Restrictions on the export of cultural property and artwork

136 Pages·2017·0.48 MB·English

Art law: Restrictions on the
export of cultural property
and artwork
November 2017
A report by the IBA Art, Cultural Institutions and Heritage Law Committee

Acknowledgement
I would like to extend my sincere thanks to the authors for helping me to realise this amazing project.
I owe a debt of gratitude to all of you who managed to devise contributions of highest scientific
quality on relatively short notice. As time has gradually become the most valuable resource in our fast-
paced world, especially for a group of individuals as busy and successful as you are, I highly treasure
your contributions.
Holding the final result in my hands for the first time, I feel the hard work has paid off. We have
created a thorough compilation of information that – provided the legislators’ cooperation – should
stand the test of time, and serve not only as valuable resource for the practitioner but also as a starting
point for scholarly debate on this issue.
Without you, this project would not have been possible.
Gratefully yours,
Peter M Polak
Report editor and Chair of the IBA Art, Cultural Institutions and Heritage Law Committee
NOVEMBER 2017 ART LAW: RESTRICTIONS ON THE EXPORT OF CULTURAL PROPERTY AND ARTWORK 1
Table of contents
Argentina 5
Australia 9
Austria 18
Belgium 23
Canada 31
Germany 40
Ireland 46
Italy 56
Malta 67
Mexico 76
The Netherlands 83
Russia 90
Spain 100
Sweden 107
Switzerland 120
United States 128
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List of Acronyms
1997 Act National Cultural Institutions Act, 1997 (Ireland)
ACCC Australian Competition and Consumer Commission (Australia)
AMLA Anti-Money Laundering Act (Switzerland)
B2B Business-to-business (Sweden)
BR Potential decree (‘ordonnance’) of the Brussels Region (Belgium)
BSA Bank Secrecy Act or Currency and Foreign Transactions Reporting Act of 1970 (USA)
CCPERB Canadian Cultural Property Export Review Board (Canada)
CDIU Centrala Dienst In-en Uitvoer (The Netherlands)
CHC Cultural Heritage Code (Italy)
CISG United Nations Convention on Contracts for the International Sale of Goods
CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora
(The Netherlands, Switzerland)
CPAC Cultural Property Advisory Committee (US)
CPEIA Cultural Property Export and Import Act (Canada)
CPIA Convention on Cultural Property Implementation Act (US)
CPTA Cultural Property Transfer Act (Switzerland)
DMSG Denkmalschutzgesetz (Austria)
EEA European Economic Area
FAMO Federal Antiquities’ and Monument’s Office (Austria)
FL The Decree of the Flemish Community of 24 January 2003 (Belgium)
FR The Decree of the French Community of 11 July 2002 (Belgium)
FTZs Foreign Trade Zones (US)
GER Decree of the German-Speaking Community (Belgium)
HEA Historic Environment Act (Sweden)
HER Historic Environment Regulation (Sweden)
INAH National Institute of Anthropology and History (Mexico)
INBA National Institute of Fine Arts (Mexico)
INTERPOL The International Criminal Police Organisation
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KGRG Kulturgüeterrüeckgabegesetz (Austria)
KGSG Kulturgüeterschutzgesetz (Germany)
MCLA Money Laundering Control Act of 1986 (US)
MiBACT Ministry of Cultural Property (Italy)
PMCH Act Protection of Movable Cultural Heritage Act 1986 (Australia)
PPSA Personal Property Securities Act 2009 (Australia)
PPSR Personal Securities Register (Australia)
SUE Sistema informativo degli Uffici Esportazione (Italy)
TAR Tribunale Amministrativo Regionale (Italy)
UCC Uniform Commercial Code (US)
UNESCO United Nations Educational, Scientific and Cultural Organization
UNIDROIT The International Institute for the Unification of Private Law
USSR The Union of Soviet Socialist Republics (Russia)
Wwft Anti-Money Laundering and Anti-Terrorist Financing Act (The Netherlands)
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Argentina
Juan Javier Negri
Negri & Pueyrredon Abogados, Buenos Aires
A. Protection of cultural property
1. What are the key characteristics of your country’s regulations on cultural heritage and
national patrimony?
Argentina is a federal country, so there are three levels of legislation: federal, provincial and
municipal. Federal law is strictly enforced, but controls are more relaxed at provincial and
municipal levels, especially regarding sites and buildings protection.
2. Under your national law, which criteria must be met in order to classify goods as cultural property?
Under the Cultural Heritage Act (Law 25197 enacted in 1999), ‘cultural goods’ are those objects,
living things or sites that constitute the expression or evidence of human creation and the
evolution of nature and have exceptional archaeological, historical, artistic, scientific or technical
value. There is a further definition of ‘historical and artistic cultural property’ comprising:
‘all human or joint natural and human works of irreplaceable nature, whose peculiarity,
unity, rarity and/or antiquity confers upon them an exceptional national or universal
value from a historical, ethnological or anthropological point of view, as well as
architectonical works, sculptures, paintings and those having archaeological nature’.
In addition to ‘cultural property’, under the statute creating the National Commission on
Historical Monuments, Sites and Assets (Law 27103, enacted in 2014, amending a prior
statute originally enacted in 1940), certain goods may be declared ‘of national interest’ if they
have ‘historical or artistic value’.
3. What are the legal consequences arising from classifying a good as cultural property? Does
the classification of a private asset as cultural property affect the right of ownership?
If a particular good is classified as ‘cultural property’ under the 1999 statute, it will only be
subject to classification, with no further consequences. If an asset is declared to be a protected
asset under the 2017 statute, any transaction affecting it or its export will require the prior
intervention and authorisation of the Ministry of Culture. In the case the intervention
imposes limitations on property rights, the owner must be indemnified.
4. Which authorities in your country define cultural property and who advises these
authorities?
The authority defining which assets are to be considered of ‘national interest’ is the Ministry
of Culture through the National Commission on Historical Monuments, Sites and Assets.
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5. Did your country ratify the 1970 UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,
and, regarding the illegal export of cultural objects and artwork: what are the main
characteristics of the national implementation?
Yes. Argentina ratified the convention with no reservations or changes pursuant to Law 19943
(1972).
6. Did your country ratify the 1995 UNIDROIT Convention on Stolen or Illegally Exported
Cultural Objects, and, regarding the illegal export of cultural objects and artwork: what are
the main characteristics of the national implementation?
Yes. Argentina ratified the convention with no reservations or changes pursuant to Law 25257
(2000).
7. Did your country ratify any other international conventions or bilateral agreements relating
to the export of cultural objects?
Yes. Argentina has ratified in 2002 the 1976 El Salvador Convention on the Protection of the
Archaeological, Historic and Artistic Heritage (the ‘El Salvador Convention’).
B. Restrictions on the export of cultural property and artwork
1. What are your country’s export restrictions regarding cultural property and artwork?
1.1 Under which conditions is export permission granted?
Export permission is granted to works by living or deceased artists (if, in the latter
case, no more than 50 years have run after the death), except if the work has been
declared to be part of the national cultural heritage of Argentina.
1.2 Which authority grants such export permission and who advises this authority?
The National Board of Cultural Assets and Sites.
1.3 What does the proceeding look like, who are the parties to the proceeding and what
is the duration of the proceeding?
Proceedings are swift and normally permission is granted in 24 hours.
1.4 Are there any monetary thresholds (de minimis)?
No.
1.5 Does the circumstance of the artist still being alive or the time of creation of the
artwork matter?
Yes. The work by living artists, in practice, finds no restrictions. Works of artists dead
for over 50 years find more difficulties.
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2. Is the State obliged to buy out the artwork for which an export permission was denied?
No. The owner must file a lawsuit with such purpose.
3. Are there any exceptions to these regulations (eg, temporary export for exhibitions,
conservation or private reasons of the owner)?
Yes, on a case-by-case basis.
C. Consequences in case of violation of export restrictions; restitution
and repatriation of illegally exported cultural property
1. What are the legal consequences in case of breach of export restrictions?
The exporter may face criminal charges.
2. Give a description of the regulations and practices in your country relating to the restitution
and repatriation of illegally exported cultural property
There are many precedents in which the State has seized and later returned to the country of
origin artworks illegally entered into Argentina. There are no precedents in which Argentina
has claimed back artworks illegally exported from Argentina.
3. Under which conditions does your country assist foreign countries seeking repatriation of
cultural property/artwork?
Under the El Salvador Convention (see answer to question A.7) all countries party to the
convention must take all legal steps to ensure that no export or import restrictions of artworks
are violated. In case legal actions are required, the country whose assistance has been
requested must file the legal action itself.
4. Does a buyer enjoy protection against restitution claims for violation of foreign export restrictions?
Normally not; however, the buyer could allege and evidence good faith.
5. Which regulations exist for the protection of the purchaser against title claims?
None. To the extent artworks constitute mobile property, ‘possession equals title’, unless
strong evidence can be provided that the buyer knew or had reason to know that the artwork
was illegally transferred.
6. Does a lender from abroad enjoy protection against seizure of items on loan to local
exhibitors if the good fails to have proper export licence?
If the export licence is defective, the foreign lender may face severe difficulties to obtain protection.
7. What regulations exist concerning the import of cultural property that may have been
exported illegally from its country of origin or that is the subject of claims?
Argentine statutes providing tax exemptions to the import or export of artworks specifically
indicate that the benefits are granted to their bona fide holders. Thus, it can be reasonably
held that good faith evidenced locally would prevail over a foreign claim of an illegal export.
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D. Due diligence obligations
1. What general due diligence is required from the seller/buyer of artwork if the artwork is
intended to be exported?
The seller or buyer should require from the counterparty appropriate evidence that the artwork
was declared for Argentine tax purposes plus a detailed invoice or receipt from the seller.
2. Are there any anti-money laundering regulations applicable in the art trade and at art auctions?
Yes. Art dealers and auctioneers must provide information to the relevant authorities from
time to time.
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