FOREIGN ARTWORKS: LEGISLATIVE DEVELOPMENTS AND NEW PROVISIONS OF LAW 40/2026

Law 40/2026 was recently enacted to amend Article 68 of the Code of Cultural Heritage and Landscape concerning the movement of artworks and cultural property outside Italian territory, introducing significant changes regarding the export of artworks by foreign artists. Particularly significant is the legislative development concerning the protected interest: pursuant to Article 4(5), specific regulations are introduced for works by foreign artists, distinct from the concept of a ‘foreign work’ previously provided for in national legislation.

‘Foreign artwork’ vs ‘artwork by a foreign artist’: prerequisites and differences

The definition of ‘foreign artwork’ is found in Circular 28/2014 of the Directorate-General for Archaeology, Fine Arts and Landscape and is used for the assessment of the issue of the certificate of free circulation: a ‘foreign artwork’ is defined as a work by a foreign author that was not created in Italy. The essential prerequisites for this category are, taken together, the foreign origin of the artist and the creation of the work outside Italy, with the consequence that works lacking either of these two prerequisites do not fall within the definition. According to the regulations, the work may not leave Italian territory once the administration has identified at least two of the criteria set out in Ministerial Decree 537/2017.

Within this regulatory framework, the previous legislation, linked to the concept of a ‘foreign artwork’ as defined above, did not require the Ministry to specifically investigate the cultural significance of the work in terms of relations between different cultural areas (see point 6 of Ministerial Decree 537/2017). In essence, under the previous regulations, a foreign work could be subject to cultural restrictions even in the absence of a connection with Italian history and culture (in this regard, see also TAR Lombardia, Milano, 18 January 2023, No. 126).

Law 40/2026 intervenes by introducing the concept of a ‘artwork by a foreign artist’ as a constituent element for the purposes of granting the certificate of free circulation. The sole prerequisite of the new definition is the foreign nationality of the work’s author, regardless of where the work was created. In particular, the new law provides that for works of art by foreign authors, the certificate of free circulation cannot be refused ‘unless their specific relevance to the history of Italian culture is established’. From this perspective, the simplification introduced by the legislator is clear for those wishing to export a work abroad. The definition takes on particular significance also given that a refusal automatically triggers the procedure for declaring cultural interest.

Law 40/2026 makes the author’s nationality the prerequisite for the application of the new provision and marks a shift in the criteria that must now be identified by the administration to refuse an export request: the concept of ‘specific relevance’ (Article 4(5) of Law No. 40/2026) of the object to the history of Italian culture. This represents a reversal in the application of the relevant regulations, as it necessitates the presence of the ‘relevant evidence of significant relationships between different cultural areas’ provided for in criterion No. 6 in order to issue a refusal. In this context, the criterion takes on greater centrality and stands as the technical-scientific parameter most consistent with the new legislative requirement.

In summary

Law 40/2026 has introduced a new definition of a foreign artwork, making the requirement that the author of the work be foreign binding, regardless of the place where the work was created. The new definition is set out in the broader framework of Article 4(5) of the new law, under which it becomes essential for the administration, in order to refuse an export application, to demonstrate the specific relevance of the work to the history of Italian culture.