EU agrees on import measures for cultural property
Almost three years after launching the process, the European Parliament, Commission and Council of the European Union have reached agreement on a new system of import measures for cultural property to be harmonised across member states.
The art market, which has campaigned against aspects of the proposals because of the serious damage it perceives will be inflicted on legitimate activity, awaits clarity on a number of points after the December 11 decision. However, IADAA, which has played a central role in the campaign over the past three years, believes the concessions it has won alongside fellow campaign groups like the ADA and CINOA have mitigated the worst effects.
The initial objective of the proposals was to prevent trafficked items that could have funded terrorism from being imported into the EU. The Commission vowed to press ahead with measures even though its own research could not uncover any evidence of there being a problem within the EU. This meant that it wanted restrictions to control what came in and how it was processed on arrival.

The plans involve a two-tier system based on perceived risk. Archaeological pieces face the strictest rules as the authorities deem them most at risk from exploitation by terrorists, despite the lack of evidence to show this. Those wishing to import them will have to provide extensive identifying documentation, including showing that they were legally exported from the last country in which they rested for a period of no less than five years, although what the EU really wants to see is proof of legitimate export from the country of origin, regardless of when that was, usually in the form of an export licence, despite experience showing that these documents hardly ever exist (or were kept). Before IADAA’s intervention, the proposal was for a period of 20 years, not five, and importers had no leeway at all on the level of proof, being instructed to “show proof” of legal export from the country of origin regardless of when that had been, or be denied import.
What especially concerns campaigners is that this class of goods carries no value threshold, meaning that even the least valuable items, such as individual arrow heads and oil lamps, which previously could be grouped together in a single licence application, will have to be treated separately. The vast numbers of licence applications for small items traded on the internet that will arise as a result risk bringing customs to a standstill, which means they will not have the resources to tackle real crime, thereby possibly making things easier for traffickers.
The Commission’s original proposal stated that an electronic system may be developed, but trade campaigners including IADAA insisted that any measure would only be workable with a fully functional electronic system in place. This has been accepted with as result that the import licensing and importer statement system will not start before 2024 or, at the latest, 2026. That gives us seven or eight years to see how details of the process will actually work and seek to amend weak areas that will damage trade and hamper customs.
The proposals did include a derogation for the temporary import of cultural property for educational, scientific and other non-commercial purposes; campaigners persuaded the lawmakers to add a clause allowing temporary import for the purposes of art fairs too, but this is now only permitted with a supporting importer statement for each item, thus not cutting red tape at all.
While that may sound sensible, the problem is that this would entail hundreds, if not thousands of last-minute applications preceding large fairs arriving at customs, who would not have the capacity to cope, and the regulations stipulate permissible delays of several months in processing applications, which, of course, would be too late for the fair.
While any goods outside the “at risk” category, such as Contemporary art, will avoid such measures because of a minimum age threshold of 200 years, others, like Asian art, Arms & Armour and general antiques, among many more, are likely to face real problems, which would have a serious impact on the diversity of major fairs.
Other areas continue to cause concern, including what appears to be an attempt to enforce a UNESCO Convention date of April 24, 1972 on all imports regardless of the various ratification dates of countries of origin.
We also have further questions over some of the definitions involved and how clear they are, but all in all, the results show how our investment in campaigning is paying off in members’ interests.
An additional benefit has been the network of contacts we have been building as a result at the heart of the Brussels machine, which should stand us in good stead in future, as well as a growing understanding of the processes involved and a higher profile for IADAA among decision makers.
The French trade intervenes over import licensing
The Syndicat National des Antiquaires (SNA), the leading art and antiques dealer association in France, wrote to the French Culture Minister, Franck Riester, on December 2, to protest that no specialist in the subject has been consulted in the drawing up of the report commissioned by President Macron looking into the restitution of African cultural property.
The SNA has called for an urgent meeting with the minister to discuss the unforeseen consequences of the new returns policy on the wider cultural landscape, and it has used the opportunity to call for France to intervene in the Trilogue talks prevent what SNA President Ary Jan Mathias calls the heavy and ineffective burden of the measures from damaging the European art market in the event of a full Brexit (see above).
Easter Island statues: international law is shifting against British Museum
The Conversation: November 29: This article considers the increasing pressure on European museums to return cultural artefacts to their homelands, as highlighted in last month’s newsletter.
Initially focusing on Hoa Hakananai’a, a particularly important Moia or giant carved head statue from Easter Island removed in 1868 and brought to Britain, the article notes show the British Museum has said it will consider loaning the piece to the Rapa Nui people of Easter Island, but it will not commit to handing it over permanently.

Most museums hide behind their own conservation policies, arguing that “deaccession” – permanently removing an item – is prohibited,” the article explains. “In the past, it was often difficult to mount a legal challenge against this position. Yet there are signs that international law may finally be moving in favour of the Rapa Nui and the many other indigenous peoples affected.”
It also notes that a widespread returns policy has been adopted since the mid 1990s by UNESCO, whose principles and Guidelines for the Protection of the Heritage of Indigenous People, adopted in 1995, request that governments and international organisations help indigenous peoples to recover such objects. They should be returned “wherever possible”, particularly if they have “significant cultural, religious or historical value”.
As it also notes, “The conventions have crucial legal weaknesses, however. Under UNIDROIT, for example, the time limits for recovering stolen indigenous cultural property are flexible, while the rules only apply to items stolen after the treaty came into force. UNIDROIT has also only been signed or ratified by a limited number of countries, including New Zealand, Italy and Spain – but not the UK. Also, only states can participate, making it harder for indigenous peoples to bring actions.”
This on-going debate is important from a trade perspective for a number of reasons: it places the museums in the eye of the storm, rather than the trade; it is forcing a wider debate on personal property rights; it is also forcing a wider debate on whether all important cultural artefacts should be returned to their home countries or whether there is a moral and cultural argument for them to be dispersed across the world; and it is highlighting the difficulties host nations face when, as with President Macron’s new policy, politicians make political points and proceed to enforce their wishes without first considering the implications for everyone involved.
As the Art Newspaper reported on November 28, getting round the inalienability of publications might not work from a legal and practical standpoint (see second link below). “Be careful what you wish for,” advises Alexander Herman, Assistant Director of the Institute of Art & Law, who also argues that President Macron’s first act under his new policy “contradicts the very proposals in the report” because “it ignores the very legal structure that was to underpin the project of restitution”.
As a footnote, in mid December the mayor of Easter Island publicly advised the British Museum to keep the head, arguing that returning the ‘stolen friend’ to its former home would jeopardize its survival. He pointed out that the remaining statues on Easter Island have been “buried, ignored and discarded” and are vulnerable to the destructive effects of tropical rains and wind.
https://bit.ly/2KLy93q
https://bit.ly/2SmvD6j
Collecting antiquities can be profitable yet their provenance can bite back
Financial Times: December 1: This overview of the issues facing the trade notes “the huge appetite of collectors for ancient Egyptian works”. It quotes Joanna van der Lande of the ADA and further notes the “increasing challenges” the trade face to prove the provenance of their works. But it also looks at the issue of public opprobrium over de-accessioning, focusing in particular on the ostracizing of Northampton Council for selling of the £15.7m statue of Sekhemka in 2014.
Jane Levine, Sotheby’s global head of compliance, and Laetitia Delaloye, Christie’s London of head of antiquities, explain how auction houses have to research provenance, while Christos Tsirogiannis levels his usual criticisms about due diligence.
However, this article is important because it highlights the lack of export licences and other paperwork available to compete that most desirable of fully documented provenances, before leading on to Sotheby’s legal action against the Greek ministry of culture over the rights to an ancient Greek bronze horse.
https://on.ft.com/2BPwOpL
Switzerland returns junk to Egypt (Translated)
A German Egyptologist is certain: Instead of old cultural assets, the Swiss Confederation recently returned cheap souvenirs to the ambassador of the land of the Pharaohs.
Blick: December 2: This article traces how what was presented as a diplomatic triumph for the Swiss authorities has transformed into severe embarrassment, highlighting the incompetence of their restitution policy.
As reported in last month’s newsletter, 26 seized Egyptian artefacts were returned by the Federal Offfice of Culture (BAK) to the Egyptian Ambassador, Hisham Seifeldin, during a high-profile ceremony in Bern on November 21.
Now, according to Chistian E. Loeben, curator of the Egyptian and Islamic collections at the Museum August Kestner in Hanover, the pieces were obviously cheap modern imitations.
In fact, Loeben believes that they are not fakes because they were never made to deceive, just to be sold as tourist trinkets.
“The restitution is therefore a waste of time and money,” he concludes, adding that one does not even need to be an expert to realise what they really were.
Loeben believes that the error was so basic that it risks undermining the credibility of the BAK, especially as they could have easily checked the authenticity of the pieces with one of the many Egyptologists and other outstanding ancient Egyptian art connoisseurs in Switzerland. The BAK has been quick to blame the police and the Egyptians. BAK spokesman Daniel Menna said: “The International Cultural Heritage Transfer Office of our Federal Office sent a request to the Fedpol, which was answered via Interpol in Cairo.” Interpol Cairo clearly confirmed the authenticity of the objects, he added.

Another article on the subject (see second link), interviewing IADAA Treasurer Robert Bigler, confirms the error, with Bigler stating: “Yes, it is obvious at first glance that most of the alleged cultural assets are not genuine.” He says that this will not go down well in Switzerland because the “incident damages the image of our country, which wants to be perceived as reliable and accurate worldwide”.
Bigler agrees that the authorities should have consulted an expert before rushing to publicise the return, adding: “The duty of care in dealing with cultural goods, which must be met by collectors and art dealers, of course, should also apply to the Federal Office itself. But there may also be a lack of resources. In addition, some states aggressively demand the return of cultural property. Precisely because these restitution claims are not always justified, a careful clarification would be appropriate.”
This article also reveals that confirmation of the pieces’ authenticity came from Interpol Cairo in just 20 minutes.
https://bit.ly/2QhKEd3
https://bit.ly/2BVyP3w
Germany gives 10 million euros to Atun Museum in Minya
Egypt Independent: December 4: The German Bundestag has agreed to allocate 10 million euros from the German government’s budget for 2019-2020 to complete the Atun Museum in Minya, Egypt.
https://bit.ly/2BVtwB4
State department wins court case
Numismatic News: December 5: This article concerns a test case brought by the Ancient Coin Collectors Guild (ACCG) challenging the extent of the State Department’s authority to seize imported coins under import restrictions and cultural property legislation.
It surrounds 15 coins from China and Cyprus seized by US Customs in 2009.
Kate Fitz Gibbon, the campaigning lawyer who also runs the US Cultural Property News blog, wrote: “The Cypriot and Chinese coins had no solid provenance, a traceable history of ownership, or place of origin, which is typical of coins on the market.”
Fitz Gibbon noted that the UNESCO Convention for preventing and prohibiting illegal transit of cultural property covers object found on national territory “not archaeological objects that travelled in ancient times, and are found on other nations’ lands.” (The ACCG imported the coins from England.)
However, Fitz Gibbon argues that the US Court of Appeals ruling “effectively lessens the government’s burden of proof to show that objects were unlawfully imported, a consequence Congress sought to avoid in the original legislation.”
Fitz Gibbon cautioned it should “alarm all U.S. stakeholders in cultural property matters from collectors to art dealers to museums, archaeologists and academics, that the courts were so willing to gloss over the State Department’s failure to honor the careful balance that Congress built into the Cultural Property Implementation Act.”
https://bit.ly/2QDZIRH
Getty museum says it has right to keep prized Greek statue
Fox 13: December 5: This article covers the latest salvo in the long-running dispute between The Getty and the Italian authorities over Victorious Youth, the life-size bronze dating from 300BC to 100BC.
An Italian court in Pesaro had ordered it seized and returned in 2010, at the height of Italy's campaign to recover antiquities looted from its territory and sold to museums and private collectors around the globe.
The Getty says Italy has no claim to the bronze, which was pulled from the sea in 1964 by Italian fishermen, purchased by the Getty in 1977 for $4 million and on display at the Getty since.
The dispute centres on whether the Italian authorities have any jurisdiction over the piece, which was found in international waters, having been salvaged from a shipwreck. It is of Greek origin and has never been part of Italian culture.
Though the artist is unknown, some scholars believe it was made by Lysippos, Alexander the Great's personal sculptor.
It's not clear if the Getty will now take an appeal to a European court.
https://bit.ly/2PpNCHg
Belgium's revamped Africa Museum triggers request by DRC
The Guardian: December 8: Another restitution article, which shows how the movement is gathering pace. This time, the director of Belgium’s Africa Museum says that calls from the President of the Democratic Republic of Congo for the return of artefacts linked to its history will be considered.
President Joseph Kabila says that he wants to house the documents and objects in a new national museum being funded by South Korea.
https://bit.ly/2zVHQYW
Antiquities minister reveals major theft at Egyptian Museum
Middle East Monitor: December 10: Egypt’s Minister of Antiquities Khaled El-Enani revealed that he is investigating a major theft at the Egyptian Museum. According to the Egyptian minister a number of artefacts were seized in the UAE Emirate of Sharjah, some were returned to Egypt.
https://bit.ly/2EpHbCV
Syrian antiquities chief accuses U.S. of looting artifacts in northern Syria
Xinhua.net: December 10: Syrian Director General of Museums and Antiquities Mahmoud Hammoud has accused the United States, France and allied Kurdish militia of carrying out illegal excavations in ancient sites in northern Syria, according to state news agency SANA.
https://bit.ly/2RQSzL8
Why the U.S. Should Not Assist Italy in Forfeiting a Rare Bronze
New York Times: December 10: An interesting opinion piece by Stephen K Urice, an expert in international cultural property, regarding the Getty bronze after an Italian court demanded it be handed over.
Setting out the painstaking process of due diligence that the Getty carried out over several decades and pointing out that the Italian Court of Cassation failed to publish the reasoning behind its recent ruling, as well as its 1968 ruling that Italy effectively had no claim, Urice
advises the US authorities not to aid any further attempt by Italian authorities to have the piece seized and given to them.
https://nyti.ms/2C4DkZK
US anti-money-laundering bill could reappear early next year
The Art Newspaper: December 11: The Illicit Art and Antiquities Trafficking Prevention Act (HR 5886) could reappear in Congress as early as January 2019, this article reports. It was initially proposed following the European Union’s introduction of fifth Anti-Money-Laundering directive in 2018, which applies to all art-based transactions over €10,000. Under the US proposals, dealers in art and antiquities would have to report all sales over $10,000.
“The bill would also force those who sell at least $50,000 worth of goods in a year to submit their financial records to the US government,” the article continues. “But whether money laundering is prevalent enough within the industry to justify the regulatory burden it could place on dealers has become a point of contention, with some in the trade questioning who the legislation ultimately benefits.”
Andrew Schoelkopf, the president of the Art Dealers Association of America (ADAA), echoes IADAA’s own experience when he says “those who seek to regulate it have a poor understanding of how the business actually functions”.
The article notes that “within the last decade or more, there have only been a few instances in which works of art were used as an accessory to money laundering”, while the illiquid nature of art does not make it an attractive vehicle for this sort of crime.
What is extremely noteworthy is this article reports what IADAA has been arguing all along when it comes to antiquities – something that has now been shown in a US State Department-funded study “that the
Islamic State (IS) probably made little more than $1m from the sale of such objects—a far cry from the previously stated estimate of anywhere from $4m to $7bn. There is little to no numeric evidence connecting US art sales with IS or other terrorist activities.”
Needless to say this has not put off the Antiquities Coalition, whose chairman, Deborah Lehr, when challenged over the figures, resorts to her usual defence: “It’s challenging to put a number to a trade that by its very nature is secretive.”
This raises the question that if the figures are so hard to come by, why has the Antiquities Coalition made such public claims quoting figures from $3 billion to $7 billion?
The major concern here is that the legitimate trade will be swept up into a regulatory strait jacket, which is inappropriate to their activities.
“If you make the dealers take this kind of reporting on individually, they’re all going to make their own version of it. It’s not going to be consistent and that will cause more problems,” says James McAndrew, who has been advising the trade in recent years.
https://bit.ly/2CdwQHZ
It’s time from French museums to return Cambodian artefacts
The Diplomat: December 13: The predictable result of President Macron’s new policy, starting with Benin, this article focuses on why Cambodian artefacts should be next.
https://bit.ly/2A1gdhd
Record-breaking year for treasure discovered by the public
Art Daily: December 14: Treasure finds by the British public under the Portable Antiquities Scheme in 2017 have reached 1267 across England, Wales and Northern Ireland.
Generally defined as gold and silver objects over 300 years old, or groups of coins and prehistoric metalwork, the total number of individual items recorded on a voluntary basis with the PAS was 78,000.
Michael Ellis, Minister for Arts, Heritage and Tourism said: “Thousands of hidden treasures have been uncovered this year, helping us to learn more about our past and those that came before us. Many of these important finds have been acquired by, and gone on public display in our museums, meaning that more and more people can experience and understand our rich history.”
https://bit.ly/2QsCWgm