Exporting Works of Art – UK and EU Developments

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Mar. 7, 2022

U.S. buyers of higher value art or antiquities located abroad may find themselves facing hurdles when attempting to transport those works out of countries with restrictions on the export of certain cultural property. Art export regimes are not entirely new though they are increasingly robust, complex, and contentious. Additionally, such limitations on export are directly at odds with the liberal free market rules that largely inform the U.S. approach (or lack thereof) to art and antiquities exports and thus can be a surprise to U.S. purchasers active on the international art market.

At the end of February, the Institute of Art & Law, in partnership with Maurice Turnor Gardner LLP, hosted a detailed seminar in which legal and industry experts explored the challenges and new developments in the area of art exports, primarily in the UK and EU regulatory environment.

The program kicked off with an overview of the UK system by Lord Inglewood, former Chair of the UK’s Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (the RCEWA or the Committee). When considering whether the export of a work of art or antiquity from the UK should be restricted, the RCEWA applies what is known as the Waverly criteria, which focuses on whether a work is connected with British history and national life and is of outstanding aesthetic importance or outstanding significance for the study of art, learning or history. If the Committee determines the Waverly criteria is satisfied then the UK Secretary of State may bar a work from export for a limited period of time so as to allow for a UK purchaser to acquire the work at fair market value from the would-be exporter. Relative to the border controls of neighboring European countries, the UK’s regime for the export of works of art is somewhat flexible and is regarded by some as a creative attempt at balancing the interests of various stakeholders.

However, recent, notable adjustments to the system cut against that flexibility. As of January 1, 2021, the UK system now boasts a “binding offer” mechanism, which works to oblige the would-be-exporter to contractually commit to sell the work to the UK entity who makes an offer at FMV. Unsurprisingly, such a mechanism gives rise to difficult questions about the extent of interference into a person’s property rights and based on commentary from various experts and researchers, there is no consensus on the propriety nor the efficacy of the new provision.

Even such binding offer mechanisms seem tame in the face of neighboring European countries’ export regimes for art. Panelists of lawyers from Italy and France explained the rigidity of the Italian and French art export systems, emphasizing the breadth of power the Italian and French governments exercise once an object has been declared a national treasure. Under those systems, forced sales are normalized and FMV is not necessarily required or guaranteed.

There was also discussion on the new EU regulation on the import of cultural goods (Regulation (EU) 2019/880) which will heighten the requirements on those seeking to import certain artwork and antiquities into anywhere in the EU. The new regulation, though distinct and detailed, takes a form similar to that of U.S. import restrictions for certain cultural property, and provenance checks will soon be routine for covered works at EU borders. The practical effects of the new EU rules on importers and dealers are not yet known and there was some speculation as to how trade flows of such goods will be reworked.

Regardless of subject jurisdiction, rules for the export and import of certain cultural materials is complex and as evidenced in the above overview of the IAL program, they are constantly changing and evolving. It is best to have an idea of what rules may apply at the outset of purchases or sales, rather than be caught in the regulatory web after the fact.

For any questions on the UK export regime, EU export rules for works of art or imports, or cultural property trade generally, please contact an attorney at Barnes, Richardson & Colburn LLP.