JUSTICE - No. 68

34 No. 68 JUSTICE State, which acts only as a custodian.4 They are publicly listed and await their owner. If a claim with sufficient evidence is brought to recover such artwork, its restitution is almost automatic. n If the artwork was looted in France and is currently held in a foreign country by a private collector or a private or public institution, in case an amicable settlement is not found, restitution can (subject to proper evidence) be ordered by French courts, on the basis of Ordinance no. 45-770 of April 21, 1945 on the nullity of acts of looting committed by the enemy or under its influence. n If the artwork was despoiled abroad or in France, and currently belongs to French public collections as owned by the French State, the restitution can result only through a law voted on by the French Parliament. This is what was done to recover the fifteen works of art covered by the New Law. A. The Inalienability of Artworks Belonging to Public Collections Pursuant to French law, works of art belonging to public collections (i.e., French museums) cannot be alienated or seized. The legal rationale is to prohibit the disposal or the transfer of property belonging to the public domain for valuable consideration or freely, and to prevent any kind of seizure of what is considered to belong to the French State. Article L.451-5 of the Patrimonial Code stipulates that: the assets constituting the collections of the museums of France belonging to a public entity are part of their public domain and are, as such, inalienable. Any decision to declassify one of these assets can only be taken after receiving the approval of the High Council of Museums of France.5 In addition, Article L.451-3 of the Patrimonial Code also outlines the principle of imprescriptibility of the collections of the museums of France. The aim of this principle is to always allow public persons to be able to claim back alienated property. Lastly, Article L.451-10 of the Patrimonial Code stipulates that the property of the museums of France cannot be seized. The museums benefit from an immunity of seizure which protects them from any interim measure. B. The Derogation to the Inalienability Principles by a Dedicated Law The principles of inalienability, unseizability and imprescriptibility of cultural property in publicly owned collections are intended to ensure that these works cannot be sold or transferred, but are only to be exhibited or preserved for scientific study or posterity. These principles, however, do not have constitutional value. A principle of constitutional value is one that is classified as such by the Constitutional Council (Conseil Constitutionnel), and which is binding on the legislator. In contrast, the inalienability principle, which is not constitutional, can be derogated by law as this has been reaffirmed by the Constitutional Council: “without the need to investigate whether the principle of the inalienability of the public domain has constitutional value, it is sufficient to observe that it only prevents the property that constitutes this domain from being alienated without it having first been declassified.”6 The State Council (Conseil d’Etat) also confirmed this legal exception, stating that “unless the legislator provides otherwise, works held by a public law legal entity [...] belong to the public domain and are, therefore, inalienable,” and a law declassifying movable public property must be examined in the light of several constitutional requirements attached to the protection of public property: it must not disproportionately affect it; it must not jeopardize the continuity of the public services to which the public domain is assigned; it must be justified by a reason of general interest.7 This derogation to the principle of inalienability by a specific law was used to restitute artwork in the possession of the Musée du Quai Branly in Paris to the Benin and Senegal Republics. A law was adopted on December 24, 20208 to derogate from the principle of inalienability and authorize the restitution of: 4. Decision of the State Council (Conseil d’ État), July 30, 2014, No. 349.789. 5. https://www.legifrance.gouv.fr/codes/article_lc/ LEGIARTI000022232387/2010-05-20 6. Decision of the Constitutional Council (Conseil Constitutionnel) no. 86217 DC of September 18, 1986. 7. Supra note 5. 8. Law no. 2020-1673 dated December 24, 2020, on the restitution of cultural property to the Republic of Benin and the Republic of Senegal.

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