Artwork restitution act: A necessary but insufficient solution
The Polish parliament passed the Act on Restitution of National Cultural Goods eight years ago, but the public is hardly aware of it. Nor is much known about how the act functions in practice. Nonetheless, the restitution of artworks remains a lively topic.
On 26 August 2025 the art world was electrified by the news that a painting by Giuseppe Ghislandi, aka Fra’ Galgario, Portrait of a Lady (Contessa Colleoni), had been found.
The canvas, regarded as lost during the Second World War, was part of a collection of over a thousand works owned by the Amsterdam-based Jewish art dealer Jacques Goudstikker, who died in an accident at sea while fleeing the German invasion in 1940. The collection was appropriated by a high-ranking official of the Third Reich, Friedrich Kadgien, a top adviser to Hermann Göring. In 1945 Kadgien, like many other Nazis, fled via Switzerland to Brazil, and then Argentina, settling near Buenos Aires.
The lost painting recently appeared on the website of a real estate agency, in a photo of the interior of a house offered for sale near Buenos Aires. It was spotted by Cyril Rosman, who was leading a journalistic investigation for the Dutch newspaper Algemeen Dagblad. It turned out that the house belonged to Kadgien’s daughter Patricia. Soon after this discovery, more objects from the Goudstikker collection were found on internet auction sites, offered for sale by Kadgien’s other children.
This story may serve as a point of departure for a broader examination of the issue of restitution of artworks looted from public and private collections in Europe. The search for these works has continued unabated since the end of the Second World War. Each find is greeted with celebration, but generates a range of legal issues for state institutions and the successors of the pre-war owners. The legal regulations only partially address these issues. This situation applies to Poland as well as other countries.
In 2017 Poland joined the group of countries deciding to facilitate the restitution process, by adopting the Act on Restitution of Cultural Goods of 25 May 2017. The act governs procedure, liability, and the rights of former owners and the State Treasury in the process of restitution of cultural goods, while transposing into Polish law Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State (recasting Regulation (EU) 1024/2012).
Proceedings for recovery of cultural goods
This raises the question of the extent to which the Act on Restitution of National Cultural Goods protects the interests of private persons seeking artworks lost during the war. The database of wartime losses maintained by the Polish Ministry of Culture and National Heritage currently has over 70,000 entries. Many of the entries involve objects that were once part of private collections gathered during the interwar period. Some of these collections were impressive, such as those of Andrzej Rotwand, Edward Rejcher, Gustaw and Julia Wertheim, and Bronisław Krystall (interestingly discussed in recent books in Polish by Milena Woźniak-Koch, Collection and Identity, and Mariusz Klarecki, Looted Warsaw). Private collections were destroyed, stolen or dispersed, but the heirs haven’t stopped searching for the lost works. For example, the Polish media continue to report on further discoveries of objects from the collections of the aristocratic Radziwiłł and Czartoryski families.
Directive 2014/60/EU applies “only to cultural objects unlawfully removed from the territory of a Member State on or after 1 January 1993,” if they were part of public collections. It doesn’t distinguish between private and public losses after that date. Meanwhile, the Polish restitution act has a broader scope, as it does not distinguish between objects from public collections or from private collections, not does it set a dividing line in time. It refers to all cultural objects unlawfully removed from the country, without any time restrictions, and thus also applies to objects lost by private collectors in connection with wartime actions.
The Polish act also employed the term dobro kultury (“cultural good”), which is broader than the term previously used in Polish law, zabytek (“monument” or “relic”). This extends protection not just to items regarded as a cultural “monument,” but also to archival and library materials, as well as items not qualifying under the legal definition of a zabytek but entered in an inventory of museum pieces. The notion of dobro kultury has an analogue in the system of European law (“cultural object”) and internationally, which is relevant for the cross-border aspect of restitution procedures.
But first and foremost, the Polish act is intended to govern the procedure for what are referred to in Directive 2014/60/EU as “return proceedings,” which under the directive should include two phases.
The first phase is an external proceeding, conducted outside the country by the central authorities of the member states. Here, Poland’s interests are represented by the Ministry of Culture and National Heritage, often with the support of the diplomatic corps of the Ministry of Foreign Affairs. The proceeding is conducted in the state where the lost cultural object is located, under the law in force in that country. The possibility of initiating return proceedings is limited in time, as claims must be asserted within three years after Poland became aware of the location of the cultural object and the identity of its possessor or holder.
The jurisdiction of the foreign court is limited to determining whether the restitution claim involves a cultural object within the meaning of that country’s law and whether the cultural object was unlawfully removed from the territory of the requesting state. If the answer to both of these questions is affirmative, it will result in return of the cultural object regardless of expiration of the statute of limitations, which is crucial for the effectiveness of return proceedings. In turn, if the possessor of the cultural object to be returned acquired the object in good faith, the possessor is entitled to compensation to be paid by the Polish state.
The external phase ends with the import of the cultural object into Poland and issuance of a seizure decision by the administrative authority (under the customs regulations). Significantly, the actions taken in this phase lie entirely within the domain of the state, and do not depend on the will of the prior owners of the recovered object. And up until this moment, all costs—administrative and court fees, and fees for transportation, insurance, storage, security and conservation—are borne by Poland.
The second phase begins upon importation of the cultural object into Poland, and is carried out before the common court under Art. 610¹–610⁵ of the Civil Procedure Code (forfeiture of goods based on customs law). The ruling by the court should result in either forfeiture to the State Treasury and placement of the object in the museum resources of a cultural institution, or return of the object to private persons. But the private persons must be capable of demonstrating title of ownership of the recovered cultural object up until the object was lost. It is often a challenge to provide evidence in this respect when the objects were lost during the Second World War, because the evidence may have been largely lost or destroyed. In short, private persons’ recovery of an object returned to Poland under the restitution act occurs based on a prior determination or confirmation of ownership by the court, and not by way of an administrative decision. Exactly what challenges this procedure may pose is hard to say at this moment, because there is no judicial practice yet to rely on.
To what extent does the Act on Restitution of Cultural Goods improve the legal situation of private persons?
Undoubtedly, the act, like the EU directive it is based on, prioritises the protection of the state’s cultural heritage over private interests. The lawmakers focused on creation of a legal framework primarily enabling the state to recover lost cultural objects.
The numerous critics of the act point out that the protection of the heirs of pre-war owners is inadequate, because it does not provide for the possibility of out-of-court recovery (e.g. buyback) of a lost cultural object after it is returned to Polish territory.
Problems in applying the act may also arise under insurance law, particularly with respect to works lost in the post-war period. Under the recovered property clause, an insurer that paid out the compensation for a stolen item becomes the owner of the item when it is later recovered. This generates a potential conflict between the State Treasury and the insurer.
A conflict between the restitution act and other laws may also arise out of the interpretation of Civil Code Art. 174 §2, under which it is possible to lose ownership of movable property not entered in the national register of lost cultural objects when a person who is not the owner has been in good-faith possession of the item for at least three years, and thus gains ownership of the item through prescription (zasiedzenie). Thus if a public institution has held for many years, in good faith, a cultural object not entered in the national register of lost cultural objects, it will not be possible for the heirs of the prior owners to recover the object, because the public institution has obtained title to the object through prescription.
Many of the shortcomings of the act result from the imperfections in Directive 2014/60/EU itself, which is lacking a range of provisions that would improve the cross-border restitution process. As the study prepared for the European Parliament “Cross-border claims to looted art” points out, “Two common problems are: (i) a lack of clear standards and procedures to address and resolve title issues, and (ii) the fact that cultural objects can be traded and possessed without documentation demonstrating their lawful provenance (ownership history), making it difficult to distinguish between artefacts that were unlawfully looted or lawfully obtained.”
The Polish state continues to recover lost objects thanks to the extensive efforts of officials from the Ministry of Culture and National Heritage and the Ministry of Foreign Affairs, often undertaken in conjunction with specialised legal institutions and foundations. The return to Poland of such masterpieces as Black Girl by Anna Bilińska, Jewish Woman with Oranges by Aleksander Gierymski, and Wassily Kandinsky’s Composition (a painting stolen in the 1980s), has been of great cultural value. It would be desirable for such essential tools as the Act on Restitution of National Cultural Goods to provide greater protection also to private persons. Artworks often have great sentimental value for the rightful owners. Under the law, the “integrity of cultural heritage” is protected to a greater degree, rather than private ownership, which is hard for the heirs of the previous owners to accept.
Agnieszka Jasińska, attorney-at-law, Private Client practice, Art & Culture practice, Wardyński & Partners
