Gregor Kleinknecht discusses trading in antiquities in Discover Germany’s September 2019 Issue

  • August 15, 2019
  • By Gregor Kleinknecht, Partner

Trading in Antiquities

The one topic in the art world that kept resurfacing on my desk in one way or another during the last couple of months was the trade in antiquities.  Most recently came a press release from Europol, which reported that over 18,000 cultural items were seized and 59 people had been arrested in a multi-national operation involving police forces and customs authorities from 29 countries.  The objects seized originated from as far away as Colombia, Egypt, Iraq and Morocco.  They included archaeological artefacts, coins, ancient Roman military equipment, antique ceramics, an ancient Mesopotamian crystal cylinder seal that had been shipped to Germany by post, and more.  The objective of the operation was to disrupt criminal groups who take advantage of digital platforms to sell cultural artefacts of unlawful provenance.  A similar operation in 2017 resulted in the recovery of more than 41,000 objects.

A little earlier, in July, there was the highly controversial sale in London of a quartzite head of the young king Tutankhamun by auction house Christie’s for more than £4.7m despite Egyptian demands for its return.  Christie’s claimed that it was entitled to sell the object but Egypt has threatened legal proceedings; the last word may not yet have been spoken about this one.

And a little before that, in April, the European Union adopted a new Regulation (EU) 2019/880 on the introduction and the import of cultural goods.  The aim of the Regulation is to stop the trafficking within the EU of cultural goods illicitly exported from their country of origin, a perceived source of money laundering and of financing for terrorists and organised crime groups.  It appears difficult to disagree with the aim of the Regulation but the antiquities trade and its representative bodies were up in arms about the new rules.  Their argument that the problem does not exist in the EU appears to be proven wrong by a succession of Europol operations.

On the other hand, there is clearly a legal trade in antiquities and cultural objects that legitimately left their country of origin and established dealers will abide by codes of conduct when they acquire and sell cultural artefacts.  But perhaps in no other sector of the art market can the boundaries between that which is legal, legitimate and morally defensible, and that which is not, be quite as fluid as in this area.

So what does the new Regulation say that makes it so controversial?  It does not apply to cultural goods created or discovered in the EU and will therefore have an impact principally on the movement of ancient art from the Eastern and Southern Mediterranean, Iran, Iraq, South and Central America, and of tribal art.  The Regulation creates a common licensing system for the import of cultural goods into the EU and establishes a three-tier system of protection:

  • first, archaeological discoveries, items removed from monuments and sites, items that are more than 100 years old, that are rare, or of ethnological or artistic interest, cannot be imported into the EU if they were illegally removed from their country of origin;
  • secondly, subject only to limited exemptions, archaeological objects most at risk and more than 250 years old, will require an import licence, regardless of value; and
  • thirdly, other cultural goods more than 200 years old with a minimum financial value of €18,000, will require an importer statement, supported by identifying documentation warranting that the object was legally exported from the country of origin.

Information on any such imports of all cultural goods into the EU will be captured in a centralised electronic database.

It is probably true to say that the draft Regulation when first published was not a masterpiece of legislative craftsmanship and created too many uncertainties.  At least some of these concerns have been addressed in the final version of the Regulation and some compromises were reached.  There is no doubt that the Regulation will increase the administrative burden on antiquities dealers, who are often small businesses, and will constrain the market in undocumented cultural goods, even if they are otherwise circulating in the market legitimately.

Some of the Rules will come into force from December 2020 but it will most likely not be until 2025 before the Regulation takes full effect because the central electronic database for the licensing and registration of cultural goods is yet to be created and become operational.  This will give time to the antiquities trade and to collectors to adapt to the new regime.

The upshot is that it is probably not so much the principle underlying the new Regulation that causes controversy but the fact that it will do very little to catch criminals, who will continue to operate under the radar screen, while making the life of legitimate dealers and collectors more difficult and capturing possibly too wide a range of objects.  Still, if the Regulation contributes to a cultural shift, making the trade in looted or illegally exported cultural goods socially unacceptable, it will hopefully have achieved a positive goal.

This article was originally published in Discover Germany’s September 2019 Issue, and can be accessed here on page 108.

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