Free passage of goods between member states is a fundamental tenet of EU law – however, how does that sit with national laws that seek to restrict the export of important cultural items? The High Court addressed that issue in a case concerning a £10 million painting that was viewed as an Italian national treasure.
The Madonna and Child, painted by Florentine master Giotto di Bondone and dated 1297, had been in storage in London for over 10 years since its export from Italy. Its owner argued that she had every right to remove it from its homeland. Although a temporary certificate enabling its export had expired, the Italian authorities would have been obliged to renew it as a matter of course. Italy’s continued assertion of rights in respect of the painting had blighted its market value.
The woman later applied to Arts Council England (ACE) for a licence to re-export the painting outside the EU, to Switzerland. That application was, however, refused on the basis that its removal from Italy had been unlawful. ACE decided that the Italian Ministry of Cultural Heritage was the competent authority that should decide the licence application. ACE was prepared to issue an export licence, but only to enable the painting’s return to Italy.
In challenging ACE’s decision by way of judicial review, the woman claimed that she had an unfettered right to move the painting to a non-EU country by virtue of Article 2 of EC Regulation 116/2009, the provisions of which seek to ensure that exports of cultural goods are subject to uniform controls at the EU’s external borders.
In rejecting her arguments, however, the Court noted that it was a matter of intuitive common sense that the Italian authorities would wish to restrict export of important works of art and other cultural items. On a true interpretation of the Regulation, the lawfulness of the painting’s original export was to be judged by the law of the member state from which it was despatched, namely Italy.
She had been required by Italian law to obtain a fresh certificate of free movement in order to remove the painting to London, but she had neither done that nor had she given the Italian authorities advance notice of the export. That requirement was not merely a technical matter, nor was it disproportionate, and the painting’s export was therefore unlawful as a matter of Italian law. The Court’s decision meant that the proposed export of the painting to Switzerland would have to be licensed by the Italian authorities.