State claims on collectors' works and objects

France, a country that has both looted and been looted, has seen many of its cultural objects removed, more or less lawfully, from the public domain, whether through the vandalism of the French Revolution or through recurring thefts from museums and libraries. This is why, for several years, the State has pursued a genuine “crusade” against citizens who hold such items without entitlement, in order to reconstitute its heritage. To that end, the State relies on the mechanism of revendication mobilière réelle, a legal action brought by the Administration before the ordinary courts or the administrative courts to have title established to an item belonging to the public domain^[1].

This practice of revendication reveals not only the little known breadth of the public domain, but also the way in which, through its selection of the public property it chooses to pursue, the State delineates its attachment to a particular construction of the country’s cultural identity.

From a legal standpoint, the principles of inalienability and imprescriptibility governing public property raise the question of the effective ownership of such items, a question that becomes all the more complex where objects have been held for several generations by private individuals. At the same time, the State faces difficulties in proving its title, against a background of questions surrounding its diligence in taking stock of its heritage. Finally, a revendication policy applied inconsistently raises concerns as to the proportionality of the burden imposed on good faith holders who are dispossessed.

I. Claims grounded in the item's inclusion within the State's public domain

A. The incompatibility of the effects of Article 2276 of the Civil Code with the inalienability of public domain property

The Conseil Constitutionnel has excluded the application of the maxim "en fait de meubles, la possession vaut titre" (Article 2276 of the Code civil) to property belonging to the public domain. As a result, it considers that an action in revendication by the State infringes neither the right to the maintenance of lawfully concluded agreements nor lawfully acquired situations^[2].

In the Chartres Cathedral jube case, the company Brimo de Laroussilhe, an antiquarian dealer, acquired a sculpted fragmentan applied for an export certificate. The certificate was refused on the ground that the item belonged to the public domain, and the application was followed by a request by the State for restitution of the item. The company challenged the decision before the Cour Administrative de Paris and then appealed on points of law, arguing that the decision infringed rights and freedoms guaranteed by Articles 4 and 16 of the Declaration des Droits de l'Homme et du Citoyen. The Court de Cassation referred the question to the Conseil Constitutionnel by way of a priority question of constitutionality, considering that it raised a serious issue.

The Conseil Constitutionnel then confirmed that the principles of inalienability and imprescriptibility of public domain property, although they preclude reliance on the maxim "en fait de meubles, la possession vaut titre" (in matters of movables, possession is equivalent to title), do not infringe the right to the maintenance of lawfully concluded agreements. According to the Conseil Constitutionnel, the binding force of contracts remains unchanged, and the evicted purchaser may seek an eviction warranty against the seller, but cannot validate a transaction relating to public domain property. Under Article 1599 of the Code Civil, the sale of another’s property is void, a rule that also applies to public property, which is not susceptible to acquisitive prescription^[3].

This case law forms part of a strict conception of public ownership that places such property “hors commerce” (outside commerce) (Code Civil), art. 1598)^[4]. Transactional security and the general interest are thus weighed against the protection of public ownership. While some consider that usucapion may apply to movables to secure the stability of commercial exchanges^[5], the Conseil Constitutionnel maintained that this principle cannot extend to public property which, by its nature, lies outside private legal commerce, and in respect of which the public owner’s title prevails over the rights of successive purchasers.

This stance nevertheless has significant consequences for the art market by increasing the responsibility borne by private actors, who are required to exercise heightened vigilance as to provenance. While the State may revendicate such property without any limitation period, professionals are now expected to verify the legitimacy of publicly owned possessions that may have been lost before placing an object on the market. This burden, while legally defensible, is particularly onerous, because the State itself may struggle to establish that a given item belongs to the public domain. The decision therefore calls for a balance between transactional security and the protection of the public domain, a balance that could be challenged by an expansive application of the European Court of Human Rights’ principles on the notion of property^[6].

Actions in revendication fall within the jurisdiction of the civil courts, but the administrative courts may hear disputes arising out of such claims in the context of an application for judicial review challenging a decision refusing an export certificate for a cultural object adopted on the basis of Article L. 111-2 of the Code du Patrimoine.

In that context, the administrative court must rule on whether the item forms part of the public domain, but must refer the question of ownership to the ordinary courts if a serious dispute is raised^[7]. TThat referral reflects the coexistence of two spheres of jurisdiction, namely that of the administrative courts for issues relating to the public domain and that of the ordinary courts for determining whether ownership is public or private. The Conseil d’État now considers that the existence of a “sérieuse contestation” (serious dispute)must be assessed in light of the parties’ claims and supporting materials, including, in particular, any private titles relied upon^[8]. This jurisprudential development, though currently confined to movable cultural property, could in time alter the allocation of jurisdiction between the two orders, especially since recourse to expert evidence may strengthen the administrative court’s impartiality in complex cases^[9].

B. Difficulties relating to proof that an item belongs to the public domain

Determining whether an item belongs to the public domain requires a rigorous approach, given the many legal and historical issues it raises. Since 2006, Article L. 2112-1 of the CGPPP has defined the public movable domain by reference to cultural interest, whereas the incorporation of items into the public domain before that date was based on their allocation to a public service or public use. Accordingly, to revendicate an item unlawfully removed before the CGPPP entered into force, the Administration must prove both its ownership and the item’s allocation to public utility^[10]. n the case of archives, their public character depends on their classification at the time of their creation^[11]. In the case of items originating from the Church or the Crown, it is necessary to verify that they have remained in national ownership since the Revolution^[12].

The judge rules on the basis of the evidence adduced and may order expert reports, without reversing the burden of proof^[13]. However, the Chartres Cathedral gothic rood screen case illustrates that expert hypotheses, such as an analysis of traces of mortar, were sufficient to establish that a fragment had been incorporated into the public domain as early as 1848, despite the absence of formal proof^14]. That solution, upheld by the Court of Cassation^[15], expands the criteria of assessment in favour of the Administration and shifts the evidential burden to the detriment of private individuals, because it relies on presumptions that ought to be serious, precise and consistent, in line with Article 1382 of the Code Civil. 

The State’s advantageous position in evidential matters must also be assessed in light of its questionable diligence in managing its cultural heritage. Despite the inventory obligation established by the 2002 statute^[16], delays in récolement procedures hamper both the handling of State claims and the issuance of export certificates. This is illustrated by the example of the Portement de Croix, an artwork reported missing but recovered decades later by the Musée des Augustins, without any theft report having been filed^[17].

The State also sometimes acts inconsistently in pursuing revendication. The Mme de Beauvon-Craon case, in which an export certificate for furniture from the Château d’Haroué was undermined by a retroactive classification decision, is particularly telling^[18]. By allowing classification of an item after an export certificate has been issued, the State undermines collectors’ confidence and creates significant legal uncertainty. Moreover, it has acquired certain elements originating from the public domain without taking action in relation to the remainder of that religious heritage^[19], even though that heritage suffered destruction in 1793 comparable to that which had previously justified a revendication^[20].

To remedy these inconsistencies, a clear policy and harmonised practices are required, drawing on the Vademecum on claims relating to public archives^[21], so as to reduce inconsistencies, strengthen the legitimacy of State claims, and provide greater predictability for the art market.

II. Claims contingent on fait compensation

A. Recognition of compensation for dispossessed private individuals

Case law now recognises compensation in favour of dispossessed private individuals, to make good the financial loss resulting from the deprivation of their patrimonial interest in the use of an item ultimately returned to the State because it belongs to the public domain. Such compensation is due where the deprivation of enjoyment imposes on the individual a special and excessive burden.

According to the interpretation of the European Court of Human Rights, the concept of “possession”extends to any substantial proprietary interest held in good faith by an individual where there is a legitimate expectation of retention^[22]. The Court accepts that the imprescriptibility and inalienability of the public domain do not prevent the protection of proprietary interests, thereby recognising a right for dispossessed individuals to respect for their possessions^[23].

It follows from that European case law that the fact an item belongs to the public domain does not prevent its holder, where the holder can demonstrate a sufficient patrimonial interest in enjoying it, from seeking compensation if, having regard to all the conditions and circumstances in which the public owner asserted its claim, the holder is made to bear a disproportionate burden.^[24]. Such circumstances may arise, in particular, where the item has been held for many years by a private person openly and on the basis of a regular title, and where the public authority has shown a lack of diligence in claiming property it considers to be its own.

Against that background, the Cour administrative d'Aappel ^[25], upheld by the Conseil d'État^[26], held,in relation to a work containing the text “commentaria in Evangelium sancti Lucae” attributed to Saint Thomas Aquinas, that the major public interest flowing from the work’s inclusion in the public domain did not necessarily require that its restitution to the State be unaccompanied by compensation for the holder’s loss of patrimonial interest in enjoying it. The court noted that the holder’s family had acquired the work at public auction in 1901 and had possessed the manuscript in good faith for more than a century, without any initiative by the public authorities to assert ownership until 2018. It further noted that the work had been deposited with the departmental archives of Maine-et-Loire from 1991 to 2016, which could only have reinforced the holders’ conviction that they were the owners of the work. In light of those circumstances, the court considered that deprivation of the work imposed a disproportionate burden, justifying compensation.

This illustrates how a good faith holder may seek compensation for the loss of a patrimonial interest, failing which a special and excessive burden would be imposed where the Administration fails to act in due time, properly, and with coherence in its revendication policy. The payment of a “fair compensation” appears to be the principled means of addressing the Administration’s inconsistent revendication policy. This remains subject to the parties reaching agreement on a fair assessment of the amount of compensation.

B. Fair assessment of harm

In assessing compensation in the case of the manuscript attributed to Saint Thomas Aquinas, the administrative courts rejected the analytical method and preferred a lump sum approach, which raises questions as to the criteria applied.

Compensatory claims must be quantified^[27], or capable of certain quantification by application of a legal provision^[28] , or quantified after requesting a prior expert assessment^[29], failing which they are inadmissible. This requires the claimant to demonstrate the existence and extent of the alleged harm. The European Court of Human Rights further recalls that the determination of compensation should take account of characteristics specific to the property, such as rarity and artistic qualities^[30]. Yet the Paris Administrative Court of Appeal, upheld by the Conseil d’État, relying on the item’s inclusion in the public domain, refused to take account of market value in assessing compensation, thereby excluding the analytical method based on market price^[31].

This reasoning is circular, since it had been established that the claimant had a patrimonial interest and that, under the European Court of Human Rights’ conception of a “possession”, the claimant had a legitimate expectation of being the owner. In addition, the Ministry of Culture contested the claimant’s initial valuation without producing a more precise valuation, which could have left room for the use of market value as a subsidiary criterion for assessing harm.

The court applied a lump sum method to assess the loss of the claimant’s patrimonial interest in enjoying the manuscript. In that context, the European Court of Human Rights accepts, for public domain property, the use of lump sum awards where enjoyment is temporary, or in cases akin to expropriation, including awards representing 10 per cent of the value of the property^[32]. Applied in this case, that method led to an award of 25,000 euros, on the basis that it compensated both the financial and the non-pecuniary harm invoked by the claimant, without clearly distinguishing between them.

That approach appears to understate the specificity of the claimant’s situation, since the manuscript had been preserved for decades. The European Court of Human Rights consistently holds that where compensation is not reasonably proportionate to the value of the property, the burden imposed on the individual may be excessive, upsetting the fair balance between the general interest and individual rights^[33]. In the present case, the loss of an item forming part of cultural heritage, held in good faith for more than a century by a family, should have justified more substantial compensation reflecting more closely the item’s market value on the art market.

For compensation to be fair, it seems appropriate to take into account not only the market value of the item but also the holder’s diligence in preserving it. Here, the holder had conserved and maintained the manuscript for more than a century, demonstrating a concern to preserve the item for future generations, including through specific acts such as binding carried out after acquisition. Such factors, demonstrating manifest good faith in possession, should have influenced the amount of compensation.

It also seems essential to take account of the way in which the State managed the revendication in assessing non-pecuniary harm. Where a claim is brought after a long period of State inaction, and the holder has, in good faith, made the work accessible to the public, the sudden effect of recovery may cause significant non-pecuniary harm. In such circumstances, higher compensation that distinguishes non-pecuniary harm from financial harm appears justified. Any assessment should therefore reflect not only the disproportionate burden borne by the good faith holder but also the Administration’s handling of the case, since recovery may also tarnish the holder’s reputation. Such an impact may compromise the holder’s standing as a collector and diminish the perceived value of the entire collection.

This is why closer cooperation between the State and art market participants appears necessary. First, agreement is needed on how proof of inclusion in the public domain is to be administered, given the complexity of tracing the provenance of claimed works and collectible objects. Second, consideration should be given to a compromise on the time frame within which the State may act, and to the adoption of a principle of non-contradiction once the State has taken a decision. As for art market actors, their responsibility would lie in systematic provenance research for sensitive objects and notification to the Ministry of Culture in case of doubt. Finally, where State interference is disproportionate, compensation assessed on equitable criteria should be contemplated.