The Return Of Cultural Objects Unlawfully Removed From The Territory Of A Member State Of The European Union (Transposes The 2014 Policy/60/eu Of The European Parliament And Of The Council Of 15 May 2014)

Original Language Title: Regime da restituição de bens culturais que tenham saído ilicitamente do território de um Estado membro da União Europeia (transpõe a Diretiva 2014/60/UE do Parlamento Europeu e do Conselho, de 15 de maio de 2014)

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PRESIDENCY of the COUNCIL of MINISTERS draft law No. 10/XIII explanatory statement the existence of an area without internal borders which, for decades, determined the abolition of controls on the movement of goods within the European Union led to the adoption of a regime that allows the protection of movable cultural heritage of Member States against illicit drug trafficking. Indeed, under article 36 of the Treaty on the functioning of the European Union (TFEU) and despite the associate membership of the internal market, Member States retain the possibility of ban or inspect the output of national territory that, according to your internal law, incorporating the concept of cultural heritage. Stems from the lyrics and interpretation of the same standard TFEU which is also within the competence of the States the determination of the content of this concept, therefore, varies considerably depending on the legal system that is in presence. The first step towards the construction of a scheme intended to remedy the illegal exit of cultural objects before the dismantling of internal frontiers was taken with the adoption of Directive No. 93/7/EEC of 15 March 1993, and Regulation (EEC) No 3911/92 of 9 December 1992. In addition to the restitution of property unlawfully exported from your country of origin and the standardization of controls at the external frontier, it establishes a system of cooperation between national authorities, both belonging to the cultural heritage administrations, as exercising Customs functions, add up to the police authorities.

PRESIDENCY of the COUNCIL of MINISTERS with regard to the internal aspect of the scheme – the return of certain object to your country – opted for a mutual recognition of the different national heritage protection laws, limited however to certain categories of goods, provided that they reach a given monetary value on the respective State of origin (exception made to the archaeological goods) and since I also noticed a threshold of antiquity. Even if changed by Policies Nos. 96/100/EC of the European Parliament and of the Council of 17 February 1997 and 2001/38/EC of the European Parliament and of the Council of 5 June 2001, and by Regulation (EC) No 116/2009 of 18 December 2008, this protection regime of the different Member States ' assets would reveal shortcomings Since then, attested by the reduced number of goods effectively returned to the State of origin. The policy that transposes aims to overcome such limitations, facilitating the return of material objects out in violation of national law that aims to protect them. It does so primarily by three routes: extension of the scope of the scheme, strengthening cooperation between central authorities of Member States and extension of time limits granted to the wronged by unlawful output State. With regard to the scope of mutual recognition of national laws, in particular in so far as they relate to the territory of the State, leaves the same to be bound by the criteria of inclusion in pre-defined categories, monetary value and antiquity. The reference is made to the object of the laws concerned and may a be refunded regardless of whether you find specifically protected or previously have been identified as part of the cultural heritage of the State from whose territory the cultural object has been unlawfully removed. The limits on mutual recognition shall be based only on article 36 of the TREATY and on the principles of appropriateness and proportionality therein.

PRESIDENCY of the COUNCIL of MINISTERS the relevant date for the purpose of determining the illicit output continues to be to 1 January 1993, regardless of the date of accession of the State from whose territory the cultural object in question object has been unlawfully removed. On the other hand, the central authorities shall cooperate acrescidamente in order to check the effectiveness of national laws of protection. Apart from other tasks, shall exchange information in this area, using the internal market information system, as regulated by the Regulation (EU) no 1024/2012 of the European Parliament and of the Council of 25 October 2012, by creating own module specifically designed for the cultural heritage, and in compliance with the personal data protection regime. As for deadlines, one that applies the verification of cultural object found in another Member State to complete if you are protected has been extended for six months, in order to allow Member States to take the necessary measures to preserve the cultural, avoiding even, where appropriate, that the same be subtracted to the refund procedure. For your time, the deadline for the filing of the refund action is extended to three years from the date on which the State became aware of the location of the cultural object was and the identity of your possessor or holder. Thus becomes necessary to transpose to the internal planning what is stipulated in the policy in question, whose regime is supported by article 69 of law No. 107/2001, of 8 September, which establishes the bases of politics and of the system of protection and valorization of the cultural heritage. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: PRESIDENCY of the COUNCIL of MINISTERS CHAPTER I General provisions article 1 object to this law transposes to the internal legal order the policy no. 2014/60/EU of the European Parliament and of the Council of 15 may 2014 on the return of cultural objects unlawfully removed from the territory of a Member State of the European Union. Article 2 scope 1-this law is applicable to cultural objects which, after 31 December 1992, objects unlawfully removed from the territory of the country: a) Portuguese and are in the territory of another Member State of the European Union; (b)) Of any Member State of the European Union and in Portuguese territory. 2-the provisions of the preceding paragraph shall not preclude the application of this law the previous outputs in case of reciprocity. Article 3 the principle of restitution of cultural goods 1-Is the duty of the Portuguese State, pursuant to this law, strive to return any material cultural goods from the territory of another Member State of the European Union to the territory of the Member State in whose territory the cultural object has been unlawfully removed, since: PRESIDENCY of the COUNCIL of MINISTERS



the) are protected or defined by any Member State, before or after it has been unlawfully removed from your territory, as "national treasures possessing artistic, historic or archaeological value ', in accordance with the respective national legislation or administrative procedures, in the aceção of the article 36 of the Treaty on the functioning of the European Union; and b) objects unlawfully removed from the territory of that Member State in the following cases: (i)) exit from the territory of a Member State in breach of its legislation on the protection of national treasures or in breach of Regulation (EC) No 116/2009, of the Council of 18 December 2008; or ii) do not return, within a temporary lawful expedition; or iii) breach of any other condition bet a temporary expedition. 2-the Portuguese State, pursuant to this law, the central authorities shall nationals of other Member States of the European Union the return material to the Portuguese territory of goods: a) to integrate the cultural heritage, even if not recorded in the register or inventory asset, in accordance with the provisions of law No. 107/2001, of 8 September laying down the bases of politics and of the system of protection and valorization of the cultural heritage; and (b)) Have left the territory of the Portuguese State under the conditions referred to in the preceding paragraph.

PRESIDENCY of the COUNCIL of MINISTERS CHAPTER II National Central Authorities and internal market information system article 4 Mission and competences of national central authorities 1-national central authorities have as mission to cooperate and promote consultation with the national authorities of the other Member States of the European Union under this scheme for the return of cultural objects. 2-national central authorities shall exercise the following powers: a) look for cultural objects unlawfully removed from the territory of any other Member State of the European Union and identifying the possessor or holder; b) Notify the Member States of the European Union whose territory suspects objects unlawfully removed cultural objects discovered in Portuguese territory; c) cooperate with the competent authorities of the other Member States with a view to the investigation, exchange of information, protection and return of cultural objects unlawfully removed from the territory of those national or cultural objects unlawfully removed from the territory of Portuguese national; d) Play the role of intermediary between the Member State from whose territory the cultural object has been unlawfully removed and the possessor or holder as regards restitution. 3-Notwithstanding the provisions of other legislation applicable to the protection and enhancement of cultural heritage, the Portuguese national central authorities exercise their powers relating to cultural objects unlawfully removed from the territory of Portuguese national pursuant to this law, as well as in accordance with the legislation applicable in the Member State where the goods are.

PRESIDENCY of the COUNCIL of MINISTERS 4-cooperation and exchange of information between national central authorities of the Member States comply with the personal data protection. Article 5 designation of national central authorities the Member of Government responsible for the area of culture designate, for the purposes of this law, one or more national central authorities, and shall communicate such designation, as well as any subsequent amendment to this, the European Commission. Article 6 Cooperation of other entities all entities, public or private, must collaborate with the national central authorities designated in accordance with the previous article, in obtaining the information and documents requested for the pursuit of their duties. Article 7 internal market information system 1-With the purpose to carry out reciprocal cooperation and consultation, the national central authorities must use a module of the internal market information system (IMI), created by Regulation (EU) no 1024/2012 of the European Parliament and of the Council of 25 October 2012, specifically designed for cultural goods. 2-national central authorities can also use IMI to disclose all information concerning cultural objects that have been stolen or been unlawfully removed from your territory.

PRESIDENCY of the COUNCIL of MINISTERS CHAPTER III means of investigation, exchange of information, protection and restitution of cultural property section I means of investigation, exchange of information and the safeguarding of cultural property article 8 research and exchange of information on cultural objects 1-national central authorities should seek cultural goods which are in Portuguese territory, having been unlawfully removed from the territory of any Member State as well as identify the respective possessor or holder, as requested by that Member State. 2-the application referred to in the preceding paragraph shall be accompanied by all relevant information to facilitate the search, in particular as regards the effective or presumed location of the well. 3-in the case of a cultural good in Portuguese territory and there are reasonable grounds for suspecting that this fine object has been unlawfully removed from the territory of another Member State, the national central authorities shall notify unofficially the Member State concerned. 4-national central authorities shall facilitate verification by the competent authorities of the Member State from whose territory the good object has been unlawfully removed, that the good in question is a cultural object, provided that such verification to occur within six months after the notification referred to in the preceding paragraph.

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Article 9 means of safeguarding cultural property except in the case of the check referred to in paragraph 4 of the preceding article does not occur within six months after the notification referred to in paragraph 5 of the same article, the national central authorities shall, where appropriate: a) Take the measures necessary for the physical preservation of the cultural object, in cooperation with the Member State in whose territory this object has been unlawfully removed; and (b)) Avoid, through the necessary precautionary measures, that the cultural is subtracted to the refund process. Article 10 1 arbitration and Intermediation-national central authorities play the role of intermediary between the Member State from whose territory the good object has been unlawfully removed and the possessor or holder as regards restitution. 2-for the purposes of the preceding paragraph, the national central authorities may propose and trigger a process of arbitration, if the possessor or holder, as well as the Member State in whose territory the cultural object has been unlawfully removed, give your agreement formally to your accomplishment. 3-the arbitration process does not affect the refund referred to in the following section.



PRESIDENCY of the COUNCIL of MINISTERS SECTION II Action of restitution of cultural property article 11 restitution 1 action Assumptions-not opting for the settlement of the conflict by recourse to arbitration referred to in the previous article, the Member State where a cultural object has been unlawfully removed may bring against the possessor or, failing that, against the holder of that right damning action intended to obtain the refund of this. 2-where, as part of the lawsuit, the Court concludes that the right claimed is a cultural object, and that object has been unlawfully removed from national territory of the issuing Member State, in the aceção of paragraph 1 of article 3, condemns the possessor or holder to, within a reasonable period of time, deposit the right concerned to the national central authority guard for your refund to the Member State from whose territory the cultural object has been unlawfully removed without prejudice to the right of the owner or the possessor to compensation, in the case of the conditions laid down in article 14. 3-the action of refund shall be instructed with: a) Document that describes the good object of the purchase order and stating your cultural quality; b) declaration attesting the illicit output of the cultural good (s) of the territory of another Member State, issued by national central authorities of that Member State. 4-the refund action cannot be brought if the cultural output of the country has ceased to be illegal at the time of filing the action.

PRESIDENCY of the COUNCIL of MINISTERS article 12 the competent court shall have jurisdiction of the action of restitution the Court of judicial district, in accordance with article 80 of the code of Civil procedure. Article 13 Deadlines 1-the action of refund may be brought within three years from the date on which the national central authorities of the issuing Member State had knowledge of the location of the cultural object and the identity of your possessor or holder, provided that no more than 30 years have elapsed from the date on which the cultural object has been unlawfully removed from your national territory. 2-the period referred to in the preceding paragraph is 75 years, when the refund action by object: a) assets are part of public collections, understood as those that so are defined as in the law of the issuing Member State, which are property of that Member State, regional or local authority of that Member State or an institution, being situated in the territory of that Member State , is property of that Member State or a local or regional authority, or be significantly funded by one of these entities; or b) Goods belonging to inventories of ecclesiastical institutions or other religious institutions. 3-the provisions of the preceding paragraph shall not preclude the application of deadlines that have been established by international treaties between Member States.

PRESIDENCY of the COUNCIL of MINISTERS article 14 Compensation 1-if ordered to refund is granted to the owner a fair compensation in the circumstances of the present case, since the same proves that he acted with due diligence to acquire the right. 2-for the purposes of determination of due diligence, you should consider all the circumstances of the acquisition, including documentation on the origin of the right, exit permits required under the legislation of the Member State from whose territory the good object has been unlawfully removed, the quality of the parties, the price paid, the query by the possessor of records normally accessible stolen cultural goods-related , or any relevant information that would have been able to reasonably obtain, or any other initiative that a reasonable person would have done in similar circumstances. 3-in the case of a donation or succession, the possessor shall not benefit from a status more favourable than that of the person who, as such, has acquired the right. 4-the issuing Member State shall upon payment of that compensation when restitution of the right, without prejudice to the right to claim a refund of those amounts to the illegal exit of responsibility for cultural of your territory. Article 15 interim Guardianship without prejudice to the powers of national central authorities pursuant to article 9, the Member State where a cultural object has been unlawfully removed enjoys legitimacy also enables to apply the precautionary measures needed to ensure the usefulness of the decision that will be made in the context of the process of restitution, in general terms.

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Article 16 Information 1-The national central authorities of the Member State in whose territory the cultural object has been unlawfully removed shall inform without delay the national central authority filing refund action, notably through the IMI and in accordance with the legal provisions applicable to the protection of personal data and private life. 2-once the information referred to in the preceding paragraph, the national central authorities shall inform without delay the national central authorities of the other Member States. Article 17 Expenditure expenditure incurred in the implementation of the decision ordering the return of the cultural object and the physical preservation of the cultural object shall be borne by the Member State from whose territory the cultural object has been unlawfully removed. Article 18 other procedures the provisions of this law shall not affect the civil or criminal actions that the Member State from whose territory the cultural object has been unlawfully removed or the owner to whom the right was stolen may take in accordance with the national law applicable.



PRESIDENCY of the COUNCIL of MINISTERS article 19 entry into force this law shall enter into force on the day following your publication.

Seen and approved by the Council of Ministers of January 2016 21 Prime Minister the Secretary of State for Parliamentary Affairs

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