The Exemption of Works of Art from Seizure – A Preliminary Critical Analysis
- Avv. Emanuele Spina
- 7 ago
- Tempo di lettura: 7 min
A couple of years ago, I found myself in discussion with the heads of a major Italian cultural institution, who confessed to me, with concern, that they had sometimes been forced to conceal from their foreign counterparts – through guilty silences and no small amount of embarrassment – the very real, albeit abstract, possibility that the works on loan to them might be subject to seizure and even confiscation by the Italian judicial authorities, should any kind of dispute arise concerning them.
They explained to me, in fact, that if this risk had been perceived as real, they would have found it very difficult to secure the loan of works of significant cultural importance for the exhibitions they organised.
Bearing this conversation in mind, I awaited with some trepidation the enactment of Law 134/2026, which would finally introduce, into our legal system as well, a restriction on the seizure of works of foreign origin temporarily on display at Italian events or exhibitions, already anticipating the satisfaction that my previous interlocutors would express to me at our next meeting.
I haven’t yet had the chance to speak to them again, but I can already express my deep disappointment, which stands in stark contrast to the many enthusiastic expressions of jubilation I have read in the national press and on some of the blogs I follow.
Perhaps I am being a bit of a pessimist (having now passed the halfway point, both in terms of my age and my career, it can happen), but I cannot see how this legislation can adequately fulfil its purpose of facilitating the inclusion of major works of art in Italian exhibitions.
I have therefore decided to set down a few brief reflections of my own, not with the intention of presenting them as an in-depth doctrinal analysis, but rather as food for thought for myself and for anyone kind enough to read them.
What does the new law say?
As is well known, Law 134/2026, which consists of a single article, prohibits only the judicial seizure of works of art of foreign origin that are temporarily brought into Italy to be exhibited at exhibitions or events held in museums or other cultural institutions.
However, such works must be publicly owned or belong to ‘institutions of significant cultural or scientific interest’.
Furthermore, this exemption from seizure applies only to civil proceedings before an Italian court in which the right of ownership or possession of such works is at issue.
Naturally, the legislator is particularly keen to clarify that, in any event, the various provisions arising from international conventions and agreements – including bilateral ones – as well as compliance with European Union legislation, shall remain unaffected.
Finally, immunity from seizure will be granted if (and only if) the country of origin, in turn, grants similar protection to works of Italian origin (the so-called condition of reciprocity).
The subjective requirement relating to the owner of the work
This is the requirement that surprised me the most: if the rationale behind the law is to facilitate the exhibition in Italy of important works that are normally held abroad, why should it be limited solely to those in public ownership?
On the contrary, priority should be given to granting immunity to privately-owned works, since publicly-owned works are, as a rule, less prone to civil litigation, given that museums are increasingly diligent in carrying out thorough due diligence when acquiring a new work for their collection.
On the other hand, if the aim is to make important works of art more accessible to the Italian public, I do not believe that the distinction between public and private ownership is of particular significance.
One might object that, after all, private entities could also benefit from the law, as the immunity is intended to extend to ‘institutions of significant cultural and scientific interest’; this is true, but who determines the threshold of such significance? I imagine it would be the same judge who must decide whether to grant the seizure order and who, were they to be convinced of the merits, on the merits, of the seizure request put forward by one of the parties to the dispute, would probably also be inclined, in cases of doubt and subject to exceptional cases involving private institutions of clear international renown, to downplay the cultural and scientific importance of the institution claiming ownership and/or possession.
Furthermore, how is the institution’s significant cultural and scientific interest demonstrated? Should a foundation or association that is essentially inactive, but which holds one or more very important works of art in its collection, be considered important simply for that reason?
Or is it necessary to demonstrate the importance of the activities actually carried out by this institution at a cultural and/or scientific level?
At first glance, I would lean towards the latter interpretation, given that the law attributes significance to the institution and not to its assets; if this were the case, it seems to me that the requirement would ultimately coincide with the existence of public significance, albeit within the context of private ownership.
In conclusion, it seems to me that by imposing the requirement of public ownership (or public significance), the objective of facilitating the loan of works of art for temporary exhibitions is missed, perhaps in pursuit of the far less noble aim of sparing the Italian Government diplomatic trouble caused by some ill-advised judicial initiative.
Immunity from judicial seizure alone
As I have already pointed out, the provision prohibits only judicial seizure (as provided for in Article 670 of the Code of Civil Procedure, where it is necessary to take custody of an asset whose ownership or possession is in dispute), but does not prohibit – still within the sphere of civil law – the precautionary seizure provided for in the subsequent Article 671 of the Code of Civil Procedure, as security for a claim.
It is therefore advisable that the owner of a work of art exhibited at an Italian exhibition should have no outstanding legal proceedings of any kind against anyone, since the creditor could even obtain a protective seizure as a precautionary measure, even before an enforceable title has been established or, more likely, whilst proceedings are pending for the recognition in Italy of a judgment handed down abroad.
Furthermore, immunity does not cover a seizure ordered in administrative or criminal proceedings, contrary to the provisions of similar legislation in other countries (for example, Part 6 of the Tribunals, Courts and Enforcement Act 2007 in the United Kingdom, or Section 22 of Title 24 of the United States Code).
I do not have specific statistics on the subject, but in my (admittedly not so brief, alas) professional experience, there have certainly been more cases of seizures of works of art ordered by a judge in criminal proceedings than those (very few, in truth) ordered by a civil judge in disputes over property rights or matters of possession.
The vast majority of these, in fact, fall within the criminal sphere (think of cases of counterfeiting and money laundering, or seizures in cases of illegal export or smuggling, to name just a few common examples).
I searched the Ministry of Justice’s website for some confirmation on this matter, only to discover, unfortunately, that the data on seizures ordered by various courts in Italy are all grouped under a single broad heading of ‘precautionary proceedings’, from which it is not possible to extract the specific data of interest; however, the fact that the UK legislature, in section 135 of Part 6 of the aforementioned Act, takes the trouble to specify that the prohibition on seizing a work of art does not prejudice the prosecution of the offence of unlawful import or export, seems to me to corroborate the findings of my own small-scale, purely anecdotal analysis.
Therefore, in all these cases – which would appear to constitute the majority – the work of art would in any event be subject to seizure, despite certain enthusiastic proclamations I have come across in recent days.
The condition of reciprocity
Finally, this condition strikes me as entirely unreasonable.
It is unreasonable from the point of view of facilitating the entry into Italy of works that would otherwise only be accessible abroad, because this rationale has nothing to do with the fact that the same protection is afforded to Italian works in that other country.
Indeed, if it is known that a particular state does not recognise immunity from seizure under the same conditions as those we provide for (which, moreover, concern only works in public ownership or, at most, of public interest, and only in the case of judicial seizure in civil proceedings), the best protection for the works of our cultural heritage should simply consist of not allowing them to be loaned to that country.
This, moreover, seems to me to be the best form of pressure to ensure that the rules in that particular country are changed in our favour.
On the other hand, I do not see why we should discourage the display of foreign works of art in our exhibitions simply because the country of their origin discourages the display of ours: if exhibitions enrich the cultural lives of those who visit them, I fail to see what is wrong with a ‘selfish’ approach that brings a cultural (and, why not, economic too) benefit to Italy, in defiance of any condition of reciprocity.
But even from the perspective of the less noble diplomatic intent, it seems to me that this condition of reciprocity is of little practical use: I do not think it is particularly likely that any country, stung in its pride at not having such immunity applied to it, would adopt a reciprocal shield against us, whilst, in the event of a judicial seizure poorly applied due to the lack of the reciprocity requirement, diplomatic trouble seems to me to be just around the corner anyway.
In conclusion
If you have read this far without skimming over the preceding considerations, you will agree with me that, in all likelihood, my counterparts from a few years ago will continue to feel embarrassed at being unable to guarantee to their foreign counterparts that the works will return safe and sound to their country of origin.
If this law, or others in the future, fail to lift that veil of ill-concealed embarrassment from those who, day in, day out, seek to borrow works of art of international significance for the Italian public, it seems to me that the stated aim must be considered unachieved.
Perhaps, in this case, a little more courage would not have gone amiss.