RESTITUTION OF NAZI-LOOTED ART: THE FRENCH LAW OF 2022.
| Author | Hershkovitch, Corinne |
On 22 February 2022, the French Parliament enacted legislation (1) to enable the restitution of fifteen works (paintings, drawings and sculptures) which had been looted during the Second World War, but whose return was rendered illegal by virtue of the principle of inalienability of cultural objects held in national collections. The draft bill had been announced by the French Culture Minister on 3 November 2021 and sought to authorise the deaccession ('declassification') of certain items of cultural property held in public collections and which the State had decided, for various reasons, to hand over to the heirs of people from whom it was looted during the Second World War. The format of the legislation is simple: it contains four articles, each dealing with a specific cultural item or items, together with annexes detailing the inventory numbers of the items.
LEGAL ISSUES
Cultural goods which have been integrated into public collections fall under the regime of public domaniality, whose fundamental principles go back to the Edict of Moulins of 1566, which confers a dual protection on them: these goods are imprescriptible and inalienable. (2)
As indicated by the French Constitutional Council:
the consequence of inalienability [...] is to prohibit the disposal of property in the public domain, voluntarily or involuntarily, either in return for payment or free of charge (3) and thus to prevent the transfer of ownership of works from public collections.
However, the inalienability of cultural property is not an inviolable principle, and if an object can enter the public domain, it must also be able to leave it. (4) It is therefore within the power of the legislator to authorise, by a limited derogation to the principle of inalienability, the removal from public collections and the transfer of ownership of several works. The works at issue in the 2022 legislation are discussed below.
THE WORKS AT ISSUE
Rosiers sous les Arbres (Rose Bushes under the Trees) by Gustav Klimt
Article 1 of the 2022 Law provides that this Gustav Klimt painting, acquired in 1980 from a dealer and kept in the collections of the Musee d'Orsay, ceases to be part of these collections and is to be returned to the heirs of Mrs Eleonore Stiasny within one year from the date of publication of the Law. Mrs Stiasny, an Austrian national, had sold it at a low price in Vienna at the time of the Anschluss in 1938, to Mr Philip Haussler, before being deported and murdered. The...
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