This paper is aimed to provide essential notions about the critical issues that will be faced in case stolen valuable goods have been retrieved in EU and the possessor will not intend to release them to the former owner or his insurer. The never ending dilemma between the Common Law and Civil Code legal systems proposes opposite solutions about how protecting the ownership or alternatively the good faith purchaser against the dispossessed owner. I here examine the EU legal instruments in the field of returning valuable goods proposing views from the perspective of a practitioner.
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The question at issue.
According to the data base of the special division of "Carabinieri", the Italian Department for the Protection of Cultural Heritage, since 1970 up today [2], 714.868 pieces of stolen art works have been recovered and 32.321 individuals have been prosecuted. The amount of money at issue cannot be calculated; suffice is to say that just in 2013 it has been estimated an overall Euro 178 M. of art works recovered in Italy. These are the data concerning works of art only, but similar statistics may be drawn insofar as "cultural objects"; jewels; stones; gold and valuable goods species in general.
The data show that the recoveries are not unlikely to occur but there exist many questions that appear difficult to clarify as far as the actual restitution to the dispossessed owner once the stolen good has been acquired by an innocent third party buyer: how can he or his insurer recover it once it has been individuated or seized in a EU member state? Which legal issues this recovery will entail under EU legal principles? Which particular rules will apply?
The starting point for properly assessing the matter at issue begins from the classic triangle of Contract Law concerning movable property: A steals from B a valuable good that C acquires without knowing about the previous theft. Can C (being in a "good faith" / "bona fides" position) retain the valuable or shall hand it back to B and under which conditions, if any?
I gather that it is a universal opinion that the Common Law systems will be more sympathetic with the original Owner B, whilst Civil Code countries are more inclined to safeguard the bona fides buyer C. It is less straightforward instead to individuate the correct analysis of the applicable rules that inside the EU propose specific technicalities. Both trends of Common Law and Civil Code systems coexist and may substantially affect the right of recovery.
In order to propose a reasoned analysis of the Civil Code systems only inside EU I would set up the following four areas of concern as follow:
1. What Law governs the recovery;
2. Who is entitled to proceed;
3. When or within what time limit;
4. Where or before which Jurisdiction;
1. Applicable Law.
The origin of the legal dispute between Owner and bona fides purchaser: the Ancient Rome rules.
In the ancient Rome (since IV° B.C.) the ius civile provided only the citizens of Rome (Quirites) with full property rights on goods that could be acquired by means of ritual formal sale and purchase (mancipatio as a case of the general "in iure cessio"). No foreigner (or "barbarian" as the Latin dictionary would name any non-Roman citizen) was entitled to enforce his rights in case of sale or had remedy to protect it. As a consequence of this, for some centuries, any commercial enterprise with foreigners was neglected and the entire "international" (as the case could be at that time) development of Rome was prejudiced. In order to bridge such an empasse posed by the statues of the ius civile, a magistrate (named Publicio) granted for the first time in 67 B.C. in favor to a non-Roman citizen an order ("actio Publicana") allowing him, acting as a buyer, to hold the good he had bought from a Quirites and resist to the request of restitution put forth by the latter. This recourse to a judicial action (called in "bonis habere pretorio") was reiterated in subsequent occasions in favor to "possessors" of item sold, even in respect of claims put forth by third parties and became crucial for the commercial success of Rome that followed its military dominium.
It worth noting that originally the above principle pertaining to the "in bonis habere pretorio" was construed to allow the buyer to maintain the possession of the good up to the time of completion of the usucapio period. Once this period had elapsed, the buyer could validly contend to have eventually acquired full ownership. It was only with the coming into force of the Corpus Iuris Iustinianeum, some centuries later (527/565 a.c.) that the "in bonis habere" situation was equalized to the acquisition of ownership.
For the purpose of my limited assessment, I may only add and conclude this short historic introduction that the "actio Publiciana" could be considered the first "modern" expression of the Common Law system, aimed to supersede by means of case – precedent the complications given by a (very stringent) "codified" system.
Conflict of Law under the EU Rome II Regulation
The act of restitution put forth by the original owner against the bona fides buyer may be included in the species of the so called non-contractual obligations, the concept of which varies from one EU Member State to another. The Regulation n°864/2007 (known as "Rome II") provides conflict-of-law rules in matters of non contractual obligations under an autonomous concept, covering also non contractual obligations arising out of strict liability [3]. As far as tort cases are concerned, Rome II indicates the law of the country where the direct damage occurred [4]. This rule will individuate, in cases of restitution of stolen goods, the private law of the country in which the dispossession occurred.
Alternatively, Rome II Regulations provides (as an "escape clause") the law "manifestly more closely connected with the surrounding circumstances of the case". In my view, this clause, instead of clarifying the position, seems to create even more problems of interpretation, as it is far to be clear in most cases where the "manifest" connection will rest; moreover, this principle may be often interpreted in opposite ways as long as it may diametrically vary from the point of view of the party is considered: if one looks at the acquirer no doubt that the case will appear more linked with the acquisition of the stolen goods and his arguments to resist the claim of restitution; conversely, in respect of the original owner, there could be more than one argument concerning the theft that may appear prevalent to the subsequent circumstances. Take for instance the always present legal argument that no good title can be contended as a consequence of a theft according to the general principle that "nemo dat quod non habet" and the resulting nullity at law of any subsequent transaction upon the movable good that has been stolen.
In all the circumstances, I am not fully convinced that the recovery action of stolen goods may actually correspond to a tort or delict situation; the legal relationship between the original owner of a stolen good and the bona fides buyer substantially differs from tort claim that the former may have against the thief. The action of restitution, albeit of non-contractual nature, may not be confused with the claim against whom has in all the circumstances acquired a legitimate title at law to hold the stolen good. In conclusion, I am more inclined to think that the loss suffered by the original owner and the related claim of restitution does not directly descend from the theft itself, but from the denial of the buyer to return the stolen good.
The situation above seems to me more similar to the quasi-contract hypothesis of unjust enrichment in consideration of the alleged improvement that the bona fides buyer will enjoy despite the criminal origin of the good he bought that would – allegedly - cause the restitution of the same to the legitimate owner. Such a situation lead me to consider more appropriate, pursuant to art.10 of the Rome II Regulation, the choice of the law of the country in which the bona fides buyer is domiciled as the place where the unjust enrichment took place.
Same conclusion will be also drawn in accordance to various domestic conflict-of-law rule systems of many EU Members that similarly indicate the law of the state where the disputed goods stand (lex rei sitae).
The paramount importance of the choice of the applicable law is self evident: alike the so called "forum shopping," that is the practice adopted to have a "plaintiff-friendly" court that could most likely issue a favourable judgment, the preliminary analysis about which law system applies will in most of the cases procure a more promising approach to the action of restitution or to defend the purchaser's rights. It should not come to a surprise therefore that claimants will strive to individuate and apply the more favorable legislation in respect of their own allegations.
As already anticipated above, the bona fides buyer will enjoy Continental countries' principles, whilst the original dispossessed owner may better defend his position under the Common Law system.
2. Who is entitled to proceed for restitution?
Despite the invaluable efforts inside the EU system to reach uniformity, each domestic law system provides specific regulation that may vary the above draconian distinction between Common Law and Civil Code approaches. There in fact exists a substantial amount of specific rules inside each EU member state that may be relevant for the purpose of ascertaining whom is entitled to the stolen good and therefore shall be carefully considered prior to starting the recovery action of stolen goods.
The variety of solutions concerning right of restitution offered by EU comparative Law
Once the applicable law will be established, the analysis of the case shall be made under the given applicable national legislation. European countries will provide a variety of solutions to the topic at issue that, save for UK and its Common Law approach, are all inclined to procuring protection to the acquisition in good faith. The most "extreme" position is taken by Italian Law that acknowledges that the good faith purchaser becomes the owner [5]. The relevant piece of legislation is given under Art.1153 of the Italian Code that is very telling headed "Effects of the acquisition of possession" being possession the central issue of this legal topic, as explained above, since the Roman times.
French Law instead provides an intermediate solution under Article 2276 of the Civil Code laying down the principle that "possession of movable property is good title", as a few EU systems protecting the acquisition in good faith to a limited extent only [6].
However, the solution of each specific given cases is not so straightforward in practical terms, since in order to resist a claim the buyer shall generally prove:
a) The delivery of the movable good and its actual possession;
b) A "valid" title upon which the good has been acquired and
c) His good faith.
Analogous principles will apply, in different degrees, also in other EU member states similarly to Italy.
By means of a brief comparison I intend to show some tendencies in EU Case Law insofar as the interpretation of the bona fides purchaser for value that may be summarized as follows:
a) Meaning of movable goods:
In order to protect his interest the bona fides buyer has first to establish that he has acquired and currently holds the item under dispute. Some EU legislations count dedicated pieces of legislation to "cultural objects", but more frequently the rules apply to movable goods in general, inclusive of valuable items too.
It must be added that for "movable good" reference shall be generally made to "not registered goods" that is to say goods not included in public register. A few EU legislations like the Italian one establish that whenever the buyer may have easy access to data reporting the actual ownership of the good showing a different owner from the original owner, the sale cannot be enforced against the original owner.
Italian Law provides a stricter interpretation since only general public register (such as the motor registration office) is considered and no reference could be made in respect of private data base.
Whilst it would be desirable that the wide range of databases, both public and private, that identifies and lists valuable goods, not only owned by a State, be considered in this regard, the relevance at Case Law of data bases is still to be settled. Some importance has been given before Italian and many other European Courts to databases dedicated to stolen goods. This kind of records is compiled at the international or national level and may be public or private and may be easily accessible to public via web [7]. It is becoming of increasing relevance at EU Case Law the diligence shown by the bona fides purchaser in making appropriate enquiries about the valuable good he is about to buy [8].
b) Valid instrument to transfer ownership.
Secondly, the bona fides rule will not apply insofar as goods that may not be object of any commercial transaction (extra commercium) because illegal or part of public property or domain.
One of the most relevant issue that characterizes almost any EU national system is given in respect of national public policy regulations ("ordre public") that may interfere with the validity of the contract of sale. Very telling examples of that are given by international Case Law [9] where the relevant contract of sale has been held valid and so the title of sale in favour of the acquirer, despite the same contract would have been null and void under different legislations and in particular in the State where the relevant item had been stolen; the most interesting issue arises, in fact, in case the law of the place of residence of the owner applies and provides exceptions limiting the sale and purchase of the goods under dispute that are considered "non tradable" ("extra commercium") because they belong to the State under public domain rules [10] or have been notified as "cultural heritage of the State". Such non tradable goods can be anyhow purchased by a bona fide acquisition abroad in accordance of conflict of law rules.
The only way to avoid the above incongruous situation would be apply the solution followed in Belgium only [11] to enforce the State of origin (lex originis) rules instead of the law of the place where the items originally stood before the theft (lex rei sitae) rules.
Good faith
There is perhaps no need to add that the acquisition in order to be validated by an EU Court shall be made in good faith, but indeed explanatory notes are useful in order to fully appreciate the meaning of bona fides principles [12]. In general terms who behaves according to "fair standard" is in good faith. National legal systems [13] deriving from civil law establish that "good faith" is presumed, so that it is for the original owner to establish the bad faith of the buyer. The onus proof will be discharged not only if the buyer knew of the illicit origin of the movable object but also if, given his expertise, he ought to have known it.
Alike various EU law systems, good faith is conditioned upon the actual unawareness to harm a third party right.
In many States, the concept of good faith is part of the Civil Code [14] or specific legislation. Particular attention is paid by EU Courts (Criminal & Civil ones) in perusing the evidence concerning the circumstances surrounding the sale with scrupulous analysis of the information the buyer received about the transaction.
The good faith criteria will be undoubtedly left to the "discretional" judgment of the Court that however generally considers some "key" factors. Relevant elements of this analysis will be the identity of the acquirer (a well informed collector or a naïf occasional buyer?) and of the seller (specialised dealer?) and the amount of the price paid (to be compared with the degree of expertise of the buyer about the specific good at issue) [15]. The trend of EU Case Law insofar as sale and purchase of precious items are increasingly in favor to individuate a general duty upon the buyer to make enquiries and take a proactive attitude insofar as the actual origin of the good he is about to buy [16]. Even the speed with which the transaction took place can be considered.
Particular attention is paid to the market professionals such as art dealers and auction houses that, albeit in some European Union Member States only, are now required to keep "transaction registers".
Insofar as the analysis of the bona fides buyer of art work the 1995 Unidroit Convention states under art.4.4 that "In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances."
It must be remembered however that good faith should not be confused with the concept of due diligence: regarding the movement of movables, I gather that the latter is a complex standard of behaviours that must be complied with in order to presume the existence of the former.
The Latin expression of Ulpiano to summarize the principle of due diligence "intelligere quod omnes intellegunt" that is to "understand what everybody will understand" is still valid. However, each case shall be ruled on the relevant situation and indeed in case of valuable goods an higher degree of diligence will be required.
A very telling and rather peculiar example of the complexity of the assessment of good faith is again given by Italian practice and in particular by the leading case held by the Court of Cassation in its decision No. 9782 of 14 September 1999. In this case the Supreme Judges gave particular importance to circumstances prior to the purchase. In fact it was held that the purchaser's conduct before the sale showed his consciousness regarding the unlawful origin of a De Chirico painting. It was ascertained during the criminal trial that the buyer was an art gallery owner with a specific expertise in the works of De Chirico so that he could not ignore that the relevant painting was one of those subject to criminal investigation following the theft.
EU Case Law provides a miscellany of circumstances that may be held to be relevant in the ascertainment of the minimum criteria of good faith. In broad terms, in the vane attempt to provide a practical indication about which circumstances EU Case Law will consider in order to assess the presence of good faith, I would enlist the following positive actions required to buyer in order to maintain his own good faith at the time and before of the purchase:
– contacting a specialist in the field of the valuable goods to buy;
– contacting INTERPOL and making search on data bases of stolen goods;
– requiring the issuance of certificates by the relevant auction or specialised dealer;
– contacting the State of origin (often an institution) or the potential owner or dealer;
– meeting with the possessor of the cultural good and avoiding to proceed through non-professional intermediaries only [17].
A point to further consider rests on the time the good faith is required: in some Jurisdictions good faith from the buyer is required only when he will receive the consignment of the good. It is generally agreed that his subsequent acts, even with the aim to protect his own rights, shall instead be not considered.
Alike the Common Law approach, even in some EU legal systems the transferee in good faith has a limited protection and bona fide acquisition of stolen property is not usually granted. German law is similar to English law and does not protect bona fides buyer except in the case of public auctions as well as Austrian [18] law and Greek law [19]. Luxembourg Law denies bona fide acquisition of stolen property, although allows it in case of property misappropriated through fraud [20].
The right to payment
At French Law (Article 2277 civil code) if the person in possession of the lost or stolen property had bought it in good faith at a market or salon or at public auction or from a vendor dealing in such goods, the original owner may only claim it back upon reimbursement of the price paid by the buyer the price paid.
The above solution is given by other EU law systems irrespective of the right of acquisition in good faith in order to mitigate the loss suffered by the bona fides buyer. For some Authors the compensation given to the bona fides buyer would facilitate restitution and eventually even a reduction of the insurance risk.
The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, an international instrument that complements the 1970 UNESCO Convention, establishes a principle providing for the restitution and return of any stolen (or illegally exported) cultural object at the request of a State or an individual irrespectively, including the good faith possessor, who shall however be entitled to the payment of fair and reasonable compensation.
Unfortunately, no more than 32 countries have ratified the Convention, only 11 are EU Member States. Much debate has been made about the actual meaning of the compensation provided by the Convention that, even because of the obscure translation into the language of some member states [21] created substantial difficulties in practical interpretation.
Many authors have agreed that the right to payment may be better shaped and turned into a "loss sharing" system [22]. Although practitioners usually strive to achieve settlement to "split the baby", frequently the value at stake is detrimental to accommodate alternative dispute resolution.
One "ever lasting" solution of the above issue that I gather should be considered is provided at Maritime Law by the institute of General Average that in my view shows some similarities with the topic at issue: the "innocent" cargo is requested to pay a contribution to expenses incurred by the ship-owner for accidents during the sea voyage; both parties are not to blame in respect of these expenses, but the ship has to proceed anyway and may not do it unless and until accident is solved and the ship is ready to sail again. So why not agreeing to split the loss and allowing the parties to proceed their ordinary lives without incurring in never ending litigation?
3. Time impact in the acquisition of property rights upon movable goods.
It is frequent that valuable goods are retrieved after many years they had been stolen. Criminals of this particular field do know apparently very well such technicalities since it is not a case that stolen goods suddenly reappear once any claim for restitution has become time barred or applicable rules to attempt the recover are not enforceable any more.
Time bar / limitation of time period
In general, the expiry of a certain period of time may lead either to abrogation or extinction of the property claim. Inside the EU there are systems in which the rule of extinctive prescription applies differently [23] whilst in some others the action of restitution may be put forth without any limitation of time. In particular cases, a claim is not subject to extinctive prescription if the acquirer is in bad faith [24]. In various Member States, time limit will accrue regardless of the nature of the object [25].
Legal acquisition of property rights upon movable goods by virtue of continuous possession (Usucapio)
The situation is similar at Italian law where the claim is not subject to statutory limitation but the right of recovery will be affected by usucapio, id est the acquisition of ownership through continuous possession. Civil Code systems, differently from Anglo-American, provide the holder of possession upon movable goods with an alternative instrument of acquisition of ownership given by the protracted holding of an item in his possession. Besides the material possession of the good, the holder must act "as if" he was the true owner (animus possidendi).
The extension of the period of uninterrupted holding of the relevant good may vary, but generally the lawful holder will become the owner after five/ten years since the time he first took it.
German and Italian law recognizes the rule of "joint possession" so that the time of possession of the holder may be added with a third party's length of possession. Italian Law will also provide usucapio in case of bad faith, but the time limit will be double (20 years) [26].
Possession will not produce legal effect in cases of previous agreement on the relevant good, although it can also be the result of an original acquisition, for example following to fortuitous discovery.
Since in property law there exists a general presumption of good faith, in order to contest usucapio the true owner shall prove the bad faith of the possessor.
Generally speaking usucapio may apply to any kind of good, save for specific exceptions indicated by national laws. For instance under Italian, German French, Spain and Swiss legislations no acquisition can be obtained upon item being part of the public domain or protected under specific local legislation.
4. Jurisdiction issues: Where to enforce the rights of the dispossessed owner
Alike the arguments made above about the most appropriate legislation for recovery of stolen goods, the choice of the competent forum may play a paramount importance. Stolen goods cases may be involving both criminal and civil litigations and both aspects may entail different jurisdictions. It is frequent for instance that criminal cases are opened before the territorial court where the theft was perpetrated and at the same time where it has been retrieved. An alternative jurisdiction may be also fund at the domicile of the individuals prosecuted or where the criminal association (if any) was based.
Procedural instruments for legal assistance at criminal matters inside EU.
Within the European Union, mutual legal assistance regarding the trafficking in stolen goods is based first of all on the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (Council of Europe) [27]. The 1959 Convention is flexible and used widely in practice. Its object is the execution of rogatory commissions, which may be involved in all measures, with no pre-established list, that may be used as part of criminal proceedings. Several provisions of this Convention, which increases the effectiveness of mutual assistance, could be of interest in proceedings relating to the returning of valuable goods. I may just recall that under the Convention requests for mutual assistance are made in conformity with the laws of the requested State in order to avoid time consuming and timely use evidence directly gained from one legal authority to another (see art.24). Above all, Article 8(1) of the Convention provides for the possibility of "placing items that have been seized at the disposal of the requesting State with a view to their return to their rightful owners."
Cooperation based on the principle of mutual recognition
The instruments of cooperation established under the fundamental principle of EU system of freedom are based on the principle of mutual recognition of court orders in criminal matters, which aims to ensure the "free movement" of these orders within the Union. According to this principle, a court order made in one Member State in conformity with its national law must be considered, in all Member States, as equivalent to a domestic decision and be enforced without undue jurisdictional controls or delay. Besides the European arrest warrant, it is noticeable that within national criminal proceedings on cross-border trafficking in stolen goods, the competent authorities of Criminal Courts of each Member State can cooperate so to obtain and seize evidence or assets situated in the territory of another Member State [28].
Practitioner will be also interested in the evidence warrant provided for by the Framework decision of 18 December 2008. The competent authority of the executing State may be requested to promptly respond by virtue of the principle of mutual recognition and cooperate to provide documents and data that may be validated by any Court of different jurisdiction within EU.
Another important instrument to pursue a recovery will necessarily consider the seizure of the disputed goods. The EU imposes obligations on members to facilitate measures to ensure the recognition and execution of confiscation measures throughout the Union. The Convention of the Council of Europe on money laundering, tracing, seizing and confiscation of the proceeds of crime, of 1990 compells States to take the necessary steps to ensure that their legislation and procedures allow for the confiscation of property with the same priority as well as it is given in domestic proceedings.
From the practitioner prospective, I am afraid that within the framework of criminal proceedings concerning cross-border trafficking in stolen goods the liaison amongst EU judges and Public Prosecutors (as well as inside the national system) is not always present. The auspicated international cooperation in criminal matters is frequently conditioned by excessive delay. Moreover, privates have very little (to say none) access to the results of the investigations that could be revealed only under specific conditions and after a considerable elapse of time.
As far as police cooperation is concerned, it is the liaison officers to develop direct contacts with their foreign colleagues. In this concern it worth mentioning Eurojust [29] plays a similar role, as intermediary between the judicial authorities, and is supposed to provide technical support to issue or execute acts of judicial cooperation. Through its national members, Eurojust can also request the competent authorities of Member States to carry out special investigations or any other measure that is justified by an investigation or prosecution.
Similarly, Europol mainly lends support to national investigations, including facilitating cooperation in criminal matters through the exchange of information and the coordination of prosecutions.
As far as civil dispute is concerned, the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (so called Bruxelles I) indicates as competent forum the court of the domicile of the Defendants. In case of recovery action of stolen goods this rule will play an undoubtedly relevant rule insofar the prospect of success. Since no specific rules of territorial competence is given for action of restitution, alternative solutions are limited to the possibility to adjoin the bona fides buyer to a Courtcase where he is one of a number of defendants, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings (art.6.1). EU Courts are however generally unwilling to broaden this rule and have many times highlighted that such alternative forum may be not validly heard in case the adjoinment of third parties has been requested with the sole object of avoiding the "natural forum" applicable under the general rule of the domicile.
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Conclusion
The EU above perspective appears still to propose relevant difficulties insofar as the recovery of stolen goods and indeed several aspects of concern appear of difficult solution. There are complications which arise from the present EU legislation mainly due to the lack of harmonization and which will need to be given further consideration and future correction. Protecting property rights and promote certainty in the commercial world at the same time seems a difficult task, but it is mandatory to promote confidence in this area of law as well as to introduce more balances remedies, under accessible legal and transaction costs.
[1] For the purposes of this note valuable goods are inclusive of works of art; cultural objects; jewels; gold items; ancient books; tapestries.
[2] Official data stops at the end of August 2014. Carabinieri refers that in 2103 some 62.265 thefts of art works have been claimed, 57.211 in Italy and 5.052 from abroad.
[3] See Considerando (11).
[4] Article 4 Rome II: General rule: 1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a preexisting relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.4. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a preexisting relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.
[5] Art.1153 Civil Code literally establishes: "He to whom movable property is conveyed by one who is not the owner will acquire ownership of it through possession, provided that he be in good faith at the moment of consignment and there be a valid title capable of transferring ownership. Ownership is acquired free of rights of others in the thing, if this appears in title and the acquirer is in good faith".
[6] French Law establishes that a person whose property has been lost or stolen may claim it back from the person in whose possession it is found within three years date of the loss or theft, subject to any cross-claim by the person in possession of that property. In particular Article 2277 provides that if the person in possession of the lost or stolen property had bought it in good faith at a market or salon or at public auction or from a vendor dealing in such goods, the original owner may only claim it back if he reimburses the buyer the price paid. Similarly in Belgium; Ned.; Lux. Spain; Ch.; Portugal.
[7] The most important International institutional database is still INTERPOL www.interpol.int: International Criminal Police Organization, but almost every EU member state maintain national database of stolen goods; to mention only some: Austria; Belgium: The ARTIST (Art Information System) database of the Belgian Federal Police registers stolen cultural goods (works of art, antiquities, jewellery); Czech Republic: Stolen/missing goods database – MacArt – Ministry of Culture and police; France: TREIMA 2 (Electronic search and fine-art images thesaurus), database of France's Central Office against Trafficking in Cultural Property (OCBC) operates through a search engine that finds similar images; Germany: Federal Police Section SO41-24 of the BKA Bundeskriminalamt: Federal Criminal Police Office) plus some Länder Criminal Police (LKA), not public although all stakeholders in the art market should have indirect access to information. For despoiled goods see Lost Art Database (www.lostart.de); Greece; Hungary Italy: see in particular specialist police "Leonardo" database of the Italian police art heritage protection squad at http://tpcweb.carabinieri.it/tpc_sito_pub/simplecerca.jsp. Latvia; Lithuania, Netherlands; Poland: see the Police-maintained stolen cultural goods database http://www.policja.pl/portal/pol/300/21941/Dobra_kultury.html whilst internet data base iro stolen goods https://www.skradzionezabytki.pl (in Polish) was closed in 2005; Slovakia: (http://www.minv.sk/?odcudzene-a-najdene-umelecke-diela and http://www.policija.si/index.php/ukradene-slike) in Slovak: Spain: Dulcinea (accessible only to police force); Turkey http://www.kultur.gov.tr/EN/ana-sayfa/2-0/20110608.html.
[8] Article 4(4) of the UNIDROIT Convention provides that a factor in determining the exercise of due diligence shall be "whether the possessor consulted any reasonably accessible register of stolen cultural objects".
[9] Winkworth v. Christie Manson and Woods Ltd., [1980] All ER 1121; Duc de Frias v. Baron Pichon, Tribunal civil de la Seine, 17 April 1885, J.Clunet, 1886, p. 593., in Journ. dr. int., 1886, p. 593, quoted by Q. Byrne-Sutton, Le trafic international des biens culturels, p. 135, 136, In Switzerland see the case known as Pièces d'or anciennes (Old Gold Coins), Decision of the Federal Tribunal of 8, April 2005, ATF 131 III 418, JdT 2006 I 63. However, there are cases in which protection has been granted: Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd, Court of Appeal, [2007] EWCA Civ 1374.
[10] P. Lalive, The transfer of chattels in the conflict of laws, Oxford, 1955, p. 24; P. Lagarde, Le commerce de l'art en droit international privé français, in Geneve speeches., p. 404; N. Ronzitti, Mutamento della situazione della cosa e legge regolatrice del diritto reale, in Riv. dir. int., 1967, p. 33 ss.; E. Vitta, Diritto internazionale privato, vol. III, Torino, 1975, p. 14 ss.; L. Cannada Bartoli, Sul trasferimento dei beni fuori commercio nel diritto internazionale privato, in Riv. dir. int., 1989, 618 ss.; G. Carducci, La restitution internationale, cit., p. 315 ss.; A. Lanciotti, La circolazione internazionale e comunitaria, cit., pp. 129-135.
[11] Belgian Code of Private International Law of 2004 gives the original owner the option of choosing either the law of the place where the stolen cultural goods was located at the time of its disappearance, or the place where it was located at the time of the claim for recovery (Article 92 of the Code of Private International Law).
[12] In many EU States, the concept of good faith is part of the Civil Code (Belgium, Austria, Estonia, Germany, France, Greece, Hungary, Italy, Latvia, Lithuania, Malta, Luxembourg, Netherlands, Romania, Slovakia and Spain) or specific legislation (Bulgaria, Sweden). Bulgaria, Sweden. Austria, that for many years adopted an a contrario definition, have recently issued a provision defining good faith (Article 326 sentence 2 ABGB).
[13] In Bulgaria (Article 70 (2) Property Law), Estonia (Article 139 Presumption of Good Faith, General part of the Civil Code Act, 27.03.2002), Greece, Hungary (Article 4 para. 4 Civil Code), Latvia (Article 918 Civil Law 01/28/2000) and Lithuania (Article 4.26 Civil Code 07/18/2000), Malta (Article 532 Civil Code), Luxembourg (Article 2268 Civil Code), the Netherlands, Poland (Article 7 Civil Code), Romania, Spain (Article 434 Civil Code), Iraq (Article 1148 (1) Civil Code) and Switzerland (Article 3 (1) Civil Code), France (Article 2258 Civil Code).
[14] Belgium, Austria, Estonia, Germany, France, Greece, Hungary, Italy, Latvia, Lithuania, Malta, Luxembourg, Netherlands, Romania, Slovakia and Spain.
[15] It is noteworthy that a low price will entail bad faith under Article 559 para. 2 of the Maltese Civil Code.
[16] In this respect, it has been highlighted that even the trend of the EU legislator is to consider more strictly the position of the buyer insofar as valuable goods. See for instance the reversal of the burden of proof established by the 1995 UNIDROIT whereby it is not the dispossessed owner to prove the absence of good faith on the part of the acquirer or possessor but on the latter to establish that he has acted with due diligence (Article 4(1)).
[17] See also the checklist for art market participants on http://www.culturalpropertyadvice.gov.uk. that may be well used for valuable goods in general.
[18] para. 367(1) ABGB.
[19] Article 1038 and 1039 Civil Code.
[20] Article 2279(2) para. 2a Civil Code.
[21] The Italian version literally refers to a "fair indemnity".
[22] Epstein The Hazards of Common Law adjudication in Kate Fitz Gibbon Who ows the Past? Cultural Property, Cultural Policy and the Law 123, 127 (2005); Giuseppe Dar-Matteucci & Gerrit De Geest "The Filtering Effect of Sharing Rules", 34 J. Legal st. 207 (2005).
[23] In France; Ned. and Sweden is 3 years; in Switzerland is 5 years.
[24] Article 936 of the Swiss Civil Code provides that a recovery claim may be made "at any time" against whomsoever is in bad faith.
[25] See for instance German law. According to Article 197(1) No. 1 BGB, the claim (Article 985 BGB) shall elapse after 30 years.
[26] See art.1161 civil code.
[27] Amended by the Protocols of 13 March 1978 and 8 November 2001 and supplemented by Articles 48 to 53 of the 1990 Convention implementing the Schengen Agreement.
[28] Freezing orders may be granted by any EU Criminal Court in order to obtain "any measure taken by a competent judicial authority in the issuing State in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of property that could be subject to confiscation or evidence".
[29] Eurojust's competence covers the same types of crime and offences for which Europol has competence, such as terrorism, drug trafficking, trafficking in human beings, counterfeiting, money laundering, computer crime, crime against property or public goods including fraud and corruption, criminal offences affecting the European Community's financial interests, environmental crime and participation in a criminal organisation. For other types of offences, Eurojust may assist in investigations and prosecutions at the request of a Member State.
The content of this note was presented at IFasic workshop in Malta in October 2014
