As part of the 2018 European Year of Cultural Heritage, the European Union pledged to curb the illicit trafficking of cultural goods; the Regulation on the Import of Cultural Goods was the crux of this commitment. Following numerous concerns about an early draft of the regulation on both sides of the debate, its timetable slipped and it was only adopted by the European Parliament on 12 March 2019. This was still too early for the UK art market (and indeed the many UK MEPs who voted against the regulation in October 2018), which had hoped the regulation would not be adopted until after Brexit, furnishing the UK with a narrow escape.
While the art market may prefer the regulation to disappear altogether, some concessions and compromises were made during the legislative process. In particular, the regulation now includes exemptions for temporary import for art fairs, exhibitions, restoration, study or the safekeeping of objects with the intention to return. The regulation also exempts cultural goods created or discovered in the EU, and the restrictions for ancient manuscripts have been watered down considerably. Two major criticisms of the earlier draft were its heavy reliance on implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and the assumption that the country of origin would always be definitive. The earlier draft assumed that legal export of an object from a signatory state to the 1970 UNESCO Convention meant that the object had not been illicitly trafficked, as import of illicitly trafficked objects would have been prevented – which failed to recognise that ratification and implementation of the 1970 Convention vary greatly (over several decades). Further, the draft failed to take into account that where objects have been looted from the ground, it is often impossible to determine the exact origin in which to assess legal export; thankfully, both of these problems have been resolved in the final regulation.
As the regulation does not apply to EU objects, it will most likely have an impact on the movement of ancient art from the eastern and southern Mediterranean basin, Iran, India, South and Central America, Asian and tribal art. The regulation creates two tiers of objects: firstly, those most at risk (archaeological finds and/or items removed from monuments and sites), being more than 250 years old (Annex B) and secondly, under Annex C, other cultural objects exceeding 200 years in age with a minimum value of €18,000. The definitions reprise those used in international treaties and have been criticised by the art trade for being too wide, going well beyond the items most at risk from illicit trafficking. High-risk objects will require an import licence; others, not considered high-risk (Annex C), will require an importer statement.
To obtain a licence for high-risk objects, the importer must submit an electronic application to the competent authority in the importing member state. While the EU has two years to establish the precise rules and evidence required, the importer must provide evidence that the object was legally exported from the country of origin (or discovery) and provide the necessary export licences. If the country of origin cannot be reliably determined, or the export of the object pre-dated the date on which the 1970 Convention entered into force (24 April 1972), the importer need only show that the object was lawfully exported from the last country where it was located for more than five years (i.e. not a transit country).
To import lower-risk objects (Annex C) the importer must submit an ‘importer statement’, confirming the object has not been unlawfully exported from its country of origin (or discovery). The importer must provide information on the object in a ‘standardised document’ (the standard is still to be determined but it has been suggested that the Object ID standard recommended by UNESCO to describe an object could be used), and evidence of legal export. Again, if export was before April 1972 or the country of origin cannot be reliably determined, the importer can state export details from the last country, if located there for more than five years.
Regardless of whether import is of a high-risk or other cultural object, in both cases, it is sufficient for the importer to provide evidence that no export licence was required under local law in the country of origin at the time of export.
The regulation will apply automatically in EU member states. It is anticipated that EU legislation in force on Brexit day will be transposed into UK law; however, given the uncertainty at the time of writing, this is far from definite. Even if the regulation is not adopted in the UK, the UK art trade will be significantly affected, given the high volume of exports to the EU.
As for implementation, in reality there will be a long transition period, as the provisions will be deferred until the electronic licensing system is fully operational, which is expected to take four years. Before that, the EU has two years to establish the rules and processes for the electronic system, meaning the regulation will not take effect before 2025. This allows time for owners and collectors to audit their collections and perform the required research to establish the export date (and whether an export licence was required at the time) and/or to determine the modern-day country of origin.
For objects exported before 1972, or where a country of origin cannot be determined, importers should retain all import and export documentation and should consider keeping objects in one country for five years to satisfy the requirements. This will complicate matters when it comes to selling internationally and may discourage buyers. Regardless, importers should prepare for significant delays, since decisions for an import licence can take up to 90 days.
Fionnuala Rogers is a consultant art and cultural property lawyer at Constantine Cannon LLP.
From the May 2019 issue of Apollo. Preview the current issue and subscribe here.