The Regulation was adopted by the European Parliament on 12 March 2019 following a proposal of the European Commission and various regulations targeting inter alia archaeological items originating from war zones in the Middle East. A vast majority of MEPs voted in its favour. It prohibits the introduction of cultural goods into the EU which were removed from the country where they were created or discovered in breach of that country’s rules, taking account of the fact that such a country often differs from the exporting country. It is designed to protect against smuggling and cut off a source of terrorist financing and includes a requirement for import licences on artefacts more than 250 years old. Issued as Regulation 2019/880 it was published on 7 June, 2019 and came into force on June 27, 2019, although, while the text has been approved at the Parliamentary first reading, it must still be signed off by the EU Council under the ordinary legislative procedure.
Cultural goods are widely defined, including pictures, paintings, drawings, sculpture, engravings, antique coins and products of archaeological excavations, as well as manuscripts and books more than 200 years old.
Under Annex B, very vulnerable cultural goods will need an import licence to be granted by the country of import. This category includes elements of historical monuments and products of archaeological excavations more than 250 years old. The financial value of the object is of no importance.
Annex C covers cultural goods deemed to be less vulnerable (including paintings, drawings, antique coins, books and manuscripts) which will require an import statement to be submitted by the importer that the goods have been lawfully exported from their country of creation or discovery. However, this is only required where the object is more than 200 years old and is worth at least €18,000.
Member States will be required to implement a central electronic system to collect information regarding these import licences and statements. The EU has two years to establish the rules and procedures for operating this system. Until the electronic system is operational the provisions will be deferred. Effectively, therefore, the regulation will not take effect before 2025.
The Regulation provides for exceptions to these rules. Two are quite narrow and concern objects returning to the EU within three years of export and objects imported for safekeeping with an intention to return. The third is wider 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 further exception from the more stringent licencing requirements applies to cultural goods entering under temporary admission for commercial art fairs, where an importer statement is required rather than a licence.
There are also derogations where the country of creation or discovery cannot be reliably determined, or if the items were removed from that country before 24 April 1972, the importer can instead provide evidence that the goods were lawfully exported form the last country where they were located for more than five years. This is provided the goods were located there for purposes other than temporary use, transit, re-export or transhipment.
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. However, the status of the Withdrawal Agreement appears increasingly far from certain. Given the multiplicity of possibilities and permutations facing the UK’s departure from the EU, future trade deals remain a matter of speculation.
Even if the regulation is not adopted in the UK, the UK Art Trade will still be significantly affected, given the high volume of exports to the EU. There is a lack of a clear definition of cultural goods. Who decides when a source country cannot be ‘reliably determined’? What happens when the required import documentation is lost or unavailable ? The Antiquities Trade is particularly concerned about the specifics of the evidence that the EU now requires. Taken as a whole, the Regulation is considered likely to involve significant administrative and financial challenges for the Art Trade.
VALUATIONS NEWS | ISSUE 9 | Summer 2019