Can Foreign Cultural Objects Be Considered as National Treasures ?
On 19th June 2024, the U.K. Government published a press release informing the public that a temporary export bar had been placed on a decorated table top once owned by King Louis XIV of France and attributed to one the most prominent and inventive glassmakers in France in the second half of the 17th century, Bernard Perrot of Orléans. The table top is valued at £7,5 million (plus VAT of £300,000). The export bar will allow time for a UK gallery or institution to acquire the table top for the nation. The first deferral period was set for 18 October 2024.
The Reviewing Committee of the Arts Council considered that the table top should be qualified as a “national treasure” not because it is “closely connected with our history and national life” (Waverley 1), but rather because “it is of outstanding aesthetic importance” (Waverley 2), and it is of outstanding significance for the study of some particular branch of art, learning or history (Waverley 3).
The Reviewing Committee of the Arts Council considered that the table top should be qualified as a “national treasure” not because it is “closely connected with our history and national life” (Waverley 1), but rather because “it is of outstanding aesthetic importance” (Waverley 2), and it is of outstanding significance for the study of some particular branch of art, learning or history (Waverley 3).
The press release indicates that the table top had been in the collection of Louis XIV by 1681, was subsequently owned by Sir Adrian Beecham and sold by Christie’s in 1975, and later by Sotheby’s in 1988.
Since the table top was created by the renowned French glassmaker Perrot, had been owned by the French king Louis XIV, and had a relatively recent British provenance, it is understandable why the Arts Council did not consider it “closely connected with our history and national life”, and advised to base the temporary export ban on Waverley 2 and 3 [1].
The above-outlined case clearly shows that in the U.K. a foreign cultural object may be considered as a national treasure if it meets one or more Waverley Criteria.
Would the same conclusion be reached if the same objects were submitted to export control in Italy ?
The Export Guidelines and the Circular 28/2024
The Circular clarifies that the Italian nationality of an artist cannot be deemed as a prerequisite for triggering cultural heritage protection measures: in addition to artworks made by Italian artists, foreign artworks may be classified as cultural properties and denied an export licence.
As a purely fortuitous occurrence, on 20th June 2024, the day following the U.K. Government press release on the Louis XIV tabletop, the Italian Ministry of Culture published the Circular 28/2024 (Circular) [2], which specifically addresses the issue whether and under what circumstances an Italian Export office can deny an export licence in relation to a foreign artwork.
Circulars are documents issued by the Ministry’s General Direction overseeing cultural heritage protection and, in particular, the export control which is carried out locally by the 15 Export Offices located in the Italian territory.
Frequently, as in this case, Circulars provide an official interpretation of cultural heritage provisions, especially if there have been diverging interpretations by the Export Offices.
An issue that was frequently addressed in Italy is whether cultural heritage protection should only be applied to artworks made by Italian artists, or whether foreign artworks could also be classified as cultural properties.
The Circular clarifies that the Italian nationality of an artist cannot be deemed as a prerequisite for triggering cultural heritage protection measures: in addition to artworks made by Italian artists, foreign artworks may be classified as cultural properties and denied an export licence.
The Circular defines a foreign artwork as an artwork made by a foreign artist outside the Italian territory.
The Circular specifies that the Export Offices should make a preliminary assessment as to whether a specific relation exists between a foreign artwork and Italian cultural heritage (legame del bene con l’Italia, or sostanziale contiguità culturale).
If there is no such a relation, no cultural heritage protection measures should be adopted by the Ministry.
Try to imagine a scenario in which the table top was owned by an Italian collector who wanted to export it to London.
Would the table top have been allowed to leave Italy if an export licence had been requested to an Italian export office ?
The answer is probably yes because the object does not seem to have any special relation with Italy, and its aesthetic value could not be considered as a reason sufficient to prevent its exportation.
The Circular refers to the Ministerial Decree of 6th December 2017, no. 537 which established six criteria that the export offices must follow to decide whether or not to grant an export licence (Export Guidelines).
The Export Guidelines refer to the aesthetic quality, the rarity, the importance of the subject matter represented in the artwork, the circumstance that the artwork may have been part of a monument whether or not currently existing, its provenance from an important collection and, finally, for foreign artworks, the circumstance that a specific pertinence (attinenza) exists between the artwork and the history of Italian culture.
Although the only aesthetic importance cannot stand alone as a criterion for denying an export licence, and at least two or, preferably, more than two criteria must be met and adequately motivated by the Ministry in support of an export licence denial, all the aforesaid criteria allow a wide discretion to the Ministry.
The Circular sheds light on the issue related to the required relation between an artwork made by a foreign artist and the Italian cultural heritage, in particular, if the artwork was not made in Italy [3].
The Circular is endorsing a broad interpretation of concepts such as legame and sostanziale contiguità with Italian cultural heritage.
However, it also clearly states that the existence of a material relation with the Italian culture history must first be found, and that if such a relation does not exist, the six criteria mentioned in the Export Guidelines should not be considered.
Paragraph 3.4 of the Circular states that the legame con l’Italia should be considered in relation to a chronological criterion: if the artwork is accidentally in Italy or if its presence in the Italian territory has been for less than 70 years, it would be difficult to identify a cultural relation with Italy.
A Comparison between the U.K. and the Italian Export Control
Unlike the U.K. where the close connection of a cultural object with British history and national life is one of the three Waverley Criteria but does not necessarily have to exist in case of an export request concerning a work by a foreign artist made outside the U.K. territory, for Italy the close connection of a foreign artwork with the history of Italian culture is a prerequisite for an export ban.
However, Italian law currently provides only a definitive (and not a temporary) export denial, without any obligation by the State either to pay an indemnity to the owner of the artwork for which an export ban is issued or match the sale price offer that the owner may have received from a foreign buyer.
A comparison between Italian and U.K. export law would suggest that each jurisdiction may have something to learn from the other: in the U.K. it would be good to acknowledge that for foreign artworks or cultural objects Waverley 1 should always be existing if a temporary export ban is sought by the government. In Italy, the law should recognise that a definitive export ban without any indemnification for the owner is an unfair sacrifice imposed on private ownership.
Giuseppe Calabi
Managing partner at CBM & Partners, Studio Legale
[1] Interestingly, on 8th January 2024, a 15th century painting by Fra’ Angelico (Vicchio (Florence) c. 1395 - Rome 1455) was placed under a temporary export ban with the second deferral period to expire on 28th October. The painting has been in England for over two hundred years. See https://www.gov.uk/government/news/renaissance-painting-depicting-the-crucifixion-at-risk-of-leaving-the-uk.
[2] Circular 28/2024 was issued by the General Direction of Archaeology, Fine Arts and Landscape (DG ABAP). The text of the Circular may be found at https://dgabap.cultura.gov.it/wp-content/uploads/2024/06/CIRC.-BENI-STRANIERI-18.06-signed.pdf.
[3] The Circular seems to imply that a work created by a foreign artist in Italy would not be considered as a “foreign” artwork.
Blogs are written by Art Lawyers Association members and reflect their personal views. They do not represent the views of the Association
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