Judge rejects Greece’s claim of immunity

By Michael McCullough       June 24, 2019

The federal judge presiding over a lawsuit against the Greek Ministry of Culture rejected the country’s claim of immunity over its assertion of ownership to an ancient bronze figure of a horse owned by the Saretta Barnet Revocable Trust.

District Court Judge Katherine Polk Failla said Greece’s ownership claim, along with its demand upon Sotheby’s to remove the bronze from auction, amounted to “commercial activity” which would make Greece subject to the Trust’s lawsuit.

The Trust and Sotheby’s filed a lawsuit last year because one business day prior to the auction Greece emailed a letter to Sotheby’s demanding the object’s immediate withdraw from the auction and its repatriation to Greece.

The bronze horse had an acceptable provenance which was published in Sotheby’s catalogue: it was purchased by an unknown buyer at auction in April 1967 at Münzen und Medaillen in Switzerland and later sold to Robin Symes. Howard and Saretta Barnet acquired the bronze from Symes in November 1973.

In order to sue a foreign government in a US court, a plaintiff must show that the foreign government’s action was taken in connection with a “commercial activity” of the foreign sovereign. The commercial character of the foreign government’s activity is determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. Therefore, the foreign government’s activity need not have a commercial purpose if it’s one that a private party would take when engaged in commerce.

In this case, the Trust and Sotheby’s said that Greece’s activity — attempting to intervene in the market to assert and enforce its purported ownership rights — is clearly the type of activity in which private parties often engage. Judge Failla agreed and rejected Greece’s argument that the ownership claim was a uniquely governmental effort to police the heritage of its nation (the fulfillment of the Greek Ministry of Culture’s public purpose which could not have been fulfilled by a private party) and therefore not commercial in nature.  According to the court, Greece “conflates the nature with the purpose of the act.  While the purpose of sending the Demand Letter may have been to fulfill the Ministry’s constitutional mandate to protect Greece’s cultural heritage, the nature of the act is analogous to a private citizen attempting to enforce his property rights.”

Unless Greece appeals the decision, the case will go forward to the discovery phase in which the Greek government will have to disclose information in their possession about the bronze horse and will be forced to produce witnesses. Alternatively, Greece will have to recognize the Trust’s ownership of the bronze horse.

EU Tells Importers to Get Permission to Import Artwork

When you send a work of art to an auction house in Paris, you expect that the importation will go smoothly. You don’t expect the French government to intercede in the importation and to advocate on behalf of another government as to why the object is being imported and sold in France.

The next time you send any object more that 200 years old to France- or to any other EU country- there will be new rules about what you can expect from the French government. And the rules shouldn’t give art sellers the comfort that they will be treated fairly.

The changes made by the EU are onerous — antiquities that do not originate in an EU country now require an import license when they arrive in the EU. Objects over 200 years old and valued over 18,000 Euros that are fine art, decorative art, antiques, ethnographic art, collectibles, books, and manuscripts that do not originate in an EU country now require a special import declaration by the importer stating that they were legally exported.

Importers can only get an import license for antiquities if they can show proof that the object was legally exported from its country of origin, or, alternatively, for objects extant before 24 April 1972, proof of legal export from the last country where it was located for a period of more than five years. The relevant authorities will have up to 90 days of receipt of the completed license application to examine it and decide whether to issue the import license or to reject the application. And if a certain EU country rejects an application, that rejection, as well as the grounds on which it was based, will be communicated to every other EU country, so no forum shopping.

Objects subject to the new import declaration may require additional documentation providing the validity of the statement. The regulations state, “[t]he Commission shall lay down……procedural rules on its [the declaration’s] submission and shall indicate possible supporting documents to prove licit provenance of the cultural goods in question that should be in the possession of the holder of the goods and the rules on processing of the importer statement.” This could prove as difficult as getting an export license.

Each EU country will set up its own penalties for failure of an importer to get a license or make a declaration. The EU Regulation says, “penalties provided for shall be effective, proportionate and dissuasive.” The guillotine?

Mercifully, certain objects are exempt. The new rules do not apply to museum exhibitions. Also, antiquities on Temporary Importation that are destined to an art fair do not require an import license- an import declaration will be accepted instead.

The changes go into effect on June 27, 2019.