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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. The possibility of linking cantonal inventories to the federal inventory
- III. The effects of listing cultural property in cantonal inventories
- IV. Practice in the various cantons (comparative cantonal law)
- Bibliography
I. General
1 As Switzerland is a federal state, it needs a system for dividing powers between its different political levels. The distribution of powers between the cantons and the Confederation is laid down in Art. 3 of the Federal Constitution of the Swiss Confederation of April 18, 1999 (RS 101; hereinafter referred to as the Federal Constitution), which stipulates that the cantons are competent insofar as their sovereignty is not limited by the Constitution and that they therefore exercise all rights that are not delegated to the Confederation. Consequently, under Article 42 of the Federal Constitution, the Confederation performs only those tasks expressly assigned to it by the Constitution. It has what is known as subsidiary competence.
2 In the field of culture, Article 69(1) of the Federal Constitution provides that this is the responsibility of the cantons. However, paragraph 2 of the same article qualifies this principle by stating that the Confederation may “promote cultural activities of national interest and encourage artistic and musical expression, in particular through the promotion of education.” This federal power “is not limited to financial support but also extends to the preservation of cultural heritage.” It was on the basis of this provision, among others, that the Federal Assembly adopted the Federal Act on the International Transfer of Cultural Property of June 20, 2003 (RS 444.1; Law on the Transfer of Cultural Property, hereinafter referred to as LTBC).
3 The protection of nature and heritage is also one of the prerogatives of the cantons (Art. 78 para. 1 of the Federal Constitution). However, the Confederation must take into account the objectives of nature and heritage protection in the performance of its tasks (Art. 78 para. 2 of the Federal Constitution).
4 Foreign affairs fall within the competence of the Confederation under Art. 54 para. 1 of the Federal Constitution. It may therefore conclude international treaties with various states. Nevertheless, it must take into account the powers of the cantons and safeguard their interests (Art. 54 para. 3 of the Federal Constitution). Thus, even if the Confederation could in principle conclude treaties on matters falling within the competence of the cantons, the utmost caution is required.
5 Although the Federal Assembly was able to adopt the LTBC on the basis of the various constitutional provisions mentioned above, there is no formal legal basis expressly establishing the division of powers between the cantons and the Confederation in the area of cultural property transfers. It is generally accepted that the cantons have the power to legislate on exports, with the exception of objects in the federal collections and objects of national importance, for which the Confederation is responsible for regulating exports. It should be noted that this exception does not affect the parallel competence of the cantons, which cannot be subject to any restrictions on their ability to legislate on the export of cultural property outside their territory, provided that they comply with higher federal law in accordance with the general principle of the hierarchy of norms.
As a result of this division of powers, the LTBC has “very limited scope with regard to cultural property belonging to the cantons,” since the latter are in fact empowered “to determine for themselves how they intend to protect the cultural heritage located on their territory.” It is precisely in order to preserve these cantonal powers that the federal inventory under Art. 3 LTBC includes only property belonging to the Confederation. Art. 4 LTBC was introduced so that cantons that regulate the export of their cultural property and have cantonal inventories can link them to the federal inventory. According to some authors, Art. 4 LTBC would also allow the cantons to create such inventories, which could then be linked. This interpretation seems questionable, since this power lies exclusively with the cantons. Some cantons had already legislated on this measure before the LTBC came into force.
6 Art. 4 LTBC constitutes an incentive measure aimed specifically at the cantons, to the exclusion of the municipalities, which Bandle, Gabus and Renold consider regrettable "because municipalities are often the main owners of cultural property ." Nevertheless, cantonal law may still provide for the establishment of inventories for property belonging to municipalities. However, these inventories may not be linked to the federal inventory under Art. 4 para. 1 LTBC.
II. The possibility of linking cantonal inventories to the federal inventory
7 Art. 4 para. 1 LTBC provides that "in order to facilitate border controls, cantons that regulate the export of cultural property located on their territory may link the following to the federal database [i.e. the federal inventory]:
a. their inventories of cultural property;
b. inventories of cultural property in private ownership, provided that the owners consent.".
This provision guarantees the cantons, provided they make use of it, better protection of movable cultural property located on their territory, in particular those that are freely accessible to the public and are often less secure. It makes it possible to strengthen border controls by facilitating access to cantonal inventories via the electronic link connecting them to the federal inventory. Consequently, although it is not an obligation, it seems particularly advisable for the cantons to make use of the opportunity offered by Art. 4 para. 1 LTBC.
8 Art. 2 para. 1 sentences 1 and 2 of the Ordinance on the International Transfer of Cultural Property of April 13, 2005 (RS 444.11; Ordinance on the Transfer of Cultural Property, hereinafter referred to as OTBC) specifies that the aim is to create a computer link between the various inventories and not to integrate the content of the cantonal inventories into the federal inventory. In order to benefit from this, the cantons must therefore logically compile their inventories in electronic form. The implementation details are regulated by the Federal Office of Culture (FOC) (and not by the specialized service) in agreement with the cantons (Art. 2 para. 1 sentence 3 OTBC). However, the specialist service is required to cooperate with the cantonal authorities and advise them (Art. 18(b) LTBC). This obligation requires it, in particular, to “assist [...] them in drawing up and linking their inventories of cultural property.” The link between the inventories is limited to the dissemination of information on the content of the cantonal inventories and has no legal effect as such. The various legal effects are dealt with in Art. 4 para. 2 LTBC and will be discussed below (infra para. 11 ff.).
In order for the mechanism of cross-referencing between inventories via electronic links to function properly, the Confederation must ensure that the cantonal inventories are freely accessible to the authorities and the public via the internet (Art. 2 para. 2 OTBC). In practice, information on the inventories of the cantons of St. Gallen, Basel-Landschaft, Fribourg, Vaud, and Ticino can be found on the website of the Federal Office of Culture (hereinafter: OFC). The only inventory directly accessible to the public via a link is that of the canton of St. Gallen. The others, which are not public, must be requested from the “contact persons” whose email addresses will be listed on the above-mentioned website in the first half of 2025.
9 In accordance with Art. 4 para. 1 LTBC, cantonal inventories that may be linked to the TBC inventory may contain two types of cultural property: those owned by the canton itself and those belonging to private individuals.
No special precautions need to be taken with regard to property owned by the canton, as it belongs to the canton and the canton may dispose of it freely under Art. 641 para. 1 CC. The situation is somewhat different for privately owned property. Cantons that decide to link their cantonal inventories of cultural property belonging to private individuals must first obtain the consent of the owners (Art. 4 para. 1 let. b LTBC). The inclusion of cultural property in the cantonal inventory and the digital reference to the federal inventory must therefore be voluntary. In this regard, Gabus and Renold emphasize that “this is a service offered to the public, which is not accompanied by any obligation.” It should be noted, however, that this appears to be the only way for a private individual to ensure real protection of their property by allowing them to attach various restrictive effects (in particular those provided for in Art. 4 para. 2 LTBC). In practice, the Confederation cannot require an export license or prohibit the permanent export of cultural property belonging to private individuals if the owner refuses to give their consent. During the consultation process, many voices were raised in favor of not including cultural property belonging to private individuals in cantonal inventories. However, as this is a matter falling within the exclusive competence of the cantons, the LTBC cannot provide a concrete answer.
10 According to Art. 2 para. 3 OTBC, the content of inventories is the responsibility of the cantons. The same applies to the procedure for listing and removing cultural property. Consequently, the LTBC and its implementing ordinances do not contain any rules on this subject and reference should be made to the relevant cantonal legislation. In addition, cantonal legislation may provide for the possibility of drawing up inventories for property belonging to municipalities (supra para. 6). However, as these are not mentioned in Art. 4 para. 1 LTBC, they cannot be linked to the federal inventory.
III. The effects of listing cultural property in cantonal inventories
11 Art. 4 para. 2 LTBC deals with the legal effects of the inclusion of cultural property in one of the cantonal inventories. It provides that “the cantons may declare that cultural property listed in their inventories cannot be acquired by prescription or in good faith and that the right to restitution is not subject to prescription.”. These effects are identical to those of the federal inventory under Art. 3 para. 2 LTBC, with the exception of the export from Switzerland of cultural property listed in cantonal inventories, which is not dealt with in Art. 4 para. 2 LTBC but in Art. 24 para. 2 OTBC. The aim is to produce “an effect of symmetry with the property of the Confederation, allowing for greater transparency for important cultural property.”
It is up to the canton to determine, through its legislation, the various effects of inclusion in the inventory of cantonal property and in the inventory of privately owned property. These may therefore vary depending on the choices made by the cantons. It should be noted that the effects of the cantonal inventory of cultural property belonging to private individuals may be identical or different from those of the cantonal inventory of property owned by the canton. According to Gabus and Renold, it would seem appropriate for them to be identical in order to avoid any confusion. However, in practice, this is not the case.
In addition, the cantons must also determine in their legislation the various consequences of the unlawful export from the canton and/or Switzerland of cultural property listed in one of the inventories.
A. Effect relating to the impossibility of acquisition by adverse possession (Art. 4 para. 2 LTBC)
12 This effect is identical to that provided for in Art. 3 para. 2 let. a LTBC relating to the federal inventory.
13 Art. 728 para. 1 CC provides that anyone who has possessed another person's property peacefully and without interruption for a specified 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 results in the automatic extinction of the previous owner's right of ownership.
14 Cultural property listed in cantonal inventories may, by virtue of the effect introduced by Art. 4 para. 2 LTBC, enjoy additional protection, provided that cantonal law so provides. If this is the case, they cannot be subject to acquisitive prescription even if the statutory period has expired and the acquisition of ownership by prescription would normally occur.
B. Effect relating to the impossibility of acquisition in good faith (Art. 4 para. 2 LTBC)
15 This effect allows cultural property listed in cantonal inventories to benefit from the same protection, with regard to acquisition in good faith, as property listed in the federal inventory.
16 Art. 714 para. 2 CC provides that "anyone who, in good faith, is put in possession of movable property as owner acquires ownership of it, even if the transferor was not entitled to transfer it; ownership is acquired as soon as the transferee is protected under the rules on possession [i.e. Art. 933 to 935 CC] ."
17 If cantonal law provides in its legislation that acquisition in good faith is not possible, then the purchaser in good faith will not be able to acquire ownership of property transferred to them, even if they should, in principle, be protected by law.
C. Effect on the imprescriptibility of the action for restitution (Art. 4 para. 2 LTBC)
18 This effect is identical to that provided for in Art. 3 para. 2 let. b LTBC for cultural property listed in the federal inventory.
19 In principle, the right to bring an action by the previous possessor under Art. 934 para. 1bis CC, which is aimed at the restitution of the property, expires within 30 years of the involuntary dispossession (absolute time limit) and one year from the moment when the claimant became aware of the location of the property and the identity of the current possessor (relative time limit).
20 However, if cantonal legislation so provides, cultural property listed in cantonal inventories may enjoy greater protection in that the action becomes, in accordance with Art. 4 para. 2 LTBC, imprescriptible. The claimant may therefore bring the action at any time, even if the statutory time limit under Art. 934 para. 1bis CC has expired, since in this case the cantonal legislation on inventories would introduce an exception.
D. Effect on the export of cultural property outside Switzerland (Art. 24 para. 2 OTBC)
21 As mentioned above, each canton decides for itself whether and, if so, how it wishes to regulate the export of cultural property from its territory and what the consequences of illegal export are.
22 Under Art. 24 para. 2 OTBC, cultural property listed in one of the cantonal inventories may only be exported from Switzerland with the authorization of the competent cantonal authorities, provided that this is required by the legislation of the canton concerned. It is up to the canton to designate the authorities competent to decide on applications for export authorizations. Conversely, cultural property whose export is not regulated by the canton does not require such authorization.
23 The cantons must exercise caution when subjecting privately owned goods located on their territory to export authorization, as such a measure is likely to restrict the rights of the owner. Ownership is a fundamental right guaranteed by the Federal Constitution, and any expropriation or restriction that amounts to expropriation must be fully compensated (Art. 26 para. 1 and 2 of the Federal Constitution). In principle, the owner may freely dispose of his property within the limits of the law (Art. 641 para. 1 of the Civil Code). Making the export of property subject to authorization therefore restricts the right to dispose of it freely. Thus, an owner who decides, for example, to sell their property or to settle permanently in another canton or abroad must apply to the competent authorities of the canton concerned for authorization to export the property listed in the inventory. In this regard, the Federal Court ruled in the “Balli” case that an absolute prohibition on exporting cultural property belonging to a private individual outside the canton constitutes a serious restriction of their right of ownership. As such, it amounts to material expropriation, which must be compensated in accordance with Art. 26 para. 2 of the Federal Constitution. However, "this pitfall can be avoided by the canton by requiring the owner's consent for the inclusion of private cultural property in the inventory ." Indeed, the owner's consent as a condition for the listing of the property would allow the owner to remove their property from the inventory in the event of sale or export. This would mean that as soon as the owner revoked their consent to the listing of the property, it would have to be removed from the cantonal inventory. In various cantons, notably Vaud, Bern, and St. Gallen, the registration of privately owned property is subject to the conclusion of an agreement with the owner, which can of course be terminated subject to the notice period specified in the agreement. The possibility of termination is thus provided for upon registration, thereby allowing the various effects mentioned above to be lifted. The property could thus be sold or exported freely.
24 The possibility offered to the cantons by Art. 4 para. 1 LTBC to link their inventories to that of the Confederation strengthens the control of the transfer of property at the border (supra para. 7). It also guarantees better legal protection in the event of the unlawful transfer of cultural property abroad. This system of cooperation makes it possible to compensate for the lack of effectiveness of cantonal legislation, which, on the one hand, only protects property located within their territory and, on the other hand, can easily be circumvented by moving the property from one canton to another, where export from Switzerland would not be restricted. It should be noted that export abroad is considered illegal when a protected cultural property is first transferred to another canton with no export regulations and then abroad. As cross-border control is the exclusive responsibility of the Confederation, the latter will only take cantonal export restrictions into account if the object is included in a cantonal inventory linked to its own.
25 In the event of the unlawful export of cultural property listed in a cantonal inventory, the canton concerned may request the Federal Council to take return action with the other States Parties to 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: 1970 UNESCO Convention) under Art. 6 para. 2 LTBC. This is the same option available to the Confederation for items listed in the federal inventory. This action may take various forms, namely: traditional legal action, diplomatic proceedings, enforcement proceedings or a request for international mutual assistance in criminal matters. Illegal export is defined as a situation where an object “has been removed from its territory of origin in violation of national legislation on the protection of cultural heritage [in casu, the legislation of the canton concerned] [...]”.
IV. Practice in the various cantons (comparative cantonal law)
26 The aim of this summary presentation is to illustrate, through their respective legislation, the different choices made by the cantons with regard to the protection of movable cultural heritage. The sample of cantonal legislation covered is intended to be representative and focuses mainly on the cantons of Geneva, Vaud, Fribourg, Bern, St. Gallen and Ticino.
A. Geneva legislation
27 As the cantonal legislature has given priority to built heritage and nature, the canton of Geneva has enacted little legislation on the protection of movable cultural property. However, two texts do provide some information on this subject. These are the Geneva Law on the Protection of Monuments, Nature and Sites of June 4, 1976 (LPMNS/GE; RS/GE L 4 05) and the Regulations for the Implementation of the Law on the Protection of Monuments, Nature and Sites of March 29, 2023 (in its revised version) (RPMNS/GE; RS/GE L 4 05.1). In line with cantonal policy, the scope of application mainly covers built heritage and natural sites (Art. 1(a) and (b) and Art. 4 LPMNS/GE). However, the law and its regulations also apply to a limited category of cultural property, namely movable antiques located or found in the canton (Art. 1(a) LPMNS/GE).
28 In terms of heritage protection proper, Geneva legislation provides for two major measures: inventory and classification.
1. Inventory (Art. 7 to 9 LPMNS/GE and Art. 11 to 15 RPMNS/GE)
29 Art. 7 para. 1 LPMNS/GE provides for the establishment of an inventory of buildings worthy of protection within the meaning of Art. 4 LPMNS/GE. This inventory therefore only concerns immovable property, excluding movable cultural property, which is the subject of our study. Most of the effects of the inventory relate to the obligation to preserve the listed building (Art. 9 LPMNS/GE).
2. Classification (Art. 10 to 23 LPMNS/GE and Art. 16 to 21 RPMNS/GE)
30 This legal mechanism applies to real estate (Art. 10 para. 1 LPMNS/GE) and, by analogy, to movable objects, in accordance with Art. 26 para. 1 LPMNS/GE.
31 The request or proposal for classification of an asset may come from various private or public entities but, a priori, not from the owner themselves (Art. 16 RPMNS/GE). The latter is informed of the initiation of the classification procedure for their property and is invited to submit their comments within 30 days (Art. 12 para. 1 and 2 LPMNS/GE and Art. 17 para. 2 RPMNS/GE).
32 The effects of classification, as provided for in Articles 13, 15, and 16 LPMNS/GE, are dominated in their wording by a certain idea of monumentality. However, the reference in Art. 26 para. 1 LPMNS/GE implies similar effects with regard to the preservation of movable property. Thus, a classified movable property should not undergo any “change to its original state” (Art. 13 para. 1 LPMNS/GE), nor be destroyed (Art. 15 para. 1 LPMNS/GE). The State Council may also lay down obligations regarding public access (Art. 16 LPMNS/GE). In addition, movable objects covered by the law, i.e. those "of aesthetic, artistic, historical or scientific interest, found or located in the canton “ (Art. 26 para. 1 LPMNS/GE) and which have been classified, may not be disposed of without notifying the competent authority and providing ”the surname, first names and address of the new owner or holder" (Art. 26 para. 2 LPMNS/GE).
33 However, the legislation currently in force in the canton of Geneva does not provide for any specific mechanisms for claiming or returning such objects. Furthermore, as the movement of classified movable property is not subject to authorization but only to notification of the competent authority, no link with the federal inventory is currently planned.
B. Legislation in Vaud
34 The canton of Vaud has specific regulations on the protection of movable cultural property through the Law on Movable and Intangible Heritage of April 8, 2014 (LPMI/VD; RS/VD 446.12) and the Implementing Regulations for the Law on Movable and Intangible Heritage of April 1, 2015 (RLPMI/VD; RS/VD 446.12.1). The LPMI/VD applies, among other things, to movable cultural heritage located in the canton of Vaud and aims to preserve, conserve, and enhance it (Art. 2 para. 1 let. a LPMI/VD cum Art. 1 para. 1 let. a LPMI/VD).
35 The law provides for two main safeguarding measures, namely registration and inventory.
1. Registration (Art. 9 LPMI/VD and Art. 5 RLPMI/VD)
36 This is essentially a measure introduced to establish, in the form of a list, the movable cultural property of interest to the canton (Art. 9 para. 1 LPMI/VD).
37 Unlike the inventory, the inclusion of movable cultural property in the census has no effect, in that it does not create any rights or obligations for its owner (Art. 5 para. 1 RLPMI/VD).
2. The inventory (Art. 10 to 24 LPMI/VD and Art. 6 RLPMI/VD)
38 In accordance with Art. 11 para. 1 LPMI/VD, in order to be included in the inventory, movable cultural property must satisfy two conditions, namely: 1. it must have a significant connection with the canton of Vaud (letter a) and 2. it must be of significant interest to the collections of cantonal heritage institutions, the population or visitors to the canton (letter b). Paragraph 2 of the same article specifies that cultural property owned by the state that is part of the collections of cantonal heritage institutions is, in principle, automatically included in the inventory.
39 Pursuant to Art. 12 para. 1 LPMI/VD, the content of an inventory entry includes a description of the cultural property, its significance and, where applicable, the dangers threatening it (letter a), various photographs or reproductions of the property (letter b), a description of the protective measures already taken (letter c) and a list of necessary or desirable protective measures (letter d).
40 As mentioned above, cultural property belonging to the canton is automatically included in the inventory (Art. 11 para. 2 and 21 para. 2 LPMI/VD).. Cultural property owned by private individuals may only be entered in the inventory with their prior consent (Art. 21 para. 3 LPMI/VD). The procedure for registering such cultural property may be initiated by the department or by the owner themselves (Art. 22 para. 1 (a) and (b) LPMI/VD). When the procedure is initiated by the department, the latter must, as far as possible, request the owner's comments (Art. 22 para. 2 LPMI/VD). Furthermore, in accordance with Art. 23 para. 1 LPMI/VD, the registration of an object belonging to a private individual is subject to the conclusion of an agreement between the owner and the canton.
41 Registration in the inventory has various effects, which are regulated in Articles 15 to 19 LPMI/VD. Cultural property owned by the canton is, in principle, inalienable and may not be permanently exported from the canton (Art. 15 para. 1 LPMI/VD).. However, Art. 15 para. 2 LPMI/VD provides for an exception, as the department may authorize disposal under certain conditions. These effects apply only to property owned by the canton, to the exclusion of cultural property belonging to private individuals. Art. 16 para. 1 and 2 LPMI/VD provides for other effects applicable to both cantonal property and property belonging to private individuals. These include the impossibility of acquiring such property by acquisitive prescription or in good faith, and the imprescriptibility of the right to restitution. These effects are precisely those that the cantons may provide for under Art. 4 para. 2 LTBC. The State also has a right of first refusal on movable cultural property listed in the inventory in the event of sale by its owner (Art. 26 para. 1 LPMI/VD). This measure naturally applies only to cultural property in private hands. Under Vaud legislation, therefore, the effects of listing an item in the inventory do not actually limit the owner's right to dispose of it, since the owner retains full power to sell or export it.
42 The establishment of the inventory and the registration of cultural property are the responsibility of the department (Art. 10 para. 1 and 21 para. 1 LPMI/VD). According to Articles 13 para. 1 and 14 para. 1 LPMI/VD, the inventory must be public and linked to the federal inventory in accordance with Art. 4 para. 1 LTBC. In practice, the Vaud cantonal inventory is not immediately available on the website of the Federal Office of Culture (OFC) and it is necessary to contact the Movable and Intangible Heritage Unit of the Directorate General for Culture to consult it.
C. Legislation in Fribourg
43 The canton of Fribourg regulates the protection of movable and immovable cultural property located on its territory through the Law on the Protection of Cultural Property of November 7, 1991 (LPBC/FR; RS/FR 482.1) and the Implementing Regulations of the Law on the Protection of Cultural Property of August 17, 1993 (RELPBC/FR; RS/FR 482.11).
44 The LPBC/FR governs the protection of cultural property within the meaning of the LTBC as well as cultural property protected by 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 therefore provides for various measures applicable in times of peace (Art. 19 to 31 and Art. 44 to 48 LPBC/FR) and in times of conflict (Art. 32 to 25 LPBC/FR). With regard to measures relating to the protection of cultural property in times of peace, the Fribourg law provides for three main measures: registration, protection and inventory.
1. Registration (Art. 44 to 47 LPBC/FR and Art. 47 to 53 RELPBC/FR)
45 Art. 44 para. 1 LPBC/FR provides that the State shall establish a register, in the form of a descriptive list, of the cultural property referred to in Art. 19 that are of interest to the canton. Art. 19 para. 1 let. b LPBC/FR mentions in particular movable cultural property belonging to legal entities governed by public law or canon law (ch. 1) as well as those belonging to private individuals insofar as they are of exceptional importance to the cultural heritage of Fribourg or whose protection is requested by the owner (section 2).
46 It contains information on the value of the object as cultural property and on its state of preservation (art. 47 para. 1 RELPBC/FR). In accordance with Art. 50 para. 1 RELPBC/FR, separate inventories are drawn up for cultural property belonging to the State (letter a), that belonging to legal entities governed by public law and canon law (letter b), that belonging to private individuals (letter c) and archaeological cultural property (letter d).
47 This measure is intended to inform the owner, the authorities and the public (Art. 45 para. 1 LPBC/FR). The aim is to bring to their attention the various cultural property located within the territory of the canton. To this end, Art. 52 para. 1 RELPBC/FR provides that “the descriptive inventory of the cultural property listed and the related documentation may be consulted by the owners concerned and by any person who can demonstrate a legitimate interest.” The inventory also serves as a database for possible additional protective measures (see below para. 49). In principle, as is the case in the canton of Vaud, the inclusion of a cultural property in the inventory has no legal effect on the owner (see above para. 37).
2. Placing under protection (Art. 19 to 24 LPBC/FR and Art. 17 to 25 RELPBC/FR)
48 Under Art. 19 para. 1 let. b LPBC/FR, movable cultural property belonging to a legal entity governed by public law or canon law (ch. 1) and movable cultural property belonging to a private individual may be placed under protection if it is of exceptional importance to the cultural heritage of Fribourg or if its protection is requested by the owner (para. 2). The wording of this provision implies that movable cultural property of exceptional importance to the cultural heritage of Fribourg may be placed under protection without the consent of its owner.
49 Art. 17 para. 1 RELPBC/FR provides that the protection of movable cultural property falls within the competence of the Directorate. The procedure may be initiated by the subcommittee for movable cultural property or by the owner. The subcommittee may propose to the Directorate that items listed in the inventory be placed under protection (Art. 18 para. 1 RELPBC/FR). It is therefore on the basis of the inventory that the latter proposes various items requiring additional protection (supra para. 45–47). In such a case, the Directorate notifies the owner and sets a deadline for them to decide (Art. 18 para. 2 RELPBC/FR). The owner may also request that their movable cultural property be placed under protection by submitting a request to the subcommittee (Art. 19 para. 1 RELPBC/FR). In accordance with Art. 21 para. 1 RELPBC/FR, movable cultural property is placed under protection by decision or by contract. In either case, the decision or contract must expressly mention the various effects of the protection (Art. 21 para. 2 RELPBC/FR).
50 The first effect, of a general nature, relates to the obligation of the owner to preserve the object (Art. 23 para. 1 LPBC/FR).
In the case of property owned by legal entities governed by public or canon law, such property may not be disposed of without the authorization of the Directorate (Art. 24 para. 1 LPBC/FR).
A priori, according to the law, the disposal of privately owned property is not subject to authorization. However, the State and the municipality have a right of preemption on cultural property that is of exceptional importance to the cultural heritage of the canton (Art. 25 para. 1 LPBC/FR). Individuals selling their property must therefore notify the competent authorities (Art. 26 para. 2 LPBC/FR and Art. 26 para. 1 RELPBC/FR). The period granted to the public authority – the state and the municipality, with priority given to the state – to exercise its right of preemption is three months from the date on which it becomes aware of the sale (relative deadline) and, in all cases, five years from the date of disposal (absolute deadline) (Art. 26 para. 1 LPBC/FR).
The placing of property under protection also has the effect of making the restoration of cultural property of exceptional importance to the canton subject to authorization by the Cultural Property Service (Art. 30 para. 2 LPBC/FR and Art. 29 para. 1 RELPBC/FR).
Finally, in accordance with Art. 31 para. 1 LPBC/FR, trade in protected property may “be subject to conditions or restrictions necessary for its protection or for the suppression of illicit trafficking.”. In practice, traders are therefore required to take the necessary measures to ensure the proper preservation of the goods and to record in a register the various transactions relating to cultural property of exceptional importance to the canton (Art. 30 para. 1 and 2 RELPBC/FR).
3. The inventory (Art. 48 LPBC/FR and Art. 54 RELPBC/FR)
51 Art. 48 LPBC/FR provides for the establishment of a cantonal inventory of protected movable cultural property, i.e. cultural property that is subject to protection in accordance with the above provisions. Neither the law nor its implementing regulations contain any provisions on its effects.
52 The inventory is maintained by the various departments of the Directorate, namely the Cultural Property Department and the Archaeological Department (Art. 48 para. 2 LPBC/FR cum Art. 55 para. 1, 56 para. 3 let. f and 57 para. 3 let. f RELPBC/FR). According to Art. 54 para. 3 RELPBC/FR, it may be published. In practice, as in the canton of Vaud, it is not freely accessible on the website of the Federal Office of Culture (OFC) and must be requested from the Fribourg Cultural Heritage Service (SBC).
D. Bernese legislation
53 Since January 1, 2001, the canton of Bern has regulated the protection of heritage located within its territory through the following two legal texts: the Heritage Protection Act of September 8, 1999 (RS/BE 426.41; hereinafter referred to as LPat/BE) and the Heritage Protection Ordinance of October 25, 2000 (RS/BE 426.411; hereinafter referred to as OPat/BE). The purpose of these legislative instruments is to regulate “the inventory, conservation and protection of movable and immovable heritage in the canton of Bern” (Art. 1 para. 1 LPat/BE).
54 Various protective measures are provided for, including: inventory, a list of movable heritage, and classification and a list of classified heritage assets.
1. Inventory (Art. 7 LPat/BE and Art. 3 OPat/BE)
55 Art. 7 LPat/BE provides that “owners of an object must allow the authorities to inventory and examine it.” They are required to cooperate in accordance with Art. 3 para. 1 LPat/BE. In the event of damage caused by the authorities during the inventory, the owners, provided they are private individuals, may claim compensation (Art. 7 para. 2 LPat/BE and Art. 3 para. 2 OPat/BE).
56 As in the two previous cantons, the inclusion of an item in the inventory does not, a priori, have any legal consequences for its owner.
2. The list of movable heritage (Art. 11 LPat/BE and Art. 6 to 11 OPat/BE)
57 According to Art. 11 para. 1 LPat/BE, the canton may draw up a list of movable heritage assets, provided that they are part of the public domain. This list includes only property belonging to the canton, its public institutions, public-law corporations or institutions jointly managed or largely co-financed by the canton or the municipalities (Art. 6 para. 1 and 2 OPat/BE). Consequently, privately owned property is not included.
58 The registration of an asset has the following effects: the asset is considered inalienable (Art. 11 para. 2 LPat/BE), it may only be permanently exported from the canton with the consent of the competent authority or the State Chancellery (Art. 11 para. 2 LPat/BE and Art. 10 OPat/BE) and must be kept and maintained in accordance with best practice (Art. 11 para. 3 LPat/BE). Since these effects do not apply to cultural property owned by private individuals, the question of possible material expropriation within the meaning of the “Balli” judgment does not arise (supra para. 23). This may explain the canton's rather restrictive position.
59 The competent authorities of the canton, listed in Art. 7 para. 1 OPat/BE, are each required to draw up a list of the movable heritage assets assigned to them (Art. 8 para. 1 OPat/BE). In accordance with Art. 8 para. 2 OPat/BE, these lists are public, subject to data protection legislation.
60 It should be noted that Art. 10 LPat/BE provides for the establishment of an inventory (and not simply a list) for immovable heritage. This reflects the fact that the canton of Bern does not appear to attach the same importance to immovable and movable property. The list is, in fact, a priori and by its effects, a less formal instrument than the inventory.
3. Classification and list of classified heritage assets (Art. 12 and 20 to 22 LPat/BE and Art. 17 to 18 OPat/BE)
61 Pursuant to Articles 20(1) LPat/BE and 12(1) cum Art. 17 OPat/BE, movable heritage assets belonging to private individuals may be classified by means of a public law contract between the owner and the canton, provided that the intact and long-term preservation of the asset is in the public interest. The contract must specify the scope of protection and the effects of classification (Art. 20 para. 1 LPat/BE). This is a voluntary classification in the sense that it only takes effect with the consent of the owner.
62 In accordance with Art. 21 para. 1 LPat/BE, classified cultural property is entered in the list of classified heritage property, provided that this is expressly stipulated in the contract concluded between the owner and the canton. Here again, the owner's consent is required. Neither the law nor the ordinance contain any provisions on the effects of the inclusion of movable cultural property in the list of classified heritage.
63 The competence to draw up this list lies with the Office of Culture (Art. 12 para. 1 LPat/BE and Art. 18 para. 1 OPat/BE). The list is public and can be consulted at the cantonal specialist service and the municipalities (Art. 12 para. 2 LPat/BE). It is not linked to the federal inventory.
E. Legislation in St. Gallen
64 The two pieces of legislation in the canton of St. Gallen relating to the protection of its cultural heritage are the Cultural Heritage Act of 15 August 2017 (Kulturerbegesetz, hereinafter KEG/SG; RS/SG 277.1) and the Cultural Heritage Ordinance of June 18, 2019 (Kulturerbeverordnung, hereinafter KEV/SG; RS/SG 277.12). The aim is to regulate the preservation and transmission of movable, immovable and intangible cultural property that forms part of the cantonal cultural heritage (Art. 1 para. 1 KEG/SG).
65 The canton has only one means of protecting its movable cultural heritage, namely placing the property under protection, which then leads to its inclusion in the cantonal inventory (Art. 8 to 20 KEG/SG and Art. 5 to 6 KEV/SG).
66 In accordance with Art. 8 KEG/SG, there are two ways of initiating the procedure for placing movable cultural property under protection: either by the owner or by the competent cantonal authority. In concrete terms, the protection of the property is effected either through an agreement between the owner and the competent department or by a decision of the government when the cultural property belongs to the canton, an institution or an autonomous foundation under public law (Art. 9 para. 1 KEG/SG). In accordance with Art. 5 para. 1 KEV/SG, the agreement between the owner and the Department of the Interior shall at least specify the object of the protection (letter a), the obligations of the owner and the other effects of the protection within the meaning of Art. 11 to 18 KEG/SG (letter b), as well as the duration of the contract and the conditions for its termination (letter c).
67 Art. 11 para. 1 KEG/SG provides that a cultural object placed under protection, whose owner has been dispossessed against his will, cannot be acquired in good faith and that the right to restitution is not subject to a statute of limitations. These effects are among those that the cantons may provide for under Art. 4 para. 2 LTBC.
The owner or possessor is also required to comply with various obligations relating to cooperation with the cantonal authorities and the preservation of the property (Art. 12 KEG/SG). In accordance with Art. 41 para. 1 let. a KEG/SG, anyone who fails to comply with these obligations is liable to a fine of up to CHF 30,000.
Art. 13 KEG/SG provides for a general prohibition on the permanent export of cultural property placed under protection abroad (letter a) and, in another canton, only if the property is of identity significance for the cantonal population (letter b). Where export restrictions constitute a restriction of ownership rights equivalent to expropriation, the private owner is entitled to compensation (Art. 14 para. 1 KEG/SG). This article is likely to be a consequence of the “Balli” judgment (supra para. 23).. Temporary export abroad is subject to authorization by the competent cantonal authority (Art. 15 para. 1 KEG/SG). Paragraph 3 of the same article specifies that the said authority may issue a general export authorization to certain institutions if they offer a guarantee that they will continue to fulfill the conditions set out in paragraph 2 letter b of this provision. b of this provision. In accordance with Art. 41 para. 1 let. b KEG/SG, anyone who illegally exports a protected cultural object is liable to a fine of up to CHF 30,000.
The disposal of property belonging to the canton and placed under protection requires the consent of the government (Art. 18 KEG/SG).
68 Pursuant to Art. 10 para. 1 KEG/SG, movable cultural property placed under protection (within the meaning of Art. 9 KEG/SG) shall be entered in the cultural property inventory. Art. 6 para. 1 KEV/SG regulates, for each item of movable cultural property entered in the inventory, the information that must be included in the inventory, insofar as this is known or can be established at reasonable cost. An item shall be removed from the inventory when it no longer constitutes part of the movable cultural heritage within the meaning of Articles 3 and 4 of the law (Art. 10 para. 1 KEG/SG).
69 The maintenance of the inventory is the responsibility of the competent cantonal authority, which must publish it on the internet. However, data enabling the owner (if a private individual) to be identified and the location where the object is kept are not published (Art. 10 para. 2 KEG/SG). Art. 10 para. 3 KEG/SG specifies that the competent cantonal authority is responsible for linking the cantonal inventory with that of the Confederation in accordance with Art. 4 LTBC. In practice, the inventory of the canton of St. Gallen is the only one that is public and directly accessible via the link provided for this purpose on the website of the Federal Office of Culture (OFC).
F. Legislation in Ticino
70 Ticino regulates the protection of movable and immovable heritage located on its territory through two pieces of legislation, namely: the Law on the Protection of Cultural Property of May 13, 1997 (Legge sulla protezione dei beni culturali, hereinafter: " the Law“; RS/TI 445.100) and the Regulation on the Protection of Cultural Property of April 6, 2004 (Regolamento sulla protezione dei beni culturali, hereinafter referred to as ”the Regulation"; RS/TI 445.110).
71 In order to protect cultural property located within the cantonal territory, the law provides for three instruments: registration, protection of property, and inventory.
1. The census (Articles 31 and 33 of the Regulation)
72 Pursuant to Article 31 of the Regulation, the Office for Cultural Property (UBC) collects, in the form of a regularly updated census, all information relating to movable cultural property.
73 With regard to access to data, Art. 43 para. 2 of the law applies by analogy (Art. 33 of the regulations). According to this, access to administrative data requires a legitimate interest, while other data is open to the public.
2. Protection (Articles 19 to 31 of the Act and Articles 17 to 24 of the Regulations)
74 Under Article 21(1) of the Act, movable cultural property belonging to recognized cultural institutions is protected ipso jure. Cultural property belonging to private individuals is only placed under protection if it is of exceptional importance to Ticino culture (Art. 19 para. 2 of the law).
75 In accordance with Art. 17 of the regulations, the procedure for placing movable property in private hands under protection may be initiated by the Cultural Property Office (UBC) or by the owner. In practice, protection is granted by means of an administrative decision by the State Council (Art. 21 para. 2 of the Act) or the conclusion of an administrative contract (Art. 18 para. 1 of the Regulations). Both the decision and the contract may be amended if necessary (Art. 18 para. 2 of the Regulations).
76 Placing cultural property under protection has various effects for the owner. One of these is the obligation to preserve the substance of the property by maintaining it regularly (Art. 23 of the Act).
The owner of a cultural property placed under protection is also required to obtain the authorization of the State Council before carrying out any intervention likely to alter the appearance or substance of the property (Art. 24 para. 1 of the Act). This obligation applies only to private owners. Recognized cultural institutions do not need to seek authorization to carry out any work on their property (Article 24(3) of the Act).
77 With regard to the possibility of disposing of protected property, Articles 26(1) of the Act and 21(2) and (3) of the Regulations stipulate that owners who wish to do so must immediately inform the Council of State, the Office for Cultural Property (UBC) and their municipality of residence. Anyone who intentionally fails to give this notification is liable to criminal penalties (Art. 49 para. 1(c) and para. 2 of the Act). The owner therefore has the option of disposing of his property freely, provided that he informs the competent cantonal authorities. The canton and the municipality then have a right of first refusal (Art. 31 para. 1 and 2 of the Act). The period for exercising this right is three months from notification of the sale (relative time limit) and expires at the latest two years after the disposal (absolute time limit) (Art. 31 para. 3 of the Act).
The disposal of protected movable property belonging to public bodies is subject to prior authorization by the Council of State (Art. 27 para. 1 of the law). Any disposal without authorization shall be considered null and void pursuant to Art. 27 para. 4 of the Act. In the event of an unlawful sale, the public entity is also liable to criminal penalties (Art. 49 para. 1 let. c and para. 2 of the Act).
78 Any change in the location of protected property within the cantonal borders must be reported without delay to the State Council and the Office for Cultural Property (UBC), with the proviso that recognized cultural institutions are exempt from this obligation (Art. 28 para. 1 and 2 of the Act and Art. 23 para. 1 of the Regulations).
Export outside the canton is subject to prior authorization by the State Council, in accordance with Art. 29 para. 1 of the law. This authorization requirement applies to both permanent and temporary exports. However, recognized cultural institutions are authorized by law to temporarily export their protected property (Art. 29 para. c3 of the law). Anyone who intentionally exports protected cultural property without authorization is liable to criminal penalties (Art. 49 para. 1 let. c of the law).
3. The inventory (Articles 42 to 43 of the Act and Article 32 of the Ordinance)
79 The Act provides for the creation of an inventory of movable cultural property placed under protection. The Office for Cultural Property (Office des biens culturels, UBC) is responsible for compiling and updating this inventory. (UBC). The latter must also distinguish between movable cultural property placed under protection and cultural property to be protected in the event of armed conflict or disaster within the meaning of the LPBC (Art. 42 of the Act and Art. 32 para. 1 of the Ordinance).
80 Art. 43 para. 1 of the Act specifies that the inventory shall include information sheets for each protected cultural property. In accordance with Art. 32 para. 2 of the Ordinance, these must at least indicate the name of the property (letter a), its location (letter b), ownership (letter c) and a description, the reason for and the scope of protection (letter d).
81 With regard to publication, access to administrative data is subject to a legitimate interest, while other data is open to the public (Art. 43 para. 2 of the Act). The website of the Federal Office of Culture (FOC) refers to a cantonal inventory in Ticino which is not directly accessible to the public and for which it is necessary to contact the UBC.
Bibliography
Official documents
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