The export office of the City of Bologna has recently attracted media attention following the revocation of an export licence granted for a portrait of Prince Camillo Borghese by the famous French artist Gérard.

In February 2017, the gallery Robilant+Voena applied to export a portrait of Prince Camillo Borghese from Italy.  The export licence was granted in March and the portrait was bought by the Frick Museum in New York.  Now the Bologna export office that granted the export licence claims that they made a mistake and that the portrait must be returned.

Prince Borghese is not just any Italian prince.  He was the hapless husband of Pauline Bonaparte, a sister of Napoleon Bonaparte aka the French Emperor who dominated the history of Europe in the early 19th century.  Camillo Borghese was the scion of a famous Roman family.  Pauline was Napoleon’s most celebrated sister.  There is a famous portrait of Camillo Borghese by Gerard at Versailles.  A quick internet search reveals that his portrait is so famous that for about USD50, you can buy a print of it online.  The version of the portrait of Prince Borghese that Robilant+Voena sought to export is immediately recognisable from the imperial bees peppering the velvet cape of the prince.  They also pepper the velvet cape of the prince in the portrait at Versailles.  In other words, if you glance at the portrait of Prince Borghese that was given an Italian export licence, you cannot miss that you are looking at Prince Borghese in all his glory, unless your knowledge of Napoleonic history is at its most basic.  Yet the export office of the City of Bologna did not recognise the subject of the painting when the export licence was initially granted.

In December 2017, the Frick Collection announced that it had reached an agreement with Robilant+Voena to acquire the portrait.

On May 9, 2018, the directorate of archaeology, fine art and landscape of the Italian Ministry of Cultural Assets and Activity expressly requested the export office of Bologna to commence proceedings for the revocation of the export licence.

On May 16, 2018 the export office of Bologna initiated the revocation process.

On June 14, 2018 the same export office decided to annul the export licence issued the previous year and sought restitution of the painting to Italy.

The Italian government has argued that Robilant+Voena failed to provide relevant information.  The painting was described only as a “male portrait” and, according to the head of the circulation department of the directorate-general of archaeology, fine art and landscape at the Ministry of Cultural Assets and Activity, it was unclear that it was a “rare and significant document of the Napoleonic era in Italy”.  Whilst the applicant for the export licence seems to have tried his luck by describing the painting as a ‘male portrait’ rather than a portrait of Camillo Borghese, thereby exposing himself to criticism, the export office cannot simply put the blame on the applicant when the subject matter of the portrait was a well-known historical person and his attire drew attention to his importance.

Against this, the gallery contended that the subject of the portrait was undisputed, especially as the name ‘Borghese’ was printed in black and white on the back of the painting.

The legal grounds for revocation

The Italian Cultural Heritage and Landscape Code (Legislative Decree 42/2004) grants a wide range of investigative powers to export offices which, when receiving a request for an export licence, shall immediately collect all information available in relation to the relevant work of art and, in particular, ensure that the market value is correctly indicated.

In addition, according to the applicable administrative framework (namely, articles 21-octies and 21-nonies of Italian Law 241/90), Italian public authorities are entitled to re-assess their decisions and to reverse their previous decision if there are compelling reasons of public interest for that reversal. The underlying reasons for reconsidering the issuance of an export licence may be linked to various circumstances including, for example, the misattribution of the painting, the submission of misleading information on the artwork or the lack of supporting documentation provided by the applicant.

The public administration should generally conduct any such re-assessment within 18 months from the issue of the licence. However, depending on the legal grounds for revocation, the public administration may be entitled to revoke a licence at any time. For example, this would be the case when the revocation is prompted by false or misleading declarations punishable under criminal law.

The traditional approach

The use of the powers granted to the public administration by Law 241/90 is certainly not new. In 2016, the Italian government sought restitution of two paintings by the Venetian painter Francesco Guardi (namely, the so-called ‘Andata del Bucintoro verso San Nicolò al Lido’ and ‘Ritorno del Bucintoro verso Palazzo Ducale’).

The revocation of the export licence in that case appeared to be based on false declarations.  The owners reportedly declared that the paintings were by an unknown artist and that the market value was only Euro 600,000, while the real estimated value was in the region of Euro 6 million.

The owners appealed the decision before both the Administrative Court and the Consiglio di Stato (Italy’s highest Administrative Court), but the appeals were unsuccessful: the two courts reiterated that the elements outlined above constituted a sound legal basis for revoking the export licence.

At the same time and on the same legal basis, the owners were subject to criminal proceedings for illicit exportation of artworks that were subsequently time-barred.

An unfortunate precedent 

Arguably, the use of the powers granted by articles 21-octies and 21-nonies of Italian Law 241/90 should be a last resort.

Indeed, a shift towards more frequent revocations of export licences is a cause for concern when the circumstances underlying the issuance of the licence have not changed and the investigatory powers have not been properly exercised by the competent authority, especially taking into account the significant effect of a revocation on the sale chain.

Absent fraud on the part of the applicant for the export licence, the revocation of a licence duly granted frustrates the legitimate expectations of collectors and the art dealing community.  In the case of the portrait of Camillo Borghese, the revocation seemingly arose from the incompetent exercise by the export office of its obligations when considering an application for an export licence. If the export office makes a ‘mistake’, is it right that one’s own ‘mistake’ should pave the way for a revocation of the licence with all the consequences for the parties involved arising from such revocation?  The answer must be no.

Francesca Barra and Pierre Valentin