EXPORT OF CULTURAL GOODS ACCORDING TO EU LAW
In order to ensure the protection of national treasures at EU level uniform rules on trade with third countries were enacted by Council Regulation No 3911/92 of 9 December 1992 on the export of cultural goods, this regulation introduced uniform controls at the external borders of the European Union and is an efficient tool against illicit trafficking in cultural property of EU Member States. This first Regulation has been repealed by Council Regulation No. 116/2009 of of 18 December 2008 on the export of cultural goods, entered into force on March 2, 2009 (in EU Official Journal No. L 39 of 10 February 2009).
This Regulation establishes that cultural goods can be exported outside the EU territory to a third State only subject to the presentation of an export licence, valid throughout the EU. Annex I to Regulation No 116/2009 enlists the categories of cultural goods which need such a licence to be exported. The list corresponds to the one contained in Annex A to the Italian Code of Cultural Property of 2004.
The different categories of items that need a licence to be exported are enlisted in Annex I to the Regulation, and are defined combining three factors: the age, the historical-artistic value and the economic value for each category. For instance: “pictures and paintings executed entirely by hand in any medium and on any material” worth above 150,00 euro; “printed maps more than 200 years old” if worth more than 15,00 euro; “elements forming an integral part of artistic, historical or religious monuments which have been dismembered, of age exceeding 100 years”, whatever the value, and so on (see Annex I).
The fact that such a list is contained in a EU legislative act means that the same item falling into one of the enlisted categories of cultural goods needs is subject to uniform export controls in every Member State, despite the fact that it is not considered to be a national treasure according to the domestic legislation of the State of export.
The export licence, valid for six months, is issued on a uniform form, whose elements are specified in another Regulation (Regulation No. 752/93 of the European Commission with its successive amendments).
For what concerns Italy, national legislation specifies that the offices empowered to issue the export licence are the “Uffici di esportazione del Ministero per i beni e le attività culturali” (as stated in Article 74 of the Code of Cultural Property).
THE RETURN OF CULTURAL OBJECTS STOLEN OR UNLAWFULLY EXPORTED
Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State introduced an harmonized procedure to recover cultural objects belonging to the historical-artistic heritage of a Member State which have been unlawfully transferred into the territory of another member State.
The Member State that seeks a specific cultural object which has been unlawfully removed from its territory may initiate, before the competent court in the requested member State, proceedings against the possessor or, failing him, the current holder of the property, provided that the property in question has been classified, before or after its removal, as part of the “national treasures possessing artistic, historic or archaeological value” according to the law of the requesting State, within the meaning of art. 30 of the EC Treaty (now art. 36 of the Treaty on the functioning of the EU). The possessor must return the property and is also entitled to such compensation as deemed fair according to the circumstances of the case, provided that he exercised due care and attention in acquiring the object, whereas the mere holder of the good is not entitled to it.
In the Italian legal order the Directive 93/7 has been transposed into Art. 75 and ff. of the Code of Cultural Property.