Readers of this blog will know of our interest in a particular piece of EU law that came into effect throughout the EU territory on 28th December 2020. This predated the end of the Brexit Transition Period by three days and so applied to the UK as well. The legislation was Regulation 2019/880 on the Introduction and the Import of Cultural Goods and the particular provision that came into force was Article 3(1). This article introduced a prohibition on ‘Part A’ cultural goods brought into the customs territory removed from their country of origin in breach of the laws and regulations of that country. Part A in the Regulation’s Annex includes a wide array of cultural goods, such as products of archaeological excavations, paintings, rare manuscripts and archives (for a full list see here). According to the Regulation (Article 1(2)), it does not apply to goods created or first discovered in the EU – though how this point will now apply in the UK still needs to be clarified.
What is surprising about this prohibition is that it tends to go further than the import restrictions currently in place in most countries. Using the UK as an example, apart from obvious cases of theft or fraud, the law usually only imposes limits on the import of cultural property removed from specific places like Iraq, Syria or territories under military occupation. Beyond these, general import restrictions do not traditionally apply to all goods unlawfully exported from a territory of origin. Now with Article 3(1) a more blanket prohibition for unlawfully-exported cultural goods has come into effect.
As confirmed last month during a seminar on Brexit we ran with Hunters LLP, it appears the UK will retain the prohibition in its post-Brexit legal landscape. It still remains to be seen whether specific legislation will be introduced in order to clarify certain details, such as how it applies for goods originating from the EU. The remaining features of EU Regulation 2019/880 will not be implemented in the UK, such as the electronic database and the requirements for import licences for certain cultural goods (e.g. archaeological material over 250 years of age) and importer statements for a wider category of cultural goods over 200 years of age and worth at least € 18,000. Though the general prohibition has been in force since 28th December, EU Member States will have until June 2025 to implement these wider aspects of the system.
What does Article 3(1) mean for museums? First, the prohibition applies to a museum, just as it would any dealer, collector or member of the wider public. If you import one of the Part A cultural goods, you will need to ensure it was not removed unlawfully from its place of origin – no matter when that removal took place. If the cultural good is being borrowed from abroad or returned from abroad after a loan, the prohibition will also come into play. The risk is that law enforcement could potentially seize the object as a breach of the new prohibition. As the UK’s Department for Digital, Culture, Media & Sport (DCMS) states on its website, the prohibition will be implemented by the UK border authorities ‘on the basis of intelligence’, so it will likely apply beyond point-of-entry checks. Though the risk is relatively small, the consequence for any museum of an investigation and/or seizure would be dreadful.
For some time, most museums in the UK have already been implementing due diligence checks on the provenance of materials, whether for the purpose of acquisitions or loans. This is because of the ethical framework that governs museums, including the ICOM Code of Ethics (2004), the Museums Association Code of Ethics (2015) and sector guidance found within the DCMS’s Combating Illicit Trade: Due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material (2005). Consistent across these three documents, items should generally be rejected for purchase or loan if there is suspicion they were illicitly exported (see ICOM Code of Ethics at 2.3; Museums Association Code of Ethics at 2.5; and DCMS guidelines, section 4). This is even the case when they were removed prior to 1970, the date of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. That said, the ethical position for due diligence checks in the UK will usually only require documentation going back to 1970 and not earlier (see DCMS guidelines, above, section 4).
For museums that have not been undertaking rigorous due diligence on their acquisitions and loans, Article 3(1) will come as a rude awakening. Such museums would be wise to align their procedures with the longstanding ethical position – and with what has now become, across the EU and UK, the legal position as well. Keep in mind that the same considerations will apply for items from a museum’s own collection loaned abroad if there is a risk such items had originally been exported from their country of origin unlawfully. It is possible that the item’s re-entry into the UK would trigger the prohibition.
This shows how the ethical position has become subsumed into the legal position. When this happens, legal actors like museums no longer have a choice in the matter. If ethics says ‘you should’, laws say ‘you must’. Article 3(1) has taken us well into the territory of ‘must’. This is perhaps to be expected. Changes in ethics usually predate changes in law. Society in a sense moves faster than those legislating for its benefit. But when the legislators do catch up, woe betide anyone with a slack approach to ethics. They could be in for a rough ride.
Image: Entrance to British Museum (Alexander Herman, 2019 CC BY)