Countering

Robert Peters
heritage’ or ‘national patrimony’ than the term ‘national treasures’ – which indicates that
the provisions might be limited to few precious items. These terminological differences
imply that the legal concept underlying the conceptualization of cultural property may
vary as well. Similarly to UN Treaty law, the EU Treaty does not grant supremacy to
one language over the other. Rather, the texts of all official languages are authentic. It is
important to note that while the UN has six official languages, the EU has 24 4 .
The present article focuses on EU provisions on cultural property, rather than a
discussion of the effects of language discrepancy on principles of EU treaty interpretation.
That said, the German text of the EU Treaty may help to reconcile this disparate
understanding of the concept, at least for the purpose of this article. The German text
speaks of nationales Kulturgut, which simply refers to ‘national cultural goods’ (or
‘national cultural property’) and thus offers an in-between concept. In addition, the
UNESCO 1970 Convention 5 – the major international convention on the protection of
movable cultural property against illicit import, export and transfer of ownership – with
currently 129 States Parties – uses the concept of ‘cultural property’ in a similar acception
within its statutory provisions 6 . This analysis aims to demonstrate that the concept of
‘national treasures’ in the English and French versions of Article 36 TFEU is too narrow.
Several Member States, with a very rich archeological past, such as Italy and Greece, have
a relatively high level of legal protection for national cultural property. Others, including
many Member States in Northern Europe, offer less protection and provide a narrower
definition of the types of artwork considered to be national cultural property. As a result,
these Member States also restrict exportation to a lesser degree.
Bearing in mind that the competence for cultural matters lies with the EU Member
States, this analysis concludes that the definition of what ‘national cultural property’
encompasses under Article 36 TFEU also falls entirely within the competence of each
Member State, and thus reflects its own conception of what should be protected as
‘national cultural property’. The same applies to the UNESCO 1970 Convention, which
states that ‘for the purposes of this Convention, the term ‘cultural property’ means
property which, on religious or secular grounds, is specifically designated by each State
as being of importance for archaeology, prehistory, history, literature, art or science’
(Article 1) the loss of which would constitute ‘the impoverishment of the cultural
heritage’ (Article 2) of that State. However, it is completely with the sovereignty of the
State to designate what constitutes its national cultural property.
As a consequence, it is fundamental for States – EU Member States and States Parties
to the 1970 UNESCO Convention alike – to control the import and export of cultural
property. This is usually accomplished through border and customs controls. In times
of war, political unrest or a failed State, the weakening or absence of these controls is
frequently correlated with enormous increases in the trafficking in cultural property.
By deliberately relinquishing customs control among Member States, the creation of the
SEM has a remarkably similar effect, because it undermines the States’ right to carry out
export controls at national borders. In order to compensate the abolition of national
customs controls within the SEM (more specifically, the Schengen area), the EU adopted
in 1992 Regulation 3911/92 on the export of cultural goods 7 . This regulation is intended
to ensure that the export of national cultural property outside the SEM became subject
to uniform export controls at the EU’s external borders.
While the 1992 EU Regulation was subsequently codified by Regulation 116/2009,
the conversion did not make major modifications to its contents 8 . However, since
a regulation is a legal act of the EU having general application and being binding in
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