The French Constitutional Council, in a decision rendered on 14 November 2014, declared that article 2 of the law of 23 June 1941 concerning the export of works of art did not comply with the Constitution.
The application for a priority preliminary ruling was submitted by an owner of precious furniture who, in the 1980s, had wanted to move his furniture from France to his new residence in England. Because the furniture was manufactured before 1830, an authorisation for its export was required (article 1, law of 23 June 1941). Considering that the furniture was of “national interest for the history or art”, the French Secretary of State refused to deliver the authorisation and exercised its right to retain the furniture (article 2, law of 23 June 1941). Thus, on 1 February 1982, the French administration took the unilateral decision (or order) to acquire the goods at the price declared on the export document. In 1996, the Ministry order was declared illegal by the Conseil d’Etat. Still, the furniture was kept at the Louvre Museum.
In September 2011, the owner asked the Ministry of Culture to withdraw the illegal order, without success. The administrative court of justice rendered a judgement against the plaintiff, who then appealed. On appeal, application for a priority preliminary ruling was submitted on the basis of article 2 of the 1943 law. The plaintiff argued that the provisions did not respect his right to property because the retention of works was imposed without “fair and prior compensation”.
In its decision, the Constitutional Council held that this forced acquisition by the State constituted a deprivation of the right to property, as defined in article 17 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789, because the owner had no intention of selling his furniture.
Moreover, the Constitutional Council considered that the refusal of an export licence is a sufficient measure to keep within the national territory objects that are of “national interest for the history of art”. The Council declared that the forced acquisition by the State, however, was a deprivation of the right to property, which was not justified by any overriding public necessity.
It is interesting to note that the Constitutional Council preferred to justify its decision on the grounds of “public necessity” rather than on the lack of “fair and prior compensation”. The impact of the decision is limited because the 23 June 1941 law was repealed and replaced in 1992 by the current law on the export of works of art. Only a few cases are affected. The furniture might be soon returned to the rightful owner, provided there is no complication with deaccessioning from the public collection.