In November 2023, the Swiss Confederation decided to establish an Independent Commission for Cultural Heritage with a Problematic Past, which began its work in March 2026. This Commission has jurisdiction over both works looted during the National Socialist era and cultural property originating from colonial contexts. As an advisory body and an alternative dispute resolution mechanism, the Commission issues non-binding recommendations aimed at so-called “just and fair” solutions.
This article analyses the historical and legal context that led to the creation of the Commission, its organisation and powers, the conditions for bringing a matter before it and the issues raised by the parliamentary compromise on party consent, as well as the place of the Swiss model from a comparative law perspective.
Historical and Legal Context
The establishment of the Independent Commission for Cultural Heritage with a Problematic Past, hereinafter the “Commission”, cannot be fully understood without placing it in the historical context of the role played by Switzerland during the Second World War (Switzerland, National Socialism and the Second World War – Final Report of the Independent Commission of Experts Switzerland, Second World War, Zurich 2002, cited as: Bergier Report, p. 336 et seq.). Although Switzerland was not occupied by the Nazi regime and no looting took place there in the strict sense, it nevertheless constituted a major hub for the transit, storage and sale of looted artworks or so-called “flight assets” (Fluchtgut) between the 1930s and 1945 (Bergier Report, p. 337 et seq.).
Hundreds, if not thousands, of works of art thus passed through Switzerland, were kept in bank vaults, or were incorporated into private and public collections (Bergier Report, p. 345). The Swiss art market also benefited from emblematic sales, such as the 1939 Lucerne sale organised by Galerie Fischer, during which works classified as “degenerate art” (Entartete Kunst) were sold at prices far below their real value (Bergier Report, p. 345; Hershkovitch / Rykner / Maget, La restitution des œuvres d’art: solutions et impasses, Paris 2011). Even today, works with a problematic past can be found both in public museums and private institutions receiving public funding, as well as in private collections (Fact Sheet on the Independent Commission for Cultural Heritage with a Problematic Past).
Under direct pressure from the Allies, Switzerland adopted the Federal Council Decree of 10 December 1945 on actions for the restitution of property removed from occupied territories during the war, establishing an exceptional restitution regime. This regime allowed property to be claimed regardless of the good faith of the acquirer (Bergier Report, p. 419; RO 1945, p. 1030) and provided, in certain cases, for compensation to be borne by the Confederation (RO 1945, p. 1031).
Upon the expiry of this exceptional regime, Swiss law reverted to the ordinary rules of civil law, which afford particularly strong protection to the good-faith acquirer under Article 933 of the Swiss Civil Code, especially where the acquisition takes place on the art market or from an authorised third party.
This protection is not, however, absolute. Since the entry into force of the Federal Act on the International Transfer of Cultural Property (CPTA), art dealers and auction houses have been subject to specific duties of diligence and documentation under Articles 16 et seq. CPTA, in particular with regard to provenance checks and the identification of contracting parties (see also: UNESCO’s virtual museum, or the evolution of due diligence in the digital age). These statutory requirements are supplemented by professional standards, such as the ICOM Code of Ethics, which imposes enhanced ethical obligations on member museums in relation to provenance and acquisitions.
Moreover, limitation periods remain particularly short: one year from the time of knowledge and a maximum of 30 years under Article 934 paragraph 2bis of the Swiss Civil Code. These periods have now largely expired in the vast majority of looted-art cases (FOC Fact Sheet; Press Release of 22 November 2023). The result is a lasting gap between the historical justice sought by rightful claimants and the legal certainty guaranteed by civil law, making access to the courts largely illusory in practice (Piguet, Restitution d’œuvres d’art spoliées, in: JdT, 2001 I, p. 1526 et seq.).
This development is not only the result of historical awareness, but also of an explicit political impulse. Through the adoption of the Pult Motion, the Federal Assembly instructed the Federal Council to establish an independent commission competent to deal with cultural property with a problematic past.
In this context, in November 2023, the Swiss Confederation decided to establish an independent expert commission tasked with addressing, from a legal and ethical perspective, issues relating to works looted during the National Socialist era as well as cultural property originating from colonial contexts (FOC Fact Sheet; Press Release of 22 November 2023).
Initially, this instrument was introduced by ordinance, the former OCPCP, which entered into force on 1 January 2024, before being anchored in formal legislation as part of the Message culture 2025–2028, through the introduction of Article 18a CPTA and the adoption of a new ordinance, the OCPCP, which entered into force on 1 March 2026.
The Independent Commission for Cultural Heritage with a Problematic Past
The Commission is based on a deliberately broad concept of “cultural heritage with a problematic past”, covering objects whose provenance or transfer history raises questions in connection with National Socialism or colonial contexts.
Institutionally, the Commission is a permanent advisory body of the Confederation pursuant to art. 8a al. 2, de l’Ordonnance du 25 novembre 1998 sur l’organisation du gouvernement et de l’administration (OLOGA), read together with Article 1 OCPCP, and as an alternative dispute resolution mechanism (ADR). It is empowered to formulate recommendations aimed at “just and fair” solutions (Article 18a paragraph 2 CPTA; Article 3 OCPCP).
These solutions are not limited to a strict choice between restitution and non-restitution, but may include intermediate arrangements such as financial compensation, value-sharing, or other negotiated solutions. This approach follows in the tradition of the Washington Principles of 1998 on Nazi-confiscated art and the Terezín Declaration of 2009.
The Commission is composed of nine to twelve members, appointed by the Federal Council, bringing together multidisciplinary expertise in particular in law, ethics, history, art history, provenance research, museology and ethnology (FOC Fact Sheet). The requirements of impartiality, diversity of profiles and balance of viewpoints are presented as essential conditions for the Commission’s credibility and legitimacy.
On 28 January 2026, the Federal Council officially appointed the members of the Commission. It is chaired by former Federal Councillor Simonetta Sommaruga, assisted by Felix Uhlmann as vice-chair. The other members include professors of law, history and art history, specialists in provenance research, museum directors and historians.
This composition broadly reflects the multidisciplinary requirements set out by the Federal Council and makes it possible to address both issues linked to looting during the National Socialist era and those arising from colonial contexts. It nevertheless gives rise to certain reservations regarding the under-representation of states or communities of origin, an especially sensitive issue in the colonial context.
The Commission performs three types of tasks: it advises the Federal Council and the federal administration on general issues relating to cultural heritage with a problematic past; it advises them on how to deal with the relevant cultural property belonging to the Confederation; and it prepares, on a case-by-case basis and upon request, non-binding recommendations in specific disputed situations (Article 18a CPTA).
The Commission’s deliberations are not public, in order to allow for a calm and confidential examination of sensitive cases, while its recommendations may be published in an appropriate form (FOC Fact Sheet).
Referral and Procedure: Access to the Commission and the Scope of the Parliamentary Compromise
Any natural or legal person may refer a matter to the Commission (Article 4 OCPCP). In practice, however, in cases of Nazi-era looting, this will mainly concern victims and their heirs, as well as the institutions concerned or their supervisory authorities where the objects are located in public museums and collections. In cases linked to colonial contexts, referral is open to injured societies of origin as well as to states or entities succeeding them (FOC Fact Sheet).
In practice, it is likely that, in a colonial context, the Commission will mainly be seized by foreign states or public entities against Swiss museums, particularly public or publicly subsidised institutions. Private collectors appear unlikely to accept the Commission’s jurisdiction voluntarily, especially where it has no binding powers.
The Commission acts upon request and informs the parties of receipt of the request, while guaranteeing their right to be heard (Article 18a paragraph 4 CPTA). It only follows up on requests where ownership is made plausible and where reasonable efforts have been undertaken to reach an agreement and establish the provenance of the cultural property (Article 18a paragraph 4 CPTA).
This requirement of prima facie proof of ownership or of a connection with the object may, however, appear conceptually inconsistent within the voluntary framework of an alternative dispute resolution mechanism, since the parties have already agreed to seek an equitable solution outside litigation.
Furthermore, the Commission does not replace the state courts and operates in a manner that is complementary to judicial proceedings, without fully substituting them. This interaction may lead to paradoxical situations where claims have been dismissed on purely procedural grounds, such as limitation or forfeiture, without any examination of the merits.
From an evidentiary perspective, the requirements will be particularly onerous in Nazi-looting cases, given the passage of time and the possible loss or destruction of relevant documents. In the colonial context, the assessment may instead focus more on the cultural, historical or symbolic link between the property and its current holder, particularly where that link appears weak or disputed in light of the connection between the object and a community or state of origin (FOC Fact Sheet).
The Commission enjoys procedural autonomy and may issue its own rules of procedure (Article 18a paragraph 4 CPTA). It may also call upon external experts (Article 6 OCPCP).
The most debated issue concerns the modalities of referral. In its initial conception, the FOC supported the possibility of unilateral referral, emphasising that many cases are now time-barred or non-justiciable and that rightful claimants often depend solely on the goodwill of the person holding the object (FOC Fact Sheet). A joint referral requirement would, from this perspective, have allowed one party to block access to any independent forum.
The solution ultimately adopted by Parliament in March 2025 and implemented in the OCPCP in principle requires the consent of the owner of the cultural property (Article 5 paragraph 1 OCPCP), except in National Socialist-related cases concerning objects held in public collections, for which such consent is not required (Article 5 paragraph 2 OCPCP; Article 18a paragraph 2 letter c CPTA).
This compromise has attracted criticism, in particular from cultural and municipal actors, on the ground that it reduces the Commission’s practical significance outside the public museum sector. There is indeed a risk that the Commission will be confined to an essentially institutional role, to the detriment of rightful claimants faced with recalcitrant private holders.
From a legal perspective, this requirement reinforces the consensual dimension inherent in ADR mechanisms, but weakens effective access to an independent recommendation where one party refuses to give consent, with the potential effect of freezing, or even exacerbating, the conflict (FOC Fact Sheet). The Commission nevertheless retains an important normative function: its recommendations may become a standard of diligence in matters of provenance, both for museums and for the art market. In practice, even though they lack binding force, these recommendations could influence institutional practices, particularly regarding acquisition policies, collection management and provenance research. They may also be taken into account by public authorities when granting funding or assessing compliance with diligence obligations. In the longer term, they could help structure market expectations and serve as a reference point in assessing the conduct of actors, including in contentious contexts.
To this procedural limitation must be added an institutional concern: the Commission’s secretariat is administratively attached to the FOC, which also exercises supervisory and funding functions in relation to certain museum institutions that may be concerned. This configuration could raise questions in terms of independence and the perceived impartiality of the Commission, particularly in situations involving federal public collections.
Switzerland from a Comparative Law Perspective
The Swiss Commission has two notable distinctive features. First, Switzerland has chosen to bring together, within a single body, the issues of Nazi-era looting and colonial restitution, whereas most European states have opted for separate mechanisms adapted to specific historical and evidentiary contexts. Secondly, the establishment of the Commission comes relatively late chronologically. With regard to works looted during the National Socialist era, while Switzerland only decided to establish an independent commission in November 2023, several European states had already set up specialised mechanisms from the late 1990s or early 2000s. For example, Austria established the Kommission für Provenienzforschung in 1998, France created the CIVS in 1999, the United Kingdom set up the Spoliation Advisory Panelin 2000, and the Netherlands established the Restitutiecommissie in 2001. Germany, after relying on an advisory commission for more than 20 years, has recently developed its system towards a specialised arbitral mechanism. By contrast, as regards cultural property originating from colonial contexts, European mechanisms remain largely fragmentary and rarely institutionalised. Restitutions most often take place within ad hoc frameworks, based on political decisions, bilateral agreements or museum initiatives, rather than on genuine ADR mechanisms comparable to those existing for Nazi-era looting.
Beyond this temporal difference, national models also differ in their institutional approach. Some states have favoured proactive and state-led mechanisms based on an obligation of systematic provenance research, as in Austria. Others have opted for administrative decision-making mechanisms in which the state retains control over the restitution process, as in France. Conversely, the United Kingdom and the Netherlands have developed essentially advisory models, based on non-binding recommendations and the search for equitable solutions.
Within this landscape, Switzerland follows a soft law and ADR approach, based on non-binding recommendations and the consent of the parties. This choice, combined with the unification of Nazi-looting and colonial-restitution issues within a single body, gives the Swiss model a certain institutional coherence, but also exposes it to significant methodological challenges. These challenges arise in particular from the heterogeneity of the situations addressed, which involve different actors, rely on distinct modes of proof, are situated in very different timeframes and raise specific questions of representation and legitimacy, especially sensitive in the colonial context.
Conclusion
Although late in coming, the Independent Commission for Cultural Heritage with a Problematic Past constitutes a pragmatic response to the limits of traditional litigation in matters of restitution. Without calling into question the legal certainty guaranteed by civil law, it seeks to provide a space for dialogue and recognition where positive law has historically proved insufficient.
In this respect, its operation is not unlike the logic of restorative justice: rather than resolving a dispute according to a strictly binary logic of responsibility, it seeks to promote an equitable solution based on recognition of past wrongs and on the search for a balance between memory, property and legal certainty.
In Switzerland, this orientation already finds echoes in private initiatives such as the Swiss Benin Initiative, a collaborative provenance research project conducted by several Swiss public museums in cooperation with Nigerian partners to trace objects from the Kingdom of Benin and engage in dialogue about their future – a process that goes beyond purely legal litigation and fully embraces logics of recognition and transnational cooperation.
Approximately one month after the Commission began its work in March 2026, it is still too early to assess its effectiveness in practice. This effectiveness will, however, depend on its procedural accessibility and on the ability of its recommendations to establish themselves as a reference point in institutional practices and on the art market.