When the new import licensing regulation for cultural goods (2019/880) comes into force in the EU on June 28, 2025, what goods will be affected from the world of art and antiques?
According to the law, relevant items – all of which must have originated from outside the EU – will be split into two types: those that need a full import licence, and those that can be brought in on the basis of an importer statement.
What those items are is set out in a series of three tables in the Annex to the legislation, Parts A, B and C.
Any attempt to import an item covered by Part A will be prohibited if it is deemed to have been exported illegally from its country of origin, whenever that was.
Items included under Part B are more than 250 years old and seen as being at greater risk of looting and trafficking than those covered by Part C, and so are subject to tighter rules – in other words these are the pieces that need an import licence rather than an importer statement, and no minimum value threshold applies. This means that unless customs tell the importer otherwise, a licence will be required for every individual item, even where they might be identical, low-priced pieces imported together in large groups.
It should be remembered that being issued with an import licence conveys no ownership rights or proof of the item being legitimately acquired.
Applicants for a licence will have to demonstrate that the item in question was exported from the country where it was created or discovered in accordance with the laws and regulations of that country at the time (whenever that was – and it could be centuries ago).
Essential licences and certificates
If that country issued export licences or certificates at the time, the applicant must provide the relevant original licence or certificate (even though there has never been any requirement to keep them once used). Otherwise, they must show that no such laws and regulations existed at the time.
Because many of these items will have left those countries decades or more beforehand, that proof may no longer survive, if it was ever there in the first place. So, the law provides a third way of qualifying for a licence: evidence that the item in question has been exported in accordance with the laws and regulations of the last country where it was located for an unbroken period of more than five years.
There are further conditions to this option. Assuming you can prove that the item has spent an unbroken period of more than five years in a single country, you must also show that it wasn’t there for temporary use, or was just there in transit, for re-export or transhipment. You must also show that it was exported from the country where it was created or discovered before 24 April 1972 – when the 1970 UNESCO Convention on trafficking of cultural goods first came into effect.
One cause for customs rejecting the application will be if it has “reasonable grounds” to believe that the item’s original export from the source country was illicit. But the regulation does not say what “reasonable grounds” means in this context.
Items covered by Part C needing an importer statement are all individually valued at €18,000 or more per item and are more than 200 years old.
The FATF is an independent global body investigating crime whose reports should prove key to policy making. Not this one, however.
Arguably the most salient conclusion it comes to is as follows: “The markets for art, antiquities and other cultural objects are diverse in size, business models and geographic reach. Most are relatively small, and the vast majority of participants have no connection to illicit activity.”
However, this is buried deep in the text, while the FATF has focused on launching the report with a headline grabbing video that gives the clear impression that the art market is awash with criminals committing offences linked to money laundering and terrorism financing.
Needless to say, anti-market forces have leapt on this to condemn the trade and demand further legal restraints, while ignoring the lack of substance in the report or the fact that rigorous anti-money laundering laws already apply in the UK, for instance.
As with so many other reports of this ilk, fact checking has been a casualty. The most important initial independent statistic the report quotes as it launches into its arguments is wrong. In paragraph 3 of the Introduction Background on page 5, it notes that the United Nations Office on Drugs and Crime (UNODC) “has estimated that in 2011, as much as USD 6.3 billion in illicit proceeds could have been laundered through or associated with the trade in cultural objects”. In fact, the figure, which was sourced from House of Commons Select Committee evidence in 2000 – now almost a quarter of a century ago – does nothing of the sort as CINOA’s Bogus Statistics report proves. FATF has simply taken UNODC’s word for it, thereby adding to the dissemination of fake news. This being the case, how reliable is the rest of the report?
The FATF’s work is important, so it is a shame that it, too, appears to have fallen into the trap of putting publicity before purpose in drawing attention to itself to justify its existence.
Judged to be the most important Tudor find for 25 years, the extraordinary discovery of a gold chain and pendant hit the news this month.
According to Artnet News, metal detectorist Charlie Clarke was searching on a friend’s property in Warwickshire, England, when he found the heart-shaped gold pendant attached to a gold chain.
Apart from its exceptional condition and workmanship, the elaborate piece carried the initials “H” and “K” to the reverse of the pendant – as it turned out they referred to Henry and Katherine. What he had unearthed was a jewel created to mark the marriage of Henry VIII to Katherine of Aragon, which lasted from 1509-33.
With the find reported under the Portable Antiquities Scheme, the British Museum dated the piece to around 1521. The front of the pendant is decorated with a Tudor rose, the emblem for the House of Tudor, entwined with a pomegranate bush, the badge of Katherine of Aragon; underneath, the legend “+ TOVS + IORS” offers a pun on toujours, the French word for “always”.
The “H” and “K” initials are inscribed in red and white enamel, in Lombardic script with decorative lacing common throughout the 16th century.
What cannot be determined is who commissioned the pendant, but its sheer quality means that it would have been someone of high standing, probably a courtier.
Led by CINOA, the international trade federation for art and antiques dealers, industry bodies across the world have reacted strongly to what they see as “very alarming” proposals from UNESCO to regulate the art market.
The proposals have been drafted by a panel of academics, civil servants and legal specialists from countries that have no sizeable art market themselves; they give the impression of having no serious idea of, or interest in, how the art market operates.
The outcome is predictably draconian, unrealistic and extreme, and if passed into law by States Parties to the 1970 UNESCO Convention on illicit trade would constitute an existential threat to much of the wider art market.
Published under the heading Draft Model Provisions on the Prevention and Fight against the Illicit Trafficking of Cultural Property, the proposals even attempt to redefine the meaning of the term ‘cultural property’ so that it has a far wider meaning that that set out in the Convention. This is an early indicator of how UNESCO appears to be sanctioning an upgrade of the Convention without going through the formal process of properly consulting States Parties on it.
It is not the whole set of provisions that cause a problem. In fact, as a whole, Provisions 1 to 13 set out useful proposals for dealing with the scourge of looting and trafficking linked to cultural property. Of particular note are Provisions 6 and 7, in which UNESCO finally targets States Parties over their obligations under Article 5 of the 1970 Convention to protect vulnerable sites from criminals.
Better methods of protection
“This is something that the art market has reiterated for many years,” says IADAA chairman Vincent Geerling, who has been very vocal on the point. “Fulfilling those obligations are the most effective actions in the fight against illicit trafficking and are long overdue, especially the establishment of digital inventories of protected cultural property (Provision 7) and should include the temporary warehousing at archaeological excavations. Photographing and recording archaeological finds before they are stored would provide a more effective means of reporting possible thefts quickly to INTERPOL (as obliged) for uploading onto their database, thereby making them unsaleable and thus preventing trafficking.”
It is when we arrive at provisions 14 to 18 that the trouble starts. These attempt to regulate the art market, something that has nothing to do with UNESCO and should be excised from the proposals.
Provision 15 proposes: “Only private individuals or legal entities, holders of a license issued by the competent authority, can exercise a professional activity directly or indirectly related to the art market.”
This astonishing power grab effectively imposes compulsory licensing on the global art market in a way that it would be impossible to comply with and which, if followed to the letter, would risk exposing art market operators to legal action from their clients.
It also constitutes a serious threat to human rights as, by default, it would remove the commercial value of countless items in private ownership around the world, as well as depriving their owners of the ability to dispose of them how they see fit.
As one art market lawyer responded: “This provision is highly unrealistic. It envisions that only licensed businesses will sell art; however, most countries do not have the capacity or will to create the necessary bureaucracy for such an endeavour. There is an expectation for these individuals to hold legal degrees and be experts in foreign law when such laws are often unavailable or are not consistently applied in practice. They are also expected to maintain a register of movements or transactions, but such record keeping is of little use unless it is maintained in a database, which again would require a major undertaking.”
Risking breach of trust among states parties
The enforcement of this set of proposals would effectively undermine the existing UNESCO Convention because it would supersede its powers and remit. This would constitute a catastrophic breach of trust of States Parties that had not expressly acceded to the changes as formal alterations to the Convention.
Several countries have already made it clear that they will not accede to these proposals. Australia has said it will not oblige dealers to maintain a register of cultural property and those they trade with; Belgium, France, Sweden and the UK do not accept the wider definition of cultural property; and the United States has reserved the right to determine whether or not impose export or import controls and does not accept that the Convention can be applied retroactively. These reservations alone, which include three of the world’s largest art markets, effectively make the proposals unworkable.
It is telling that not only was no member of the art market co-opted onto the panel of ‘experts’ and not one of them hails from a leading art market nation, but also that leading trade bodies such as CINOA were not directly informed or consulted on the matter – CINOA only learned about the proposals because it was tipped off by someone who found out about them.
Reactions from other leading figures and organisations in the market have been equally damning. The European Federation of Auctioneers points out that the industry is already subject to extensive legal restrictions, including over due diligence.
The draft provisions come at the same time as UNESCO is finalising its code of ethics for the art market, another set of rules that it wishes to impose on traders while ignoring the concerns they expressed during the consultation period.
Deeply flawed questionnaire
The questionnaire involved was also deeply flawed because it failed to consider different circumstances for trading artworks, while also assuming that all restitution claims were valid, when so many are not, and that any export not accompanied by a licence is illicit, when that is not the case.
CINOA has pointed out to UNESCO that its consultation over the code of ethics elicited a very poor response from States Parties (only 12%), with only 27 responses from across the entire art market, which it argues “cannot accurately represent the art trade”.
Although UNESCO’s policies are only advisory, many fear that they will be imposed, first by declaring the code of ethics obligatory, then by using that to force through the Model Provisions. While leading art market countries may not support the measures, active source countries like Mexico, who already operate extremist policies regarding cultural property, would be only too delighted with them.
The summary impression conveyed by the UNESCO proposals and the organisation’s approach to these matters is that they are driven by an extreme ideology that is prepared to trample human rights to achieve its ends rather than an honest desire to fight crime and protect the vulnerable. Coupled with numerous examples of breaches of trust – from the fraudulent advertising campaign The Real Price of Art to its continued promotion of bogus data about the art market – UNESCO’s expressed wish to work with the art market ring increasingly hollow.
The World Customs Organisation has finally published a new report following the 2019 report, covering two years from 2019-2021, probably delayed because of the Covid 19 pandemic. Its results once again show that global levels of illicit trade in cultural property are far lower than claimed.
In the press release we read: “This year, the analysis provided in this Report is based on data collected from 138 Member administrations. Previously composed of six sections, the Report now covers seven key areas of risk in the context of Customs enforcement: Anti-money laundering and terrorist financing; Cultural heritage; Drugs; Environment; IPR, health and safety; Revenue; and Security.”
It also states: “The analysis contained in this Report is mainly based on the collection of data from the WCO Customs Enforcement Network (CEN) — a database of worldwide Customs seizures and offences”….
“However, the CEN database relies heavily on voluntary submissions by Members hence the quantity and quality of the data submitted to the system has its limitations”…
“However, as part of this new methodology, the data and information sources used to elaborate this Report has been enlarged to include various open sources.”
While the rest of the report might be “mainly based on the collection of data from the WCO Customs Enforcement Network (CEN)”, in the introduction to the Cultural Heritage chapter on page 57, the WCO goes further, admitting: “Unfortunately, the data received through the WCO’s Customs Enforcement Network (CEN) in 2020-2021 being incomplete, the following analysis will be mostly based on open source information.”
Case studies based on media reports rather than primary research
The result for the Cultural Heritage section is that most of the case studies are based on newspaper articles, sometimes even on events that happened decades ago, and have nothing to do with recent trafficking activities. This is alarming as much of the problem with false data plaguing the cultural property sector stems from misreporting in the media. It is even more alarming when the misleading picture created by a surface reading of the chapter will undoubtedly be used as ‘evidence’ in future campaigns against the art market, as past reports have been.
The WCO is supposed to report recent and reliable figures, like figure 3 on page 35, showing that the number of worldwide reported cultural goods cases for 2021 is a mere 156, that is 1.1 case per reporting country….
A newly introduced graph (shown here) in the WCO report (Page 17, Fig. 4) reveals precisely what the ADA and its fellow association IADAA have reported over the past years: the illicit trade in cultural heritage is so small that it barely shows in the statistics. Not only is it the smallest category – so small that you have to look carefully in case you miss it – but the graph also shows that seizures have fallen by around 50% between 2019 and 2021.
Let’s not forget, too, that the Cultural Heritage category is not limited to antiquities, as so many mistakenly believe; it covers 13 distinct sub-categories, including: all forms of art, antiques and collectables, household items, flora and fauna, books and manuscripts. In 2019, the top three categories of recovered item sub-categories were: Fauna, Flora, Minerals, Anatomy & Fossils; Other; and Hand-painted or Hand-drawn articles and works of art. No mention of antiquities, which did not even warrant its own sub-category.
All of this begs the question as to why, in its chapter on Cultural Heritage, the WCO has chosen to focus exclusively on photographs of seized antiquities (at least one of which seems to be a fake) alongside fossils and coins. The choice appears politically charged.Consistent reporting of
The WCO has stated in the past and here that there is under-reporting of crime in the culture sector and that it only counts seizures and cases reported via the Customs Enforcement Network (CEN), the implication being that the problem is much larger.
Figures consistently show low rate of illicit trade in cultural property
However, the miniscule share of illicit trade represented in its reports over the years by cultural property has been consistent, only now augmented by media reports not sourced via the CEN.
It further boosts this chapter of the report with a summary of Pandora VI, the latest in a seven-year campaign of international operations involving mass seizures and arrests. What the WCO, Europol or Interpol have never done, however, is to provide data on how many of their seizures and arrests later prove to be justified and how many were shown to be related to terrorism financing. It is not just the trade asking for these figures, academic investigators want them too to see how effective these operations are.
Previously the WCO has attempted to rebut the ADA and IADAA’s analysis of its reports, stating that the figures cannot be relied on. As our analysis always provides transparent sources for the data emanating from the reports, however, the WCO’s case against our analysis simply does not stand up.
Ultimately, its figures must be indicative of the global state of affairs; if they are misleading, why publish them?
ADA Members are aware and deeply saddened by the devastating consequences of the unfolding human tragedy in Ukraine. It is a country with a rich history from the earliest times and while Ukrainian origin antiquities are not so commonly found in our market, ADA members are on the alert to any cultural property which may have originated from that region. This follows on from the ADA’s existing vigilance over antiquities possibly originating from the Crimea, in place since that region was annexed by Russia in 2014. The Code of Conduct of the Antiquities Dealers’ Association provides specific guidance to Members on the dangers to cultural property in war-torn countries, under the heading ‘Conflict Zones’.
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