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. Friday evening 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 go for between 150,000 and 250,000 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 Greek Geometric period horse. Howard Barnet passed away in the early ninenties, leaving the horse in the hands of his wife. In March 2017 Saretta died as well, following the transfer of ownership of the miniature to the 2012 Saretta Barnett Revocable Trust for her children.

The Barnet heirs decided to sell the 14-cm high horse at Sotheby’s. The auction was titled “The Shape of Beauty: Sculpture from the Collection of Howard and Saretta Barnet”. Sotheby’s began public marketing for the sale in February 2018, and released the catalogue in April. The Greek ministry got wind of the impending sale only shortly before the auction was to start. Dr. Elena Korka, 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 pulled the horse miniature from its auction. The auction house and the collection’s heirs 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 “without lawful justification,” and sought a declaratory judgment that the bronze horse was “acquired lawfully and in good faith by the late Howard Barnet.” 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.

Sprinkle in some crime

The mail also referred to the involvement of Robin Symes, from whom the Barnets bought the object in the seventies. At the time, Symes was a respected antiquities dealer in London. Later on, his reputation got quite sullied because of accusations of trading in looted art.

Understanding Symes’ role is important in order to fully comprehend the full power of the Barnet dispute. Symes and his partner, Christo Michaelides, conducted millions of dollars of business by unlawfully selling antiquities. Symes sold looted items through dealers, museums, and auction houses and laundered antiquities all over the planet. After his partner’s untimely death, Symes hid a hoard of plundered antiquities in Switzerland, the UK, and the US to conceal them from Michaelides’ family. Symes fabricated a multitude of lies about these items under oath in court proceedings, was held in contempt of court, and was ultimately sentenced to two years’ imprisonment.

Symes’ involvement immediately implicated the Barnet’s in international art crime and trafficking culture, alarming the Greek government once it realised the horse was to be sold in NY.

How to sue a government

The plaintiffs argued that many of these bronze horses in a similar style were fashioned throughout mainland Greece and Crete. 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 subject-matter jurisdiction. The defendant claimed, that foreign Governments could not be sued in America because of the Foreign Sovereign Immunities Act (“FSIA”). Sovereign states are presumed immune from litigation in US-American courts, but the FSIA deprives sovereigns from immunity when one of the Act’s enumerated exceptions applies. Generally speaking, immunity is respected when sovereigns commit public acts, or acts typically performed by governments, thus resulting in US courts lacking subject-matter jurisdiction over cases concerning immune parties.

In turn, Sotheby’s argued that Greece’s act of sending the urgent mail satisfied the conditions of such an exception. The commercial-activity exception allows a plaintiff to drag a foreign state before a judge when the alleged act is commercial in nature. The exception 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 with the plaintiffs, deciding the court had jurisdiction to hear the case because Greece did not have immunity based on the direct-effect clause of the commercial-activity exception in the FSIA.

Counsel for Greece did not accept this and the case was reffered to the United States Court of Appeal (Second Circuit) to decide on the matter of jurisdiction.

State immunology

Through a complicated argument based on the wording of the commercial-effect-clause in the FSIA, 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.

This latter law also declares the “Greek State shall care for the protection of cultural objects originating from Greek territory whenever they may have been removed from it and wherever they are located.” Criminal sanctions are imposed for the illegal acquisition of trading of antiquities.

The judges agreed. The nationalization of property is an explicitly sovereign act, and therefore 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 pursuant to the FSIA and no U.S. court has jurisdiction to hear the case. 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. However, the precedent established by the court’s decision is remarkable. For the first time, a sovereign nation attempting to protect their cultural heritage, while exercising police power through patrimony and nationalization laws, can legitimately red flag sales of affected antiquities without fear of litigation. The ramifications on future cases, like the case against the German government regarding the “Welfenschatz”, will be exciting.