The wandering Giotto no longer permitted to travel
The judgment recently handed down in R (Simonis) v Arts Council England ( EWHC 1822 (Admin)) offers an interesting and rare analysis of the European Union framework on export licensing of cultural objects and the juxtaposition of national and EU law in regulating the free movement of goods, on the one hand, and protection of national treasures, on the other. The case also serves as a cautionary tale to those who seek to move artworks across borders, particularly in and out of jurisdictions that are highly protective of their cultural heritage.
The claimant in this case is an Italian resident and the owner of a 13th century oil painting on wood panel known as Madonna con Bambino, now attributed to Giotto. She bought the painting in Florence in 1990 for the Sterling equivalent of approximately £3,500, at which point it was considered to be a 19th century work. The claimant soon after applied for, and was granted by the Italian authorities, a permanent export licence that could be used once and enabled her to export the painting to the United Kingdom.
For nearly two decades afterwards, the painting travelled back and forth, first to Italy and then to Switzerland and the United States and then back to Italy and finally to the United Kingdom in 2007, under a series of temporary and/or permanent import and export licences and subject to various Italian court orders that were appealed, replaced or reversed over the years. The painting’s travels, which were presumably for research and scholarship, exhibition and finally storage, and the document trail accompanying them, are too complicated to rehearse here in detail but, suffice it to say, that by May 2015 when the claimant applied for a permanent licence to export the painting from the UK to the Swiss Free Port in Zurich, the painting was then valued at approximately £10 million and had been the subject of a protracted (and unresolved) dispute with the Italian authorities regarding the lawfulness of its final export in 2007 from Italy to the UK.
In 2015, the Arts Council England (ACE) considered the claimant’s application and decided that it was not the ‘competent authority’ under European Union law to issue an export licence to Switzerland for the painting because the painting’s dispatch to the UK from Italy had not been ‘lawful and definitive’ within the meaning of Article 2(2)(b) of EC Regulation 116/2009 (the ‘Regulation’). The Regulation requires that a licence for the export of cultural goods outside the customs territory of the Community is issued by a competent authority of the EU Member State in whose territory it is located following lawful and definitive dispatch from another Member State or importation (or re-importation) from a country outside the EU customs territory.
ACE determined, following consultation with the Italian authorities about the export status of the painting, that it could only authorise an export licence to transport the painting to Italy, which was the competent authority to decide whether it could then be exported to Switzerland. Unsurprisingly, the claimant was not satisfied with ACE’s decision and challenged it.
Italy’s position in relation to the movement of the painting has been clear for some time. The Italian authorities deemed the painting’s dispatch to the UK in 2007 to be unlawful and demanded its return in 2009. Clearly, the Italian authorities view the painting as an item of patrimonial importance, and wish to have it back within its own borders.
Justice Carr DBE made clear in her judgment, however, that the case was not one about whether the painting should be returned to Italy under the Return of Cultural Objects Regulations 1994 (pursuant to which Member States can seek the return of cultural objects unlawfully removed from their territory to that of another Member State), but about which Member State had authority to make the decision about whether the permanent export to Switzerland would be permitted. If the export of the painting in 2007 from Italy to the UK was considered a ‘lawful and definitive dispatch’, ACE would be the competent authority to issue a licence for export outside of the EU; otherwise, the decision falls to be made by Italy.
The judge dismissed the claimant’s challenge of the ACE’s decision on the basis that the concept of ‘lawful’ was to be judged by reference to the law of Italy, being the Member State of dispatch, and that this requirement did not fall foul of the fundamental EU law principal of free movement of goods. Her conclusion was reached following a detailed analysis of the interaction in the Treaty on the Functioning of the European Union between the prohibition of restrictions on imports and exports between Member States and the exception which allows Member States to prohibit or restrict the import or export of cultural goods that are deemed to be national treasures.
Following evidence by a joint expert on Italian law, the judge concluded that the claimant, by failing to obtain a new export licence to export the painting from Italy to London in 2007 (and instead relying on a previous one that had lapsed), had unlawfully removed the painting under Italian law. The ACE was not therefore authorised to decide the claimant’s application to export the painting to Switzerland.
The question remains whether the claimant will keep the painting in the UK (where it is currently held in storage) or whether it will be returned to Italy, although it seems in all likelihood that a permanent export licence from Italy to Switzerland would not be forthcoming given Italy’s stringent export laws and the fact that the claimant appears to have exhausted her avenues of appeal against the earlier decision that the painting was export-barred.
This decision is understandably frustrating to the claimant who, although given permission to appeal on limited points, has effectively lost any ability to deal with the painting freely – it cannot be exported out of the UK except to Italy and, once in Italy, it is unlikely to be permitted to travel elsewhere on a permanent basis. She will presumably have difficulty in selling the painting unless it is to a buyer content for it to remain in the UK or make its way back to Italy. That market would be rather limited and the painting’s reputation and value is now tarnished by having been confirmed as illegally exported.
The decision reflects, however, a fundamental aspect of regulatory law that collectors and art market professionals sometimes appear to overlook. Ownership and possession of an artwork does not give the owner or possessor the unfettered right to move it across borders. Most countries in the world have more or less strict export restrictions in place, which are intended to protect a nation’s cultural patrimony by retaining items of particular artistic, historical or archaeological significance within its borders.
Italy is renowned for the stringency of its export restrictions and, as this recent case confirms, it is permitted by EU law to implement the controls that it deems necessary to prevent items of cultural value from leaving the country. The case provides clarity to national authorities, collectors and art market professionals on the interpretation of the EU framework for export controls and also serves as a reminder to collectors, dealers and purchasers of the necessity of complying with procedural requirements in order to obtain authority to import or export an item, ascertaining the validity of any previous customs paperwork and carefully documenting and keeping a record of every movement of the work and authorisation provided.
Petra Warrington, Senior Associate
This article was originally published in the IBA’s Art, Cultural Institutions and Heritage Law and can be accessed here, behind a paywall.
For more information, please contact the partner having responsibility for your affairs or any expert in the Art & Cultural Property team here.