THE PROTECTION OF CULTURAL GOODS IN EUROPEAN LAW
In the 90s’ the European Community showed interest in the protection of Member States’ historical and artistic treasures of its Member States from the standpoint of controlling illicit traffic in cultural goods. In fact, if cultural goods are considered as any other “good” according to EU law, for they have an economic value, it follows that they can circulate freely everywhere in the EU territory, according to the principle of free circulation of goods in the internal market. Consequently, the uncontrolled circulation could have impoverished the national treasures of those States rich in historical and artistic masterpieces.
For this reason some States concerned that the establishment of the common market (on 1 Jan. 1993) and the abolition of borders between Member States could have jeopardized their cultural heritage, took action. Then, the EU Institutions decided to harmonize Member States national legislations, which rule differently the restrictions of trade in cultural goods: Legislations of Southern Europe States, such as Italy and Greece, have a severe protectionist approach, whereas those of Northern Europe countries have a more liberal discipline, so that in the latter States there is a large international art market.
The legislative intervention of the European Community was two-pronged: on the one side, toward a global ruling on the export of cultural goods outside the EC territory, which brought to the enacting of ECC ECC Council Regulation No 3911/92 of 9 December 1992 on the export of cultural goods, now replaced by Council Regulation (EC) 116/2009 of 18 December 2008 on the export of cultural goods and, on the other side, toward a ruling on the circulation of cultural property inside the EU territory, through the Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State, whose aim is mutual recognition of the relevant national laws.
The EU legislation has been transposed into Italian law and is now contained in the 2004 Code of cultural property and landscape (Decreto legislativo 22 Jan. 2004) in the part dedicated to “export outside the EU territory” (Artt.73-74) and to “return of cultural objects unlawfully removed from the territory of a Member State” (Artt.75-86).