Paris
Since the start of World War II, France has been criticised for having rules on the protection of cultural patrimony which enabled it to "naturalise" paintings on the basis of what were considered unpredictable and arbitrary procedures. A combination of old laws and of court decisions allowed France to prevent the export of works of art, or to classify them, without compensation to the owner. Over the years, France's rules became one of the factors which drove a fluid international art market and collectors away from Paris. It was time for reform, and France seized the opportunity of the adjustments required by the advent of the European Single Market to review thoroughly its export licensing system. This was done in 1992 under the leadership of Mr André Chandernagor, former Minister of European Affairs.
The new system was enacted and implemented early this year. At a seminar organised by the Geneva Art-Law Centre on 27 September 1993, Mr Chandernagor pointed out that the French system "had come a long way". This is undoubtable, yet uncertainties remain regarding how the relevant authorities intend to apply the new rules. As discussed below, two recent cases, one concerning a van Gogh (see The Art Newspaper, No. 30, July-September 1993, pp.1-2), the other a Liotard (see The Art Newspaper, No. 31, October 1993, p.23 and this page) lift part of the veil but much suspense remains.
The new French law has retained practically the same definition as before regarding what may be deemed national cultural patrimony. There are however three important innovations. First, an owner may apply for an export certificate at any time. If it is granted, the certificate functions as a form of passport which is valid for five years, enabling the owner to export the work of art as he pleases during such period. Second, the decision to refuse the certificate is taken by a representative committee, including members from the trade. Third, a refusal to deliver the certificate is only valid three years. Beyond that period, which is intended to give the State time to raise funds, the State has either to buy the object or let it go. This system constitutes an obvious improvement, but contains a "Catch 22" and continues to be somewhat unpredictable.
The catch is that under a law of 1913 which has remained in force, the State can still classify a work of art as a historical monument at any time. Furthermore, in the past works of art have been classified without any compensation to the owner. Thus, whether an export certificate is granted or not, as long as an object remains in France the owner can never feel entirely safe. The likelihood of seeing a painting forcibly declared part of France's cultural patrimony without compensation will continue to depend partly on how the authorities decide to apply the 1913 law.
A case pending before the French courts, involving van Gogh's "Jardin à Auvers", raises hopes that the risk has diminished. The painting was classified a French historical monument in 1989, without any compensation to the owner, a Swiss domiciliary named Mr Walter. The lack of indemnity appears to have been based on the argument that no compensation needed to be given when a work of art was classified, because under French export rules the State also had the option of merely refusing the work's export without indemnity. However, the shaky logic behind that decision does not hold water any more, since, according to the new French law, an export licence cannot be indefinitely refused. Mr Walter applied to the courts for compensation. In its judgment dated 29 May 1993, the Tribunal d'Instance in Paris decided it is indeed time for change. The court held that Mr Walter is entitled to be compensated for the difference between the price of the van Gogh on the international market on the date the painting was classified (1989) and the price it fetched on the French domestic market in December 1992. Mr Walter is claiming a difference of just over FFr250 million. The court has appointed an expert to establish the criteria of evaluation. Despite this judgment, uncertainty remains for the moment, since the French State has apparently decided to appeal.
Even if this question of compensation is suitably settled by the van Gogh case, the new French law remains inherently unpredictable because of its very broad definition of what may be deemed national cultural patrimony. This is well illustrated by a recent decision taken under the new licensing scheme. The case involves an important work by the Swiss artist Liotard, which was painted in Constantinople and depicts an English merchant. The painting was bought at auction in Paris by a foreigner, but the export certificate was refused upon application after the sale, on the basis that the work constitutes French national patrimony as defined by law.
As the French expert M. Turquin pointed out at the Art-Law Centre's seminar of 27 September, France is not going to do its market any good by making decisions of this sort. From a legal and philosophical standpoint, the Liotard case provides a perfect example of how the notion of national cultural patrimony can and has been abusively applied around the world over the past decades. If one considers van Gogh's biography, to classify his "Jardin à Auvers" as part of French cultural patrimony is borderline enough. To consider the same for the painting by Liotard is indefensible and, some might feel, provocative: it is not acceptable that works of art be classified as national patrimony merely to fill gaps in public collections. With the internationalisation of human relations and artistic creation, decisions of the foregoing type will also become increasingly anachronistic. Is there any way of guarding against such strange interpretations in the future? Within the European Single Market, the Treaty of Rome provides mechanisms to clarify the situation. Under its Article 36, only so-called "national treasures" can be susceptible to export restrictions. Consequently the European Court is entitled to interpret the meaning of Article 36 and establish guidelines regarding what the terms "national" and "treasure" cover. It seems beyond doubt that if the European Court were applied to in a case such as the Liotard, it should rule that the French decision violates Article 36.
Originally appeared in The Art Newspaper as ‘"It is not acceptable that works be classified as national patrimony merely to fill gaps in public collections"'