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NOVELTIES IN THE AREA OF RESTRICTIONS AND EXPORT OF CULTURAL GOODS

Today, 29 August 2017, the rules introduced by Law 124/2017 on the export of cultural goods and restrictions enter into force.

Here is an initial review of the main novelties introduced.



EXCLUSION FROM INTERNATIONAL TRAFFIC CONTROL

paintings, sculptures, graphics and any other artistic object by a living author whose execution is not more than 70 years old have been excluded from circulation control, thus raising the previous limit of 50 years.

Also excluded are works by an author no longer living whose execution dates back more than 70 years and whose value is less than €13,500.00.

The new rule nevertheless subjects archaeological goods, parts of dismembered monuments, incunabula, manuscripts and archives (as set out in Annex A, section B, number 1 of the Code of Cultural Property) to inspection, regardless of their market value.

This, however, does not mean that it is no longer necessary to obtain the certificate of free circulation: in fact, the owner who intends to export an object excluded from the control will have to submit to the export office a self-certifying declaration certifying the existence of the conditions for the automatic issuance of the certificate of free circulation, subjecting himself to penal consequences in the event of a false declaration.

The new discipline does not seem to me to be of immediate application, since the law delegates to a subsequent ministerial decree the identification of the application procedures; it would be desirable, therefore, that when issuing this decree, the Ministry provide certain clarifications, especially with regard to the problem of determining the value. 


THE PROBLEM OF DETERMINING THE VALUE OF THE ASSET

The new legislation poses a first obvious problem, given the difficulty of establishing the correct and safe value of a cultural asset. In fact, it is not uncommon for such quantification to be strongly influenced by factors of high evaluative discretion (taste, collector's predilection for a particular author, competition at auction, etc.). 

In fact, the value of an asset must undoubtedly be understood as its market value which, therefore, can easily be derived, albeit with some distinctions, from the purchase price indicated on the invoice (or, in the case of an antiques business carried out in corporate form, also from the value recorded in the balance sheet), as well as from the prices reached at auctions; but what can be said of an asset whose purchase is very old or has never been bought or sold before?

It seems to me, moreover, that the value must be understood to be that which can be assessed on the Italian market; otherwise, in fact, one would be obliged to undertake exhausting investigations of all international markets, complicating even more the already pervasive discretionary nature of the quantification; this is of extreme importance, since, as is well known, the difference in value between an asset on the domestic market and on the international market can also be very significant.

A glaring example of this, if you like, was manifested in the case of the discovery of the De Jode globe, valued at € 800.00 on the Italian domestic market, but whose value on the foreign one is immeasurably higher.

In view of the penal consequences of making false declarations, I believe it is advisable to advise anyone intending to declare a value below the threshold of € 13,500.00 to obtain an expert's report or a declaration by the owner, if the declarant is a third party (e.g. a forwarding agent); I also believe it is advisable to affix a certain date to the report, prior to the self-certification date.


THE PROTECTION OF THE INTEGRITY AND COMPLETENESS OF THE NATION'S CULTURAL HERITAGE

The new rules on international circulation provide that, in the presence of self-certification, the export office may request the examination of the object both to ascertain the truthfulness of what has been declared and to verify that the work is not of exceptional interest for the preservation of the integrity and completeness of the cultural heritage of the Nation.

The problem arises here of understanding what the legislator intended to protect with this new casuistry, since the terms used appear rather vague and run the risk of proving, in practice, to be empty in content.

I would point out, however, that the application of this rule requires an exceptionality.

In other words, the property will be considered of cultural interest where, in its absence, the cultural heritage of the nation would be exceptionally impaired.

In any case, the new provision does not apply to works that are by a living author or whose execution is not more than 50 years old.

The central bodies of the Ministry are responsible for issuing the restriction order; therefore, if the export office considers this new regulation applicable, it must deny the certificate by forwarding the deeds to the Ministry for attachment.

The rule provides that the procedure must be concluded within 60 days, but since no sanction is envisaged for exceeding this timeframe, I would consider the term as merely ordinatory, hoping that in practice it will not become mocking (as sometimes happens).


THE CERTIFICATE OF FREE MOVEMENT

The period of validity of the document is extended to 5 years, while the duration of the extra-EU export licence is extended to 1 year.

Lastly, the new law envisages that within 60 days the Ministry will issue a decree on the new general guidelines to be followed by export offices in issuing certificates of free circulation; in fact, Article 68 of the 2004 code already envisaged the adoption of such guidelines, but the rule had remained a dead letter, to the point that, as is well known, the reference discipline is still the Ministry of Education circular of 13 May 1974, which on more than one occasion has demonstrated its inadequacy and the need for restyling.

In fact, the Ministry had already set up a working group before this law was issued and, therefore, it only remains to be hoped that the timeframe for issuing the decree envisaged by the new regulation will be short.


THE PASSPORT FOR WORKS OF ART

The establishment of this passport, about which little or nothing will be known until the implementing decrees are issued, is a real innovation that will hopefully help overcome the problems that are sometimes encountered in the re-entry into Italy of works from abroad with a certificate of temporary importation.

I would like to point out that the passport will in no way replace the certificate of free circulation, which will still have to be requested if you want to bring back a temporarily re-imported work of art from Italy, but will merely provide a more accurate 'snapshot' of the movements of a work of art on the international market.


THE ELECTRONIC REGISTER OF ANTIQUE DEALERS

the register that already exists under Article 63 of the Code is updated by electronic means that allow it to be consulted remotely and in real time by the offices of the superintendencies.

The register is to consist of two sections in which the goods are to be entered depending on whether they are required to be examined by the export offices for the issuance of the certificate of free circulation or whether the latter is issued automatically, pursuant to the new provisions introduced on the basis of the self-certification declaration.

It goes without saying that this provision cannot be understood as being immediately applicable in the absence of regulations governing at least the technical requirements.

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