Art Law: Update on the Lost Art Database Decision of the Federal Administrative Court

von Peter Bert

In March 2015, I had reported a decision of the Federal Administrative Court (Bundesverwaltungsgericht) dealing with an application to delete the entry of a painting from the Lost Art database, once it had been located. Setting aside the decisions of the First Instance Court and the Administrative Court of Appeal (Oberverwaltungsgericht), the Federal Administrative Court had decided that locating the painting was not enough for the entry to be deleted from the Lost Art database. It widened the mandate of the database and held that the painting can remain registered on the database as long as there is no clarity as to ownership (“Die Suchmeldung ist nicht schon mit dem Auffinden des Gemäldes rechtswidrig geworden, weil noch keine Klarheit über das endgültige Schicksal des Bildes besteht.”). The judgment did not convince me legally, nor did I think it did the parties a service.

I have now come across a case note of Boas Kümper* in a recent issue of Juristenzeitung. Boas Kümper reaches the same conclusion, but his analysis is much deeper and more elaborate than mine, and his criticism of the court much more fundamental. Kümper reviews the jurisdiction of the Federal Constitutional Court (Bundesverfassungsgericht) dealing with information provided and disseminated by state institutions (staatliches Informationshandel). He then applies the guidelines established in the jurisprudence of the Federal Constitutional Court to the Lost Art database case.

In short, Kümper finds that the Federal Administrative Court wrongly applies these guidelines. The cases in which the Federal Constitution Court had developed its guidelines dealt with circumstances where the state institutions have to disseminate information at short notice to deal with potential risks to the public at large, such as a risk of contaminated wine (as in the 1985 diethylene glycol wine scandal) ...

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