S.I. No. 182/1994 - European Communities (Return of Cultural Objects) Regulations, 1994.


S.I. No. 182 of 1994.

EUROPEAN COMMUNITIES (RETURN OF CULTURAL OBJECTS) REGULATIONS, 1994.

I, MICHAEL D. HIGGINS, T.D., Minister for Arts, Culture and the Gaeltacht, in exercise of the powers conferred on me by Section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 93/7/EEC of 15 March, 1993* hereby make the following Regulations:—

1. These Regulations may be cited as the European Communities (Return of Cultural Objects) Regulations, 1994.

2. (1) In these Regulations:

"the Directive" means Council Directive 93/7/EEC of 15 March, 1993, on the return of cultural objects unlawfully removed from the territory of a Member State;

"the Court" means the High Court;

"Member State" means a Member State of the European Communities;

"the Minister" means the Minister for Arts, Culture and the Gaeltacht.

(2) A word or expression which is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in that Directive.

(3) The financial thresholds applicable to certain categories under paragraph B of the Annex to the Directive are set out in the Schedule to these Regulations.

3. The Minister is hereby appointed to be the central authority in the State to carry out the tasks provided for in the Directive and in these Regulations.

*O.J. No. L. 74/74, 27.03.1993.

4. (1) Subject to paragraph (2) of this Regulation, upon application by a requesting Member State, the Minister—

( a ) shall seek any cultural object specified by a requesting Member State which has been unlawfully removed from its territory; and

( b ) shall take steps to identify the possessor or holder of such object.

(2) An application made under paragraph (1) of this Regulation shall include all information needed to facilitate the search and, in particular, information as to the actual or presumed location of the said object.

(3) The Minister shall notify the Member State concerned where a cultural object is found in the State (whether as the result of a search under this Regulation or not) and there are reasonable grounds for believing that it has been unlawfully removed from the territory of that Member State.

(4) The Minister shall—

( a ) take steps to enable the competent authorities of the Member State concerned to check that the object in question is a cultural object; and

( b ) subject to paragraph (5) of this Regulation, take any necessary measures, in cooperation with the Member State concerned, for the physical preservation of that object, and

( c ) take such steps as appear to the Minister to be necessary to prevent any action to evade the procedures for the return of the object concerned.

(5) The Minister shall be under no obligation to take further action under paragraph (4) (b) or (c) of this regulation if the check, for which paragraph (4) of this Regulation provides, is not made within two months of the notification under paragraph (3) of this Regulation.

(6) Expenses incurred in taking necessary measures for the preservation of a cultural object shall be borne by the Member State which made the application under this Regulation.

5. (1) The Court shall have power, on an application made by the Minister for the purpose of performing his functions under Regulation 4 of these Regulations, to make such order as it considers appropriate—

( a ) to enable a check to be made under Regulation 4 (4) of these Regulations; or

( b ) for the physical preservation of an object which appears as a result of such a check to be a cultural object; or

( c ) to prevent any such action as is mentioned in Regulation 4 (4) (c) of these Regulations.

(2) An application for an order under this Regulation—

( a ) may be ex parte; and

( b ) shall be supported by an affidavit.

(3) Without prejudice to the generality of paragraph (1) of this Regulation, the power to make an order under that paragraph includes power to authorise any one or more of the following, namely, any officer of the Minister or the Director of the National Museum of Ireland or the Director of the National Library of Ireland or the Director of the National Gallery of Ireland or any person employed in those institutions—

( a ) to take possession of the object;

( b ) to hand the object over to the custody of a person or institution specified in the order.

6. (1) If, on an application made by the Minister for the purpose of performing his functions under Regulation 4 of these Regulations, the Court—

( a ) is satisfied that there are reasonable grounds for believing—

(i) that a cultural object has been unlawfully removed from the territory of a Member State;

(ii) that it is on premises specified in the application; and

( b ) is satisfied that any conditions specified in paragraph (2) of this Regulation applies;

the Court may make an order authorising any one or more of the following, namely, any officer of the Minister or the Director of the National Museum of Ireland or the Director of the National Library of Ireland or the Director of the National Gallery of Ireland or other person employed in those institutions to enter and search the premises and such an order may authorise any one or more members of the Garda Síochána to accompany such person or persons.

(2) The conditions mentioned in paragraph (1) (b) of this Regulation are that admission to the premises has been refused, or that the case is one of urgency, or that an application for admission to the premises would defeat the object of the entry.

(3) An application for an order under this Regulation—

( a ) may be made ex parte;

( b ) shall be supported by an affidavit; and

( c ) shall specify the premises which it is desired to enter and search, and identify, so far as practicable, the cultural object to be sought.

(4) An order made under this Regulation shall authorise an entry and shall—

( a ) specify—

(i) the names of the persons so authorised;

(ii) the date on which it is made;

(iii) that it is made under this Regulation;

(iv) the premises to be searched; and

( b ) identify, so far as practicable, the cultural object to be sought.

(5) Entry and search under an order made under this Regulation shall be within one month from the date of the order at such time or times sanctioned in the order.

(6) Where the person seeks to execute an order made under this Regulation he shall, if requested by the occupier or other person appearing to him to be in charge of the premises, identify himself and produce the order to him.

7. (1) Subject to the provisions of this Regulation, a Member State shall have a right of action against the possessor or, failing him, the holder, for the return of a cultural object which has been unlawfully removed from its territory.

(2) Proceedings under this Regulation may not be brought if the removal from the Member State was lawful at the time when those proceedings are to be initiated.

(3) Proceedings under this Regulation may be brought by means of a plenary summons.

(4) There shall be annexed to any plenary summons served under this Regulation:—

( a ) a document describing the object covered by the request and stating that it is a cultural object; and

( b ) a declaration by the competent authorities of the Member State that the object has been unlawfully removed from its territory.

(5) Subject to paragraph (6) of this Regulation and Regulation 10 of these Regulations, the Court shall order the return of the object where it finds the object—

( a ) to be a cultural object within the meaning of Article 1 (1) of the Directive;

( b ) to the cultural object to which the request relates; and

( c ) to have been removed unlawfully from the national territory of the Member State.

(6) Proceedings shall not be brought under this Regulation—

( a ) more than one year after the requesting Member State became aware of the location of the cultural object and of the identity of the possessor or holder,

( b ) more than 30 years after the object was unlawfully removed from the territory of the requesting Member State.

(7) Notwithstanding paragraph (6) of this Regulation, proceedings in respect of objects forming part of public collections referred to in Article 1 (1) of the Directive or ecclesiastical goods may be brought within 75 years.

(8) The provisions set out in paragraph (6) or (7) of this Regulation shall have effect in place of any other enactment as to the limitation of actions.

(9) The requesting State shall satisfy the Court as to the date on which it became aware of the location of a cultural object for the purposes of paragraph (6) (a) of this Regulation.

8. (1) Subject to paragraph (2) of this Regulation, where the return of a cultural object is ordered by a Court, that Court shall order the requesting Member State to pay the possessor of that object such compensation as the Court deems fair according to the circumstances of the case.

(2) The Court shall not order the payment of compensation under paragraph (1) of this Regulation unless it is satisfied that the possessor exercised due care and attention in acquiring the cultural object concerned.

(3) In the application of paragraph (2) of this Regulation where the right to compensation arises from a donation or succession, the possessor shall not be in a more favourable position than the person from whom he acquired the object as a result of such donation or succession.

9. Any expenses incurred in implementing an order under these Regulations for the return of a cultural object shall be borne by the requesting Member State.

10. These Regulations apply to cultural objects unlawfully removed from the territory of a Member State on, or after, 1st day of January, 1993.

11. The Minister may act as an intermediary between the possessor or holder of an object to which these Regulations apply and the requesting Member State and may, in appropriate cases, without prejudice to Regulation 5 of these Regulations, facilitate the implementation of an arbitration procedure under the Arbitration Acts, 1954 and 1980, where the requesting State and the possessor or holder approve of such action.

SCHEDULE

FINANCIAL THRESHOLDS

Value: 0 (Zero)

— 1

(Archaeological objects)

— 2

(Dismembered monuments)

— 8

(Incunabula and manuscripts)

—11

(Archives)

£11,125.00

— 4

(Mosaics and drawings)

— 5

(Engravings)

— 7

(Photographs)

—10

(Printed maps)

£37,083.00

— 6

(Statuary)

— 9

(Books)

—12

(Collections)

—13

(Means of transport)

— 14

Any other item)

£111,251.00

— 3

(Pictures)

Categories of objects are numbered in this Schedule in accordance with the numbering in the Annex to the Directive.

GIVEN under my Official Seal this 24th day of June, 1994.

MICHAEL D. HIGGINS,

Minister for Arts, Culture

and the Gaeltacht.

EXPLANATORY NOTE.

These Regulations implement Council Directive 93/7/EC on the return of cultural objects unlawfully removed from the territory of a Member State.

The Regulations apply to cultural objects (defined in Directive) unlawfully removed from the territory of a Member State on or after 1st January, 1993 (Regulation 10). To be covered by the Regulations cultural objects must be national treasures of artistic, historic or archaeological value and also either belong to one of the categories listed in the Directive (with in some cases a monetary value above certain financial thresholds) or be on the inventory of a public collection or ecclesiastical institution. The financial thresholds applicable to the various categories of cultural objects are set out in Irish currency in the Schedule to the Regulations.

Regulation 2 provides that the court competent to make orders under the Regulations is the High Court.

Regulation 3 provides that the Minister for Arts, Culture and the Gaeltacht is hereby appointed to carry out the tasks provided for in the Directive and in these Regulations.

Regulation 4 provides that the Minister for Arts, Culture and the Gaeltacht shall, upon application by a Member State, seek an archaeological object specified as having been unlawfully removed from that member state, and identify the possessor or holder of such object. Upon notification by the Minister that a cultural object has been found in the State the Member State concerned has two months in which to check that the object in question is a cultural object covered by the Regulations. If the Member State concerned does not make the check within two months the Minister ceases to be under any duty to preserve the object.

Regulation 4 also provides that expenses incurred in preserving a cultural object under this Regulation are to be borne by the requesting Member State.

Regulations 5 and 6 enable the Minister to apply for court orders so that the object can be located and preserved in accordance with the requirements of Regulation 4. The court is, in particular, given power to authorise the taking into custody of an object and the entry and search of premises.

Regulation 7 confers a right of action on a Member State to recover cultural objects unlawfully removed from its territory. A Member State loses its right of action if it fails to commence proceedings within a year of becoming aware of the location of the object and the identity of its possessor or holder. The right is also lost if proceedings are not commenced within 30 years of the date of unlawful removal (or 75 years in the case of objects from public collections or certain ecclesiastical goods).

Regulation 8 provides that where return of an object is ordered the court shall order the payment of fair compensation by the requesting Member State to a possessor who exercised due care and attention in acquiring the object.

Regulation 9 provides that expenses incurred in returning a cultural object consequent on an order under Regulation 8 are to be borne by the requesting Member State.

Regulation 11 provides for an explicit option for the Minister to act as intermediary with the consent of the parties involved and mentions that the option of court action may, with the consent of the parties, be waived in favour of utilising procedures under the Arbitration Acts.