The complex regulation of sales of nazi objects
Between vile symbols of an ideology to be fought and historical testimonies that must be preserved as a duty of memory, it is difficult to define the legal regime of Nazi objects. They remain in the attics of houses occupied by Germans, they sometimes appear in flea markets, sales or online. How should they be displayed ? Can they be traded ? Law and morality do not share the same standards. A recent decision demonstrates this.
THE LEGAL FRAMEWORK FOR THE SALE OF NAZI OBJECTS
The Penal Code sanctions the wearing and public display of a uniform, badge or emblem resembling those worn or displayed by members of Nazism or by persons convicted of crimes against humanity.
The prohibition does not apply when these acts occur for the purposes of a film, a performance or an exhibition involving a historical evocation (Article R-645-1 of the Penal Code). Fortunately, it is therefore possible to speak about this period and show its emblems for artistic, educational or historical purposes: the series Un village français shows SS members, and the Army Museum exhibits uniforms and objects that belonged to members of the Nazi party.
But otherwise, defining prohibited wearing and displays is complex. A recent ruling of the Court of Cassation illustrates this (The Penal Code sanctions the wearing and public display of a uniform, badge or emblem). In this case, a collector was offering for sale on his website objects from the Third Reich, accompanied by photographs and descriptions. It was for the court to determine whether the act of “displaying in public” necessarily referred to a physical presentation of the objects or, more broadly, included their presentation in images on the internet (“the presentation or dissemination to the public of images or representations of the objects, without distinguishing according to the means used”). The Supreme Court adopts a strict interpretation of criminal law, only physical presentation is sanctioned.
Thus, disseminating images of these objects for the purpose of selling them on a website does not in itself constitute the offence. Likewise, it is possible to trade these objects, provided it is done discreetly: targeted presentation to a buyer is possible.
On the other hand, it is impossible to display these objects on a flea market stall or in a sales room. Obviously, the political promotion of these emblems is prohibited. The offence was thus upheld in relation to an individual who displayed a flag bearing a swastika in the window of his apartment (Court of Appeal of Douai, 6 March 2007, no. 06/02625).
It is strange that online presentation cannot be sanctioned, given how widely this mode of dissemination reaches an audience. The Court of Cassation almost seems to regret this, since it states that acts of dissemination of images of objects on the internet, or physical display of an object linked to Nazism, accompanied by statements favourable to Nazi ideology, may fall within the offence of glorification of crimes against humanity (Article 24 of the Law of 29 July 1881).
But ethics and morality are stricter than the law.
THE MORAL AND ETHICAL ISSUES IN THE HANDLING OF NAZI OBJECTS
Although the mere sale of these objects is not legally punishable, it raises moral and ethical considerations. The motivations of sellers and buyers may vary: historical research, financial speculation, but also ideological fanaticism.
In 2014, a senator unsuccessfully submitted a bill aiming to criminalise the sale of objects linked to Nazism and other crimes against humanity, except for their transfer for the purposes of a film, performance or exhibition involving a historical evocation. It would thus have broadened the scope of the existing text.
Despite the failure of this bill, the scheduling of auctions of these objects regularly provokes strong reactions. They often come from associations that have requested the Conseil des ventes to prohibit them. The public auction regulatory authority, in several of its annual reports, has found that it does not fall within its competence to prohibit such sales in the absence of a “manifest violation of legality”.
However, the Conseil des ventes has intervened with operators and sellers to dissuade them from proceeding with public auction sales of these goods, or acted as a mediator. It has also issued non-binding recommendations encouraging professionals to adopt reflexes based not only on a legal approach, but also on an ethical and human one.
In 2021, one of its recommendations encouraged refraining from “presenting at auction objects whose public display or sale is likely to undermine human dignity and to […] exercise discernment as to their symbolic value”, highlighting the need for a thoughtful and responsible approach regarding these objects.
It thus appears that, beyond the law, ethics and morality impose restrictions on the display of Nazi objects. Could they become widely respected practices within the market ?
The same applies to all sensitive objects, such as those linked to slavery or religious practices.
Article published in L’Objet d’art
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