The Art Law Review: Netherlands

Introduction

The Netherlands has traditionally been able to punch above its weight in the international cultural world. When last measured, in 2016, the country registered 14,925 ross-border activities, by some 4,000 Dutch makers and organisations, including performances, exhibitions, lectures, presentations and publications.2

Last year, the National Opera in Amsterdam was proclaimed the best opera company in the world. Two Dutchmen won the 2017 International Architecture Awards. Year after year, the Concertgebouw Orchestra has been placed in the top three by experts worldwide. The European Fine Art Fair in Maastricht (known as TEFAF Maastricht) is widely regarded as the world's premier fair for fine art, antiques and design.

The importance of the Dutch art world goes hand in hand with the importance of the proper legal organisation of the protection of cultural heritage and the recognition of restitution claims. The year 2020 has brought several – according to some, long overdue – initiatives. A government appointed committee has held in-depth discussions with interested parties and critics of the current Dutch Nazi-looted art restitution policy. Restitution of colonial looted art was on the agenda of the Gonçalves Committee, which issued its groundbreaking and far-reaching advice to the government in early October this year. Previously, yet another governmental committee had considered the question of how far the Netherlands should go in protecting Dutch cultural heritage against its possible removal abroad.

This chapter will concentrate on a wide range of subject matter, covering questions such as the issues surrounding Nazi-looted art, colonial art, title in art, limitation periods, authentication, art transactions, artist rights and art finance.

The year in review

i Designated cultural goods

During the past decades, according to many, the legal protection of national cultural heritage did not receive the attention it deserved. This all changed after a royal scandal in 2019, involving the auctioning of a multimillion-euro drawing by Peter Paul Rubens, which underscored the realisation that our list of protection-worthy cultural property needed an update. The Netherlands, like most other countries, has enacted legal provisions protecting cultural heritage against export, but so far the regulations have been less strict than in, for instance, France and Italy.

Based on the Dutch Heritage Act, it is possible to list artworks in the register of designated cultural goods,3 to prevent their departure to museums or private destinations outside the Netherlands. Works listed in the register may subsequently only be exported abroad with the permission of the Minister of Education, Culture and Science, on the understanding that a designated object must first be offered for sale to Dutch cultural organisations within a period of six weeks.4 The Dutch state, however, can claim a three-month window of opportunity to make an offer after an owner announces its intention to sell an artwork. If necessary, legal proceedings can be started at the District Court in The Hague to have works valued with the help of experts.5

Given that the aforementioned Rubens drawing had not been designated as protected heritage, the seller, a Dutch princess, could proceed with the sale without having to worry about the rules of the Heritage Act. However, an 'expedited procedure' for designation may have resulted in having the artwork included on the aforementioned list.6

The list of protected objects has been rather static for the past few decades. Protected cultural goods in private possession now amount to 723 objects. The total list of protected works (including museum collections) currently consists of 6,000 art objects.

The aforementioned incident provided new momentum in 2019 to the initiative of the Dutch Minister of Culture to appoint an advisory committee with the task of examining the current protection policy.

In September 2019, former politician and auctioneer Alexander Pechtold presented the report 'How to adequately protect cultural goods and collections under the Heritage Act: from reticent to involved'.7 The report underpins the notion that the government should be more active in designating protected works. Accordingly, the Netherlands aims to ensure dynamic protection of Dutch cultural property by means of a policy requiring the government to adopt a proactive attitude.

In the face of these developments, the trade is particularly worried. Who dares to buy the work of a Dutch master when sales options are easily restricted afterwards? Dutch traders may expediently move important but as yet undesignated cultural goods abroad before these works are subject to new and possibly stricter rules.8

ii Restitution of Nazi-looted art

Since 2001, the Dutch Restitutions Committee has assessed claims regarding the restitution of Nazi-looted art. To date, 586 works have been returned to the rightful owners or their heirs.

In December 2019, the Dutch government issued a request for advice on the evaluation of the policy for the restitution of Nazi-looted art. The subsequently appointed Committee for Evaluation of Dutch Looted Art Restitutions Practice is headed by legal expert Jacob Kohnstamm, a former state secretary and director of the Resistance Museum in Amsterdam. On 24 November 2020, just before the publication of the evaluation report, it was announced that Alfred Hammerstein, the chairman of the Dutch Restitutions Committee, would resign on 1 December 2020. The Ministry of Education and Culture refrained from giving any comment on his decision. Since the central government changed its policy on looted art in 2015, the interests of museums have been given more priority in the allocation process. This is causing increasing disbelief, discussion and disappointment.

In 2018, the Dutch Restitutions Committee ruled against the Lewenstein heirs arguing that, inter alia, notwithstanding that the sale of a Kandinsky painting had to be seen in the context of the war circumstances, the balance of interest test should be applied in favour of the Stedelijk Museum in Amsterdam, which stressed the importance of the work for the museum's collection and the public interest.

iii Colonial collections

As a result of its colonial past, the Netherlands amassed a staggering 270,000 artefacts over a period of several centuries. Until recently the need for restitution was not on the agenda and official policy was to hold off as much as possible. Now, amid an increasing struggle by museums to address their colonial history, a Dutch governmental committee headed by lawyer and activist Lilian Gonçalves-Ho Kang You is asking for the unconditional return of objects to their countries of origin, reaching out beyond legal semantics.

International legal instruments offered only limited solace. The various UNESCO conventions indeed stress the principle that cultural objects deserve protection, that destruction and looting must be prevented, that illegal trade must be combated, that illegally imported heritage must be returned and that, in the event of restitution, the current good-faith owners must be compensated, but they do not offer a solution for returning objects. Moreover, colonial wars were mainly considered internal affairs instead of interstate wars. Furthermore, the common denominator of these treaties is that they have no retroactive effect. They therefore do not apply to objects that were looted from the colonies before the implementation of these treaties.

While President Macron seemed to take the initiative in 2017 when commissioning two academics to advise the French government regarding its dealings with the looting of colonial art, the Netherlands now places itself at the forefront of the discussions with the recently published report on 'Colonial Collections and Recognition of Injustice'. The Dutch governmental committee – named after Lilian Gonçalves-Ho Kang You and composed of 10 people, from a variety of disciplines and geographical backgrounds – now asks in the report of 7 October 2020 for the unconditional return of cultural goods to the countries where the Netherlands exercised colonial authority (Indonesia, Suriname and the Caribbean islands), insofar as involuntary loss of possession 'can be demonstrated with a reasonable degree of certainty'. Local governments, institutions and private individuals are encouraged to take responsibility. If necessary, the Minister should provide for financial arrangements to compensate private owners for the colonial cultural goods they have acquired in good faith.

It is noteworthy that in the absence of evidence of involuntary loss of possession, the Commission advises the return of cultural goods when they represent 'a particular cultural, historical or religious interest'. Restitution to the country of origin should then be weighed against other relevant interests in a reasonable and fair manner. Likewise application for the restitution of cultural goods in Dutch national collections, where countries other than the Netherlands were the colonisers, will be held against the same measure of reasonableness. In an initial reaction, the Dutch Minister of Culture confirmed the intention to follow and implement the advice of the Gonçalves committee. The Dutch museum world, including the Rijksmuseum, stresses the importance of the report and also commits to its execution, notwithstanding the challenges envisaged.

iv Art law-related litigation

Two of the more eye-catching recent international art law disputes litigated before the Dutch courts concern the return of national cultural heritage.

  1. Since 2014, Ukraine has been involved in a widely debated dispute with four Crimean museums and the Allard Pierson Museum in Amsterdam, with geopolitical interests in the background. Shortly after the opening of the exhibition 'Crimea: Gold and Secrets of the Black Sea' at the Allard Pierson Museum, Russia annexed the Crimean peninsula, violating basic rules of international law. The Amsterdam District Court initially ruled that Ukraine was entitled to restitution of its cultural heritage in accordance with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the 1970 UNESCO Convention).9 In the meantime, the Crimean museums have submitted the matter to the Court of Appeals in Amsterdam, where the process received a remarkable follow up, especially in light of the successful recusal award against the acting president of the Amsterdam Court of Appeal.10
  2. As part of its cultural policy, China is making a point of retrieving what it considers to be lost cultural heritage. The Dutch art dealer Oscar van Overeem had bought a Song dynasty statue of a monk from an acquaintance based in the Philippines. After restoration, the statue turned out to contain the mummy of a monk. When the story broke, the villages Yangchun and Dong Pu, from which the mummy was allegedly stolen in 1995, started legal proceedings in the Netherlands for its return. Numerous legal challenges arose: the 1970 UNESCO Convention could not be invoked as it had not yet entered into force in the Netherlands in 1995 and the claim was most likely time-barred, whereas the buyer seemed to have a serious good-faith argument. By the end of 2018, the proceedings had ended on a sour note for the villages since it was found that the 'village committees' had no legal standing and the claim was dismissed. It is said that the parties subsequently returned to the negotiating table.11

v Covid-19

It cannot be ignored that the cultural world has suffered greatly as a result of the pandemic during most of 2020. There have been many aspects to the consequences of this ordeal: museum closures, cancellations of fairs, festivals, concerts and live auctions, and a more modest customer spending pattern when it comes to the art market. However, digitalisation of the market gained momentum, with positive effects such as enhanced price transparency12 and improved market accessibility. Because of drastic governmental measures aimed at containing the spread of the virus, many artists, institutions and cultural venues suffered distress, as a result of which aid packages were presented.13 Nevertheless and despite additional funding,14 the Dutch culture sector is struggling for its survival. UNESCO announced in May 2020 that 10 per cent of museums worldwide will go bankrupt because of the pandemic.15 As to the Netherlands, the immediate devastating consequences of the pandemic are pervading museums, theatres, orchestras, dance and theatre companies and festivals. Ticket sales stopped overnight. The cabinet has created support packages for the cultural and creative sector. However, this governmental 'helping hand' hardly alleviates the suffering. As a result of the expected imbalance between costs and revenues, the permanent closure of many film houses and theatres has to be assumed as likely.

Art disputes

i Title in art

Dutch law provides that the transfer of goods requires a (1) delivery by virtue of (2) a valid title, made by the person (3) having the power to dispose of the goods. 'Title' refers to the legal basis that justifies the transfer. This may include a contract of sale or gift. The actual delivery has to be executed by granting possession of the artwork to the buyer. Alternatively, if (1) the disposer will continue to hold the work for the buyer, (2) the buyer already holds the work or (3) it is held by a third party,16 parties can transfer property by means of a mutual statement. In the latter case, parties also have to inform the third-party holder. The law protects a buyer acquiring a work in good faith from a person lacking the power to dispose of the artwork, unless the work was stolen and the owner reclaims the work within three years.

Internationally, it causes surprise that in the Netherlands, a non-good-faith buyer – or more accurately, a bad-faith buyer – can ultimately become owner of a stolen artwork by the mere passing of time. With legal certainty as a justifying basis, 20 years is the final cut-off for all claims to become statute-barred, unless highly exceptional circumstances render the application of this rule unacceptable according to standards of reasonableness and fairness. Even in the case of looted art, this exception is applied restrictively: in 1990, a Dutch possessor of a valuable artwork by Jan van der Heyden tried to sell the painting via Christie's. When it turned out the painting was stolen by the Russians from a German museum after the Second World War, the museum could not reclaim the painting from current possessor (now owner), even though this person might have known it was stolen.17 The Dutch Supreme Court decided that the term to reclaim the work had lapsed.18

In principle, good faith is assumed. If it turns out a person had or must have had knowledge of the facts that are alleged against him or her by the person entitled to the property at issue, this person is regarded as being in bad faith. This means that a person is not only regarded as acting in bad faith if that person actually knew, for instance, that the seller lacked the power to dispose of the artwork, but also where, under the relevant circumstances, that person should have known these facts or laws.

The legal concept of good faith was addressed in a case regarding the sale of a painting by the famous Dutch seascape painter Mesdag. The painting was put up for sale by the owner via a middleman, who engaged a gallery to sell it for a minimum price on condition that he would be consulted before an agreement was concluded. The galley, however, sold the work to a buyer, Mr Janssens, below the minimum price without consulting the owner's contact. Based on particular circumstances, including the low price, Janssens should have made further inquiries. In view of the fact that he did not investigate further, he was deemed to have acted in bad faith.19

It is important to note that the three years revindication term, during which an owner can reclaim his or her property after a theft, cannot be invoked against a consumer who, during that three-year term, bought the property from a professional retailer, such as a gallery.20 The basis of this rule lies in the principle of legal certainty entailing that private persons buying from a reliable source are protected against claims from third parties. The only remedy available to the original owner is a claim for compensation from the thief or bad-faith middleman.

However, when buying at auction the above-mentioned exception is not applicable. In this respect, buying at auction entails the risk that the owner might reclaim the object within three years. Therefore, when buying at auction in the Netherlands, one has to carefully execute a due diligence process.21

Prompted by EU consumer law and long-distance buying regulations,22 consumers buying outside a retail space such as a gallery or an art fair, or from distance (online, by telephone, etc.), can rely on a 14-day term after the sale, during which the contract can be terminated without any reason for the termination having to be given. If the professional seller does not inform the consumer about the 14-day term, this withdrawal term is extended by 12 months.

Was the then 81-year-old Oosje Silbermann wilfully or unwillingly incapacitated when she donated an expensive painting to the Rijksmuseum in 2013? According to Ms Silbermann (who, together with her sons, had the artwork seized), she was in a confused state at the time. Now, seven years later, the family is trying to undo the donation. According to public documents, the painting was taken from Oosje Silbermann's possession 'by hasty and careless action'. If (according to claimants) the museum had fulfilled its duty of investigation, it would have noticed the confused state of mind of the woman. The Rijksmuseum says it acted 'in good faith', that 'the donation was recorded in a notarial deed' and that 'if the judge says that the donation is not legally valid, the museum will of course comply'. One of the interesting questions submitted to the Dutch court concerns the scope of the museum's duty of investigation regarding the mental competence of the donor.23

Plaintiffs argue that investigatory research is required, not only because the donation involves the most prominent Dutch museum, but also in accordance with the ICOM Code of Ethics for Museums.24

ii Nazi-looted art and cultural property

In 1998, a long overdue art restitution policy was adopted in accordance with the Washington Principles on Nazi-Confiscated Art (the Washington Principles), offering guidelines on how to restore to the rightful owners works of art that were lost to the Nazis. Some 44 countries subscribed to the Principles, including the Netherlands. But praise aside – and according to scholars, interest groups and claimants – the Dutch restitution policy leaves much to be desired. Because of a number of worrying developments, Dutch policy has drifted away from the Principles' original ambitions. As a result of changes in restitution policy in 2015, Dutch museums are able to oppose restitution claims by invoking the argument that the claimed artworks are simply too important for the museum collection.

In March 2020, a review committee chaired by the former Dutch politician Jacob Kohnstamm was appointed to evaluate the restitution policy during the coming months. Numerous – coronavirus-proof – interviews were organised and the reporting is expected by the end of 2020. Shortly before the publication of its report, the chairman of the Dutch Restitutions Committee, Alfred Hammerstein, announced his 1 December 2020 resignation. No further explanation was given.

The Dutch practice has been criticised for a number of reasons:

  1. the absence of the possibility of (independent) appeal;
  2. gaps in evidence have increasingly been interpreted to the detriment of the applicants.25 This trend of exchanging the original standard of 'plausibility' for hard evidence is contrary to the recommendations of Ekkart and Rule 4 of the Washington Principles;26
  3. the Dutch state claims ownership of claimed works whereas, after the war, the allied forces handed over looted works of art for restitution to the rightful owners with the understanding that the Dutch state could not claim more than the role of a custodian; and
  4. the failure to award applicants a central position in the restitution proceedings when establishing the relevant facts (inter alia, by disclosure of all sources used), given that the parties are involved in a truth-finding process (as opposed to a contentious process).

These and other points of criticism have been brought to the attention of the Kohnstamm committee by Jewish claimants, their descendants, legal scholars, lawyers and Jewish interests groups.

The main point of critique, however, concerns the introduction of a balance-of-interests test that, when considered against the open standard of reasonableness and fairness, turns out to be an instrument for owners, and museums in particular, to keep their hands on important works of art that were lost involuntarily by Jewish owners as a result of the war circumstances.

In January 2020, the descendants of a Jewish art collector, Emanuel Lewenstein, filed a lawsuit seeking the return of Kandinsky's Painting with Houses, dating from 1909, from the Stedelijk Museum in Amsterdam. The purpose of the proceedings at the Amsterdam District Court was to have a previously issued binding opinion of the Dutch Restitutions Committee annulled. The city-owned museum had purchased the painting at auction in Amsterdam in October 1940. The work found its way to the block under mysterious circumstances, leading the heirs to believe that the sale was involuntarily made under duress from occupying Nazi forces. In 2018, the Dutch Restitutions Committee investigated the case and found that the Stedelijk was not obligated to return the painting. The Committee argued that the exact circumstances under which the piece was brought to auction remain unclear and that there was no proof that the sale was involuntary. According to the claimants, the decision 'contradicts the internationally accepted standards for restitution of Nazi-looted art as laid down in the Washington Principles'. Nevertheless, the claim for restitution was rejected by the Restitutions Committee because it was regarded as being 'less strong' because the auction was possibly linked to (alleged) Lewenstein family financial issues that predated the war. As a consequence, the Committee applied a biased balance-of-interests test, ruling in favour of the museum on account of the importance of the work.

One of the controversial issues surrounding restitution cases concerns the question of whether the state can rightfully claim an ownership position as to post-war recuperated artworks. Lawyers and scholars have noted on several occasions that the state carefully avoids answering this question explicitly, whereas there is ample reason to refute this position.27 Looted art in Dutch museums falls into two separate categories. First, the concept of 'looted art' may refer to works of art sent back to the Netherlands from Germany by the Allies or, alternatively, it may be applied to objects acquired by museums, other institutions or private individuals from 1933 onwards that prove to have been looted. Artworks in the first category came under the custodianship of the Netherlands Art Property Foundation, which was charged with returning the works to the rightful owners or their heirs if there was reason to believe that was appropriate. Anything deemed ineligible for restitution was gathered in the Netherlands Art Property Collection (the NK Collection), held by the central Dutch state, part of which was lent to Dutch museums or given on loan to embassies or public institutions.

The fact is that the state of the Netherlands deems itself to be the owner of the NK Collection pursuant to controversial post-war legislation based on the assumption that Hitler had become owner of looted artwork and that the objects could be confiscated upon their return across the Dutch border.28

However, the fact is that, from the outset, the Dutch state acted as the custodian of the works recovered from Germany, which the allied forces had handed over to the Dutch state under the strict condition of custodianship pending the claims of the rightful owners.

iii Limitation periods

The maximum period to bring an action is 20 years, unless actions are subject to a different prescription term. After expiry of this period, a person loses his right to initiate a claim regarding property, damages or any other claim (extinctive prescription). However, most actions are subject to a specific prescription period and, as a result, the 20 year-term serves as a fallback catch-all provision. Prescription terms start running when performance of the obligation can be claimed. Note that recourse to judicial prescription must be made by the parties; the judge cannot apply the plea of prescription ex officio.

Most actions have to be brought against the defendant within five years (actions regarding fulfilment of obligations and actions for damages based on tort). For nullification of a contract based on a specific reason such as an error, misrepresentation or undue influence, a three-year term applies. A claim against consumers regarding payment of a purchase has to be made within two years.

On the other hand, current possessors of artworks may be entitled to invoke acquisitive prescription, meaning that a property is acquired on a legal basis after a period of good-faith possession. A good-faith possessor of movable property is protected against third-party claims after three years of uninterrupted possession.

Specific prescription periods apply to protected cultural property. If, for instance a painting is stolen from a museum, it can be reclaimed up to 75 year later. The basis for these provisions lies in the international framework for the protection of cultural heritage. From an EU perspective, specific terms apply for claims regarding the return of cultural heritage protected by the law (30 years) and for claims regarding property from public or religious collections (75 years). For Nazi-looted art claims, a specific policy applies, in which regard limitation periods as such cannot be invoked as long as the works claimed originate from public collections.

iv Alternative dispute resolution

In 2018, the Court of Arbitration for Art (CAfA) was founded, under the auspices of the Authentication in Art Foundation, based in The Hague, and the Netherlands Arbitration Institute foundation, based in Rotterdam. It aims to resolve disputes in the wider art community through mediation and arbitration. CAfA is dedicated to and specialised in art disputes in the broadest sense, including disputes regarding art authentication, title and restitution claims, copyright and contracts. Approximately 200 international arbitrators and mediators have been appointed to handle cases submitted to CAfA. Parties can now choose from a wide range of experts to resolve art conflicts.

As discussed in Section III.ii, a specific framework has been established for the restitution of Nazi-looted art through proceedings heard by the Dutch Restitutions Committee, based on the 1998 Washington Principles and the related Ekkart Guidelines. In the case of Nazi-looted art in possession of the central government, a request for restitution can always be based on the applicable government policy, whereas in the case of property in the possession of other governments, decentralised government museums or individuals, claimants can request a binding expert opinion, a specific type of alternative dispute resolution that requires the consent of both parties.

Fakes, forgeries and authentication

People have a fascination with forgery. There is something of a Robin Hood complex about it all: only the ultra-rich are being swindled, so what's really the harm? The Frankfurter Allgemeine once called art forgery 'the most moral way to embezzlement'. According to the famous London-based art dealer James Butterwick, the estimated value of fake art in circulation could exceed half a billion dollars.

The process of authentication is difficult for a number of reasons. First and foremost: as technology moves forward, you can be sure that the forgers are running to stay ahead. They have grown more rigorous in their harvesting of materials, taking the trouble to source wooden panels from furniture they know is dateable to the year of the fake they are creating. Some painters are relatively easy to copy. The technical skill needed to forge a Leonardo da Vinci is colossal, but with a painter such as Modigliani, it is relatively easy.

The world of authentication is a very high-stakes environment. A work deemed authentic or deemed forged can mean the difference between a it being worth tens of millions of dollars or essentially nothing. Because of this, several authentication boards have been tangled up in lawsuits with angry collectors who disagree with their opinions.

The most notable case litigated before Dutch courts regards the matter of Roubrocks versus the Van Gogh Museum in Amsterdam.29

A still-life painting of peonies in the style of Van Gogh, belonging to the German art dealer Marcus Roubrocks, was insured for the very considerable sum of €33 million. Marcus Roubrocks's father bought the painting in 1977 from an antique shop in Düsseldorf. Several qualified experts (including from the Stedelijk Museum Amsterdam) and laboratories concluded that the work is very likely a genuine Van Gogh. Furthermore, laboratory tests showed that all the materials and techniques used in the painting match those used by Van Gogh, including the rarely used cadmium yellow, as well as the technique of using a white lower layer. The tests also showed that the signature was inscribed simultaneously with the painting of the picture.

To get the painting accepted by the major auction houses as a genuine Van Gogh, the museum carrying the artist's name would need to give the artwork its blessing. Roubrocks was deeply disappointed when the Van Gogh Museum, pointing out the unusual use of colour and unusual brush strokes, decided against endorsing the painting. Roubrocks argued that the rejection was almost entirely based on stylistic arguments that could easily be rebutted. After litigation in two instances, the Supreme Court of the Netherlands argued in the decision of 17 February 2017 that authentication 'is not a science' and that we 'have to rely on intuitive judgement that may be subjective'. The court of appeal had concluded earlier that the court's role is limited to judging whether or not a general duty of care has been breached.

The court furthermore concluded that the Van Gogh Museum had not breached such a duty of care, as there is no uniform legal framework. Roubrocks had approached the Van Gogh Museum, whose advice was free and he was also free to ask someone else; the Museum had sufficiently justified its clear conclusions as to provenance, iconography, style, technique, colours and signature; and, finally, the museum is entitled to disagree with other experts.

Deciding the authorship of artworks relies on three key elements: (1) connoisseurship, (2) technical analysis, and (3) provenance. The populace of connoisseurs is, however, thinning out. One leg is growing longer, another growing shorter – and as a result, one may conclude that the stool is becoming decidedly unbalanced.

Art transactions

i Private sales and auctions

The coronavirus crisis has led to a sharp increase in the online supply of art platforms. Every effort is being made to eliminate the disappointing financial results in the sector.30 More and more art fairs are adapting their business models.31 However, online sales are subject to different rules. In the case of online sales, the consumer is extensively protected under Dutch law. Buyers have 14 days from receipt of the work of art to consider whether it is to their liking.32 Within this period, the buyer can return the work, without giving reasons, in which case, the seller must refund the purchase price to the buyer within 30 days. While this may seem a fairly normal procedure for, let us say, a pair of sports shoes, it may cause problems when selling valuable works of art online. Who, for instance, will be responsible for the transport costs in the event of a return? When is someone considered an art dealer? This is not unimportant given that consumers enjoy more extensive protection when trading with a professional party.

This last question was brought to the attention of the District Court of Amsterdam33 in a matter concerning the sale of two Tang dynasty horse statues. The buyer rescinded the purchase 16 days after the event because of doubts about the origin of the statues.34 However, the seller claimed not to be a professional art dealer, leaving the buyer with limited options of withdrawal from the agreement. The Court, however, ruled35 that the seller did not act on his own behalf, having received the figurines on consignment, and that the frequency with which he traded for profit did in fact land him in the field of professional traders.36 The Court ruled therefore that the buyer could withdraw from the agreement.

ii Art loans

Undoubtedly, the most salient court case in recent years has been the case concerning the Crimean treasures, in which global geopolitics plays a role in addition to various international conventions on the protection of cultural goods. Early in 2014, the Allard Pierson Museum in Amsterdam showed artefacts originating from four museums in Crimea, the Ukrainian peninsula, during the exhibition 'Crimea: Gold and Secrets of the Black Sea'. Shortly after the opening of the exhibition, Crimea was annexed by the Russian Federation. Since then – and in accordance with international law – the peninsula has been considered occupied territory.

Both the museums and the state of Ukraine demanded the return of Crimea's treasures: the museums on the basis of contracts and as lenders, whereas Ukraine demanded the return to Kiev of its national cultural heritage based on the 1970 UNESCO Convention and its Dutch implementation law. In December 2016, the Amsterdam District Court ruled that the Crimean treasures were residing on Dutch soil illegally following the expiry of the loan period and that the artworks had to be shipped to Ukraine as their country of origin on the basis of the 1970 UNESCO Convention. This obligation was deemed to be in line with other international agreements such as EU Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State, and the UNIDROIT Convention of 1995, both of which contain the rule that the untimely return of artworks after an initial lawful export renders the export unlawful.

The Crimean museums – with the (financial) support of the Russian Federation37 – appealed the judgment, claiming that (the implementation of) the 1970 UNESCO Convention was not applicable since the documents were not unlawfully exported from Ukraine or unlawfully imported into the Netherlands. In its in interlocutory judgment, the Amsterdam Court of Appeal ruled in July 2019 that the 1970 UNESCO Convention did not apply and that the matter needs to be decided on the basis of Ukrainian ownership claims. The parties are currently entangled in further proceedings before the Amsterdam Court of Appeal. A noteworthy incident concerned the successful recusal of the acting president of the Amsterdam Court of Appeal. The recusal chamber argued in its decision of 28 October 2020 that, according to objective standards, a fear of prejudice existed, inter alia, in light of his previous ties with the lawyers of the Crimean museums.

Foreign property intended for public service – including artworks given on loan for exhibitions – cannot be seized while present in the Netherlands. On 15 November 2010, the Netherlands signed, yet did not ratify, the authoritative 2004 United Nations Convention on Jurisdictional Immunity of States and Their Property.

Based on the Dutch Code of Civil Procedure, the Netherlands recognises immunity from seizure. Invocation of immunity from seizure can be denied only in cases where the intended use of the cultural object clearly concerns a commercial goal, such as the sale of the object. The legislation regarding immunity from seizure is mainly laid down in Articles 436 and 703 of the Dutch Code of Civil Procedure.38 These articles are applicable for pre- and post-judgment measures of constraint respectively. Both Articles contain the following wording: 'Attachment cannot be made to property intended for public service.'

Although several states have developed legislation to protect objects from any form of seizure, most states lending objects to the Netherlands, settle for 'soft law' 'guarantor's declarations' accompanying the agreements regarding cultural objects on loan in the country. These declarations, issued by the Dutch Ministry of Foreign Affairs, state that the Dutch authorities will do their utmost to ensure that the objects are returned to the lending institution.

The notion that the governmental guarantees are not entirely watertight was illustrated by the recent example of the Israel Museum in Jerusalem that had planned to lend a Rembrandt to the Jewish Historical Museum in Amsterdam for the 2019 'Rembrandt Year' programme. The Dutch state was unable to give the desired guarantees as to protection against immunity from seizure, with the result that the loan was cancelled.39

iii Cross-border transactions

See Section V.ii for information on cross-border transactions.

iv Art finance

The EU Fifth Anti-Money Laundering Directive,40 which came into force in the Netherlands on 21 May 2020, has far-reaching consequences for the art trade.41

Anonymous buyers (or sellers) and undisclosed prices are among practices that the Directive seeks to make an end to, arguing that the art market for too long has lured shady representatives from the realm of money launderers.

A 2018 study42 on fighting illicit trafficking in cultural goods commissioned by the European Commission led to these new measures. The report pointed to the increase in the trade in illegally excavated art objects from, for example, Syria and Iraq; money laundering via freeports; and the use of virtual currency in the art trade. In addition, the authors noted that the trade in illegal art objects also serves to finance terrorism. The Directive aims to ensure greater transparency.

Since 2018, the Dutch art trade has been subject to the Money Laundering and Terrorist Financing (Prevention) Act, also known as the Wwft. At present, persons and companies that mediate in art and persons or companies that buy or sell art are already covered by the Wwft as long as the monies involved exceed €10,000.43 The rules have been extended to include entrepreneurs who store art, regardless of whether payments are made in cash or via wire transfer.

Compliance is required with strict rules regarding identification of clients, determining ultimate beneficial owners, transactions involving high-risk countries, dealings with political exposed persons and the question of when and how suspicious transactions should be reported. Traders are also required to pay attention to the training of personnel in the field of anti-money laundering rules.

Up until now there has been little enthusiasm for the new rules within the art trade, given that severe obstacles in art transactions are expected. Small art dealers will have to comply with the same rules as large art dealers. An auctioneer from The Hague has called the new measures madness: 'I can't imagine that a lot of money is being laundered there. But I can lose customers because of it.'44

Artist rights

i Moral rights

The Dutch Copyright Act grants each author the right to oppose modifications to his or her work, 'unless the alteration is of such a nature that it would be contrary to the notion of reasonableness and fairness'.45 The author furthermore has 'the right to oppose any deformation, mutilation or other deterioration of the work, which could be detrimental to the reputation or the name of the author or to his [or her] value in this capacity'.46 In several more recent cases, artists and architects have invoked these provisions to put a halt to what they considered a lack of respect for their work.

Interestingly enough, the complete demolition of a building or artwork does not per se constitute a breach of these rights, provided that the original work has been sufficiently documented and the current owner is able to come up with a rational basis for the demolition.47 However, a balance-of-interests test is usually applied.

In a recently published matter before the District Court of Northern Netherlands, it was ruled that an artwork could not be removed for destruction without prior consultation with the artist regarding acceptable alternatives. This matter involved an installation that consisted of a large rectangular frame with several copper objects, named Without Title 1407. The work had to serve as a connecting element between a school and its parking area. After several copper elements of the artwork had been stolen, the school finally proceeded to remove the artwork to destroy it.48 Invoking his moral rights, the artist reproached the owner for failing to contact him to discuss appropriate measures for the possible preservation of the work. The Court agreed.

Another remarkable case concerned the question of whether a site-specific work of art could be moved elsewhere in spite of protests by the maker.49 The artist in question had placed a mobile sculpture in a hangar for jet fighters at a former military airbase. The landlord, however, decided to rent the hangar out to a physiotherapy practice.50 According to the artist, the work of art was inextricably linked to the location. The court, however, after weighing all interests involved, and while acknowledging that the context in which a work of art is placed is also part of the work itself, ruled that the owner was not obliged to use his best efforts to preserve the work of art.51

ii Resale rights

Based on EU Law as implemented in the Dutch Copyright Act, an artist or his or her legal successors has the right to remuneration in the event of resale of an artwork,52 amounting to a percentage of the sales price and depending on the resale price of the work. The maximum compensation amounts to €12,500 and the artist must be an EU national (including Iceland, Liechtenstein and Norway) or a permanent resident of the Netherlands.53

Very few cases have been adjudicated in Dutch courts on the issue of resale rights. One of the more outstanding cases involved the question of whether the compensation is a fee to be collected by the artist or whether it is to be proactively handed over by the seller or buyer in the event of a resale.54 When the Dutch authors' rights organisation Pictoright (a royalty collection organisation for visual creators) requested galleries to provide information on their sales involving resale rights, it met with resistance from Simonis & Buunk, a large Dutch gallery that was of the opinion that it was not obliged to respond to fishing expedition-type requests. The gallery's view (that artists can only make specific requests if a sale raises the issue of resale rights) exposes a fundamental problem: if the artist himself or herself is to collect compensation for resale and sellers are not to inform artists, the resale right remains a dead letter. The court decided that when an author has indications (not actual knowledge) of transactions involving resale rights, enquiries may be made at the gallery, which subsequently has an obligation to provide a response. This duty to correctly inform beneficiaries after such requests was also reaffirmed by more recent case law.55

Trusts, foundations and estates

In accordance with Dutch law, a broad definition of the term 'foundations' is used in the context of non-profit institutions. A trust whose focus is the benefit of others is considered a charitable foundation, in which case it is important to obtain public-benefit organisation status (ANBI status)56 to qualify for tax benefits (no taxation for inheritance and gifts, provided the inheritance or gift proceeds are used solely for charity purposes). More than 43,000 foundations in the Netherlands have this tax-benefit status. However, according to a recent study, a large number of these institutions do not meet the criteria.57

Foundations can also be established for purposes other than charity. To avoid dilution of ownership or control over an art collection, this instrument can be chosen to separate legal and beneficial ownership. More and more charities offer donors the option of setting up a registered fund.58 Donated or bequeathed capital is then administered separately by the charity (the main fund) and deployed within the framework of that charity's objective but on the basis of the wishes of the donor.59 From that time on, the main fund takes care of the administrative and organisational tasks, as well as any additional (notarial) costs.

Many donors see it as an advantage to remain anonymous. A registered fund can bear the name of the donor, but this is not necessary. However, anonymity for donations (exceeding €15,000) recently became the subject of discussion because of the 2018 draft bill on the transparency of charities.60 Terrorism threats, undesirable external influences and the above-mentioned investigation into ANBI status have ensured that the Dutch government wants to get a better grip on civil society organisations. Charity organisations will have to publish details of any donation in excess of €15,000, with the name and place of residence of the donor.61 In fact, all 219,000 foundations, 128,000 associations and 1,500 church associations registered with the Chamber of Commerce will be subject to the obligation to publish this information.62 The proposal has met critical reactions from charitable organisations, pointing out that existing systems of self-regulation regarding the acquisition of undesirable influence through donations suffice.63

Dutch inheritance law provides for a specific remission scheme, entailing certain tax obligations, through the 'donation' of one or more eligible art objects to the Dutch state.64 The state accepts a corresponding obligation to ensure that the art object is preserved as public property.

To promote this scheme, relevant law provisions state that the inheritance tax to be remitted amounts to the value of the art object plus 20 per cent, so, in total, 120 per cent of the fair market value. Certain requirements have to be met; for example, the artwork has to be included in the register of designated cultural goods65 or be eligible for it. To meet the latter criteria it can be important that the work has been exhibited frequently, is a highlight of the artist's oeuvre or is part of a recognised valuable collection.66 Art by non-Dutch makers may also qualify. According to the recently appointed Advisory Committee on the Protection of Cultural Heritage, this tax scheme is not yet producing the envisaged and hoped for results. Consideration is being given to other ways of making it more attractive for private individuals to donate art for public benefit.67

Regulation (EU) 2019/880 on the introduction and the import of cultural goods aims to prevent the illegal removal of cultural goods from non-EU countries,68 but may impose uncertainty and administrative burdens for dealers.69 A distinction is made between (1) import licences for the most endangered cultural goods such as archaeological objects,70 and (2) a system for obtaining an 'importer statement', necessary for the import of 'material other than the most endangered cultural goods'.71

The distinction between the import licence and statement results in a cluttered system for the art trade and therefore, according to former Dutch Minister of Foreign Affairs Bert Koenders, will entail 'an additional burden on the implementing and supervisory bodies, leading to further enforcement problems'.72 The former minister's critical stance seems to be mainly due to fears that the costs of this project will be borne by the government. Furthermore, the former minister stated in a letter to the Dutch parliament that it would be inappropriate for customs authorities to decide on the legality of a cultural object.73 Customs can only carry out a risk-based approach, but a final judgment on the lawfulness is reserved for the courts on the basis of, for example, the 1970 UNESCO Convention. However, dealers seem to be especially burdened with the execution of a great deal of research prior to import. This will not only cause additional costs, but also lead to uncertain outcomes.74

Art fairs may have to rely on the temporary admission procedure.75 However, if cultural goods are sold after the fair, and will remain in the EU, an import licence will still have to be obtained.76 These and other issues will have to dealt with through practical regulations before implementation of Regulation (EU) 2019/880 by EU Member States in the course of 2021.

Outlook and conclusions

Despite the important 2020 developments discussed above, some challenges and critical questions remain unanswered, particularly with regard to the following:

  1. the outcome and implementation of the expected advice on the restitution of Nazi-looted art and the advice already given on the restitution of colonial art;
  2. the need for better coordination between art experts and the legal world with regard to the criteria for assessing fakes and forgeries; and
  3. how to further develop the right balance between ensuring a lively art trade and combating illegal trade in cultural heritage.

Footnotes

Footnotes

1 Gert Jan van den Bergh is a partner and founding member, and Martha Visser and Auke van Hoek are associates, at Bergh Stoop & Sanders.

2 Buitengaats, the database in which DutchCulture collects data on the international activities of artists and cultural organisations in the Netherlands, has kept track://dutchculture.nl/nl/overzicht-nederlandse-cultuurexport-2016.

4 Article 4.4 and 4.10, Dutch Heritage Law.

5 Article 4.14, Dutch Heritage Law.

6 Article 3.8, Dutch Heritage Law.

7 Advisory Committee Protection Cultural Property of the Council for Culture, 'Hoe cultuurgoederen en verzamelingen onder de Erfgoedwet adequaat te beschermen: van terughoudend naar betrokken' (translation: 'How to adequately protect cultural goods and collections under the Heritage Act: from reticent to involved') as issued on 30 September 2020.

8 According to the Minister, the Cultural Heritage Act does not apply to cultural goods located outside the Netherlands. Cultural goods that have been lawfully brought outside the Netherlands cannot be designated at a later date. See also: Report of the Advisory Committee on the Protection of Cultural Property, pp. 11 and 47.

9 Amsterdam District Court, 14 December 2016, ECLI:NL:RBAMS:2016:8264.

10 Interlocutory Judgment in appeal: Amsterdam Court of Appeal, 16 July 2019, ECLI:NL:GHAMS:2019:2427.

11 Amsterdam District Court, 12 December 2018, ECLI:NL:RBAMS:2018:8919; E. Smit, Follow The Money: 'Een Nederlandse architect versus de Chinese autoriteiten' (translation: 'A Dutch architect versus the Chinese authorities'), 23 July 2017, retrieved via: www.ftm.nl/artikelen/de-nederlandse-architect-en-de-chinese-boeddha (last retrieved on 26 October 2020).

12 At Frieze, London, prices had to be transparent and public. Galleries that did not disclose these up front were approached directly.

13 The distribution of this amount showed that the vast majority of this money went to already subsidised institutions, instead of to small projects, entrepreneurs and artists, who were in dire straits. Especially since the interesting projects and innovative art usually does not come directly from the large subsidised institutions, this was not received well in the industry. Many people in the art sector work as freelancers and they enjoyed state support, with which one has to make ends meet with an amount that is actually a welfare benefit.

14 Boekmanstichting, 'Gevolgen coronavirus voor culturele sector; een overzicht van dag tot dag' (translation: 'Consequences of the coronavirus for the cultural sector; a day to day overview'), retrieved via: www.boekman.nl/actualiteit/gevolgen-coronavirus-voor-culturele-sector/ (last retrieved on 28 October 2020).

15 UNESCO Report, Museums around the world in the face of covid-19, Paris, France: UNESCO, May 2020.

16 Reference is made to the Roman law concepts of transfer longa manu (3:115, sub c, Dutch Civil Code), brevi manu and constituto possessorio (3:115, sub a, Dutch Civil Code).

17 Supreme Court of the Netherlands, 8 May 1998, ECLI:NL:HR:1998:ZC2644, annotated by Th.M. de Boer (Cloister in a Landscape, Land Sachsen, Jan van der Heyden); W.H. van Boom et al., Een kwart eeuw Privaatrechtelijke opstellen, aangeboden aan prof. mr. H.J. Snijders ter gelegenheid van zijn emeritaat., Deventer: Wolters Kluwer 2016, retrieved via: http://hdl.handle.net/1887/46819 (last retrieved on 23 October 2020).

18 The maximum limitation period used to be 30 years, until the introduction of the new Dutch Civil Code in 1992. In January 1993, the new 20-year term and extinctive prescription were introduced, meaning that as of that time, a bad-faith possessor could become owner of a property; limitation periods are discussed in more depth in Section III.iii.

19 Supreme Court of The Netherlands, 14 January 2011, ECLI:NL:HR:2011:BO3521; para 3.6.2:

'Section 5b rightly argues that the Court of Appeal, in the light of the fax of 23 August 2002, failed to give sufficient reasons why the facts “confessed” therein by [party concerned 2] should not have been a reason for [defendant 1] to institute an investigation into the power of disposition of [party concerned 2] ([B]). In this respect it is important to note that section 5d rightly points out that the court of appeal was not allowed to consider [defendant 1] as a “private individual” without further substantiation, since [plaintiff] c.s. had stated that [defendant 1] knows the value of art, buys and sells a [C] and exchanges it for paintings of smaller masters, has a separate bank account for his “[D]” and keeps a gallery on it. The complaint of section 5e is also aimed at, since the circumstance that the Mesdag was sold for “a very low amount”, contrary to the opinion of the Court of Appeal, may give rise to doubts about the competence of [B] with regard to the painting, also against the background of the financial problems in which [person involved 2] finds himself and the earlier “lies and excuses” he confessed.'

20 Article 3:86, para 3, sub a, Dutch Civil Code.

21 Article 3:86, para 3, Dutch Civil Code:

The owner of a movable thing who has lost possession of it because it was stolen from him may, in spite of the previous paragraphs, always claim his property back from any possessor within three years of the theft, unless:

a. the stolen object has been acquired by a natural person who, when he acquired it, did not act in the pursuance of his practice or business, and who had received it from an alienator who sells these or similar objects regularly to the public, making use of business premises intended for that purpose and who acted when he passed the stolen object to the acquiring party in the conduct of his practice or business, yet not as an auctioneer;

22 Articles 9 and 10, Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council Text with EEA relevance.

23 A Ribbens, NRC: 'Familie wil geschonken schilderij terug van het Rijksmuseum' (translation: 'Family want donated painting back from the Rijksmuseum'), 18 September 2020, retrieved via: www.nrc.nl/nieuws/2020/09/18/familie-wil-geschonken-schilderij-terug-van-het-rijksmuseum-a4012746 (last retrieved on 23 October 2020).

24 Article 2.2 and 2.3, ICOM Code of Ethics for Museums (version June 2017). The full code can be consulted via: https://icom.museum/en/ (last retrieved on 23 October 2020).

25 Recommendations RC 3.141 (Lewenstein), RC 3.162 (Stern-Lippmann) and RC 4.119 (De Vries II) show that the Restitutions Committee has become much stricter with regard to the rules of evidence and has clearly abandoned the norm of 'plausibility'.

26 'In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.'

27 Among other examples, in a complaint letter by C Drion, lawyer and former member of the Supreme Court of the Netherlands, dated 13 November 2009 ref. 35846/CDR/614776 and addressed to the National Ombudsman regarding the case of Koenigs v. State of The Netherlands (several proceedings among others before the Restitutions Committee and the Council of State); and Professor H C F Schoordijk in his publication Over Roofkunst gesproken (Nijmegen: Wolf Legal Publishers 2010).

28 Ultimately, according to Articles 10 and 6 of RD A 6, the state's claim to ownership was established by means of the ratification order of 14 February 1947, whereby Hitler apparently had to be regarded as the rightful owner, allowing the state then to assert its ownership rights on the basis of Article 3 of Royal Decree E133. The ratification order has legal effect from the moment the NK works cross national borders.

29 Supreme Court of the Netherlands, 17 February 2017, ECLI:NL:HR:2017:282.

30 If a museum wishes to sell a work, it must first offer this work for sale to other museums, on the basis of the Leidraad Afstoten Museale Werken (LAMO) (Guideline on Disposal of Museum Works).

31 Margaret Carrigan, 'Online marketplace proliferate as the coronavirus pandemic continues', The Art Newspaper 9 July 2020.

32 Article 6:230o, subsection 1, of the Dutch Civil Code gives the consumer the rights to withdrawal from a contract concluded outside the sales premises without giving reasons within a period of 14 days. If the seller has not notified the buyer of this right of rescission, this right of rescission will be extended by a maximum of 12 months in accordance with Section 6:230o(2) of the Netherlands Civil Code.

33 District Court Midden-Nederland 14 March 2019, ECLI:NL:RBMNE:2019:1060.

34 The sale had been concluded in the seller's flat, as a result of which Article 6:230o(1) of the Dutch Civil Code, 'Koop op afstand' ('distance selling', also referred to as 'sale outside sales premises') was also applicable here.

35 District Court Midden-Nederland, 14 March 2019, ECLI:NL:RBMNE:2019:1060, para 4.14:

'The foregoing shows that [the plaintiff] kept the statues on consignment, regularly sold works of art and earned money with them. This indicates, as [defendant] rightly argued, that he was a dealer. The terms 'my intermediary' and 'the deal with the Chinese' used by [plaintiff] in his letters to [defendant] are also consistent with this, as is [plaintiff's] statement in the preliminary hearing of witnesses that 'when I travel to Asia, I go to a special trader in Hong Kong who I have known and done business with for 25 years'.

As a result, the buyer was at liberty to terminate the agreement within the statutory period of 14 days plus 12 months after the conclusion of the agreement (the term of 14 days plus 12 months applies if a seller acting in a professional capacity omits to inform the buyer regarding the right of withdrawal) based on Article 6:230g, lid 1, sub b, Dutch Civil Code implementing the Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council Text with EEA relevance.

36 Court of Appeal Den Bosch, 13 May 2018, ECLI:NL:GHSHE:2008:BD5810.

37 Russian news article via RBC.ru (RosBiznesConsulting media Group) on the budgeting of lawyers' fees in the Russian Federation for the Crimean case dated 18 January 2017.

38 Furthermore, Article 13a of the General Provisions Act provides judges with the option to interpret the law restrictively with regard to, among other things, enforcement of judgments concerning property of foreign states. The potential consequence is that, even if an object is seized successfully and a case as to restitution of this object is decided in favour of the claimant, a Dutch court has the option to prevent execution of the decision. Therefore the return of the object to the claimant after a decision to this effect is not a foregone conclusion.

39 Jewish Cultural Quarter, Rembrandt's Saint Peter Kneeling, without date, retrieved via: https://jck.nl/nl/rembrandt (last retrieved on 23 October 2020).

40 Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (OJEU 2018, L 156).

41 Official journal (Staatscourant) 2020, 146, Implementation Act Amendment fourth anti-money laundering directive.

42 DG Taxud, 'Fighting illicit trafficking in cultural goods: analysis of customs issues in the EU' (final report), June 2017.

43 Article 1a, sub 4k, Wwft.

44 Thomas Spekschoor, 'Kunst opslaan of kopen? Bewijs eerst dat je geen crimineel bent' (translation: 'Want to keep or buy art? Prove first that you are not a criminal'), NOS (Dutch Broadcasting Foundation), 11 January 2020.

45 Article 25, sub 1 c, Dutch Copyright Act.

46 Article 25, sub 1 d, Dutch Copyright Act.

47 Supreme Court of the Netherlands 6 February 2004, ECLI:NL:HR:2004:AN7830 (Jelles / Zwolle). See also: Supreme Court of the Netherlands 29 March 2019, ECLI:NL:HR:2019:451 (De vier jaargetijden). These decisions also provided that the creator of an artwork may invoke tort (Article 6:162, Dutch Civil Code) or misuse of power (Article 3:13, Dutch Civil Code).

48 District Court Assen 18 December 2018 (publication 31 January 2020), ECLI:NL:RBNNE:2018:5659 (ROC).

49 District Court Utrecht 24 December 2019, ECLI:NL:RBMNE:2019:6198 (Secret Operation 610).

50 Remarkably, the owner is a foundation that stands up for the protection of nature and heritage in the area.

51 District Court Utrecht, 24 December 2019, ECLI:NL:RBMNE:2019:6198 (Secret Operation 610), r.o. 2.10.

52 Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art.

53 There are also cases in which no remuneration is to be paid: (1) if the sale price does not exceed €3,000; (2) if the artist sells directly for a sale price not exceeding €10,000 within three years of purchase, and (3) if a person not acting as a professional art dealer sells the painting to a museum on a non-profit-making basis.

54 District Court of Gelderland, 5 February 2014, ECLI:NL:RBGEL:2014:1037 (Pictoright / Simonis & Buunk).

55 District Court of Amsterdam, 7 January 2020, ECLI:NL:RBAMS:2020:35.

56 In Dutch: Algemeen Nut Beogende Instelling.

58 Most charities apply a minimum of €50,000.

59 One of the organisations that pioneered the development of the named fund is the Prince Bernhard Culture Fund. As at the beginning of 2020, there are more than 450 named funds at the cultural organisation.

60 The draft bill on transparency of civil society organisations was published online for consultation on 21 December 2018. See: www.rijksoverheid.nl/documenten/kamerstukken/2018/12/21/conceptwetsvoorstel-transparantie-maatschappelijke-organisaties---internetconsultatie.

61 Article 2 of the draft bill on transparency of civil society organisations (see footnote 60).

62 There was a great deal of indignation about the proposal, as evidenced by the 187 responses to the consultation coming from all corners of civil society (churches, funds, museums, performing arts, charities, etc.). See the position paper on the draft bill on transparency of civil society organisations by the Collaborative Branch Organisations of the Philanthropic Sector (SBF), 22 January 2019, retrieved via: www.goededoelennederland.nl/sector/belangenbehartiging/wet-transparantie-maatschappelijke-organisaties.

63 For example, in the culture sector museums have set up an Ethical Code Committee and in recent years the charitable sector has developed the Recognition Scheme for Charities. According to many donors, the bill goes against the interest that the government itself attributes to the philanthropic sector: 'In this way, supporting good causes is turned into a suspicious activity.' See the submission by three directors (Natuurmonumenten, KWF and Amensty) in NRC Handelsblad, 'Nagel donateur niet aan de charitieve schandpaal' (translation: 'Don't shame the generous donor'), 4 February 2019; see also: Financieel Dagblad, Hoofdredactioneel commentaar 'Dekker slaat de plank mis' (translation: '[Minister] Dekker misses the point'), 6 March 2019; see also the SBF position paper at footnote 62.

64 Article 67 sub 3 Dutch Inheritance Act (Successiewet).

67 Report, Advisory Committee on the Protection of Cultural Heritage, 30 September 2019, p. 14.

68 Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods (Regulation 2019/880).

69 Following its official publication on the website of the Official Journal of the European Union on 7 June 2019, Regulation 2019/880 entered into force on 27 June 2019.

70 Regulation 2019/880, Article 4, Annex Part B.

71 Reference is made to non-EU fine and decorative art and collectibles more than 250 years old and with a value over €18,000: Regulation, Article 5, Annex Part C.

72 Official document Parliament Second Chamber 22112, No. 2391, Letter from the Minister of Foreign Affairs, 15 September 2017.

73 Official document Parliament Second Chamber 22112, No. 2391, Letter from the Minister of Foreign Affairs, 15 September 2017.

74 Official document Parliament Second Chamber 22112, No. 2391, Letter from the Minister of Foreign Affairs, 15 September 2017.

75 Regulation 2019/880, Preamble 21.

76 Regulation 2019/880, Preamble 21 and Article 3 sub 5.

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