European Commission

Art export law: DGIII still has the upper hand to the relief of the British

But the technocrats of DGXXI, the Customs and Indirect Taxation Department, are drawing up the next set of proposals. To find out what this means, read on


After months of confusion and uncertainty the E.C. has started to tackle the nuts and bolts of art-export arrangements after 1992, when a unified market among the twelve member states is due to be completed. E.C. and national experts will meet in Lisbon next month (21-22 March) to consider arrangements for the restitutions of illegally exported national treasures.

The issue is complex and has many ramifications. As Catherine Stewart, an experienced observer of the Brussels scene, explains: “The movement of objects of cultural interest is a big pot in which everybody throws their concerns and then stirs it up”. For the moment however the British art market and custom officials can be reassured: the vision of Brussels “imposing” half-baked bureaucratic measures is receding.

This significant change in approach is the result of the decision by the Council of Ministers of Culture in November 1990 that more work was necessary before the Commission could formulate legislative proposals. The task is to find the right balance between the free market and the right of member states to protect their “national treasures of artistic, historic and archaeological value” as enshrined in Article 36 of the Treaty of Rome. After 1992 member states will only control trade at borders with spot checks so that it will be more difficult to stop the illegal export of art works. Some member states fear not just an haemorrage of art works from their territory, but from the E.C. as a whole because objects could first be moved to a member state with a more liberal art exports policy and from there to their destination outside the E.C.

The Community measures are not intended to cover all art objects, but only “national treasures”. It is proving very difficult however to agree where to draw the line between national treasures and art works which can be traded without any restriction. The number of the national treasures, the attitude and legislation towards them, as well as the strength of the local arts market varies greatly across the Community, leading to differing views.

The U.K. stands at one end of the spectrum: it has by far the larger share of the Community art market — according to one source it amounts to 75%; it has a rather liberal export system and fewer national treasures than Italy, Spain or Greece. The latter group of countries has immense treasures, highly restrictive export systems, and a weaker art market, but illegal trade is rife. While Greece, Italy and Spain favour the adoption of Community measures to protect national treasures, the U.K. is keen to safeguard the interests of trade. Germany, the Netherlands and Denmark are relatively close to the British position, while France, according to some, sits on the fence.

To British relief the liberally minded staff in the Internal Market and Industrial Affairs Department (Directorate-General III) within the Commission have had at least initially the upper hand over the more protectionist Information, Communication and Culture Department (DGX). In November 1989, the Commission published a fairly balanced paper sketching the current legal framework and setting out a number of possible options, accepting that member states will continue to protect their national treasures. The Italian Presidency pushed hard for a compromise on the basis of this Commission paper. As a result, the scope of Community action has been more narrowly defined, abandoning woolly and impractical options. The Council asked the Commission to work out ways of exchanging information concerning the protection of national treasures, to study a system of restitution of cultural goods and measures to be taken at external border.

At the invitation of the Spanish delegation, E.C. and national officials met in December in Madrid to study Spanish procedures of art export. On that occasion it was decided that the Customs Union and Indirect Taxation Department (DGXXI) of the Commission would draw up proposals for a system of export licences. It is a difficult task because formulating clear rules to identify the objects and the member state of origin, which is necessary to make the system effective, is fraught with problems.

The U.K. fears that any proposal is likely to be overly bureaucratic, costly, as well as vulnerable to fraud. It hopes that its own system involving monetary limits could be considered: Italy appears to be willing to do so with caution, but Spain, Greece and Portugal are not. The U.K. understands the need of the southern states to protect art treasures and hopes for a compromise. Instead of a Community export licence an effective system of restitution could be adopted. There is already a consensus that such a system should not be retrospective: nobody seems to want to reopen controversies like that of the Elgin Marbles. It is not clear whether British officials will put forward specific proposals in Lisbon, but the meeting will probably consider the those of UNIDROIT (International Institute for the Unification of Private Law) for bilateral legal agreements on the issue.

In the meantime the European Parliament has lost yet another opportunity to influence events. In January it charged Mr Galle, a Belgian socialist, to draft a report formulating its own views on the issue. The interim report adopted by the December plenary appears out of step with the work of the Commission and Council. It takes a tough protectionist view, overlooking that the Council has clearly ruled out certain options, most notably the ratification of the 1970 Unesco and 1985 European Conventions. Mr Galle however claims that he has the full backing of Mr Dondelinger, the DGX Commissioner. If so, the latter was perhaps hoping to use the Parliament to steer the Commission along a more protectionist course, but the report came too late to influence the Italian Presidency.

While the protectionist southern countries were trying to recover the initiative, the DGIII postponed the publication of a controversial interpretation of Article 36. It contains liberal views, which are bound to disturb deeply the southern states. These have already voiced their opposition, arguing that the interpretation of Article 36 it is not a matter for the Commission, but for each member state. The fate of this paper will show whether DGIII, or DGX in alliance with the southern states, is winning the argument: if it is the former, the U.K. is in a much stronger position.

Appeared in The Art Newspaper Archive, 5 February 1991