top of page


With its recent ruling of 7. April 2017, the Lazio Regional Administrative Court returned to the concept of national cultural heritage to reaffirm the interpretation of administrative case law according to which, for the protection of cultural heritage, not only any cultural or artistic good that has a direct or indirect link with the history and culture of our country must be considered as subject to the protection rules and, consequently, to export restrictions, but also any good or artefact which, although having no connection with Italian culture (for example, because it relates to another geographical context or was created by a foreign artist), nevertheless has a clear connection with Italian culture, but also goods or artefacts which, although having no connection with Italian culture (for example. e.g. because they come from a different geographical context or were created by a foreign artist), but nevertheless reveal their importance for the realisation of Italian collections or, more generally, testify to their context of reference in Italy.

On the basis of this principle, therefore, a Ming ceramic vase, which is the evident fruit of the ingenuity and culture of a people that had no contact, if not absolutely episodic, with our western culture, can be considered part of the national heritage.

Such an interpretation entails the possible application of the provisions of protection and, consequently, of the export ban even for artefacts that, in themselves considered, do not have connotations of particular cultural importance, merely because their context of reference is poorly represented in Italy; This is the case examined by the judgment under review, which confirms the refusal of the certificate of free circulation for a minor and early work by Salvador Dalì not only for the undisputed importance of the author but, in particular, for the uniqueness of the painting as evidence of his formative period.

However, in application of the same principle, it is not excluded that the cultural interest may also be declared of artefacts that, in reality and in themselves considered, are nothing more than of mediocre importance, only because similar and more valuable ones cannot be found in Italy; This is the case, some years ago, of a Polynesian statuette that, in all likelihood, would not have aroused any interest internationally, but which attracted the attention of the Ministry because it was rare in the Italian museum scene (with a judgement, moreover, axiomatically assumed, since, compared to other types of works of art, the examination in question would have required a scrupulous and extremely difficult scrutiny of the catalogues of museums and anthropology collections scattered throughout Italy).

Moreover, the interpretation advocated by the Court also allows for the imposition of restrictions on the basis of motivations mostly linked to a nationalistic sense that is often incapable of pursuing the objectives of effective protection of the national heritage and that might even appear anachronistic, especially when compared with the European context to which our country is honoured to belong.

This is the case, very recently, of a Flemish terrestrial globe, whose submission to the protection regime by the Italian state (on the basis of historical-scientific reasons which, however, were not followed by the interest of any national cultural institution) has prevented the artefact from being placed in the collections of an important museum in the Netherlands.

It is therefore legitimate to ask whether such situations can still be adequately answered within the framework of national law alone or whether they do not need to be examined in the direction of a more Community-oriented view of the concept of cultural heritage.

Analysing EU law, the administrative judges have come to the conclusion that even in the light of European law the concept of national cultural heritage can only be defined autonomously by each member state, with the consequence that, as far as our country is concerned, the interpretations highlighted above must be considered in line with the European provisions as long as they respect the principles of typicality, proportionality and the existence of a real cultural interest.

This respect, however, must be subject to strict scrutiny when the appeal is lodged, since the derogations to the free movement of goods within the territory of the Union for the needs of the preservation of cultural heritage (Article 36 TFEU) must be interpreted restrictively and, especially with regard to the criterion of proportionality, European case law has had occasion to express itself in the past, considering the application of national regulations to the specific case not in accordance with proportionality.

7 views0 comments


bottom of page