Comments on the new regulation on the import of cultural goods from outside the EU into the Union.

On 12 March 2019 the European Parliament plenary session adopted its position at first reading of a draft Regulation on the import of cultural goods from outside the EU into the Union.[1] Its President was instructed to forward its position to the Council, Commission and the national parliaments and it called on the Commission to refer the matter to Parliament again, if it intends to make substantial amendments. The Regulation is currently expected to come into full effect sometime between 2024 and 2026.

The idea behind the Regulation is to combat the trafficking of cultural goods[2] to finance terrorism. However, it is doubtful as to whether such terrorist financing is actually happening. The EU’s own initial report acknowledges that there is no evidence that such financing is taking place. The EU also commissioned a further, more comprehensive study into whether terrorist organisations are trafficking artefacts, but it did not wait for the results of that study before committing to the Regulation.

Anyone wishing to import an item will need to apply to the country of import for the grant an import licence in accordance with Article 4 of the Regulation or submit an importer statement in accordance with Article 5 depending on the category, age and sometimes the value. In those cases where an importer statement suffices it shall consist of a statement that the artifact has been exported legally and containing a description in sufficient detail for it to be identified. Member States can only grant an import licence if they are certain that the exportation of the item from its country of origin (that is the territory where the artefact was created or discovered) was legal. In each case it will be for the applicant to prove that the exportation was legal. Sanctions will be for each member state to determine.

To demonstrate that an item has been exported from its country of origin legally at the time it was taken out of the country, the requirements will depend on the category of item being imported. For example, if an object is over 200 years old, the owner may have to produce a sworn affidavit that that item was removed from its country of origin legally. In many cases there may be no way for the owner to know whether the artefact was exported legally. Applications for some objects exported from their country of origin after 1972 will need to be accompanied by an export licence from that country. The majority of these documents seem likely to have been lost or discarded, if they even existed in the first place. Many of the countries from which such objects are most likely to originate do have laws regarding the excavation or export of items but, in reality, such licences were rarely actually granted. This is particularly true of Egypt. Egypt rarely issued such licences, and the licence does not describe the item to which it related, making it impossible to demonstrate which licence went with which item. The assumption seems to be that if no export licence was issued, the object must have been exported illegally.

If the country of origin cannot be determined, documents must be provided demonstrating that the object was removed legally from the last country in which it remained for 5 or more years. This again causes difficulties for the owner/importer, as they may be unable to determine when the item was last in the same place for 5 years. Even if this can be determined, other issues with documentation may remain where, for example, paperwork may have been lost, discarded, or never have existed in the first place.

There is likely to be a substantial impact on the EU antiques market. Although the Regulation does make provisions for temporary licences in relation to antiques fairs, the trader will need to apply for a further licence before they can release the object to the buyer. A buyer will be unlikely to risk buying an object when the legality of its origin cannot be guaranteed.The anticipated impact of the Regulation on the objects themselves is likely to be similar to the ‘orphan objects’ phenomenon in the US, which was an undesired result of the so-called ‘1970 rule’, which came about as the US tried to implement the UNESCO Convention with strict domestic law. The 1970 rule meant that where the legal exportation of items could not be determined, they could not be exported or displayed. It is estimated that there are hundreds of thousands of museum-worthy items of cultural interest in the US which consequently have nowhere to go.

Currently, there are no licensing requirements for the importation of items of cultural interest to the UK. If the UK has left the EU by the time of the Regulation coming into force without remaining in a customs union then the Regulation will not apply to the UK. This would be a relief for traders wishing to import such items to the UK from non-EU countries. However, it is unlikely to provide comfort to dealers wishing to trade into the EU or with EU customers because the Regulation relates to the importation of cultural goods from outside the EU. The destination Member State will therefore need to implement the stringent new rules against the newly-independent UK.

Annex: Cultural goods covered by the draft Regulation

(a) rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;
(b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;
(c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries on land or underwater;
(d) elements of artistic or historical monuments or archaeological sites which have been dismembered; [3]
(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;
(f) objects of ethnological interest;
(g) objects of artistic interest, such as:
(i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);
(ii) original works of statuary art and sculpture in any material;
(iii) original engravings, prints and lithographs;
(iv) original artistic assemblages and montages in any material;
(h) rare manuscripts and incunabula;
(i) old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections;
(j) postage, revenue and similar stamps, singly or in collections;
(k) archives, including sound, photographic and cinematographic archives;
(l) articles of furniture more than one hundred years old and old musical instruments.

[1] European Parliament: Legislative Resolution (P8 TA-PROV(2019)0154) (12 March 2019)
[2] ‘cultural goods’ are defined as any item which is of importance for archaeology, prehistory, history, literature, art or science as listed in the Annex to the draft Regulation which is set out in full at the end of this note.
[3] Liturgical icons and statues, even free-standing, are to be considered as cultural goods belonging to this category.