The discovery of the art forgery scandal perpetrated by Wolfang Beltracchi has given rise to a number of legal proceedings. The recent decision of the Court of Appeal of Versailles, involving art expert Werner Spies and a painting attributed to Max Ernst, is among them.

The facts are as follows. At the 2004 Paris Biennale des Antiquaires, the Cazeau-Beraudiere Gallery exhibited a painting entitled “Earthquake” by Max Ernst, accompanied by a photo bearing the handwritten note from the expert Werner Spies that the painting was to be included in his forthcoming catalogue raisonné of Ernst’s works. The painting was purchased by the Monte Carlo Art Company for $900,000 with the Cazeau-Beraudiere Gallery acting as intermediary.

“Earthquake”, the so-called Max Ernst

In October 2009, the painting was sold by Sotheby’s New York for $1,142,500 ($969,000 without the sales premiums). Having been informed by the German police that the painting might be one of Beltracchi’s fakes, the auction house decided to carry out a scientific inquiry. The expertise showed that the purported work by Ernst contained pigments used after the painting was supposed to have been painted; it was therefore a forgery. The sale was cancelled and the Monte Carlo Art Company returned the sum to the buyer.

In 2011, the Monte Carlo Art Company decided to bring a civil action for damages before the French courts against Spies and Gallery owner Jacques de la Beraudière on the basis of Articles 1382 and 1383 of the French Civil Code. On May 23^rd, 2013, Spies and de la Beraudière were jointly and severally ordered by the Tribunal de Grande Instance of Nanterre to pay an amount of €652,833, and Spies was ordered to act as guarantor for de la Beraudière for up to half that amount.

This judgment caused its own “earthquake” in the world of art historians and experts.

However, in a decision dated December 3^rd, 2015, the Court of Appeal of Versailles reversed the judgment and dismissed all the claims of the Monte Carlo Art Company against the art historian and the gallery owner.

Firstly, the Court pointed out that the painting “Earthquake” had been part of a vast illicit trafficking of fakes organised by Beltracchi, whose techniques and stratagems had misled even the most eminent art market professionals, up to and including the widow of Max Ernst herself!

Secondly, the Court distinguished two situations: an opinion given by an expert in the course of an auction sale and an opinion given by the author of a catalogue raisonné. The Court decided that the author of a catalogue raisonné, who gives an authenticity opinion outside of a specific transaction, cannot be held responsible in the same manner as an expert who gives an authenticity opinion in the context of a sale.

In the present case, the Court noted that Werner Spies had examined the painting outside the context of a sale, two years prior to the sale in fact, and noted that he could not be requested to proceed with a scientific analysis of every painting to be included in the catalogue raisonné (i.e. more than 6,000 works by Max Ernst). Furthermore, the Court ruled that the examination of the painting “Earthquake” by Spies, as well as the specific circumstances of its appearance on the market and its stylistic and technical characteristics, did not demonstrate any fault or negligence on the part of Spies.

This decision matches a recent case known as the “Metzinger Case” (Cour de Cassation January 22^nd, 2014, confirmed by the Court of Appeal of Versailles on October 29^th, 2015), in which the Cour de Cassation stated on the basis of Article 10 of the European Convention on Human Rights that the right to freedom of expression authorised the author of a catalogue raisonné to choose whether or not to include a work of art in the said catalogue.

These decisions bring an optimistic perspective to the authorship of art catalogues and should both secure and reassure art historians in their research work – at least in France!

Judith Bouchardeau and Mathilde Roellinger are both lawyers at the Paris Bar.