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The Return of Cultural Objects within the European Union Implementing the Directive 2014/60/EU

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The Return of Cultural Objects within the European Union Implementing the Directive 2014/60/EU March 2016, Institute of Art of the Polish Academy of Sciences in Warsaw The conference, co-organized
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The Return of Cultural Objects within the European Union Implementing the Directive 2014/60/EU March 2016, Institute of Art of the Polish Academy of Sciences in Warsaw The conference, co-organized by the Research Team of the project HEURIGHT and Editorial Board of the Santander Art and Culture Law Review, aims to debate the foundations, implementing process and future functioning of the Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012. It also seeks to discuss this new EU instrument for the return of unlawfully exported cultural objects within the broader system of protection applicable to national treasures. In particular, it should explore the relation between the Directive 2014/60/EU and the EC Regulation 116/2009 visà-vis other legal instruments regulating the circulation of cultural objects in Europe, including the 1970 UNESCO Convention and the 1995 Unidroit Convention. In addition, the evolving EU regime will be discussed in the context of international trade in cultural material, by analyzing the approaches taken by cultural heritage law scholars, as well as art market specialists and policy and law enforcement experts. police experts. Hence, the conference is designed to clarify the reform of the EU system for the return of cultural objects unlawfully removed from the territory of a Member State and analyze it within the wider context of international trade and cultural heritage. Papers presented at the conference will be published in the Santander Art & Culture Law Review 2016 vol. 2, issue 2. This conference is free to attend. If you wish to register please send your name and affiliation by 11 March 2016 at Sponsors: Ministry of Culture of National Heritage of the Republic of Poland National Institute for Museums and Public Collections European Commission (JPI Heritage Plus, Horizon2020) Institute of Art the Polish Academy of Sciences Kazimierz Wielki University in Bydgoszcz (Santander Universidades Programme) 1/15 21 March 2016 (Monday) PROGRAMME 21 March (Monday) 22 March (Tuesday) 2016 Institute of Art of the Polish Academy of Sciences Długa, Warsaw, Poland Great conference room, ground floor phone , fax :30-02:00 pm Registration 02:00-02:10 pm Opening 02:10-02:25 pm Welcome Addresses Andrzej Jakubowski, on behalf of the HEURIGHT Research Team; Anna Koziczak, on behalf of the SAACLR Editorial Board 02:25-02:40 pm Presentation of HEURIGHT Francesca Fiorentini, Kristin Hausler, 02:40-03:10 pm Keynote Address Trading and Returning Cultural Objects under International Law James A. R. Nafziger (Willamette College of Law, Salem OR, USA) I. Session National Treasures and Common Market Moderator Kristin Hausler (British Institute of International and Comparative Law, London, HEURIGHT) 03:10-03:35 pm Directive 2014/60: A New Legal Framework for Ensuring the Return of Cultural Objects within the EU Maciej Górka (European Commission, Brussels) 03:35-03:55 pm The UNIDROIT 1995 Convention, an Indispensable Complement to the UNESCO 1970 Convention Marina Schneider (UNIDROIT, Rome) 03:55-04:15 pm Will the Revolution Eat Its Own Children? The Directive 2014/60 and Its Projected Impact on the EU Art Market and Its Participants Wojciech Szafrański (Adam Mickiewicz University, Poznań, SAACLR) Alicja Jagielska-Burduk (University of Kazimierz Wielki, Bydgoszcz, SAACLR)** 04:15-04:35 pm Discussion 04:35-04:55 pm Coffee break II. Session Implementing the Directive 2014/60/EU National Experiences (Part I) Moderator Francesca Fiorentini (University of Trieste, HEURIGHT) 04:55-05:15 pm The Return of Illicitly Exported Cultural Objects - The French Example Sophie Vigneron (Kent Law School, University of Kent, Canterbury) 05:15-05:35 pm The Greek Law on the Return of Cultural Goods Irini Stamatoudi (Hellenic Copyright Organisation (Greek Ministry of Culture and Sports), Visiting Professor at the International Hellenic University) 05:35-05:55 pm The Implementation of the Directive, the Landscape and Cultural Heritage Code and the Problems of Compliance of the Italian Legislation with the International and EU law Provisions 2/15 Manlio Frigo (University of Milan) 05:55-06:15 pm The Implementation of New EU Law and the UNESCO 1970 Convention: Recent Developments in Germany Robert Peters (Federal Government Commission for Culture and Media (BKM), Berlin) 06:15-06:35 pm Discussion 07:45 pm Conference dinner 22 March 2016 (Tuesday) III. Session Implementing the Directive 2014/60/EU National Experiences (Part II) Moderator Katarzyna Zalasińska (University of Warsaw) 09:10-09:30 am The Implementation of Directive 2014/60/EU in the Netherlands Marja van Heese (State Inspectorate for Cultural Heritage, The Hague) 09:30-09:50 am The Implementation of Directive 2014/60/EU in the United Kingdom Carl Schnackenberg (Department for Culture, Media and Sport, London) 09:50-10:10 am The Lady or the Tiger? On Legal Pitfalls of Implementation of EU Cultural Goods Directive Piotr Stec (University of Opole) 10:10-10:30 am Discussion 10:30-11:00 am Coffee break IV. Session Operating the Directive 2014/60/EU Practical Aspects Moderator Andrzej Jakubowski (Institute of Law Studies of the Polish Academy of Sciences, HEURIGHT, SAACLR) 11:00-11:20 am The return of illicitly exported cultural objects from Switzerland. Extraterritorial effect of the EU Directive? Marc-André Renold (Centre of Art and Law, University of Geneva) 11:20-11:40 am Ratification of the 1995 UNIDROIT Convention in the light of the Directive 2014/60/EU: Poland s Perspective Wojciech W. Kowalski (Ministry of Foreign Affairs of Poland, Warsaw) 11:40-12:00 am Analysis of the Scale of the Crime Threat against Cultural Property in themember States and the Selected Countries of the Eastern Partnership as a Basis for Future EU Activities Katarzyna Czaplicka (Polish National Police, Warsaw) 12:00-12:20 am Illegal Export from and Import of Cultural Goods to Poland: Do Legal and Practical Changes Introduced in Connection with the Directive 2014/60/EU Contribute to Reducing the Problem? Olgierd Jakubowski (National Institute for Museums and Public Collections, Warsaw) Alicja Jagielska-Burduk (University of Kazimierz Wielki, Bydgoszcz, SAACLR) 12:20-12:40 am Discussion 12:40-01:10 pm Concluding Remarks Andrzej Jakubowski, on behalf of the HEURIGHT Research Team; Alicja Jagielska-Burduk, on behalf of the SAACLR Editorial Board 01:30-02:30 pm Lunch 3/15 ORGANIZERS HEURIGHT The Project HEURIGHT The Right to Cultural Heritage Its Protection and Enforcement through Cooperation in the European Union investigates how human rights guarantees in relation to cultural heritage are being understood and implemented in the EU and in its neighbouring countries. It focuses on Poland, the United Kingdom and Italy - countries representing different cultural, political and legal traditions - and their relations with other states and non-state cultural communities. Acknowledging the changing nature of the right to cultural heritage, the project will map how this right s evolving content affects the forms of protection, access to and governance of cultural heritage. The added value of the project consists in combining an analysis of the relevant laws, their implementation and enforcement. Firstly, it will provide a theoretical re-conceptualization of the right to cultural heritage, focusing not only on positive law and jurisprudence, but also on soft-law rules, diplomacy and cultural cooperation as possible alternative devices for fostering inter-cultural dialogue and understanding. Secondly, in its practical perspective, the project analyses how the technical tools used to manage and protect cultural heritage, in particular digitization processes with the development of databases, virtual museums, etc., are currently considered and how they could be further developed to strengthen the enforcement of the right to cultural heritage throughout the EU, including its external action. Thus, the project will contribute to the development of sustainable strategies for protecting and managing cultural heritage as a means to foster inter-national and inter-cultural dialogue within the European region. Its outcomes will be twofold: i) a path breaking contribution to an interdisciplinary scholarship in this area, disseminated through various publications (articles, reports, workshops and a monograph); ii) the elaboration of recommendations and guidelines openly accessible via a new online platform concerning best practices on the use of cultural heritage for the benefit of states and communities which all have an intrinsic interest in its protection and enjoyment. This three-year project (August 2015-July 2018) is co-financed by the European Union within the programme JPI Heritage Plus HORIZON2020. The HEURIGHT Research Team is composed of three groups: The first research group (Poland) chaired by Dr. Andrzej Jakubowski as the Principal Investigator (PI) and the HEURIGHT Project Leader (PL), an Assistant Professor at the Institute of Law of the Polish Academy of Sciences, involves the participation of three different institutions forming a consortium. These comprise the University of Fine Arts in Poznan (an institutional leader of the consortium) and two research centres of the Polish Academy of Sciences in Warsaw: the Institute of Law Studies and the Institute of Art. The second research team (UK) is chaired by Kristin Hausler as Principal Investigator (PI), Dorset Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law (BIICL) in London, United Kingdom. The third research team (Italy) is chaired by Prof. Dr. Francesca Fiorentini as Principal Investigator (PI) working at the Department of Legal Science, Language, Interpreting and Translation Studies of the University of Trieste. 4/15 See: Santander Art & Culture Law Review The Santander Art and Culture Law Review (SAACLR) is a new bi-annual journal. Its primary objective is to offer the readers a journal that is open to the papers submitted by domestic and foreign authors. The Editorial Board will ensure that each odd-numbered issue of the journal is published in Polish and each even-numbered issue in English. In order to internationalize the discussions, the papers published in the Polish issues should include the summary and key words written in English. In the future, two new sections will be added, i.e. doctoral students debuts and an overview of judicial decisions. The project Creating and managing interdisciplinary legal journal dealing with culture- related issues is implemented within individual grants offered by Santander Universidades. Santander Art and Culture Law Review conforms with the pro-cultural policy of the Santander Group as well as the Santander Universidades Programme. The journal as well as its panel of experts on cultural property law will promote the international transfer of expertise and actively contribute to the promotion of culture in the academic sphere in line with the aims of Santander Group. See ABSTRACTS & BIO NOTES KEYNOTE ADDRESS Trading and Returning Cultural Objects under International Law James A. R. Nafziger (Willamette College of Law, Salem OR, USA)* European Directive 2014/60 applies within a broader regime of international law applicable to claims for the return by states of cultural objects that have been unlawfully removed from the territory of other states. The foundation of this regime is international trade law, based on national import and export controls within a framework established by the 1994 General Agreement on Tariffs and Trade (GATT). Claims for the return (and restitution) of objects, after the fact of an international transfer, are based on national laws of cultural patrimony and provisions of international instruments, primarily the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. International human rights law is also important. Article XI of the 1994 GATT, which prohibits quantitative restrictions on the import and export of goods, would appear to inhibit national controls over trade in cultural objects. But the prohibition is subject to an exception in Article XX for measures imposed on the protection of national treasures of artistic, historic or archaeological value. This exception is reiterated in Article 36 of the Treaty on the Functioning of the European Union and Directive 2014/60. Because the national treasures exception has never been the subject of a GATT or WTO dispute resolution finding, authoritative elaborations such as in the European Directive are especially important. Salient provisions of the 1970 UNESCO Convention include a system of export certifications with mutual enforcement, obligations to repatriate stolen objects, and an agreement to cooperate in responding to requests for prohibitions on the import of objects that form a cultural patrimony in jeopardy from pillage. The 1995 UNIDROIT Convention, which addresses instances of both restitution of stolen objects and return of illegal exported objects, was designed to supplement the 1970 UNESCO Convention. It provides detailed rules to govern claims for recovery of objects such as statutory limitations and rules of repose as well as provisions for fair and reasonable compensation to good-faith purchasers of recoverable objects. It will be apparent that private international law necessarily plays a significant role in governing the transnational movement and return of cultural objects. National export and import laws that pertain to cultural objects vary from 5/15 non-existent or neglected to highly restrictive and effective. The scope of national compliance with the international regime governing the restitution and return of objects and the requirements of the national administrative processes involved also vary widely. In all, legal pluralism flourishes-- unsurprisingly, given the complexity of the international regime, inevitable discrepancies among its components, and the multiplicity of actors and political currents in the process of cooperation. *James A.R. Nafziger (B.A., M.A., University of Wisconsin; J.D., Harvard University) is the Thomas B. Stoel Professor of Law and Director of International Programs at the Willamette University College of Law (U.S.A.). He is also Honorary Professor at the East China University of Politics and Law. A former Administrative Director of the American Society of International Law, of which he is currently Secretary, he has been a Fulbright lecturer in Mexico and Mongolia as well as Scholar-in-Residence at the Rockefeller Foundation s Study Center in Bellagio, Italy. His numerous cutting-edge articles and five books on cultural heritage issues, include a volume of The Hague Academy of International Law where he served as Co-Director of Research in He chairs the Committee on Cultural Heritage Law of the International Law Association and is a member of its Executive Council, as well as Honorary Vice-President of the I.L.A. s American Branch, having served as President and Chair of its Executive Committee. He is an elected member of the American Law Institute. I. SESSION NATIONAL TREASURES AND COMMON MARKET 1. Directive 2014/60: A New Legal Framework for Ensuring the Return of Cultural Objects within the EU Maciej Górka (European Commission, Brussels)* The aim of the new Directive is to improve the efficiency of mechanisms to secure the return of cultural objects unlawfully removed from the territory of a Member State, on or after 1 January 1993, introduced initially by way of Directive 93/7/EEC. Over the years it had been concluded, that the application of Directive 93/7/EEC, due to variety of reasons, had a limited effect in terms of actual returns of cultural objects. The new Directive attempts addressing the deficiencies and introduces substantial changes to the 1993 Directive. In particular, it provides for the extension of the scope to all cultural objects classified or defined as national treasures. It introduces the use of the Internal Market Information System (IMI) for administrative cooperation and exchange of information within national authorities. It extends the time-limit to initiate return proceedings. Finally, it establishes that the burden of proof of due diligence lies with the possessor for the purpose of compensation. The new Directive had much support during the legislative procedure both in the European Parliament and in the Council. Adopted on 15 th May 2014, the Directive was due to be transposed by the Member States by 18 December It is now to be seen whether the new rules are applied in practice and will bring the expected results. *Maciej Górka (Ph.D. Nicolaus Copernicus University in Toruń), from 1995 to 2005 employed in the Polish administration dealing with the European integration; from 2000 to 2012 employed as adiunct (Assistant Professor) at the Faculty of Law and Administration at the Kardynał Stefan Wyszyński University in Warsaw; since 2006 in the European Commission, first as Head of the unit in the Directorate General for Enterprise and Industry dealing with the free movement of goods; since October Head of the unit managing, among others, the Directive on the return of cultural objects; since in Directorate General for Internal Market, Industry, Entrepreneurship and SMEs. 2. The UNIDROIT 1995 Convention, an Indispensable Complement to the UNESCO 1970 Convention Marina Schneider (UNIDROIT, Rome)* The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which was adopted in Rome on 24 June 1995, is one instance of how States are attempting to put a stop to the illegal trade in cultural objects. Yet experience shows, for example with the UNESCO 1970 Convention, that it is one thing to adopt an international Convention and quite another to implement and enforce it. In legal terms, international efforts to protect and safeguard the national cultural heritage from such plunder can really only be described as co-operation up to a point. The UNIDROIT Convention sets out to remedy this state of affairs, yet it continues to be the object of passionate debate. Although directed at the same problem, 6/15 and fully complementary, it is evident that there are differences between the 1970 and 1995 Conventions which are worth examining, so as the interrelation between them. Some instruments developed by UNIDROIT have provided real guidance in the areas of law they cover. This is particularly the case of the 1995 Convention. Beyond the number of States Parties to this instrument, its influence is evident, in particular the concept of due diligence, in national legislations, case law and in the recent recast at European level of the 1993 Directive. *Marina Schneider Senior Legal Officer, UNIDROIT. She studied law in France and joined the UNIDROIT Secretariat in 1987 where she is working in different areas of law. She has been involved in the preparation of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and is responsible for its promotion and follow-up since its adoption. She is also the author of the Explanatory Report and other articles on the Convention. July to December 2015: Ms Schneider was a consultant with UNESCO, working with the Secretariat of the 1970 UNESCO Convention. Ms Schneider is also responsible for the Depositary functions of five UNIDROIT Conventions. 3. Will the Revolution Eat Its Own Children? The Directive 2014/60 and Its Projected Impact on the EU Art Market and Its Participants Wojciech Szafrański (Adam Mickiewicz University, Poznań, SAACLR)* Alicja Jagielska-Burduk (University of Kazimierz Wielki,
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