CEDH · CASELAW;CLIN;ENG — 5 janvier 2000

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Italy [GC] - 33202/96 Judgment 5.1.2000 [GC] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Exercise by the State of a right of pre-emption over a work of art several years after its purchase through an agent without the proper declaration being made: violation (Extract from press release) Facts : The case concerned an application introduced by a Swiss national, Ernst Beyeler, who was born in 1921 and lives in Basle (Switzerland). He is an art gallery owner. The case concerned a painting by Vincent Van Gogh, “Portrait of a Young Peasant”, which Mr Beyeler bought in 1977 for 600 million lire through an intermediary without, however, disclosing to the vendor that the painting was being purchased on his behalf. Consequently, the declaration of sale which the vendor filed with the Italian Ministry of Cultural Heritage in accordance with the requirements of Law no. 1089 of 1939 did not mention his name. In 1983 the Italian Ministry learnt that Mr Beyeler was the real purchaser of the painting. On 2 May 1988 Mr Beyeler sold the work to an American corporation, which intended to include it in a Venetian collection, for 8.5 million dollars. On 24 November 1988 Italy exercised its right of pre-emption, stating that Mr Beyeler had omitted to inform the Ministry that the painting had been purchased on his behalf in 1977, and bought the painting at the 1977 sale price. The applicant alleged a violation of Article 1 of Protocol No. 1, contending, in particular, that the Italian authorities had expropriated the painting – of which he claimed to be the lawful owner – in breach of the conditions laid down by that provision. He also claimed that he had been discriminated against in violation of Article 14 of the Convention in that the authorities had expressly stated that the applicant’s Swiss nationality had made the measure all the more justified. Law : The Government’s preliminary objection - With regard to the Government’s objection based on non-exhaustion of domestic remedies, namely that the applicant could have applied to the civil courts for the amount paid in 1977 to be revised, the Court held that the Government were estopped from relying on that objection because they had raised it for the first time before the Court. Article 1 of Protocol No. 1 to the Convention - The applicability of Article 1 The Court considered that this provision was applicable in this case. A series of findings of law and fact proved that the applicant had had a proprietary interest recognised under Italian law – even if it was revocable in certain circumstances – from the time the work had been purchased until the right of pre-emption had been exercised and he had been paid compensation. Thus the Consiglio di Stato had held that the exercise by the Ministry of its right of pre-emption fell into the category of expropriation measures and that in this case the administrative authorities had not erred in serving the pre-emption order on the applicant in his capacity as end purchaser. The Court of Cassation had agreed with the Consiglio di Stato ’s finding that the authorities had not exercised their right of pre-emption until they had been certain that the painting had been purchased by the applicant. Furthermore, in 1988 the pre-emption order had been served on the applicant as the title-holder under the 1977 sale and he had been paid the amount which had been paid at that time. Moreover, between the purchase of the work and the exercise by the State of its right of pre-emption the applicant had been in possession of the painting for several years and on a number of occasions the authorities appeared to have considered the applicant de facto as having a proprietary interest in that painting, and even as its real owner. The applicant’s interest had therefore been a “possession” within the meaning of Article 1 of Protocol No. 1, and the Court considered that it had to examine the situation complained of in the light of the general rule laid down in the first sentence of that provision. Compliance with Article 1 Whether there was any interference - The Court considered that the measure complained of, that is, the exercise by the Ministry of Cultural Heritage of its right of pre-emption, had undoubtedly amounted to an interference with the applicant’s right to the peaceful enjoyment of his possessions. Compliance with the principle of lawfulness - The Court reiterated that an essential condition for an interference to be deemed compatible with Article 1 of Protocol No.   1 was that it should be lawful. The Court had limited power, however, to review compliance with domestic law, especially as there was nothing in the instant case from which it could conclude that the Italian authorities had applied the legal provisions in question manifestly erroneously or so as to reach arbitrary conclusions. However, the principle of lawfulness also presupposed that the applicable provisions of domestic law were sufficiently accessible, precise and foreseeable. The Court observed that in certain respects the statute lacked clarity, particularly in that it left open the time-limit for the exercise of a right of pre-emption in the event of an incomplete declaration without, however, indicating how such an omission could subsequently be rectified. That factor alone could not, however, lead to the conclusion that the interference in question had been unforeseeable or arbitrary. Nevertheless, the element of uncertainty in the statute and the considerable latitude it afforded the authorities were material considerations to be taken into account in determining whether the measure complained of had struck a fair balance. The aim of the interference - The Court considered that the control by the State of the market in works of art was a legitimate aim for the purpose of protecting a country’s cultural and artistic heritage. As for works of art by foreign artists, the Court observed that the Unesco Convention of 1970 accorded priority, in certain circumstances, to the ties between works of art and their country of origin. It noted, however, that the issue in this case did not concern the return of a work of art to its country of origin. That consideration apart, the Court recognised that, in relation to works of art lawfully on its territory and belonging to the cultural heritage of all nations, it was legitimate for a State to take measures designed to facilitate in the most effective way wide public access to them, in the general interest of universal culture. Whether there was a fair balance - (a) Conduct of the applicant : The Court noted that at the time of the 1977 sale the applicant had not disclosed to the vendor that the painting had been purchased on his behalf. The applicant had then waited six years (from 1977 to 1983) before declaring his purchase, contrary to the relevant provisions of Italian law of which he had been deemed to be aware. He had not approached the authorities until December 1983 when he had been intending to sell the painting to the Peggy Guggenheim Collection in Venice for 2 million dollars. The Court therefore considered that the Government’s submission that the applicant had not acted openly and honestly carried some weight, especially as there had been nothing to prevent him from informing the authorities of the true position before 2 December 1983 in order to comply with the statutory requirements. (b) Conduct of the authorities : The Court did not put in question either the right of pre-emption over works of art in itself or the State’s interest in being informed of all the details of a contract, including the identity of the end purchaser on a sale through an agent, so that the authorities could decide in the full knowledge of the facts whether or not to exercise their right of pre-emption. After receiving in 1983 the information missing from the declaration made in 1977, that is, the identity of the end purchaser, the Italian authorities had waited until 1988 before giving serious consideration to the question of ownership of the painting and deciding to exercise their right of pre-emption. During that time the authorities’ attitude towards the applicant had oscillated between ambivalence and assent and they had often treated him de facto as the legitimate title-holder under the 1977 sale. Furthermore, the considerable latitude left to the authorities under the applicable provisions, as interpreted by the domestic courts, and the above-mentioned lack of clarity in the law had made the situation even more uncertain, to the applicant’s detriment. Conclusion - The Court considered that the respondent Government had failed to give a convincing explanation as to why the Italian authorities had not acted in 1984 in the same manner as they had acted in 1988. Thus, taking punitive action against the applicant in 1988 on the ground that he had made an incomplete declaration, a fact of which the authorities had become aware almost five years earlier, hardly seemed justified. In that connection it had to be stressed that where an issue in the general interest was at stake it was incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency. Furthermore, that state of affairs had allowed the Ministry of Cultural Heritage to acquire the painting in 1988 at well below its market value. The authorities had thus derived an unjust enrichment from the uncertainty that existed during that period and to which they had largely contributed. Irrespective of the applicant’s nationality, such enrichment was incompatible with the requirement of a “fair balance”. Conclusion : violation (16 votes to 1). Article 14 - In the light of its conclusions regarding Article 1 of Protocol No. 1 to the Convention, the Court considered that there was no reason to examine separately whether the applicant had been the victim of discrimination on the ground of his nationality contrary to Article 14. Article 41 - The Court considered that the question of the application of Article 41 was not ready for decision. Accordingly, it had to be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the respondent State and the applicant. The Court allowed the parties six months in which to reach such agreement.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes