The Art Law Review: France
The year 2021 has again been marked by the covid-19 health crisis, with new lockdown and curfew measures adopted. Art galleries have suffered in particular, having had to close during the March 2021 lockdown ordered by the government. The galleries claimed that auction houses that were not ordered to close had an unfair advantage over them, and filed a suit seeking permission to reopen.2 However, the supreme administrative court3 dismissed the suit and the galleries had to remain closed for the duration of the lockdown. They did, however, benefit from exceptional direct support from the state through the National Center for Plastic Arts.
Despite the crisis, Paris continues its ascension as a major international art market hot spot, especially following Brexit. The art market is doing exceptionally well. The top 10 public auction houses cumulated a revenue of €629 million in the first half of 2021, a 36 per cent rise compared to 2019, before covid. Actors in the market also resort increasingly to private sales, which totalled €99 million in 2020 compared with €62 million in 2019, corresponding to a 60 per cent increase.4
From a legal point of view, art law transactions are subject to the common law rules of the French Civil Code but with favourable tax rules specific to the art market. Overall, these rules are extremely protective of participants in the art market and especially buyers of artworks. An error in the attribution of an artwork can very easily void a sales contract – and may have implications for sales and value for a very long period afterwards. Misattribution of an artwork thus creates much insecurity in the sphere of art market transactions, and intermediaries may incur liability if they provide an unqualified opinion without making the status of the opinion clear and it subsequently proves to be erroneous (see Section IV).
In terms of property law, French law clearly favours the bona fide purchaser over the dispossessed owner, in that it seeks to secure ownership arising from a transaction through the creation of a new title that stems from mere possession of the item (see Section III.i). Auction sales are subject to a specific body of rules with a clear trend over the past 20 years towards greater liberalisation of the sector, reflecting its adaptation to the rules of the European single market (see below). Other professional art market intermediaries (such as galleries and art dealers) are not subject to specific rules but, rather, self-regulate.
The year in review
In the context of an ever-growing tendency of liberalising and modernising the art market, the French government adopted a new decree in 2021 intended to clarify and simplify the export of cultural property.5 The categories of cultural objects subjected to export control are increasingly restrictive with a view of targeting only the most important and valuable objects whose cultural importance justifies this control. The government also simplified the procedure allowing for the use of electronic means to file and exchange with the relevant authorities of the Ministry of Culture to obtain an export certificate for a cultural object.6
The year 2021 has also been marked by France's restitution of 26 objects to Benin and a sword to Senegal on 9 November 2021. This restitution was authorised by a law adopted on 24 December 2020 by derogation to the principle of inalienability of French public collections.7 These restitutions are part of President Emmanuel Macron's public wish, expressed in his 28 November 2017 speech in Ouagadougou, to have cultural heritage taken during colonial times restituted to African countries.8 A report commissioned on that occasion was published by two academics in November 2018 advising the French government on the modalities of the restitution of African cultural heritage.9
To facilitate the deaccessioning of artworks or cultural objects from the public collection, a law adopted on 7 December 2020,10 followed by a Decree adopted on 23 July 2021,11 has simplified the procedure of decommissioning objects belonging to public collections. The decommissioning is necessary to allow the sale of objects belonging to the public domain, which are inalienable.
A decision was rendered on 2 July 2021 by the supreme administrative court, putting an end to a 15-year dispute between the state and the members of a Russian family.12 The object of the dispute was a Brancusi sculpture that decorated a tomb in Montparnasse Cemetery. The heirs wished to have the sculpture removed and exported for sale abroad. The state refused to grant the export certificate in 2006 and then classified the tomb and the sculpture as an historic monument to prevent the heirs from selling the piece without the administration's consent. The heirs disputed the fact that the state could classify a movable sculpture as an historic monument. The court confirmed that the mere fact that an element incorporated in an immovable property could be dissociated from it did not preclude the immovable character and the associated administrative classification as an historic monument.13
i Title in art
Each transfer of an artwork creates a new title (independent from the former title) that stems from mere possession of the artwork according to a core principle under French law, which states that possession equals title as far as movable goods are concerned.14 A reminder of one notable exception to this rule was recently provided by the French supreme civil court15 in a 13 February 2019 decision.16 The court ruled that a new title could not be validly refused to the French state, even by a bona fide possessor, when the state claims the return of cultural goods that belong in the public domain (i.e., goods belonging to a public institution that are of particular interest from a historical, artistic, archaeological, scientific or technical point of view). The court found that state interference of this kind pursued a legitimate aim insofar as the protection of the integrity of the French public domain relates to the general public interest.
Good faith is always presumed.17 A possessor is deemed to be in good faith if he or she regards himself or herself as entitled to the property, and this belief must be reasonable.
In the context of a sale, title passes from seller to buyer as soon as they have agreed on the artwork to be sold and on its sale price. This is so even if the artwork has not yet been delivered nor the price paid.18 However, buyer and seller can contractually agree to postpone the transfer of ownership until, for instance, payment or delivery of the artwork. At auction, title passes from seller to buyer at the time the auctioneer declares the lot sold to the highest bidder, although many auction houses in their conditions of sale contractually postpone the title transfer until the payment of the price by the purchaser in full and the funds cleared.
The purchaser has no formal legal duty of inquiry as to title. However, the purchaser will be considered to be in bad faith if he or she has reasons to doubt, or has been grossly negligent in assessing, the seller's title; for example, by not conducting basic research on available databases of stolen works.
ii Nazi-looted art and cultural property
Claims to Nazi-looted art and cultural property are still governed by a 21 April 1945 ordinance19 adopted after the Second World War. The claimant in a Nazi-looted art claim must first establish the ownership of his or her ancestor over the item, and this is becoming more and more difficult with the passage of time. The claimant must also prove that his or her ancestor was wrongly dispossessed during the Nazi occupation. The wrongful dispossession may be presumed on the basis of contextual elements, such as the date of the transactions (during the Nazi occupation in France), the identities of the parties to the transaction (such as parties known to be implicated in the Nazi regime) and the conditions of the sale (if the sale was made under threat of violence, for instance). Finally, the claimant must show that he or she was unable to launch an action before 31 December 1949.
In a 1 July 2020 decision,20 the French supreme civil court upheld the first instance judges who had ordered the return of a Camille Pissaro painting, La cueillette des pois, to the heirs of a businessman wrongfully dispossessed of his artwork during the Nazi occupation in France. The court recalled that subsequent purchasers of a property recognised as looted cannot become the legal owners, even if they purchase it in good faith.
On 30 September 2020, the Paris Court of Appeal also ordered the French state to return three André Derain paintings to the heirs of a Jewish art collector, overruling a first instance decision that had found there were 'persistent uncertainties as to the identification of the paintings'.21 The Paris Court of Appeal ruled to the contrary, finding that there were 'precise, serious and concordant indications' that the three paintings had indeed been looted and that their sale thus had to be voided pursuant to the 21 April 1945 ordinance.
On 3 November 2021, a bill was presented to the Council of Ministers prior to its examination by Parliament for France's restitution of 14 paintings, drawings and sculptures looted during the Second World War, sent back to France after 1945 and included in public collections. For the restitution of African cultural heritage (see above), a similar law is necessary to derogate to the principle of inalienability of French public collections. In its opinion on the bill, the supreme administrative court has suggested that a framework law should be adopted to avoid having to pass laws for each restitution.
iii Limitation periods
Art claims in France are subject to the general rules relating to limitation periods. The principle under French law is that the right of ownership is imprescriptible.22 In theory, the restitution claim of a dispossessed owner is thus not subject to any statute of limitations.
In practice, since French law provides that bona fide possession immediately creates a new title independent from the former,23 restitution claims are often unsuccessful despite their theoretically imprescriptible character. In a notable exception, a new title will only be created after a three-year period if the artwork has been lost or stolen.24
Neither Nazi-looted art claims nor restitution claims from public entities regarding art that belongs in the public domain are subject to any limitations in time nor may they be validly opposed on grounds of adverse possession.
iv Alternative dispute resolution
French law increasingly encourages recourse to alternative dispute resolution (ADR) methods. For instance, following the adoption of a decree on 11 December 2019,25 any claim for the resolution of a dispute (and art disputes are no exception) whose financial stake is less than €5,000 is inadmissible in court if it has not first been subject to an attempt at conciliation or mediation.
French law is also highly favourable towards arbitration. Paris is a recognised centre of arbitration, in particular as the seat of the Court of Arbitration of the International Court of Commerce.
Nevertheless, recourse to arbitration or other ADR mechanisms still appears relatively scarce in France in the context of art disputes, in particular since art professionals almost always provide for the exclusive jurisdiction of the French courts in their contracts or general terms and conditions of sale.
There are no specialist ADR organisations or institutions dealing specifically in art matters in France.
Fakes, forgeries and authentication
French law is very protective of the buyer of fakes, forgeries and inauthentic pieces. There are two main remedies available, often brought in conjunction.
First, the buyer may bring an action against the seller to void the sale on the basis that his or her consent was vitiated by an error on the authenticity of the artwork. If the buyer successfully demonstrates that his or her consent was vitiated (almost exclusively after obtaining an expert report from a court-mandated expert), the contract is voided ab initio (i.e., the sale is treated as never having been concluded).26 Hence the parties must be returned to the situation they were in before contracting the sale: the buyer must return the artwork to the seller and the seller must refund the price to the buyer. The action to void a sales contract is subject to a five-year limitation period, which starts to run from the discovery of the error; it is stipulated that no action on a contract may be brought once 20 years have elapsed after the date the contract was entered into.
Second, the buyer may also bring an action in contract or in tort against the professional seller, depending on the source of the rights and obligations of the latter. In the context of a contract, the seller's liability will depend on the contract terms.
When conducting public auctions, auction houses and their experts incur joint liability – of a tortious nature as regards the buyer with whom they have no contract – and this liability may be neither limited nor excluded27 and must be covered by professional liability insurance.
While tortious liability is normally only incurred if a fault was committed, recent case law has seemed to adopt a form of strict liability, judging that 'the expert who asserts the authenticity of an artwork without reserve incurs liability on this mere assertion', thus exempting the buyer from having to prove that the expert was either negligent or reckless.28 In a recent decision,29 the supreme civil court may have initiated a shift from the position taken in its previous case law requiring conduct that could be characterised as a fault, when it judged that the auctioneers in the case, in asserting the authenticity of a bronze, incurred liability. Indeed, the court not only found that authenticity had been asserted without reservation, but also noted that the auctioneers had particular knowledge in the relevant domain of the arts and had admitted having had a doubt as to the estimate to give, which had prompted a request for a second expert opinion and that despite this doubt they still proceeded with the auction sale. The court found that not only did the auction catalogue fail to mention any reservations as to the authenticity of the work, but also insisted on the exceptional character of the bronze and its prestigious provenance to increase the attractiveness of the disputed property to potential purchasers and to strengthen their belief in its authenticity.30
In a case regarding the auctioning of a piece of furniture – a Jean Prouvé bookcase – the supreme civil court found that the mere absence of the mention of major restorations (estimated at 80 per cent of the piece) in the auction catalogue was sufficient to hold the auctioneer liable.31 However, in a decision rendered on the same day, on a compass table by the same designer, the supreme civil court found that the buyer could not secure the voiding of the auction sale on the mere basis that the piece of furniture had been restored insofar as the determining factor for the buyer to purchase the table was its attribution to the designer irrespective of any restoration.32
i Private sales and auctions
Private sales of artworks are not subject to any specific body of law and are governed by the general rules governing sale contracts under French law. The general legal warranties granted by the seller to the buyer thus apply. It should be noted that auction houses were originally forbidden to conduct private sales. The authorisation for auction houses to conduct private sales was first limited to unsold lots at auction33 and then, from 2011,34 to any consigned goods, provided that the auction house has duly informed the client of the possibility of resorting to auction.35
In private sales involving a professional seller and concluded remotely (such as online sales) or off the professional seller's premises, the buyer (if he or she is not a professional) has the right to cancel the sale within a period of 14 working days. The consumer's right of withdrawal does not apply to auction sales (including phone or online bids). It also does not apply to private sales concluded in fairs and salons.
In contrast to private sales, auction sales are strictly regulated in France. The law defines what types of goods may be sold at auction, who may sell at auction, who may conduct the auctions and the modalities of the auction sales. Online auctions are subject to the same rules.36 All auction houses must declare their activity to the regulatory authority for auction sales, the Voluntary Sales Council, which notably has disciplinary powers.
One specific warranty granted by the professional seller to the consumer in art market transactions – whether private or at auction – should be mentioned. In art market transactions, the professional seller warrants to the consumer that the description of the artwork put up for sale is accurate.37 For instance, the title or denomination of a work directly followed by a reference to a historical period, century or era warrants to the buyer that the work or item was actually produced during the period of reference; the use of the term 'attributed to' followed by the artist's name indicates that the work or the object was executed during the period of production of the artist mentioned and that serious assumptions indicate that this artist is the likely author; the use of the term 'school of' followed by the artist's name warrants that the author of the work has been the pupil of the master cited or has been known to have been influenced or have benefited from his or her technique.
ii Art loans
Art loans involving French public institutions – whether as lenders38 or borrowers39 – are governed by a set of detailed rules in the French Heritage Code. These rules notably provide an obligation for a contract to be signed.40 A commission oversees the lending or borrowing process and renders opinions on the condition of the artwork and the safety guarantees. Loans of artworks to public museums must be granted for free. Insurance may be requested and it is specified that a guarantee41 may be granted by the French state to national public institutions for the liability they may incur towards lenders of artworks for temporary exhibitions when the total insurance value of artworks that do not belong to the state exceeds a certain amount.42
Artworks that are loaned to a public museum in France may be protected against seizure for the period of the loan if the lender is a foreign country, public body or cultural institution, in which case, a request must be filed with the Ministry of Culture to obtain an anti-seizure order made jointly by the Minister of Culture and the Minister of Foreign Affairs.43 The request must describe in details the art, antiques or collectibles for which the anti-seizure order is requested and provide pictures of the item.
This process is not applicable to foreign private individuals or foreign private for-profit organisations. For instance, the heirs of a businessman wrongfully dispossessed during the Nazi occupation in France took advantage of the fact that a Pissaro painting, La cueillette des pois, was on loan to the Marmottan Monet Museum in Paris to have it seized to file a Nazi restitution claim before the French courts for its return. The lenders, a couple of US collectors, could not benefit from the immunity from seizure regime.
Other art loans not involving public institutions are subject to the general rules of the Civil Code. The disputes that arise most regularly have to do with lack of safety measures taken by the borrowing party. For instance, an association that had organised a temporary exhibition of photographic works by Joan Fontcuberta that were stolen during the exhibition was found liable for having insufficiently protected the premises and had to pay damages to the artist.44
In a recent case heard by the Paris Court of Appeal,45 the owners of a bronze cast attributed to Brancusi consigned the work to an expert to confirm the authenticity of the work and monitor its sale. The expert had signed an agreement with a Belgian institution for the loan of the work. However, the owners of the work, who had recovered their property in the meantime, refused to lend it. The expert filed a summary claim against the owners of the Brancusi work to compel them to proceed with the loan (the expert notably claimed that his reputation and the extent of his consideration were undermined by the owners' attitude). The court rejected the expert's claim on the grounds that it had been agreed between all parties that the work would only be loaned if its authenticity were definitely asserted by art historians, and there still remained some uncertainty on this count at the date of the loan.
iii Cross-border transactions
Artworks are subject to export controls outside and inside the European Union. For the protection of national treasures, Article 36 of the Treaty on the Functioning of the European Union provides for an exception to the prohibition between Member States of customs duties on imports and exports on goods.46
Items belonging to public collections and French museum collections, as well as items classified as historical monuments, are automatically considered national treasures under French law. There is also a secondary category of goods that may be considered national treasures if they are 'of major interest for national heritage from a historical, artistic or archaeological point of view'.47 The permanent export of national treasures is forbidden.48
The temporary or permanent export of cultural goods from the secondary category is contingent upon the issuance of an export certificate (and an export licence if the item is exported outside the EU) if the items fall within the 15 categories listed by the French Heritage Code.49 The major interest for national heritage is defined in this list according to two criteria: age and value. The age and value thresholds have been recently raised50 in a general trend towards more leniency of the French authorities towards exporting cultural goods. For instance, the following cultural goods are subject to the prior issuance of an export certificate: sculptures that are more than 50 years old and worth more than €100,000; paintings that are more than 50 years old and worth more than €300,000; photographs that are more than 50 years old and worth more than €25,000; and archaeological objects that are more than 100 years old and worth more than €3,000.
The procedure for the issuance of an export certificate is designed to give time to the French administration to review the cultural value of the items and decide whether to classify the goods as a national treasure (i.e., to ensure that the item remains permanently on French territory). For instance, the French state acquired a pair of Fragonard paintings after having refused their export certificate in 2017. The acquisition was made possible after a public call for corporate sponsorship of cultural goods acquisitions published by the Ministry of Culture on 27 November 2020, informing companies subject to corporate income tax of the potential tax deduction of up to 90 per cent of payments made for sponsoring, or financing acquisitions of, cultural goods, up to a limit of 50 per cent of the tax due for the fiscal year in question.51
The owner of goods intended for export must file an application for an export certificate including a photograph of the item, in person or through an agent, with the Ministry of Culture. The Ministry of Culture has four months to review the application. At the end of this four-month period, the Minister must issue or refuse the certificate.
When granted, the certificate permanently attests that the item is not a national treasure. This certification is final (except for items less than 100 years old).
Upon refusal of an export certificate, a 30-month period commences, during which the cultural goods may not leave French territory. The applicant cannot claim any compensation for the refusal of the export certificate (but the applicant can challenge the decision through an administrative tribunal). Upon the expiry of this 30-month period, a new application for the issuance of an export certificate cannot be denied unless the cultural goods have either been classified as a historic monument or the state has made an offer to purchase them. If the owner refuses a purchase offer from the states, the refusal to issue an export certificate is renewed with no compensation (i.e., the item remains blocked on French territory).
Penalties for failing to apply for an export certificate or failure to comply with refusal of export authorisation are the same: a fine of €450,000, three years' imprisonment and confiscation of the item.
Import of cultural goods is in principle free of any controls. However, following a July 2016 law, some controls have been implemented on the import of cultural property of archaeological, prehistoric, historical, literary, artistic or scientific interest from non-member states of the EU that are party to the 1970 UNESCO Convention. The import of such goods is now subject to a requirement for a certificate or equivalent document authorising the export from the exporting state when this is provided for by the exporting state's legislation. In the absence of such a certificate, the import will be forbidden.52
The import of cultural goods that have left the territory of a state unlawfully is also forbidden.53 Cultural goods that have been seized at customs because they left the territory of a non-member state of the EU may be placed in a museum accredited by the French state for the purpose of their conservation and presentation to the public while the research of the legitimate owner by the competent authorities is ongoing.
Current French tax legislation has not been modified and will not be, as the French government is protective of the art market, especially in the present circumstances. In any event, French law derives mainly from EU regulations and case law.
Regarding customs duties, tax formalities and transport of cultural goods from or to the UK, art dealers and art transport companies admit to having some difficulties in transporting art from European countries to the UK and vice versa, since the UK ended its transition period and completed its exit from the EU. Paris and other European markets are now favoured, to the detriment of London, for substantial auction sales, in consideration of the quality of local auction houses and the additional costs, paperwork and time resulting from Brexit.
One notable event relating to the covid-19 crisis is that France's national furniture collection intends to sell off items at auction in aid of French healthcare workers.
iv Art finance
Art market professionals (auction houses, art dealers, gallerists, etc.) are subject to anti-money laundering obligations. In particular, art market professionals must carry out anti-money laundering checks such as the identity, domicile and profession of their clients, and gather information on all relevant elements of the client's estate and the provenance of the sums involved. Art market professionals must declare to TRACFIN, the French anti-money laundering unit, any sums that they suspect may be the product of a criminal offence punishable by a prison sentence of more than one year or that may be connected to the financing of terrorism.
In recent years, and particularly since 2016,54 the French authorities have strengthened anti-money laundering measures considerably, assisting art market professionals to combat the illicit traffic of cultural goods and the financing of terrorism. Guidelines for persons habitually engaged in trade in antiques and works of art were adopted in May 2019.55
i Moral rights
French law grants authors moral prerogatives on their works. These rights are directly attached to the author as a person and they are perpetual, inalienable and imprescriptible.56
The author may thus not waive nor transfer his or her moral rights during his or her lifetime (the author may, however, bequeath it to a third party upon death) and any contractual stipulation providing otherwise would be null and void.
There are four types of moral prerogative:
- the right to paternity, allowing the author to command that his or her name be associated with his or her works;
- the right of integrity of the works, which allows the author to oppose any alteration of his or her works and any misuse of the works;
- the right of disclosure, which allows the author to decide when and how his or her works will be communicated to the public and to oppose the exploitation of a work that he or she has not made public; and
- the right of withdrawal or to reconsider, which allows the author to decide either to discontinue the exploitation of, or to alter, the work (right of withdrawal and right to reconsider respectively).
A 10-year dispute between an auction house, its photographer and a private company operating an online database on the art market on the question of the protection of auction catalogues by intellectual property rights was recently the occasion for the courts to address the questions on the paternity and integrity aspects of the moral rights of the author.57 After having obtained from the courts the recognition that auction sale catalogue photographs are protected and that their reproduction amounts to a violation of the photographer's and the creator of the auction catalogue's intellectual property rights, the photographer working for the auction house also obtained a judgment in his favour against the database company for violating his moral rights.
The Paris Court of Appeal58 found that the database company had infringed upon the photographer's right of integrity by presenting cut out or cropped versions of the original photographs displayed in the auction catalogue, and for having added a watermark above the pictures. The photographer's right of paternity was also found to have been infringed by the database company for not having credited each and every picture displayed on the online database with the name of the photographer (despite the fact that the French supreme civil court59 had apparently considered that a single mention of the artist's name for various pictures could suffice).
ii Resale rights
The resale right is an inalienable right for the author of a work to receive a share of the proceeds of any resale of an artwork after its first sale made by the artist or his or her successors.60 The resale royalty is levied on sales involving art market professionals as sellers, buyers or intermediaries (i.e., art galleries, art dealers and auction houses).
The royalty right benefits the artist (who can neither waive nor transfer the right because of its inalienable character) during his or her lifetime and his or her heirs and legatees for 70 years after the artist's death. It should be noted that the option for an author to bequeath his or her royalty right was forbidden until fairly recently (July 2016).
No royalty is levied on first direct sales by the artist or the artist's heirs nor on the resale by a seller of artworks acquired directly from the artist less than three years before that resale and where the resale price does not exceed €10,000, nor on any resale for a price lower than €750.
The rates of the applicable royalty are regressive:
- 4 per cent for a sale price of between €750 and €50,000;
- 3 per cent for a sale price of between €50,000 and €200,000;
- 1 per cent for a sale price of between €200,000 and €350,000;
- 0.5 per cent for a sale price of between €350,000 and €500,000; and
- 0.25 per cent for a sale price over €500,000.
The total amount of the royalty may not exceed €12,500. In other words, all artworks sold for €2 million and over are subject to a flat €12,500 royalty.
The supreme civil court (in its most solemn composition) finally decided in a 9 November 2018 decision61 – after almost 10 years of contradictory case law – that the burden of the royalty could be transferred contractually from the seller to the buyer despite the fact that Article L.122-8 of the Intellectual Property Code clearly provides that 'the royalty shall be payable by the seller'. In any event, an art market professional who acts as an intermediary in a sale (i.e., an auction house) is always responsible for collecting the royalty from whomever is responsible for its payment, and for passing it to the relevant collecting agency.
iii Economic rights
Aside from the resale right, French law recognises two economic rights: representation and reproduction rights.
The representation right entails the right to communicate an artwork to the public by any means62 while the reproduction right entails the right to materially fix the artwork by any process making it possible to communicate it to the public in an indirect manner.63
Any representation or reproduction – whether full or partial – of an artwork must be authorised by the author.64 Any unauthorised representation or reproduction of an artwork amounts to copyright infringement.
Both economic rights may be freely transferred, in contrast to the moral right and the resale right.65 Economic rights last for the duration of the author's lifetime plus 70 years after his or her death, after which time his or her works fall into the public domain (in terms of intellectual property law) and may be freely used.66
The Paris Court of Appeal,67 for example, recently found that the sculpture Naked made by Jeff Koons in 1988 infringed a photograph taken by Jean-François Bauret called Enfants. The Court found that the Koons sculpture appropriated the combination of characteristics that made Bauret's photograph original. Koons was unsuccessful in his freedom-of-speech and parody defences. The Court found that the artist did not prove that the use of the photograph without its author's authorisation was necessary to express his freedom of artistic expression and thus did not justify appropriating another's work. Nor did Jeff Koons give any evidence of the work having a humorous character. For having reproduced the sculpture in documents related to an exhibition of the sculpture to the public, the Pompidou Centre was found jointly liable for an amount of 10 per cent of the fines imposed. In another case with a similar set of circumstances, the Court found a Koons sculpture, Fait d'hiver, to be a counterfeit of an advertisement photograph by Franck Davidovici. The Pompidou Center was also found jointly liable for having exhibited the sculpture.68
Trusts, foundations and estates
Structures appropriate for art collections depend mainly on the jurisdiction of residence of the owner and on applicable tax treaty provisions. French residents generally opt for direct detention. Foundations have been used by families for protecting and transferring art collections for generations, with wealth and inheritance tax exemption benefits. Regulations applicable to trusts introduced by the previous government may generate difficulties for families whose assets are structured on the basis of fiduciary relationships, considering the substantial reporting obligations and the absence of inheritance tax exemptions.
Companies and groups may create art foundations and through these enjoy specific tax deductions from their taxable profits, amounting to 60 per cent of the funds donated up to a ceiling of 5 per mille of their annual turnover.
French law provides several specific tax breaks of benefit to public institutions and private charities, notably inheritance tax exemption on transfers made through a lifetime gift or upon death to the benefit of the state, public institutions and charities as defined by applicable legislation.
In contrast, although transfer by reason of death is free between spouses, art is subject to substantial inheritance and gift tax between family members (45 per cent in lineal descendance above €1.8 million) and non-related persons (60 per cent from the first euro). This motivates collectors to structure their collections using civil partnerships where they wish to keep control over the collection through generations and avoid successive (taxable) transfers between family members, or in foundations for securing the family collection.
Outlook and conclusions
2022 is a presidential election year in France. Art reforms will therefore not be at the forefront of the agenda, especially because of the ongoing health crisis, which will continue to shake up the legislative calendar.
1 Jean-François Canat, Philippe Hansen and Line-Alexa Glotin are partners, and Laure Assumpçao is a senior associate, at UGGC Avocats.
2 'Confinement: les galeries d'art déboutées de leur recours devant le Conseil d'Etat', Le Journal des Arts, 29 March 2021, www.lejournaldesarts.fr/marche/confinement-les-galeries-dart-deposent-un-recours-devant-le-conseil-detat-153707. Supreme administrative court, 14 April 2021, Case No. 451085.
3 Conseil d'Etat.
4 M Potard, 'L'indicateur des ventes – Octobre 2021', Le Journal des Arts, 22 September 2021, www.lejournaldesarts.fr/marche/lindicateur-des-ventes-octobre-2021-156213.
5 Decree No. 2020-1718, 28 December 2020.
6 Heritage Code, Article R111-5 and R111-12.
7 Law No. 2020-1673 of 24 December 2020, relative to the restitution of cultural property to the Republic of Benin and the Republic of Senegal.
8 Bill No. 3221 on the restitution of cultural property to the Republic of Benin and the Republic of Senegal, 16 July 2020.
9 See Sarr–Savoy report, November 2018, https://bj.ambafrance.org/Telecharger-l-integralite-du-Rapport-Sarr-Savoy-sur-la-restitution-du.
10 Law No. 2020-1525 of 7 December 2020 on acceleration and simplification of the public action.
11 Decree No. 2021-979 of 23 July 2021 relating to the procedure of decommissioning movable cultural assets and the deconcentration of individual administrative decisions in the cultural field.
12 Supreme administrative court, 9th and 10th Joint Chambers, 2 July 2021, No. 447967.
13 M Ranouil, 'Un an de droit du marché de l'art', CCE No. 10, 10 October 2021, Column 10.
14 Civil Code, Article 2276.
15 Cour de cassation.
16 Supreme civil court, 1st Civil Chamber, 13 February 2019, No. 18-13.748.
17 Civil Code, Article 2274.
18 id., Article 1583.
19 Ordinance No. 45-770 of 21 April 1945 on the nullity of acts of spoliation carried out by the enemy.
20 Supreme civil court, 1st Civil Chamber, 1 July 2020, No. 18-25.695.
21 Paris Court of Appeal, 30 September 2020, RG No. 19/18087.
22 Civil Code, Article 2227.
23 id., Article 2276.
25 Decree No. 2019-1333 of 11 December 2019 reforming civil procedure.
26 Civil Code, Article 1130 et seq.
27 Commercial Code, Article L.321-17.
28 See, for instance, supreme civil court, 1st Civil Chamber, 7 November 1995, No. 93-11.418.
29 Supreme civil court, 1st Civil Chamber, 3 May 2018, No. 16-13.656.
30 M Ranouil, 'Un an de droit du marché de l'art', CCE No. 3, March 2019, Columns 5, 2A.
31 Supreme civil court, 1st Civil Chamber, 21 October 2020, No. 19-10.536.
32 Supreme civil court, 1st Civil Chamber, 21 October 2020, No. 19-15.415.
33 Law No. 2000-642 of 10 July 2000 regulating the voluntary sale of goods at auction.
34 Law No. 2011-850 of 20 July 2011 on liberalisation of auction sales of goods.
35 Commercial Code, Article L.321-5.
36 id., Article L.321-3.
37 Decree No. 81-255 on the prevention of fraud in art and collectible sales, 3 March 1981 (commonly known as the 'Marcus decree').
38 Heritage Code, Article R.451-26 to R.451-28.
39 id., Article R.451-29 to R.451-34.
40 id., Article L.451-11.
41 Law No. 93-20 of 7 January 1993 on the institution of a state guarantee for certain temporary exhibitions of works of art.
42 Valued, by the French Heritage Code, at 300 million francs.
43 Law No. 94-679 of 8 August 1994, Article 61.
44 Nimes, 28 April 2016, No. 14/04887.
45 Paris, 3 October 2019, No. 19/16317.
46 Treaty on the Functioning of the European Union, consolidated version 2016 (OCJ 202, 7 June 2016).
47 Heritage Code, Article L.111-1.
48 id., Article L.111-2.
50 Decree No. 2020-1718 of 28 December 2020.
51 Notice of call for corporate sponsorship for the acquisition by the State of a national treasure under Article 238 bis-0 A of the General Tax Code, NOR: MICC2032771V.
52 Heritage Code, Article L.111-8.
53 id., Article L.111-9.
54 Ordinance No. 2016-1635 of 1 December 2016; Decree No. 2018-284 of 18 April 2018.
56 Intellectual Property Code, Article L.121-1.
57 Paris Court of Appeal, 1 October 2019, No. 18/20049.
58 E Marcilhac, 'Suite et peut-être fin de l'affaire Camard contre Artprice', Le Journal des Arts, 9 October 2019, www.lejournaldesarts.fr/marche/suite-et-peut-etre-fin-de-laffaire-camard-contre-artprice-145967.
59 Supreme civil court, Commercial Chamber, 5 April 2018, No. 13-21.001.
60 Intellectual Property Code, Article L.122-8.
61 Supreme civil court, Plenary Assembly, 9 November 2018, No. 17-16.335.
62 Intellectual Property Code, Article L.122-2.
63 id., Article L.122-3.
64 id., Article L.122-4.
65 id., Article L.122-7.
66 id., Article L.123-1.
67 Paris Court of Appeal, 17 December 2019, No. 17/09695.
68 Paris Court of Appeal, 23 February 2021, No. 19/09059.