Abstract
Crisis, conflict situations and wars increase the illicit trafficking of cultural objects for several reasons. Besides States, several international organisations are also engaged in the fight against this illicit trafficking, such as the United Nations, UNESCO and the European Union. Following the relevant resolutions of the UN Security Council, the EU has adopted Regulation No 1210/2003 concerning Certain Specific Restrictions on Economic and Financial Relations with Iraq and Regulation No 36/2012 concerning Restrictive Measures in View of the Situation in Syria, where issues related to the illicit trafficking of cultural property are addressed. Beside these regulations, the relevant existing EU legal framework is composed of other instruments: some articles of the Treaty on the Functioning of the European Union concerning the free movement of goods and Council Regulation No 116/2009 on the Export of Cultural Goods. Recently, this legal framework has been completed by Regulation No 2019/880 on the Introduction and the Import of Cultural Goods. The main purpose of this chapter is to analyse the EU legal framework in light of the introduction of this latest regulation, in order to assess whether it can effectively contribute to the fight against the illicit trafficking of cultural property, especially when it comes from situations of conflicts.
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Notes
- 1.
See, i.e., the cases of the destructions of the Temple of Bel, the Arch of Triumph, the Tetrapylon and the Roman Theatre.
- 2.
See, i.e., the cases of the destruction of the Mosque of the Prophet Yunus, the Shrine of Imam Yahya ibn al-Qaasim, the Mosque of Prophet Seth, the Mosque al-Khidr and the Mosul museum.
- 3.
See, amongst other reports, Geneva Call, Culture Under Fire: Armed Non-State Actors and Cultural Heritage in Wartime (2018).
- 4.
For more information see, amongst other documents, the World Custom Organisation’s annual reports on illicit trade (i.e. WCO, Illicit Trade Report (2019) (2018) (2017) etc.) and the documents of the meetings of the relevant Governing Bodies of UNESCO’s legal instruments concerning the fight against the illicit trafficking of cultural property at www.unesco.org. As regards the European context, see in particular the document European Commission, Impact Assessment. Accompanying the Document: Proposal for a Regulation of the European Parliament and of the Council on the Import of Cultural Goods (2017).
- 5.
Resolution on the Situation between Iraq and Kuwait, UN Doc. S/RES/1483 (2003).
- 6.
Resolution on Threats to International Peace and Security Caused by Terrorist Acts, UN Doc. S/RES/2199 (2015).
- 7.
Another Resolution on this same topic that warrants mentioning is Resolution on Threats to International Peace and Security Caused by Terrorist Act, UN Doc. S/RES/2253 (2015).
- 8.
Resolution on the Maintenance of International Peace and Security, UN Doc. S/RES/2347 (2017).
- 9.
Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning Certain Specific Restrictions on Economic and Financial Relations with Iraq, OJ L 169 (2003), p. 6.
- 10.
Council Regulation (EU) No 36/2012 of 18 January 2012 concerning Restrictive Measures in View of the Situation in Syria, OJ L016 (2012), p. 1.
- 11.
On the UNSC resolutions and the EU regulations, mentioned in this text, see, amongst others: Urbinati (2019); Frigo (2018), pp. 1165–1181; Urbinati (2018); Hausler (2018); Jakubowski (2018); Kretschmer (2016), pp. 308–333; Mackenzie, Scott (2016), pp. 211–236; Roodt (2015); Scovazzi (2015), pp. 25–90; Jakubowski and Jakubowski (2014), pp. 305–353; Urbinati (2013); Carducci (2009).
- 12.
Treaty on the Functioning of the European Union, OJ 326 (2012), pp. 1–390.
- 13.
Council Regulation (EC) No 116/2009 of 18 December 2008 on the Export of Cultural Goods, OJ L 39 (2009), pp. 1–7.
- 14.
Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State, OJ L 159 (2014), pp. 1–10.
- 15.
Article 1 Directive 60. In order to better delineate the scope of application of this instrument, see also some definitions included in Article 2: ‘[…] (1) “cultural object” means an object which is classified or defined by a Member State, before or after its unlawful removal from the territory of that Member State, as being among the “national treasures possessing artistic, historic or archaeological value” under national legislation or administrative procedures within the meaning of Article 36 TFEU; (3) “requesting Member State” means the Member State from whose territory the cultural object has been unlawfully removed; (4) “requested Member State” means the Member State in whose territory a cultural object, which was unlawfully removed from the territory of another Member State, is located’.
- 16.
Regulation (EU) No 2019/880 of the European Parliament and of the Council of 17 April 2019 on the Introduction and the Import of Cultural Goods, OJ L 151 (2019), pp. 1–14 entered into force on 28 June 2019.
- 17.
- 18.
In the EU legal framework there are only references to ‘cultural goods’, and the expression of ‘cultural property’ is never employed. Nevertheless, these two expressions have to be considered synonyms. In this chapter both expressions, as well as that of cultural object, will be utilised with an equivalent meaning.
- 19.
Articles 28 to 30 and 34 to 36 TFEU.
- 20.
Article 28(2) The provisions of Article 30 and of Chapter 3 of this Title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
- 21.
The same approach has been adopted in the GATT. It is important to underline also that the EU has only a subsidiary competence in the field of culture in respect of its Member States. Thus, the EU interventions in the field of the cultural objects’ circulation have been carried out by the DG Taxation and Custom Union and by the DG Internal Market of the EU Commission. This, partially, explains the reason of the approach of the EU.
- 22.
On this point see CJEU, 10 December 1968, Commission of the European Communities v Italian Republic, Case 7-68, ECLI:EU:C:1968:51.
- 23.
Article 36 TFEU, The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
- 24.
For more on the difficulties arising from this expression see Frigo (2015), pp. 307 et ss.
- 25.
See for example the European Commission, Impact Assessment. Accompanying the Document: Proposal for a Regulation of the European Parliament and of the Council on the Import of Cultural Goods (2017).
- 26.
Article 2(1).
- 27.
A.1. Archaeological objects more than 100 years old which are the products of:—excavations and finds on land or under water;—archaeological sites;—archaeological collections; 2. Elements forming an integral part of artistic, historical or religious monuments, which have been dismembered, of an age exceeding 100 years; 3. Pictures and paintings, other than those included in categories 4 or 5, executed entirely by hand in any medium and on any material; 4. Watercolours, gouaches and pastels, executed entirely by hand on any material; 5. Mosaics in any material executed entirely by hand, other than those falling in categories 1 or 2, and drawings in any medium executed entirely by hand on any material; 6. Original engravings, prints, serigraphs and lithographs with their respective plates and original posters; 7. Original sculptures or statuary and copies produced by the same process as the original (1), other than those in category 1; 8. Photographs, films and negatives thereof; 9. Incunabula and manuscripts, including maps and musical scores, singly or in collections; 10. Books more than 100 years old, singly or in collections; 11. Printed maps more than 200 years old; 12. Archives, and any elements thereof, of any kind or any medium which are more than 50 years old; 13. (a) Collections and specimens from zoological, botanical, mineralogical or anatomical collections; (b) Collections of historical, paleontological, ethnographic or numismatic interest; 14. Means of transport more than 75 years old; 15. Any other antique items not included in categories A.1 to A.14 (a) between 50 and 100 years old toys, games, glassware, articles of goldsmiths’ or silversmiths’ wares, furniture, optical, photographic or cinematographic apparatus, musical instruments, clocks and watches and parts thereof, articles of wood, pottery, tapestries, carpets, wallpaper, arms, (b) more than 100 years old. The cultural objects in categories A.1 to A.15 are covered by this Regulation only if their value corresponds to, or exceeds, the financial thresholds under B. B. Financial thresholds applicable to certain categories under A (in euro). Value: Whatever the value: — 1 (Archaeological objects); — 2 (Dismembered monuments); — 9 (Incunabula and manuscripts); — 12 (Archives); 15,000: — 5 (Mosaics and drawings); — 6 (Engravings); — 8 (Photographs); — 11 (Printed maps). 30,000: — 4 (Watercolours, gouaches and pastels). 50,000: — 7 (Statuary); — 10 (Books); — 13 (Collections); — 14 (Means of transport); — 15 (Any other object). 150,000: — 3 (Pictures).
- 28.
Article 2(2).
- 29.
Article 3(1)c Regulation 1210 and Article 11-quater(1) Regulation 36.
- 30.
They are also identical to the cultural property listed in the Annex to Regulation 116.
- 31.
Article 3(1)c i Regulation 1210 and Article 11-quater(1) Regulation 36.
- 32.
Article 3(1)c ii Regulation 1210 and Article 11-quater(1) Regulation 36.
- 33.
Article 3(1) Regulation 1210.
- 34.
In its Article 1b Regulation 36 defines the expression “brokering services” such as the ‘negotiation or arrangement of transaction for the purchase, sale or supply of cultural objects’ as well as ‘selling or buying’ in the process of illicit art trade: the attempts at trade, assisting in trading, the actual transaction itself, the handling of objects covered by the prohibition and the assisting in the handling with such objects.
- 35.
Article 11-quater(1) Regulation 36.
- 36.
On a restitution case where it was possible to determine that the applied law was the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property see Urbinati (2014).
- 37.
The necessity of employing uniform import Regulations for cultural property is also underlined in recital 4 of the preamble of Regulation 880:
In view of different rules in the Member States regarding the import of cultural goods into the customs territory of the Union, measures should be taken in particular to ensure that certain imports of cultural goods are subject to uniform controls upon their entry into the customs territory of the Union, on the basis of existing processes, procedures and administrative tools aiming to achieve a uniform implementation of [the Union Customs Code].
- 38.
See par. 3 in this Chapter.
- 39.
See, amongst others, these policy documents: European Commission, Joint Communication to the European Parliament and the Council: Elements for an EU Regional Strategy for Syria and Iraq as well as the Da’esh Threat (2015); European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: the European Agenda on Security (2015); European Parliament Resolution of 30 April 2015 on the Destruction of Cultural Sites Perpetrated by ISIS/Da’esh (2015); European Commission, Joint Communication to the European Parliament and the Council: Towards an EU Strategy for International Cultural Relations (2016); European Parliament Resolution of 17 January 2019 on Cross-Border Restitution Claims of Works of Art and Cultural Goods Looted in Armed Conflicts and Wars (2017).
- 40.
Article 1, This Regulation sets out the conditions for the introduction of cultural goods and the conditions and procedures for the import of cultural goods for the purpose of safeguarding humanity’s cultural heritage and preventing the illicit trade in cultural goods, in particular where such illicit trade could contribute to terrorist financing. […].
- 41.
See n. 39.
- 42.
Article 3(1).
- 43.
Article 2(1).
- 44.
Article 1(2).
- 45.
(a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries on land or underwater; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest; (g) objects of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; (h) rare manuscripts and incunabula; (i) old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; (j) postage, revenue and similar stamps, singly or in collections; (k) archives, including sound, photographic and cinematographic archives; (l) articles of furniture more than one hundred years old and old musical instruments.
- 46.
States Parties to the 1970 UNESCO Convention that are also EU Member States are: Austria, Belgium, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden. States Parties to the 1995 UNIDROIT Convention that are also EU Member States are: Croatia, Cyprus, Finland, Greece, Hungary, Italy, Latvia, Lithuania, The Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden.
- 47.
The exploitation of peoples and territories can lead to the illicit trade in cultural goods, in particular when such illicit trade originates from a context of armed conflict, in this respect, this Regulation should take into account regional and local characteristics of peoples and territories, rather than the market value of cultural goods. (Emphasis added by the author).
- 48.
Cultural goods are a part of cultural heritage and are often of major cultural, artistic, historical and scientific importance. Cultural heritage constitutes one of the basic elements of civilization having, inter alia, symbolic value, and forming part of the cultural memory of humankind. It enriches the cultural life of all peoples and unites people through shared memory, knowledge and development of civilization. It should therefore be protected from unlawful appropriation and pillage. Pillaging of archaeological sites has always happened, but has now reached an industrial scale and, together with trade in illegally excavated cultural goods, is a serious crime that causes significant suffering to those directly or indirectly affected. The illicit trade in cultural goods in many cases contribute to forceful cultural homogenization or forceful loss of cultural identity, while the pillage of cultural goods leads, inter alia, to the disintegration of cultures. As long as it is possible to engage in lucrative trade in illegally excavated cultural goods and to profit therefrom without any notable risk, such excavations and pillaging will continue. Due to the economic and artistic value of cultural goods they are in high demand on the international market. The absence of strong international legal measures and the ineffective enforcement of any measures that do exist, lead to the transfer of such goods to the shadow economy. The Union should accordingly prohibit the introduction into the customs territory of the Union of cultural goods unlawfully exported from third countries, with particular emphasis on cultural goods from third countries affected by armed conflict. In particular where such cultural goods have been illicitly traded by terrorist or other criminal organisations. While that general prohibition should not entail systematic controls. Member States should be allowed to intervene when receiving intelligence regarding suspicious shipment and to take all appropriate measures to intercept illicitly exported cultural goods.
- 49.
1. Non-Union goods intended to be put on the Union market or intended for private use or consumption within the customs territory of the Union shall be placed under release for free circulation. 2. Release for free circulation shall entail the following: (a) the collection of any import duty due; (b) the collection, as appropriate, of other charges, as provided for under relevant provisions in force relating to the collection of those charges; (c) the application of commercial policy measures and prohibitions and restrictions insofar as they do not have to be applied at an earlier stage; and (d) completion of the other formalities laid down in respect of the import of the goods. 3. Release for free circulation shall confer on non-Union goods the customs status of Union goods.
- 50.
Goods may be placed under any of the following categories of special procedures: (a) transit, which shall comprise external and internal transit; (b) storage, which shall comprise customs warehousing and free zones; (c) specific use, which shall comprise temporary admission and end-use; (d) processing, which shall comprise inward and outward processing.
- 51.
The corresponding expression of the ‘holder of the goods’ is defined in Article 2(4) through a reference to Article 5(34) of the Union Customs Code as ‘the person who is the owner of the goods or who has a similar right of disposal over them or who has physical control of them’.
- 52.
Article 3(2).
- 53.
(c) Products of archaeological excavations (including regular or clandestine) or of archaeological discoveries on land or underwater; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered. For both categories the relevant good has to be more than 250 years old.
- 54.
This expression is defined in Article 2(5), as ‘[…] the public authorities designated by the Member States to issue import licences.’
- 55.
Article 8 (Use of an Electronic System) – 1. The storage and the exchange of information between the authorities of the Member States, in particular regarding import licences and importer statements, shall be carried out by means of a centralised electronic system. In the event of a temporary failure of the electronic system, other means for the storage and exchange of information may be used on a temporary basis. 2. The Commission shall lay down, by means of implementing acts: (a) the arrangements for the deployment, operation and maintenance of the electronic system referred to in paragraph 1; (b) the detailed rules regarding the submission, processing, storage and exchange of information between the authorities of the Member States by means of the electronic system or by the other means referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 13(2) 28 June 2021. Article 9 (Establishment of an electronic system)—The Commission shall establish the electronic system referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13(2) by 28 June 2021.
- 56.
The evidence may consist of “export certificates or export licences where the country in question has established such documents for the export of cultural goods at the time of the export” Article 4(5). The nature of the evidence is further specified in recital 12 of the Preamble of Regulation 880 with a reference to ownership titles, invoices, sales contracts, insurance documents, transport documents and expert’s appraisals.
- 57.
Article 4(4).
- 58.
This date corresponds to the entry into force of the 1970 UNESCO Convention.
- 59.
Article 4(4) second part.
- 60.
Article 4(7).
- 61.
Article 4(8).
- 62.
Article 4(10).
- 63.
(a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interests; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (e) antiquities, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest; (g) objects of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material: (h) rare manuscripts and incunabula; (i) old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections. For all categories the relevant good has to be of more than 200 years old.
- 64.
Article 5(1).
- 65.
Article 5(2). For the description of the electronic system see note n. 55.
- 66.
Ibidem.
- 67.
This date corresponds to the entry into force of the 1970 UNESCO Convention.
- 68.
Article 5(2).
- 69.
An implementing regulation is under negotiation in the period of the writing of this chapter and has to be adopted by 28 June 2021, see Article 8(2) second sentence Regulation 880.
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Urbinati, S. (2022). Lights and Shadows of the EU Regulation 2019/880 on the Introduction and the Import of Cultural Goods. In: Arcari, M., Papanicolopulu, I., Pineschi, L. (eds) Trends and Challenges in International Law. Springer, Cham. https://doi.org/10.1007/978-3-030-94387-5_6
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