The U.S. Court of Appeals has ruled that Sotheby’s cannot sue the Greek government after the country demanded that an antique equestrian statue be removed from a May 2018 sale and returned to the country because of its provenance doubtful.
The ruling, issued on June 9, could have repercussions for the US antiquities market, as it states that legal action against the country cannot be taken because it is not acting with a view to commercial interests.
The horse from the 8th century BC Geometric period was set to sell in May 2018 with an estimate of $150,000 to $250,000 from the collection of Howard and Saretta Barnet when the Greek Ministry of Culture questioned its origins after having discovered that it had been purchased in 1973 from Robin Symes, an art dealer who already been accused trafficking in looted antiquities. Ultimately, the bronze, which had been the cover lot of the sale, was removed the day before the auction until its provenance could be further researched.
In a highly unusual response, Sotheby’s continued the Greek government saying there is no evidence the horse was smuggled in violation of the law. In its complaint, Sotheby’s claims the bronze horse “was acquired legally and in good faith by the late Howard and Saretta Barnet 45 years ago and has been part of their collection ever since.” Additionally, the auction house and the collection’s heirs demanded that Greece provide proof that the work had been traded illegally, which the country was unable to do.
The court held, however, that the Foreign Sovereign Immunities Act (FSIA) does not provide jurisdiction over cases involving a sovereign entity’s exercise of protection of its cultural heritage, an activity that the Second Circuit has held to be sovereign rather than commercial in nature.
According to Leila Amineddoleh, a Greek lawyer, the court’s decision allows foreign governments to “continue communicating with art market participants to prevent the sale of illicit goods and protect consumers.”
“It’s huge,” Evangelos Kyriakidis, director of the Heritage Management Organization, said of the court’s decision. Until now, he explains, the burden of proof falls on auction houses who must ensure that the objects they sell do not violate any legislation. This decision, which was recognized in the European directive, ultimately strengthens this requirement and makes it more difficult to challenge in similar cases in the future.
“This has been a burden on the auction houses. If this case had progressed and the Greek state had been asked to provide evidence – even if the Greek state had won the case – it would have when even meant that the country of origin would have been asked to provide proof that there was a good reason to stop the sale rather than the auction house having to prove the legitimacy of the item, completely reversing the situation,” she said.
“While we are disappointed by yesterday’s decision, it has no impact on the core of this matter,” a Sotheby’s spokesperson said in a statement. “There is, and remains, no evidence to support Greece’s claim to ownership of the bronze sculpture. We are examining the next steps with our client.
