In 2019 the European Union adopted Regulation 2019/880 on the Introduction and the Import of Cultural Goods which introduced new set of procedures and conditions in order to safeguard humanity's cultural heritage and prevent the illicit trade in cultural goods. Here is the overview of a few challenging issues related to the practical application of the Regulation.
Importing Cultural Goods in the EU: Do the Means Meet the End?
The EU has adopted Regulation 2019/880 on the Introduction and the Import of Cultural Goods which introduced (a) a prohibition and (b) a 2-tier licensing regime for importing cultural goods in the EU which were either created or discovered outside of the customs territory of the Union. Briefly:
Article 3(1) prohibits importing into the customs territory of the EU cultural goods falling under the broad category of Part A (including, among many others, products of archaeological excavations, antiquities more than 100 years old, objects of artistic interest like pictures, paintings, original sculptures, engravings, etc) which were removed from the territory of the country where they were created or discovered in breach of the laws and regulations of that country.
IMPORT LICENSE. Article 4 requires an Import License for products of archaeological excavations or discovery as well as elements of artistic or historical monuments or archaeological sites which are more than 250 years old (considered high-risk). To obtain such Import License, the importer will have to provide evidence that the object has been exported from the country where it was created or discovered in accordance with the laws of that country (e.g. have an export license) or provide evidence of the absence of such laws at the time they were taken out of its territory.
IMPORTER STATEMENT. Article 5 requires an Importer Statement for importing items which are more than 200 years old and have a minimum financial value of EUR 18 000, indicatively, ancient coins, paintings, sculptures, prints, lithographs, rare manuscripts, old books etc. (considered low-risk). Such statement shall consist of a declaration signed by the holder of the object stating that the object has not been unlawfully exported from the country of creation or discovery.
The Regulation’s objective is to halt the illegal import of cultural property into the EU. Illicit trade in cultural goods encourages organized crime, terrorist financing, money laundering and tax evasion and is detrimental to the cultural heritage of source countries. Further, the uncertainty regarding the licit or illicit nature of imported cultural objects undermines the legal art and antiques market. Nevertheless, the Regulation’s application seems to have a few challenging aspects.
A Paradox: Asynchronous Application
For reasons falling outside of the scope of this article, the Regulation’s application will take effect at different times. Specifically, the prohibition’s date of application is set for December 28th 2020, while the licensing regime’s date of application is set to be no later than 28th June 2025, when the necessary European centralized electronic system is expected to be operable. This asynchronous application is problematic for the reasons explained below:
For one thing, the Regulation is silent on who bears the burden of proof of the breach of the laws and regulations of the country of origin. Is the importing country required to prove the breach or is the person attempting the import required to establish there was no breach? In the former case, it is not clear how the importing country can comply; will it be required to have knowledge of all non-EU countries’ export laws? And even go as far as enforce those foreign export laws? (unlikely in the absence of a bilateral agreement on these issues). As it is, the standard customs controls applied at EU borders are not able to address the particularities of cultural artefacts adequately; let alone having to bear the burden of proving the provenance and illicit export.
In the latter case, in establishing there was no breach, there seems to be no difference with what the importer must prove when applying for an Import License (namely, provide evidence that the cultural goods in question have been exported from the country of origin in accordance with the laws and regulations of that country or provide evidence of the absence of such laws and regulations at the time they were taken out of its territory). Only that the importer cannot yet submit such evidence, as the centralized electronic system is not yet operable.
So the question begs an answer: how is the prohibition of Article 3(1) to be applied in practice assuming the importer bears the burden of proof while the licensing regime’s application is deferred?
In order to obtain an Import License, one needs to either have an export license or give evidence that no such license was required at the time of export. To be able to satisfy either of these requirements, the importer must know the exact date that the object was exported from the country of creation or discovery.
In reality, this is rarely the case. The history of ownership for objects that are of significant age usually lacks detailed documentation and often one can only assume that an object was exported by the country of creation by a certain date by connecting the dots of the available information. The difficulty of establishing the exact date of export is further exacerbated by the fact that the Regulation does not mark any date before which a removal of cultural goods would fall outside its scope (as that established by the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, for example).
It may seem that the Regulation is offering two options for those applying for an Import License (either present an export license or prove that no export license was required at the time of export), when in fact, it offers none for those unsure of the exact export date (arguably, the majority of cases).
UK & Brexit
With Brexit fast approaching, it must be noted that the Regulation will most likely continue to apply in the UK following the Transition Period unless the UK Parliament repeals it.