Incoming New EU Import Regulation on Cultural Goods: a summary & analysis of the key issues and market concerns

Debate is rife within the art community and trade circles about rules that are due to become effective by June 2025.

On 28 June 2019, the European Union introduced Regulation 2019/880 which is primarily focused on the introduction and the import of ‘cultural goods’ into the EU.

The centralised electronic system that will deal with the exchange of information between Member States and the online licence applications is due to become operational within six years of the date of the Regulation, i.e. by 28 June 2025.

While the purpose of these regulations is commendable – aiming to combat illicit trafficking and safeguard cultural heritage – their enforcement poses risks of impeding legitimate trade, curtailing cultural interchange and unfairly burdening art collectors and dealers throughout the EU and those outside the EU looking to do business or to keep their art in the EU.

With some of the world’s leading art fairs held in the bloc each year, including TEFAF Maastricht, the trade around the world are taking stock and are considering how the rules will impact their businesses. Whilst the objective is clear, the EU could be effectively shutting itself out to legitimate trade and therefore its hold on key parts of the art market. This article delves into why a reassessment of the EU’s new import regulation on cultural property and art is warranted.

Summary of the Regulation

The regulation features a ‘general prohibition’ barring the entry into the EU of cultural goods illicitly exported from third countries. ‘Cultural goods’ encompass a broad range of mediums, including most categories of fine arts, decorate arts and collectible items, irrespective of date or value.

It sets out three categories of cultural goods:

• ‘Category A’ – these are items that have been exported illegally from their country of origin which are prohibited from entering the EU;
• ‘Category B’ – these are high-risk items seen as being at a greater risk of looting and trafficking which may be imported if a licence is obtained; and
• ‘Category C’ comprising low-risk goods, which may be imported subject to acquiring an import licence or submitting an importer statement.

‘Category A’ covers various items set out in more detail in Part A of the Annex to the Regulation (including by way of example flora and fauna specimens to antiquities to paintings) that were removed from the territory of the country where they were created or discovered in breach of the laws and regulations of that country shall be prohibited.

‘Category B’ covers objects from archaeological excavations exceeding 250 years in age, regardless of value as set out in Part B of the Annex to the Regulation. Importers must secure an import licence before entry into the EU. The application to obtain this licence will require evidence that the goods in question have been exported from the country where they were created or discovered in accordance with the laws and regulations of that country or providing evidence of the absence of such laws and regulations at the time they were taken out of its territory.

‘Category C’ is a residual category of ‘cultural goods’ such as paintings, prints, sculptures, and coins older than 200 years with a minimum value of €18,000. Importers must provide an importer statement, including a declaration confirming lawful exportation from the country of origin and a standardised object description, prior to entry into the EU. In order to make an importer statement and comply with the Regulation’s third-country export rules, the importer will need to have supporting documents evidencing the basis on which the importer statement is made. It is crucial, therefore, to maintain all records and provide the required documentary evidence to support the importer statement, otherwise, the statement could be rejected.

Cultural goods that originate from the EU, or countries that have left the EU, are not covered by the Regulation and so can continue to be imported. For example, antiquities from Greece or Italy would not be captured but antiquities from Turkey would.

Derogations (exceptions)

There are a couple of derogations that apply to both categories B and C in instances where the object’s country of origin is indeterminable, or if the object was removed from its country of origin prior to 24 April 1972.

1) Indeterminable origin and 5-year period before lawful export – the first derogation specifies that if it is impossible to reliably ascertain the country where the object originated or was discovered, you can either apply for an EU import licence (for category B items) by providing documentation proving that the object was legally exported from the last country it resided in for more than five years and that the country of origin cannot be reliably determined or make an importer statement (for category C items) declaring that these conditions have been met.

In our opinion, there will only be a few types of object where it is not clear what the country of origin is so this will potentially have quite a limited use. It may apply for example, to a piece of African artwork where the country of origin cannot be identified from the style of the piece.

2) Export from country of origin before 14 April 1972 and 5-year period before lawful export – the second derogation states that if the object was taken out of its origin country before 24 April 1972 (to align with the effective date of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property), you can either apply for an EU import licence (for category B items) by providing documentation proving that the object was legally exported from the last country it resided in for more than five years (excluding temporary use, transit, re-export, or transshipment) and evidence that the items were taken out of the country of origin before 24 April 1972 or make an importer statement (for category C items) declaring that these conditions have been met. Again, a similar derogation applies to category C objects.

In our example, if it can be proven that an African artwork currently located in the United Kingdom (i) originated in Gabon, (ii) was removed from Gabon before 24 April 1972 (whether lawfully or not), (iii) has been in United Kingdom for over five years, and (iv) has been legally exported from the United Kingdom, you can sign the importer statement, and the artwork can be legally imported into the EU.

In addition to the above, whilst not covered by the Regulation, it may be possible to obtain retrospective export licences from the country of origin which could then be relied on when applying for an import licence or when making an importer statement.  The risk of this approach would be that an export licence is not obtained.

Another consideration is that some pieces may already be lawfully in the EU. However, anyone who buys and exports artwork from the EU who may want to re-import it at a later date, will need to take heed of the impact of the new Regulations. They may not be able to re-import the artwork later if its provenance does not meet the requirements of the Regulation. This is distinct from the provisions that apply to goods eligible for Returned Goods Relief, which may, provided that certain conditions are met, allow exported goods to be re-imported within a three-year window.

Market Reaction and Concerns

Our clients have already begun to feel the reverberations of the Regulations, sparking unease within the international art market.

Mark Dodgson, the Secretary General of The British Antique Dealers’ Association (BADA), an association representing the interests of many leading British antique dealers, said the following:

“The regulation fails to take into account that most cultural goods, particularly old ones, are not accompanied by paperwork to demonstrate that they left their countries of origin lawfully, because most left decades if not hundreds of years ago, and we don’t usually know when that was. Those doing the drafting of the regulation appear to have assumed that cultural goods entering the EU do so direct from their country of origin or left it in recent times, when we know this not to be the case for most items in circulation.

“If left unchanged the regulation reverses the burden of proof – it assumes that an object left its country of origin illicitly unless it can be proved that it left lawfully.  It’s is also retroactive in nature, and this could have been avoided had it not applied to goods shown to have left their country of origin before 2019 (the year the regulation was passed).”

Notably, dealers, particularly in Paris as reported by Riah Pryor for The Art Newspaper and Devorah Lauter for Artnet, are increasingly vocal about their concerns. Antique art dealers have rallied together in a public lobbying effort against the Regulation, emphasising the profound threat they pose to the free movement of cultural treasures across borders.

By imposing onerous documentation requirements and bureaucratic red tape, the Regulation may introduce an unnecessary impediment to trade which may complicate the lawful acquisition and sale of cultural artifacts for art dealers and collectors. Many of the objects, steeped in history and tradition, have long existed within the European market without formal provenance documentation. Indeed, auction sales, by way of example often result in provenance information being lost due to the confidentiality offered to consignors. The Regulation’s demand for paperwork which may have been lost or forgotten about disregards the nuanced complexities of the art world. The Regulation may curtail legitimate economic transactions and could deprive individuals and institutions of access to invaluable cultural resources.

Equally troubling the trade is the EU’s one-size-fits-all approach, which fails to accommodate the complexities of the global art market and the diverse cultural landscapes from which artwork originates. Practices considered legitimate in one cultural context may be deemed illicit under the EU’s broad regulatory framework, leading to confusion and legal ambiguity. This not only undermines the principles of cultural diversity and autonomy but also risks alienating countries and communities with distinct traditions and practices. Objects with limited provenance information are automatically deemed to be tainted by illicit trade, even if there is no evidence they left their country of origin legally.

Aside from the financial minimum of €18,000 (for category C) and age thresholds of 250 for (category B) and 200 years (for category C), the Regulation does not seem to acknowledge that some objects are of much less significance than others in their country of origin. There is a blanket approach being applied by the EU which may result in pieces that left their country of origin legitimately, but which lack certain documentation being hidden away rather than being traded and enjoyed.

Most importantly, the EU’s import regulation undermines cultural exchange by erecting barriers to the movement of cultural artifacts. Instead of nurturing dialogue and mutual understanding among nations, the Regulation cultivates suspicion and mistrust and puts the EU in a position of global arbiter of cultural objects.

Next steps

As the new implementation of the new rules draw nearer, the European Commission has established a working group to engage with the trade. This met in December 2023 and there will be a further sub-committee meeting in May, which according to Mark Dodgson of the BADA who is participating in the working group, will be focussed on resolving some of the practical issues that need to be addressed.

There is hope that the working group may have the potential to turn the dial somewhat, but what is yet to be clear is the extent to which member states will implement the Regulation and how practically the new system will work. Doubt is already causing changes in the art market and will invariably impact confidence. The market needs clear guidance.

We would be happy to assist if you have any questions about the Regulation and how it may impact you.

Disclaimer: Nothing in this article constitutes legal advice and we owe no responsibility or duties to any person seeking to rely on its contents.