By Emily Wigoder
Over the last few decades, there has been an increasing international concern about the illegal trade of cultural property being utilised to fund terrorist activity. In order to address this concern, the European Union (“EU”) introduced Regulation 2019/880 on the Introduction and the Import of Cultural Goods (“Regulation 2019/880”). This Regulation covers the importation into the EU of cultural goods, meaning ‘any item which is of importance for archaeology, prehistory, history, literature, art or science as listed in the Annex’ (Art. 2(1)), and over a certain age threshold into the EU. Regulation 2019/880 has been considered highly controversial, with many experts within the field criticising its scope, methods, and clarity. The United Kingdom’s (“UK”) rejection of this Regulation post-Brexit, the efficacy of international preventative measures against illegal trade of cultural goods, and the wider ramifications of the Regulation for the international art market are all both interesting and important for us to examine in order to understand the way that the art market is consequently going to shift. As we will see in this article, the complications surrounding implementing an effective Regulation that does not damage the legitimate art market mean that it may be better to focus our attentions on more randomised measures, such as periodic raids.
Regulation 2019/880 not only imbues customs authorities and the competent authorities with the power to take ‘any appropriate measure’ (Art. 3(1)) to prevent the introduction of cultural goods that were removed illegally from ‘the territory of the country where they were created or discovered’, but also requires those intending to transfer cultural goods over their age minimum into the Union to apply for an import licence or importer statement (Art. 3.2(a)(b)). The Regulation will enter into force by 28th June 2025.
In the Trade and Cooperation Agreement between the EU and the UK approved by Parliament on 30th December 2020, it was made clear under article GOODS.21 that the UK would not be bound by Regulation 2019/880. However, the UK will still ‘cooperate in facilitating the return of cultural property illicitly removed from the territory of a Party, having regard to the principles enshrined in the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property signed in Paris on 17 November 1970’ (Art. GOODS.21(1)).
Here, we can begin to see that the Convention that the UK is subject to sets out principles for domestic law to then address concerning the governance over the trade of cultural goods. In rejecting the EU Regulation, Parliament in no way leaves the UK without policy on addressing the issue of illegal trade and the financing of terrorism. The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (“UNESCO Convention 1970”) details a variety of instructions for each State Party to follow, including setting up a national service ‘for the protection of the cultural heritage’ (Art. 5) as well as introducing ‘an appropriate certificate in which the exporting State would specify that the export of the cultural property in question is authorized’ (Art. 6(a)). Unlike the EU Regulation, the Convention does not go into regulatory specifics.
There are several domestic statutes that support the Convention, broaching the same topic. Not only do we find the Iraq Regulations 2020, which state that ‘the import of illegally removed Iraqi cultural property is prohibited’ (Art. 22(2)), but also the Dealing in Cultural Objects Act 2003, where it is stated that ‘a person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted’ (Art. 1(1)). Furthermore, we should note the Cultural Property Act 2017 and the Syria Regulations 2020, in which there are further prohibitions on illegally removing and importing cultural property, in particular from places of armed conflict.
Domestic legislation lays out that which is prohibited, while the UNESCO Convention of 1970 presents actionable points that work to prevent these prohibited activities.
This seems like a reasonable and potentially effective combination. However, does it work in practice? From October to December 2017, the World Customs Organisation and INTERPOL, and the Spanish Guardia Civil and Europol cooperated on operations Athena and Pandora II respectively. Over the course of three months, tens of thousands of checks were carried out at airports and border crossing points, as well as auction houses, museums, and private homes across 81 countries, and online marketplaces and sales sites were monitored for illegal activity. This resulted in over 300 investigations being opened, 101 people being arrested, and the seizure of more than 40000 artefacts. Whilst we cannot separate here the trafficking of cultural goods to finance terrorism, and other forms of trafficking of these goods, the statistics from these operations suggest that the regulations governing cultural property trade are insufficient.
Since this is the case, it seems that the EU does have a case for introducing more stringent regulations on the import of cultural goods. As we can see from the cooperation of the UK with the UNESCO Convention of 1970, they are not opposed to an international approach to the issue of illegal trade of cultural goods. So, what is it about the EU’s Regulation 2019/880 that has led it to be rejected by the UK and criticised internationally, and how might we address current criticisms to create a more agreeable and nuanced approach to the issue?
Sally Burdon, President of the International League of Antiquarian Booksellers (“ILAB”), has voiced concern on behalf of her community over the workability of Regulation 2019/880 with regard to old books and manuscripts. Part of this concern comes from the phrasing of Article 3.1 – ‘The introduction of cultural goods referred to in Part A of the Annex which were removed from the territory of the country where they were created or discovered in breach of the laws and regulations of that country shall be prohibited.’ Here, the phrase ‘the territory of the country where they were created or discovered’ is ambiguous in the case of many books over 200 years old. As Sibylle Wieduwilt notes, in taking the example of 15th century printing in Venice, it would not have been unusual for one book to have been commissioned by a client in England, printed in Italy, bound in France, and illustrated in Belgium. Which of these should we consider the country in which that book was created?
Selecting any one of these factors over another seems arbitrary, and it has therefore been suggested by ILAB that the requirement to identify this country be removed from the regulation. Attempting to determine the source country of a book that has spanned several could lengthen investigations into individual items significantly, and this would be an unnecessary point of delay into determining whether the import of the cultural good is legitimate. Therefore, if the UK or EU were to introduce more legislation to address this issue, it seems that antique books should not be subject to this clause.
One of the greatest concerns about the new EU Regulation 2019/880 is the impact of the licence requirement on art fairs and exhibitions, and specifically, the regulatory framework. The requirement states that ‘import licence should not be necessary where the cultural goods are under temporary admission, within the meaning of Article 250 of Regulation (EU) No 952/2013, and where an importer statement has been provided instead of the import licence. However, the presentation of an import licence should be required where such cultural goods are to remain in the Union after the art fair.’ (Art. 21) Whilst this might seem at a first glance as though it removes the risk of damage to art fairs within Member States, this is not the case. Clinton Howell, President of the International Confederation of Art and Antique dealer Associations (“CINOA”) pointed out to the Art Newspaper that not only does the time and money required to process and obtain the licences for exhibiting dealers create hassle that might encourage them to trade instead at fairs outside of the regulations bounds, but ‘if an item sells, the dealer would still have to await receipt of the licence before finalising the deal, which could lead to a lost sale.’ This is highlighted in the time frame given by the EU within which an import licence should be issued: ‘Within 90 days of receipt of the complete application, the competent authority shall examine it and decide whether to issue the import licence or to reject the application.’ (Art. 4(7)) Three months is a significant period of time to wait, and it therefore does not seem unreasonable to suggest that this could have a significant negative impact on the art market, not only hindering effective transactions, but also creating commercial uncertainty.
Another issue that Regulation 2019/880 faces is that of categorisation. There are two categories of cultural goods that are subject to the regulations laid out: high-risk goods (those over 250 years old, of any value) and lower-risk goods (those over 200 years old, valuing at least EUR 18000). By providing such minimums, the Regulation provides room for traffickers to undervalue and falsify the age testing of items in order to avoid meeting the requirements for inquisition by the authorities.
Furthermore, we should note the obvious - that Regulation 2019/880 only applies to those countries within the EU. This means that there are art fairs and markets outside of the EU where it will be easier, cheaper, and more efficient for dealers to trade. This has the potential to cause substantial damage to the art fairs and exhibitions within the EU as a result. The stringency of the regulations would only be practically effected if they could be adopted on a greater scale internationally, keeping the playing field level across the international art market.
It is difficult to see how one might easily shorten the administration period from 90 days, or indeed how the relevant high and low-risk cultural goods should be identified without resorting to at least somewhat arbitrary restrictions which leave room for traffickers to continue trade.
Perhaps we should instead be focusing our efforts on more randomised operations like Athena and Pandora II. By investigating airports, border crossing points, auction houses, museums, and private homes at random and seizing any illegally traded cultural goods found, this might encourage buyers to be more thorough in their inquisition into the legitimacy of the items they are buying due to fear over losing both their money and investment. In this way, we would be able to influence the illegal trade of cultural property in order to finance terrorism without severely negatively impacting the legitimate international art market.
 As set out in Annex B – for most goods, this is 200 years.  (2018 February 21) Tens of thousands of checks were carried out at airports and border crossing points across 81 countries. Retrieved from https://www.interpol.int/en/News-and-Events/News/2018/Over-41-000-artefacts-seized-in-global-operation-targeting-trafficking-of-cultural-goods  Bailey, Martin (2018 June 15) Art dealers slam proposed European Union licence regulations. Retrieved from https://www.theartnewspaper.com/news/dealers-slam-proposed-new-licence-regulations  ibid.  ibid.