CHAIR OF THE COUNCIL OF MINISTERS

Proposal for Law No 10 /XIII

Exhibition of Motives

The existence of a space without internal borders that has for decades determined abolition

of the control of the movement of goods within the European Union led to the adoption of a

Regime that would allow the protection of the mobile cultural heritage of the Member States

against illicit trafficking.

In effect, pursuant to Article 36 of the Treaty on the Functioning of the Union

European (TFEU) and pese although the respect belongs to an internal market, the states-

Members retain the possibility of interditing or scrutinizing the exit of national territory

of the works which, in accordance with their domestic law, integrate the concept of cultural heritage.

It stems from the letter and interpretation of the same TFEU standard that is also of the competence

of states the determination of the content of this concept which thus varies

considerably depending on the legal planning that is in attendance.

The first step towards the construction of a regime aimed at obviating illegal outflow

of cultural assets from the dismantling of internal borders was given with the adoption of the

Directive No. 93 /7/CEE of the Council of March 15, 1993 and Regulation (EEC)

n ° 3911/92 of the Council of December 9, 1992.

On a par with the restitution of the unlawfully exported from your country of origin and the

uniformity of controls at the external border, was still an established system of

cooperation between national authorities, both those belonging to the administrations of the

cultural heritage, how much those carrying out customs functions, to which the

police officials.

CHAIR OF THE COUNCIL OF MINISTERS

In what concerne the internal strand of this regime-that of the restitution of certain object to its

country-has opted for a mutual recognition of the distinct national protection laws of the

heritage, limited however to certain categories of goods, as long as they reach them

a given pecuniary value in the respective state of origin (exception made to the goods

archaeological) and since observed also an antiquity threshold.

Even as amended by the Directive No 96 /100/CE of the European Parliament and of the

Council, of February 17, 1997 and 2001 /38/CE of the European Parliament and of the

Council, of June 5, 2001, and by Council Regulation (EC) No 116/2009 of

December 18, 2008, this regime of protecting the different heritage of the

Member States would be revealing shortfalls, attested since soon by the reduced number

of goods effectively restituted to the State of origin.

The Directive that ora transposes aims to overcome such limitations, facilitating the material return

of objects left out in violation of the national law that is for the purpose of protecting them. Fab it

essentially by three avenues: extension of the scope of the scheme, reinforcement of the

cooperation between central authorities of the Member States and extension of deadlines

granted to the State aggrieved by the illicit outlet.

In regard to the scope of mutual recognition of national protection laws,

particularly in the part where they report to the exit of territory of the State, leaves the

even of being limited by the criteria of inclusion in pre-defined categories, value

pecuniary and seniority. The reference is now to the object of the laws in question, and may

a well be restituted regardless of whether you find yourself protected in a specific way

or from previously having been identified as integrating the cultural heritage of the State

of whose territory the cultural good came out unlawfully. The limits to mutual recognition

pass the fundar-if only in Article 36 TFEU and the principles of suitability and

proportionality in it.

CHAIR OF THE COUNCIL OF MINISTERS

The relevant date for the effect of the determination of the illicit outlet remains that of 1 of

January 1993, regardless of the date of accession of the State from whose territory the good

cultural in cause came out unlawfully.

On the other hand, the central authorities should cooperate further in the sense of

give effectiveness to the commands of the national protection laws. For there from other tasks,

they must exchange between themselves information in this field, with recourse to the information system

of the domestic market, as regulated by Regulation (EU) No 1024/2012 of Parliament

European and of the Council of October 25, 2012 upon the creation of own module

specifically designed for cultural assets, and in respect of the protection regime of

personal data.

As for the deadlines, the one that applies to the verification of the cultural good found in another

Member State to conclude whether it is protected is extended to six months, by

form to allow Member States to take the necessary measures to preserve the

well cultural, avoiding as yet, if any, that the same is subtracted to the

procedure for restitution.

In turn, the deadline for the purposeful of the restitution action is extended to three years

numbered from the date on which the State was aware of the place where the cultural good if

finding and the identity of your possessor or holder.

It becomes thus necessary to transpose to the internal planning what is stipulates in the

Directive concerned, whose regime still finds support in Article 69 of Law No 107/2001,

of September 8, laying down the foundations of the policy and the protection and valorisation regime

of cultural heritage.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

CHAIR OF THE COUNCIL OF MINISTERS

CHAPTER I

General provisions

Article 1.

Object

This Law transposes to the internal legal order the Directive No 2014 /60/UE of the

European Parliament and of the Council of May 15, 2014 on the restitution of goods

cultural people who have unlawfully emerged from the territory of a Member State of the Union

European.

Article 2.

Scope of application

1-A This Law shall apply to cultural goods which, after December 31, 1992, have

out unlawfully from the national territory:

a) Portuguese and find themselves in the national territory of another Member State of the

European Union;

b) From any Member State of the European Union and find themselves in territory

Portuguese.

2-The provisions of the preceding paragraph shall be without prejudice to the application of this Law to outputs

previous in case of reciprocity.

Article 3.

Principle of the restitution of cultural assets

1-Constitute duty of the Portuguese State, under the terms of this Law, to exercise in the sense

of the material return of any cultural goods from the territory of another

Member State of the European Union to the territory of the Member State of whose territory

the cultural good has come out unlawfully, provided that:

CHAIR OF THE COUNCIL OF MINISTERS

a) They are protected or defined by any Member State, before or after

have unlawfully come out of their territory, as " national heritage of value

artistic, historical or archaeological ", of harmony with respect to legislation

national or with national administrative procedures, in the acetment of the article

36. of the Treaty on the Functioning of the European Union; and

b) Have emerged unlawfully from the national territory of that Member State, in the

following cases:

i) Exit from the territory of a Member State in violation of the respect

legislation in the protection of national heritage or in violation

of Regulation (EC) No 116/2009 of the Council of December 18 of

2008; or

ii) Non-return, the deadline of a lawful temporary dispatch; or

iii) Violation of any other condition bets on a temporary dispatch.

2-The Portuguese State, pursuant to this Law, diligencia to the authorities

national central to the other Member States of the European Union in the sense of

material return to the Portuguese territory of goods which:

a) Integrate cultural heritage, even if not enrolled in the heritage register of

classification or inventoration, pursuant to the provisions of Law No. 107/2001, of 8

of September, which lays the foundations of the policy and the protection regime and

enhancement of cultural heritage; and

b) Have left the territory of the Portuguese State under the conditions referred to in the

previous number.

CHAIR OF THE COUNCIL OF MINISTERS

CHAPTER II

National Central Authorities and Internal Market Information System

Article 4.

Mission and competences of the national central authorities

1-National central authorities have as their mission to cooperate and promote consultation

with the national authorities of the other Member States of the European Union in the

scope of the present regime for the restitution of cultural property.

2-The national central authorities shall, inter alia, carry out the following powers:

a) Search for cultural assets that have emerged unlawfully from the territory of any

another Member State of the European Union and to identify the possessor or holder;

b) Notifying the Member States of the European Union of whose territory it is suspected that

have unlawfully come out of cultural goods discovered in Portuguese territory;

c) Collaborate with the competent authorities of the other Member States with a view

to research, exchange of information, safeguard and restitution of cultural assets

that have unlawfully emerged from the national territory of those or cultural goods

that have emerged unlawfully from the Portuguese national territory;

d) Perform the function of intermediary between the Member State of whose territory

the cultural good has come out unlawfully and the possessor or holder as far as the

restitution.

3-Without prejudice to the provisions of the other legislation applicable to the protection and valorisation of the

cultural heritage, the Portuguese national central authorities exercise their

skills relating to cultural assets that have unlawfully emerged from the territory

national Portuguese pursuant to this Act, as well as in the terms of the legislation

applicable in the Member State where the said goods are found.

CHAIR OF THE COUNCIL OF MINISTERS

4-A cooperation and exchange of information between national central authorities of the

Member States comply with the personal data protection regime.

Article 5.

Designation of national central authorities

It is incumbent upon the member of the Government responsible for the area of culture to designate, for the purposes of

present law, one or more national central authorities, and shall communicate the said

designation, as well as any subsequent amendment to this, to the European Commission.

Article 6.

Collaboration of other entities

All entities, either public or private, should collaborate with the central authorities

nationals, designated in the terms of the previous article, in obtaining the information and

documents requested for the pursuit of their duties.

Article 7.

Internal Market Information System

1-For the purpose of proceeding with reciprocal cooperation and consultation, the authorities

national plants shall use a module of the Market Information System

Internal (IMI), created by Regulation (EU) No 1024/2012 of the European Parliament and

of the Council, of October 25, 2012, specifically designed for cultural goods.

2-National central authorities may still use the IMI to disclose all the

information relating to cultural assets that have been furloughed or out unlawfully

of its territory.

CHAIR OF THE COUNCIL OF MINISTERS

CHAPTER III

Means of research, exchange of information, safeguard and restitution of goods

cultural

SECTION I

Means of research, exchange of information and safeguarding of cultural assets

Article 8.

Research and exchange of information on cultural goods

1-National central authorities should seek out the cultural assets that are found

in Portuguese territory, having emerged unlawfully from the territory of any State-

Member, as well as identify the respected possessor or holder, when such is

application by that Member State.

2-The application referred to in the preceding paragraph shall be accompanied by all the

useful information that may facilitate the search, in particular with regard to the

effective or presumptive location of the good.

3-In the case of discovering a cultural good in Portuguese territory, there are grounds

reasonable to suspect that this well has unlawfully exited from the territory of another state-

Member, national central authorities must officiously notify the State-

Member concerned.

4-National central authorities should facilitate verification, by the authorities

competent from the Member State of whose territory the good has come out unlawfully, of which the

well in question constitutes a cultural good, as long as such verification occurs on time

of six months after the notification provided for in the preceding paragraph.

CHAIR OF THE COUNCIL OF MINISTERS

Article 9.

Means of safeguarding cultural goods

Save in the case that the verification referred to in paragraph 4 of the preceding article does not occur in the

period of six months after the notification provided for in paragraph 5 of the same article, the authorities

national plants shall, where necessary:

a) Take the necessary measures for the material conservation of the cultural good, in

cooperation with the Member State from whose territory this emerged unlawfully; and

b) To avoid, through the necessary cautionary measures, that the cultural good is

subtracted to the process of restitution.

Article 10.

Intermediation and arbitration

1-National central authorities perform the function of intermediary between the

Member State of whose territory the good has emerged unlawfully and the possessor or holder in the

referring to restitution.

2-For the purposes of the provisions of the preceding paragraph, national central authorities may

propose and trigger an arbitration process, should the possessor or the holder, well

as the Member State from whose territory the cultural good has emerged unlawfully, give

formally their agreement to their realization.

3-The arbitration procedure is without prejudice to the action of restitution referred to in the section

next.

CHAIR OF THE COUNCIL OF MINISTERS

SECTION II

Action for restitution of cultural assets

Article 11.

Assumptions of the restitution action

1-Not opting for the resolution of the conflict by recourse to the arbitration referred to in the

previous article, the Member State from which a cultural good has unlawfully come out

may intry against the possessor or, in the absence of this one, against the holder of that good, action

condensation intended to obtain the restitution of this.

2-Whenever, in the context of the legal action, the court concludes that the well-claimed

constitutes a cultural good and has emerged unlawfully from the national territory of the State-

An author member, in the actment of Article 3 (1), condemns the possessor or the holder to,

within a reasonable period of time, deposit the good in question to the guard of the national central authority,

with a view to its restitution to the Member State from whose territory the cultural good came out

illicitly, without prejudice to the right of the holder or the possessor to an indemnity,

case if you check the assumptions set out in Article 14.

3-A The restitution action is instructed with:

a) Document that describes the object's good object and that attests to its quality of

well cultural;

b) Statement attests to the illicit outlet of the cultural good of the national territory of another

Member State, issued by the national central authorities of that State-

Member.

4-A The restitution action cannot be brought if the outlet of the cultural good of the territory

national has ceased to be unlawful at the date of the purposeful of the action.

CHAIR OF THE COUNCIL OF MINISTERS

Article 12.

Competent court

Is competent to know of the restitution action the judicial court of comarch, nos

terms of article 80 of the Code of Civil Procedure.

Article 13.

Deadlines

1-A The restitution action may be proposed within three years from the date on which

the national central authorities of the Member State-Member of the author had knowledge of the

site in which the cultural good and identity of its possessor or holder is found,

provided that they have not elapsed more than 30 years from the date on which the good

cultural has emerged unlawfully from its national territory.

2-The time limit referred to in the preceding paragraph is 75 years, when the restitution action has

by object:

a) Goods that form part of public collections, understood as those that so

are defined as public in the legislation of the authored Member State, which are

property of that Member State, of a local or regional authority of that

Member State or of an institution which, being located in the territory of that

Member State, be the property of that Member State or of an authority

local or regional, or is funded in a significant way by one of these

entities; or

b) Goods belonging to inventories of ecclesiastical institutions or other institutions

religious.

3-The provisions of the preceding paragraph shall be without prejudice to the application of higher time limits which

have been established upon international agreements between Member States.

CHAIR OF THE COUNCIL OF MINISTERS

Article 14.

Compensation

1-In case the refund is ordered, a fair compensation is granted to the possessor in

function of the circumstances of the present case, provided that the same proves that it acted with the

diligence due to acquiring the good.

2-For the purpose of determination of due diligence, all the

circumstances of the acquisition, namely the documentation of the provenance of the

well, the exit permits required by force of the legislation of the Member State of

whose territory the good came out unlawfully, the quality of the parties, the price paid, the consultation

by the possessor of normally accessible records relating to furloughed cultural goods, or

of any relevant information that it had been able to reasonably obtain, or

any other initiative that a reasonable person had carried out in

identical circumstances.

3-In the event of donation or succession, the possessor should not benefit from a status more

favorable than that of the person of whom, to that title, acquired the good.

4-The Member State author proceeds to the payment of the said indemnity at the

restitution of the good, without prejudice to the right to claim a refund of those amounts to the

responsible for the illicit outflow of the cultural good of its territory.

Article 15.

Guardial tutelage

Without prejudice to the powers of the national central authorities in accordance with Article 9,

the Member State from which a cultural good has emerged unlawfully enjoys also

active legitimacy to apply for the necessary cautionary arrangements to ensure the

usefulness of the decision that comes to be delivered in the context of the restitution process, in the

general terms.

CHAIR OF THE COUNCIL OF MINISTERS

Article 16.

Information

1-The national central authorities of the Member State of whose territory the cultural good

has come out unlawfully should inform the national central authority of the

purposeful of the action of restitution, in particular through IMI and in accordance with the

legal provisions applicable in relation to the protection of personal data and life

private.

2-Once received the information referred to in the preceding paragraph, the authorities

national central authorities shall inform the national central authorities of the

other Member States.

Article 17.

Expenses

The expenses incurred with the execution of the decision ordering the restitution of the cultural good

and with the material conservation of the cultural good are borne by the Member State of whose

territory the cultural good has come out unlawfully.

Article 18.

Other procedures

The provisions of this Law shall be without prejudice to the civil or criminal actions that the Member State

of whose territory the cultural good has emerged unlawfully or the owner to whom the good

has been furloughed may intry under the applicable national legislation.

CHAIR OF THE COUNCIL OF MINISTERS

Article 19.

Entry into force

This Law shall come into force on the day following that of its publication.

Seen and approved in Council of Ministers of January 21, 2016

The Prime Minister

The Secretary of State for Parliamentary Affairs