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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. General
- II. Conditions for inclusion in the inventory
- III. The procedure for inclusion in the inventory
- IV. Effects of inclusion in the inventory
- V. The procedure for removal from the inventory
- VI. Form of the inventory and responsibility for maintaining it
- VII. Other inventories under the LTBC
- VIII. Other federal inventories relating to the protection of cultural heritage
- Bibliography
I. General
1 Articles 5(b) and 13(d) of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of November 17, 1970 (RS 0.444.1; hereinafter referred to as the 1970 UNESCO Convention), to which Switzerland has been a party since 2003, serve as the basis for Article 3 of the Federal Act on the International Transfer of Cultural Property of June 20, 2003 (RS 444.1; hereinafter: LTBC). In this way, Switzerland is giving concrete expression to some of the commitments it made when ratifying the Convention, which sets minimum requirements for the protection of cultural property in times of peace.
2 Article 5 of the 1970 UNESCO Convention provides that the States Partiesundertake to establish one or more cultural heritage protection services responsible for various tasks, including the establishment and updating of a national inventory of protected cultural property containing a list of important public and private cultural property whose export would constitute a significant impairment of the national cultural heritage of the State (letter b). The material scope of this inventory is therefore limited to property that forms part of cultural heritage as defined in Article 4 of the 1970 UNESCO Convention.
During the consultation process on the draft convention, Denmark and the United States expressed doubts about the feasibility of such an inventory, arguing that it would be an enormous undertaking that could exceed the resources of some States. Nevertheless, the arguments in favor of an inventory prevailed and, ultimately, it was included in the text of the convention adopted on November 14, 1970. Initially, its purpose was scientific, in particular to distinguish between property that should be preserved and subject to an export ban from those whose lawful export from the country is authorized. However, O'Keefe points out that it would have been preferable for it to be not only a scientific instrument but also a tool for customs controls (which, in the first half of 2025, is the case in Switzerland in particular, since the possibility offered to the cantons in Art. 4 para. 1 LTBC to link their inventories to that of the Confederation is intended to contribute to the simplification of cross-border controls). According to the UNESCO Secretariat, the inventory tool is of crucial importance for requests for the restitution or return of cultural property.
Article 5(b) of the 1970 UNESCO Convention states that national inventories must be kept up to date. Consequently, newly discovered archaeological objects, newly created works and returned property must be included in them, provided that they are of some importance to the cultural heritage of the State Party. It should also be noted that Article 5(b) of the 1970 UNESCO Convention applies equally to public and private property, which reflects the spirit of the Convention, which is more concerned with the question of ownership of cultural property than with that of property rights. In this regard, the preamble to the Convention states in particular that “every State has the duty to protect the heritage constituted by the cultural property existing on its territory [...]”.
3 Article 13(d) of the 1970 UNESCO Convention provides that the States Parties undertake to recognize the inalienable, i.e. permanent and irrevocable, of each of them to classify and declare inalienable certain cultural property which, as a result, may not be exported. They shall also facilitate the successful outcome of requests for the return of such inalienable property in the event of its unlawful export.
The concept of inalienability, a prerogative of the State, has far-reaching consequences since it means that ownership of the property cannot be legally transferred, whether through sale, donation or any other means of disposal. It is mainly used by civil law countries, particularly France. It was on the French model thatUNESCO based its adoption of this provision. The main consequence of this legal concept is that cultural property can be claimed at any time if it is located on the territory of the State that has declared it inalienable, regardless of any legal transfers of ownership that may have taken place.
4 These two provisions provide for commitments that are described as general obligations in that they are undertaken by each State Party “under the conditions appropriate to each country” (for Article 5 of the 1970 UNESCO Convention) and “within the framework of the legislation of each State” (for Article 13 of the 1970 UNESCO Convention). They are valid to the extent possible, with each State Party thus having considerable latitude in their implementation depending on its resources and legislation. However, although these provisions are not binding in the strict sense, the fact remains that “the State Party shall undertake all possible measures to give effect to them in its [national] legislation.”
II. Conditions for inclusion in the inventory
5 Art. 3 para. 1 LTBC provides for the maintenance of a federal inventory (hereinafter “federal inventory” or “inventory”) of cultural property owned by the Confederation that is of significant importance to cultural heritage. To be included in this inventory, in accordance with Art. 3 para. 1 LTBC, the property in question must therefore satisfy all of the following conditions:
be classified as cultural property within the meaning of the LTBC;
be owned by the Confederation;
be of significant importance to cultural heritage.
A. Qualification as cultural property within the meaning of the LTBC
6 Under Art. 2 para. 1 LTBC, cultural property is defined as "property that [...] is of importance for archaeology, prehistory, history, literature, art or science and which fall within one of the categories set out in Art. 1 of the 1970 UNESCO Convention or Art. 1 para. 1 let. a of the 2001 UNESCO Convention ."
The first cumulative condition in Art. 2 para. 1 LTBC relates to the importance of the property for the various fields, which are, alternatively, archaeology, prehistory, history, literature, art or science. The second refers to the property's classification in one of the categories set out in the 1970 UNESCO Convention or in the Convention on the Protection of the Underwater Cultural Heritage of November 2, 2001 (RS 0.444.2). Any property that cumulatively fulfills the two above-mentioned conditions is classified as cultural property within the meaning of the law and is eligible for inclusion in the federal inventory (provided that it also fulfills the two other cumulative conditions of Art. 3 para. 1 LTBC, as set out below).
7 There are therefore two categories of cultural property within the meaning of the LTBC: cultural property under Art. 2 para. 1 LTBC, also known as “simple cultural property,” and cultural property under Art. 3 para. 1 LTBC, which is included in the federal inventory and referred to as “cultural property in the strict sense.”. The category of cultural property listed in the federal inventory is more restrictive than that of cultural property within the meaning of Art. 2 para. 1 LTBC, since an item may be designated as “cultural property” within the meaning of the law without being included in the inventory. Furthermore, the specific regime applicable to items listed in the inventory is more protective than that applicable to cultural property within the meaning of Art. 2 para. 1 LTBC, since they enjoy effects relating to their mode of acquisition and their export from Switzerland which “simple cultural property” does not enjoy. These various effects will be specified below (infra para. 29-47).
B. Ownership by the Confederation
8 In order for cultural property to be included in the federal inventory, it must be owned by the Confederation and the Confederation alone. A private individual cannot therefore request the inclusion of one of their assets in the inventory, even if it meets the other conditions necessary for inclusion. In principle, the Confederation becomes the owner of an asset, as a private individual, through a legal transfer of ownership (purchase, donation, bequest, etc.). etc.). Conversely, it does not become the owner by operation of law, as is the case with natural curiosities and antiquities found, which belong ipso jure to the canton in whose territory they were discovered (Art. 724 para. 1 CC). Furthermore, unlike other states, the Confederation does not have the right to “appropriate privately owned cultural property that it considers to be of national importance.”
According to Art. 641 para. 1 of the Swiss Civil Code of December 10, 1907 (SR 210; hereinafter: CC), the owner of an item has the right to dispose of it freely, within the limits of the law. Ownership is defined as "the most complete real right, conferring within the limits of the law the total, exclusive and imprescriptible control of the object to which it relates ." Control is total in the sense that it grants its holder all the powers – i.e., use, enjoyment, possession, and disposal – that can be derived from the property. Furthermore, ownership and the powers it confers belong exclusively to the owner, who may oppose any third party's interference with his control. Finally, ownership offers its holder imprescriptible control, in the sense that it does not, in principle, expire with the passage of time or through non-use.
9 It should be noted that cultural property may be owned by the Confederation without being possessed by it. Under Article 15(1) of the Federal Act on Museums and Collections of the Confederation of June 12, 2009 (RS 432.30; hereinafter: LMC), the Confederation grants the Swiss National Museum (hereinafter: SNM) the usufruct of the cultural property it owns. The right of usufruct, governed by Articles 745 et seq. CC, is a limited real right which, unlike the right of ownership, only confers partial control over the property. The holder of such a right thus has the right to use (usus) and enjoy (fructus) the property in full without having the right to dispose of it. Usufruct is classified as a personal servitude in the strict sense of the term, since it is established in favor of a specific person (natural or legal) and is inextricably linked to that person. Like all real rights, it is an absolute right, enforceable against all third parties, in the sense that " everyone is required to refrain from interfering with the holder's [total or partial] control over the thing ."
10 Despite several previous attempts, the legal basis for the creation of a Swiss national museum did not come into being until 1890 with the entry into force of the Federal Act on the Establishment of a Swiss National Museum of June 27, 1890. The decision to create such a museum was based, on the one hand, on the Swiss government's awareness of the value of cultural heritage and the need to preserve it, and on the other hand, on the growing need for the newly formed federal state “to create a cultural self-representation in the form of a national museum.” The museum opened its doors for the first time in 1898 in the city of Zurich. Over the years, as it needed more space, the institution moved to new sites. In 1998, the Château de Prangins, donated to the Swiss Confederation by the cantons of Vaud and Geneva, became the home of the SNM in French-speaking Switzerland. This location seemed ideal for creating a “cultural bridge” between German-speaking and French-speaking Switzerland. Pursuant to Article 6 of the MNA, the MNS currently comprises the National Museum in Zurich (letter a), Prangins Castle (letter b), the Swiss History Forum in Schwyz (letter c) and the Collections Center in Affoltern am Albis (letter d). In 1998, Furger wrote that the purpose of the SNM was “to collect and exhibit objects relating to the history and culture of the territory of present-day Switzerland, from its origins to the present day.” Almost 30 years later, this aim is still relevant (Art. 7 LMC cum Art. 4 LMC).
C. Be of significant importance to cultural heritage
11 This last condition contains three fundamental terms, namely “importance,” “significant,” and “cultural heritage,” which must be defined individually.
12 The concept of importance is also found in Art. 2 para. 1 LTBC, which deals with the definition of cultural property. Although used by the legislator in various articles, there is no general and abstract definition of the concept of importance in the LTBC (nor in the 1970 UNESCO Convention). It is therefore an undefined legal concept that must be interpreted objectively on a case-by-case basis, based on various indicators. This interpretation must take into account “the community to which the cultural property belongs, the context and the state of the debate in the scientific community at the time.”. In principle, archaeological property, sacred objects and archives are considered important because they are particularly susceptible to theft and/or illicit export.
13 For this third condition to be met, the importance must be significant, i.e. intrinsically essential. This requirement further restricts the scope of cultural property that can qualify as such and thus be included in the federal inventory. Like the concept of importance, the qualification of “significant” is subject to constantly evolving social perceptions.
14 Finally, this importance, which is considered significant, must be significant for the cultural heritage. Cultural heritage is defined in Art. 2 para. 2 LTBC, which essentially refers to Art. 4 of the 1970 UNESCO Convention. According to the latter provision, the cultural heritage of each State includes cultural property belonging to one of the categories listed. These relate to the nationality or domicile of the artist and the place of creation of the property (letter a), the place of discovery of the property (letter b), the transfer of ownership and legal export from the State of origin (let. c to e). Cultural heritage thus consists of all cultural property that falls, alternatively or cumulatively, into one of these categories. It should be noted that ownership of the property is not relevant in determining whether or not it belongs to the cultural heritage of a State. The concept of cultural heritage thus refers to the “special significance of an object for the civilization of the country concerned.”
15 When adopting the Ordinance on the International Transfer of Cultural Property of April 13, 2005 (RS 444.11; hereinafter: OTBC), the Federal Council attempted to introduce a definition of the concept of significant importance for heritage by listing various categories of property with this quality. However, this idea was abandoned in the text of the OTBC that entered into force due to a constitutionality issue raised during the consultation procedure. Under Art. 31 LTBC, the Federal Assembly delegates to the Federal Council the power to issue implementing provisions. It is precisely on the basis of this provision that the Federal Council adopted the OTBC. As an implementing ordinance, the provisions it contains must only clarify the provisions of the LTBC (secondary legislation) and certainly cannot extend or restrict the scope of the law (primary legislation). As Contel and Renold explain, "by establishing certain categories of cultural property as the only ones of significant importance [as did Art. 2 para. 1 P-OTBC], the scope of application of the law is restricted ." This situation raised the question of compliance with the principle of separation of powers between the legislative and executive branches, leading to a revision of the initial draft.
16 Art. 2 para. 2 of the Ordinance on the Federal Inventory of Cultural Property of May 21, 2014 (RS 444.12; hereinafter: OIBC) provides some guidance to help understand the concept of significant importance for heritage, stipulating that cultural property is considered to be of significant importance if it meets at least one of the following criteria:
a. "artistic, historical or scientific importance;
b. uniqueness or rarity;
c. craftsmanship;
d. iconographic significance;
e. historical significance;
f. significance in the context of the collection;
g. material value."
Although, according to the OIBC, only one of the criteria needs to be met, in practice, each item listed in the inventory satisfies several of them. According to Bandle and Renold, items of significant cultural heritage value can be “rare objects whose financial, emotional or aesthetic value is considered high at a given moment.” It should be noted that only Swiss cultural property or property with a strong connection to the Swiss Confederation is included in the inventory. These are therefore items for which the Swiss population is recognized as having a very strong attachment. Unlike Art. 2 para. 1 P-OTBC, Art. 2 para. 2 OIBC does not provide for categories of property that may be considered of significant importance, but simply criteria for determining this. It thus complies with the legal requirements for implementing ordinances.
17 Finally, it is worth mentioning that Art. 7 para. 2 LTBC also establishes the concept of significant importance for cultural heritage as a condition for determining the categories of cultural property contained in the annexes to bilateral agreements concluded between Switzerland and another State Party to the 1970 UNESCO Convention.
18 An item that meets all the conditions set out above (i.e. it must be cultural property, belong to the Confederation and be of significant importance to cultural heritage) may thus be included in the federal inventory. The text of Art. 3 para. 1 LTBC states that cultural property “shall be included” in the inventory, which may imply that inclusion is automatic. In practice, however, it is necessary to apply for this listing. Art. 6 OIBC deals specifically with the application for listing an object in the federal inventory (see below para. 27).
19 Work on creating the inventory began as soon as the OIBC came into force in July 2014 and was completed in December 2018. In the first half of 2025, the federal inventory, updated on July 15, 2021, will be published on the website of the Federal Office of Culture (OFC). It lists 75 cultural properties.
III. The procedure for inclusion in the inventory
20 As its name suggests, the OIBC and its annex are intended to clarify Art. 3 LTBC on the federal inventory. Article 1 OIBC thus provides that the ordinance regulates the criteria for listing movable cultural property in the inventory (letter a), the listing procedure (letter b, paragraph 1) and the removal procedure (letter b, paragraph 2) (see below paragraphs 48-54).
21 Art. 4 OIBC deals with the description of registered cultural property and provides that, for each item, the federal inventory shall contain the following information, insofar as it is known:
a. "the reference number;
b. the date of registration;
c. the name of the federal institution that owns it;
d. the type of object;
e. the material;
f. the technique;
g. the dimensions and weight;
h. the lots, number or volume;
i. the reasons;
j. the inscriptions;
k. any distinctive marks or signs, in particular damage and repairs;
l. the period or date of manufacture;
m. the author;
n. the title;
o. as detailed information as possible on the provenance and place of manufacture or, in the case of objects from archaeological or paleontological excavations or discoveries, on the place of discovery;
p. bibliographical references with a table of illustrations, if available;
q. a photograph or other representation of the object.
It is clear that the content of each inscription is therefore quite substantial. This is a fundamental aspect that has been emphasized in order to ensure better protection of registered cultural property. As mentioned in the National Report on the Implementation of the 1970 UNESCO Convention in Switzerland, the information to be provided under Art. 4 OIBC is based on the standardized requirements of “Object ID.” These international standards set out a list of minimum data (type of object, materials and techniques, measurements, inscriptions and marks, distinctive features, title, date or period and creator) that must be recorded in order to identify cultural property.
22 In accordance with the legal provision, the list in Art. 4 OIBC is exhaustive. Certain points, such as the reference number (letter a), the provenance (letter o), and the federal institutions (letter b), require some additional explanation.
23 The reference number is a reference, consisting in principle of letters and/or numbers, used to identify and classify items in a collection. Pursuant to Art. 3 OIBC, each cultural property listed in the inventory is identified by a reference number (para. 1) which is composed in accordance with the appendix (para. 2). According to the latter, the reference number consists of three elements:
the abbreviation of the federal institution that owns the property;
the number corresponding to the type of object in question;
additional information added by the federal institution.
24 In the context of the LTBC, the terms origin and provenance are considered interchangeable synonyms, even though they are in fact two terms with different meanings. They are defined in Art. 1(b) OTBC as the "provenance of the cultural property and [the] place of its manufacture or, in the case of archaeological or paleontological finds or discoveries, the place of its discovery .“ The purpose of provenance research is to obtain ”an ideally complete picture of the history of the object and documentation of changes of ownership." However, this chain of provenance is often incomplete due to a lack of information and documentation. As previously mentioned, Article 4(o) OIBC specifies that the provenance must be established, as far as possible, for all cultural property listed in the federal inventory (supra para. 21). A priori, since it is to be established “as far as possible,” an incomplete provenance should not, in principle, prevent an item from being listed in the inventory. Two types of property, namely property from colonial contexts and property looted during the National Socialist era, require particular attention with regard to their provenance and the legality of their acquisition.
25 In this regard, the working group of the Federal Office of Culture published an initial report on provenance research relating to cultural property owned by the Confederation covering the period from 1933 to 1945. The aim was to examine acquisitions made by various federal institutions (the federal art collections, the Swiss National Museums and the Swiss National Library) during this particularly troubled period. The findings concluded that, a priori, no property owned by the Confederation had been acquired illegally or appeared on the lists of looted works published by various states.
Twenty years after its initial publication, the Federal Office of Culture undertook a review of the provenance research findings, which were published in two stages (2018 and 2020). The results of this review concluded that the majority of the acquired property could be considered unproblematic in terms of provenance (category A or B). Eight items were considered potentially sensitive in the sense that, although their provenance could not be fully clarified, the available information suggested that “there could be links to the issue of looted art” (category C). Finally, only one item was classified as "confiscated by the Nazis " (category D).
For the sake of completeness, it should be noted that, following the motion submitted by Jon Pult in 2021, the Federal Council established an Independent Commission for Cultural Heritage with a Problematic Past, tasked with examining, among other things, questions of provenance of property looted during the National Socialist era and property originating from the colonial context. This should facilitate the establishment of their provenance, which, in accordance with Art. 4(o) OIBC, is information that must be provided, as far as possible, when an item is entered in the inventory. The Commission is governed by the Ordinance on the Independent Commission for Cultural Heritage with a Problematic Past of November 22, 2023 (RS 444.21; hereinafter: OCPCP).
26 The institutions of the Confederation are defined in Art. 1 let. c OTBC as:
1. "the Swiss National Museum, comprising the National Museum in Zurich, the Château de Prangins, the Forum of Swiss History in Schwyz and the Collection Center in Affoltern am Albis,
2. the Swiss National Library, to which the Swiss Literary Archives, the Prints and Drawings Department and the Centre Dürrenmatt Neuchâtel are attached,
3. the Oskar Reinhart Collection Museum “Am Römerholz” in Winterthur,
4. the Museo Vela in Ligornetto,
5. the Museum of Musical Automata in Seewen,
6. the Swiss Federal Institute of Technology in Zurich and its collections,
7. the art and cultural property collection of the Gottfried Keller Foundation,
8. the art collection of the Swiss Confederation ".
27 The application for inclusion of an asset in the federal inventory is governed by Art. 6 para. 1 OIBC, which stipulates that it is the federal institution that owns the asset that must submit the application. Only a federal institution within the meaning of Art. 1(c) OTBC, excluding cantonal and municipal public entities, may apply for such registration. The application must be submitted to the specialist department of the Federal Office of Culture, one of whose tasks is to maintain the inventory pursuant to Art. 18(g) LTBC. According to Art. 6 para. 2 OIBC, it must contain the information specified in Art. 4 OIBC and be submitted in electronic form. It is possible to request the registration of an item in the inventory at any time.
28 Pursuant to Art. 7 sentence 1 OIBC, cultural property is considered to be registered as soon as it is entered in the electronic database. In addition, the date of registration is recorded in the inventory (Art. 4 let b OIBC and Art. 7 sentence 2 OIBC).
IV. Effects of inclusion in the inventory
29 According to the Federal Council's message, maintaining an inventory is "a proven means of protecting cultural property that is important to the community from loss ." Its purpose is to strengthen the protection of assets that constitute the national cultural heritage against permanent loss. To this end, the inventory establishes two types of major effects: those intended to control and restrict cross-border movements (in particular exports) and those intended to affect ownership rights. Article 3(2) LTBC thus provides that inclusion in the inventory entails the following restrictive and derogatory effects: the cultural property cannot be acquired by prescription or in good faith (letter a), the action for recovery is imprescriptible (letter b) and the permanent export of the cultural property from Switzerland is prohibited (letter c). It should be noted that these various legal effects are limited to Swiss territory.
A. Effect relating to the impossibility of acquisition by acquisitive prescription (Art. 3 para. 2 let. a LTBC)
30 Acquisitive prescription is a method of acquiring ownership of movable property. Art. 728 para. 1 CC provides that anyone who has possessed another person's property peacefully and without interruption for a certain period of time becomes the owner by prescription, provided that they possessed it in good faith and as the owner. When all these conditions are met, the acquisition of ownership by prescription (by the current possessor) results in the automatic extinction of the previous owner's right of ownership.
31 The usual period of prescriptive acquisition is five years (Art. 728 para. 1 CC). Following the entry into force of the LTBC, this period was extended to 30 years for cultural property (Art. 728 para. 1ter CC). This extension provides greater protection for the rights of the previous owner of the cultural property by delaying the moment when ownership is acquired by prescription.
32 Cultural property listed in the inventory enjoys greater protection, as Art. 3 para. 2 let. a LTBC provides that it simply cannot be subject to acquisitive prescription, regardless of whether the 30-year period has expired. This is a major exception to the rules on acquisitive prescription and was laid down in the CC, in Art. 728 para. 1ter, when the LTBC came into force, making it a case of exception provided for by law.
B. Effect relating to the impossibility of acquisition in good faith (Art. 3 para. 2 let. a LTBC)
33 Acquisition in good faith is governed by Art. 714 para. 2 CC, which provides that "a person who, acting in good faith, is put in possession of movable property as owner acquires ownership of that property, even if the transferor was not entitled to transfer it; ownership is acquired as soon as he is protected under the rules on possession [i.e. Articles 933 to 935 CC]". There are two situations in which a bona fide acquirer may become the owner of cultural property under the rules on possession. The first is the case of Article 933 CC, which deals with the acquisition of movable property that had been entrusted (in principle by the owner of the property) to the person who transferred ownership to the purchaser in good faith. The second possibility is that of a purchaser in good faith of lost or stolen property or property whose previous possessor has been deprived of it in any other way against his will. In this case, the purchaser in good faith becomes the owner by virtue of Art. 714 para. 2 CC, only when the right to bring an action in rem within the meaning of Art. 934 CC has expired. This is because if the former owner who was involuntarily deprived of possession takes action against the purchaser acting in good faith within the statutory period, the latter must return the property to the former owner (see below, paras. 37 and 39). When the conditions for acquisition in good faith are met, the transfer of ownership is considered valid. The purchaser acting in good faith then becomes the actual owner of the property.
34 In both of the above situations, the purchaser who wishes to be protected in his acquisition must be acting in good faith at the time of the transfer of ownership. It is said that he must have acted "in good conscience [and] that any dishonest or morally reprehensible behavior appears to be excluded ." In other words, they must have believed in the disposer's power to dispose of the property, which was apparent from their possession. Good faith is presumed under Art. 3 para. 1 CC, provided that it is compatible with the care that could be expected under the circumstances (para. 2). In this regard, it should be emphasized that, in principle, there is no general obligation on the purchaser to inquire about the power of disposal of his co-contracting party. Only in cases of doubt or special circumstances that should arouse his suspicion is he required to carry out a more thorough investigation. However, this general rule must be qualified, since a higher degree of vigilance and caution is required in areas where objects of dubious provenance are abundant (this is particularly the case in the field of cultural property). A certain duty of care is therefore required in transactions involving cultural property, particularly since the entry into force of the LTBC. This duty is not limited to professionals, since what is decisive is the purchaser's knowledge of the sector concerned (and not whether they are acting in a professional capacity or not). In the "Malevitch ," the Federal Court also clarified that the requirements for diligence on the part of the purchaser at the time of transfer of ownership (in this case, the transfer took place in 1989) cannot be assessed based on our current knowledge. It is necessary to take into account the context of the time when provenance research, although common, focused on the authenticity of the property and any renowned previous owners, and not on clarifying the transferor's power to dispose of the property (this aspect became particularly important after the fall of the Iron Curtain and the emergence of the debate on looted art).
In the case in question, the Federal Court, which was responsible for examining the purchaser's good faith, concluded that the purchaser could not ultimately rely on it. In its view, the fact that H., an expert on Russian avant-garde art, had informed him of a rumor circulating on the market that a stolen Malevich painting was available for sale should have prompted him "to take the necessary precautionary measures ,“ consisting, in particular, of ”obtaining further information about [the rumour] from H. or another expert, or asking such a person to undertake the relevant research [which he did not do in this case]." As the federal judges were unable to rule on the merits of the case, it was referred back to the Zurich Superior Court, which ultimately dismissed the appeal. The Zurich court held that the presumption of ownership (of the seller of the painting) arising from his possession (Art. 930 para. 1 CC) was applicable in this case, since no evidence to the contrary had been provided. It follows from the above that the buyer had acquired the property from a person who had the power to dispose of it. Since the absence of such power, a necessary condition for an action in rem, could not be proven, the cantonal judges naturally concluded that the claim should be dismissed. They thus considered that the Federal Court's conclusion regarding the purchaser's lack of good faith was irrelevant since it had to be assumed that he had acquired the property from a person who had the right to dispose of it. Consequently, this reasoning allowed the Zurich court to dismiss the applicant's claim while complying with the binding considerations of the Federal Court's judgment. The purchaser was thus able to retain the disputed property, even though he had been found not to be acting in good faith.
35 As a general rule, cultural property, with the exception of that listed in the inventory, may be acquired in good faith, provided that the usual requirements in this regard are met. Art. 3 para. 2 lit. a LTBC prevents the acquisition in good faith of cultural property listed in the federal inventory. Their acquisition after the expiry of the limitation period under Art. 934 para. 1bis CC is therefore impossible.
36 Even if Art. 3 para. 2 let. a LTBC did not provide for such an effect, the acquisition in good faith of cultural property listed in the inventory would be virtually impossible in practice. The federal inventory can be considered a public register within the meaning of Art. 9 CC. As such, it is authentic evidence of the facts it records, the inaccuracy of which has not been proven (Art. 9 para. 1 CC). This gives rise to the following presumption: until proven otherwise, the assets listed in the inventory belong to the Confederation and are of significant importance to cultural heritage. Thus, the good faith of the purchaser will be all the more difficult to prove, since he could not have been unaware of the existence of the inventory and the inclusion of the cultural property therein.
C. Effect on the imprescriptibility of the action for recovery (Art. 3 para. 2 let. b LTBC)
37 There are two types of actions aimed at restoring the previous situation through the return of the item: the action for recovery by the owner and the action by the previous possessor of movable property.
38 The action for recovery by the owner under Art. 641 para. 2 CC is a so-called condemnatory action. The owner who no longer has (or never had) possession of his property has standing to bring the action. The person who possesses the property at the time the action is brought has standing to defend it. In order for the action to be successful, two substantive conditions must be met. First, the plaintiff must prove that he has validly acquired ownership of the property claimed, i.e., that he is indeed the rightful owner. Second, they must also demonstrate that the defendant holds the property “without right,” meaning that they do not have “a right enforceable against the claimant that would allow them to refuse to return the property.” The action for recovery of property is not subject to a statute of limitations.
39 The action on movable property by the previous possessor under Article 934 CC is based on previous possession (and not on ownership). In fact, any previous possessor who has been deprived of the property against their will is entitled to bring such an action. Like the action for recovery of property, it is brought against the current possessor. Once again, two material conditions must be met for the action to be successful. The claimant must have been deprived of the object against his will, i.e. he must have lost possession of it other than by entrusting it (within the meaning of Article 933 CC). This may be due to loss, theft or confiscation in a foreign country for political reasons. However, where the property claimed is cultural property, "non-compliance with export provisions is not considered involuntary dispossession ." Involuntary relinquishment may have taken place in Switzerland or abroad. The defendant, i.e. the current possessor, must also be unable to invoke any exception, in particular by claiming a preferential right to the property or the expiry of the limitation period. Unlike the action for recovery of property, the action for recovery of movable property usually expires within five years of the involuntary dispossession (Art. 934 para. 1 CC).
40 Since the LTBC came into force, cultural property has been subject to a special regime, since under Art. 934 para. 1bis CC, the limitation period is 30 years from the date of involuntary relinquishment (absolute limitation period) and one year from the moment when the owner became aware of the location of the property and the identity of the current possessor (relative time limit). This wording is somewhat awkward since, a priori, the one-year time limit runs from the moment the owner becomes aware of certain facts. However, as stated above, the right to take action lies with the dispossessed possessor (whether or not they are the owner of the property). Therefore, according to Foëx, Art. 934 para. 1bis CC should be interpreted as providing that the one-year period runs from the moment the claimant becomes aware of the aforementioned facts. The purpose of this lex specialis is to protect the former possessor against international trafficking in cultural property.
41 Cultural property listed in the federal inventory is even better protected, since Art. 3 para. 2(b) LTBC provides that the action for recovery is not subject to a limitation period. This effect must be understood to mean that "the limitation of the action for recovery is not an exception that the defendant can invoke to paralyze the plaintiff's right ." The imprescriptibility of the action for recovery of property for items listed in the federal inventory is of no use with regard to the action under Art. 641 para. 2 CC, since this is already, by its nature, imprescriptible. Conversely, as explained above, it is fully relevant to the action for movable property under Art. 934 CC. It should also be noted that these two actions exist in parallel and may be combined, provided that the plaintiff has standing to bring both. The plaintiff must then be both the owner of the property and the previous possessor who was dispossessed against his will. In practice, the action for movable property under Article 934 CC allows the claimant to recover the claimed property more easily than the action for recovery under Article 641(2) CC, since in the former case the claimant does not have to prove his or her right of ownership of the property. It therefore seems more appropriate to bring an action for the recovery of cultural property on the basis of Article 934(1bis) CC.
D. Implicit effect relating to the inalienability of cultural property (res extra commercium)
42 In principle, an owner has the power to dispose freely of his property under Art. 641 para. 1 CC. However, when it comes to property that is part of a State's cultural heritage, other issues must be taken into account. The various effects mentioned above affect cultural property listed in the inventory precisely because of their special status. The characteristics attributed to them allow them to be classified as res extra commercium, i.e., things not subject to trade. They are therefore considered inalienable property whose ownership cannot be transferred. The Confederation cannot therefore sell its property as long as it remains listed in the federal inventory. This inalienability is not explicitly provided for in the law but derives from the effects of Art. 3 para. 2 lit. a and b LTBC relating to property rights. The classification as res extra commercium also means that they can be claimed at any time from any holder. Inalienability is relative in the sense that for an asset to be classified as such, it must meet certain conditions (namely those that allow it to be included in the inventory).
43 Like property listed in the federal inventory, natural curiosities and antiques cannot be acquired by prescription or in good faith, and the right to claim them is imprescriptible (Art. 724 para. 1bis phr. 2 and 3 CC). However, unlike assets listed in the inventory, which are completely inalienable, natural curiosities and antiques may be disposed of subject to obtaining authorization from the competent cantonal authorities (Art. 724 para. 1bis sentence 1 CC) and in compliance with the administrative procedure applicable in the canton concerned. They therefore constitute a special category of res extra commercium. Their unlawful appropriation constitutes a criminal offense punishable under Art. 24 para. 1 let. b LTBC.
E. Effect of the permanent ban on export from Switzerland (Art. 3 para. 2 let. c LTBC)
44 In accordance with the preamble to the 1970 UNESCO Convention, the exchange of cultural property between nations serves to deepen knowledge of human civilization, enrich the cultural life of all peoples, and foster mutual respect and understanding between nations. The lawful circulation of cultural property appears, a priori, to be encouraged. Nevertheless, Art. 3 para. 2 let. c LTBC provides that the permanent export from Switzerland of goods listed in the inventory is prohibited. Indeed, cultural property listed in the inventory has a special significance for the national cultural heritage, and its permanent export would constitute a significant loss for Switzerland.
45 In order to qualify this prohibition, temporary export is possible under certain conditions. According to Articles 5 para. 1 LTBC and 24 para. 1 OTBC, anyone wishing to export cultural property listed in the inventory must obtain authorization from the specialized service. This authorization is granted on two conditions: the export must be temporary (Art. 5 para. 2 let. a LTBC) and must be for the purposes of research, conservation, exhibition or other similar reasons (Art. 5 para. 2 let. b LTBC). The deadline for submitting the application for authorization is no later than 30 days before the planned date of export (Art. 3 para. 1 OTBC). It must indicate the purpose and date of the temporary export and the date of return of the object to Switzerland and be accompanied by a description of the cultural object concerned and its number in the federal inventory (Art. 3 para. 2 and 3 OTBC). In addition to the above authorization, a customs declaration must be provided indicating the type of object and its place of manufacture (Art. 4a LTBC cum Art. 25 para. 1 lit. a and b OTBC). These documents must be submitted to the customs authorities responsible for checking the transfer of goods at the border (Art. 19 para. 1 LTBC and Art. 25 para. 3 OTBC).
46 In the event of the unlawful export of cultural property listed in the federal inventory, the Federal Council has a right of return to be exercised vis-à-vis the other States party to the 1970 UNESCO Convention (Art. 6 para. 1 LTBC). This action may take various forms: legal action, diplomatic proceedings or a request for international mutual assistance in criminal matters. Requests for restitution made to states that are not signatories to the 1970 UNESCO Convention are subject to the conditions laid down in the domestic law of that state, which may give rise to certain difficulties. Illegal export means a situation where an object “has left its territory of origin [in casu, Switzerland] in violation of national legislation on the protection of cultural heritage [in casu, the LTBC and/or Art. 724 CC], regardless of whether this was done by its rightful owner or another person.” In the case of temporary export of an item listed in the inventory, it is considered illegal if the item leaves Swiss territory without authorization (Art. 5 LTBC). In addition to having to return the cultural property pursuant to Art. 6 para. 1 LTBC, the perpetrator of the unlawful export is also liable to criminal penalties (Art. 24 para. 1 let. d LTBC).
47 There are other measures that a state can put in place to protect its cultural property and control its movement, such as introducing a state right of first refusal in the event of sale. This is notably the case in France, where, under Art. L123-1 of the Heritage Code, the State may exercise a right of preemption in any public or private sale of cultural property carried out under the conditions set out in Art. L321-9 of the Commercial Code relating to voluntary sales of movable property at public auction. While other States have similar mechanisms for protecting cultural heritage, Switzerland has ruled out this possibility, in particular because of the rules on the division of powers between the cantons and the Confederation.
V. The procedure for removal from the inventory
48 The list of items included in the inventory is not definitive, as Art. 3 para. 3 LTBC provides for three cases in which an item may be removed: if it no longer has significant importance for cultural heritage (letter a), if its incorporation into a larger entity justifies its removal (letter b), and if the Confederation loses its ownership rights or renounces them (letter c).
A. The property is no longer of significant importance to cultural heritage (Art. 3 para. 3 letter a LTBC)
49 This refers to the possibility that the third condition of Art. 3 para. 1 LTBC, which is necessary for the inclusion of an asset in the inventory, is no longer met (supra para. 11-16). In such a case, it is justified that the asset be removed from the inventory since it no longer meets the criteria for inclusion. Since the significant importance of an asset for cultural heritage is an indeterminate concept, it may vary over time. It is therefore possible that an item may lose its special significance at a given point in time. This would be the case, for example, if new discoveries called into question its value by proving that it was in fact a fake, or if other cultural property of the same type were acquired by the Confederation, thereby reducing the value of the item listed in the inventory.
B. Incorporation of the property into a whole justifying its removal from the inventory (Art. 3 para. 3 let. b LTBC)
50 This second scenario relates to cases where the reintegration of the cultural property into its original context, for example a religious building, another collection, a building or other structure, requires its disposal. As the property is considered inalienable due to its inclusion in the inventory (supra para. 42), its removal from the inventory is therefore necessary.
C. The Confederation loses its ownership rights to the property or renounces them (Art. 3 para. 3 let. c LTBC)
51 This last situation corresponds to the case where the second condition of Art. 3 para. 1 LTBC necessary for the inclusion of an object in the inventory is no longer met (supra para. 28). As in the case of loss of significant importance for cultural heritage, it is consistent to remove the registered object from the inventory, as it no longer meets the conditions for inclusion.
52 The Confederation may lose its right of ownership over the cultural property if “a third party asserts a legitimate right [to the listed property], for example by proving that it was stolen from them.” This loss may also occur if the cultural property listed in the inventory is destroyed. However, the Confederation does not lose its right of ownership in the event of sale or involuntary disposal.
53 With regard to the waiver of ownership, this may occur if the Confederation discovers that the provenance of its property is ethically questionable (theft or looting) and voluntarily decides to return it. Such a case could arise, for example, in the case of property whose provenance, , as a result of new research, a risk of spoliation during the period 1933–1945 or in connection with colonial contexts. The Confederation may also waive its right of ownership if the cultural property has been removed from the federal inventory due to its loss of significance for the national cultural heritage. However, in such a case, it is the loss of significant importance that leads to the removal of the object from the inventory and not the decision to waive ownership, which will then be taken at a later stage.
54 The removal procedure is set out in Art. 8 OIBC. Where one of the circumstances referred to in Art. 3 para. 3 LTBC applies, the federal institution that owns the property may request the specialized service to remove it from the inventory, provided that the request is duly justified (Art. 8 para. 1 OIBC). If the request is approved by the specialized service, it shall effectively remove the property from the electronic database (Art. 8 para. 2 OIBC). In practice, cases of removal of property from the inventory are relatively rare.
VI. Form of the inventory and responsibility for maintaining it
55 Pursuant to Articles 3(4) LTBC and 18(g) LTBC, the specialized service is the body responsible for maintaining the federal inventory. It is naturally also responsible for deciding on the inclusion and removal of cultural property from the inventory (Art. 5 para. 2 OIBC). Finally, as mentioned above, the same service is also authorized to grant temporary export permits for items included in the inventory (Art. 5 para. 1 LTBC). Pursuant to Articles 22 para. 1 OTBC and 5 para. 1 OIBC, it is attached to the OFC and is called the “International Transfer of Cultural Property” specialist service of the Federal Office of Culture.
56 Art. 3 para. 4 LTBC also provides that the federal inventory shall be established in the form of an electronic database and shall be published. It must be published on the website of the Federal Office of Culture (Art. 5 para. 1 OIBC). Under Art. 9 OIBC, access to the inventory is free of charge. The aim of this solution is to facilitate consultation and enable widespread dissemination in Switzerland and abroad. In practice, the federal inventory is kept in the form of an electronic database within the specialized service and is then made available to the public in PDF format for download on the website of the Federal Office of Culture. This seems to be the most appropriate approach, as it is easier to download and consult a PDF than an electronic database, which requires a good internet connection and some computer skills.
57 The inventory is also available to customs authorities, one of whose tasks is to control exports. This enables them to check whether the cultural property in question is listed in the federal inventory and would therefore be subject to export restrictions.
58 In accordance with Articles 30(2) LTBC and 21( 1 OTBC, the processing of personal data carried out in connection with the inventory must comply with the Federal Act on Data Protection of September 25, 2020 (RS 235.1; hereinafter: LPD).
VII. Other inventories under the LTBC
59 There are two other inventories or registers established through the LTBC. These are, on the one hand, the register kept by art dealers and auctioneers and, on the other hand, the inventory kept by free ports.
60 The register kept by art dealers and auctioneers is based directly on the LTBC, which implements the commitment made in Art. 10(a) of the 1970 UNESCO Convention. Art. 16(2)(c) LTBC therefore provides that art dealers and auctioneers are required to keep a register of acquisitions of cultural property. This register must contain the following information: a description of the cultural property (as defined in Art. 1(a) OTBC), the origin of the cultural property if known, details of the identity of the seller or supplier, the date of transfer, the purchase price or estimated value of the cultural property (Art. 16 para. 2 let. c LTBC cum Art. 19 para. 1 and 17 para. 1 let. a and b OTBC). This register must be kept for 30 years (Art. 16 para. 3 LTBC) and must be available for inspection on request (Art. 19 para. 2 OTBC). The aim is to ensure the traceability of the various transactions carried out. It may also serve as evidence in criminal proceedings.
61 The specialized service monitors, among other things, compliance with the obligation to keep the register and reports any suspected violations to the competent criminal prosecution authority (Art. 17 LTBC). In the event of non-compliance with the obligation under Art. 16 para. 2 let. c LTBC, art dealers and auctioneers are liable to a fine of up to CHF 20,000 under Art. 25 para. 1 let. a LTBC. In civil law, a breach of this obligation does not render the contract between the art dealer or auctioneer and the seller or supplier null and void.
In practice, it appears that art dealers and auctioneers comply fairly well with their legal obligations by checking the goods transferred more effectively. Various trade unions and associations have also adopted codes of conduct, i.e. legally non-binding instruments aimed at establishing standards of conduct for persons professionally involved in the trade in cultural goods. This self-regulation by peers thus reinforces the legal provisions in that failure to comply with the code of conduct by one of the members of the association may lead to its exclusion.
62 The inventory kept by free ports is based on the Customs Act of March 18, 2005 (RS 630.1; hereinafter referred to as LD). Free ports are “parts of Swiss territory that are separated from the rest of the customs territory and are under customs supervision.” Under Art. 19 para. 3 LTBC, the storage of cultural property in a free port is treated as an import within the meaning of the law. Consequently, it is also subject to the customs declaration requirement provided for in Art. 4a LTBC cum Art. 25 para. 1 lit. a and b OTBC. Under section 14 of Annex 2 to the Customs Ordinance of November 1, 2006 (RS 631.01; hereinafter: OD), cultural property within the meaning of Art. 2 para. 1 LTBC is deemed to be sensitive goods within the meaning of the LD. As such, the warehouse keeper or depositary is required to keep an inventory of all cultural property in storage (Art. 56 and 66 LD, Art. 182 para. 2 to 185 OD and Art. 47 and 48 of the Federal Customs Ordinance of April 4, 2007 (RS 631.013; hereinafter: OD-OFDF). In order to facilitate inspection by the customs authorities, the warehouse keeper or depositary must immediately present their inventory upon request. This measure aims to ensure the transparency of free ports and to combat possible abuse, in particular by preventing cultural property of dubious origin from being stored in free ports without attracting the attention of the authorities.
VIII. Other federal inventories relating to the protection of cultural heritage
63 There are four other federal inventories of importance for the protection of Swiss cultural heritage. Their provisions have been enacted primarily with regard to the State and its various administrative authorities. Private individuals are only very rarely affected by them.
64 The first is the Swiss inventory of cultural property of national and regional significance (PBC Inventory), the provisions of which are set out in Art. 4(d) of the Federal Act on the Protection of Cultural Property in the Event of Armed Conflict, Catastrophes or Emergencies of June 20, 2014 (RS 520.3; hereinafter: LPBC). It lists cultural property that must be protected as a priority in order to prevent its partial or total loss. The Federal Office for Civil Protection (FOCP) is responsible for compiling and maintaining the inventory in accordance with Article 2(1) of the Ordinance on the Protection of Cultural Property in the Event of Armed Conflict, Catastrophes or Emergencies of October 29, 2014 (RS 520.31; hereinafter: PBC). This inventory lists two types of property: property of national importance (objects A), which are listed in bold, and property of regional importance (objects B) (Art. 1 para. 1 lit. a and b PBC cum Art. 2 para. 1 PBC). Objects A are also reproduced on the federal geoportal, which is managed by the Federal Office of Topography, to facilitate their geolocation. The assets listed in the PBC inventory are classified by canton. In the first half of 2025, the fourth edition of the inventory, updated in 2021, will be available to the public in PDF format on the website of the Federal Office for Civil Protection.
65 The second is the federal inventory of built sites of national importance to be protected in Switzerland (ISOS inventory). It is based on Art. 5 para. 1 of the Federal Act on Nature and Landscape Protection of July 1, 1966 (RS 451; hereinafter: LPN), which stipulates that the Federal Council shall draw up inventories of objects of national importance. The ISOS inventory is not exhaustive and must be updated regularly (Art. 5 para. 2 LPN). The relevant ordinance, namely the Ordinance on the Federal Inventory of Built Sites to be Protected in Switzerland of November 13, 2019 (RS 451; hereinafter: OISOS), entered into force on January 1, 2020. Like the federal inventory under Art. 3 LTBC, it is compiled by the Federal Office of Culture (FOC) (Art. 1 para. 2 OISOS) and includes all the objects listed in Annex 1 (Art. 1 para. 1 OISOS). Its purpose is to list built sites in Switzerland that require special protection, particularly with regard to spatial planning. The criteria for determining whether a site is valuable enough to be included in the inventory are listed in Art. 8 OISOS. Like the “A objects” in the PBC inventory, the sites listed in the ISOS inventory are included in the federal geoportal, where they can be viewed free of charge (Art. 2 para. 2 OISOS).
66 The third is the federal inventory of landscapes, sites and natural monuments of national importance (Inventory IFP). Like the ISOS inventory, it is based on Art. 5 LPN. The Ordinance on the Federal Inventory of Landscapes, Sites and Natural Monuments of 29 March 2017 (RS 45.11; hereinafter: OIFP) entered into force on June 1, 2017. Like the ISOS inventory, it includes all objects listed in Annex 1 (Art. 1 para. 1 OIFP). It can be consulted free of charge at the Federal Office for the Environment (FOEN) (Art. 2 para. 2 OIFP). This instrument thus enables “the characteristic appearance of the landscape and localities, sites of historical interest, natural features and monuments of the country to be preserved and protected, and their conservation and maintenance to be promoted” in accordance with the provisions of Art. 1(a) LPN. Art. 5 para. 1 OIFP stipulates that the natural and cultural landscape features and the distinctive elements of the listed objects must be preserved intact. The built heritage listed in the IFP inventory is also accessible on the federal geoportal.
67 Finally, the last inventory is the federal inventory of historic transport routes in Switzerland (IVS inventory). Like the two previous inventories, it focuses on the protection of built heritage and is based on Art. 5 LPN. The relevant standards can be found in the Ordinance on the Federal Inventory of Historic Transport Routes in Switzerland of April 14, 2010 (RS 451.13; hereinafter: OIVS), which entered into force on July 1, 2010. The IVS inventory is compiled by the Federal Roads Office (FEDRO) (Art. 3 para. 2 OIVS). It is available online on the federal geoportal and can be consulted free of charge at FEDRO (Art. 4 OIVS). Its purpose is to identify historic transport routes in Switzerland that are worthy of protection so that they can be preserved and maintained as well as possible.
68 Under Swiss law, a distinction can be made between two types of listings based on their effects: constitutive listings and declaratory listings. The state of research in this area in the context of inventories relating to the protection of cultural heritage (whether the federal inventory under Art. 3 LTBC or the four other inventories mentioned above) is relatively undeveloped. It would therefore be possible to refer, by analogy, to the doctrine relating to the various existing registers, in particular the commercial register and the land register. Like the inventory, both are administrative law instruments whose purpose is to record and publish various information. However, these two tools also show certain differences, which means that the analogy applied can be considered relatively bold.
An entry has a constitutive effect when it is a necessary condition for the creation of a legal relationship (in the context of the commercial register) or for the creation or acquisition of a right in rem (in the context of the land register). Conversely, in the absence of an entry, the company or right in rem is deemed not to exist. The constitutive effect of registration in company law is enshrined in Art. 52 para. 1 CC, which provides that “corporately organized companies [...] acquire legal personality [enabling them to enjoy and exercise civil rights] upon registration in the commercial register.” This principle is also mentioned several times in the provisions of the CO relating to capital companies and partnerships. Art. 971 para. 1 CC, relating to rights in rem, provides that “any right whose creation [i.e. origin] is legally subject to registration in the land register shall only exist [...] if such registration takes place.”
In contrast, an entry is said to be declaratory when it is not necessary for the creation of the legal relationship or the right in rem, since these exist de lege outside the registers (extra tabulas). Since entry in the commercial register has no legal consequences, it is limited to recording the existence of the corporate relationship and making it public. It thus fulfills the “very purpose of the register, which is to publish certain legally relevant facts and guarantee legal certainty [...]”. Art. 52 para. 2 CC, relating to company law, provides, for example, that profit-making associations are exempt from this formality (i.e., registration). As for declaratory registration in the land register, this is done, on the one hand, to ensure that the register reflects the legal reality and, on the other hand, to make the right in rem enforceable against third parties and to legitimize the right of its holder to dispose of it. There are various cases where the law allows a real right to arise without prior registration.
It should be noted that the classification of registration as constitutive or declaratory has no bearing on whether it is mandatory or optional.
69 With regard to cultural property, registration in the federal inventory under Art. 3 LTBC appears to be constitutive in the sense that it is a necessary condition for the property to then benefit from the various effects provided for in Art. 3 para. 2 LTBC. The listing of movable or immovable property in one of the other federal inventories for the protection of cultural heritage could also be considered constitutive, since it subjects them to a special protection regime. A priori, considering them constitutive does not exclude the possibility that they could also be declaratory.
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Documents officiels
Message relatif à la Convention de l’UNESCO de 1970 et à la loi fédérale sur le transfert international des biens culturels (LTBC) du 21.11.2001, FF 2002 505, disponible sur https://www.fedlex.admin.ch/eli/fga/2002/93/fr.
Communiqué de presse du Département fédéral de l’intérieur (DFI), Le Conseil fédéral institue une commission indépendante pour le patrimoine culturel au passé problématique, 22.11.2023, Le portail du gouvernement suisse, consulté le 26.5.2025.
Département fédéral de l’intérieur (DFI), Ordonnance sur le transfert international des biens culturels – Rapport sur les résultats de la procédure d’audition, Février 2005 (cité : DFI, OTBC – Rapport sur les résultats de la procédure d’audition).
Office fédéral de la culture (OFC), FAQ – Questions fréquentes liées à l’application de la LTBC, 8.11.2024, accessible sur https://perma.cc/BFV7-38ZP, consulté le 26.05.2025 (cité : OFC, FAQ - Questions fréquentes liées à l’application de la LTBC).
Office fédéral de la culture (OFC), Biens culturels de la Confédération. Enquête sur la période de 1933 à 1945. Rapport du groupe de travail de l’Office fédéral de la culture, Berne 1998 (cité : Rapport du groupe de travail – enquête sur la période de 1933 à 1945).
Office fédéral de la culture (OFC), Biens culturels de la Confédération. Enquête sur la période de 1933 à 1945. Actualisation du Rapport de l’Office fédéral de la culture de 1998 (Partie 1), Berne 2018 (cité : Actualisation du rapport du groupe de travail - enquête sur la période de 1933 à 1945 (Partie 1)).
Office fédéral de la culture (OFC), Biens culturels de la Confédération. Enquête sur la période de 1933 à 1945. Actualisation du Rapport de l’Office fédéral de la culture de 1998 (Partie 2), Berne 2020 (cité : Actualisation du rapport du groupe de travail – enquête sur la période de 1933 à 1945 (Partie 2)).
Organisation des Nations unies pour l’éducation, la science et la culture (UNESCO), Mesures à prendre pour interdire et empêcher l’importation, l’exportation et le transfert de propriété illicites des biens culturels : Rapport final, 27.2.1970, SHC/MD/5 accessible sur https://unesdoc.unesco.org/ark:/48223/pf0000068690_fre.locale=fr, consulté le 26.05.2025 (cité : Rapport final SHC/MD/5 Annexe II).
Organisation des Nations unies pour l’éducation, la science et la culture (UNESCO), Rapport national sur la mise en œuvre de la Convention concernant les mesures à prendre pour interdire et empêcher l’importation, l’exportation et le transfert de propriété illicites des biens culturels – Suisse, Rapport périodique 2011, C70/11/National-report/Suisse.