Control of the movement of cultural goods
The rejection of an application for an export certificate may be based on the fact that the property belongs to the public domain and its refusal on the basis of the classification as a national treasure.
Refusal of application for an export licence based on the property being in the public domain
The Minister responsible for culture shall declare inadmissible an application for an export certificate in respect of property belonging to the public domain, unlawfully imported, constituting an infringement or coming from another crime or offence, where the applicant does not provide proof of the downgrading of the property from the public domain, its authenticity or the lawfulness of its provenance or importation (Articles L. 111-3-1 and R. 111-7 of the French Heritage Code).
A fragment of the Vendôme column
In the present case, the administrative courts noted that the fragment at issue in the Vendôme column had been detached from an immovable in the public domain, the demolition of which did not constitute a regular act of downgrading.
The decision of the Minister for Culture rejecting the application for an export certificate for this disputed movable property on the grounds of its belonging to the public domain of the State was therefore in accordance with the law.
- Tribunal administratif de Paris - 9 April 2004 - no. 01022685/7
Excerpts : "Considering that the Vendôme column has been inscribed in the general register of state property since 1 January 1810; that, initially dedicated to the glory of the French army and then to that of Napoleon I, head of state, it was, by its very nature, of the State public domain at the time of its demolition, 16 May 1871".
[…] the fragments, which could not have been physically incorporated into the public work once they had been found, have lost their real estate character; however, having regard to their origin, they have acquired the character of movable property in the public domain of the State; that the Executive Board of the Commune de Paris, a municipal body, had, in any event, no power to take, by the decree of 12 April 1871 cited by the applicant, the decision to decommission a monument forming part of the public domain of the State; that these assets have not subsequently been the subject of a formal act of decommissioning by the State ".
Since Mrs X does not own the bronze fragment because of the imprescriptibility of the public domain, the Minister for Culture and Communication was obliged to refuse the certificate ". - Administrative Court of Appeal of Paris - 4 April 2006 - no. 04PA02037
Extract : "Considering that the Vendôme column, erected to the glory of the French army and officially inaugurated on 15 August 1810, has been inscribed in the general register of state property since 1 January 1810 and was, by its very nature, part of the public domain of the state; that this property, notwithstanding a decree of 12 April 1871 of the Executive Commission of the Commune of Paris, has never been the subject of a regular act of decommissioning; that if, following the demolition of the monument in 1871, certain fragments have lost their real estate character, they have acquired, having regard to their origin, the character of movable property in the public domain of the State;
Considering that the belonging of the said property to the public domain being an obstacle, as the first judges have said, to the issuance of an export certificate, the Administrative Court of Paris did not have to decide on the national interest of the said property.
The Guestbook of the liner Normandie
In the present case, the Tribunal administratif de Paris noted that the liner Normandy was entrusted with a public passenger transport service mission, his Guestbook being therefore a public archive. The decision of the Minister responsible for Culture rejecting the application for an export certificate for this disputed movable property on the grounds of its belonging to the public domain of the State was therefore in accordance with the law.
- Tribunal administratif de Paris - 24 June 2011 - no. 0902675
- Letter from the Administrative Court of Paris - Selection of Judgments from April to September 2011 - No. 28 - October 2011 - page 2
" Under Article 1 of the Law of 11 July 1979, natural or legal persons have the right to be informed without delay of the reasons for the individual adverse administrative decisions affecting them. In view of the imprescriptible nature of the public archives, the decision taken pursuant to Article L.212-1 of the French Heritage Code to initiate proceedings for the restitution of such an archive held without right or title, does not have the character of an unfavourable decision and therefore does not need to state reasons. Consequently, Article 24 of Law No. 2000-321 of 12 April 2000 is not applicable to such a decision, which, having regard to its nature, is also not one of the decisions that can only be taken after an adversarial procedure.
A medieval statuette called "crying 17"
In the present case, the administrative courts have noted that the medieval statuettes forming part of the tomb of Philip the Hardi entered the national domain in 1789 and that they were saved from destruction by the revolutionary authorities to be preserved for their allocation to public utility. The decision of the Minister for Culture rejecting the application for an export certificate for “Crying No. 17” on the grounds of its belonging to the public domain of the State and giving notice to the holder to return it was therefore in accordance with the law.
- Tribunal administratif de Paris - 5 November 2015 - no. 1430948/561
Excerpts : "that the alabaster statue for which the export certificate was requested was originally an element of the ornamentation of the tomb of Philip the Hardi, Duke of Burgundy, built between 1340 and 1410 in the oratory of the Charterhouse of Champmol; that this religious building was placed at the disposal of the Nation when the Constituent Assembly ordered the nationalization of clergy property on 2 November 1789" (recital 5); "that the measures taken to implement the decree of the Convention of 1 August 1793 cannot therefore be considered, contrary to what the applicants maintain, as manifesting the will of the public authorities to proceed with the decommissioning of the public domain and the alienation of the "crying n°17" by its destruction or removal; that, moreover, the applicants do not establish, nor even allege, that the "crying n°17[…] would have subsequently been the subject of a formal act of downgrading by the State [… ] the Minister for Culture and Communication was able to reject the applicants' request for an export certificate on the grounds that the "Crying No. 17" was in the public domain and that, they were not the owners of this statuette ". - Administrative Court of Appeal of Paris - 13 January 2017 - no. 15PA04256
Excerpts : "that this Charterhouse [of Champmol], together with this tomb and its ornaments, have been placed at the disposal of the Nation" "and thus incorporated into the national public domain by the decree of the Constituent Assembly of 2 November 1789; that, at the time of the sale of the goods of the Chartreuse, formalized by an act of 4 May 1791, the tombs of the dukes of Burgundy and all the mourners were expressly excluded [… ]; that, following the decree of the National Convention of August 1, 1793 ordering the destruction of royal effigies, the General Council of the Municipality of Dijon, by deliberation of August 8, 1793, decided to destroy the tombs of the dukes of Burgundy, this destruction, carried out on August 9, 1793, concerned only the recumbents with effigies of the dukes of Burgundy, the statuettes of Chartreux having, meanwhile, been moved shortly before and preserved in the premises of the bishopric, before being, from 1799, exhibited at the Dijon Museum
"that in the present case, no legislative act which would have permitted the alienation of the mourners of the tomb of Philip II the Hardi, nor any decision to decommission these properties, has ever intervened […]; that the public authorities have thus continuously, since 1789, intended to protect all of these statuettes of mourners, both from destruction and alienation, and to assign them to the public utility of their presentation in a museum dedicated to the arts […]; that, in these conditions, the mourner no. 17 has, since it was placed at the disposal of the Nation by the decree of the Constituent Assembly of November 2, 1789, it has never ceased to belong to the public domain, inalienable and imprescriptible, of the State, from which it has been only improperly removed […] that neither this possession of fact, nor the prolonged inaction of the State may prevent the latter from asserting its right of ownership over this object, which is perpetual in the case of a good in the public domain assigned to public utility; that, consequently, the Minister for Culture and Communication was able to reject the applicants' request for the issue of an export certificate for crying no. 17 without infringing her decision. - Council of State - 21 June 2018 - no. 408822
Excerpts : "On the other hand, it is clear from the documents submitted to the judges at the bottom that the "Pleurant n°17" belongs to a group of about forty statuettes that adorned the tomb of Philippe Le Hardi, built between 1340 and 1410 in the Oratory of the Chartreuse of Champmol. As such, it was incorporated into the national domain under the decree of 2 November 1789. The tombs of the dukes of Burgundy and their ornaments, which were expressly excluded from the sale of the goods of the Chartreuse carried out on May 4, 1791, were transferred in 1792 to the Abbatiale Saint-Benign of Dijon, an inventory drawn up on May 11, 1792 attesting that on this date the statuary of the tombs was complete. The deliberation of the General Council of the commune of Dijon on August 8, 1793 deciding on the destruction of the tombs of the dukes of Burgundy excluded the statuettes of chartreux so that they were "preserved and deposited in a suitable place". Crying No. 17 was then removed from the national domain on an indefinite date and under undetermined circumstances;
"It follows from the foregoing that it is without tainting its judgment with an inaccurate legal characterization of the facts that the Administrative Court of Appeal has held that the "Mourner No. 17" has never ceased, since it was made available to the Nation in 1789, to belong to the national domain and then to the public domain from which it was improperly removed.
"[…] where the Minister of Culture was required to refuse to issue an export certificate for a good in the public domain", 'The notice sent to the applicants to return the contested decision to the State is only the necessary consequence of the reason for the refusal to issue the export certificate which the Minister for Culture was obliged to oppose to them.
The "Eagle fragment" from the screen of the cathedral of Chartres
In the present case, the administrative courts have noted that a fragment of the former jubé of the cathedral of Chartres, the «Eagle fragment», had been distracted from the building at a time when it had already integrated the public domain of the State, the detached fragment therefore also belonging to the national public domain. The decision of the Minister for Culture rejecting the application for an export certificate for this movable property on the grounds of its belonging to the public domain of the State was therefore in accordance with the law.
- Tribunal administratif de Paris - 29 June 2017 - n°0707297/4-1
Excerpts : "Considering that it is common ground that, at the latest from the Concordat of 1801 and from the opinion of the Council of State dated 22 January 1805, the cultural buildings of the Catholic Church have entered the public domain, and as regards cathedrals in that of the State; that, moreover, fragments detached from cultural buildings become movable but continue to belong to the public domain when they originate from a building constituting a dependence on the public domain and are of particular public interest".
Considering that, in the present case, it is clear from the historical facts recalled by the expert appointed by the Tribunal de Grande Instance in Paris that from 1836, the remains of the jube of the Cathedral of Chartres were the subject of particular attention by the civil and religious authorities, which they gave rise to excavations and restoration work and were recognized for their symbolic value, That it follows from the foregoing that this fragment entered the public domain of the State on the date of its exit from the Cathedral of Chartres" (recital 10).
Considering that it is apparent from points 4 to 11 that the Minister for Culture and Communication was able, without prejudicing his decision of 12 March 2007, to err in law or in fact, reject Gallery Y’s request for an export certificate on the grounds that the "Eagle fragment" was in the public domain and therefore did not own the property. - Letter from the Administrative Court of Paris - Selection of decisions rendered from June to October 2017 - No. 51 - November 2017 - page 10
- Administrative Court of Appeal of Paris - 29 January 2019 - no. 17PA02928
Extract : "It is clear from all these elements that the "Eagle fragment" must be regarded as having been used, as early as 1763, for the use of paving stone and maintained on the spot for several decades, as evidenced by the important traces of usury noted by the expert. In these circumstances, the fragment in dispute was necessarily extracted from the religious building not before but after 1789, when it entered the national public domain… the Minister of Culture and Communication did not err in law or in the light of the aforementioned Article L. 111-2 of the Heritage Code by refusing to issue the export certificate requested by Gallery Y on the ground that the "Eagle fragment" belongs to the national public domain".
By decision of 4 November 2020, the Council of State ruled on the appeal in cassation brought by Gallery Y, this appeal having been rejected. The High Court therefore upheld the judgment of appeal, while proceeding with a substitution of reasons; it considered that the judicial judge had recognized, according to a judgment of the Court of Appeal of 18 January 2018 that had become final, property rights held by the State over the fragment since the intervention of the decree of the Constituent Assembly of 2 November 1789. The Council of State inferred from this that the Ministry of Culture was obliged to reject the application for an export certificate for the fragment, since Article L.111-2 of the Wealth Code provides that such a request may only be made by the owner of the property or his authorised representative (recital 5).
Refusal of export certificate based on national treasury classification
The painting "Judith and Holopherne" attributed to Caravaggio
In the present case, the administrative courts noted that the applicants for the export certificate had been informed of the Ministry of Culture’s intention to refuse the certificate because of the public interest of the table and had therefore not been deprived of a guarantee.
The order of the Minister responsible for Culture refusing the export certificate and withdrawing the implied decision which granted it was therefore not vitiated by a procedural defect.
- Letter from the Administrative Court of Paris - Selection of decisions rendered from June to October 2017 - No. 51 - November 2017 - page 231
" Whereas, however, a defect affecting the conduct of a prior administrative procedure is of such a nature as to render the decision taken unlawful only if it is apparent from the documents on file that it was capable of exercising it, in the present case, an influence on the meaning of the decision taken or which he deprived the persons concerned of a guarantee.
" Whereas compliance with the procedure provided for in Article L. 121-1 of the Code of Public-Administrative Relations, constitutes a guarantee for the holder of an export certificate of a cultural property that the administrative authority intends to withdraw; that, however, in the present case, it is apparent from the documents in the file that, by an email of 10 March 2016 from the Director of Heritage, Mr. C’s agent was made aware of the Minister of Culture and Disclosure’s intention to refuse the export certificate and it is not apparent from any of the exhibits on the record that the Minister is challenging the reasons set out in this email, taken up in the contested decision, based on the importance of the work for the French public collections, regardless of its author, and on the need for in-depth expert work; that, consequently, taking into account all these circumstances, Mr. C... cannot be regarded as having been effectively deprived of a guarantee. - Administrative Court of Appeal of Paris - 26 June 2018 - no. 17PA02775
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