The EU’s parting gift to the UK art market?

Posted on: April 1, 2019 by

On 17th April 2019, shortly after the original date set for the UK’s exit from the European Union, the European Parliament and Council adopted the Regulation on the import of cultural goods, a rather sweeping measure designed to control the import into EU Member States of certain items of cultural property. The legislation is aimed at protecting against illicit trade in cultural goods and the ‘preservation of humanity’s cultural heritage’. As such, it forms part of the wider effort of the EU to combat terrorist financing, commonly considered to be linked to the illicit art and antiquities trade. As many readers may be aware, specific measures have been in place for some time across the EU to stem the tide of illicit trade in cultural goods from Iraq and Syria. There are also laws in place in certain individual Member States to control imports, but it was considered necessary to establish a broader, harmonised pan-EU regime to plug perceived gaps in the existing landscape.

The main features of the new legislation are as follows:

  • What categories of goods are covered? ‘Cultural goods’ are defined in a series of annexes to the legislation which draw significantly on the definitions used in key international conventions on cultural property (1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects). Thus, a broad range of objects are covered including archaeological finds, remains of historical monuments, works of art, antiquarian books, manuscripts and liturgical icons. A number of additional criteria apply, most notably (i) an age threshold of more than 250 years old for certain archaeological finds and dismembered elements of artistic or historical monuments and (ii) an age threshold of more than 200 years old plus a minimum financial value of EUR 18,000 or more per item for other cultural goods.
  • What are the key requirements? Those seeking to import the relevant goods into an EU Member State will be required to adhere to specific procedures as follows:
    • A licence will be required for the following categories, considered to be most at risk: archaeological objects and dismembered elements of artistic or historical monuments. The licence must be obtained from the competent authority in the Member State of entry via an electronic application system (yet to be established, but the rules for its operation are to be set within two years of adoption of the Regulation). The prospective importer must provide evidence either (i) that the items in question were lawfully exported from their ‘source’ country (my shorthand; actually described as the country where the goods were ‘created or discovered’); or (ii) in a situation where either that source country cannot be reliably determined, or the items were taken out of the source country before 24th April 1972 (when the 1970 UNESCO Convention came into force), that they were lawfully exported from the last country where they were located for a period of more than five years. The importer will receive a decision within 90 days of submission of a completed application.
    • For other categories of relevant goods, an ‘importer statement’ must be submitted via the electronic system, comprising a declaration that the goods have been legally exported from their source country and a ‘standardised document’ providing sufficient information to allow for their identification by the relevant authorities. As with the licence application, evidence of lawful export from the last country where they were located for at least five years is permitted for items where the source country can’t be identified, or they were removed prior to April 1972.
  • Are there any exceptions to the rules? There are a small number of exceptions, of which two are quite narrow: objects returning to the EU within three years of export and objects imported for safekeeping with an intention to return. The third however, is broader and covers temporary admissions for the purpose of education, science, conservation, restoration, exhibition, digitisation, performing arts, research conducted by academic institutions or cooperation between museums or similar institutions – a relief to the museum community, allowing the continued sharing of culture by way of international loans, the lifeblood of many institutions across Europe. A further exception from the more stringent licence requirement applies to cultural goods under temporary admission for commercial art fairs, where an importer statement is required rather than a licence.

Unsurprisingly, the EU has somewhat downplayed the anticipated impact of the new legislation on art dealers, museums and traders who regularly import cultural goods. The official line is that these organisations should already be complying with relevant export laws, so essentially, all that the new legislation adds is an obligation to demonstrate this (see FAQs on a previous version of the text). Not unduly burdensome, you might think? Indeed it is, say many in the art trade, some of whom have expressed serious concern that the new regime will involve significant administrative and financial challenges.

Strident lobbying from some quarters, notably the antiquarian book trade, resulted in fairly sweeping amendments to the text now moving through the EU system – and these do seem to represent a significant improvement on the original proposal. Concerns remain, however, including that the legislation will present an ‘obstacle to trade’, a ‘risk for the security of transactions’ and an ‘undue limitation to the free diffusion of culture’ according to the legal adviser to the International League of Antiquarian Booksellers.

Another potential problem lies in the derogation applied where a source country cannot reliably be identified, or the goods were removed from that source country before April 1972. Here, the importer need only check the legality of the export from the last country where the goods were located for more than five years. Who decides when a source country cannot be ‘reliably determined’? And what if a pre-1972 export was problematic – is an importer encouraged to turn a blind eye because he need only evidence more recent exports? And why 1972? The logic is clear (entry into force of the 1970 UNESCO Convention) but runs counter to the now widely accepted cut-off date for provenance research of 1970, which was given tacit approval several months ago in obiter statements of the English High Court (Jeddi v Sotheby’s, as reported in an earlier blog post).

So where does all this leave us? Firstly, we mustn’t forget that the wheels of the somewhat complex vehicle which drives the EU legislative process are still very much in motion. The text has been approved at the Parliamentary first reading but must still be signed off by the EU Council under the ‘ordinary legislative procedure’. Provided that all goes through without a hitch, there will be a fairly prolonged bedding-in period during which importers can start to make the necessary preparations. As mentioned, the EU has given itself two years to establish the ground rules for the electronic system on which the regime will depend. A further four years is built in to get it operational, meaning that the new regime will not be fully up and running until 2025.

As for the UK, for the time being at least, and no doubt much to the chagrin of traders who had hoped they may escape its claws, the Regulation will apply in the same way as it applies to all other EU Member States. As a Regulation, it is directly applicable, requiring no further implementation action on the part of each Member State. Thus, if the UK were to leave the EU on the terms of Withdrawal Agreement as currently proposed, like all other existing EU law, it would be transposed into UK law on the date of exit. The status of the Withdrawal Agreement is currently far from certain, however; and given the litany of possibilities and permutations which remain even now on the terms (if any?) on which the UK might leave the EU, it would perhaps be futile to speculate what might follow as regards trade deals to determine future relations.

On which note, the import Regulation is not the only late entrant that may find its way into the UK legal landscape, possibly making it in just under the Brexit wire. We reported some time ago on the somewhat controversial Digital Single Market Directive, aimed at harmonising copyright laws across the EU and making them fit for purpose in the digital age. A much revised version of the Directive was approved by the European Parliament on 26th March. The most controversial Articles – the so-called ‘link tax’ providing press publishers rights over digital content (Article 11) and the obligations on aggregators and search engines regarding infringing content (Article 13) – are still present, but significantly watered down (and apparently now form Articles 15 and 17 owing to some last-minute redrafting). The European Council is expected to approve the text in early April after which Member States will have two years to implement the provisions. Whether or not the provisions enter UK statute books is a little uncertain (deal / no deal? Withdrawal Agreement as currently proposed / amended withdrawal arrangements?). What we can be sure of, however, is that debate about the issues the Directive raises is set to continue for some time.

Whether Brexit turns out to be a sprint to the finish or a continuation of the ongoing marathon, the EU’s influence in the UK, as far as the cultural sector is concerned, seems sure of a final flourish. A fitting parting gift, some might say… though others, no doubt, would prefer a return to sender!