Advocate-General at Dutch Supreme Court advises confirmation of Ukraine art restitution to Ukraine, not Crimea. (Lois de police alert, and open issue on property rights under Rome I).

Update 12 June 2023. The SC, using succinct reasoning, has followed.

The Opinion of Advocate-General Vlas at the Dutch SC, suggesting the court confirm the Appeal judgment on Ukrainian art restitution (at issue was whether return was required to Crimea), is of interest to the blog for two reasons. Firstly, its application of lois de police (aka ‘overriding mandatory law’) of third States rather than those of the forum. Secondly, whether revindication aka restitution of goods is carved out from Rome I (and the Rome Convention before it) on grounds of it being a ‘property right’ rather than a contractual right over a good.

Starting with the latter first: the AG notes [4.46] that the appeal judgment applies the Dutch residual rules on lois de police (10.7 Dutch civil code) rather than the Rome Regulation or the Rome Convention, under the assumption that the issue of restitution concerns an issue of property rights which, it is said, are not included in Rome I’s scope of application (Rome I concerning contractual obligations only). I have found that an awkward issue for some time now and when I have a moment or two, I want to turn that attention into a paper.

The AG suggests that a different view is possible on the issue, classifying the restitution issue as simply being included in the contractual consequences of the loan agreement, however offering no further conclusions on the issue seeing as it was not brought sub judice before the SC by either of the parties.

The one issue that is very much sub judice, is the classification of relevant Ukrainian laws as lois de police under the Dutch rules. Here, (4.47 ff) the AG refers to CJEU Arblade and Unamar, and to Szpunar AG (72ff) in Nikiforidis, and (4.54) to the Giuliano-Lagarde Report viz the Rome Convention (emphasising the use of the word ‘law’ rather than merely ‘statute’). The AG’s assessment of the various justifications for application of the third country lois de police, leads him to conclude that the appeal judges justifiably could have come to the conclusion that the Ukrainian efforts to preserve its cultural heritage, can and must be given priority over the Crimea musea’s interests.

Interesting case.

Geert.

EU Private International Law, 3rd. ed. 2021, 3.80 ff.