Piotr Stec

W artykule przedstawiono ewolucję prawnych ram polskiego rynku sztuki w latach 1989-2015. Pokazano główne problemy, z którymi przyszło się zmierzyć ustawodawcy oraz nakreślono możliwe kierunki rozwoju prawa rynku sztuki. Pierwotnie reguły dotyczące obrotu dobrami kultury niemal nie istniały, a rynek był słabo rozwinięty. Od tego czasu na rynku sztuki pojawili się nowi interesariusze i nowe problemy – od kwestii podatku od towarów i usług począwszy, przez ocenę autentyczności dzieła sztuki, na nielegalnym obrocie dziełami sztuki skończywszy.

The main objective of this article is to analyse the scope of EU Member States’ right to determine national treasures for the purpose of Directive 2014/60/EU on the return of cultural objects. While investigating the issue at the EU, human rights, and constitutional levels, the authors argue that the right to define what constitutes national treasures is not an absolute right. The definition of this particular category of cultural objects cannot be used to circumvent the rules on the free movement of goods and to hamper this freedom in an unjustifiable and arbitrary manner. On the human rights and constitutional levels, Member States’ right cannot interfere with the right to enjoy one’s possessions. In particular, it cannot be used as a means of de facto expropriation without indemnity. There may, however, be some conflicts between the European Convention on Human Rights and national constitutional rules. For instance, in the practice of the Polish Constitutional Court, limitations on  ownership arising from the classification of personal property as a national treasure will not be considered as de facto expropriation and do not require indemnification. These differences make the position of an owner of a cultural good difficult. With ownership of cultural goods regulated by EU law, international treaties and national public law his or her situation may differ depending on which court decides the case, and on a law applied by that court.

Directive 93/7/EEC: a Twenty-Year Retrospective

Abstract

Directive 93/7/EEC created a legal framework for the return of cultural goods illegally removed from the territory of a Member State. The procedure for the return of cultural goods proved to be ineffective for numerous reasons, including a very narrow definition of a cultural good, flawed instruments of administrative cooperation, or risky court proceedings connected with the indemnification of the possessor. Directive 2015/60/EU is a new step towards the creation of an effective European system of return of cultural goods. Pursuant to the new directive each Member State can now define which cultural goods constitute national treasures. The directive has also provided for the creation of new, electronic means of fostering administrative cooperation, while court proceedings have been amended to minimize the aforementioned legal risks. Thus, once the new directive has been implemented by Member States, the result may be a greater number of returns of illegally exported cultural goods, based on adherence to its provisions.

Abstract

The recent amendments to the Civil Code of the Republic of Poland regarding the liability of a seller for the lack of conformity of delivered goods with the contract of sale will have a significant impact on the art market. Until recently the Code provided for a distinction between the seller’s liability in the case of a consumer (liability for lack of conformity of goods) and liability in other types of sales (“rękojmia”- warranty). As a consequence of the recent amendments to the Polish Civil Code both types of liability have now been amalgamated. Currently, the seller’s liability is based on the concept of warranties and conditions, which makes a significant difference, particularly in the case of the sale of forged artworks or antiquities. Surprisingly, new amendments to the Civil Code and to the Antiquities Protection and Care Act aimed at combating art theft have led to unexpected results, depriving many buyers of stolen works of their right to rescind the contract and to claim money back.

The process of implementation of the EU cultural goods Directive is more complicated than it would seem prima facie. Member States have been given a large degree of freedom in defining their national treasures, ecclesiastical goods, and public collections. This gives the Member States the opportunity of either narrowing these notions to the most treasured cultural goods, or expanding them to cover almost everything that can be classed as a “heritage item”. Both extremes may lead to unexpected and potentially harmful results. Furthermore, it is the job of the Member States to define procedural rules for internal restitution proceedings, and to establish rules of representation for claims brought before foreign courts. Last but not least, there will be the perennial problem of determining the proper law to rule on the validity of ownership transfers of the returned object. The final outcome of the implementation thus depends largely on lawmakers’ ability to predict the future outcome of proposed solutions, but since law is not an exact science, in the end it will be reduced to the old fashioned “lady or the tiger” dilemma. The purpose of this paper is to show possible ways of avoiding the tiger.