i. Federal cultural heritage protection—nothing but an empty shell?

At the federal level, one of the first and primary national patrimony laws in Belgium is based on legal doctrine and seeks to protect the assets owned by the state, called the “public domain,” at least to the extent the state (which concept includes, within Belgium, various other public authorities and entities) owns these assets for the public interest. Government-owned assets belong to the public domain only when they are assigned to the use of all or to the exercise of a public service, either by their nature or by an implicit or express decision by the relevant authority. If not, they belong to the private domain and are subject to the same regime of title and ownership as private property.

The rules governing the public domain are specific and create a regime of unavailability. Once cultural goods are part of the public domain, they cannot be sold or transferred (inaliénable / onvervreemdbaar), nor be seized (insaisissable / onbeslagbaar), nor can their ownership be acquired over time (imprescriptible / onverjaarbaar), unless they are disused (désaffectation / disaffectatie).

Public domain assets typically include public museum collections, public libraries, and archives, a substantive part of which is in the hands of federated entities (belonging to their regional or community public domain).

Specific legislative measures to protect national cultural property include a Law of 16 May 1960 relating to the nation’s cultural heritage, which enables the government to regulate—and impose a license for—the exportation of certain classes of movable cultural property (this law has never been executed, however), and a Law of 7 August 1931 on the conservation of monuments and sites, which contains a separate section on the protection of movable objects: it provides that objects belonging to certain public authorities that are of national importance from an artistic perspective must be included in an inventory. However, as no official inventory has ever been drawn up, this law has never been effective either.

In practice, the federal authorities often tend to neglect their heritage, hiding behind budgetary constraints or behind the complexity of Belgian institutions. Two cases illustrate this lack of involvement of the federal state with regard to the preservation of its cultural heritage.

First, the buildings and fittings of the Royal Conservatory of Brussels, which are federal property, host music classes for Flemish- and French-speaking students. The Flemish and the French Communities, each for their students, govern education, using classrooms and a common concert hall owned by the state. Neglected for more than twenty years, the buildings are in a shameful state, some rooms are about to collapse, others suffer from water floods, and sometimes classes are given in the utilities rooms. This spring, the Agency for Immovable State Property (La Régie des Bâtiments)—which manages the property—asked the two Communities for 20 million EUR each in order to help the state bearing the restoration costs.^{Footnote 2} The amount is so ridiculously high because of the absence of action to maintain the protected buildings in a good state.

Second, in the Parc du Cinquantenaire in Brussels there is a pavilion built by the famous architect Victor Horta in 1890, named Pavillon des Passions humaines. It shelters a giant work made by the Belgian sculptor Jef Lambeaux in 1898, carrying the same name “Les Passions humaines”. Having as principle theme human passions, it depicts scenes that were considered inappropriate and shocking by society then, mostly managed by the Catholic Church. For that reason, the work was locked away from the public since 1899. In 1979 King Baudouin offered the ensemble to the ASBL Islamic Centre of Belgium that wanted to set up an Islamic museum in the pavilion. This meant that the works by Lambeaux had to be removed. The dismantlement of the works began without authorization but was soon shut down by the Royal Commission of Monuments and Sites stating that the two works, the pavilion and the sculptures decorating it, were inseparable since their classification as an ensemble in 1976. No solution was found and the Islamic Museum never opened. The pavilion and Lambeaux” masterpiece remained without use. When it became urgent to renovate the pavilion, problems of ownership arose. The pavilion and its sculptures were the property of the ASBL Islamic Centre of Belgium since 1979, but were managed by multiple actors of different inclination. None of them cared about the bad state of the works. The decision to renovate was the result of long and troublesome discussions between the Régie des Bâtiments, the Islamic Centre, Beliris, and the Royal Museum of Art and History.^{Footnote 3} At the end of the renovation works, the Pavillon des passions humaines by Horta and “Les Passions humaines” by Lambeaux will finally be open to the public on an occasional basis.^{Footnote 4}

ii. Regional and community cultural heritage protection, taking the lead

At the regional level, the three regions are competent for monuments and sites, including archaeology (movable archaeological objects are subject to regional rules as long as they remain under the ground, otherwise they are considered cultural goods protected by the Communities). Each region has its own protection regime, but all three are fairly similar in the way they protect monuments and sites and provide for subsidies and even for partial tax relief.

At the community level, the three communities take measures for (movable) cultural goods and intangible cultural heritage. While the French Community Decree is very protective of cultural heritage, the Flemish Community Decree seeks a different balance between the public interest of safeguarding cultural heritage and the respect of private ownership. This diverging priority is reflected in several measures established by either regime such as listing rules and export restrictions.

The situation in Brussels is however complex, not to say intricately complicated, because not less than five authorities can take measures with regard to cultural heritage. The Brussels Region takes measures for monuments and sites as well as archaeological excavations. The French and the Flemish Communities govern movable cultural heritage owned by Brussels-based institutions exclusively attached to the Flemish or to the French Community respectively, leaving private owners outside their scope. The federal state is in theory still competent for residual matters even though it never executed the old Law of 16 May 1960 on national heritage, which is still in force. Finally, recent institutional reforms provide that starting from 1 July 2014 cultural powers belonging to the federal state but which have a regional interest should be exercised by the Common Community Commission. The latter federated entity is solely active in Brussels in order to fill the gaps when the French or the Flemish Community is not competent. It remains to be seen how the notion of “common cultural powers of regional interest” will be interpreted in practice… Either way, major national monuments or museums are not concerned.

This territorial overlap in Brussels creates a legal vacuum for private movable cultural property, falling outside the scope of all authorities, at least as long as the federal state does not take measures to execute the Law of 1960. The absence of any rules concerning the protection of privately owned cultural goods, besides the European legislation on the matter, might partly explain the recent rush of international auction houses and international art galleries to open offices and exhibition venues in Brussels. While a few decades ago, the city was rather well known for being a hub of international illicit art trafficking, things have changed under the impulse of the European and international legislation. Even though Brussels is still poor in rules protecting movable cultural goods, other federated entities in Belgium have adopted several legislations in order to increase cultural heritage protection—movable, immovable, and intangible—which will be discussed below.

i. Movable cultural goods

Two decrees were adopted in Belgium in order to protect cultural goods:

1. 1. The French Community Decree of 11 July 2002 on the protection of cultural goods and intangible heritage.^{Footnote 7}

If the cultural object is situated in the French language area (or appertains to an institution situated in the bilingual area of Brussels that by reason of its activities is deemed to belong exclusively to the French Community) the French Community decree applies. This decree has an exorbitantly wide scope: all cultural goods (as defined, referring to the EU export regulation categories) are subject to the decree (and, although debatably, to its export license regime) even if not listed.

The obligations imposed by the decree on the owner, possessor, or holder of a protected object include the duties to keep the object at all times in a good condition, to obtain the prior consent of the French Community government for physical alterations to the object except in emergency situations, and to notify the French Community government of any change of the place where the object is kept, of its loss or destruction, or any change to its physical condition or legal status. In consideration of observing those duties, the owner, possessor, or holder may apply for subsidies for the conservation or restoration of his object.

Owners of cultural goods referred to in the decree need authorization of the government to export the goods out of national or European Union territory. In other words, any classified object or “treasure of the French Community” (trésor de la Communauté française) must be accompanied by a temporary export (outside EU) or dispatching (within EU) license before leaving the European Union or the national territory, as the case may be. The license is issued by the French Community government (or another authority designated by it) and is valid for one year.

The license may be refused if the dispatching or export risks causing a serious prejudice to the cultural heritage of the French Community. A treasure of the French Community may not definitively leave the French Community and any application to that effect will be refused. No compensation is provided in these cases.

The present wording of the decree is most unsatisfactory as to the question of whether a license is required for goods that are not classified as treasures, which is why the government intends to amend the decree to clarify this and certain other ambiguities that the present version contains.

1. 2. The Flemish Community Decree of 24 January 2003 on the protection of cultural goods of exceptional importance (Topstukkendecreet)^{Footnote 8}

The Flemish Community decree applies to objects situated within the Flemish Community, meaning the Dutch language area or (parallel to the French Decree) institutions situated in the bilingual area of Brussels that by reason of their activities are deemed to belong exclusively to the Flemish Community.

The scope of the Flemish decree is much narrower than its French counterpart. The Decree only applies to a list of cultural goods of exceptional value (topstukken), which are subject to the protective measures of the Decree. On 25 April 2014, the Decree was amended because the Flemish authorities came to the conclusion that of the more or less 342 objects and 15 collections,^{Footnote 9} only a small percentage was privately owned; the majority of private collections could circulate freely and remain unprotected as long as they were not on that list. The recent amendment provides an extension of the decree’s scope to all cultural goods with potentially exceptional importance (“topstuk value”), however counterbalanced by a “ruling” system to redress the balance in favor of the owner allowing him to foresee potential listing of his cultural good.

The obligations of the owner and other right holders are similar to those in the French decree and likewise confer a right to obtain subsidies.

In line with the regulation of the French Community, the decree of the Flemish Community also imposes authorization for exporting a cultural good out of national or European Union territory and can be summarized as follows:

1. a. Government consent to bring a listed object outside the Flemish Community

The definitive or temporary “exportation” of a listed object outside the Flemish Community requires the consent of the Flemish government (note that, in contrast with the French decree, no listed objects may be transported to another part of Belgium without applying for such consent). However, in no event may the Flemish government prevent a listed object from definitively leaving the country. The government must give or refuse its consent within two months of receiving the application.

1. b. Mandatory purchase offer from the Flemish government in the event of refusal

If an application to export is rejected, the applicant may request the Flemish government make an offer itself or procure a third party offer. In that case, the Flemish government must enter into negotiations with the applicant with a view to acquiring the object.

The purchase price must be fixed on the basis of the object’s international market value at the time of the export application without, however, exceeding the declared value. If the parties disagree, an expert committee can be appointed to fix the price. A binding offer must be made within ten months from the applicant’s request to make a purchase offer with a possible extension of up to four months.

If the Flemish government (or the designated third party) fails to make an offer within that period, the object is free to leave the Flemish Community.

If an offer is made, the applicant may still reject the offer but, in that case, no export application may be filed for three years.

An implementing decree sets out the detailed procedure for the application and the pricing of an offer.

This difference in export regime between both communities reflects a diverging balance of interests between the public interest of safeguarding cultural heritage and the respect of private ownership.

ii. Immovable cultural heritage

In the field of immovable cultural heritage, each region has its own protection regime. All three are fairly similar in the way they protect monuments and sites and provide for subsidies and even for partial tax relief. Other aspects of immovable heritage, such as archaeological heritage and maritime heritage, will briefly be discussed.

iii. Protecting the “ensemble” of a monument, a special case

In all three regional legislations concerning monuments and sites, the definition of monuments entails also the “fixtures and fittings” forming an integral part with the protected building. Yet the scope of this notion has not always been clear and only recent case law sheds light on the importance of ensemble protection. The landmark case of the Palais Stoclet constitutes another illustration of increasing cultural heritage protection in Belgian law (see below).

i. Compliance with the principle of lawfulness

The first essential condition for interference is that it should be lawful. This also presupposes “that the applicable provisions of domestic law be sufficiently accessible, precise and foreseeable.”^{Footnote 20} Very few decisions held a violation of ownership right on the basis of illegality.^{Footnote 21}

ii. The aim of the interference

Secondly, any interference must pursue a legitimate aim founded on the general interest, in this case the protection of cultural heritage. Member states benefit from a wide margin of appreciation in order to assess the protection of their heritage. The court even assumes that the pursued aim is legitimate, and this assumption can only be reversed if the decision is evidently not reasonably founded. The burden of proof weighs heavily on the shoulders of the owner while the legislator benefits from some latitude.

For immovable cultural heritage, the court often held that “the conservation of the cultural heritage, and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and artistic roots of a region and its inhabitants” (Potomska and Potomski v. Poland [GC], 29 March 2011, § 64; this case concerns the expropriation of a nineteenth century Jewish cemetery several years after the building permit was issued to the owners of the land, which the court held as disproportionate).

For movable cultural heritage, the court considers that “the control by the state of the market in works of art is a legitimate aim for the purposes of protecting a country’s cultural and artistic heritage,” further pointing out that the national authorities enjoy a certain margin of appreciation.^{Footnote 22} Moreover, if the artist is a foreigner, the court considers it may be legitimate for a state to take “measures designed to facilitate in the most effective way wide public access to [the works of this artist], in the interest of universal culture.”^{Footnote 23}

Up to this date, the Court has never held against the aim to protect cultural heritage.

iii. Was there a fair balance

Finally, the proportionality test almost always forms the central part of the court’s appreciation. The Strasbourg judge must assess the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. With particular reference to the control of the use of property and therefore interference with proprietary rights, the state has a wide margin of discretion as to what is “in accordance with the general interest,” particularly where environmental and cultural heritage issues are concerned.^{Footnote 24}

The court takes several parameters into consideration, such as the severity of the imposed restriction. Also, “consideration must be given in particular to whether the applicant, on acquiring the property, knew or should have reasonably known about the restrictions on the property or about possible future restrictions, the existence of legitimate expectations with respect to the use of the property or acceptance of the risk on purchase, the extent to which the restriction prevented use of the property, and the possibility of challenging the necessity of the restriction.”^{Footnote 25}

One of the most important factors of the court’s assessment is the compensation awarded to the owner.

The compensation claim depends on the nature of the interference, whether it is a measure to control or a deprivation of the ownership right.

In case of a deprivation or expropriation, the owner must be reasonably compensated. A total absence of compensation is justified only in exceptional circumstances. When assessing the amount of the compensation, which should be a reasonable sum in order to fully compensate the owner, several elements are taken into account.

First, the court looks at the market value of the good at the time of the deprivation and irrespective of the price paid by the owner. In some cases, the court however admits that the: “Legitimate objectives of ‘public interest’ may call for less than reimbursement of the full market value of the expropriated asset. In the Court’s view, the protection of the historical and cultural heritage is one such objective.”^{Footnote 26}

In the Kozacıoğlu v. Turkey case the claimant complained about the expropriation of a monument he owned which was not compensated properly. Even if the court recognizes the difficulty of evaluating a listed property, it does not accept that Turkish law makes it impossible to take into account that part of a property’s value that results from its rarity and its architectural and historical features.^{Footnote 27} As such, the evaluation mechanism laid down in the Turkish law is not only likely to penalize those owners of listed buildings who assume burdensome maintenance costs, but it also deprives them of any value that might arise from the specific features of their property.

Furthermore, the court interestingly observes that the practice of a number of Council of Europe member states in the area of expropriation of listed buildings indicates that, despite the absence of precise rules or common criteria for valuation, the option of taking into account the specific features of the properties in question when ascertaining appropriate compensation is not categorically ruled out.^{Footnote 28}

Second, the court can also verify if the compensation was paid within a reasonable period of time. In the Ruspoli Morenes v. Spain case, the Spanish Minister of Education and Culture exercised the state’s pre-emption right on the painting “La Condesa de Chinchon” by Francisco de Goya owned by the aristocratic family Ruspoli Morenes. The fact that the state paid the price for this painting over a period of two years, without accruing the price, does not breach the fair balance.^{Footnote 29}

Measures to control the ownership, as opposed to deprivation, do not require compensation. The obligation to compensate is replaced by judicial procedures where the claimant can argue his economic interests and whether he had to bear a disproportionate and excessive burden.

Finally, another important factor for the verification of the fair balance concerns the respect of procedural safeguards. Given that member states have a wide margin of discretion and that the court can only control measures in the second place, the importance of procedural safeguards increases. Even if Article 1 of Protocol No. 1 remains silent about which procedures are to be followed, the court imposes procedural safeguards that are far from insignificant. In the decision Helly v. France, the court noted that: “the compensation had been determined following a procedure that had ensured an overall assessment of the consequences of the expropriation, in which the individuals concerned had been given due opportunity to defend their rights, and the expropriations judge had, to that end, applied criteria which did not appear arbitrary.” The court held that the respondent state had not overstepped its margin of appreciation and the applicants had obtained a sum that was reasonably related to the value of the property of which they had been dispossessed. The “fair balance” between the demands of the general interest of the community and the protection of the right to peaceful enjoyment of possessions had therefore not been upset.^{Footnote 30}

Procedural safeguards protect against arbitrary decisions and offer a better balance between individual and collective interests in order to protect cultural heritage. Nonetheless, this criterion may not override the necessity of examining the merits of each case.^{Footnote 31}

i. The classical legal culture

Traditionally, in line with the European Court of Human Rights’ jurisprudence, Belgian judges clearly distinguish whether the owner is deprived of or simply restricted in his ownership right to assess the impact on ownership rights.

In the first case, a fair compensation will always be allowed, as the constitutional rule does not provide any exception. In that aspect, the Belgian safeguard for the owner is stricter than the European, which exceptionally accepts expropriation without compensation.^{Footnote 32} Even if the amounts may vary, depending on the factors taken into account, the owner must in principle be fully compensated.

However, in the second case, Belgian judges are reluctant to recognize any compensation right when the protective measure only restricts the ownership without expropriating the owner, unless the law expressly provides so. They do not consider restrictions, such as classification easement, a prejudice to the owner;^{Footnote 33} therefore compensation is considered an exception rather than a general rule.

This narrow interpretation of the right to compensation when the owner’s rights are only restricted may at times be severe to the owner.

In the Palais Stoclet case, the claimants complained that the listing of the fixtures and fittings precluded them from enjoying their possessions, as the objects could not be moved—separately or in their integrity—nor sold; they felt expropriated yet without receiving any compensation. The civil court refused to recognize any compensation right as they ruled the listing did not transform these fittings and fixtures into immovable goods owned by the owner of the building (the claimants only owned the fittings and fixtures, the building being owned by a legal entity). Furthermore, the owners could still transfer their ownership right among each other, to the corporate owner of the building, or to a third party. As such, the listing did not deprive them of their ownership right, only restricted them in the exercise of their ownership right.

In another case concerning Iranian vessels brought to Belgium, the judge refused also to recognize the illicit exportation as a prejudice allowing compensation.^{Footnote 34}

ii. Evolution under the influence of the Strasbourg jurisprudence and its proportionality doctrine

Under the impulse of Strasbourg jurisprudence, recently Belgian judges appear to be undertaking a more thorough analysis of the fair balance between the interest of cultural heritage protection and the peaceful enjoyment of the individual property, especially in the case of measures to control ownership rights.

In some recent cases, the judges faced with this paradigm deem themselves to be bound to assess the issue in light of the ownership right enshrined in Article 1 of Protocol No. 1 of the European Convention on Human Rights.

In certain restitution cases concerning illicit trafficking of cultural goods, reference is made to Article 1 of Protocol No. 1 with a view to preventing the return of the cultural good to its country of origin.^{Footnote 35}

Recently, the Constitutional Court annulled a legal measure in the Brussels” classification decree that failed to provide any compensation right to the owner, which the court held to be an “excessive burden” resting on the owner.^{Footnote 36} In this case, the owner of land in Brussels was granted a construction permit in the 1990s but when the land was classified as a protected site in 2006, the public authorities cancelled the permit and any construction was refused to the owner, without compensation. This absence of compensation was ruled to be discriminatory with regard to owners of a non-listed land subject to urban planning modifications. The court evaluated the burden referencing the jurisprudence of the European Court of Human Rights.

Another principle that supports the proportionality doctrine is the equal duty of citizens to bear the public burden (égalité des citoyens devant la charge publique). This argument was put forward in a case before the Constitutional Court concerning the holder of a building permit on a protected sand dune.^{Footnote 37} The court held that, with regard to the equality principle, the authorities could not impose burdens exceeding those that ought to be supported by a private person in the name of the general interest. The court ruled, accordingly, that the holder should be compensated. The court further held that the fact that the holder of a building permit could not apply for compensation whereas the owner of a sand dune was entitled to do so was a discrimination that needed to be remedied.