Bassano masterpiece sold to Getty, Lazio Regional Administrative Court rules in favor of Ministry of Culture

Will the Getty Museum in Los Angeles make Jacopo Bassano’s Miracle of the Quails, a masterpiece purchased on October 18, 2021 by the U.S. museum, return to Italy? The Lazio Regional Administrative Court (Tar del Lazio ) dealt with the case that we had also denounced on these pages, with an article from which a parliamentary question was also born, and gave reason to the Ministry of Culture, which had ordered the American museum to return the work to Italy.

The painting, from 1948 to 2006, was owned by Florentine collector Vittorio Frascione, a famous antiquarian whose heirs had sold the painting to a company registered in New York, OMP Fine Art LLC. Since the painting had thus left the country’s borders, the Ministry of Culture had issued a certificate of free movement so that it could be exported: the certificate, in this case, had been issued by the Export Office of the Soprintendenza Archeologia Belle Arti e Paesaggio of the provinces of Pisa and Livorno on January 2, 2018. However, on Jan. 21, 2022, the General Directorate of Archaeology Fine Arts and Landscape of the Ministry of Culture cancelled the certificate of free movement in self-defense and ordered the repatriation of the painting within the period of sixty days, instructing the Carabinieri Command for the Protection of Heritage and Culture.

The Ministry let it be known that the 2018 certificate had been issued because, the Tar’s ruling states, the painting had been presented to the Export Office “in a poor state of preservation, dirty and with a patina that, as would be evident from the admittedly very bad photograph attached to theapplication, would have obscured its pictorial conduction and quality to an important extent, to the point that the Commission of the Export Office on duty on December 19, 2017 lowered the economic value of the work from the 120.000.00 euros exposed in the complaint to 70,000.00 euros, which was considered congruous in the certificate of free circulation.” In addition, it appears that the indication of authorship, chronology, provenance, commissioning, art-historical information and other characteristics was missing. These shortcomings would have led the investigating commissions approached (i.e., the Commission at the Export Office and the Export Advisory Commission) to issue the certificate of free circulation. Only later would the value of the painting emerge.

Those who sold the work, however, challenged the ministry’s annulment order, citing several reasons: The tardiness of the exercise of the power of withdrawal, the absence of the legal obligation to proceed with the “cleaning of the painting” before submitting it for export application, as well as to provide additional and different indications from those indicated, as mandatory, in the form made available to applicants for thecertificate (the appellant pointed out that the Export Office could or should have conditioned the issuance of the opinion on the cleaning of the painting or the submission of a photographic reproduction of better quality). And then again, the appellant allegedly indicated that it was a “biblical subject” “attr. to Bassano,” since the artist in question had not attributed any “title” to his work, as would be the case with all works of ancient art, with respect to which it would be the critics who would assign an appellation (the work is in fact known by eight different titles).

The Ministry of Culture, therefore, entered judgment, reiterating that the plaintiff, through the intermediary in charge of the sale, “would have concealed,” reads the Tar’s ruling, “decisive elements in the exact identification of the work of art to be exported - presented in a very poor state of preservation - such as the ’title’ as well as its provenance.” These circumstances, according to the Ministry, had to be disclosed, especially since the person who sold the work, the Tar stated, has a family relationship with antiquarian Vittorio Frascione, who purchased the work in 1948 “jealously guarding it until his death in 2006 and, therefore, not allowing its exhibition for almost sixty years.” Consequently, “This would have resulted in a limited ’recognizability’ of the work ’at first glance,’ even by insiders, so that both the presentation of it in a better state of preservation and the full description of its ’title’ and ’provenance’ - as well as theindication of the ’historical-artistic news’, ’bibliography’ and ’other characteristics’” would have been all the more incumbent since they are decisive in the evaluation in the particularly important cultural interest.

An interest that, according to the Tar, was fully appreciated by the Getty’s curator of paintings, Davide Gasparotto (who is also a native of Bassano del Grappa),“ for whom the work ”perfectly embodies the genre to which Bassano owes its fame: the representation of biblical themes of a pastoral nature, where realistic details of daily life take shape in compositions of great formal refinement. Black shadows prevail, and colors shine through thick layers of pigment. Precision-drawn surface details blur into passages applied with looser brushstrokes. This almost abrupt but highly calculated simplicity gives the painting a mysterious and poetic aura" (these were Gasparotto’s statements about the Miracle of the Quails when the purchase was presented by the Getty). It would, therefore, be a unique painting in Bassano’s production because of the rarity of the subject, the originality of the composition, and the very fine quality of execution.

Therefore, on March 22, 2022, the General Directorate of Archaeology, Fine Arts and Landscape of the Ministry of Culture issued a measure denying the issuance of the certificate of free circulation and at the same time initiating the procedure for the declaration of cultural interest. According to the appellant, Italy, according to the judgment, “holds the highest concentration of Bassano’s works in the world, which can also be seen in numerous public collections, so that the expatriation of the work in dispute would not cause any harm to the national cultural heritage, representing rather an opportunity to increase Jacopo Bassano’s fame abroad.” According to the appellant, this would have been “the implicit and implied assessment underlying the issuance” of the certificate of free circulation, “substantially withdrawn as a result of a cultural heritage management policy, not opposable to the appellant, with retroactive effect.” The measure was therefore also challenged by the Getty Museum, which noted, moreover, in addition to the flaw on the timeliness of the cancellation and other elements also found by the seller (e.g., the fact that the Bassano work could not be defined as “rare”), also the “absolute lack of power of the Ministry for extraterritoriality of the effects of the Decree, with particular reference to the notice of denial, the request for repatriation and recovery addressed to the Carabinieri TPC Command,” and the defect of the “requirement of territoriality of administrative action with respect to an asset that is abroad owned by a foreign person.” Moreover, the Carabinieri Cultural Heritage Protection Command, the Getty observed, would have no power on foreign territory.

The Tar, as anticipated, agreed with the ministry. According to the administrative court, “by reason of the intercurrent relationship between the Ministry of Culture and its peripheral articulations, it is among the powers of the former also to avocate to itself - possibly subject to the annulment, as in the case at hand, of a certificate already issued by the Exportation Office - the competence regarding the assessment of the prerequisites for the issuance or denial of the certificate of free movement.” consequently, the plaintiffs’ complaint that the ministry, in addition to not being able to cancel the issued certificate, likewise lacked the competence to deny the issuance of a new certificate is unfounded. The Tar then ruled that the principle of territoriality of administrative action was “out of focus,” “the application of which would not allow the p.a. to cancel an authorization, such as the l.c. attestation , which has already produced the effect of legitimizing the exportation of an ’Italian’ work of art abroad, in this case outside the territory of the European Union, all the more so in view of the supervening acquisition of the legal, as well as material, availability of the same by a legal subject of foreign law.” Indeed, it is precisely the principle of territoriality that determines “in a diametrically opposed sense to what the plaintiffs claim, the necessary repatriation of the work of art in dispute.” European law allows the circulation of cultural goods within the territory of the Union on condition that they have legitimately and definitively left the national territory of origin, to which they must return, in the event of their illegitimate exit.

Again, for the TAR, “the annulment of the certificate makes it contrary to law for the property to remain abroad and, as such, entails the obligation to return on the basis of the law of the Republic.” Moreover, the court, taking into account the fact that since 1948 the painting was no longer exhibited, finds supportable the administration’s assertion that if the Export Office had been provided with all the information in its possession regarding the commissioning of thework, to its collecting history, which can be perfectly reconstructed from 1948 onward, to at least one of the various titles under which it is known to art critics, as well as to the fact that he himself was the heir of that’antiquarian from whose private collection the work came, the Pisa Export Office would have had all the elements to realize that the painting brought to its attention did not coincide with an anonymous “biblical subject”, attributed to an unspecified artist named “Bassano,” as it merely stated who sold the work when requesting the certificate, identifying itself rather with the important work of art by Jacopo da Bassano at issue in the case. In other words, if all the elements on provenance, art-historical information, bibliography and other characteristics had been provided, the expert commission would have been put in the objective position to “suspect” what was theexact identity of the postal work of art being viewed and, therefore, also to request its “cleaning”, given the state in which it was presented at the Export Office, peacefully admitted even by the appellant. With these elements, the Ministry would have had the “warning signs,” necessary to sufficient to order supplementary investigations, including the possible cleaning of the work.

According to the Regional Administrative Court, “the charge made by the Ministry of Culture against the appellant, according to which his overall reticent attitude when requesting the certificate, certainly culpable - if not preordained to take advantage of the lack of knowledge of the painting on the part of the ’experts’ - contributed, in a decisive way, to the evaluative error in which the administration incurred in not realizing that it was dealing with the painting,” also appears to be shareable. Indirect confirmation would come from the fact that the appellant presented the painting as an anonymous “biblical subject” without further specification. According to the Tar, in short, “the evaluative error committed by the Exportation Office, when issuing the certificate of free circulation, is attributable with exclusive efficient causality or, in any case, decisive, to the overall conduct held” by those who sold the work.

Finally, on the rarity and quality of the painting, a first confirmation comes according to the Tar from Gasparotto’s own words, never denied by either of the two plaintiffs (the seller and the Getty), and in addition according to the art historical report attached to the denial of the issuance of the certificate of free circulation the work is not only judged to be of great quality, but also rare, since it is reputed to be a work that is located “at the beginning of that path that brings Bassano back from the refined elegances of the Manner to the recovery of pieces of reality that he had already experimented with, using that experience to give his painting a luminous corporeity that would become his hallmark in the next forty years of his activity. This moment represents an absolute rarity in his catalog because it is marked by no more than five paintings, only one of which, The Adoration of the Shepherds in the Borghese Gallery, is in an Italian public collection.”

The Tar’s ruling does not write the last word: one can easily imagine that this is only the beginning of a more than likely tug-of-war between the Getty and the Ministry of Culture, which could continue at the Council of State.

Bassano masterpiece sold to Getty, Lazio Regional Administrative Court rules in favor of Ministry of Culture

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