The right of pre-emption and ‘The Wisdom of the Earth’

Posted on: February 25, 2015 by

It is an iconic work by the great Romanian sculptor Constantin Brâncuși (pronounced, in true Romanian form, as ‘Brancoush’). It is a sculpture of a naked woman with her arms folded, her knees pulled closeIt is entitled The Wisdom of the Earth. And now it is at the centre of yet another legal ‘dispute’ involving the Romanian state and the sculpture’s owner.

The work was first sold in 1911 to a Romanian engineer and art collector, Gheorghe Romascu. With the advent of communism, it was expropriated by the state in 1957. Following the 1989 revolution, Romascu’s daughters lodged a claim for the sculpture’s return. It eventually was given back, but not until 2008 (one of the daughters had died by then; the other was nearly 90).

If that wasn’t enough, the surviving daughter has now been stymied by the actions (or rather, the non-action) of the state. She wants to sell the piece, which could reportedly fetch 20 million (£15 million). But in Romania, like in many European countries, the state has a right of pre-emption: that is, a right of first refusal whenever an artwork of national importance is being sold. According to the family’s legal counsel in the case, the state has 30 days from the time of notification (presumably of the sale) to purchase the work. The problem here is that the state has refused to respond to requests from the family as to whether it will utilise its right of pre-emption and, if so, how much it would be willing to spend. What this means is that, though the daughter could sell the sculpture, it would be difficult to locate a buyer willing to gamble on a potential pre-emptive purchase by the state. And so the work remains in unsaleable limbo.

What came out of a French constitutional decision from last year (as reported by Mathilde Roellinger) was that the state’s right of pre-emption can, in certain circumstances, be challenged under the right to property (in that case, a right under France’s Declaration of the Rights of Man and of the Citizen). Presumably the same could apply in Romania. And of course, there remains the possibility of an eventual challenge under the right to peaceful enjoyment of one’s possessions under Article 1 of the First Protocol to the European Convention on Human Rights.

But if the right to property is to be asserted by Romascu’s daughter, now 92, it could mean another long haul before the courts. This is unlikely something she could stomach, although it would be interesting for those in the cultural property sector to see whether the pre-emption right can indeed withstand constitutional scrutiny in the Romanian context.