Dominique Calcò Labbruzzo
Holistic Law Firm, Zurich
calco@holistic-law.com

Introduction

Switzerland has long been a central hub for the international art market, and during both the National Socialist period (1933–1945) and the colonial era, it served as a transit and trading jurisdiction for cultural objects. Many works with a burdened provenance remain today in public museums, institutions financed by public funds and private collections. This historical context creates a particular responsibility for Switzerland to handle such objects with care, both ethically and legally. The country endorsed the Washington Principles in 1998 and subsequently supported the Vilnius Forum (2001) and the Terezín Declaration (2009), thereby committing to fair and just solutions in cases of Nazi-looted art. Several European jurisdictions, including Germany, France, Austria, the UK and the Netherlands, have already established dedicated bodies for assessing claims involving looted cultural property.^[1]

The Commission for Historically Problematic Cultural Heritage has been active in Switzerland as an independent advisory body since January 2026. It advises the Federal Council and Federal Administration on cultural heritage with a tainted historical background and can issue non-binding recommendations in individual cases.^[2]

Legal basis and institutional character

The Committee is anchored in the Cultural Property Transfer Act (CPTA) and the Ordinance on the Independent Committee for Cultural Heritage with a Burdened Past (VUKBK). Under article 8a(2) of the RVOV, it qualifies as a permanent administrative commission with an advisory function. It is not a court and does not issue binding decisions. Its role is to offer non-binding recommendations intended to support fair and just solutions.

Its members, appointed solely by the Federal Council, must collectively cover fields such as ethics, law, history, art history, provenance research, museology, politics and ethnology. No interviews with candidates seems to be foreseen during the appointment process: appointments happen on the basis of the requirements profiles defined by the Federal Council, as well as the publicly known track record and previous activities of the individuals concerned. Professional competence, balanced composition and impartiality are expected to ensure the integrity of the Committee’s deliberations.

Rationale: ethical duty and international alignment

Switzerland’s decision to create this Committee reflects the continued presence of historically burdened cultural property in its collections and its commitment to international standards for restitution. The mechanism also responds to a practical need: many institutions lack the resources or expertise to conduct complex provenance research, and private collections often hold objects for which ethical solutions are difficult to achieve without a neutral forum.^[3] The Committee is therefore intended to provide expert guidance, promote ethical governance and strengthen Switzerland’s standing in the international art market.

Competence and function

The Committee has two principal functions. First, it advises the Federal Council on matters concerning historically burdened cultural property, particularly in relation to objects held by the Confederation. This includes thematic questions of broader cultural-policy significance. Secondly, it may issue non-binding recommendations in individual cases involving Nazi-looted art or colonial-era acquisitions. Its recommendations should reflect a balanced assessment and provide both parties with a solution that can be perceived as fair and just. While deliberations remain confidential, the resulting recommendations are published in an appropriate form determined by the Committee, thereby contributing to transparency and impacting the market.

Eligibility and admissibility

Applications may be submitted by victims of Nazi persecution and their heirs, Swiss institutions or their legal carriers, and – regarding colonial-era claims – successor communities, their legal successors or states of origin.^[4] Applicants must demonstrate a direct connection to the object at issue and must provide documentation showing prior attempts at settlement and prior provenance efforts. No matter may proceed while litigation is pending. The Federal Office of Culture conducts the admissibility assessment before the Committee engages with a case.

Access to the Committee

Switzerland has adopted a hybrid system. In Nazi-era cases involving publicly funded Swiss institutions, unilateral access is permitted: heirs may apply without the consent of the holding institution. In contrast, colonial-era cases and disputes involving private collections require the consent of both parties.^[5]

Publication and transparency

Although the Committee’s internal deliberations are confidential, its recommendations will be made public in a form it considers suitable. Publication is expected to exert considerable influence, both ethically and economically, in an art market where reputational signals carry significant weight.

The legal concept of ‘burning’ in restitution practice

Restitution work must take into account not only legal and historical issues but also market realities. An essential concept in this regard is the ‘burning’ of an artwork – a non-physical impairment that results when a work becomes overexposed, is associated with unresolved disputes or is publicly rejected by the market. Burning has no statutory definition, yet it has profound implications for valuation, negotiation leverage, insurability and the practical resolution of claims. Attorneys must be attentive to these risks when handling sensitive provenance matters.

An artwork may be considered burned when it has failed publicly at auction, undergone indiscriminate circulation among dealers or auction houses or been prematurely associated with a dispute through press coverage. Even unverified concerns about authenticity or condition can leave a lasting stigma. Such impairment may reduce the recoverable value of a work, weaken the negotiation position of the party seeking restitution and diminish the willingness of institutions or market actors to cooperate.

Attorneys therefore have a duty to protect the market integrity of a work during the recovery process: before initiating a claim, counsel should assess whether litigation or public filing is necessary or whether private settlement or mediation might better preserve the work’s value. A comprehensive provenance dossier supports future rehabilitation and guards against misperception.

Conclusion

The Independent Committee for Cultural Heritage with a Burdened Past represents an important evolution in Switzerland’s restitution framework. It offers both opportunities and risks for reconciliation and for adding meaningful value to family history. When the recovery process is managed strategically, it can also enhance the value and integrity of the artwork itself. For these reasons, I strongly recommend engaging the specialised expertise of an art lawyer to guide the process.