The Brexit Transition Period is set to end on 31st December at midnight Brussels time, 11.00 pm in the UK – everyone knows that. But what many people do not seem to know, even those in the cultural sector, is that by happenstance a particular provision of EU law will come into effect in the EU and UK a mere three days earlier, that is on 28thDecember. This is when the prohibition at Article 3(1) of the EU’s Regulation 2019/880 on the Introduction and the Import of Cultural Goods will begin to apply. Under the terms of the legislation implementing the UK-EU Withdrawal Agreement in the UK, this prohibition will form part of ‘retained EU law’ and thus continue to apply in the UK following the Transition Period and will no doubt have a major effect on the art and antiquities market in London. [UPDATE: On 17 December, the UK government announced that it will indeed enforce the prohibition from 1 January onwards, to be implemented by UK border authorities.]
Article 3(1) of the Regulation prohibits the introduction of cultural goods removed from the country where they were created or discovered in breach of the laws and regulations of that country. ‘Cultural goods’ here refers to items of non-EU origin falling within a list of twelve broad categories found within Part A of the Regulation’s Annex, including products of archaeological excavations, antiquities more than 100 years old, objects of artistic interest (pictures, paintings, original sculptures, engravings, etc) and many others. ‘Introduction’ here, according to EU law, means entry into the customs territory, and could even apply to items returning to the territory after a period on loan overseas.
This may seem harmless enough. Trading in unlawfully removed cultural goods is for most people indefensible. But the prohibition is rather sweeping. It extends very far in two important ways. First, it covers illicit export from the country of origin. It is a principle of law in most countries that the export laws of a foreign country will not be enforced, unless a bilateral agreement exists between the two countries or an international agreement has been entered into on the matter. The UK courts have often reiterated this position. In the famous Attorney General of New Zealand v Ortiz  AC 1 of the 1980s, the English Court of Appeal made clear that it would not enforce the public or penal laws of another country, a decision later approved by the House of Lords. Even in the more recent Republic of Iran v Barakat Galleries  EWCA Civ 1374, a decision more favourable than Ortiz to countries of origin, the Court of Appeal stopped short of saying it would enforce a foreign export law. In ushering in a prohibition on the introduction of unlawfully exported cultural goods, Article 3(1) of the EU Regulation will alter the current position of UK law – and indeed the position in most EU member states as well.
Secondly, the new prohibition does not include any date before which a removal of cultural goods would fall outside its scope. Such a provision goes beyond the ethical yardstick of 1970 established by the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Currently, the ethical practice of institutions such as museums is not to acquire material removed from its country of origin after 1970 without proper documentation; if material was removed before 1970, even unlawfully, the same ethical onus does not normally apply (see for example the UK Museums Association Code of Ethics (Additional Guidance) at 2.7 and the DCMS Combating Illicit Trade guidance (2005) at p 4). With the introduction of Article 3(1), objects unlawfully removed at any time would be prevented from entering the territory. This could have far-reaching consequences. One need think only of Christie’s sale in London last year of a 3,300 year-old bust of the Egyptian god Amen. Despite Egypt’s protests, there didn’t appear to be any legal basis to stop the sale. The sale went off without a hitch, netting over £4.5 million for the consignor, and the bust has been spirited off into the mists. If a similar situation were to arise after 28 December in the EU or UK, a country of origin like Egypt would be much more likely to have the law on its side.
None of this is to say that we should bemoan the entry into force of Article 3(1) of the Regulation. It can certainly be said that washing the antiquities trade of all unlawfully removed material is a net positive. But the surprise is how dramatic a shift it will make to long established principles of law and to ethical practice. Like with the 5th Anti-Money Laundering Directive, this may be another EU instrument the art market has underestimated or ignored – until it was too late. No real debate has yet arisen about the Article 3(1) prohibition, either in the UK or the EU.
Perhaps the introduction of the prohibition reflects today’s morality, and so the adoption will be relatively smooth, unlike say if it had been introduced in the 1980s. That’s fine of course: morality changes with the times, and if the law corresponds with that morality then so much the better. But if instead people had let this slip not out of tacit acceptance but through ignorance or distraction, that would be another matter. With Brexit and the pandemic, such oversight may be excusable. But it will not make the pill any easier to swallow once its consequences become apparent. After the bell tolls at the end of this month, we may even hear a few gasps.