The Italian art market between legal challenges and opportunities

The Italian art market is faced with challenges involving both the regulatory framework and the need for renewal of a bureaucratic-administrative apparatus that, by its very nature, adapts with difficulty to the dynamics of a rapidly changing sector. Italy is undoubtedly an international art-historical reference, but the same cannot be said with regard to its art market, which struggles to gain competitiveness in the global context. There are many reasons for this, but certainly some of them can be traced back to the narrow ganglia imposed by the sector’s regulations.

Among the most debated critical knots is undoubtedly that relating to the rules governing art exports. The Codice dei Beni Culturali (Legislative Decree 42/2004) is marked by an approach of strong protection of the national historical-artistic heritage: if this finds its historical justification, however, today it inevitably translates into less fluidity in the circulation of works, limiting the efficiency of the market and the operations of collectors and insiders.

The rigidity of the Italian regulatory system is rooted in the need to preserve a unique cultural heritage in the world. Nevertheless, a better balance between heritage protection and market promotion could help facilitate the circulation of those works that are not of particular interest to the nation. This would also encourage a certain renewal of the collecting public, bringing it closer to an international clientele that would not be deterred by legislation often perceived as penalizing or overly subject to interpretive discretion.

In this sense, a more punctual definition of the parameters for the affixing of the notification restriction, as well as an update of the value and time thresholds for the export of cultural goods, would foster a synergy between protection needs and market opportunities, which are not necessarily mutually opposed. A first step in this direction was taken through Ministerial Decree 367/2020, which, in implementation of Law 124/2017 (Competition Law), raised the time limit for the export of certain categories of goods from 50 to 70 years. A value threshold of 13,500 euros was also introduced, below which goods over 70 years old can be exported with simple self-certification, thus without the need for authorization from the administration.

This could be further enhanced, however, with a view to harmonizing national rules with the cultural property laws of other countries, which have higher thresholds, as, for example, in France, Germany and the United Kingdom.

On the other hand, the declaration of notification of a cultural property in Italy, as is well known, does not oblige the state to acquire the property as part of the national heritage and, again, differs from what happens in other jurisdictions. In France, for example, if the issuance of a certificate for the export of the asset is refused, the asset remains “blocked” for a period of 30 months, during which time the work can neither be exported nor sold, and the state has the option of submitting a purchase offer parameterized to market values. If the state makes no offer during that period, the asset becomes freely tradable again and its export cannot reasonably be refused.

This mechanism, which on the one hand does not obviate the need to preserve the integrity of the national cultural heritage, on the other hand does not restrict the enjoyment and free availability of those goods that are not of significant cultural interest to the nation.

Further making the movement of works of art impassable are also the timelines by which export documents are issued by the relevant offices of the Superintendencies, which often far exceed the deadlines stipulated by law, often due to the massive amount of work to which the offices themselves are subject. Therefore, an intervention capable of making procedures more efficient would be desirable, including through greater digitization of processes and simplification of the authorization process, so as to ensure faster time frames for processing applications, without, however, sacrificing the quality of the necessary controls.

In this perspective, the effective implementation of a passport for works of art-originally envisaged by Ministerial Decree 367/2020, but still awaiting a completed regulation-could be a further step forward in order to streamline timelines and procedures for the exit and/or return of art assets to Italy, facilitating the work of operators and allowing for a more effective monitoring of asset flows both at the national and supranational levels.

Clearly, these reform directions will have to be weighted on the basis of the objectives to be pursued, as well as combined with other structural interventions. This is the case, for example, of a hoped-for reorganization of the tax regulations applied to art, also in light of the recent opportunity offered by EU Directive 2022/542 to reduce the VAT rate applied to the import and transfer of works of art, as has already happened in other European countries. This is another opportunity that would allow the Italian art market to gain attractiveness in the international context.

The hope, therefore, is to promote a virtuous collaboration between the public and private sectors, between institutions and professionals in the sector, so that we can not only dutifully protect and enhance the historical-artistic heritage, but also consolidate the competitiveness of the Italian market at the supranational level, while fostering the dissemination and knowledge of Italian culture in the world.

This contribution was originally published in No. 24 of our print magazine Finestre Sull’Arte on paper. Click here to subscribe.

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