Export of cultural property: a comparative analysis of the laws of eight countries

Theexport of cultural property is one of the most sensitive and controversial issues in the field, because it involves not only thelegal and, of course, the politicalsphere , but is also an issue that is closely related to the protection of a nation’s cultural heritage. A state, faced with the possibility of a work being put on the market and thus being able to leave national borders and never return, is often faced with a problem of whether to retain the asset by placing a cultural interest restriction, or to allow it to circulate on the free market. In an article a few days ago, we saw which reasons are in favor of placing constraints and which, on the contrary, might lean toward granting export permission, and what should be the criteria for identifying the correct choices. Today, however, let us see what the relevant legislation of some of the major Western countries provides for the art market, or which have a cultural heritage of great interest and large size.

Each country has developed a specific regulatory framework over time to regulate the export of works of art, archaeological finds, and other objects of cultural significance. This regulatory framework varies widely from country to country as it reflects historical, cultural, and economic differences.Understanding the rules governing the export of cultural property in different countries is crucial not only for those in the industry, such as collectors, auction houses, galleries, and museums, but also for the authorities who must oversee the protection of this heritage. In fact, cultural heritage is an invaluable resource that helps define a nation’s identity and promote intercultural dialogue. Regulations on the export of cultural property aim to strike a balance between the need to protect this heritage and the legitimate circulation of works of art and historical objects.

Cultural property export laws are influenced by many factors, including each country’s historical and cultural context, international relations, international treaty obligations, and art market pressures. For example, countries with a vast artistic and archaeological heritage, such asItaly and Greece, tend to be more restrictive with respect to exporting, while other countries, such as the United States, have relatively more flexible regulations (consider, for example, that in the United States public museums can sell their works, under certain conditions, of course, while in Italy the practice of deaccessioning, or the alienation of goods from a museum collection, is forbidden to public museums). Penalties for violating export laws, which almost everywhere is subject to the issuance of a certificate of free movement, or anauthorization that allows the good to be exported, vary from country to country and can include severe penalties, such as significant fines and confiscation of illegally exported goods.

In this article, we will explore the main legal provisions regulating the export of cultural goods in eight countries (Italy, France, the United Kingdom, Germany, Spain, Greece, Switzerland, and the United States): for each country, the main regulatory sources and reference articles within the laws will be cited. A comparison, therefore, to enable a better understanding of the challenges and opportunities related to the international protection and circulation of cultural property.

Italy

Italy is universally recognized for its extremely rich cultural heritage, and the protection of this heritage is a key priority for our country. The main legal framework is the Code of Cultural Heritage and Landscape (Legislative Decree 42/2004), which regulates every aspect of protection, including the export of cultural property. The relevant regulations were recently reformed(in August 2017) and are governed by Articles 65, 68, 69, and 70 of the Code, which stipulate that the export of cultural property is subject to a strict authorization procedure. Meanwhile, the article states that the export of objects of artistic, historical, archaeological or ethno-anthropological interest belonging to public entities or civilly recognized ecclesiastical bodies is prohibited. Specifically, any object of cultural interest executed by an author who is no longer living and who is at least 70 years old and has a value of at least 13,500 euros must obtain a permit from the Ministry of Culture in order to leave national borders. In the event that the owner of an asset declares a value of less than 13,500 euros, the asset is not subject to the normal authorization process, but a self-certification must still be submitted to the Export Office of the Superintendency (the body that issues the authorization). The Superintendency may make spot checks on self-certifications.

The Code, of course, provides that, for certain goods, the export permit (which, if granted, is valid for five years) may be denied if it is felt that the good should remain in Italy to preserve its cultural value. In considering whether to grant or deny the authorization, the law stipulates that the Export Office shall communicate its decision “with reasoned judgment, also on the basis of the reports received.” The denial automatically results in the initiation of the procedure for the declaration of cultural interest for the property, which becomes, as it is called in the jargon, “notified,” i.e., subject to a restriction of cultural interest: the restriction entails the prohibition of the property from leaving the national borders. Article 69 regulates appeals against denial, while Article 70 introduces the possibility for the state to purchase the good if an export permit is requested for an object of exceptional cultural value: the Export Office can submit a proposal for compulsory purchase to the Ministry of Culture, reserving custody of the good until the end of the proceedings. If the Ministry does not wish to proceed with the purchase, it shall within sixty days give notice to the region where the object is located, which in turn may purchase the object. However, if the public body does not want to proceed with the purchase, the law does not provide for the lien to be removed, so the asset still cannot leave the national territory to be sold outside Italian borders. Italian law, in essence, is geared toward strong protection of national cultural heritage, with a system that leans on the side of domestic preservation of assets rather than that of their international circulation.

France

In France, too, the protection of cultural heritage is a crucial aspect of national policy. Regulations are mainly contained in the Code du Patrimoine, which regulates in detail the export of cultural property. This is such an important subject that it even occupies the first articles of the French Heritage Code. Specifically, Article L111-2 of the Heritage Code stipulates that, as in Italy, an object of historical, artistic or archaeological interest cannot leave French territory without an export certificate issued by the administrative authority. Unlike in Italy, the authorization for circulation is not time-limited, but is permanent, guaranteeing, again permanently, that the object does not have the character of a “national treasure” (the expression used in France for an object of cultural interest). However, this applies only to objects that are more than 100 years old: for assets that are less than 100 years old, however, the certificate is valid for 20 years.

The French system provides that in the case of an object that has the character of a national treasure, the Ministry can block the export of a cultural object. The refusal to issue the certificate must be justified by a committee composed of state representatives and qualified personalities, and chaired by a member of the administrative jurisdiction. A refusal to export obliges the owner to keep the object on French territory, and the administrative authority (typically the state), according to Article L121-1, has the power to purchase it by submitting a purchase offer that takes into account the prices practiced on the international market. However, the French state, again according to the same article, has two months to send a purchase offer at the appraised value. After this time, in the absence of a purchase offer, the state can no longer refuse permission for free movement. If the offer arrives and the owner rejects it, the refusal to issue the permit no longer automatically lapses, but is renewed, and the purchase offer procedure remains applicable. If the owner of the property accepts the purchase, the state must purchase the work and pay for it within six months, or the sale will be cancelled. The French system reflects a strong commitment to the preservation of cultural heritage, preventing the dispersion of the most significant cultural assets outside the national borders, but at the same time, unlike the Italian system, it also offers a protection mechanism for the owner of the asset who, in the presence of a lien and without offers to purchase from a public body, would see the chances of selling his or her asset, which consequently may face even strong devaluation, drastically decrease.

United Kingdom

The United Kingdom, while adopting legislation similar to continental European countries, applies an even more flexible and ramified approach. The main regulations are contained in theExportControl Act 2002 and theExport of Objects of Cultural Interest (Control) Order 2003. These acts stipulate that cultural goods that are more than 50 years old and exceed a certain value threshold must obtain an export permit. The British system grants an Open General Export Licence (OGEL), which allows objects under a certain financial threshold to be allowed to leave permanently.

The significance of an object is identified according to the “Waverley Criteria,” of which there are three: whether the object is closely connected to the history and life of the nation; whether the object is of exceptional aesthetic importance; and whether it is of exceptional significance to the study of a particular area of art or history.

Proposals are evaluated by an “Expert Adviser” (an expert in the field) who decides whether the property meets the Waverley Criteria and should therefore be considered to be of cultural interest (and whether the property should therefore be denied permission for circulation). In the event that the Expert Adviser determines that the good is of cultural interest, the case goes to the Reviewing Committee on the Export of Works of Art, an independent committee that considers whether a cultural good intended for export should be retained in the country. If an object is considered to be of special importance to the national cultural heritage, the decision on the certificate of free movement may be delayed for a period of time (usually between four and nine months), during which time British institutions may try to raise funds to purchase the object, with estimates recommended by the Reviewing Committee according to market prices. If there are no purchase proposals, export permission is usually granted. If a purchase proposal is received by the owner and the owner rejects it, the British Secretary of State (i.e., the relevant minister) takes this rejection into account: usually, if an offer from a public institution (a museum, the National Trust, or the like) is rejected, the certificate of free movement is denied. The purchase offer can also come from a private party: however, the rejection is only diriment if the private party, in addition to the purchase offer, has also signed a commitment to grant public access to the property. And even in this case, permission is usually not granted. Moreover, permission is also usually refused when the owner indicates in advance that he or she does not wish to accept purchase proposals. This system of “deferment” is a distinctive feature of British law and offers a middle way between protection and international trade in cultural property.

Germany

Germany has recently undertaken a series of reforms to strengthen the protection of its cultural heritage, culminating in the adoption of the Kulturgutschutzgesetz (Law on the Protection of Cultural Property) in 2016. The export regulations are governed by Articles 21-27 of the Kulturgutschutzgesetz, which is based on European Union regulations (especially 116/2009 on the export of cultural goods). Unlike in the countries seen so far, Germany assigns a minimum age and value threshold for each category of property: permission is required only if these limits are exceeded. For example, paintings over 75 years old and worth over 300,000 euros, watercolors and pastels over 75 years old and over 100,000 euros, prints, photographs, and incunabula over 75 years old and over 50,000 euros, archives over 50 years old and over 50,000 euros, means of transport over 150 years old and over 100,000 euros, and so on. These thresholds can be changed by the federal government to adjust the regulations to market trends. Permits are issued not by an agency dependent on the central state, but by the Land (Germany is a federal state) in which the asset is located. The competent authority has ten days to decide whether or not to issue the certificate of free movement, and during this time it can also decide whether to transfer the case to another authority in the Land (in fact, there is no obligation to approve the application if it is shown that the asset is only temporarily on German territory).

A feature of German law is the presence of a register of cultural property of national interest. Objects included in this register cannot be exported without special permission, which is granted only in exceptional circumstances. The Kulturgutschutzgesetz stipulates, in Article 7, which goods may be included in the register: the criterion, in particular, is whether the property “is of particular significance for the cultural heritage of Germany, a Land or one of its historical regions and thus creates identity for German culture,” or whether “its departure would mean a significant loss for German cultural heritage and its remaining on federal territory is therefore of exceptional public cultural interest.” If export permission is granted, the property is removed from the register. If the request is rejected, a procedure is opened to see if a public purchase is possible: in this case, it is the highest federal authority with jurisdiction over culture that informs the states. After that, the public bodies have 12 months to propose a possible purchase, with the price determined by external expertise. If the possibility of a purchase emerges, the public authority can submit an offer, provided funding is secured. A peculiarity of the German law is the evaluation of the financial situation of the property owner: if the latter is able to prove that he has applied for export due to economic difficulties, the federal and state authorities involved will undertake to guarantee financing for the purchase. The owner can accept the offer within six months. If the purchase does not take place, a new export application can be submitted only five years after the rejection of the previous application.

Spain

Spain has a long tradition of protecting its cultural heritage, enshrined in Ley 16/1985 del Patrimonio Histórico Español. This law stipulates that any cultural property over 100 years old must obtain an export permit in order to leave the country. In any case, the export of goods declared to be of cultural interest is prohibited, as well as all those goods that, due to their belonging to the Spanish Historical Heritage, the state administration expressly declares inexportable as a precautionary measure until a file is initiated to include the good in one of the special protection categories provided by the law.

Article 26 of the law stipulates that owners of property of historical, artistic, archaeological, scientific, technical, or cultural value must therefore submit an application for authorization, and the state administration must make a decision within four months. The decision is made by the Director General of Cultural Heritage and Fine Arts, after hearing the opinion of the Junta de Calificación, Valoración y Exportación (Qualification, Valuation and Export Commission). Spain can grant a permanent export license, or a temporary license “with the possibility of sale” (lasting five years, renewable up to ten or twenty). In addition, Spanish law, in Article 38, provides that the state may exercise the right of first refusal on the purchase of cultural property put up for sale, a measure that allows such property to be kept within the national territory. The state administration may assert this right within two months. The price corresponds to the value declared by the applicant. The export permit, among other things, is subject to progressive taxation calculated on the basis of the declared value of the asset. Spain, similar to Italy, takes a very protective approach to its cultural heritage.

Greece

In Greece, the export of cultural property is regulated by Law 3028/2002 on the Protection of Antiquities and Cultural Heritage in General. This law imposes restrictions on the export of cultural property. Article 34 of Law 3028/2002 regulates the export of cultural goods, and stipulates that every object of cultural value must obtain a permit before being exported, a permit that is granted by the Minister of Culture after hearing the opinion of a special commission, which must make a decision within four months (six in exceptional cases) of the submission of the application. Export is permitted for works legally important in Greek territory no less than fifty years prior to the submission of the application, provided they have not been exported from national borders before.

If permission is denied, the owner of the object may surrender the object to the Greek state at the price determined by a special three-member committee of subject matter experts. If the owner does not accept the price determined by the committee, the evaluation is referred to an additional committee composed of an expert identified by the owner, a head of a service unit of the Ministry of Culture or a museum director appointed by the Minister of Culture, and an expert appointed by the President of the Republic.

Switzerland

Switzerland, historically an important hub for international art trade, implemented stricter legislation with the adoption of the Federal Law on the International Transfer of Cultural Property in 2005. Under the law, every valuable cultural property must obtain an export permit. If an asset is deemed to be of significant importance, outright export from Switzerland is prohibited.

A significant aspect of Swiss legislation is the requirement for all those who transit cultural goods through the country to send a declaration to customs and indicate the type of cultural good, the place of production (or of discovery, if an archaeological good), whether the export of the cultural good from another state is subject to authorization under the laws of the receiving state. This makes the Swiss art market more transparent and allows authorities to better monitor the movement of cultural goods. The law represents a compromise between the need to protect cultural heritage and the importance of Switzerland as a trade hub, balancing the needs of cultural protection and combating illicit exports with those of the free market.

United States

In the United States, the regulation of the export of cultural goods is less centralized than in European countries, as much of the regulation is delegated to state rather than federal laws, and more importantly, it is much less stringent because, unlike all the countries seen so far, the U.S. does not subject the export of cultural goods to licensing.

However, there are laws designed to regulate illicit trafficking. One major piece of legislation is the 1983 Convention on Cultural Property Implementation Act (CPIA), which adopts the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property. The CPIA allows the U.S. government to impose restrictions on the importation of specific cultural property from countries that have bilateral agreements with the United States or are subject to emergency restrictions. However, the law does not include specific restrictions on the export of cultural goods from the United States, reflecting a much more market-oriented approach than that of European countries.

Another relevant law is the National Stolen Property Act (NSPA), which provides penalties for trafficking stolen property, including cultural property, if it is transported across state or national borders. This law is often used to prosecute individuals involved in the illicit trade in stolen works of art. With regard to export, the U.S. system is decidedly liberal and free of special restrictions. However, there are exceptions for cultural goods that fall under specific regulations or international agreements. For example, archaeological artifacts from certain countries (such as Italy) may be restricted if those countries have bilateral agreements with the United States.

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