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RESEARCH PRODUCT

Defining “National Treasures” in the European Union. Is the Sky Really the Limit?

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The main objective of this article is to analyse the scope of EU Member States’ right to determine national treasures for the purpose of Directive 2014/60/EU on the return of cultural objects. While investigating the issue at the EU, human rights, and constitutional levels, the authors argue that the right to define what constitutes national treasures is not an absolute right. The definition of this particular category of cultural objects cannot be used to circumvent the rules on the free movement of goods and to hamper this freedom in an unjustifiable and arbitrary manner. On the human rights and constitutional levels, Member States’ right cannot interfere with the right to enjoy one’s possessions. In particular, it cannot be used as a means of de facto expropriation without indemnity. There may, however, be some conflicts between the European Convention on Human Rights and national constitutional rules. For instance, in the practice of the Polish Constitutional Court, limitations on ownership arising from the classification of personal property as a national treasure will not be considered as de facto expropriation and do not require indemnification. These differences make the position of an owner of a cultural good difficult. With ownership of cultural goods regulated by EU law, international treaties and national public law his or her situation may differ depending on which court decides the case, and on a law applied by that court.