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Reversal of the Burden of Proof

by Ursula Kampmann
translated by Teresa Teklic

May 8, 2014 – The European Union’s new directive designed to organise the return of cultural objects which were unlawfully removed from their original country is approaching. The European Parliament has approved it already. The current changes to Directive 93/7/EEC are expression of a new, much stricter policy.

These are the changes according to a press release from Brussels:

“Extending its scope to all cultural objects classified as ‘national treasures possessing artistic, historic or archaeological value’ (author’s note: it is not clear, who will do the classification). Under Directive 93/7/EEC only a list of certain categories of national treasures or objects forming part of public collections or inventories of ecclesiastical institutions are qualified for return.
“Using an electronic tool, the Internal Market Information System (IMI), to facilitate administrative cooperation, consultation and exchange of information among national authorities.
“Extending of the deadline to initiating return proceedings from 1 to 3 years.”

But the last change implies the most far-reaching consequences:

“Placing the burden of proof on the possessor, if they seek compensation for the loss of the cultural object when it is returned to its original country. To obtain compensation, the possessor should prove that when they originally purchased the good, they exercised due care and attention in ascertaining its origin. Moreover, the new Directive provides for non-exhaustive criteria to facilitate a more uniform interpretation of the exercise of ‘due care and attention’ by the possessor.”

In other words, every collector who attracts the attention of a state because that state has its eye on his collection seems to have to prove, after confiscation, that the objects were purchased with “due care and attention”. Further, the EU can at any time redefine the scope of this completely overused and wishy-washy term as it pleases because it is defined by a number of “non-exhaustive criteria”.

The new directive is especially dangerous because it may include objects of “0” value as long as they are classified as archaeological objects – and we all remember too well the legal fights that certain governmental cultural activists put up against coin collectors by categorising their coins as “archaeological objects”.

The proposal will now proceed to the EU Council. After its approval member states will have to implement the directive into national legislation within 18 months. In the future, every accused coin collector in an EU member state will have to prove that his coins were purchased with “due care and attention”.

You can find the original Directive 93/7/EWG from March 15, 1993, here.

The press release by the European Parliament was published here.

If you want to protest against the changes to the directive by expressing your informed opinion, you can contact the European Commission’s spokesperson, Carlo Corazza, here.

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