46 tal-2005 - Regolamenti tal-2005 li jemendaw ir-Regolamenti dwar it-Treġġigħ Lura ta’ Proprjetà Mneħħija Illegalment minn Territorju ta’ Stat Membru fl-Unjoni Ewropea

L.N. 46 of 2005

CULTURAL HERITAGE ACT

(CAP. 445)

Return of Cultural Objects Unlawfully Removed from the

Territory of a Member State of the European Union

(Amendment) Regulations, 2005

BY virtue of article 55 of the Cultural Heritage Act, the Minister

for Tourism and Culture has made the following regulations>

The title of these regulations is the Return of Cultural Objects Title.

Unlawfully Removed from the Territory of a Member State of the

European Union (Amendment) Regulations, 2005, and they shall be L.N. 246 of 2003.

read and construed as one with Return of Cultural Objects Unlawfully

Removed from the Territory of a Member State of the European Union

Regulations, 2003, hereinafter referred to as “the principal regulations”.

(Regulation 2)

Categories referred so in the definitions “cultural property” and “cultural heritage”

in regulation 2 to which objects classified as ‘national treasures’ within the meaning of

Article 30 of the Treaty of the Union must belong in order to qualify for return under

these regulations.

A. 1. Archaeological objects more than 100 years old which are the products

- land or underwater excavations and finds,

- archaeological sites,

- archaeological collections.

2. Elements forming an integral part of artistic, historical or religious monuments

which have been dismembered, more than 100 years old.

3. Pictures and paintings, other than those included in Category 3A or 4, executed

entirely by hand on any material and in any medium ( 1 ).

3A. Water-colours, gouaches and pastels executed entirely by hand on any

material ( 1 ).

4. Mosaics in any material executed entirely by hand, other than those falling in

Categories 1 or 2, and drawings in any medium executed entirely by hand on any

material ( 1 ).

5. Original engravings, prints, serigraphs and lithographs with their respective

plates and original posters ( 1 ).

6. Original sculptures or statuary and copies produced by the same process as the

original ( 1 ) other than those in category 1.

7. Photographs, films and negatives thereof ( 1 ).

8. Incunabula and manuscripts, including maps and musical scores, singly or in

collections ( 1 ).

9. Books more than 100 years old, singly or in collections.

10. Printed maps more than 200 years old.

11. Archives and any elements thereof, of any kind, on any medium, comprising

elements more than 50 years old.

For regulation 2 of the principal regulations, there shall be Substitutes

regulation 2 of the

substituted the following>

principal

regulations.

“2. In these regulations, unless the content otherwise

requires –

“the Act” means the Cultural Heritage Act<

“cultural property” and “cultural heritage” means such

property as is specified in the Act and in the First Schedule to

these regulations, and include cultural property which is

classified, before or after its unlawful removal from the

territory of a Member State, as national treasures within the

meaning of Article 30 of the Treaty of the Union and belongs

to one of the categories listed in the First Schedule or does

not belong to one of these categories but forms an integral

part of public collections listed in the inventories of museums,

archives or libraries conservation collection, or to the

inventories of ecclesiastical institutions<

“Member State” means any member state, including

Malta, of the European Union<

“public collections” means collections which are the

property of a Member State, a local or regional authority

within a Member State, or an institution situated in its territory

and defined as public in accordance with the legislation of

that Member State, such institution being the property of, or

significantly financed by, that Member State or a local or

regional authority<

“requesting Member State” means the Member State

from whose territory the cultural property has been unlawfully

removed<

“the Superintendence” means the Superintendence of

Cultural Heritage established by article 7 of the Act<

“Third Country” means a state or territory which is not

or does not belong to a Member State<

“unlawfully removed from the territory of a requesting

Member State” means-

(a) the removal of property from the territory of

that Member State in breach of its laws on the protection

of national treasures or in breach of the Export of Cultural

Property from Malta to Third Countries Regulations,

2005<

(b) property which is not returned at the end of a

period of lawful temporary removal, or any breach of

another condition governing such temporary removal.”.

For regulation 5 of the principal regulations there shall be

substituted the following >-

The Superintendence of Cultural Heritage,

established by article 7 of the Act shall be the competent

authority appointed to carry out the duties provided for in

these regulations.”.

4. For regulation 6 of the principal regulations there shall be

substituted the following>

The Superintendence shall -

(a) upon application by a requesting Member State,

initiate proceedings to seek a specified cultural object which

has been unlawfully removed from the territory of the

requesting state, with the purpose of identifying the possessor

and, or holder. The application shall be in writing and shall>

i. include a document describing the object

covered by the request and stating that it is a cultural

object, and

ii. include a declaration by any competent

authority of the requesting Member State that the cultural

object has been unlawfully removed from its territory,

and

iii. include all information needed to facilitate this

search, with particular reference to the actual or presumed

location of the object<

(b) notify the Member State concerned on finding

cultural property in Malta and there is reasonable suspicion

that such cultural property has been unlawfully removed from

its territory<

(c) provide for the physical inspection of the said

cultural property by the competent authority of the requesting

Member State to verify that the object is cultural property>

Provided that the inspection is to be carried out within

two months from the date of notification provided for in

paragraph (b) hereof by the competent authority in the

requesting Member State. If the inspection does not take place

within the stipulated time, then paragraphs (d) and (e)

hereunder shall cease to apply<

(d) take any necessary measures in cooperation with

the requesting Member State to physically preserve the

cultural property in question<

(e) act to prevent, by any necessary interim measure,

any action to evade the return procedure< and

(f) coordinate with and liaise between the requesting

Member State and the possessor and, or holder of illegally

removed cultural property for the purpose of returning such

cultural property to its place of origin. This may include

coordination to commence arbitration proceedings according

to Maltese law between the requesting Member State and the

possessor and, or holder of the cultural property.”.

5. For regulation 7 of the principal regulations there shall be

substituted the following>

“7. (1) A requesting Member State shall be entitled to initiate

proceedings before the competent court in Malta against the

possessor or, in default, the holder of the said object to secure the

return of cultural property unlawfully removed from the territory

of such requesting Member State.

(2) Save as otherwise provided for in regulation 8, the

competent court shall order the return of the cultural object in

question where such object is classified as cultural property and it

is found to have been unlawfully removed from the territory of the

requesting Member State.

(3) Proceedings may only be brought following a

written application as provided for in regulation 6(a). Moreover,

the document and declaration provided for in regulation 6(a) shall

be filed in court by the plaintiff on commencement of the

proceedings.

(4) The central authority of the requesting Member

State shall forthwith inform the Superintendence that proceedings

have been initiated with the aim of securing the return of cultural

property. The Superintendence shall forthwith inform the central

authorities of other Member States.”.

In sub-regulation (1) of regulation 8 of the principal regulations

for the words “the requested state” there shall be substituted the word

“Malta”.

Regulation 9 of the principal regulations shall be amended as

follows >-

(a) for the words “the Member State involved” in sub-

regulation (1) there shall be substituted the word “Malta”< and

(b) in sub-regulation (2) thereof, for the words “the

legislation of the requested Member State” there shall be substituted

the words “Maltese law”.

For sub-regulation (3) of regulation 10 of the principal

regulations, there shall be substituted the following>

“(3) Such proceedings may not, at any event, be commenced

more than thirty years after the object was unlawfully removed

from the territory of the requesting Member State. However, in

the case of objects forming part of public collections listed in the

inventories of museums, archives or the conservation collection

of libraries, and ecclesiastical goods in the requesting Member

State where they are subject to special protection arrangements

under national law, return proceedings shall be subject to a time

limit of seventy-five years, except where proceedings are not

subject to a time limit in the requesting Member State, or in the

case of a bilateral agreement between Malta and the requesting

Member State laying down a period exceeding seventy-five years.”.

Regulations 11 and 12 of the principal regulations shall be Deletes regulations

11 and 12 of the

deleted and regulations 13 and 14 renumbered as 11 and 12.

principal

regulations.

In sub-regulation (4) of regulation 12 of the principal Amends regulation

regulations, for the words “the property of the State who is obliged” 14

regulations.

there shall be substituted the words “the property of Malta which has

the obligation”.

Immediately at the end of regulation 12 of the principal Adds First Schedule

to the principal

regulations there shall be added the following schedule>

regulations.

(a) Collections and specimens from zoological, botanical, mineralogical

or anatomical collections<

(b) Collections of historical, palaeontological, ethnographic or numismatic

interest.

Means of transport more than 75 years old.

Any other antique item not included in categories A 1 to A 13, more than 50

years old.

The cultural objects in categories A 1 to A 14 are covered by these regulations

only if their value corresponds to, or exceeds, the financial thresholds under part B.

B. Financial thresholds applicable to certain categories under A

VALUE>

Whatever the value

- 1 (Archaeological objects)

- 2 (Dismembered monuments)

- 8 (Incunabula and manuscripts)

- 11 (Archives)

Lm 6,000

- 4 (Mosaics and drawings)

- 5 (Engravings)

- 7 (Photographs)

- 10 (Printed maps)

Lm 12,000

- 3A (Water colours, gouaches and pastels)

Lm 20,000

- 6 (Statuary)

- 9 (Books)

- 12 (Collections)

- 13 (Means of transport)

- 14 (Any other item)

Lm 60,000

- 3 (Pictures)

The assessment of whether or not the conditions relating to financial value are

fulfilled must be made when return is requested. The financial value is that of the

object in Malta.

( 1 )

Which are more than fifty years old and do not belong to their originators.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press