The ministry of culture in Greece has won a court ruling over Sotheby’s (published on June 9th) that may leave lasting effects on the market for ancient art. The case revolves around an 8th-century BC Greek equestrian statue in the Corinthian style. It was consigned to be sold in a May 2018 Sotheby’s auction from the collection of Howard and Saretta Barnet. A few days before the sale was to take place on the following monday, the Greek ministry contacted the auction house per mail. It claimed that the item, which was estimated to be sold for hundreds of thousands of dollars, was of dubious provenance and should be returned to Greece. And it succeeded in part.

History of a horse

Both Barnets were passionate art collectors. They accumulated artworks and antiques for over 40 years. Amongst them: an 8th century B.C.E. bronze statue of a horse. Howard Barnet passed away in the early ninenties, leaving the horse to his wife. In March 2017 Saretta died as well, following the transfer of ownership of the miniature to a trust for her children.

The Barnet heirs decided to sell the horse at Sotheby’s. The Greek ministry got wind of the impending sale only shortly before the auction was to start. The head of the General Directorate of Antiquities and Cultural, claimed that ownership of the figurine was questionable due to Greek patrimony laws and the UN Convention on Cultural Heritage.

After the Greek government sent its mail, Sotheby’s immediately removed the horse miniature from its auction, but hit hit back fast, demanding that Greece provides evidence that the work was traded illicitly, which the culture ministry was not able to do. They even filed a suit against the Hellenic Republic, claiming that it acted unjustly and sought a declaratory judgment that the bronze horse was acquired lawfully. The request also sought a ruling that Greece had no ownership rights and that Sotheby’s could “lawfully” sell the work. However, they did not seek monetary compensation for lost revenue from the miniature’s planned sale.

How to sue a government

The plaintiffs argued that many of these bronze horses in a similar style were fashioned throughout mainland Greece. Over a thousand similar objects are currently known to be in existence, and are shown around the world. Even the Louvre got their own horse. Thus, the Barnet’s acquired their figurine in good faith and consequently, their heirs could sell it as well.

As it happens quite often in art law cases involving nation states, Greece moved for the case to be dismissed on jurisdiction. According to the Foreign Sovereign Immunities Act (“FSIA”) sovereign states are presumed immune from litigation in US-American courts unless one of the Act’s enumerated exceptions applies. Generally speaking, immunity is respected when sovereigns commit public acts, or acts typically performed by governments. Sovereign states are supposed not to interfere with internal matters of others as a matter of mutual respect.

In turn, Sotheby’s argued that Greece’s act of sending the mail satisfied the conditions of such an exception. An exception for commercial activity allows a plaintiff to drag a foreign state before a judge, but it requires that the commercial act has a “direct effect” in the U.S. They also claimed the act of sending the letter was a private, and therefore inherently commerical act because only private entities have the ability to send letters claiming ownership of property. The district court agreed and ruled against Greece.

State immunology

In the next instance, Greece managed indeed to get immunity. The Greek government based its demand for the horse on the 1932 law on “National Antiquities” and a 2002 law on “Cultural Heritage in General” which make Greek ancient art ineligible for private ownership.

The judges of the Court of Appeals agreed that, as the nationalisation of property is an explicitly sovereign act, Greece was acting as a sovereign instead of a commercial power. Thus, the court held that Greece is immune from suit in the United States. The Second Circuit reversed and remanded the case back to the lower court, with instructions to dismiss.

Will the horse gallop home soon?

The figurine has not been returned to Greece yet, but the Greek Culture Ministry stated it would now seek repatriation of the figurine. Therefore, the ownership issues have not been resolved. It remains to be seen how the outcome will affecte future cases, like the the one against the German government regarding the “Welfenschatz”.