RETURN OF CULTURAL OBJECTS UNLAWFULLY REMOVED FROM THE TERRITORY OF A MEMBER STATE OF THE EUROPEAN UNION REGULATIONS

STATE OF THE EUROPEAN UNION

SUBSIDIARY LEGISLATION 445.04

RETURN OF CULTURAL OBJECTS UNLAWFULLY

REMOVED FROM THE TERRITORY OF A MEMBER

STATE OF THE EUROPEAN UNION REGULATIONS

9th September, 2003

LEGAL NOTICE 246 of 2003, as amended by Legal Notices 46 of 2005,

426 of 2007 and 306 of 2015.

The title of these regulations is the Return of Cultural

Objects unlawfully removed from the Territory of a Member State

of the European Union Regulations.

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;

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"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.

(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.

(2) These regulations shall apply to cultural objects unlawfully

removed from the territory of a Member State on or after the 1 st

January, 1993

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.

(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.

Cultural objects which have been unlawfully removed from

the territory of a Member State of the European Union shall be

returned in accordance with the procedure and in the circumstances

provided for in these regulations and in the Directive.

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.

(1)

The Superintendence shall -

(a) upon application by the 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;

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(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.

(1) A requesting Member State may initiate, before the

competent court in the requested Member State, proceedings

against the 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

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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.

(1) Where the return of the cultural object is ordered, the

competent court in Malta shall award the possessor such

compensation as it deems fair according to the circumstances of the

case, provided that it is satisfied that the possessor has acted in

good faith and exercised due care and attention in acquiring the

object.

(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

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.

(3) The requesting member state shall pay such compensation

upon the return of the object.

(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.

(5) Payment of the fair compensation and the expenses referred

to in sub-regulations (1) to (4) shall be without prejudice to the

right of the requesting Member State to take action with a view to

recovering those amounts from the persons responsible for the

unlawful removal of the cultural object from its territory.

(1) Any action undertaken by virtue of these regulations

shall be without prejudice to any civil or criminal proceedings that

may be brought, under the national laws of Malta, by the requesting

Member State and, or the owner of a cultural object that has been

stolen.

(2) In the exercise of the powers established by these

regulations the burden of proof shall be governed by Maltese law.

(1) In the case of a donation or 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

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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.

The superintendence shall keep a register of cultural goods

illegally removed from Malta, and of the requests from other

Member States to return cultural objects unlawfully removed from

their territory.

(1) If the returned cultural object does not belong to a

public collection, the Superintendence has the duty to provide for

its custody until the delivery to its rightful owner can be affected.

(2) The delivery of the cultural object is subject to the

reimbursement to the Superintendence of the expenses sustained

for the temporary custody, conservation and restitution of the said

object.

(3) When the person to whom the cultural object has to be

returned is unknown, the Superintendence shall publish a notice in

the Gazette.

(4) If the rightful owner does not claim the cultural object

within five years from the publication of the said notice in sub-

regulation (3), the good becomes the property of the Malta which

has an obligation to conserve it and make the most profitable use of

it possible.