so far argued
for a claim for the recovery of certain stolen objects but does not expressly
extend to loaned objects, although it might well be interpreted to this effect.59
Even if this is the case, Germany has only implemented a claim in respect
to illegally exported cultural property, not to stolen property.60 This might
violate Germany’s treaty obligations but would not affect the legality within
the domestic legal system of Germany of any return guarantee in respect to
stolen cultural property. In respect to the claim for the recovery of illegally
Convention to curtail this claim for return guarantees. To put it differently:
the return guarantee, once issued, cannot be set aside by administrative
proceedings during the loan on the grounds of the Convention.
56 10 I.L.M. 289.10 I.L.M. 289.
zur Verhütung der rechtswidrigen Einfuhr, Ausfuhr und Übereignung von Kulturgut, German
Ofcial Journal (BGBlet seq.; Gesetz zur Ausführung
des UNESCO-Übereinkommens
et seq
Gerte Reichelt (Hrsg.), Rechtsfragen
der Restitution von Kulturgütern, Symposium des Ludwig Boltzmann Instituts für Europarecht
et
al. (eds.), Kulturgüterschutz – Künstlerschutz, Tagungsband des II. Heidelberger Kunstrechtstags
am 5. und 6. September, (Baden-Baden, 2009), p. 200, forthcoming.
58 Bekanntmachung über das Inkrafttreten des Übereinkommens über Maßnahmen zum Verbot
und zur Verhütung der rechtswidrigen Einfuhr, Ausfuhr und Übereignung von Kulturgut of 28
March 2008, BGBl.
59 Sabine Boos, op. cit., note 5 at p. 52 et seq.
60
vII. european conventIon on Human rIgHts
Since anti-seizure statutes do not merely grant immunity from seizure but also
block any court proceedings concerning claims for restitutions,61 they clearly
interfere with a claimant’s right to access of justice as guaranteed e.g. by Article
6(1) European Convention on Human Rights.62 However, such a limitation
63 In the
Liechtenstein case that involved a loan from the Czech Republic to Germany
(prior to the enactment of the anti-seizure statute) protected against any court
proceedings in Germany under international treaty law in connection with
reparations for the Second World War,64 the European Court of Human Rights
held that, “for the applicant, the possibility of instituting proceedings in the
Federal Republic of Germany to challenge the validity and lawfulness of the
65 In light
of such a “fortuitous connection between the factual basis of the applicant’s
66
interests involved here, came to the conclusion that the German measure
ratio of this decision is: fortuitous connections
between the factual bases of a claim with the State whose courts deny access
to justice strongly reduce the weight of the claimant’s guarantees under article
6(1) European Convention on Human Rights. This ratio can presumably be
transferred to the situations under scrutiny here: the place of an international
exhibition gathering artworks from all over the world usually does not have
any close links to the acts and legal relationships constituting the ownership
issue. Therefore, even an anti-seizure statute that, like the German version,
excludes not only seizures but also any court proceedings will probably be
of the legitimate purpose of cultural exchange which many of the Member
States of the Council of Europe as well as the European Union endorse.
61 E.g. section 20(4) German Act on the Protection of Cultural Property: “Until recovery by
the lender judicial proceedings on recovery, interim measures, attachments and seizures are
process or enter any judgment, decree, or order, for the purpose or having the effect of depriving
62 ECHR 12 July 2001, Case of Prince Hans-Adam II of Liechtenstein v. Germany, Application
63 ECHR 12 July 2001, Case of Prince Hans-Adam II of Liechtenstein v. Germany, Application
64 For a more in-depth account of the background of this case see Matthias Weller, ‘Immunity
for Artworks on Loan? A Review of International Customary Law and Municipal Anti-seizure
Statutes in Light of the Liechtenstein Litigation’, Vanderbilt Journal of Transnational Law
65 ECHR 12 July 2001, Case of Prince Hans-Adam II of Liechtenstein v. Germany, Application
66 ECHR 12 July 2001, Case of Prince Hans-Adam II of Liechtenstein v. Germany, Application
See above, note 23 and accompanying text. and accompanying text.and accompanying text.
Vol. XIV, Issue 1 Art Antiquity and Law April 2009
Whether such holding deserves support is not self-evident: the Prince as well
as regularly the claimants in international art loan cases factually do not have
access to justice at the ‘genuine forum’,68 i.e. at the courts of the State to which
the ownership question has the closest connections. It is the very essence of
such controversies that an unexpected change arises to litigate in a remote
of justice (deni de justice), the individual’s right of access to justice should
prevail, even though the claimant resorts to a remote forum on the occasion
of an international art loan. In addition, third party claims for recovery of
artworks on loan from abroad may arise in states whose courts do in fact
have closer connections to the ownership dispute and would perhaps not be
regarded as a remote forum. In the French Shchukin litigation,69 for example,
the claimant was a French national. Although nationality is, if at all, a weak
connecting factor in the context of international jurisdiction, the case grounds
on more immediate connections to the forum state than the Liechtenstein case.
Then again, under such an approach, anti-seizure statutes would be subject to
a vague exception which would deprive them of their intended purpose, i.e.
to guarantee the return of artworks on loan from abroad which might also
be taken into account in the weighing of interests to be carried out by the
European Court of Human Rights in comparable cases.
vIII. concLusIon
The safeguarding of foreign cultural objects on loan in Germany grounds
on an administrative decision, the ‘legally binding return guarantee
(rechtsverbindliche Rückgabezusage)’, that bars the access of any third-
claim for the recovery of the loan. Claims for damages are not barred. The
competent authorities will exercise their discretion to issue a return guarantee
only if the loaned object has not been misappropriated in the Holocaust and
is not ‘Beutekunst’. The authorities will further take into account whether
almost any scenario, even if challenged in proceedings before administrative
courts with interim measures during the loan. The only conceivable exception
is the case where the third-party claimant does not have access to justice
anywhere else in the world. However, no court authority on this point is
available to date. In sum, it seems that the return guarantee provides for a
68 ECHR 12 July 2001, Case of Prince Hans-Adam II of Liechtenstein v. Germany, Application no.
69 Tribunal de Grande Instance, Paris, judgment of 5 March 1993, noted by Ruth Redmond-
Cooper in (1996) I Art Antiquity and Law
See again Article 3(2) and Annex I (Articles 14 and 15 of the French Civil Code) of the Brussels
I Regulation and above, note 36.
balanced approach acceptable to both lenders and third-party claimants.
However, the effectiveness of the return guarantee would be improved if
administrative proceedings to challenge the issuing of the return guarantee
were excluded. And its legitimacy would be greatly enhanced if third parties
had the opportunity to raise objections against the issue of the guarantee
prior to the loan upon timely publication of the application by the lender. The
German legislator should consider amending the German anti-seizure statute
along these lines.
