In 2017, according to an article appearing in The Mirror, Tottenham Hotspur footballer and Belgian World Cup team member, Mousa Dembélé, discovered archaeological objects of significant financial and archaeological value in the cellar of a historic building in the Flemish city of Antwerp.
The footballer bought the 700-year-old listed building to open a luxury hotel, but before starting renovation work engaged archaeologists to inspect the property. Whether he did this in order to comply with Article 6.4.4. § 1 of the Flemish Immovable Heritage Decree*, which places certain obligations on owners of listed buildings, or simply out of prudence, the decision was a wise one, as several eighteenth-century objects, mostly porcelain, glass, pottery and tableware, were discovered and reportedly valued at £1 million.
Several legal issues arise from this find.
First, does it qualify as ‘treasure’, as described in the newspaper headlines? Article 716 of the Belgian Civil Code states that if a hidden or buried ownerless chattel is discovered by chance, it will belong to the finder if he discovers it on in his own land. If the treasure is found on land belonging to another, ownership is shared between the finder and the landowner.
As Mr Dembélé commissioned archaeologists to examine the building, there might be some doubt as to whether or not the objects were discovered “by chance”. Curiously, however, Belgian case law ignores the wording of Article 716, which clearly requires that in order to constitute treasure, a discovery should be fortuitous. Only when the object is found on land belonging to another does the requirement of chance acquire significance. As Mr Dembélé is the owner of the building in which the objects were found, the requirement of chance can be ignored according to Belgian case law and Article 716 applied, despite the archaeological research commissioned by Mr Dembélé.
Second, were the objects “hidden or buried”? These words imply that the original owner specifically intended to secure the object by hiding or burying it. This intention distinguishes treasure from other legal concepts dealing with ownerless objects. The intention of the original owner is key to determining the legal consequences for the finder. Leading on from this principle, three different situations can be distinguished:
(a) If the original owner intended to retain ownership by hiding or burying the object, the finder acquires title subject to the condition that the original owner remains unknown. If the latter reappears within 30 years (after which the finder gets undisputed title through prescription or ‘usucapio’, under Article 2225 of the Civil Code) and can prove his ownership, the finder must return the object.
(b) If the original owner threw the object away to get rid of it, the object becomes res derelictae and the finder acquires full, unconditional title, provided the original owner’s intention to divest himself of the object is sufficiently clear.
(c) If the original owner intended to retain ownership but lost the object, it is considered an épave in French, or wrak in Dutch, which literally translated, means ‘wreck’, revealing its nautical origin, but now applied in the broader sense. The discovery of a ‘wreck’ is governed by special legislation, which is irrelevant in the context of Mr Dembélé’s find, as the objects had clearly been intentionally left in the cellar.
So what exactly was the intention of the original owner and is this of any practical relevance for Mr Dembélé? As the primarily utilitarian objects would have had little value at the time they were placed in the cellar, it is more than likely that the original owner was simply getting rid of some unwanted things. If that was the case, Mr Dembélé’s find would not be classed as ‘treasure’ in the true legal meaning, but as res derelictae. Does this distinction matter? In this case, probably not, as it is unlikely that the heirs, if any, of the original owner know about their potential claim to ownership. However, if the unexpected were to happen and the surviving heirs were able to prove ownership, Mr Dembélé would find the highest legal certainty in the doctrine of res derelictae, granting him unfettered ownership.
No other legislation in Belgium, either at the federal level or in the Region of Flanders affects the above-described system of determining legal title to treasure or res derelictae. The recently rewritten Article 5.1.4, from January 2017, of the Flemish Immovable Heritage Decree, which sets out the administrative regime relating to chance archaeological finds, is no doubt applicable. However, this provision does not deal with the question of who can claim ownership to an archaeological find, and leaves scope for the traditional ownership rules, as explained above, to establish the legal consequences for the finder of archaeological objects. The Decree aims to provide the same standards of preservation for chance finds as for objects found in a scheduled excavation. To that effect, Article 5.1.4 imposes a reporting duty within three days of the discovery and an obligation to allow conservation measures and expert examination within a ten day period. Article 5.2.1. also imposes a duty to conserve archaeological finds and to make them accessible for scientific research. It is clear, however, that even if this provision does not intend to derogate from the traditional ownership system, it does place restrictions on the owner’s ability to exercise his ownership rights to the fullest extent.
It has recently been announced that a new Civil Code will be introduced repealing the old Napoleonic-based Civil Code in Belgium. With the new Code comes a very elaborate section on finds, and although the new chapter on the law of goods, drafted by a panel of highly regarded academics, will no doubt have its merits, we are concerned that it will overhaul Belgium’s well-established law on treasure finds with unduly burdensome, mainly administrative legal provisions, which have little grounding in case law.
* The Immovable Heritage Decree (Onroerenderfgoeddecreet) is a Flemish regulation (having the force of law in the Flemish Region) dealing with the protection of immovable property of historical or archaeological significance, also designated as monuments and sites. Included are certain movable items integrated into such property.
Lucie Lambrecht is a lawyer at the Brussels Bar, where she has been practicing for over thirty years. Zacharias Mawick is an intern at Lambrecht Law Office and Rechtsreferendar at the Regional Court in Mosbach (Germany). The authors hope to continue the discussion and in-depth analysis of the legal intricacies of the Belgian law on regulating archaeological treasures and finds in a full-length article in Art Antiquity and Law.