21 January 2022 - Article
The EU is in the process of passing a new regulation to apply on the import and storage in the EU of cultural goods which are older than 250 years old originating from non-EU countries (‘the Regulation’).
The intention of the EU is to seek to prevent the illegal removal of cultural goods from non-EU member States in order to combat the illicit trafficking of cultural goods by terrorist financiers and money launderers and secondly to preserve the cultural heritage of non-EU States.
The main features of the proposed Regulation are as follows:
- It introduces a common EU definition of ‘cultural goods’ covering a broad range of objects including archaeological finds, the remains of historical monuments, manuscripts and rare books, artworks, collections, rare specimens of fauna and flora, stamps, furniture and musical instruments.
- The Regulation will apply to the import of non-EU cultural goods into the EU and/or the release into free circulation, or the placing under custom regime, of those cultural goods. It will not apply to (i) cultural goods that are returning to the EU within three years of being previously exported; (ii) non-EU cultural goods imported and retained for safe keeping by a public authority in the EU; or (iii) the temporary importation of non-EU cultural goods for restoration, conservation, exhibition or research.
- Importers of non-EU cultural goods that are (i) ‘products of archaeological excavations or of archaeological discoveries on land or underwater’; or (ii) ‘elements of historical monuments or archaeological sites which have been dismembered’; and (iii) older than 250 years, will be required to apply for an import licence from the Member State in which the cultural goods are either imported, brought into free circulation or placed under customs regime.
- Applications will be made via an electronic system and the importer will be required to provide supporting evidence to show that the cultural goods have been lawfully exported from the country either (i) in which they were originally created or discovered; or (ii) where they have been located for a period of more than five years, if the country in which they were created or discovered cannot be reliably determined or they left that country before 24 April 1972.
- The proposed Regulation places deadlines on the issuing authority of the Member State to request further evidence or information from the importer and to complete its examination and make a decision on the application of 21 and 90 days respectively from the date of application. Where an application is rejected it should be accompanied by a statement of the reasons.
- Non-EU cultural goods which are older than 250 years but which fall outside of the scope of the import licensing regime referred to at (3) above shall only be permitted for importation if the importer files a statement via the electronic system declaring the lawful exportation of the cultural goods from the country in which they were originally created or discovered, or where they have been located for a period of more than five years, if the country in which they were created or discovered cannot be reliably determined or they left that country before 24 April 1972.
- Appropriate sanctions for any infringements of the Regulation will be laid down by the EU Member States themselves. It is expected they will include the seizure by customs of non-EU cultural goods where proof of lawful exportation cannot be provided.
The Regulation is currently awaiting formal approval by the European Parliament and Council. Subsequent to that the EU Commission will lay down implementing acts for the establishment of the electronic system and detailed rules relating to the retention and sharing of information submitted to the electronic system.
It is anticipated that the Regulation will come into force within the next year. Member States will then be allowed two years to adopt the implementing acts and a further four years to then put in place the electronic systems for submission of the import licences and/or importer statements.
What is the impact for owners, agents and purchasers?
The Regulation is likely to have a wide ranging impact but will not apply retrospectively. Given the potential implications of the Regulation:
- Owners that are intending to import non-EU cultural goods into the EU but cannot do so in the short term, should seek to obtain the necessary paperwork now to ensure that they are able to comply with the requirements under the Regulation when it is fully enacted.
- Purchasers should ensure that they exercise a higher degree of due diligence and obtain any necessary documentation when purchasing items that are older than 250 years and fall within the cultural goods definition of the proposed Regulation.
- Anyone seeking to import non-EU cultural goods that are at least 250 years old into the EU or bring such goods into free circulation should seek advice on the status of the proposed Regulation before going ahead.