Yesterday, an Italian painting with a colourful history had its fate sealed by a UK court. The Queen’s Bench Division of the High Court has decided that Arts Council England (ACE), the delegated authority that issues export licences for cultural property leaving UK shores, was not the ‘competent authority’ to issue an EU licence for the painting to be exported to Switzerland. Instead, the work will have to return to its country of origin (Italy) or else remain in the UK in legal limbo.

Giotto’s ‘Madonna and Child’, the painting at the centre of the recent UK export dispute.

The painting was originally bought by a woman named Kathleen Simonis in Florence in 1990 as an unspectacular ‘panel painting from the 1800s’, but was subsequently attributed to the great Italian painter Giotto, thus substantially increasing the piece’s value. The painting entered and left Italy several times in the 1990s (all with proper licences), as it was being looked at and restored by experts abroad. In February 1999, Simonis applied for an Italian export licence, which was duly granted.

Shortly thereafter, it must have dawned on the Italian authorities that they would be losing a great treasure and so all previous export licences were annulled by Ministerial Decrees in 2000 and 2004. Simonis challenged this use of executive power and was successful before Lazio’s Regional Administrative Tribunal in February 2007. The Tribunal overturned the Decrees and, five days later, Simonis took the painting out of the country, bringing it to the UK. The following year, 2008, the highest administrative tribunal in Italy, the Council of State, overturned the Lazio Tribunal’s decision and reinstated the 2000 and 2004 Decrees, thus invalidating the export licences once again.

In 2015, the owner Simonis applied to ACE in the UK for a licence to take the painting out of the EU (and thus the UK), hoping to bring it to Switzerland. ACE demurred to issue such a licence, not knowing whether it was the competent authority, no doubt taking into account the painting’s convoluted journey through the Italian export system. In May 2017, ACE denied the licence on the basis that it was not the competent authority to issue an EU export licence under EC Regulation No 116/2009 on the Export of Cultural Goods. Yesterday, the judge of the High Court agreed with ACE’s decision, concluding that the licensing authorities in the UK could not grant an export licence for the painting to be removed from the EU.

The reason was that the export from Italy was not considered to have been ‘lawful and definitive’ as requited by Article 2 of the 2009 EC Regulation. The key element was the term ‘lawful’ and, in order to determine whether the 2007 export from Italy was lawful, the parties were asked to jointly appoint an expert in Italian law. This expert concluded that, though the 2007 export was unaffected by subsequent decisions in Italy (the 2008 Council of State decision was not retrospective for the purposes of the legality of the export), because the export was purportedly done under a 1999 licence, which expires after five years, by the time the painting left the country the export was unlawful. There was no possibility, according to the expert, that the 1999 licence had been automatically renewed, as Simonis had argued.

Goya’s Marchioness of Santa Cruz (photograph © A Herman 2015)

As a result, the painting is now stuck. It cannot now leave the EU, short of obtaining an EU export licence from Italy, which of course will never happen (the Italians are of the opinion, after all, that this is a national treasure). It doesn’t necessarily have to go back to Italy. The court yesterday was not asked to make such an order. Nor would Italy be able to claim the painting back under UK regulations implementing another EU instrument, the Directive on the Return of Cultural Objects 2014/60/EU (or its predecessor, Council Directive 93/7/EEC) because the time limit for doing so already expired. And there wouldn’t, to my knowledge, be any other way for Italy to get this painting back, unless Simonis voluntarily offers it back.

For now the painting is effectively unsellable. The only potential buyer would have to be UK-based, someone who doesn’t mind the stink of it having been unlawfully exported from Italy. This is what Norman Palmer used to call ‘ring-fencing’ a work of art, a manoeuver successfully used by Spain in the 1986 case of Kingdom of Spain v Christie Manson & Woods, when a Goya was illegally exported from Spain to London. In that case, Spain was able to obtain a declaratory judgment from the English courts acknowledging the improper export, even though the courts had no jurisdiction to order the return to Spain. The painting became unsellable and, in the end, was eventually returned by the owner to Spain, apparently the result of a settlement.

A close-up of the Goya involved in the Spanish case, Portrait of the Marchioness of Santa Cruz, featured on the flyer and webpage for the LLM programme in Art, Business and Law that IAL is running with Queen Mary University of London. The photo was taken by the author when the painting was back in London – loaned from the Prado for an exhibition in 2015 called Goya: The Portraits at the National Gallery. Part of this blog post appeared – and the author was quoted – in The Guardian (24 July 2018 online, 25 July in print).