The reform introduced by the entry into force of the Lisbon Treaty on December 1, 2009 did not modify the norm dedicated to “Culture” already included in the Treaty of the European Community (corresponding to former Article 151, now replaced by Article 167). As a matter of fact, Art. 167 of the Treaty on the Functioning of the European Union (TFEU), has the same content as former Article 151 of the EC Treaty, thus remaining, even after the recent reform of the EU legal order, the only rule specifically dedicated to cultural matters. It provides a legal basis for EU action in the various fields related to culture, including that of “conservation and safeguarding of cultural heritage of European significance”, as stated in para. 2 of Article 167.
Indeed, the cultural heritage of “European significance” is the reality protected by this provision. Its wording highlights the overcoming of a concept of cultural heritage which is not only of national concern, and gives prominence to the fact that the EU as such has a true interest to enhance the most significant examples of the European culture, which are to no doubt elements of the “common cultural heritage” referred to in para.1 of Article 167.
The concept of European cultural heritage was introduced in the text of the EU Treaty done in Maastricht in 1992 but, even though it already appeared in the 1954 Cultural European Convention and in the 1979 European Parliament Resolution on the communitarian action in the cultural field (ECOJ C 39 of 12 Feb. 1979), has not acquired its own specific content at the communitarian level, yet.
On the other hand, the same concept does not seem to correspond exactly to that of “national, artistic, historical and archaeological heritage” mentioned in Article 36 TFEU (corresponding to former art. 30 EC Treaty) dealing with the limits to the free movement of goods. The concept of cultural heritage of European significance can be regarded as partially overlapping the latter, in those situations in which a cultural property belonging to the national heritage of a EU Member State is also part of the not yet determined “European heritage” and therefore is entitled to benefit of a double level of protection.
The EU is authorized to intervene in defence of the cultural heritage of European importance through an action which is concurrent with that of the Member States, in accordance with the subsidiarity principle set forth in art. 5 of the new EU Treaty. The fact that this principle applies to EU action in the cultural field is implied in the wording of para. 2 of Art. 167 (corresponding to art. 151, para. 2 TCE) which states: “Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action”. This rule gives a minor role to the UE, which can only intervene when an intervention at the domestic level is not sufficient to reach the objective.
The subsidiarity principle inspires the whole communitarian action in the cultural sector and in the specific field of the protection of cultural goods, where the EU intervention aims at integrating national policies and encouraging cooperation between Member States. The EU legislative intervention is limited because the EU institutions can only adopt recommendations (which are acts not binding) and “incentive measures, excluding any harmonization of the laws and regulations of the Member States”, as stated in Article 167, para. 5. That means that in the field of protection of historical and artistic property there is still a division of competences that gives primacy to the State’s legislator and not to the European one.
The EU, conscious that crimes against cultural treasures can be effectively prosecuted only through cooperation between Member States, decided to insert the crime of “illicit trafficking in cultural property including antiquities and works of art” in the list of crimes provided for in Article. 2, para. 2, of the European Framework-Decision 584/2002/JHI on the European arrest warrant. In so doing, and through the abolition of the double jeopardy rule as a precondition for the surrender of the accused of such a crime, European Law assessed the criminal relevance of offences against cultural property in every domestic legal order and enhanced the protection of national treasures through the adoption of uniform criteria that simplify the surrender procedures between Member States, in accordance with the principle of mutual recognition.
More over, the crime of illicit trafficking in cultural property is also included in the Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders. According to this act, the principle of mutual recognition and immediate execution of judicial decisions applies also when the acts giving rise to the confiscation order issued by a Member State constitute the offence of “illicit trafficking in cultural goods, including antiques and works of art” (art. 6, lett. g), so that the order can automatically be executed in the territory of the other Member States.