The New Swiss Committee for Cultural Heritage with a Burdened Past
- Florian Schmidt-Gabain
- Apr 7
- 11 min read
Switzerland establishes a permanent body that will issue non-binding recommendations for cases of
Nazi-looted art and cultural property removed from former colonies
1) Introduction
Switzerland will now finally establish an “Independent Committee for Cultural Property With a Burdened Past” (the Committee). The Swiss government had already announced the creation of the Committee a year and a half ago. However, the government had rushed ahead without having a sufficient legal basis.
Parliament has asserted its right – and debated for more than a year whether the Swiss should actually get such a committee and, if so, in what form. On 21 March 2025, the decision was finally made: Yes, Switzerland will have its Committee. The lobbying of some museums against the creation of the Committee has failed. Uniquely in the world, the Committee will not only hear cases of Nazi-looted (= NS-verfolgungsbedingt entzogen) art, but also cases of cultural property taken during the colonial era.
The creation of the Committee is a milestone for Swiss art law. However, it comes with many challenges, as the legislator has used an unusually large number of vague and unclear formulations to regulate the Committee – and omitted to lay down rules on certain matters.
In brief, the Committee can be described as follows: it consists of nine to twelve members and issues non-binding recommendations on how disputes over cultural property with a burdened past can be resolved fair and justly. In principle, the Committee will only hear a case if both parties agree to proceedings before the Committee. However, there is one important exception: if the case concerns Nazi-looted art in museums or collections financed by public funds, the Committee can be invoked unilaterally.
The law on the Committee passed by Swiss Parliament contains one especially surprising point. The law states that the Committee will only consider ‘submissions in which title to the disputed cultural property is credibly demonstrated (= prima facie)’. This requirement is unusual, since the Committee is not supposed to base its recommendations solely on legal considerations, but also on moral ones.
The law governing the Committee is set out in the amended Cultural Property Transfer Act (CTPA)[1] and the Ordinance on the Committee on Cultural Heritage with a Burdened Past (OIC)[2].
I will now explain some aspects of the Committee in more detail.
2) What are the requirements for the Committee to initiate proceedings?
A distinction must be made between unilateral and bilateral submissions to the Committee.
a. Requirements for unilateral submissions
In order for the Committee to open proceedings in the case of a unilateral submission, the following requirements under the CPTA must be met:
The cultural property is associated with National Socialism. (Art. 18a para. 2 let. c CPTA)
The applicant is a natural person or a museum or collection.
The cultural object is located in a museum or collection that is financed by public funds (Art. 18a para. 2 let. c CPTA)
The applicant must credibly demonstrate title to the disputed cultural property (Art. 18a para. 4 CPTA)
Reasonable efforts to reach an agreement have been made. (Art. 18a para. 4 CPTA)
Reasonable efforts to investigate the provenance of the cultural object have been made. (Art. 18a para. 4 CPTA)
The case is not the subject of any ongoing or completed court proceedings. (Art. 3 para. 1 let. b OIC)
I will now explain these requirements in detail.
Connection with National Socialism
The requirement of a connection with National Socialism should not give rise to many questions. Nazi-looted cultural property (= NS-verfolgungsbedingt entzogen) fulfils this requirement. Maybe in the future the question will arise whether cultural property that was sold only after the end of the Second World War, but still under the impact of Nazi persecution, fulfils the requirement of ‘connection with National Socialism’.
Applicant is a natural person or museum or collection
Unilateral submissions may only be made by natural persons or museums or collections. The aim of this regulation is probably that the legislator wanted to prevent descendants of persecuted persons from assigning their claims to cultural property to professional ‘restitution companies’. However, this provision seems to make little sense and is likely to be of little relevance in practice. This applies all the more since the term ‘collection’ is not clearly defined.
The cultural property is located in a museum or collection that is financed by public funds
The wording ‘financed with public funds’ is likely to be controversial. In particular, if a museum or collection does not regularly receive public funds, or only receives them to a minor extent, the party seeking to avoid proceedings before the Committee may argue that public funding must reach a certain level of significance and must not date back too far. The question of whether public funding had to be provided directly or whether indirect public funding is sufficient is also likely to give rise to discussion. This question can be asked in particular with regard to the controversial Bührle Collection: is the Bührle Collection considered to be publicly funded even if it does not receive direct state funding? The Bührle Collection benefits indirectly from public funds because it can display its works free of charge in a publicly funded museum.
There is likely to be further discussion of the question of whether a case regarding cultural property that is on loan in publicly funded museums or collections can be brought to the Committee unilaterally. At first glance, the verb “to locate” (“sich befinden” in German; “se trouver” in French) may suggest unilateral submissions are possible. However, lenders are likely to be tempted to argue that only cultural property in which the museum or collection claims ownership is meant. Assuming that cases of loans are suitable for submission, it is unclear what the consequences are if the lender withdraws the cultural property from the museum or collection after a submission was made. Does the Committee remain competent to issue a recommendation? Another question that is unanswered is whether the other party to the proceedings before the Committee will be the museum or the collection in which the cultural object is located, or whether the other party will be the lender.
A very interesting question will be whether the Committee will hear cases only if the museum or collection in which the cultural property is located is based in Switzerland or whether the Committee will hear international cases too. The CPTA remains silent on this question. However, the OIC states that the Committee will hear cases if either the cultural property is located in Switzerland or if change of possession of the cultural property took place in Switzerland. Thus, there is a chance that the Committee will hear cases against non-Swiss museums and collections.
Title to the disputed cultural object must be credibly demonstrated
The applicant is obliged to credibly demonstrate title to the cultural property. I.e., if the descendants of a persecuted person hand in a submission, they must credibly demonstrate that they are the owners of the cultural object. This requirement is surprising, since the Committee is not supposed to base its recommendations solely on legal aspects. Rather, the Committee should consider all the circumstances relevant to a case and, based on that, propose a just and fair solution.
The significance of the requirement of prima facie evidence of title will depend on the standard the Committee will set. If the Committee regards title as having been credibly demonstrated if the applicant succeeds in evidencing that the persecuted person formerly possessed the cultural property, many applicants will succeed in making a prima facie case for title. If the Committee requires more than evidence of previous possession in order to establish a prima facie case of title, however, the requirement to credibly demonstrate title is likely to present a serious hurdle for applicants.
It is unclear to what extent the respondent can challenge the claimant's establishment of a prima facie case of title. The CPTA does not regulate whether the applicant's statements are the only basis for establishing the applicant's prima facie case or whether the adverse party has the right to present ‘counterevidence’. In view of the fact that the Committee is not a court and is supposed to take into account not only legal aspects but all aspects of a case, it would be unfortunate if proceedings before the Committee devolved into actual civil property disputes.
Reasonable efforts to reach agreement
What is to constitute reasonable efforts to reach an agreement will be determined by the practice of the Committee.
Reasonable efforts to investigate the provenance of the cultural object
What is to constitute reasonable efforts to investigate the provenance of the cultural object will be determined by the practice of the Committee.
Case not subject to pending or completed court proceedings
This requirement arises from the OIC. The OIC was issued before Swiss parliament passed the CPTA provisions on the Committee. It is therefore possible that Swiss government will adjust this requirement. Precisely because, as will be shown, the requirement raises several ambiguities, it is to be hoped that the requirement will be clarified.
The following ambiguities arise in the current version of the OIC: Firstly, it is unclear whether the legal proceedings must have taken place or must take place between the same parties (question of party identity). Secondly, it is unclear how it can be assumed that the case has been the subject of legal proceedings. Must the legal proceedings have been about just and fair solutions? Or must the legal proceedings have been about ownership of the cultural object? Or must the legal proceedings have to do with possessory claims to the cultural object (Swiss law differentiates between claims arising from ownership and those arising from possession)?
It is also unclear what happens if the party that does not want the Committee to hear the case initiates legal proceedings while the case is pending before the Committee. Does this mean that the Committee must discontinue or suspend its proceedings?
b. Requirements for bilateral submissions
In order for the Committee to open proceedings in the case of a bilateral submission, the following requirements under the CPTA must be met:
The origin or title to the cultural property raises questions due to transfers of rights in the context of National Socialism or colonialism. (Art. 2 para. 2bis CPTA)
The applicant must credibly demonstrate title to the disputed cultural object (Art. 18a para. 4 CPTA)
Reasonable efforts to reach an agreement have been made. (Art. 18a para. 4 CPTA)
Reasonable efforts to investigate the provenance of the cultural object have been made. (Art. 18a para. 4 CPTA)
The case is not the subject of any ongoing or completed court proceedings. (Art. 3 para. 1 let. b OIC)
Origin or title raises questions
This requirement is worded rather unfortunately. One might even say that it is incomprehensible and self-contradictory. It is not possible that ‘transfers of rights’ are the reason for the questionable origin or title to a cultural property. What is meant by this condition is that the cultural property is either a Nazi-looted cultural property or a cultural property that was removed from a colony under dubious circumstances at the time of colonialism.
The actual significance of this requirement is that the Committee may not initiate proceedings if the cultural property changed hands due to other historical inequities other than National Socialism and colonialism, even if both parties wish to have proceedings. For example, cases involving cultural property that changed hands during the GDR era cannot be brought before the Committee.
Title to the cultural object must be credibly demonstrated
The requirement that title to the cultural property be credibly demonstrated makes no sense in proceedings requested by both sides. The submission is made jointly. This is an obvious error on the part of the legislator, which must be corrected by interpretation of the law.
Reasonable efforts to reach agreement
What is to constitute reasonable efforts to reach an agreement will be determined by the practice of the Committee.
Reasonable efforts to investigate the provenance of the cultural object
What is to constitute reasonable efforts to investigate the provenance of the cultural object will be determined by the practice of the Committee.
Case not subject to pending or completed court proceedings
This requirement also makes little sense in the case of proceedings that are desired by both parties. It is to be hoped that Swiss government will adapt the OIC accordingly.
3) What powers will the Committee have?
The Committee will issue non-binding recommendations for just and fair solutions to disputes over culture property with a burdened past. The nature of the recommendation will be at the discretion of the Committee. The Committee may recommend restitution, non-restitution, sales with revenue sharing, sales with return loans and many other solutions.
4) How will a procedure before the Committee be conducted?
The Committee has the authority to establish its own rules of procedure. These have not yet been established.
The OIC requires the Committee to taking into account the ‘Washington Conference Principles on Nazi-Confiscated Art’ of 3 December 1998 and the ‘Terezín Declaration on Holocaust Era Assets and Related Issues’ of 30 June 2009 (Art. 4 OIC).
The OIC stipulates that submissions are not to be addressed directly to the Committee, but to the Federal Office for Culture, which will decide whether to forward the submission to the Committee (Art. 3 OIC).
It is not yet clear whether and to what extent the decisions of the Federal Office for Culture and the recommendations of the Committee can be reviewed in court. It is conceivable that the question of whether the Committee has competence can be reviewed with full cognition, whereas the content of the recommendations – if at all – can only be reviewed for arbitrariness.
5) Who are the members of the Committee?
The nine to twelve members of the Committee are elected by the Swiss government (Art. 7 OIC and Art. 8 OIC). No elections have yet taken place.
The General Secretariat of the Committee has already been appointed. The Secretary General is Dr Nikola Doll. Nikola Doll is a provenance researcher and was previously head of provenance research at the Museum of Fine Arts Bern.
The members of the Committee shall exercise their office personally and independently (Art. 6 para. 2 OIC). According to statements made by the Federal Office for Culture, the term ‘independently’ means that the members of the Committee should not have any vested interests. It is therefore to be expected that neither representatives of museums nor of art trade associations nor of Jewish organisations will be elected to the Committee. It is highly likely that the Committee will be composed of many academics. Art historians, historians and lawyers are likely to be the most frequently represented.
Since the field of restitution law is small and many experts have vested interests, it will be a challenge to find enough members with sufficient expertise.
6) When will the Commission start its work?
It is generally assumed that the Commission will start its work on 1 January 2026.
However, it is possible to submit cases to the Committee prior to 1 January 2026. Whether this makes sense must be assessed on a case-by-case basis.
7) Outlook
The Committee is a landmark moment for Swiss art law. Indeed, it will create a lot of work for art lawyers not only because cases can be submitted but also since the provisions of the CPTA and OIC present many possibilities for legal construction.
If the Committee should decide to hear cases regarding Nazi-looted art against non-Swiss museums and collections (see above nr. 2, b.), the Committee could become an international hub for restitution cases.
The CPTA sets out that Swiss government must evaluate the work of the Committee three years after it started hearing cases. If the Committee will be a success, there will be a chance that Swiss government will recommend to parliament to allow for more submissions to be made unilaterally.
Author:
Dr. Florian Schmidt-Gabain, Partner at SCHMIDT-GABAIN
[1] https://www.parlament.ch/centers/eparl/curia/2024/20240027/Schlussabstimmungstext%204%20SN%20D.pdf
Blogs are written by Art Lawyers Association members and reflect their personal views. They do not represent the views of the Association
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