New Rules to Restrict the Importation of Cultural Property into the EU

In an effort to tackle the trade in illicit cultural property, the EU has introduced a regulation to control the importation of cultural goods. The new import controls discussed below apply in addition to the existing obligation to declare cultural property to customs and pay import VAT in the EU country where the property is being introduced.

If you own or acquire “non-European” art outside the EU, you should start preparing now to meet the regulation’s requirements. The regulation contains a ‘general prohibition’ which prohibits the introduction into the EU of cultural goods that have been illegally exported from a third country. The regulation defines two categories of cultural goods – a category B of so-called "high-risk" goods and a category C of "low-risk" goods that can be imported subject to obtaining an import licence or submitting an ‘importer statement’. Two derogations apply to both category B and category C objects. Both categories and applicable derogations are described in further detail below.

Who is affected by the new rules?

The new rules apply to anyone introducing in the territory of the EU cultural property originally made or found outside the EU. Objects originally made or found in the EU are not affected by the new rules. Accordingly, the new rules will not apply to paintings, sculptures, or decorative arts made in European countries now part of the EU, even if they have left the EU and are now returning. Examples include French Old Masters, French impressionist paintings, German silver, Italian books and manuscripts, and Roman and Greek antiquities. If, however, the object was originally made or found outside the EU, it will be caught by the new rules. Examples include pre-Columbian art, Chinese art, Japanese art, Indian art, Islamic art, fossils found outside the EU, tribal art, Russian icons, and American impressionist paintings.

When will the new rules be fully effective?

The regulation became law in June 2019. The full effect of the regulation is now subject to the introduction of a centralised electronic system for the storage and exchange of information between customs authorities of the different EU member States (the “ICG system”). The date when the ICG system is expected to become operational is not yet known, however the EU has set a deadline of 28 June 2025.

Why does it matter?

The fundamental principle behind the regulation is that cultural property illegally exported from a third country should not be allowed into the EU. In theory, this is a laudable principle. In practice, establishing the legality of an export that may have occurred centuries ago could be an evidential nightmare for collectors.

From the mid-19th century, countries slowly sought to stem the removal of cultural property from their territory by introducing controls over the export of cultural property. Legislation was introduced, then amended over the years, often several times. There can be layers of regulations, applying at different times. If you can establish when the cultural object was exported, you can, in theory, determine the regulations applicable at the time to ascertain if an export license was required.

Enforcement of these regulations was often lacking. The rules were easy to avoid by simply crossing the border with a suitcase full of artworks. The content of those suitcases would be miraculously “inherited” or “stored away for many years”, principally in Switzerland and in London before they suddenly appeared at the doorstep of auction houses or art dealers. The art market was often complicit: don’t ask, don’t tell.

In the early 1990’s, countries like Italy, Greece, and Turkey began to pay closer attention to their own export rules. Art market institutions were targeted by Italy first, such as Sotheby’s in the areas of antiquities and Old Master paintings, and museums with antiquities collections such as the Getty. This was a wake-up call, and, since then, the tide has turned, with source countries re-claiming their patrimony.

Claims by source countries can be divided into two main categories. The first type involves a country claiming ownership of cultural property, for example because it was found underground and, under local laws, the ownership of cultural property found underground vests in the state. The second type involves a claim that cultural property was illegally exported. This article focuses on illegal export claims rather than ownership claims.

A claim that cultural property was unlawfully exported raises multiple questions, such as where the property was first made or found. Ancient civilisations inhabited large geographic areas that rarely correspond to our contemporary geographical borders. Establishing whether a 15th century Persian tile was made in modern Turkey, Iran, Syria, Afghanistan, or Iraq can be an unfair evidential challenge even for an expert. When did the tile leave its country of origin? Depending on the date, there might have been no export control in force. Alternatively, if there was, what was the applicable regulation that set the relevant requirements? Identifying the relevant statute to answer that question can require an exercise in legal archaeology challenging even for local lawyers.

An auction or a dealer’s catalogue is unlikely to contain a reference to the date when a lot was removed from its country of origin. Until about 30 years ago, when source countries paid greater attention to their export control laws, export documentation was often overlooked if it was available. Even today, in practice, once an object has arrived safely at its destination, few collectors request a full set of export and import documents for their records. Export and import documentation is instead typically left to gather dust on the shelves of shipping companies. Unfortunately, from 2024 or 2025, when the EU ICG system becomes operative, having import and export documentation within reach will become crucial to importing cultural objects caught by the new EU rules. Without it, importation of cultural objects into EU member states could become a headache at best, and an impossibility at worst.

How do the new rules operate?

The General Prohibition

First and foremost, the regulation establishes a ‘general prohibition rule’ which prohibits the introduction into the EU of cultural goods that have been illegally exported from a third country. The definition of “cultural goods” is very broad. Most categories of fine arts, decorative arts, and collectible items are caught, irrespective of date or value (apart from antiques and furniture that must be over 100 years old and musical instruments that must be “old” - an adjective uncomfortably left open to interpretation). It is important here to remember that cultural objects are caught only if they were made or found outside the EU. Objects originally made or found in the EU are not caught by the regulation.

High-Risk and Low-Risk Cultural Property

The regulation defines two categories of cultural goods – a category B of so-called "high-risk" goods and a category C of "low-risk" goods.

Category B

Products of archaeological excavations (including regular and clandestine) or of archaeological discoveries on land or underwater and elements of artistic or historical monuments or archaeological sites which have been dismembered if they are more than 250 years old, irrespective of their value, are considered “high-risk.” The importer of high-risk cultural property must obtain an import license before the property is allowed into the EU.

A key provision of the regulation is Article 4.4: the application for an EU import licence “shall be accompanied by any supporting documents and information providing evidence that the cultural 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.”

Only in exceptional cases will the exporter of the cultural goods from the source country and their importer into the EU be the same party. In general, the exporter from the source country and the importer in the EU will be links in a (long) chain of possessors. Say the object was exported from Peru in 1985, but no export licence was obtained or kept by the exporter. The exporter sold it to John in Switzerland, who sold it to Jack who exported it to the U.S. Sue inherited it from Jack, then sold it at auction to Sam. Sam has possessed the item in the U.S. since 2022 and plans to import it into the EU after the regulation comes into force. Sam may not be able to do so because he cannot produce the 1985 export licence from Peru. Yet, when he bought the item at auction in the U.S., he was under no legal obligation to obtain a copy of the Peruvian export licence. Neither Sue nor the auction house that sold it to Sam would have had a copy. The regulation requires importers to produce a document that they were not required to obtain when they acquired possession of the object, had no means of obtaining in this common example, and had no legitimate expectation of having to produce. Yet, under the regulation, in the absence of the document, Sam suffers a prejudice, i.e., the inability to import the item in the EU. The fact that the document is not available does of course not mean that the item was unlawfully exported from Peru. There is also no suggestion that Sam is not the rightful owner of the item. The regulation simply restricts its movement because the export licence cannot be produced.

In a different example, you might have bought a stone head removed from a historical monument that is more than 250 years old in the country where it was created, for example, in Thailand. You, your vendor, or your shipper sought a Thai export license prior to the object being removed from Thailand (assuming that an export license was required given the value and age of the object – in the case of a stone head of that age, an export license was most probably required). The relevant documents should be available (you may have to ask your vendor or your shipper for them). If, however, you bought the object from a “secondary source”, say at auction or from a dealer outside Thailand, or you inherited the object, the chances are that you will not be able to establish when the object left Thailand. You might equally not know whether the object was in fact made in Thailand or in a neighbouring state. Your prospect of meeting the regulation’s evidential burden by producing documentation to demonstrate that the object was lawfully exported from the country where it was created is close to nil. Unless you can rely on one of the two derogations described below, you will not be able to import the object into the EU.

Category C

A residual category of “cultural goods” are classified as “low-risk” (amongst others, these include objects of ethnological interest, paintings, prints, sculptures, coins, and rare manuscripts) if they are more than 200 years old and have a minimum value of €18,000. To import those objects, the importer must submit an importer statement via the ICG System comprising a signed declaration stating the object was lawfully exported from the country of origin and a standardised document describing the cultural object for which a template is provided in implementing regulations. The importer of low-risk cultural property must sign the declaration before the property is allowed into the EU.

Making a false declaration is expected to be a criminal offence under local law. If you do not know for a fact that the object was lawfully exported from the country where it was created or found, and you declare that you know, you could be prosecuted if it transpires later that your declaration was false. A declaration could come under scrutiny if, a few years after it was made, you or someone else sells the property at public auction and the country of origin makes a claim to it. Making a declaration unless you know it to be true will not be without risk and knowing it to be true will be the exception rather than the rule.

The Derogations

Two derogations apply to both category B and category C objects.

The first derogation is as follows: if the country where the object was created or discovered cannot be reliably determined, the application for an EU import licence can, instead, be accompanied by documents proving that the object was lawfully exported from the last country in which it has been for more than five years (for purposes other than temporary use, transit, re-export, or transhipment). A similar derogation applies to importer statements for category C objects, which can include a statement to this effect. For example, you buy a 15th century Persian tile in Istanbul and pay more than €18,000 for it. The tile likely qualifies as a category C object. The country where the tile was created cannot be reliably determined. Your seller can demonstrate that the tile has been in Turkey for more than five years. The derogation will apply, and you can sign the importer statement if the tile has been lawfully exported from Turkey.

The second derogation is as follows: if the object was removed from the country where it was created or discovered prior to 24 April 1972, the application for an EU import licence can, instead, be accompanied by documents which prove that the object was lawfully exported from the last country in which it has been for more than five years (for purposes other than temporary use, transit, re-export or transhipment). As above, a corresponding derogation applies to category C objects. In our example, if it can be established that (i) the tile was made in Iran, (ii) it was removed from Iran prior to 24 April 1972, (iii) the tile has been in Turkey for more than five years and (iv) the tile has been lawfully exported from Turkey, you can sign the importer statement and the tile can be lawfully imported into the EU.

EU Working Group

In June 2023, the European Commission sought to create a working group that would engage in a dialogue with the art market on the protection and trading in cultural goods. Unfortunately, as is often the case in the EU, it was announced that “the working group will primarily focus on activities within the region that comprises of the 27 European Union countries, as well as Iceland, Norway, and Lichtenstein”. This insular approach is counter-intuitive in a global art market and is partly the reason behind the ill-conceived EU Regulation on the importation of cultural property.  But the Commission did at least acknowledge that “the global trade in cultural goods extends beyond the European single market”.  The working group met in Brussels for the first time on 18/19 December 2023.  Another meeting is scheduled to take place in January 2024.  Let’s hope that the working group will have a positive influence on how the EU Regulation is being implemented. 

Does the EU regulation apply in the U.K.?

The regulation was revoked in the U.K. following Brexit. Accordingly, it does not apply in the U.K. 

Given that the U.K. is now treated as a third party as far as the EU is concerned, the new regulation could have unexpected consequences. For example, Louise has a collection of 16th century British portraits, some inherited, others bought at public auction or from dealers. They are valuable (the value of each painting exceeds €18,000). Louise lives in the U.S. and wants to move permanently to the EU. She will have to sign a declaration prior to importation into the EU confirming that the British portraits were lawfully exported from the U.K., unless she can adduce evidence that the portraits were removed from the U.K. prior to 24 April 1972. She could find that she cannot do either.

What can I do now to prepare for the introduction of the new rules?

 Evidence of lawful export

• Identify objects in your collection originally created or found outside the EU, that are currently stored outside the EU, and that you may wish to import into the EU.
• For each object, record when and where you bought it:
  • If it was acquired in the country of origin, seek export documents from the vendor or the shipper.
  • If it was acquired in another country, establish if you can rely on the first derogation by seeking evidence that it remained in that other country for at least five years, and if an export license was required to remove it from that other country, seek a copy from your vendor or the shipper.
  • If you cannot rely on the first derogation, you might be able to rely on the second derogation if you can establish that the object left the country of origin prior to 1972.

Research

• You may need to commission a provenance researcher to find out more information about the history of objects in your collection, by contacting previous owners, consulting archives, talking to experts, or reviewing auction and exhibition catalogues.

Legal advice

• The regulation assumes detailed knowledge of the national export laws of source countries. Whilst there are free databases such as the UNESCO Database of National Cultural Heritage Laws which contain lists of national cultural property laws, these are not always translated into English and the onus is on the reader to interpret them. Collectors should determine which countries are of relevance to their collections and consider taking legal advice.

When choosing the EU country of import, collectors should also consider the rate of import VAT charged by the EU country of importation. The rate varies from country to country. Currently, the lowest rate is the French rate at 5.5%, the rate in Germany is 7%, Spain and Italy apply a rate of 10%. The highest rate is applied by Hungary at 27%.