I recently came across some measures by which the MIBACT orders the owner to immediately return to Italy works of art exported following the issuance of certificates of free circulation, which were subsequently cancelled, and it seemed appropriate to point out some critical aspects that seem to me to emerge, firstly because of the exercise of an administrative power whose existence is not entirely clear and, secondly, because of the manner in which such injunctions were issued.
In fact, while the Code of Cultural Assets expressly provides, in other circumstances, for the power of the administration to issue orders enjoining the private owner of a culturally significant asset to do something (see the indirect protection orders under Articles 45 et seq. or the orders of reinstatement following the violation of the obligations of protection and preservation under Article 160), it does not seem to me that the law envisages a power to order the private individual to order the return to Italy of a work illegally exported or in any case illegally present abroad.
On the contrary, precisely for these cases, Community law and the international conventions ratified by Italy (first and foremost the well-known UNIDROIT Convention of 1995 as well as the UNESCO Convention of 1970) provide that the Italian administration may request the restitution of the property to the foreign State where it is located.
Therefore, such injunctions could be considered to have been issued in the absence of power.
The second aspect that has raised not a few perplexities concerns the sanctioning aspects of which the ordinance threatens to apply.
In fact, the measures analysed conclude with the indication that failure to comply with the order to return the property to Italy could lead to the application of a whole series of criminal and administrative sanctions and, in particular, those provided for by the Code of Cultural Property in Articles 163 (loss of cultural property), 165 (violations of provisions on international circulation), 174 (unlawful removal or exportation) and 180 (failure to comply with administrative measures).
The first remark that I would like to make is related to the method: beyond any consideration of the existence of such a power, it does not seem to me that it can be considered an example of proper administrative management to draft a provision that indicates the possible application of a whole series of sanctioning consequences, some even alternative to the others, without providing the person concerned with any certainty in this regard.
It seems to me, in fact, to be merely intimidating behaviour, motivated more to solicit spontaneous compliance out of fear of the possible consequences than to provide the addressee of the injunction with correct information on the risks of its non-fulfilment, also because the penalties threatened turn out to be particularly severe, reaching, in addition to the application of prison sentences, even the confiscation of the property or the payment of its pecuniary value.
It goes without saying that such an attitude does not appear to be in line with the constitutional principles of good performance and impartiality, being more in line with a merely repressive intent that is undoubtedly outside the scope of our legal system, although, unfortunately, not always of administrative action: the administration's task is to provide users with a platform of legal certainty on the basis of which they can regulate themselves, certainly not that of generating doubts or fears that, as we shall shortly see, run the risk of being mostly unjustified.
In fact, I consider that the articles of law cited have very little to do with the case at hand, since, while it is true that the annulment of the certificate of free movement has a retroactive effect (which means that the act annulled must be considered as never having been issued) and that as a consequence of it, the permanence of the work of art abroad must be considered unlawful (at least on the basis of Italian and European law), it cannot be disregarded that the exportation took place before the annulment, when the certificate had in any case been issued and was in force.
The consequences of the appearance of entitlement and the protection of the legitimate expectations placed by the owner on the validity of the certificate of free circulation risk being too complex and would take us too far from the objective of this contribution; suffice it to say that if the exportation took place before the cancellation of the certificate of free circulation, the subjective element of liability (whether by way of guilt or fraud) that is the basis for the application of a criminal or administrative sanction is very unlikely to be found.
Consequently, I believe that the application of Article 174 of Legislative Decree 42/2004 can be radically ruled out, which criminalises anyone who exhibits works of art without a certificate of free circulation.
The two administrative penalties provided for in Article 163 and Article 165 are also not applicable in this case.
In fact, Article 163 ("If, as a result of the breach of the obligations laid down by the provisions of Section I of Chapter IV and Section I of Chapter V of Title I of Part Two, the cultural good is no longer traceable or is found to have left the national territory, the offender shall pay the State a sum equal to the value of the good") is not applicable since the good did not leave the national territory in breach of the legislation, since the certificate of free circulation existed when the exit occurred: it was simply, as a consequence of the subsequent cancellation by export permit, unlawfully abroad, which is quite a different thing. Moreover, as already set out above, the unlawful presence abroad would appear to be more a consequence of the inertia of the administration than of the owner's action and, therefore, it is hard to see why it should be the latter who should be penalised.
The same can be said with reference to Article 165, according to which "Except in cases of complicity in the crime provided for in Article 174, paragraph 1, anyone who transfers abroad the things or property indicated in Article 10, in violation of the provisions set forth in Sections I and II of Chapter V of Title I of Part Two, shall be punished with the administrative sanction of the payment of a sum from euro 77.50 to euro 465", since the act of transfer does not appear to have been committed in violation of the regulations.
The only rule that could be applied would therefore be Article 180, according to which 'Unless the act constitutes a more serious offence, anyone who fails to comply with an order issued by the authority responsible for the protection of cultural property in accordance with this Title shall be punished with the penalties provided for in Article 650 of the Criminal Code. (i.e. arrest of up to three months or a fine of up to €206).
However, the application of this rule presupposes that the administrative measure is to be considered legitimate and the criminal court may disapply it if it does not find the prerequisites of legitimacy.
In any case, it should be challenged in the administrative courts as well.
In conclusion, I believe that such ordinances are on the fringes of our legal system, with not a few reservations as to their legitimacy that highlight a trend, unfortunately increasingly evident, towards the debasement of good legal technique, subjugated to the attempt to achieve the concrete results that the administration sets itself, regardless of the powers that the law grants it.