Following last summer’s amendments to the Italian export legal framework (see our blog of 27 September 2017), additional changes to the export licensing process have been implemented by the Italian Ministry of Cultural Property.
At the beginning of December 2017, new guidelines amending an outdated Circular of 13 May 1974 were issued with a view to limiting the discretionary powers of export offices when deciding whether to grant an export licence for art, antiques and collectible items. These guidelines set out a list of criteria that export offices must apply when deciding whether to issue a licence. They are:
- the artwork’s artistic quality, assessed visually and/or using specific technical tools in order to appreciate the distinctive expressiveness and technical skills of the artist;
- the artwork’s rarity;
- the artwork’s subject matter, namely the level of quality of the artwork and its cultural, historical, geographical or ethno-anthropological importance;
- whether the artwork is (or was) part of an historical, artistic, archaeological or monumental collection and/or context;
- whether the artwork is a particularly meaningful testimony of the history of collecting, and, in particular, of local history or specific private collections;
and
- whether the artwork is a relevant testimony of meaningful cultural relationships from an artistic, archaeological, ethnographic or historical point of view, notwithstanding its foreign origin or provenance.
The new Circular expressly requires export offices to justify the denial of export licences by referring to those criteria. Any error of assessment or failure to state reasons for denial can be challenged before Italian Administrative Courts. Hopefully the approach of such Courts will also change in favour of a more balanced assessment of private and public interests involved in the circulation of artworks. Until now, Italian administrative judges have traditionally recognised a wide discretion to export offices in assessing the historical and artistic value of art. Very rarely has a decision by an export office been reversed by Administrative Courts when the Circular of 1974 was in force. This used to be true even when the decision of the export office provided incomplete and inadequate reasons for declining an export licence.
The other issue is that until now, the appreciation of whether an artwork would receive an export licence varied considerably depending on the export office seized of the application. The new Circular will hopefully have beneficial consequences in terms of harmonisation and standardisation of decisions taken by export offices across Italy.
Francesca Barra
Published 16 February 2018