306 tal-2015 - Regolamenti tal-2015 li jemendaw ir-Regolamenti dwar it-Treġġigħ Lura ta’ Proprjetà Mneħħija Illegalment minn Territorju ta’ Stat Membru fl-Unjoni Ewropea

L.N. 306 of 2015

CULTURAL HERITAGE ACT

(CAP. 445)

Return of Cultural Objects Unlawfully Removed from the

Territory of a Member State of the European Union

(Amendment) Regulations, 2015

BY VIRTUE of the powers conferred by article 55 of the

Cultural Heritage Act, the Minister for Justice, Culture and Local

Government has made the following regulations:-

The title of these regulations is the Return of Cultural Citation.

Objects Unlawfully Removed from the Territory of a Member State of

the European Union (Amendment) Regulations, 2015, and these

regulations shall be read and construed as one with Return of Cultural S.L. 445.04

Objects Unlawfully Removed from the Territory of a Member State of

the European Union Regulations, hereinafter referred to as "the

principal regulations".

Regulation 2 of the principal regulations shall be Substitutes

regulation 2 of

substituted by the following

the principal

regulations.

" Interpretation.

2. In these regulations, unless the

context otherwise requires

"the Act" means the Cultural Heritage Act;

"cultural object" means an object which is

classified or defined by a Member State, before

or after its unlawful removal from the territory

of that Member State, as being among the

‘national treasures possessing artistic, historic or

archaeological value’ under national legislation

or administrative procedures within the meaning

of Article 36 of the Treaty on the Functioning of

the European Union;

"cultural property" means movable or

immovable property forming part of the cultural

heritage as defined in the Act;

"holder" means the person physically

holding the cultural object for third parties;

"Member State" means any member state,

including Malta, of the European Union;

"national

treasure"

means

cultural

property;

"possessor" means the person physically

holding the cultural object on his own account;

"public collections" means collections,

defined as public in accordance with the

legislation of a Member State, which are the

property of that Member State, of a local or

regional authority within that Member State or

of an institution situated in the territory of that

Member State, such institution being the

property of, or significantly financed by, that

Member State or local or regional authority;

"requesting Member State" means the

Member State from whose territory the cultural

object has been unlawfully removed;

"requested Member State" means the

Member State in whose territory a cultural

object, which was unlawfully removed from the

territory of another Member State, is located;

"return" means the physical return of the

cultural object to the territory of the requesting

Member State;

"the

Superintendence"

means

the

Superintendence

of

Cultural

Heritage

established in article 7 of the Act;

"unlawfully removed from the territory of

a Member State" means

(a)

removed from the territory of a

Member State in breach of its rules on the

protection of national treasures or in

breach of Regulation (EC) No 116/2009 on

the export of cultural goods; or

(b) not returned at the end of a

period of lawful temporary removal or any

breach of another condition governing

such temporary removal.".

Regulation 3 of the principal regulations shall be amended

as follows

(a) sub-regulation (1) thereof shall be substituted by the

following

"(1) These regulations shall give effect to the

repeal of the provisions of European Council Directive 93/

7 of the 15 March 1993 and shall give effect to the

provisions of European Council Directive 2014/60/EU of

15 May 2014 on the return of cultural objects unlawfully

removed from the territory of a Member State.";

(b) in sub-regulation (2) thereof, for the words "on or

after the 1st January, 1993." there shall be substituted the words

"on or after the 1st January, 1993:", and immediately thereafter

there shall be added the following new proviso

"Provided that each Member State may apply the

arrangements provided for in Directive 2014/60/EU to

requests for the return of cultural objects unlawfully

removed from the territory of other Member States prior to

1 January 1993."; and

(c) immediately after sub-regulation (2) thereof, there

shall be added the following new sub-regulations

"(3) These regulations apply to the return of

cultural objects classified or defined as being among

national treasures, as referred to regulation 2, which have

been unlawfully removed from the territory of any

Member State.

(4) The arrangements provided for in these

regulations towards the return of cultural objects may be

made applicable to cultural objects, including any item

falling under the definition of cultural property.".

Regulation 6 of the principal regulations shall be Substitutes

regulation 6 of

substituted by the following

the principal

regulations.

" Proceedings

(1)

The Superintendence shall -

to seek cultural

(a)

upon application by the

objects.

requesting Member State, seek a specified

cultural object which has been unlawfully

removed from its territory, identifying the

possessor and, or holder. The application

shall include all information needed to

facilitate the search, with particular

reference to the actual or presumed

location of the object;

(b) notify the Member States

concerned, where a cultural object is found

in their own territory and there are

reasonable grounds for believing that it has

been unlawfully removed from the

territory of another Member State;

(c)

enable

the

competent

authorities of the requesting Member State

to check that the object in question is a

cultural object, provided that the check is

made within six months of the notification

provided for in paragraph (b). If it is not

made within the stipulated period,

paragraphs (d) and (e) shall cease to apply;

(d) take any necessary measures,

in cooperation with the Member State

concerned, for the physical preservation of

the cultural object;

(e)

prevent, by the necessary

interim measures, any action to evade the

return procedure;

(f)

act as intermediary between the

possessor and, or holder and the requesting

Member State with regard to return. To that

end, the competent authorities of the

requested Member State may, without

prejudice to regulation 7, first facilitate the

implementation

of

an

arbitration

procedure, in accordance with the national

legislation of the requested Member State

and provided that the requesting Member

State and the possessor or holder give their

formal approval.

(2) In order to cooperate with and

consult each other, the central authorities of the

Member States shall use a module of the Internal

Market Information System (‘IMI’) established

by Regulation (EU) No 1024/2012 specifically

customised for cultural objects. They may also

use the IMI to disseminate relevant case-related

information concerning cultural objects which

have been stolen or unlawfully removed from

their territory. The Member States shall decide

on the use of the IMI by other competent

authorities for the purposes of these

regulations.".

5. Regulation 7 of the principal regulations shall be

Substitutes

regulation 7 of

substituted by the following

the principal

regulations.

" Proceedings

(1)

A requesting Member State

before

may initiate, before the competent court in the

competent

requested Member State, proceedings against the

court.

possessor or, in default, the holder, with the aim

of securing the return of a cultural object which

has been unlawfully removed from its territory.

(2) Proceedings may be brought only

where the document initiating them is

accompanied by

(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 requesting Member State

that the cultural object has been unlawfully

removed from its territory.

(3) The competent central authority of

the requesting Member State shall forthwith

inform the competent central authority of the

requested Member State that proceedings have

been initiated with the aim of securing the return

of the object in question.

(4) The competent central authority of

the requested Member State shall forthwith

inform the central authorities of the other

Member States.

(5) The exchange of information shall be

conducted using the IMI in accordance with the

applicable legal provisions on the protection of

personal data and privacy, without prejudice to

the possibility for the competent central

authorities to use other means of communication

in addition to the IMI.".

6. Regulation 8 of the principal regulations shall be amended Amends

regulation 8 of

as follows

the principal

regulations.

(a)

sub-regulations (2), (3) and (4) thereof shall be

renumbered as (3), (4) and (5) respectively;

(b) immediately after sub-regulation (1) thereof there

shall be added the following new sub-regulation

"(2) In

determining

whether

the

possessor

exercised due care and attention, consideration shall be

given to all the circumstances of the acquisition, in

particular the documentation on the object’s provenance,

the authorisations for removal required under the law of

the requesting Member State, the character of the parties,

the price paid, whether the possessor consulted any

accessible register of stolen cultural objects and any

relevant information which he could reasonably have

obtained, or took any other step which a reasonable person

would have taken in the circumstances.";

(c)

sub-regulation (4) thereof, as renumbered, shall be

substituted by the following

"(4) Expenses incurred in implementing a decision

ordering the return of a cultural object, for the safe-

keeping and conservation of the said object and for the

costs of the measures adopted in regulation 6(1)(d), shall

be borne by the requesting Member State."; and

(d) in sub-regulation (5) thereof, as renumbered, for the

words "referred to in sub-regulations (1) to (3)" there shall be

substituted the words "referred to in sub-regulations (1) to (4)".

7. In sub-regulation (1) of regulation 9 of the principal

regulations, for the words "and, for" there shall be substituted the

words "and, or".

Regulation 10 of the principal regulations shall be

substituted by the following

(1)

" Civil law

In the case of a donation or

status.

succession, the possessor shall not be in a more

favourable position than the person from whom

he acquired the object by those means.

(2) Return proceedings under these

regulations may not be brought more than three

years after the competent central authority of the

requesting Member State became aware of the

location of the cultural object and of the identity

of its possessor or holder.

(3) Such proceedings may, in any event,

not be brought more than thirty years after the

object was unlawfully removed from the

territory of the requesting Member State.

(4) In the case of objects forming part of

public collections and objects belonging to

inventories of ecclesiastical or other religious

institutions in the Member States 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 in

Member States where proceedings are not

subject to a time-limit or in the case of bilateral

agreements between Member States providing

for a period exceeding seventy-five years.

(5) Return proceedings may not be

brought if removal of the cultural object from

the national territory of the requesting Member

State is no longer unlawful at the time when they

are to be initiated." .

9. The Schedule to the principal regulations shall be deleted.

Deletes the

Schedule

attached to the

principal

regulations.

€0.72