In matters of export and art, the state always seems to have its way

Posted on: April 7, 2020 by

When it comes to the export of works of art, the state always wins… or at least it can seem that way. The latest case to offer proof comes from the Court of Appeal of England and Wales in the matter of R (Simonis) v Arts Council England. Of course, matters of exporting cultural goods inevitably pit the individual exporter against the state. The process for the most part works smoothly – the exporter, usually a dealer or an export agent, applies for an export licence from the relevant authority, obtains the licence, and proceeds to take the art out of the country – but once in a while a standoff takes place. And this is just what happened in Simonis. In fact, it was an extra-territorial standoff.

Giotto Picture

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

The facts of Simonis were explained earlier (in a blog post I wrote after the judicial review and a great article by Selda Krasniqi in Art Antiquity and Law), but for the benefit of the uninitiated reader, I will offer a précis. A painting purchased by Mrs Simonis in Italy in 1990 as a non-descript knock-off was eventually attributed as the real thing, a work by the proto-Renaissance master Giotto di Bondone. By the time the Italian authorities caught on to its true nature (and its considerable value), Simonis had already obtained an Italian export licence to allow her to take it out of the country (dated 1999). A wrangle ensued in the Italian courts and after a favourable ruling for Simonis before the Lazio Administrative Tribunal on 7th February 2007, Simonis didn’t hesitate and sent the panel to London a week later. That happened to be the 14th February, Valentine’s Day.

If, in the spirit of loving kindness, she were expecting a forgiving response by the Italian authorities to her dispatch, she would be sadly disappointed. Even though the work was now in the UK, the favourable decision of the Lazio Tribunal would be overturned on appeal the following year. When, in 2017, Simonis tried to export the painting once more, this time from the UK to Switzerland, she approached Arts Council England seeking an EU export licence. As Lord Justice Green, writing last month for a unanimous Court of Appeal, seemed to grasp: “The elephant in the room is that a better price is likely to be realised on the international market than from a forced sale to the state in Italy and of course Mrs Simonis now seeks a licence from the Arts Council to remove the painting out of the EU, to Switzerland” (at para 102, emphasis in the original).

Simonis came up against a reluctant Arts Council, which was of the opinion that, under EU law, it was not the ‘competent authority’ to issue a licence allowing the removal from the EU (this all happened pre-Brexit of course). Simonis disagreed, unsurprisingly, and the whole thing ended up in the English courts via a judicial review brought by Simonis. The result was a resounding defeat for the exporter at first instance in 2018 and, most recently, before the Court of Appeal on 13th March, where the conclusions of the trial judge were unwaveringly affirmed.

The central instrument of EU law at issue was Council Regulation (EC) No 116/2009 on the export of cultural goods (codification of an earlier EU Regulation dating from the early days of EU integration, viz 1992). The key provision of the Regulation, Article 2, allows a national authority (like the Arts Council) to issue an EU export licence, but only if the earlier removal of the item from its country of origin (Italy) had been ‘lawful and definitive’. At trial, the question was whether the Valentine’s Day dispatch could be considered ‘lawful’ for the purposes of Italian law. On appeal, the focus shifted to whether the Italian law itself should be disregarded – in favour of an allegedly autonomous EU-law conception of unlawfulness– or found incompatible with the basic tenets of the free movement of goods within the EU. All of these arguments failed. The dispatch was considered by both courts to be ‘unlawful’, for the purposes of Italian law and for the Arts Council’s understanding of its powers under the EU Regulation.

One irony in all this is that arguments before the Court of Appeal on EU law took place on the second working day following 31st January 2020, the date of the UK’s official departure from the EU. Of course, that doesn’t affect the events in the proceedings, which all took place before that day. Nevertheless, there remains a possibility that, following the end of the Transition Period on 31st December 2020, there would no longer be a formal prohibition on Simonis from taking her Giotto to Switzerland. In such a scenario, the EU Regulation would no longer apply, while the UK’s national export stops will usually only apply to objects that have been in the UK for more than 50 years (not the case here). We shall see what transpires.

[Note (December 2020): the Arts Council has released a draft statutory guidance on criteria to be taken into account in the – now very likely – event of a no deal Brexit. This includes a statement that applications relating to objects that were in an EU member state after 1 January 1993 will normally only be granted by the Arts Council if the dispatch from that state had been ‘lawful and definitive’, thus preserving the spirit of the original EU law (see para 31a in the above link).]

Perhaps the dispute in Simonis should come as no surprise. It is explained by a particular lopsidedness in export statistics. Last September, the EU Commission released a report on the implementation of the Export Regulation across the EU for the years 2014 to 2017 (relied on by the Court of Appeal in several passages of its recent decision). In the report, two particular numbers stand out. The first is that, of the roughly 70,000 EU export applications made over this period, over 60% of them were made in the UK. This means that the clear majority of important cultural goods legally exported from the EU were leaving via the UK. The second remarkable number is that, of the 466 export applications denied in this same period, nearly half (45%) came from Italy. When one county is clearly the hub of international departure (UK) and the other is clearly the most possessive of its cultural treasures (Italy), it is only a matter of time before exporters from the latter start to take advantage of the relative benefits of the former.

Canova’s Three Graces (Image credit: Scott Wylie CC BY 2.0 via Wikimedia Commons)

I had mentioned that the state is often in control and the Simonis case is a good example. It demonstrates the power wielded by administrative states (at least in the West) in managing artworks within their own territory and – as here – even after they have left the territory. Generally (even in Italy), the vast majority of applications for art exports are granted. There are times when the state does not have the resources to acquire a piece and simply lets it go. But once in a while, when a culture ministry gets its teeth into a particular piece, woe betide the exporter trying to challenge the immense power of bureaucracy, a nearly-endless budget and cultural nationalism through the courts. Such legal challenges appear doomed almost from the start. We saw it recently in a case in Canada, we saw it in Australia, we saw Italy worked up a few years ago over a Dalí it claimed as part of Italian heritage (!) and we’ve even seen the UK authorities on occasion resort to this power too.

Remarkably the Getty Trust, the largest museum endowment in the world, was unable to successfully challenge an export bar placed on one of its UK purchases in the mid-1990s. That last case involved Canova’s Three Graces, which the Getty had intended to ship for display to its luxurious premises overlooking Los Angeles. The English courts in that case upheld the export bar and the sculpture was eventually purchased by a partnership of the V&A Museum and the National Galleries of Scotland and kept in the UK. It stands today in the British Galleries of the V&A, a dignified reminder of the power of the state to control culture – that is, when it can afford to.