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Export of cultural goods in Italy

In Italy, the export of cultural property is regulated by the Code of Cultural Heritage and Landscape, which deals with not only the export of cultural property, but also the protection of monuments in general and all protective and procedural provisions.

Article 2/2 of the Cultural Heritage and Landscape Code, refers to Article 10 of the code, which defines the term "cultural good." (Source: Art 10 and Art 2/2)

According to Article 10/1 of the Code, cultural goods are: "immovable and movable things belonging to the State, the regions, other public territorial bodies, as well as any other public body and institute and private non-profit legal persons, including civilly recognized ecclesiastical bodies, which are of artistic, historical, archaeological or ethnoanthropological interest." (Source: Art. 10/1)

Article 10 (1) and (2) of the code regulates public goods, they are presumed to be cultural goods and therefore it is not possible to export them. If a public property will be exported or sold, it must first undergo a verification procedure according to Article 12 of the Code.

If, after the verification procedure, according to Article 12, the public interest in preservation is confirmed, the work of art is declared a cultural good and the export will be denied. On the other hand, if it is determined that there is no cultural interest, an export permit may be applied for. (Source: Art. 10 /1-2 and Art. 12)

(Source: Art. 68/4, Art. 10 and the Ministry Decree 537/17)(Source: Art. 68/4, Art. 10 and the Ministry Decree 537/17)after a special verification. This verification can be requested by the owner himself under Article 12, or initiated by the public administration also following an application for an export permit. (Source: Art 10/3, Art. 13, Art. 14 and Art. 15)

In this case, the special ministerial decree number 537/17 applies, which provides for a ban on exporting works of art that have at least two of the qualities listed below:

  1. Artistic quality of the work: these are the tools of the executive quality of the artwork, i.e. the beauty of the painting and the expressive ability;

  2. Rarity (in a qualitative and/or quantitative sense): This point deals with the rarity of the work in terms of the existence of other works by the same author in the country, high historical significance, and rarity of the materials used in its production;

  3. Relevance of representation: This is about the relevance of the representation of the work, or the importance of the work as a historical record;

  4. Belonging to a historical, artistic, archaeological, monumental complex and/or context: This is about the fact that an image from a collection or part of a building cannot be exported independently;

  5. Testimony particularly significant to the history of collecting: This point is about a complete collection of artworks, or a work that is part of it, if it is of particular importance to the history of collecting;

  6. Archaeologically, artistically, historically, or ethnographically significant witness to significant relations between different cultural areas, including foreign production and/or provenance: This point governs the importance of artworks to dialogue and history between different provinces, states, or cultures. (Source: Art. 68/4, Art. 10 and the Ministry Decree 537/17)

Assets in Article 11 of the code, such as frescoes, coats of arms, sculptures or graffiti, are also cultural property, if there is a history of cultural value behind them. The goods listed in paragraph 1/d are subject to special protection: "works of painting, sculpture or graphic art or any other work of art created by a living author or created not more than 70 years ago." (Source: Art. 11)

It should be noted that Italian law classifies many more objects as cultural property than other states do.

The existence of cultural interest in private property is determined through a declaration under Article 13 of the code. If, after the determination, the work is declared to be of cultural interest, the object may remain with the private owner, but there are accompanying obligations: for example, the object must be well preserved and must not be exposed to conditions that would ruin it or other influences that could harm the object's preservation. If the object is not well preserved, the state is entitled to confiscate it. (Source Art. 13)

In addition, in the case of transfer of ownership (not only by sale but also free of charge, such as in cases of subsequent inheritance) the Italian state has a right of first refusal.

In Italy and the EU, unless there is an export ban, a permit from the Ministry of Culture is required to export a cultural object. According to Article 65 of the code, you are exempt from the requirement in two cases:

  1. if the artist has been dead for less than 70 years and

  2. if the value of the work of art is less than 13,500 euros. (Source: Art. 65/4)

If one of these cases exists, a declaration must be submitted to the ministry. If no response is received from the ministry within 40 days, the owner is free to export the artwork out of Italy.

In every other case it needs a free movement certificate according to Article 68 of the code and Ministry Decree 246/18 Article 7. (Source: Art. 68, Art. 72 and Ministry Decree 246/18 Art. 7)

To obtain the certificate of free movement, an application must be made to the export office, declaring the known elements of the work of art (e.g. title, author, dating and so on) as well as the economic value of the object.

Under Article 68 of the code, the ministry conducts a survey of the artwork to see and study the value of the object and consequently determine whether the object can be exported. The Ministry Decree 537/17 also comes into play here, as it determines whether two, out o six, or more, qualities are present, in which case, the permit will be denied.

Once the correct value is determined, the Ministry has the option to compulsorily purchase the artwork at the same price according to Article 70 of the code. The owner will only be able to prevent the purchase from state ports by renouncing the export, but in this case the work will be declared a cultural good. (Source: Art. 70)

Export regulations apply to any work of art in Italy, but not to those works that, although are currently in Italy, but were produced abroad. This is a very important exception, because it allows the owner to keep his works in Italy for an indefinite period of time and to be able to export them freely without the risk of having them restricted or, worse, purchased by the state. In fact, Article 72 of the Cultural Heritage Code provides for the possibility of requesting the issuance of a certificate attesting to the work's foreign provenance.

In order to obtain the certificate, according to Article 2 of the decree 246/18, the documentation indicated in the article itself must be presented to prove that the object has entered Italy not more than 40 days ago: the still intact parcel, the stamps or other postal or customs documents can prove that it has not been received by the consignee for more than 40 days. In addition, the parcel must correspond in weight, size and volume to the information in the postal and customs documents. Article 72/3 states that these are valid for five years and can be renewed at the request of the concerned person for an infinite number of times. This is specified in Article 4 of the decree: every five years, the certificate may be renewed for another five years. The export office sends the renewal application within 40 days to the competent authority, which approves or rejects the renewal within the next 20 days. In case of approval you receive the certificate again for another five years.

Article 5 of the decree 246/18 explains that at the time, when the owner wants to export his work of art, it will be sufficient to submit the certificate held under Article 72 of the code to the export office to receive the export permit without having to carry out the verifications established by Article 68 mentioned earlier. (Source: Art. 72 and Ministry Decree 246/18 Art. 2, 4 and 5)

Finally, it is clarified that the illegal export of works of art is severely punished by Article 518 of the Criminal Code. The offense carries a penalty of imprisonment of two to eight years and a fine of up to 80,000 euros.(Source: Article 518 undecies of the Criminal Code)

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